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Ireland v Grant

Ireland v Grant

Case [2016] NZHC 2752 17 November 2016

Civil Litigation & Procedure

Family Law

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IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2014-412-000014 [2016] NZHC 2752

BETWEEN
DENNIS PAUL IRELAND AND

ANGELA CATHERINE IRELAND Applicants

AND

STEPHEN JOHN GRANT AND DAVID JAMES SMILLIE

First Respondents

ROLIEN GEERTRUIA BUSCH Second Respondent

Hearing: 10 March 2016 (and memoranda filed subsequently)

Appearances:

L A Andersen for Appellants
J K Hambleton for First Respondent
T J Shiels QC for Second Respondent

Judgment:

17 November 2016

JUDGMENT OF GENDALL J (As to Costs)

[1] This judgment deals with costs sought on appeals from a judgment of the

Family Court dated 9 December 2013.

[2] That judgment was appealed to this Court (successfully) in a judgment I gave on 2 July 2014. The appeal judgment of this Court was itself subject to applications for leave to appeal to the Court of Appeal. Finally, following the Court of Appeal’s dismissal of an appeal brought by the second respondent (Ms Busch), the applicants here (the Irelands) seek costs in relation to what was their ultimate success in their claim. This was a testamentary promises claim brought against the estate of the late
Betty Osmand (Mrs Osmand) who had died on 4 September 2011.

IRELAND v GRANT [2016] NZHC 2752 [17 November 2016]

[3] The respondents oppose this costs application and submit that at most costs throughout should lie where they fall.

Procedural Background

[4] The applicants (the Irelands) sought an order from the Family Court under the Law Reform (Testamentary Promises) Act 1959 (the TPA) with respect to a farm property at Portobello Road, Dunedin (the farm), which was the major asset in the estate of the late Mrs Osmand.

[5] Their application to the Family Court was advanced on the ground that the Irelands had undertaken work and rendered services to Mrs Osmand during her lifetime and that she had expressly promised to reward them for this work and services by leaving the farm to the Irelands. In a will she made in 1991, indeed Mrs Osmand had left the bulk of her estate and the farm to Mr Ireland. But in both her later and last wills signed by her in 2001 and 2008 respectively, Mrs Osmand revoked this and left all her estate to her adoptive daughter, Ms Busch.

[6] In the Family Court decision, a reserved judgment delivered by Judge Flatley, the Ireland’s claim was dismissed. The Judge found that no testamentary promise was made to the Irelands by Mrs Osmand in terms of the TPA.

[7] On 24 January 2014, the Irelands appealed that Family Court decision to this

Court, on the following stated grounds:

…the Learned Family Court Judge erred in fact and in law in the following respects:

(a) In failing to grant the Appellants relief under the Law Reform
(Testamentary Promises) Act 1949;

(b) In determining that the Appellants did not establish that the deceased made a promise of testamentary disposition as a reward for service rendered or work done when the evidence clearly established the existence of such a promise in return…

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 Ireland v Grant

Details

AGLC: Ireland v Grant [2016] NZHC 2752
Case: [2016] NZHC 2752
Decision Date: 17 November 2016

CaseChat Overview and Summary

The High Court of New Zealand Dunedin Registry heard a case between Dennis Paul Ireland and Angela Catherine Ireland against Stephen John Grant, David James Smillie, and Rolien Geertruia Busch. The dispute was about a testamentary promises claim brought against the estate of the late Betty Osmand. The Irelands claimed that they had undertaken work and rendered services to Mrs Osmand during her lifetime and that she had promised to reward them by leaving them the farm in her will. However, in her later wills, she left all her estate to her adoptive daughter, Ms Busch. The Family Court dismissed the Irelands' claim, but the High Court allowed their appeal and divided the estate between the Irelands and Ms Busch. Now, the Irelands seek costs in relation to their success in the claim.

The legal issues in this case were whether the High Court had the jurisdiction to award costs in relation to the proceedings and whether the costs should lie where they fall or be paid by the estate. The respondents argued that the High Court was "functus officio" and that costs should lie where they fall. The Irelands argued that the High Court had the jurisdiction to award costs and that the costs should be paid by the estate.

The High Court found that it had the jurisdiction to award costs in relation to the proceedings, as the Court of Appeal's discretion to grant special leave and to hear Ms Busch's appeal did not preclude the High Court from awarding costs on the earlier matters before it. The Court also found that the discretion to grant leave in the High Court, and the discretion to grant special leave in the Court of Appeal, were two separate and distinct jurisdictions. The fact that the Court of Appeal granted special leave did not mean that the High Court ought not to have granted leave. The Court further found that the costs should be awarded out of Mrs Osmand's residuary estate, as the case before the Court resulted largely from the fault of Mrs Osmand the testator.

The final orders were that Ms Busch was to pay the Irelands' costs and disbursements on her unsuccessful application to the Court to grant leave to appeal, and that costs and disbursements were awarded to the Irelands to be paid from Mrs Osmand's residuary estate, both in relation to the substantive appeal to the High Court and in relation to the Family Court substantive hearing.

Orders