Counsel: I R Millard QC and A G MacDonald for Appellants
G W D Manktelow for First and Third Respondents
P J Reardon for Second Respondent
G Mason for the Estate of Irma Murray (excused from attendance)

Judgment: 16 July 2012 at 12.30 p.m.

JUDGMENT OF THE COURT

AThe appeal against the High Court’s substantive judgment is dismissed.
BThe cross-appeal by the second respondent is dismissed.
CThe cross-appeal by the third respondent is allowed. The award is increased to A$500,000 in place of the NZ$50,000 discretionary fund under the will of the deceased Irma Murray.
DThe appeal against the costs award to the first respondent is dismissed.
EThe appeal against the costs award to the second respondent is allowed. The costs award of $70,000 is reduced to $35,000.
FThe first respondent is entitled to costs in this Court against the appellants as for a standard appeal on a band A basis with usual disbursements.
GCosts between the appellants and the second respondent in this Court will lie where they fall.
HThe third respondent is entitled to costs against the appellants as for a standard appeal on a band A basis with usual disbursements in relation to the appeal up to the point it was abandoned against him. The third respondent is also entitled to costs against the appellants on the cross-appeal as for a standard cross-appeal on a band A basis with usual disbursements.

___________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Table of Contents

Para No
Introduction	[1]
Background	[6]
The largely undisputed facts
Events prior to 1994	[10]
Donald’s estate and will	[16]
Irma’s claims in 1995 against Donald’s estate	[27]
Events between 1996 and 1999	[28]
Irma’s estate and will	[32]
Areas of disputed fact	[37]
Whether Wanda was generous to Donald in the settlement of the Family Protection proceedings after the death of their father in 1962	[38]
Whether Nathan and Melissa were generous to Irma in the settlement of her Family Court proceedings against Donald’s estate in 1995	[41]
The relationship between Nathan, Melissa and Irma	[52]

Nathan’s farming abilities and responsibility for the indebtedness of the farming enterprise	[61]
The Judge’s findings in relation to the claims
Nathan	[76]
Melissa	[89]
John	[99]
Family Protection Act principles	[106]
Appellants’ submissions	[121]
Discussion	[124]
Nathan’s award	[133]
Nathan’s cross-appeal	[138]
Melissa’s award	[141]
John’s cross-appeal	[143]
The costs appeal	[147]
Result	[154]

Introduction

This appeal arises from awards made to the respondents by Clifford J under the Family Protection Act 1955.[1] The respondents are the three children of the late Irma Murray, who died in 2009 leaving a substantial estate. Irma left almost all of her estate to the appellants who are three of…

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 Fisher v Kirby

Details

AGLC: Fisher v Kirby [2012] NZCA 310
Case: [2012] NZCA 310
Decision Date: 16 July 2012

CaseChat Overview and Summary

This appeal arose from awards made to the respondents by Clifford J under the Family Protection Act 1955. The respondents were the three children of the late Irma Murray, who died in 2009 leaving a substantial estate. Irma left almost all of her estate to the appellants who were three of her four nieces and nephews: Carmel Fisher, Peter Wakem and Melanie Wakem. The awards to the respondents were: (a) Nathan Murray: $600,000; (b) Melissa Murray: $700,000; and (c) John Birch: A$350,000. The Wakem children accepted that Irma breached her moral duty to her three children but contended that the awards made to Nathan and Melissa were too high. They no longer contested the award made to John. Nathan and John have cross-appealed, submitting that the awards made to them were too low. The Court dismissed the appeal against the High Court’s substantive judgment and the cross-appeal by the second respondent. The cross-appeal by the third respondent was allowed and the award in his favour was increased to A$500,000 in place of the NZ$50,000 discretionary fund under the will of the deceased Irma Murray. The appeal against the costs award to the first respondent was dismissed. The appeal against the costs award to the second respondent was allowed and the costs award of $70,000 was reduced to $35,000. The Court considered the extent of the breach of moral duty owed to the deceased's children and the need to remedy any breach. The Court found that the Judge was correct in his assessment of the award made to Nathan, that the award made to Melissa was reasonable and that the award made to John was too low. The Court also found that the costs awards to Nathan and Melissa were too high.

Orders