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 RespondentsJudgment:
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…
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