Foster v Sanderson - [2019] NZHC 459

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 Defendants

MICHELLE 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 Defendants

Judgment:

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…

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 Sanderson

Details

AGLC: Foster v Sanderson [2019] NZHC 459
Case: [2019] NZHC 459
Decision Date: 15 March 2019

CaseChat Overview and Summary

In Foster v Sanderson Christie, the plaintiff, Sophie Florence Foster, filed a claim against the first defendants, Cedric Robert Sanderson Christie and Caitriona Devine, who were executors of a deceased estate, and the second defendant, Michelle Foster, Sophie's sister. The dispute revolved around the jurisdiction of the New Zealand court to hear Sophie's claim of undue influence and the severance of a joint tenancy. The first defendants sought leave to appeal the decision of the Associate Judge to the Court of Appeal, arguing that the judge had erred in law and fact, while the plaintiff opposed the application but sought leave to cross-appeal.

The court had to decide whether the application for leave to appeal was filed out of time and if there was an arguable error of general or public importance warranting the appeal. The first defendants filed their notice of appeal on 15 January 2019, which the Court of Appeal deemed invalid as it was an interlocutory order requiring leave under s 56 of the Senior Courts Act 2016. They subsequently filed an application for leave to appeal on 18 January 2019, which the plaintiff argued was out of time as it should have been filed within 20 working days of the judgment on 29 November 2018. However, the court found that the time period for calculating the 20 working days should be from the date the judgment was reissued on 18 December 2018.

The court also had to determine if there was an arguable error of fact or law with implications or significance not only for the particular case but also as a matter of precedent. The first defendants argued that the judge applied the wrong test in exercising the discretion to assume jurisdiction and failed to consider mandatory matters under r 6.29(1)(a)(ii) of the High Court Rules 2016. The plaintiff argued that the appeal would be an exercise in futility as the issue of whether the New Zealand realty formed part of Gwen Foster's estate was solely between Sophie and Michelle. However, the court found that the first defendants had standing to challenge the jurisdiction of the Court, and the question of jurisdiction was complex and might have implications beyond the particular confines of this case. The court concluded that the application for leave to appeal should be granted as it was in the interests of justice.

The court also granted leave to the plaintiff to cross-appeal on the issues set out in the plaintiff's submissions, finding that there were arguable errors of fact or law with significance not just for the parties in this case but as a matter of precedent. The court accepted the submission of the first defendants that if the Court of Appeal upheld the proposed appeal, it would likely result in the New Zealand proceedings coming to an end. The court granted a stay of the proceedings pending determination of the appeals by the Court of Appeal or any order of the Court.

In conclusion, the court granted the first defendants' application for leave to appeal and the plaintiff's application for leave to cross-appeal, finding that there were arguable errors of fact or law with implications or significance not only for the particular case but also as a matter of precedent. The court also granted a stay of the proceedings pending determination of the appeals by the Court of Appeal or any order of the Court.

Orders