Foster v Christie - [2018] NZHC 3103

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2017-404-003027

[2018] NZHC 3103

BETWEEN
SOPHIE FLORENCE FOSTER

Plaintiff

AND

CEDRIC ROBERT SANDERSON

CHRISTIE and CAITRIONA DEVINE
First Defendants

AND

MICHELLE FOSTER

Second Defendant

Hearing: 5 November 2018

Appearances:

V Bruton QC for the Plaintiff

M J Wenley for the First Defendants
No appearance for the Second Defendant

Judgment:

29 November 2018

Reissued:

18 December 2018

REISSUED JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

This judgment was delivered by me on
29.11.18 at 3:30pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
The Small Law Firm, Auckland V Bruton QC, Auckland
Willis Legal Lawyers, Napier

FOSTER v CHRISTIE, DEVINE and FOSTER [2018] NZHC 3103 [29 November 2018]

Introduction

[1] Sophie Foster, the plaintiff, is the youngest daughter of the late Gwendolen Foster (Gwen) who died in the Republic of Ireland in January 2016.

[2] In these proceedings, brought against the executors of Gwen’s estate (the first defendants), Sophie challenges Gwen’s 2013 severance of the joint tenancy of two New Zealand properties, owned in the name of herself and Sophie. The effect of the severance was to secure to Gwen a legal and beneficial ownership of a half share in each of the properties and to negate any interest passing by survivorship, to Sophie.

[3] Sophie claims that the severance was invalid; it was not the exercise of Gwen’s free will and was caused by undue influence of her sister, Michelle Foster (the second defendant). Sophie seeks an order reversing the severance.

[4] The legal work for the severance was carried out by Willis Legal, solicitors of Napier.1 Willis Legal say that they were acting as agents on instructions from Christie & Co, solicitors of Ireland, the firm acting on behalf of the first defendants. The first defendants are solicitors of Christie & Co.

[5] There are related proceedings before the Courts in Ireland. Sophie has filed a caveat seeking to block the grant of probate of Gwen’s will to the first defendant. Proceedings have also been brought by Robert Foster, brother of Michelle and Sophie, contesting the will under the Succession Act 1965 (Ireland) (the equivalent to the New Zealand Family Protection Act 1955).

[6] The first defendants have protested the jurisdiction of the Court to hear and determine the proceedings. They contend that the Republic of Ireland is the most appropriate country in which the matters in dispute should be determined and that Sophie can bring a claim under the Succession Act 1965 (Ireland).

[7] Sophie now seeks to set aside the protest to jurisdiction. She also seeks an order that Willis Legal must immediately cease to act in these proceedings on the

1 Formerly Willis Toomey Robinson.

grounds that members of that firm will need to be cross-examined in relation to the issue of undue influence, and on the instructions they received from Gwen, and possibly Michelle, in relation to the severance. Sophie claims that…

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 Foster v Christie

Details

AGLC: Foster v Christie [2018] NZHC 3103
Case: [2018] NZHC 3103
Decision Date: 29 November 2018

CaseChat Overview and Summary

In Foster v Christie, the plaintiff Sophie Foster, the youngest daughter of Gwendolen Foster, challenged the severance of the joint tenancy of two New Zealand properties owned by her and Gwendolen. Sophie sought to reverse the severance, claiming it was not the exercise of Gwendolen's free will and was caused by undue influence from Michelle Foster, Gwendolen's sister. The case involved complex issues of jurisdiction and the application of the Moçambique rule, which states that New Zealand courts have no jurisdiction over the title or possession of immovable property situated outside New Zealand unless the action is based on a contract or equity between the parties. The court found that the New Zealand courts had jurisdiction over the claims relating to the New Zealand properties, but the claims concerning the will and funds in the joint ASB account should be heard in Ireland. The court also ruled that Willis Legal, the solicitors representing the first defendants, must cease acting in the proceedings due to potential conflicts of interest and the need for cross-examination regarding their instructions and advice during the severance process. The court ordered Sophie to file an amended statement of claim focusing only on the New Zealand realty claims and directed a case management conference to be held after 1 February 2019.

Orders