French v Public Trust

[2004] NZCA 286

IN THE COURT OF APPEAL OF NEW ZEALAND

CA197/04

BETWEENROBERT WAYNE FRENCH

Applicant

ANDPUBLIC TRUST

Respondent

Hearing:15 November 2004

Court:William Young, Chambers and O’Regan JJ

Counsel:Applicant in person

G C Jenkin for Respondent

Judgment:25 November 2004 

JUDGMENT OF THE COURT

The application for special leave is dismissed.  We award costs of $3,000 to the respondent together with disbursements (including travelling and accommodation costs of counsel) to be fixed by the Registrar.

REASONS

(Given by O’Regan J)

[1]       This is an application for special leave seeking an extension of time for the filing of an appeal against a judgment of the High Court (French v Public Trust HC HAM CIV-2003-419-00316 29 October 2003).  The application is made under r 5(1) of the Court of Appeal (Civil) Rules 1997 as in force before the commencement of the Court of Appeal (Civil) Amendment Rules 2003: r 6 of those Amendment Rules.

[2]       The High Court case related to a dispute about the estate of the applicant’s father, Jack French.  Jack French made a will in 1988, and made a later will in 2000.  Under the 1988 will, the residuary estate of Jack French was divided equally between his three children, George, Anne and Robert (the applicant).  However, the 2000 will provided for the entire residuary estate of Jack French to be left to the applicant.  The Public Trust applied for, and was granted, administration with will annexed in respect of the 1988 will before the 2000 will came to light. 

[3]       The High Court proceedings involved applications by the applicant for recall of the grant of administration of the 1988 will and for probate of the 2000 will.  Both applications were dismissed.  Venning J found that Jack French did not have testamentary capacity when the 2000 will was made.  He also accepted an alternative submission from the Public Trust to the effect that, even if the 2000 will had been drawn up at Jack French’s instructions, that was against the background of, and in circumstances of, undue influence by the applicant and did not represent Jack French’s independent wishes. 

[4]       At the commencement of the High Court trial for which an eight day fixture had been made, counsel for the applicant, Mr Randle sought leave to withdraw because the applicant had withdrawn his instructions.  Mr Randle told Venning J that he was in a position to present the applicant’s case and was prepared to do so, but that the applicant had withdrawn his instructions to him on 16 October 2003, four days before the commencement of the High Court trial.  Venning J granted leave for Mr Randle to withdraw, having explained to the applicant that it may not be in his best interests for him to represent himself at the trial. 

[5]       In an oral decision issued on 20 October 2003, Venning J declined the applicant’s application for an adjournment or vacation of the fixture.  The focus of the applicant’s proposed appeal is on the decision not to permit an adjournment.

[6]       The applicant filed a notice of appeal with this Court on 27 November 2003, and served this notice on the Public Trust as respondent.  However, this notice of appeal was filed in this Court one day out of time, and was rejected by the Registrar of this Court.

[7]       The applicant filed an application for special leave to appeal in June 2004.  The application is dated 25 June 2004 and was received at this Court on 28 June 2004.  It was served on the Public Trust and received by the Public Trust on 2 July 2004.

[8]       In the period between November 2003 and June 2004, two significant events occurred.  The first was that the sale of a farm property owned by the Estate of Jack French became unconditional and was settled on 31 May 2004.  The agreement for sale of this farm had been entered into in August 2002, and was conditional on the Public Trust obtaining a release of a caveat which the applicant had lodged on the title.  This caveat lapsed on 20 February 2004, after the process referred to in s 145A of the Land Transfer Act 1952 was invoked. 

[9]       The second was that, following that sale, a partial distribution of the proceeds of the sale of the farm was made to the three beneficiaries under the 1988 will, George, Anne and the applicant.  These distributions were made on 21 June 2004. 

[10]     An officer of the Public Trust deposed that the Public Trust had made various inquiries of this Court as to whether the applicant was pursuing his attempt to appeal against the decision of Venning J and had been told that no application for special leave had been made.  Accordingly it was assumed that the appeal had been abandoned. 

[11]     The officer said that it was only in October 2004 when the applicant’s submissions in support of his application for special leave to appeal were received by the Public Trust that it became apparent to those in the Public Trust who were responsible for the affairs of the estate that an application for special leave had been made. 

[12]     However, it was subsequently discovered that the application for special leave to appeal had been served on the Public Trust on 2 July 2004.  The Public Trust had taken no action in relation to the application after the Public Trust staff member who received the application had made an inquiry of this Court and had been told that there was no extant application. 

[13]     It is clear, however, that the actions taken by the Public Trust in settling the sale of the farm and making the distributions to the beneficiaries of the 1988 will occurred before the date on which the application for special leave had been served on the Public Trust (2 July 2004).  So the apparent confusion in the Public Trust about the existence of an application for special leave has had no practical consequence.  Indeed, it appears that the applicant made the application for special leave after he received the partial distribution from his father’s estate: it was the receipt of the distribution that prompted him to make the application.

[14]     The Rules confer a wide discretion on the Court to extend the time for the filing of an appeal, but the power to extend time will not be used lightly.  The ultimate test is whether granting leave would meet the overall interests of justice: State Insurance Limited v Brooker (2001) 15 PRNZ 493 at [9].  In the present case, the application was made seven months after the expiry of the appeal period, and the Public Trust has acted in reliance on the High Court judgment in the interim period.

[15]     The applicant said that his mistake in missing the deadline for the filing of the appeal in November 2003 arose from the emotional stress of the High Court hearing and the behaviour of his lawyer.  He said that he did not complete the appeal documents properly because of this stress.  In an affidavit filed in support of his application for special leave, the applicant also said that he had injured his back in November 2003 and that he was still having treatment for this injury.  He said that he held caveats over the estate’s farm property and another property still held by the estate, and thought that the caveat over the farm was holding the position (i.e. preventing the sale of the farm from being settled) pending the filing of an application for special leave.  He said he had not received a notice from the Registrar-General of Lands under s 145A of the Land Transfer Act 1952, and was therefore unaware of the lapse of his caveat. 

[16]     We are satisfied that it is in the interests of justice to decline special leave in this case.  The applicant’s reasons for delaying his application are not an adequate explanation for a delay of seven months.  He knew in November 2003 that his notice of appeal had not been filed and served in time, and that he needed special leave to appeal.  Yet he took no steps to obtain special leave for seven months.  The significant steps taken by the Public Trust in reliance on the High Court judgment since the lapse of the appeal period mean that there would be now some significant practical difficulties for the Public Trust and the other beneficiaries of the will if special leave were granted.  Accordingly, we decline special leave in this case.

[17]     We award costs of $3,000 to the Public Trust in respect of this application, together with disbursements (including travelling and accommodation costs of counsel) to be fixed by the Registrar.

Solicitors:
F Ashraf for Respondent