Ireland v Grant
[2014] NZHC 1523
•2 July 2014
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CIV-2014-412-000014 [2014] NZHC 1523
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: 6 and 18 June 2014 Appearances:
L A Andersen for Appellants
J K Hambleton and D P Robinson for First Respondents
T J Shiels QC for Second RespondentJudgment:
2 July 2014
JUDGMENT OF GENDALL J
Table of Contents
Para No
Introduction [1] The appeal [6] Early background to the appeal [14] The Law Reform (Testamentary Promises) Act 1949 and its requirements [23] Was a promise made? [33] Introduction [33] Mrs Osmand’s wills [34] The evidence for the Irelands [41] The evidence for the respondents [68] Analysis [76] Conclusion as to a promise [86] Were work or services performed and was there a nexus between the promise
and the services rendered?
[88] Did the Irelands pay towards the Versatile Cottage? [89] Other services and work undertaken [92]
IRELAND v GRANT [2014] NZHC 1523 [2 July 2014]
Nexus [98] Was remuneration provided to the Irelands while Mrs Osmand was alive? [99] Relief and quantum [107] Conclusion [112] Costs [116]
Introduction
[1] The appellants (the Irelands) sought an order from the Family Court under the Law Reform (Testamentary Promises Act) 1949 (the TPA) with respect to a farm property at 590 Portobello Road, Dunedin, (the farm) which is the major asset in the estate of Betty Osmand (Mrs Osmand). Mrs Osmand died on 4 September 2011.
[2] The 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 the Irelands to reward them for this work and services by leaving the farm to them.
[3] Although in a will made in 1991 Mrs Osmand had indeed left the bulk of her estate and the farm to Mr Ireland, in the later will she signed in 2001 and in her final
2008 will she revoked this and left all her estate to her adoptive daughter, the second respondent Rolien Busch (Ms Busch).
[4] Both Ms Busch and the first respondents, who are the executors and trustees of Mrs Osmand’s estate, opposed the Irelands’ TPA claim and denied that any express promise was made by Mrs Osmand. They said further that in any event, any work and services which were provided by the Irelands were not beyond the norm and need to be seen in the context of what are said to be considerable benefits received by the Irelands from Mrs Osmand during her lifetime.
[5] In his reserved decision in the Family Court dated 9 December 2013
Judge Flatley dismissed the Irelands’ claim and found that no testamentary promise was made to them by Mrs Osmand in terms of the TPA. It is that decision which is the subject of this appeal.
The appeal
[6] In their notice appeal filed on 24 January 2014 in this Court by their counsel
Mr Andersen, the Irelands set out the following grounds of appeal:
The grounds of the appeal are that 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 for the Appellants moving to New Zealand from their home in England;
(c) There was no proper basis for the determination that the Appellants fabricated and manipulated evidence.
[7] I now turn to consider the approach of this Court on appeal from decisions pursuant to the TPA.
Legislative framework
[8] The Irelands have a right of appeal against the decision of the Family Court by s 5A of the TPA. Relevantly this section provides:
5A Right of appeal
(1AA) This subsection applies to a decision of a Family Court or District
Court, in proceedings under this Act, to—
(a) make or refuse to make an order; or
(b) dismiss the proceedings; or
(c) otherwise finally determine the proceedings.
(1) A party to proceedings in which there is made a decision to which subsection (1AA) applies, or any other person prejudicially affected by the decision, may appeal to the High Court against the decision.
(1A) The High Court Rules and sections 74 to 78 of the District Courts Act 1947, with all necessary modifications, apply to an appeal under subsection (1) as if it were an appeal under section 72 of that Act.
…
(5) The High Court or (as the case may be) the Court of Appeal may, in its discretion, rehear the whole or any part of the evidence, or may receive further evidence, if it thinks that the interests of justice so require.
Approach on appeal
[9] In TPA claims it is important to appreciate the dichotomy in approach between various stages of the inquiry. At the following stages there is no exercise of discretion as these relate to findings of fact and degree by the Judge of first instance:
(a) has there been an express or implied promise by the deceased to reward the claimant?
(b) has the claimant rendered services to, or performed work for, the
deceased in the deceased’s lifetime?
(c) is there a nexus between the services or work and the promise?
(d)Has the deceased failed to make the promised provision or otherwise remunerate the claimant?
[10] Accordingly, this Court is required to reach its own view on the merits in respect of these matters.1 Only in respect of the relief to be granted does the court of originating application have discretion, which is subject to the ordinary constraints concerning appeals against the exercise of a discretion.2 This principle of non- intervention relating to the exercise of a discretion in family cases has long been recognised. For example, in Re Welch, Sir Robin Cooke, delivering the judgment of the Privy Council stated:3
…on appeal the Court of Appeal will not substitute its discretion for that of the Judge at first instance unless some reasonably plain ground is made out for doing so, and that the trial Judge’s advantages in hearing the evidence orally are also to be borne in mind. Subject to those important considerations, it is desirable that a reasonable degree of judicial consistency
1 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
2 Kacem v Bashir at [2010] NZSC 112; [2011] 2 NZLR 1 at [32] – [33].
3 Re Welch [1990] 3 NZLR 1 (PC) at 6 – 7. See too Re Greenfield [1985] 2 NZLR 662 (CA) at
672.
be achieved in exercising the statutory jurisdiction. None of this was in dispute before the Board or appears to be capable of dispute.
[11] In this case, as Judge Flatley’s decision ended before he decided he was required to exercise a discretion as to the quantum of any award to be made, that quantum of relief matter, if required to be considered, is plainly now at the discretion of this Court.
[12] There may be some suggestion that this Court ought to defer to the Family Court on the basis that the Family Court had the advantage of hearing the evidence first hand and was better placed to assess credibility. The decision of the Court of Appeal in Rae v International Insurance Brokers is commonly cited as advocating such deference.4 In that case the high water mark was the statement that “[e]xceptional caution in departing from the trial judge’s findings of fact are therefore regarded as imperative.”
[13] In my view, however, since the decision in Austin, Nichols & Co Inc v Stichting Lodestar the position with respect to deference has somewhat softened.5 I am expressly required to come to my own view on the merits,6 and to defer no more than is “customary”.7 This view that Austin, Nichols & Co Inc has softened the general approach is not without support.8 While I do not have the advantage Judge Flatley had in seeing and assessing the witnesses that were before him, I do
have the advantage of hearing evidence from one new witness as permitted by Whata J in his earlier decision.9 I therefore propose to approach this matter afresh, deferring only to the extent necessary to accommodate the findings as to credibility
both adverse and otherwise made by Judge Flatley.
