Corbett v Patterson - [2011] NZCA 649

IN THE COURT OF APPEAL OF NEW ZEALAND

CA303/2011
[2011] NZCA 649

BETWEEN JOHN HILLARY CORBETT
Appellant

AND BRUCE REGINALD PATTERSON AND ROBERT CORBETT WESTERN
Respondents

Hearing: 29 November 2011

Court: Ellen France, Harrison and Wild JJ

Counsel: Appellant in person
C J R Baird for Respondents

Judgment: 15 December 2011 at 11.30 am

JUDGMENT OF THE COURT

A The application for leave to adduce further evidence in support of the appeal is dismissed.
BThe appellant must pay the respondents’ costs as for a standard application on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT
(Given by Wild J)

Introduction

By an “up-dated” application of 7 October 2011, Mr Corbett seeks leave to adduce further evidence in support of his appeal.[1] Rule 45 of the Court of Appeal (Civil) Rules 2005 governs this application. The requirements are that the evidence be fresh, credible and cogent. Evidence is not fresh if it could, with reasonable diligence, have been adduced at the hearing in the High Court.[2]
[1]His appeal is against a decision of Priestley J in the High Court: Corbett v Western HC Auckland CIV-2010-404-1495, 18 April 2011.
[2] Erceg v Balenia [2008] NZCA 553 at [15].
Priestley J held that Mr Corbett is an incapacitated person in terms of rr 4.29 and 4.35 of the High Court Rules, and appointed Mr Simon Jefferson, an Auckland barrister, as Mr Corbett’s litigation guardian for Mr Corbett’s proceeding in the High Court. Priestley J made that finding and appointment upon an application made by the defendants to Mr Corbett’s proceeding. Those defendants are the respondents to this appeal. They are the trustees of the JM and JS Corbett Family Trust (the Family Trust). Mr Corbett commenced his proceeding against the trustees on 20 March 2010. It was the second time he had sued the trustees.[3]

Background

[3]The first proceeding was Corbett v Bolesworth HC Auckland CIV-2005-404-7172, 9 September 2009, commenced by Mr Corbett in December 2005. That proceeding was struck out by Woodhouse J in a judgment delivered on 9 September 2009. The Judge held that Mr Corbett’s claims had been discharged by a binding full and final settlement recorded in a “joint memorandum of counsel regarding settlement of proceeding” dated 24 January 2007.

The Family Trust was established by Mr Corbett’s parents for Mr Corbett and his sister. We understand the nub of Mr Corbett’s claim in the High Court to be that undue influence from other members of the family resulted in Mr Corbett’s parents not implementing what they really intended through their wills and a memorandum of wishes relating to the Family Trust. Mr Corbett claims his parents’ true intention was an equal distribution between Mr Corbett and his sister. The wills and memorandum effect a two-thirds to one-third distribution in the sister’s favour. We have drawn this understanding from Priestley J’s judgment, rather than from Mr Corbett’s amended statement of claim.[4]
[4]We have relied particularly on [20] of Priestley J’s judgment. The Judge notes at…

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 Corbett v Patterson

Details

AGLC: Corbett v Patterson [2011] NZCA 649
Case: [2011] NZCA 649
Decision Date: 15 December 2011

CaseChat Overview and Summary

In the case of Corbett v Patterson, the appellant, John Corbett, sought leave to adduce further evidence in support of his appeal against a decision of the High Court. The High Court had found that Mr Corbett was an incapacitated person, and appointed a litigation guardian for him in his proceeding against the trustees of the JM and JS Corbett Family Trust. The appellant's appeal is only against the finding of incapacity and the appointment of a litigation guardian. The Court of Appeal was asked to decide whether the appellant should be granted leave to adduce three categories of further evidence: cross-examination of Dr Brinded, telephone and fax records, and an audio recording of an interview. The Court found that the proposed evidence did not meet the requirements of Rule 45 of the Court of Appeal (Civil) Rules 2005, and declined leave for its admission on this appeal. The Court found that the proposed evidence was either not fresh, not credible or not cogent. As a result, the appellant's application was dismissed, and he must pay the respondents' costs as for a standard application on a band A basis and usual disbursements.

Orders