Gray Kevin Malcolm v Dawn Maria Godinagh

[2005] NZCA 54

IN THE COURT OF APPEAL OF NEW ZEALAND

CA261/04

BETWEENKEVIN MALCOLM GRAY

Applicant

ANDDAWN MARIA GODINAGH AND MARGARET MARY HUNT

Respondents

Hearing:14 March 2005

Court:McGrath, Hammond and O'Regan JJ

Counsel:J A L Gibson QC and G D S Taylor for Applicant

L A Foley for Respondents

Judgment:18 March 2005 

JUDGMENT OF THE COURT

A        APPLICATION FOR SPECIAL LEAVE DISMISSED.

BTHE RESPONDENTS WILL, JOINTLY, HAVE COSTS OF THE LESSER OF $1,500 OR THE AMOUNT GRANTED TO THEIR COUNSEL BY THE LEGAL SERVICES AGENCY, TOGETHER WITH THEIR REASONABLE DISBURSEMENTS, IF NECESSARY AS FIXED BY THE REGISTRAR.

REASONS

(Given by Hammond J)

Introduction 

[1]        We have before us an application for special leave to appeal to this Court in a family protection proceeding which has, unfortunately, become procedurally convoluted. 

Background

[2]        It is necessary, in order to follow the application, to say a little more than is usual about the history of this proceeding.

[3]        Mr and Mrs Gray were married in 1942.  There were four children of the marriage.  One died in infancy.  A son, the present applicant, is in his late 50s.  The two respondents are his sisters.

[4]        Mr Gray was a farmer.  He died on 14 December 1991.  He left a 1975 will that gave a life interest in his real estate to his wife.  Broadly, the estate then passes to the applicant, subject to him paying his two sisters the sum of $5,000 each, with a  similar sum to be paid to two grandchildren.

[5]        Mr Gray’s will was admitted to probate on 24 February 1992.  Little changed in terms of the family situation thereafter:  the applicant continued to farm the farm; his mother had a life interest in the estate.

[6]        Mrs Gray died on 1 August 2001. 

[7]        Although they had been dissatisfied as to the provision made for them in the will, the respondents had (erroneously) thought that nothing could be done until after Mrs Gray’s death.

[8]        Following Mrs Gray’s death, legal advice was taken; the requisite information was obtained about the estate; and proceedings against the estate were filed in the Masterton Registry of the High Court on 24 May 2002.  The proceedings sought an interim injunction against distributions from the estate, a statement of claim seeking relief under the Family Protection Act 1955 was filed, and an application was made for an extension of time for that proceeding.

[9]        It was common ground that an extension of time was required because almost a decade had passed since Mr Gray’s will had been admitted to probate.  The relevant limitation period was 12 months from the grant of probate.

The procedural complications

[10]      On 12 February 2003, the Family Court at Masterton granted the application by the respondents for an extension of time to bring their family protection proceedings.

[11]      Mr Gray was dissatisfied with that decision, and filed an appeal in the High Court against it.

[12]      Before that appeal was formally determined, but after hearing from counsel, Gendall J issued a minute concluding that the High Court had no jurisdiction to entertain the appeal, since in his view the leave of the Family Court was required for an appeal.

[13]      We think it to be of some significance that Mr Gray then sought such leave from the Family Court.  That leave was refused (see FP 035/116/02, 18 December 2003).

[14]      Mr Gray thereupon filed an application in the High Court for special leave to appeal to that Court against the decision granting an extension of time for the proceedings.

[15]      That application was considered by Ellen France J.  In a judgment of 2 August 2004 (CIV-2004-485-209) Her Honour concluded that:

·     leave was necessary for the appeal to proceed, as the application to extend time to bring the family protection proceedings was interlocutory in nature;

·     the application for special leave was itself out of time and consequentially, there was no jurisdiction in the High Court to grant leave;

·     even if jurisdiction to grant leave existed, Her Honour would have declined such leave, on the merits.

[16]      Mr Gray then sought special leave to appeal to this Court, under s 67 of the Judicature Act 1908. 

