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, along with the provision made, amounted to ten per cent of that estate), $80,000 (or 30 per cent of the estate) might be thought to have been very generous.  The contention that it was plainly over‑generous, going far beyond the amount necessary to provide proper support, provides a third basis upon which Mr Clay, for Ms Hayes, maintained that leave to appeal should be granted.

[7]Under the Family Protection Act 1955, s 4(1), as discussed in Williams v Aucutt [2000] 2 NZLR 479 (CA). See also the summary of relevant authorities in Haines v Chellew HC Auckland CIV-2004-404-4556, 21 October 2008 at [29]–[34].

[8]See [52] per Richardson P and at [69]–[70] per Blanchard J.

[5]        Ms Hayes was self-represented in both the Family Court and High Court.  Much of the material she submitted was irrelevant and she also failed to supply evidence which was relevant.  We consider it possible that Ms Hayes was prejudiced by her self-representation.  That said, there is nothing to suggest that key findings made in the Family Court in relation to the first two proposed grounds of appeal were not based on the evidence which was led.  So there would not be much point in granting Ms Hayes leave to appeal on those grounds unless Ms Hayes is also to be permitted to adduce further evidence which ought to have been produced in the Family Court.  And it would plainly not be right for this Court, on a second appeal, to rehear the whole case effectively de novo and on new evidence.  So if Ms Hayes was prejudiced by the litigation strategy she adopted, that is something which she will simply have to live with.

[6]        Ms Hayes is the executor of the estate of her mother and could fairly be expected to be in a position to define the extent of the estate.  Her claim that the estate is worth around $91,000 is plainly unsound, at least by reference to the findings of fact made in the lower courts.  At the time of the hearing in the High Court, about $92,000 was held in Court.  As well, Miller J found that she had in her possession or had received assets of the estate worth around $128,000.[9]  Some estate assets were also in the possession of Mrs Guerin.  The assessment of Judge O’Donovan that the estate was worth around $267,000 was based on the evidence of Mrs Guerin which he accepted (albeit that he did not particularise the components in his judgment).  This is a finding of fact which is not properly susceptible to reconsideration on a second appeal.

[9]At [53].

[7]        Associated with Ms Hayes’ challenge to this aspect of the judgment is her complaint that the Family Protection Act proceedings were determined in the Family Court before Administration Act proceedings (ultimately heard by Miller J at the same time as the appeal) were concluded.  But those proceedings could only have served to augment the estate.  In any event, because he heard both cases together, Miller J was well-placed to form a view as to whether Judge O’Donovan’s assessment of the value of the estate was wrong.  Plainly he did not form that view.

[8]        Broadly similar considerations apply to the contention that the courts below were wrong in their assessment of the financial position of Ms Hayes.  In the Family Court Ms Hayes did not seriously engage with the evidence given by Mrs Guerin as to her means.  In the High Court, Ms Hayes sought to provide evidence as to those circumstances on a confidential basis (ie on the basis that the evidence should not be disclosed to Mrs Guerin), a course of action which Miller J understandably was not prepared to entertain.  For good measure, he noted that if she had sought to provide additional evidence in open court he would have declined to hear it.  We cannot see, in those circumstances, that it would be right to grant leave for her to have a second appeal for the purpose of allowing her to adduce the sort of evidence which should have been led in the Family Court.

[9]        On the third point, as noted, we accept that the award of $80,000 was generous.  On the other hand, there is some background context which is significant. 

[10]       When Elizabeth came to New Zealand to live in 1980, it was on the basis of an undertaking given by Mrs Guerin to the immigration authorities that she would support her.  Elizabeth initially lived in Tauranga near Mrs Guerin.  After Mrs Guerin moved to Wellington, Elizabeth moved there too and lived in the same street.  Later she and Mrs Guerin pooled resources and lived together in Gisborne in a house which they purchased in 1996.  When Mrs Guerin left the house in 1999 (on her marriage), Elizabeth stayed in it, receiving the rent paid by a boarder and paying Mrs Guerin $170 per month rent while Mrs Guerin paid the mortgage, rates and insurance. 

[11]       A 2001 will made by Elizabeth divided the estate equally between Ms Hayes and Mrs Guerin.

[12]       In February 2005, Ms Hayes moved in with Elizabeth (in the house which Elizabeth co-owned with Mrs Guerin) and in May 2005, Elizabeth made a will leaving everything to Ms Hayes.  Not long after that, Elizabeth moved in to live with Mrs Guerin and her husband.  In July 2006, Elizabeth made another will which divided her estate equally.  She died in January 2007.

[13]       After Elizabeth moved in with Mrs Guerin in 2005, there was acrimonious litigation between Ms Hayes and Mrs Guerin which was resolved against Ms Hayes.

[14]       Competing applications for probate of the 2005 and 2006 wills were lodged soon after Elizabeth’s death, and the underlying dispute was resolved on the basis that Mrs Guerin consented to probate being granted in respect of the 2005 will but on terms as to, inter alia, the preservation of assets.

[15]       There are obviously various interpretations available in relation to the narrative which we have just given.  It seems to us, however, that providing the interpretation advanced by Mrs Guerin was broadly accepted (as it was in both the Family Court and High Court) she could fairly be thought to have made a substantially “greater contribution to her mother’s welfare than most daughters with an elderly mother”.[10]  This provided a reasonable basis for a generous approach to the support claim and justified an award which went beyond a mere recognition of her role as a daughter in her mother’s life.  This is all the more so given that, on the findings of fact made in the Family Court, Ms Hayes was not in need of maintenance.  Given these considerations, we do not see the challenge to the quantum of the award for support as providing a legitimate basis for a grant of leave to appeal.

[10]The language comes from the judgment of Blanchard J in Williams v Aucutt at [72].

[16]       Accordingly the application for leave to appeal (and the associated application for a stay) are both dismissed.  We reserve costs as Ms Hayes has applied for legal aid.

Solicitors:

Kenneth G Marshall, Christchurch for Applicant

Egan and Kite, Gisborne for Respondent