4 Rae v International Insurance Brokers [1998] 3 NZLR 190 (CA). See too Hutton v Palmer
[1990] 2 NZLR 260 at 268, per Somers J.
5 Austin, Nichols & Co Inc v Stichting Lodestar, above n 1.
6 At [16].
7 At [13].
8 See Fassler v Parry [2012] NZCA 327 at [7](b).
9 Ireland v Grant [2014] NZHC 613, per Whata J.
Early background to the appeal
Mr Ireland’s early life
[14] Dennis Paul Ireland (Mr Ireland) the first-named appellant was born in Evansdale, Otago, on 19 November 1954. He was the second youngest of twelve children. His first memories of Mrs Osmand and her late husband, Alfred Osmand (Mr Osmand), (who I will call together the Osmands), are of their visiting Mr Ireland’s fathers’ garage when Mr Ireland was about four.
[15] Then, Mr Ireland began spending weekends with the Osmands from a young age, despite what Mr Ireland would categorise as his natural-born mother’s reluctance for this to occur. By his account, there was some tension between Mrs Osmand and Mr Ireland’s mother.
[16] At some point in Mr Ireland’s childhood his parents’ house burnt down, which resulted in the large family moving to another property. Mr Ireland says that this required his father to commute to work and that “times were hard”. Following the fire, Mr Ireland’s mother died as a result of a cerebral haemorrhage. Thereafter, Mrs Osmand insisted upon Mr Ireland living with them after the early death of Mr Ireland’s mother which itself removed the last barrier to Mr Ireland’s father acquiescing to Mrs Osmand’s requirements. Mr Ireland states that from this point he was brought up as the Osmands’ son.
Mr Ireland moves away
[17] In 1975 Mr Ireland moved to Christchurch to be closer to his passion, motorcycle racing. After some time Mr Ireland resolved to go to Europe, where he raced professionally for 12 years. It was during this period he met his wife, Angela (Mrs Ireland). She and her family were living in England. In 1983 they married and they then had three children while living in the United Kingdom. The Irelands and their children had effectively made a life for themselves in England.
The Irelands move to New Zealand
[18] Mr Ireland states that it was at Mrs Osmand’s behest that he and his family
contemplated moving back to New Zealand. In Mr Ireland’s words:
Betty’s requests for us to return to New Zealand and the farm represented a real dilemma as we were all settled in the United Kingdom and Angela and her family were very close.
…
Eventually and only because of Betty’s requests, we set about making plans
to move back to New Zealand.
[19] As a result, Mr Ireland made several trips to New Zealand where he began sorting out the logistics of their new anticipated life in New Zealand, which involved arranging schooling for the Irelands’ children and building a house for their move over. They also had to sell significant assets in the United Kingdom, including their house and business. Once the contracts to sell the business were signed the Irelands shipped all of their belongings off to New Zealand.
[20] In 1998, shortly after arriving in New Zealand, a policy change in the United Kingdom resulted in the sale of the Irelands’ business falling through. Mr Ireland was forced to return, where he stayed for 10 months with Mrs Ireland and the children remaining in New Zealand. After that 10 month period, Mr Ireland contracted pleurisy and pericarditis which compelled Mrs Ireland to return to England to support him.
[21] After these matters were resolved and the Irelands were ready to return to New Zealand, there was a foot and mouth outbreak in the United Kingdom which precluded them from travelling. When this was over Mrs Ireland suffered a pulmonary embolism and was rushed to hospital, which again delayed their return to New Zealand until Mrs Ireland was fit to travel. Mr Ireland says that Mrs Osmand:
…was not sympathetic to what we were dealing with as she just wanted us back home.
[22] These difficulties in returning to New Zealand are borne out by Mrs Ireland. Eventually the Irelands returned to New Zealand in 2002. For the next 18 months
Mr Ireland worked at the farm while Mrs Ireland started a job and would take the children to and from school.
The Law Reform (Testamentary Promises) Act 1949 and its requirements
The legislative framework
[23] The provision on which the Irelands rely in making their claim is s 3 of the
TPA. For convenience the relevant parts are replicated:
3Estate of deceased person liable to remunerate persons for work done under promise of testamentary provision
(1) Where in the administration of the estate of any deceased person a claim is made against the estate founded upon the rendering of services to or the performance of work for the deceased in his lifetime, and the claimant proves an express or implied promise by the deceased to reward him for the services or work by making some testamentary provision for the claimant, whether or not the provision was to be of a specified amount or was to relate to specified real or personal property, then, subject to the provisions of this Act, the claim shall, to the extent to which the deceased has failed to make that testamentary provision or otherwise remunerate the claimant (whether or not a claim for such remuneration could have been enforced in the lifetime of the deceased), be enforceable against the personal representatives of the deceased in the same manner and to the same extent as if the promise of the deceased were a promise for payment by the deceased in his lifetime of such amount as may be reasonable, having regard to all the circumstances of the case, including in particular the circumstances in which the promise was made and the services were rendered or the work was performed, the value of the services or work, the value of the testamentary provision promised, the amount of the estate, and the nature and amounts of the claims of other persons in respect of the estate, whether as creditors, beneficiaries, wife, husband, civil union partner, children, next-of-kin, or otherwise.
(2) This section shall apply—
(a) Whether the services were rendered or the work was performed before or after the making of the promise:
(b) Notwithstanding anything to the contrary in subpart 2 of Part
2 of the Property Law Act 2007, or any other enactment.
[24] By s 2 of the TPA a “promise” is defined as “any statement or representation of fact or intention”.
The principles
[25] Though I have set out the bare principles at [9] above, I do so again here for convenience. For claimants to mount a successful claim under s 3 of the TPA the four following questions must be answered in the affirmative:
(a) has there been an express or implied promise by the deceased to reward the claimants?
(b) have the claimants rendered services to, or performed work for, the
deceased in the deceased’s lifetime?
(c) is there a nexus between the services or work and the promise?
(d)Has the deceased failed to make the promised provision or otherwise remunerate the claimants?
