Foster v Sanderson
[2019] NZHC 459
•15 March 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-3027
[2019] NZHC 459
BETWEEN SOPHIE FLORENCE FOSTER
Plaintiff
AND
CEDRIC ROBERT SANDERSON
CHRISTIE and CAITRIONA DEVINE
First DefendantsMICHELLE FOSTER
Second Defendant
Hearing: On the papers Appearances:
V Bruton QC for the Plaintiff
M J Wenley for the First Defendants
No appearance for the Second DefendantsJudgment:
15 March 2019
JUDGMENT OF ASSOCIATE JUDGE P J ANDREW
This judgment was delivered by me on 15 March 2019 at 12:00 p.m. pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
Solicitors / Counsel:
Ms V Bruton QC, Barrister, Auckland The Small Law Firm, Auckland
Mr M J Wenley, Willis Legal, Napier
FOSTER v CHRISTIE [2019] NZHC 459 [15 March 2019]
Introduction
[1] The first defendants have made an application pursuant to s 56 of the Senior Courts Act 2016 to appeal my decision of 29 November 2018 (reissued 18 December 2018) to the Court of Appeal.1 In that decision I granted the plaintiff’s application to set aside the protest to jurisdiction in respect of the plaintiff’s claim of undue influence and in relation to the severance of the joint tenancy. I held that only a New Zealand Court has jurisdiction to determine those claims.
[2] The plaintiff opposes the application for leave to appeal but in the event that the application is granted has made application for leave to cross-appeal.
[3] By consent, I am determining the applications on the papers, following receipt of written submissions.
Relevant legal principles
[4] The jurisdiction to grant leave to appeal under s 56 has been recently reviewed by the Court of Appeal in Fairway Holdings Ltd v McCullagh.2 The Court approved the approach in Ngai Te Hapu Inc v Bay of Plenty Regional Council where it was held:3
We agree that leave to appeal should only be granted where the significance or implications of an arguable error of fact or law, either for the particular case or for the applicant or as a matter of precedent, warrants the further delay which the appeal process would involve.
[5]The Court of Appeal also referred to the following dictum of Somers J in
Sandle v Stewart:4
The purpose of [leave] is to limit the cases which may go on appeal in the interests of finality of litigation and the work load of the High Court, while preserving the integrity of the law and the interests of justice.
[6] In Finewood Upholstery Ltd v Vaughan, Fitzgerald J described the leave requirement as a “filtering mechanism” to ensure that unmeritorious appeals of
1 Foster v Christie [2018] NZHC 3103.
2 Fairway Holdings Ltd v McCullagh [2018] NZCA 605.
3 Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 at [17].
4 Sandle v Stewart [1982] 1 NZLR 708 (CA) at 715.
interlocutory orders, or appeals of interlocutory orders of no great significance to either of the parties or more generally, do not unnecessarily delay the proceedings to which the orders were made.5
Analysis and decision
Issue: Has the application for leave to appeal been filed out of time?
[7] The first defendants filed a notice of appeal dated 15 January 2019 against my judgment directly with the Court of Appeal. On 18 January 2019 the Registrar of the Court of Appeal advised the first defendants that the Court could not accept the appeal for filing because my judgment was an interlocutory one and leave is required under s 56 of the Senior Courts Act 2016.
[8] The first defendants then filed an interlocutory application with this Court dated 18 January 2019 for leave to appeal.
[9] In her notice of opposition, the plaintiff says that the application is out of time because it should have been filed within 20 working days of my judgment of 29 November 2018.
[10] However, I conclude that the application has not been brought out of time and that the time period for calculating the 20 working days should be from the date the judgment was reissued, namely 18 December 2018. If I am wrong on that issue, then I would allow leave under s 56(3) for this application to be brought out of time.
Issue: Is there an arguable error of general or public importance?
[11] The first defendants contend that I applied the wrong test in exercising what they contend is a discretion whether to assume jurisdiction. It is alleged that I failed wholly to consider the mandatory matters under r 6.29(1)(a)(ii) of the High Court Rules 2016. The first defendants also challenge my determination that the exception to the Mocambique rule in relation to the administration of estates has no application
5 Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].
to this case. The proposed grounds of appeal are those set out in documents filed with the Court of Appeal (but rejected by it) dated 15 January 2019.