[17]      Ellen France J dealt with this application in a further judgment of 18 November 2004.  The application was refused.  Her Honour considered she had no jurisdiction to grant such leave.  The Court held that the power under s 67 of the Judicature Act 1908 was limited to situations where the High Court had determined an appeal from an inferior court.  Here, no appeal had been determined, and consequentially, there was no jurisdiction to grant leave.

[18]      Undeterred, Mr Gray then applied to this Court for special leave to appeal against the 18 November 2004 judgment of Ellen France J, on the following questions:

(1)Where a proceeding other than an appeal cannot be commenced as of right but requires leave to commence it, is the application for leave an originating application or an interlocutory application?

(2)If the answer to question (1) is “an originating application”, can the use in fact of the form of an interlocutory application plus statement of claim rather than the form of an originating application plus draft statement of claim make the application an interlocutory one rather than an originating one?

(3)Where a Will devises and bequeaths property to A “subject to A paying thereout the sum to B” or uses words to similar effect, is the condition a condition precedent or condition subsequent to the vesting of the property devised and bequeathed?

(4)If (a) the answer to question (3) is “a condition subsequent”, (b) the property is the whole of the residue of the estate, and (c) A is the surviving executor/trustee of the estate, does the vesting of the property in A as sole beneficiary constitute the final distribution of the estate in terms of the second proviso to s 9(1) of the Family Protection Act 1955?

Resolution

[19]      We are clear that this is an application which should be dismissed.   We can state our reasons concisely.

[20]      We do not consider it necessary in this case to consider the jurisdictional issue in any depth.  This Court has previously held - see Murphy v Murphy [1989] 1 NZLR 204 at 206 - that s 67 of the Judicature Act only applies to the final determination of an appeal from the District Court. We see no present reason to revisit that line of authority. And, Ellen France J’s characterisation of the procedural matters before her appears to have been correct.

[21]      Secondly, and in our view more importantly for present purposes, the discretionary considerations in this instance are entirely against a grant of special leave, for these reasons.

[22]      First, it is most unfortunate that a relatively modest estate has been encumbered with the degree of procedural manoeuvring it has attracted.  It seems that the estate may not be more than half a million dollars, and it will likely be much diminished by legal costs, given the history we have already recited.  In our view, the parties would have been better advised to press on to the merits of the dispute.  Many of the concerns which Mr Gray doubtless harbours, such as his having maintained the estate and like matters, would be relevant to the merits. 

[23]      Secondly, Mr Gray in fact proceeded in concert with Gendall J’s initial assessment of the procedural path that would be required of Mr Gray.  Having elected to follow that course, it was inappropriate for Mr Gray to then challenge that course when, subsequently, things went against him in the Family Court consideration on the extension of time application.   We do not suggest that there is anything approaching an estoppel here, but this is nevertheless a discretionary matter which we think attracts some weight on an application for special leave.

[24]      Thirdly, even assuming special leave were to be granted in this case, the proper evidential basis for considering a number of the matters which Mr Gibson would wish to traverse in this Court are not before the Court.  To take only one example, there is an issue as to when distributions were made out of the estate.  Mr Gibson responsibly conceded that further evidence would be needed on this matter, and that, if special leave were to be granted, there would have to be a further application to this Court to adduce further evidence before this Court could rule on the arguments.  Our concern under this head can therefore be summed up by saying that, on the present state of the evidence in the proceeding, it would not be appropriate, or even possible, for this Court to rule on certain of the questions raised.  If, on the other hand, leave is refused and the matter is dealt with on the merits in the Family Court, these evidential issues can be dealt with in that forum.

Conclusion

[25]      For the foregoing reasons, the application for special leave is dismissed.

[26]      We were told from the bar that the respondents are both legally aided.  The respondents will, jointly, have costs of the lesser of $1,500 or the amount granted to their counsel by the Legal Services Agency, together with their reasonable disbursements, if necessary as fixed by the Registrar.

Solicitors:
Taverner Keys & Co, Carterton for Applicant
Le Pine & Co, Taupo for Respondents