[26] While the law in this respect is well known it is worthwhile setting out some basic premises upon which this judgment will proceed. The term “promise” has received significant judicial consideration. In Byrne v Bishop the Court of appeal stated:10
The term “promise” under the Act covers declarations which might not fall within a dictionary definition of that word and certainly goes beyond any contractual context (Jones v Public Trustee [1962] NZLR 363). It includes a statement or representation of present fact (“I have done X for you in my will”) or intention (“I will do X for you in my will”) made either before, during or after the services or work occur (s 3(2)).
[27] Such a promise may be expressly made,11 or can be implicit.12 The promisor need not do a lot to make a promise. In Gibson v Gibson mere nodding of the head was enough.13 It has also been held that promises to someone other than the beneficiary can be sufficient.14 However, there has been a tendency of the Courts to
treat claims of promises with at least some degree of scepticism, though the position
10 Byrne v Bishop [2001] 3 NZLR 780 (CA) at [8].
11 Hawkins v Public Trustee [1960] NZLR 305 (SC).
12 Re Greenfield, above n 3.
13 Gibson v Gibson HC Dunedin CP9/90, 15 April 1992, per Tipping J.
14 Byrne above n 10, at [9].
has relaxed, with corroboration of claims preferred, though not required.15 Context is also relevant in determining whether a promise has been made.16 Finally, adverse credibility findings in such cases do not preclude a finding that a promise has been made where this is supported by other evidence.17
[28] What constitutes “work” and “services” has resulted in the spilling of much ink through the reports. From the authorities it is clear that the terms are to be given liberal interpretations,18 and as the Court of Appeal stated in Byrne v Bishop:19
Services can include not only things done for the deceased but also companionship, affection and emotional support exceeding what is normally to be expected of a relative, a member of the same household, a neighbour or a friend.
[29] Neither of the terms “work” or “services” are defined in the TPA. The term “work” generally is to have its ordinary everyday meaning. The term “services” however, has been the subject of some conjecture.20 For an in depth analysis of the meaning of services, one need look no further than the judgment of McCarthy J in Tucker v Guardian Trust and Executors Co of New Zealand Ltd.21 However, for the present case it is simply important to understand that the term has a broad meaning and that “something extra” is required outside the bounds of normality within a relationship of the same genus.
[30] It is also a requirement that a nexus exists between any promise and any work or services performed. The essential requirement is that the promise is made to reward services rendered or work performed, and is not simply gratuitous.22 Such a nexus can either be express or, more commonly, inferred from the circumstances.
[31] As to relief, the oft-cited judgment of Sir Robin Cooke in Re Welch remains relevant:23
15 Trethewey v Strachan [2003] NZFLR 1.
16 Re Blackie HC Christchurch CP21/01, 18 February 2002, per William Young J.
17 W v Wilson [2007] NZFLR 555.
18 Nealon v Public Trustee [1949] NZLR 148 (CA).
19 Byrne above, n 10, at [6].
20 Samuels v Atkinson [2009] NZCA 556, [2010] NZFLR 980 at [46].
21 Tucker v Guardian Trust and Executors Co of New Zealand Ltd [1961] NZLR 773 (SC).
22 Jones v Public Trustee [1962] NZLR 363 (CA) at 364.
23 Re Welch, above n 3, at 6.
So it is plain, considering s 3(1) as a whole, that whenever a claim to relief is made out under it the criterion as to the relief to be granted is reasonableness. That is always the result at which the Court is to aim, no matter whether the award is of money or of specific property. If the deceased promised a certain sum or a certain property, that is a relevant consideration but not necessarily decisive.
[32] In terms of quantifying relief, in many situations the nature of the work or services will not be readily amenable to rigid arithmetical calculations, and must be assessed in the round.24 However, it is important that any award do no more than compensate for those services rendered or work performed; the award must be fair recompense.25
Was a promise made?
Introduction
[33] In many ways this issue is the fundamental issue in dispute in this proceeding. Quite clearly Judge Flatley in the Family Court held that no promise, whether express or implied, had been made by Mrs Osmand to the Irelands. For the reasons that follow I have reached the opposite conclusion, that is that on the balance of probabilities, a promise was made to the Irelands.
Mrs Osmand’s wills
[34] There was evidence before the Family Court of four of Mrs Osmand’s wills. In her first, dated 20 December 1983 she left all of her property upon trust to her adoptive daughter, Ms Busch, described therein as “Raylene Ann Osmand”. Her next will was dated 2 May 1991 (the 1991 will) which revoked her earlier will. In the 1991 will, Ms Busch was to receive $20,000 and household articles, while Mr Ireland was to receive the residue being the bulk of her estate including the farm.
[35] Mr Ireland claims that he was present at the time Mrs Osmand gave instructions for the 1991 will. In this respect Judge Flatley in his decision comments
as follows:
24 Samuels, above n 20, at [98].
25 Re Collier-Cambus (1994) 12 FRNZ 142 at 146.
It is [Mr Ireland’s] evidence that he attended a Dunedin solicitor, Mr Haggit, now deceased, with [Mrs Osmand] at the time she gave instructions in relation to the 1991 will and so he was aware of her intention at that time, but there is no corroborating evidence to confirm this. Mr Grant, solicitor, who continued to act for [Mrs Osmand] following Mr Haggit’s death, said that it would be very unusual for a major beneficiary to be present at a meeting where instructions were given for the making of a Will and that he was quite sure that it would not have been Mr Haggit’s practice.
[36] It is my view that the evidence of Mr Ireland in such circumstances should not be simply discarded without some clear evidence to the contrary being available. Mr Grant plainly has no direct knowledge of what occurred. He is giving evidence as to what he thinks would have been Mr Haggit’s practice. Mr Ireland is giving first hand evidence of his own experience. In fact, on ordinary principles of evidence, Mr Grant’s statement might well be regarded as an inadmissible opinion, unless it could be seen as an opinion by Mr Grant as an expert as part of expert evidence
given by him.26
[37] On 13 March 2001 Mrs Osmand again changed her will (the 2001 will). This had the effect of more or less restoring the position that existed prior to the 1991 will, meaning everything went to Ms Busch, with the exception of $5,000 which was to go to Donna Ropata. Mrs Osmand’s final will dated 28 February 2008 (the 2008 will) effectively maintained the position under the 2001 will, except that Donna Ropata was removed as a beneficiary.
