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Hayes v Parlane

Hayes v Parlane

Case [2014] NZHC 2416 3 October 2014

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2013-488-000269 [2014] NZHC 2416

UNDER
the Declaratory Judgments Act 1908 and

Part 18 of the High Court Rules

BETWEEN

KELLY SUZANNE HAYES and ANDREW NATHANIEL HAYES as the Executors and Trustees of the Estate of MARLENE RUTH KEEYS

Plaintiffs

AND

DOUGLAS FREDERICK PARLANE Defendant

Hearing: 3 and 4 June 2014

Counsel:

J G Ross for the Plaintiffs
A M Swan for the Defendant (granted leave to withdraw)

Judgment:

3 October 2014

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 3 October 2014 at 2.30 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel: J G Ross, Whangarei
A M Swan, Auckland

Copies To: SwanLaw (G P Swanepoel), Whangarei
Titirangi Law Centre (R D Ganda), Auckland

HAYES v PARLANE [2014] NZHC 2416 [3 October 2014]

[1] The plaintiffs, Kelly Hayes and Andrew Hayes, are the executors and trustees of the estate of the late Mrs Keeys. Mrs Hayes is the daughter of the deceased, and Mr Hayes is Mrs Hayes’ son. They have applied for a declaration under the Declaratory Judgments Act 1908 that the defendant, Mr Parlane, was not in a de facto relationship with the deceased for five years before her death on
18 November 2012. The defendant claims that he was in a de facto relationship with the deceased over this period.

[2] The key issues in this proceeding are: (a) whether this is a suitable case for making a declaration under the Declaratory Judgments Act 1908; and, (b) if so, given that a declaration is a discretionary remedy, whether the Property (Relationships) Act
1976 is a bar to the exercise of that discretion. Under the Property (Relationships) Act, the Family Court has exclusive jurisdiction to hear and determine applications for orders regarding relationship property. These orders relate to the division of property between spouses or partners, determining the ownership status of certain property and other orders to adjust each party’s share of the property. Whilst the Property (Relationships) Act does not provide for a specific declaration as to relationship status, naturally, the Family Court will make such findings in the course of determining the division of relationship property. Is this enough then to cause this Court to leave it to the Family Court to determine relationship status?

Background

[3] The deceased was the owner of the property at 24 Lewer Road in Whangaroa. She left a will dated 29 September 2012, and probate was granted on 7 January 2013.

[4] The material terms of the will were that:

(a) The plaintiffs were appointed as executors and trustees of the estate; (b) A legacy of $20,000 was left to Mr Parlane; and
(c) The residue of the estate was to go to Mrs Hayes.

[5] The dispute between the parties arose around January 2013 when the defendant served a notice in terms of s 65 of the Property (Relationships) Act, electing under s 61 of that Act for…

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 Parlane

Details

AGLC: Hayes v Parlane [2014] NZHC 2416
Case: [2014] NZHC 2416
Decision Date: 3 October 2014

CaseChat Overview and Summary

The plaintiffs, Kelly Hayes and Andrew Hayes, executors and trustees of the late Mrs Keeys' estate, sought a declaration under the Declaratory Judgments Act 1908 that Mr Parlane was not in a de facto relationship with the deceased for five years before her death on 18 November 2012. Mr Parlane claimed that he was in a de facto relationship with the deceased, which would entitle him to a division of relationship property under the Property (Relationships) Act 1976. The key issues were whether this case was suitable for a declaration and if the Property (Relationships) Act precluded the Court from determining the relationship status. The Court found that the proceeding met the jurisdictional requirements for a declaration under the Declaratory Judgments Act. The involvement of questions of contested fact or mixed law and fact would usually tell against the making of a declaration, but in this case, the proceeding was determined by way of formal proof, where the Court makes determinations on uncontested allegations. The exclusive jurisdiction of the Family Court under the Property (Relationships) Act did not preclude the Court from granting declaratory relief, as the declaration sought did not involve the division of property. The declaration that the plaintiffs sought would be useful in precluding any further delay regarding distributing the estate. The Court found that there was no de facto relationship of three or more years' duration, and the deceased and the defendant were not in a de facto relationship at the time of her death. The plaintiffs were entitled to a declaration on their rights to distribute the estate and the beneficiaries' rights to receive a distribution of the estate in accordance with the terms of the deceased's will. The defendant's defence and his counterclaim must fail, and the counterclaim is dismissed.

The Court made the following declaration under s 2 of the Declaratory Judgments Act: (a) The plaintiffs are presently entitled to distribute the deceased's estate in accordance with the terms of her will, and the beneficiaries are presently entitled to receive their bequests under the deceased's will.

Orders