[12] The plaintiff contends that the application for leave to appeal on the intended appeal is an exercise in futility. It is argued that the issue of whether the New Zealand realty forms part of Gwen Foster’s estate is an issue that arises solely between the plaintiff Sophie and her sister Michelle, the second defendant, consequent on Sophie’s claims of undue influence against Michelle. Ms Bruton QC submitted that the first defendants have no role to play, qua executors, in determining this controversy.
[13] Ms Bruton further contended that there is no arguable error of general or public importance requiring determination. She submitted that I was bound by and correctly applied the Court of Appeal decisions in Schumacher v Summergrove Estates Ltd,6 Americhip, Inc v Dean,7 and In Re Butchart (deceased).8
[14] I do not accept the submission that the proposed appeal would be an exercise in futility. The first defendants took an active role in the interlocutory proceedings before me opposing the plaintiff’s application to set aside the protest to jurisdiction and I concluded, at [40], that the first defendants did have standing to challenge the jurisdiction of the Court. That issue is, of course, the subject of the plaintiff’s proposed cross-appeal. Whether the first defendants have a role to play in determining the substantive controversy between the plaintiff and her sister, the second defendant, is a live issue.
[15] I also find that there is an arguable error of fact or law in relation to my determination on jurisdiction with implications or significance not only for the particular case but also as a matter of precedent. For the reasons articulated in my judgment, the question of jurisdiction is complex and, as I see it, might well have implications beyond the particular confines of this case.
[16] The first defendants challenge my determination on a fundamental basis, contending, as I have noted, that I adopted the wrong test. The relationship between
6 Schumacher v Summergrove Estates Ltd [2014] NZCA 412, [2014] 3 NZLR 599 at [30].
7 Americhip, Inc v Dean [2014] NZCA 380, [2014] NZAR 1137.
8 In Re Butchart (deceased) [1932] NZLR 125 (CA).
jurisdiction and the rules applying to forum non-conveniens in the High Court Rules is, in my view, an issue that would benefit from further analysis by the Court of Appeal and warrants any further delay which an appeal process would inevitably involve. Whether I correctly applied the jurisprudence will be for the Court of Appeal to determine.
[17] I thus conclude that the application for leave to appeal should be granted. It is in the interests of justice to do so.
[18] I also find that the application for leave to cross-appeal equally raises arguable errors of fact or law which would have significance not just for the parties in this case but as a matter of precedent. I accordingly grant leave to the plaintiff to cross-appeal on the issues set out at paragraph 22 of the plaintiff’s submissions of 26 February 2019.
Issue: Stay of proceedings
[19] I also accept the submission of Mr Wenley, for the first defendants, that if the Court of Appeal upholds the proposed appeal then that will likely result in this Court not assuming jurisdiction over the proceedings in its totality. All matters would then be determined by the High Court in Ireland. In other words, if the appeal is granted, it will bring the New Zealand proceeding to an end.
[20] I find that in these circumstances I should grant a stay of the proceeding, as sought by the first defendant, pending determination of the appeal by the Court of Appeal or any order of the Court.
Result
[21]I make the following orders:
(a)The first defendants’ application for leave to appeal pursuant to s 56 of the Senior Courts Act 2016 is granted.
(b)I also grant leave, pursuant to s 56, for the plaintiff to cross-appeal on the following issues:
(i)The finding at [40] of my judgment that the first defendants have standing to challenge the jurisdiction of the High Court.
(ii)The finding at [76] of my judgment that the High Court adjudicating on an application under the Succession Act 1965 (Ireland) could potentially make an award in favour of Sophie as to the remaining half share of the New Zealand property, and the executors would be then bound to carry out that order.
(iii)My finding at [79] of my judgment that “if I am wrong in my findings about jurisdiction I would also conclude that Sophie’s realty-based claims should be heard and determined in Ireland”.
(c)I grant a stay of the proceedings pending determination of the appeals by the Court of Appeal and/or further order of the Court.
[22] I make no order as to costs. In my view, costs should lie where they fall given that both applications have been granted.
Associate Judge P J Andrew
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