[38] Accompanying the 2001 will was a letter penned by Mrs Osmand. Relevant excerpts of the letter read as follows:
… I leave my houses and farm all stock and everything that on it at the time of my death to my daughter Raylene Osmand. If she dose not want to use the farm she can lease it but not sell it. Dennis was going to look after it for me but it has taken him 10 year to thing about it he is still telling me lies and live in England. He wood be usles. You cannot depend on him when anything happens to me…
(emphasis added)
[39] Also accompanying the 2001 will was a file note of Mr Grant which is set out in full at [69] below. Perhaps somewhat curiously, this file note recorded in part,
“Discussed claims that [Mr Ireland] might have been promised share in her estate.
26 Evidence Act 2006, ss 23, 24 and 25.
No promise was ever made…” In terms of this 2001 will Judge Flatley considered that this file note was cogent evidence of the absence of any promise by Mrs Osmand to Mr Ireland. In his judgment he concluded: 27
It is clear from the file note of 30 March 2001 that [Mrs Osmand’s] position was that at no time had she promised to give the farm to [Mr Ireland] or any share in it and that she had no intention of doing so.
[40] With respect to this finding I make the simple observation that were it the case that Mrs Osmand was subsequently attempting to write Mr Ireland out of the will, despite representing to him that he would be inheriting the farm, it would clearly be in her interests to be unequivocal in such a manner to her estate solicitor. Moreover, it needs to be understood that this will was written at a time when Mrs Osmand was unsympathetic to the multitude of issues plaguing the Irelands, preventing their return from England. Judge Flatley clearly was not inclined towards this position, and thought the 1991 will was mere evidence of a testamentary disposition at the time, which changed in response to various life events. His findings on these aspects were expressed as follows:
[104] I conclude that the 1991 Will amounted to intended testamentary disposition at that particular time and that there was an obvious, and valid reason for that and for subsequent change. I heard evidence about a falling out between [Mrs Osmand] and her daughter [Ms Busch] around the time that she changed her Will. [Ms Busch] became involved in a relationship with a man who [Mrs Osmand], for various reasons including a belief that he was involved in drug use, did not approve of. The proposition is that as a result [Mrs Osmand] changed her Will effectively cutting [Ms Busch] out.
[105] However, the relationship between [Ms Busch] and [Mrs Osmand] was subsequently repaired resulting in [Mrs Osmand] changing her Will again to leave her estate to her daughter as she had originally done. I also heard evidence that [Mrs Osmand] was unhappy with [Mr Ireland] and [Mrs Ireland] after they came to New Zealand in 1998 only to return to England in 1999 where they remained until 2002 before finally coming back to New Zealand. The proposition on this occasion being that as a result of her dissatisfaction [Mrs Osmand] changed her Will effectively cutting [Mr Ireland] out. This was confirmed to be the case by Mr Grant.
[106] While the evidence establishes what occurred in relation to [Mrs Osmand’s] Wills it does not necessarily support the contention that a required promise was made to [Mr Ireland] and [Mrs Ireland]. On my assessment the Wills represent a testamentary disposition by [Mrs Osmand] at various times, based on what was occurring in her life. It is reasonable to
27 Ireland v Grant [2013] NZFC 8802 at [101].
conclude that changing a Will in the way [Mrs Osmand] did is a common response to life events.
[107] I do not find that the Will of 1991-2001 establishes that a required promise was made by [Mrs Osmand] to [Mr Ireland].
The evidence for the Irelands
- Mr Ireland
[41] Mr Ireland’s evidence is in my view unequivocal. He fervently maintains that Mrs Osmand promised him that he and Mrs Ireland would have the farm upon Mrs Osmand’s death. Perhaps the most cogent evidence of this is the letter Mrs Osmand sent to Mr Ireland on 3 December 1989 which read:
I am just going into selling the sections up top and putting a house on the top and that would do you, you would have a house of your own over here. I am going to shift a … here and fit it out just now I am not leaving the farm to Raylene. I will have to leave you as trustee you were brought up with us. I have to sort all these things out now for I am getting older all the time.
[42] In his first affidavit Mr Ireland stated:
Despite my differences with Betty over the years I always continued to support her and help when needed. I believed eventually the farm would be mine as that is what Betty had agreed and promised so it was often a case of letting Betty have her way along the way.
And, in his second affidavit Mr Ireland stated:
I made the trips in 1997 and 1998 to honour the commitment I had given to Betty. This was a reciprocal agreement whereby Betty had agreed that we were to have the farm and when we had built a family home she would continue to run the farmstay and use the cottage to gain income. We would get the cottage when she died as part of the farm.
[43] Mr Ireland it seems was also of the opinion that Mrs Osmand was manipulative. In his first affidavit he states:
Betty had a lot of anger inside her and she was often cruel with her tongue as well as her actions. Betty had a knack of playing one person against another and used this skill to get people to do things for her especially after Alf’s death.
[44] And in his second affidavit he suggests:
Betty was affected by her childhood rejection and despite having a very kind side to her personality she could be extremely cruel. Betty knew how to play people off against one another to get what she wanted.
[45] This evidence of manipulation, while on its face it might appear to be simply gratuitous disparagement of Mrs Osmand after her death, is relevant as I see the position, as it goes to the issue of whether she might have promised Mr Ireland the farm despite having a clear intention to the contrary. In my view, it is likely that she did. This is borne out by the evidence in Mr Ireland’s second affidavit that:
It was long after the funeral that we found out for the first time that Betty had made a radical change to the will whereby I was not to have the farm.
- Mrs Ireland
[46] Mrs Ireland first met Mrs Osmand in 1983. In her evidence she states that from the first time they met she was aware that Mrs Osmand wanted Mr Ireland to return to New Zealand “back on the farm”. She maintains that when the Irelands’ second daughter was born in 1992, Mrs Osmand:
…applied pressure by saying that Alf wanted Dennis to have the farm. She said that it would be great for the girls and they would enjoy the New Zealand environment and have a place to live.
Throughout the conversations we had it was always made clear by Betty that Dennis would have the farm although it was also understood that he would need to make provision for Raylene.
[47] Later in her affidavit Mrs Ireland provides further support for the existence of a promise when she confirms:
I would do the food shopping on my way home from school and purchase products for cleaning including soap powder etc. Betty never really offered to pay for any of this, so I thought it needed addressing, I spoke to Betty and asked how we should share the costs. Betty said it was “all in the same pot” and the farm would be inherited by Dennis and so we should not be sorting out money for food etc.
