Ireland v Grant - [2014] NZHC 2496

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2014-412-000014 [2014] NZHC 2496

BETWEEN
DENNIS PAUL IRELAND AND

ANGELA CATHERINE IRELAND Appellants

AND

STEPHEN JOHN GRANT AND DAVID JAMES SMELLIE

First Respondents

ROLIEN GEERTRUIA BUSCH Second Respondent

Hearing: 2 October 2014

Appearances:

(By way of telephone conference) L A Andersen for Appellants

J Hambleton for First Respondents
T J Shiels QC for Second Respondents

Judgment:

10 October 2014

JUDGMENT OF GENDALL J

The application

[1] This is an application for leave to appeal to the Court of Appeal, a judgment I gave in this proceeding on 2 July 2014.1 That judgment essentially allowed an appeal against an earlier decision of the Family Court.2 This case concerned a claim by the appellants (the Irelands), pursuant to the Testamentary Promises Act 1949 against the estate of Mrs Betty Osmand. In her last will Mrs Osmand had left all of
her estate to the second respondent (Ms Busch). After hearing the case, I allowed the appeal against the Family Court decision and divided the estate between the Irelands
and Ms Busch in equal shares.

1 Ireland v Grant [2014] NZHC 1523.
2 Ireland v Grant [2013] NZFC 8802.

IRELAND v GRANT [2014] NZHC 2496 [10 October 2014]

[2] Ms Busch, now seeks leave to appeal that decision to the Court of Appeal. In support of the application, the following grounds are advanced:

1.The learned High Court Judge erred in directing himself that Rae v International Brokers Limited [1998] 3 NZLR 190 (CA) is no longer authoritative and that the approach to appeals set out in that case has been “softened” by Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

2.The learned High Court Judge approached the appeal without regard to the findings of the learned Family Court Judge, except with regard to findings of credibility.

3.While the learned High Court Judge purported to accommodate the findings of credibility made by the learned Family Court Judge, the learned High Court Judge’s decision is inconsistent with those findings.

4.The learned High Court Judge erred in law in holding “that the affidavits in support of the defence was tasked with the near impossible – proving a negative” (para [68]), thereby reversing the onus of proof as to the making of a promise.

5.Whether the learned High Court Judge was correct in his approach to the appellate function raises a question of law capable of bona fide and serious argument.

6.The correct approach to the appellate function and the authority of the decision of the Court in Rae following the decision of the Supreme Court in Austin, Nichols is a matter of general public importance.

7.Whether the learned High Court Judge was correct in his approach is a matter of private importance to the Second Respondent in that it determined:

– whether she is entitled to full ownership of my mother’s
farm on which I grew up; or

–whether she had no more than an interest as…

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 [2014] NZHC 2496
Case: [2014] NZHC 2496
Decision Date: 10 October 2014

CaseChat Overview and Summary

The High Court was asked to consider an application for leave to appeal a decision that had already been the subject of two appeals. The original claim was made pursuant to the Testamentary Promises Act 1949. The estate of Betty Osmand had been left to Rolien Busch, but the Irelands argued that they were entitled to the farm under a promise made by Mrs Osmand. The Family Court found in favour of Ms Busch, but the High Court allowed the Irelands' appeal, dividing the estate between the parties. Ms Busch sought leave to appeal to the Court of Appeal, on the basis that the High Court had made a number of errors in its approach. The Irelands opposed the application, arguing that the High Court had not erred in law, and that the costs and delay of a further appeal outweighed any potential benefit. The Court held that the application for leave to appeal should be dismissed. The Court of Appeal is not entitled to hear second appeals unless there is a question of law or fact capable of bona fide and serious argument. The Court held that the application did not meet that threshold. The Court also held that the High Court's approach to the appeal was not in error, and that the Court had given the Family Court's decision the appropriate amount of deference. The Court further held that there was no error in the High Court's approach to the burden of proof, and that the High Court had not reversed the onus of proof as Ms Busch contended. The application for leave to appeal was dismissed, with costs awarded to the Irelands.

Orders