French v Public Trust

[2005] NZCA 56

IN THE COURT OF APPEAL OF NEW ZEALAND

CA197/04

BETWEENROBERT WAYNE FRENCH

Applicant

ANDPUBLIC TRUST

Respondent

Hearing:14 March 2005

Court:McGrath, Hammond and O'Regan JJ

Counsel:Applicant in person

G C Jenkin for Respondent

Judgment:21 March 2005 

JUDGMENT OF THE COURT

A.The application to recall the Court’s judgment in this appeal is dismissed.

B.The applicant must pay the respondent costs of $1500 together with reasonable disbursements to be fixed by the Registrar.

REASONS

(Given by McGrath J)

[1]        Mr French applies for recall of a judgment of this Court, delivered on 25 November 2004, refusing him special leave to bring an appeal out of time against a judgment of the High Court.

[2]        At the outset of the hearing before us the applicant took issue with the composition of the bench.  Hammond J had determined another case involving Mr French in the High Court.  Having heard the applicant the Court decided that the present application could fairly be determined by the Court as presently composed.

[3]        The High Court proceeding concerned a dispute about the estate of the applicant’s late father, Jack French, who had made wills in 1988 and in 2000.  The parties were the applicant and the Public Trust as executor and trustee of the father’s estate.  Under the 1988 will, the residuary estate of the testator was divided equally among his three children.  Under the 2000 will, the entire residuary estate was left to the applicant.

[4]        The Public Trust applied for, and was granted, administration of the 1988 will.  Subsequently the 2000 will came to light.  The applicant then applied in the High Court for recall of the grant of administration of the earlier will, and probate of the 2000 will.  

[5]        At the commencement of the hearing of this proceeding in the High Court the applicant’s counsel sought leave to withdraw, the applicant having withdrawn his instructions.  Leave was granted by the trial Judge, who had first explained to the applicant that it might not be in his best interests to represent himself at trial.  The Judge later declined the applicant’s application for an adjournment and the matter proceeded. Judgment was delivered by Venning J on 29 October 2003.  The Judge held that the testator had lacked testamentary capacity when the 2000 will was made and that the 2000 will had been drawn up in circumstances of undue influence by the applicant.  It did not represent the independent wishes of the deceased.

[6]        The application for special leave to appeal out of time against the High Court’s judgment, to which this Court’s judgment of 25 November 2004 related, concerned the Judge’s decision not to permit an adjournment.

[7]        The judgment of this Court records that the applicant filed a notice of appeal in this Court on 27 November 2003, one day out of time.  The applicant then applied for special leave to appeal out of time but not until June 2004.  By then two events had occurred since delivery of the High Court judgment.  First, the farm property owned by the Estate of Jack French had been sold, with settlement taking place on 31 May 2004, following lapse of a caveat.  Secondly, a partial distribution by the Public Trust of the proceeds of the sale of the farm had been made on 21 June 2004 to the three beneficiaries under the 1988 will.

[8]        In its judgment this Court decided that it was in the interests of justice to refuse special leave to bring the appeal out of time.  The reasons given by the applicant did not justify the seven month delay, and the Public Trust had taken significant steps in reliance on the High Court judgment since the lapse of the appeal period.  There would be practical difficulties for the trustee and other beneficiaries of the will if special leave were granted.

[9]        The applicant makes five submissions in support of his application to recall the judgment of this Court dated 25 November 2004, and all lower Court judgments.

[10]      First, the applicant submits that a notice of appeal was filed on 24 November and was therefore filed within time.

[11]      The applicant’s affidavit in support of his application exhibits a letter from the Registry dated 26 November 2003 returning to the applicant his notice of appeal and application for waiver of fees.  His application for waiver of fees had not been completed in full.

[12]      The applicant states in his affidavit that he offered to pay by direct credit, but was told that he had to come to the Court in person to pay the filing fee by 5pm that day.  No other option for payment had been offered by this Court.  He submits that because of a back injury he was unable to do that.

[13]      Despite what the applicant says in his affidavit we are satisfied that, although the applicant submitted documentation to the Court on 24 November 2003, it did not comply with the requirements for filing and was properly rejected.  The judgment of the Court of 25 November 2004 accordingly was not given on an erroneous factual basis.

[14]      The second part of the applicant’s submissions is that the Court’s Registry should have given him a deadline by which to file his application for special leave to appeal out of time.  That is not correct.  The Court’s judgment, in any event, did not turn on what was a lengthy delay after 24 November 2003 alone, but on what happened during the period of delay, the consequences for other persons and, ultimately, the Court’s assessment of the interests of justice.  As there is no basis for the contention of the applicant that the fault lay with the Registry, this submission does not provide a special reason that meets the requirements for the Court to recall a judgment or to reopen the appeal to avoid injustice. 

[15]      The other matters raised by the applicant in written submissions were not developed in his oral argument and can be covered briefly.

[16]      The applicant’s second submission is that the caveat registered on 6 January 2003 did not lapse, as the Court recorded in its judgment, because he did not sign the withdrawal that the Public Trust had requested he sign, and because the Public Trust did not make further application to the Court.  In addition, he states that his application for special leave to this Court should have prevented any application being filed, and the caveat lapsing.  The applicant submits that s 145A of the Land Transfer Act 1952 does not apply to a registered caveat.

[17]      Mr Jenkin for the respondent submits in response that it is undeniable that the caveat lapsed on 20 February 2004 after the s 145A procedure was undertaken. 

[18]      This Court is not able to entertain a collateral argument to the effect that the settlement concerned should not have taken place.  The judgment of the Court was necessarily based on the events that did take place.  There is nothing in this point.

[19]      The applicant next argues that it is a matter of public interest to know how the Public Trust came to be appointed as administrator of the deceased’s estate. He submits that he is a trustee of the estates of both his mother and father, and that he was named as an executor of his father’s will.  The applicant also possessed power of attorney in respect of his father’s property.  He says that there were no grounds for revoking his power of attorney.  Again this argument concerning a collateral matter does not provide a reason for the recall or reopening of this Court’s judgment.

[20]      The applicant then says that the Public Trust defaulted by not filing submissions in time, and submits that the recall application be granted on that account.

[21]      He submits that the actions taken by the Public Trust during the period leading up to the special leave application amounted to nothing except to assume that the applicant had abandoned his appeal.  The respondent agrees that it assumed that the applicant had abandoned further applications for special leave to appeal to this Court, and says that because of this, it had applied for lapse of the caveat under s 145A Land Transfer Act.

[22]      The applicant also submits that the involvement of Public Trust is a conflict of interest, and that it is a matter of public interest that the Recall application be granted, and that costs not be granted against him.

[23]      None of these concerns impacts on or provides a basis for the recall or reopening of the judgment of 25 November 2004.  Each point is simply an attempt to relitigate past issues and is without legal merit. 

[24]      The application is dismissed.  The applicant must pay costs of $1500 to the respondent together with reasonable disbursements, to be agreed by counsel or failing agreement to be fixed by the Registrar.