[48] In terms of the manifest difference between expectation and what in reality transpired following Mrs Osmand’s death, Mrs Ireland comments in her affidavit:
I feel a cruel trick has been played on us by Betty in leaving the whole of her estate to Raylene Anne Bush. While I accept that it is appropriate that
Raylene receive some provision from the estate, the farm property was always promised to Dennis and me.
I feel that we have been ripped off as a result of what Betty has done. It was very difficult moving to New Zealand because of the issues that are dealt with in Dennis’ affidavit. I spent a long time without Dennis while he was resolving the issues relating to the business that had to be sold in England and the problems that had occurred on its sale. I would never have agreed to leave England which was leaving my whole family and my career but for the promises made by Betty that if we came to New Zealand there would be a better life for the girls and the security of them being left the farm property.
- The Irelands’ daughters
[49] In support of the Irelands’ present TPA claim, the Irelands’ three daughters, Jessica Ireland, Naomi Ireland and Lydia Ireland swore affidavits deposing to the existence of a promise, services performed and other matters.
[50] As a preliminary matter, prior to traversing any of the content of these affidavits, I must express concern over some of the content of these affidavits filed in support. The daughters were born respectively in August 1989, sometime in 1992 and December 1993. It is difficult to appreciate how the children, being so young at the time of emigration, both in 1998 and 2002, could possibly have been privy to conversations they understood concerning promises made by Mrs Osmand at that time.
[51] In her affidavit Jessica Ireland relevantly commented as follows:
My mother, my father, Naomi, Lydia and I emigrated to New Zealand because of Betty. Betty promised my Father that if he brought us all to New Zealand to live and to help out on the farm, she would leave the farm to him and it would eventually become ours. If it were not for Betty, and this promise made by her, we would still be living in England now.
…
I now realise that Betty clearly only wanted to take, lie, and manipulate my
Father…
[52] It is plain that Jessica now feels and exhibits a significant amount of animosity towards Mrs Osmand for what has transpired. Jessica herself acknowledged this when she stated:
I am incredibly hurt, upset and angry that Betty has treated us, especially my father the way she has. I feel deceived and robbed that from the moment we moved to New Zealand she never put anything in my Father’s name, yet continued to take from all of us. However, I do believe that despite her insensitivity Betty really did love us.
[53] Judge Flatley plainly did not accept Jessica’s evidence. In his judgment he states:28
There are serious credibility issues with regard to Jessica’s evidence. She claims to be able to recall events from a very young age, including conversations with her parents regarding financial and business matters… I do not accept that they would have included her in such discussions and this is borne out by the evidence. In any event she would have been too young to recall those discussions in any detail.
It was apparent to me that Jessica is bitter towards [Mrs Osmand]. She believes that [Mrs Osmand] lied to and manipulated her father.
[54] I accept that apparent inconsistencies in Jessica’s evidence meant that this
finding as to credibility was one that was open to Judge Flatley to make.
[55] Naomi’s affidavit contributes very little to the discourse. The only pertinent passage reads:
I was crushed and shocked by Betty’s will. Betty held such a close place in my heart and played such a huge part in shaping my life that I cannot understand what she was thinking. The contributions of my parents to every single one of Betty’s needs throughout her life and the very fact that we emigrated from the opposite side of the world seem to count for nothing.
[56] Lydia’s affidavit is somewhat more enlightening than Naomi’s for the apparent reason that Lydia was favoured by Mrs Osmand, which resulted in more interaction between them. Lydia expressly stated “Betty and I had a special bond”, and further deposed:
Over the past few years, since I have become more mature and aware, Betty would sit and talk to me about the farm. She was different with me, and I know she favoured me.
…
She told me that my Father would obviously take over the farm as he knew it better than anyone; it was part of him and he knew how to manage all the idiosyncrasies. She knew he would be able to make the right decisions with
28 At [49] – [50].
the stock as he was good with managing them. She told me that the house would mean more to Raylene as she grew up there, but the farm was Dennis’.
[57] Lydia’s affidavit evidence as to her conversations with Mrs Osmand concerning Mr Ireland taking over the farm is consistent with her responses in cross- examination. The following exchange between Mr Shiels QC counsel for Ms Busch and Lydia is useful:
Q. That’s fine. Para 15 you say that, “Betty told me that my father
would obviously take over the farm.” When did she tell you that?
A. Numerous occasions. She told me it all the time. She’s always talk
to me about it. She all – she –
Q. Did she use the word “obviously”?
A. Yes, yes.
Q. What did you think she meant by that or do you know what she meant by that?
A. Well it was obvious that we’d come to New Zealand and that we were and Dad was going to take over the farm and all Dad’s work that he’d done on the farm and all us children learning the ropes and having been felt at home and, you know, it was obvious like it was –
Q. So that’s what you took from it when she said it’s obvious?
A. Well she went into more depth than that. She talked about like the
farm being Dad’s.
[58] In terms of the totality of the evidence from Jessica, Naomi and Lydia, Judge Flatley thought sufficiently little of their evidence that he was able to unequivocally assert:29
It is reasonable to conclude that the evidence of all three Ireland daughters is based on what they have been told by their parents and through discussions that they have been privy to over a number of years. At the ages of nine, six and four they were too young to understand exactly what was happening at the time they came to New Zealand or to be included in any discussion with their parents with regard to financial or business matters. Even if they had been so, their direct memory of that would be extremely limited. I do not accept that any of them has any real direct knowledge of a required promise made by [Mrs Osmand]. This is particularly so prior to their arrival in New Zealand.
[59] In my view this seems to ignore much of the actual evidence of Lydia here which is the most cogent. Judge Flatley seems to gloss over those parts of the evidence of Lydia where she says it was through her conversations directly with Mrs Osmand when she was older and more mature that she firmly believed her father would inherit the farm. I therefore disagree with Judge Flatley’s conclusion that the
“affidavit evidence of Naomi and Lydia provides little assistance”30 and that “little
weight can be attached to the evidence of a required promise.”31
- Malcolm Scott
[60] Malcolm Scott (Mr Scott) was Mr and Mrs Osmand’s accountant and a friend for 30 years. Moreover, Mr Scott became close to Mrs Osmand on a more personal level, which included him travelling to England with Mrs Osmand in 1992 to visit the Irelands. His evidence, as an entirely independent party and professional, being the Osmand’s long-standing accountant and friend, in my view is of some importance here. In his affidavit, Mr Scott deposes:
Although we didn’t discuss it in detail, Betty did mention to me that Dennis
had remitted funds to her and, in particular: (a) Funds to erect the kitset house; and
(b) Funds to enable her to have an operation
…
During the time that I knew Betty there was never any suggestion by her that she had provided any money to Dennis or Angela.
