Hearing:	17 October 2019
Court:	French, Lang and Mander JJ
Counsel:	M J Wenley for Appellants V T Bruton QC for Respondent
Judgment:	5 December 2019 at 3.30 pm

JUDGMENT OF THE COURT

AThe respondent’s application for leave to adduce further evidence is granted.

B The appeal is allowed.

CThe cross-appeal is dismissed.
DThe decision of the High Court relating to the respondent’s claim of undue influence is quashed. The respondent’s application to set aside the appellants’ notice of objection to jurisdiction in respect of that claim is dismissed.

E The respondent’s proceeding in the High Court is dismissed.

FThe respondent must pay the appellants costs calculated for a complex appeal on a band B basis with usual disbursements.
GThe costs order made in the High Court is quashed. An order that the respondent must pay the appellant costs on a 2B basis with disbursements in respect of the High Court proceedings is substituted.

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REASONS OF THE COURT

(Given by French J)

Table of Contents

Para No

Introduction
Background
The decision of the Associate Judge
Appeal and cross appeal
Application to adduce further evidence

The second amended statement of claim
Proprietary estoppel
Institutional constructive trust
Undue influence

Did the Judge err in finding the Irish executors have standing when probate is not yet obtained?
Did the Judge err in finding only a New Zealand court had jurisdiction to determine Sophie’s claims relating to Omaha and Rosa House?

The Judge’s reasoning
Analysis
Overview
The Moçambique rule
Exceptions to the Moçambique rule
The in personam exception
Administration of an estate exception to the Moçambique rule
Should the Associate Judge independently of the Moçambique rule have held the Irish courts did not have jurisdiction because only a New Zealand court can grant the relief sought? (Cross-appeal)
Can we be satisfied that an Irish court would hold it had jurisdiction to consider Sophie’s claims when they relate to land in New Zealand
Conclusion on jurisdictional bar

Is New Zealand or Ireland the more appropriate forum to try this proceeding (forum conveniens)?
Costs
Outcome

[1]
[5]
[30]
[32]
[44]
[49]
[50]
[53]
[57]

[62]

[67]
[67]
[73]
[73]
[74]
[79]
[80]
[106]

[110]

[118]
[120]

[121]
[129]
[133]

Introduction

Is it possible for this proceeding to be heard in the Republic of Ireland? And, if so, is New Zealand or Ireland the more appropriate forum?
Those were the key issues before Associate Judge Andrew in the High Court and now before us on appeal. The issues arise in the context of a family dispute between siblings over their late mother’s will. The mother was domiciled in Ireland and her estate contains assets situated in both Ireland and New Zealand.[1]
[1]It appears there may also be some assets in England but neither…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Christie v Foster

Details

AGLC: Christie v Foster [2019] NZCA 623
Case: [2019] NZCA 623
Decision Date: 5 December 2019 at 3.30 pm

CaseChat Overview and Summary

The appeal and cross-appeal between the siblings of a deceased estate concern the jurisdiction to hear claims relating to the deceased's real property in New Zealand and the appropriateness of the New Zealand High Court as the forum in which to hear those claims. The appeal was brought by the Irish executors of the deceased's will, the cross-appeal by the person bringing the claims in the High Court. The appeal and cross-appeal were allowed. The decision of the High Court relating to the cross-appellant's claim of undue influence was quashed, the cross-appellant's application to set aside the appellants' notice of objection to jurisdiction in respect of that claim was dismissed, and the cross-appellant's proceeding in the High Court was dismissed. The cross-appellant must pay the appellants costs calculated for a complex appeal and cross-appeal on a band B basis with usual disbursements. The costs order made in the High Court was quashed, and an order that the cross-appellant must pay the appellants costs on a 2B basis with disbursements in respect of the High Court proceedings was substituted. The Court found the Associate Judge in the High Court erred in finding that only a New Zealand court had jurisdiction to hear the cross-appellant's claims relating to the real property in New Zealand. The Moçambique rule did not apply to preclude the Irish courts from having jurisdiction. The cross-appellant's claims fell within the in personam exception to the Moçambique rule. The Irish courts would have the ability to grant the cross-appellant an effective remedy through their control of the executors. The cross-appellant's claims also fell within the administration of an estate exception to the Moçambique rule. The cross-appellant's claims related to the administration of the estate. Although the Irish courts could not order the New Zealand Registrar General of Land to transfer the real property, they could order the executors to sign the necessary documentation to convey legal title of the deceased's half share in the two Zealand properties to the cross-appellant. The Irish courts are familiar with equitable doctrines such as estoppel, constructive trusts and undue influence, and it would not be a difficult task for an Irish court to apply the New Zealand version of those doctrines. The cross-appellant has not established that New Zealand is the more appropriate forum. The common sense of the matter is that all the litigation, including all of the cross-appellant's claims (relating to both personal property and land in New Zealand) and the two extant Irish proceedings to which she is a party, should be heard and determined by the same court. And that can only be the High Court of Ireland. Only the High Court of Ireland can deal comprehensively with the interests of all three children and all issues including undue influence.

Orders