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 RespondentJudgment:
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…
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- AGLC
- Ireland v Grant [2016] NZHC 2752
- Case
- [2016] NZHC 2752
- Decision Date
CaseChat Overview and Summary
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
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Background
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Decision
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