…
Throughout out (sic) relationship Betty indicated to me that Dennis would be getting the farm.
(emphasis added)
[61] Mr Scott’s affidavit evidence as I see it is highly cogent and entirely consistent with his cross-examination, of which the following exchange between
Mr Shiels QC and Mr Scott is relevant:
30 At [53].
A. … I was under the standing, she wanted certainly to, for Dennis and his family to come home from Britain and take the place over, that was her wish.
Q. So when you say “getting the farm” you mean take it over and run
the operation?
A. Yeah I’m just not too sure in what way she would have
accomplished that…
- John Clearwater
[62] John Clearwater (Mr Clearwater) is a contractor who deposes that he knows the Irelands and knew Mrs Osmand quite well. In his brief affidavit he relevantly stated:
Betty spoke to me on a number of occasions about the farm. Dennis was the apple of Betty’s eye and every time I saw her when Dennis and Angela were overseas she would express the desire that they come back to live on the farm. She was looking for help on the farm and for them to look after her.
I can’t recall specifically what words she used about the future of the farm but the way she spoke left me with the impression that Dennis was to receive the farm.
- Katherine Forsdyke
[63] Katherine Forsdyke (Ms Forsdyke) is Mrs Ireland’s mother. She gave evidence but only before me on the appeal in this proceeding, after the Irelands had obtained leave for her to do so.32 Ms Forsdyke’s evidence regarding the promise is that Mrs Osmand said to her on a visit Ms Forsdyke was making to New Zealand:
You know they’ll be coming out here to live and Dennis has always lived on the farm and it’s his and it will be again one day … I promised the farm to Dennis and it will be his and Angela’s … Actually, he’ll get my half when I go because it’s already in joint – it’s already in his name as well.
[64] Ms Forsdyke’s evidence of the promise must however be tempered to some extent by the self-recognised fact that she was “incensed” at the Family Court decision and aspects of the evidence given before the Family Court, and of course she can hardly be seen as independent here, given that she is Mrs Ireland’s mother. These factors must be weighed in my overall analysis of the evidence. However,
Ms Forsdyke also proffers further evidence of Mrs Osmand’s tendency to
manipulate. In one exchange with Ms Forsdyke the following emerged:
Q. Just one question flowing from that. Did you find Betty to be a devious person?
A. I didn’t at the time. I take people at face value, which is very wrong but, um, afterwards I’ve learnt a lot about Betty from the various affidavits that were submitted. I think Betty used people and this is now how I see her, um, and I, really I suppose I saw it over the years. She’d got my grandchildren and I think you would see in my affidavit I was quite unhappy it (sic), a little bit envious even.
[65] In addition Ms Forsdyke swore an earlier affidavit in England in support of
the Irelands’ claim in the Family Court. This affidavit relevantly reads:
… I was assured by Dennis and Angela of the benefit of going to New Zealand which was mainly the security they would have from being the eventual owners of the Betty’s farm.
At Betty’s request I visited her Dennis and Angela in New Zealand in
199[7]. I knew before I came that they had purchased a “Kit Home” which was on the farm and is now known as “The Cottage”. When in New Zealand Betty spoke to me about the farm and said it was security for Dennis and Angela and she suggested Dennis was already a part owner as she said it was jointly owned by her and Dennis.
- Margaret Weatherall
[66] Margaret Weatherall (Ms Weatherall) and her late husband Brian Weatherall (Mr Weatherall) were friends of Mrs Osmand for over 30 years. Ms Weatherall states that they would all get together and have tea each Friday night. In her affidavit she relevantly states:
Betty had a heart of gold but was a negative woman. She would always criticise and run people down behind their back. She did that with Dennis and Angela and Rolien (who I always knew as Raylene).
…
Betty would always be chopping and changing her mind about what she was going to do with the farm. Some days she would say that it would go to Dennis and other days to Rolien.
Betty discussed the Versatile Cottage with us both before and after it was erected. We knew that it was being done for her to have income in the long term from the farmstay. I knew that Dennis had put a lot of money into the cottage because Betty had told me that. However, I didn’t know whether he paid for all of it or not. I also knew that Dennis had put a lot of work into
the Versatile cottage. Dennis was in England at that time and I remember him making several trips out at the time the cottage was being built.
[67] As to Ms Weatherall’s evidence, in his judgment Judge Flatley addressed this by simply confirming what her evidence said on its face, that Mrs Osmand was chopping and changing her mind about who would inherit the farm and no more.33 I note that this is not evidence against the making of a promise. In fact, if anything, it is evidence in favour of dual-representations. This again in my view goes to the issue of whether Mrs Osmand was sufficiently manipulative that she would have told Mr Ireland he was going to inherit the farm and then maintained that position, despite being seized of a contrary intention. And Judge Flatley in his decision
scarcely addresses Ms Weatherall’s evidence concerning the Versatile cottage.
Evidence for the respondents
[68] It needs to be noted at the outset that the affidavits in support of the defence were tasked with the near impossible – proving a negative – namely that no promise was made to the Irelands. All that this evidence is able to do is to provide an evidential foundation that Mrs Osmand had expressed a contrary intention.
[69] The first affidavit is that of Stephen Grant (Mr Grant), trustee of Mrs Osmand’s estate and her solicitor whilst she was alive. In his affidavit Mr Grant deposes as to a file note he took at the time he took instructions for Mrs Osmand’s
2001 will:
For ease of reference I will transcribe the file note, as follows:
Mrs Osmand
Instructions for new Will – see draft attached. Discussed with Mrs Osmand the provisions that Donna and Raylene get cash at age 60. Agreed this is too tough. Delete these conditions.
Discussed claims that Dennis might have been promised share in her estate.
No promise ever made.
Dennis’ family came out October 1998. Left again July 1999. Denis stayed only 10 days. Mrs Osmand built cottage for homestay. They were to live in it for 6 months while they built the house. Never built the house.
33 Ireland v Grant, above n 27, at [59].
Disappointed that Dennis has never came to live permanently in New Zealand although Mrs O believes that Dennis has continued to pay school fees at Columba. Discussed the fact that Mrs Osmand gave section to Dennis which he has never built house on.
