Hayes v Guerin - [2010] NZCA 148

IN THE COURT OF APPEAL OF NEW ZEALAND
CA182/2010
[2010] NZCA 148
BETWEENMARTA HAYES

Applicant

ANDJUDITH GUERIN

Respondent

Hearing:20 April 2010

Court:William Young P, O'Regan and Arnold JJ
Counsel:K W Clay for Applicant

I Thorpe for Respondent

Judgment:27 April 2010 at 11.30 am

JUDGMENT OF THE COURT

A            The applications for leave to appeal and a stay are dismissed.
B            Costs are reserved.
____________________________________________________________________
REASONS OF THE COURT
(Given by William Young P)
[1]        On 19 June 2009 Miller J dismissed an appeal by Marta Hayes[1] against a judgment of Judge O’Donovan in the Family Court under the Family Protection Act 1955.[2] Before us are applications by Ms Hayes for leave to appeal in respect of this judgment (which also dealt with a claim by Ms Hayes under the Administration Act 1969[3]) and for a stay of execution of the judgment pending appeal.
[1]Hayes v Guerin HC Gisborne CIV-2009-410-10, 19 June 2009.
[2]JH v MH, FC Gisborne FAM-2008-016-88, 12 December 2008.
[3]Hayes v Guerin HC Gisborne CIV-2007-416-07, 19 June 2009.
[2]        The claim related to the estate of Elizabeth Hayes, the mother of the applicant Ms Hayes and the respondent, Judith Guerin. Mrs Guerin is now 67 and Ms Hayes is 63. They are Elizabeth’s only children and have different fathers. Under her 2005 will, in respect of which probate was granted, Elizabeth left her estate entirely to Ms Hayes but in the Family Court the Judge awarded Mrs Guerin $80,000. This award was upheld by Miller J.
[3]        There are two important contextual facts which are in dispute:
(a)The value of the estate was assessed in the Family Court as worth approximately $267,000.[4] This assessment appears to have been upheld by Miller J, who considered that the award made to Mrs Guerin represented approximately 30 per cent of the estate.[5] Ms Hayes, however, maintains that the value of the estate is approximately $91,000 and, on this basis, contends that the award largely exhausts the estate.
(b)On the basis of the evidence available in the Family Court, Judge O’Donovan concluded that neither Ms Hayes nor Mrs Guerin was in need of maintenance.[6] That is plainly so in relation to Mrs Guerin. She inherited some $225,000 from her father and is at least comfortably off (as the Judge concluded) if not necessarily a multi-millionaire (as Ms Hayes asserts). But Ms Hayes challenges the assessment made by Judge O’Donovan of her own circumstances.
[4]At [12].
[5]At [55].
[6]At [19]–[20].

These disputes provide two of what we identify as the three grounds upon which leave to appeal is sought.
[4] It not being arguable that Mrs Guerin was relevantly in need of maintenance, the judgments in the Family Court and the High Court proceeded on the basis that Elizabeth breached her moral duty to Mrs Guerin to provide appropriate “support”.[7] Given that Mrs Guerin is comfortably situated financially and on the basis of the approach taken towards support in Williams v Aucutt[8] (in which the award for support,…

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 Hayes v Guerin

Details

AGLC: Hayes v Guerin [2010] NZCA 148
Case: [2010] NZCA 148
Decision Date: 27 April 2010

CaseChat Overview and Summary

In Hayes v Guerin, Marta Hayes sought leave to appeal a Family Court judgment in which the Court awarded Judith Guerin $80,000 from the estate of Elizabeth Hayes, their mother. The New Zealand Court of Appeal was asked to decide whether Marta Hayes should be granted leave to appeal against the Family Court's judgment and whether a stay of execution should be granted pending the appeal. The appeal also sought to challenge the valuation of the estate and the assessment of Marta's financial needs.

The Court of Appeal considered three grounds for appeal: the value of the estate, Marta's financial needs, and the quantum of the award to Judith. The Court found that the valuation of the estate by the Family Court was based on accepted evidence and could not be reconsidered on a second appeal. Similarly, the assessment of Marta's financial needs was based on the evidence presented in the Family Court, and the Court was not inclined to grant leave for a second appeal to allow for the presentation of new evidence. The Court also noted that the award to Judith was generous but justified given the context of the relationship between Judith and Elizabeth, and did not provide a legitimate basis for leave to appeal.

The Court of Appeal dismissed the application for leave to appeal and the associated application for a stay, reserving costs as Marta had applied for legal aid. The decision underscored the principle that a second appeal should not be used to rehear a case de novo with new evidence, and that the Court would not lightly grant leave to appeal on the basis of challenges to findings of fact made in the lower courts.

Orders