Angie is very dominating person. Dennis hung up on her in recent telephone discussions.
Went to England last year with Malcolm Scott. Went via Tokyo.
(bold emphasis added)
[70] In her affidavit Ms Busch states that Mrs Osmand “never suggested to me that she wanted [Mr Ireland] to have the farm.” In addition, her affidavit reveals that she both did not have a good relationship with the Irelands and did not think fondly of them. Tawhiri Karetai (Mr Karetai), an old friend of Mrs Osmand, repeats the comments about the absence of knowledge of a promise of the farm to the Irelands. In particular Mr Karetai states:
Aunty Betty never told me that she had promised the farm to Dennis, or mentioned anything like that. I remember her saying that the farm would be Rolien’s. This is even when Rolien was with Paul Garbit. She’s (sic) say the farm would be Rolien’s if she’d get her act together.
[71] Roberta Paget (Ms Paget) who worked as Mrs Osmand’s cleaner for eight years, begins her narrative of the Irelands by stating that she saw Mrs Ireland standing over Mrs Osmand on one occasion. In addition, she deposes that Mrs Osmand often gave Mr Ireland money. She then confirms that she:
…never heard Betty promise Dennis the farm. Betty never said to me that she had ever promised to leave the farm to Dennis. What Betty did say was that Dennis had had all he was ever getting out of her.
…
I really can’t understand Dennis’ claim. If Betty had wanted Dennis to have the farm, then his name would have been in the Will. Betty told me that Dennis had had all he was getting.
[72] The next affidavit is that of Hoani Karetai (Mr H Karetai), another friend of
Mrs Osmand’s who states:
Lots of times when Aunty Betty was talking about the farm, she would say that the farm would stay with her daughter. She always said that the farm would go to Rolien.
I never heard Aunty Betty say that she had promised the farm to Dennis or that she would leave the farm to Dennis.
[73] The affidavit of Donna Ropata (Mrs Ropata) is to similar effect. Mrs Ropata who lived with Mrs Osmand at age 15 from 1976 for three or four years states:
On one of her visits, Betty was telling me a lot about Dennis’s business circumstances and that she had lent him money. I remember Betty saying to me that I needed to know these things because she said to me something like “when I die, I know Dennis will fight for everything, but I have already given him money, he’s had enough.
…
Betty talked to me when his business in the UK was going under. She said something to me like “that bloody business is in trouble, he’s going to go bankrupt, I have given him more money and I have told him it will be the last.”…
…
I do not believe that Betty promised Dennis or Angela the farm at any time, to encourage them to move to New Zealand.
[74] The final affidavit, that of an independent defence witness Andrew Williams, a chartered accountant, is not relevant to the question of a promise.
[75] After hearing the evidence in support of the defence Judge Flatley concluded:34
In the end, I prefer the evidence of the witnesses for the respondents. The evidence they provided, while occasionally inconsistent, was considerably more detailed and based on long periods of close interaction with and knowledge of [Mrs Osmand]. Their evidence was much more specific and precise, without any obvious motivation, and more consistent than the evidence of the witnesses for the applicants.
Analysis
[76] It is my view that, even taking into account this contrary evidence advanced for the respondents, overall the evidence on balance establishes that a promise was made. It is likely that the promise was expressly made at least to Mr Ireland, but
likely also to Mrs Ireland and her mother, Mrs Forsdyke. But, in the absence of such
34 At [85].
an express promise, I would not hesitate to conclude that such a promise was implicit here.
[77] I accept that Mrs Osmand did represent her relationship with the Irelands in a negative light to various people, and in particular those seemingly more associated with Ms Busch. On balance I find that this was likely to have included telling various people that Mr Ireland was not getting the farm and that she had already provided him with enough financial support. However, these representations are largely irrelevant to the question of whether a promise was made to the Irelands. As indicated above, I have concluded that a testamentary promise was made here. The reasons for this are several and include:
(a) The Irelands must have had some compelling impetus for uprooting their entire life in England and moving their children to a country almost as far away from England as it is possible to get. In addition, this move was away from all of Mrs Ireland’s family and the Irelands’ friends and careers that they had developed up to that point. In my view this is cogent evidence of the promise.
(b)The letter Mrs Osmand wrote to Mr Ireland in 1989 clearly establishes that she had no intention of leaving the farm to Ms Busch. In my view her reference to Mr Ireland being “trustee” is likely to be a reference to him inheriting the farm under the will instead of Ms Busch. It is important to understand that the word “trustee” must be read in light of Mrs Osmand’s overall education and understanding of technical legal matters, and the words that followed, specifically “I will have to leave you as trustee you were brought up with us. I have to sort all these things out now for I am getting older all the time.” A later letter from Mrs Osmand to Mr Ireland dated 14 May 1990 is relevant here too. It states:
The sooner you come home the better. I have about had it Raylene and Paul are around all the time panicking we have to lock everything…
(c) Mrs Osmand’s will, was made in 1991, a mere two years after penning the letter to Mr Ireland lamenting that he was not in New Zealand and that Rolien was not to get the farm. This evidence in particular is from Mrs Osmand in the form of the clear intentions expressed at the time in her will, and is beyond question. The 1991 will confirms the above interpretation of the 1989 letter and also as I see it further confirms the promise made by Mrs Osmand to Mr Ireland.
(d)There is an abundance of clear affidavit evidence (with some of it, such as that of Mr Scott, entirely independent), supporting the proposition that a promise was made to Mr Ireland. The sheer volume in my view provides support for the existence of the promise. I consider it more likely that a promise existed rather than that multiple people would independently be untruthful under oath.
(e) The evidence advanced by the respondents in support of the defence does not disprove the existence of a promise. What it does do is provide further support for the proposition that many witnesses on both sides confirmed that Mrs Osmand conducted herself differently around different people. I do not disagree with Judge Flatley’s assessment of the witnesses in support of the defence but simply find, on balance, that Mrs Osmand told the two ‘groups’ different stories as to the fate of the farm upon her death.
[78] Insofar as the suggestion is made that Mrs Osmand was effectively telling one group one thing and another group the opposite, the cross examination of Ms Busch is quite telling:
Q. Do you get the sense now, when you look at it and you’ve heard the evidence, that to some extent she seems to have been playing each of you off against the other?
A. Yes.
Q. And in terms of the way in which the Irelands were painted to you by her, you’d undoubtedly have quite negative feelings about them, is that right?
A. Yes, and that was confirmed with my dealings with them while I was there in the week after Mum died, unfortunately.
Q. Now, can you understand, in terms of what they’ve said that they were told about you, that a similar sort of situation has undoubtedly occurred?
A. Yes.
…
Q. … does it surprise you that when they first came back, which would’ve been a big event and you were down, that Betty didn’t have you all together as part of her family?
A. No, I didn’t have any association really with Dennis and family.
Q. No. And it certainly wasn’t encouraged by Betty is my point, was it?
A. Oh, um, no, it was almost like two separate -
[79] In terms of the Irelands’ return to New Zealand, it is proper to address the contention that they moved here because of financial strife they were experiencing in England. In fact, Judge Flatley in his decision was satisfied that the Irelands were in financial difficulties in England.35 Reaching this conclusion, he held:36
The available evidence in relation to the financial state of the company and its winding up supports a conclusion that [Mr Ireland] experienced financial difficulty in England and that his decision to relocate the family to New Zealand was very likely motivated by those problems and the opportunities available here.
[80] Even accepting that finding for a moment, Judge Flatley does not explain why a couple like the Irelands in a state of financial distress would then take the exceptional decision to expend considerable sums relocating not only themselves and three young children, but also significant chattels and business equipment to New Zealand, a country on the other side of the world. It is equally unclear how such an exercise would have been funded given Judge Flatley’s finding as to financial difficulty.
[81] I consider that such a move, in the face of financial difficulty as found by
Judge Flatley, would not necessarily be an exercise undertaken by most people. Not only are there pecuniary disadvantages in relocating at a time of financial difficulty,
35 At [129].
but it is also difficult to appreciate why, at such a point in time, the Irelands would then extricate themselves wholesale from the emotional, social and financial support that existed by dint of the relationships and networks they had established in England during the significant amount of time they had lived there. No explanation is given for this.
[82] Additionally, this finding of financial difficulty ignores what I see as the incontrovertible fact that on 29 August 2002 lawyers in Christchurch, Antony Hamel, sent a statement confirming that the Irelands had purchased a property at McTaggart Street outright. The statement shows a cash deposit of $175,000 being paid. It is difficult to appreciate how paying a 50% property purchase deposit would be possible in the face of alleged financial difficulty. Further, it seems that the remaining $175,924.58 was also funded by the Irelands direct, without a mortgage. The certificate of title shows no mortgage registered against the title until 2006. This must further support a contention that the Irelands were not impecunious.
[83] Moreover, the finding of financial difficulty seems to ignore entirely the evidence of Mr Scott, Mrs Osmand’s accountant for some 30 years, who in my judgment should be seen as best placed to comment on financial issues within his knowledge. The only other professional evidence in this case came from Mr Grant, who might well be regarded somewhat curiously as having adopted a partisan position here, rather than as an estate executor merely abiding the decision of the Court. Certainly, in counsel’s submissions advanced before me for Mr Grant and the other estate executor Mr Smellie, Ms Hambleton strongly supported and advocated for Ms Busch’s position and against there being any promise made to the Irelands. In such circumstances, I prefer the evidence of Mr Scott. It is not clear to me why Judge Flatley in his decision appears to a significant extent, to have glossed over this evidence of Mr Scott. Nor is it clear why the evidence of people who could only be said to be divorced from Mrs Osmand’s day-to-day financial affairs was preferred.
An example of this is Judge Flatley’s finding that:37
There is insufficient evidence that [the Irelands] built or paid for the cottage or that it is owned by them.
[84] This specifically ignores the evidence in this area of Mr Scott (noted above at [60] who expressly states:
Although we didn’t discuss it in detail, Betty did mention to me that Dennis had remitted funds to her and, in particular:
(a) Funds to erect the kitset house; and
(b) Funds to enable her to have an operation
[85] This evidence simply cannot be reconciled with the other evidence Judge Flatley seems to prefer. When the evidence of Mr Scott and that of the Irelands’ other witnesses in support of the application is properly considered, I am firmly inclined to the view first, that the Irelands were not necessarily in major financial difficulty in England and secondly, that they did indeed contribute to the construction of the cottage. To suggest that the fact no documentary evidence has been provided to support these aspects must be held against the Irelands, in my view is quite unfair here. It ignores the fact that the Irelands’ records and belongings in the main were destroyed by fire some years ago and it was therefore difficult for them to adduce documentary substantiation of the statements they had made in their affidavit evidence.
Conclusion as to a promise
[86] In reaching the conclusion that there has been a promise made by Mrs Osmand to the Irelands, I have had regard to their evidence (acknowledging Judge Flatley’s credibility findings), their daughters’ evidence (particularly Lydia’s), the other evidence of corroboration (of which I found Mr Scott’s evidence particularly compelling), the context (the most important contextual matters being the entire family background of Mr Ireland’s upbringing with the Osmands and the fact that the Irelands moved to New Zealand from the other side of the world) and importantly the 3 December 1989 letter indicating Mrs Osmand’s intentions and promise, as confirmed later in Mrs Osmand’s 1991 will. In reaching this conclusion I have also placed some weight on the evidence of Ms Forsdyke who, first, I found to be a caring and sensitive grandmother who had established a relationship with Mrs Osmand and, secondly who, although an interested party here as the mother of Mrs Ireland, I found to be a credible witness. This evidence not only supports the
making of a promise to the Irelands, but also goes some way as independent evidence to establish that the promise was made also to Ms Forsdyke herself.
[87] Standing back and considering the totality of the evidence, I have reached a different conclusion from that reached by Judge Flatley. In my view this conclusion is not in any way impacted by the evidence of the witnesses in support of the defence. The defence was tasked with proving a negative. No evidence was put forward to suggest that Mrs Osmand had, in front of the Irelands or their daughters, intimated in any way that the Irelands would not be receiving the farm. My interpretation of the conflict between the evidence which Judge Flatley identifies is that Mrs Osmand simply said different things to different people. This does not in any way detract from the fact that a promise was made. I conclude that the Irelands have established on the balance of probabilities that Mrs Osmand made the testamentary promise to them which they allege.
Were work or services performed and was there a nexus between the promise and the services rendered?
Introduction
[88] Having surmounted the first hurdle, I must now embark upon a consideration of the grounds of inquiry that Judge Flatley, because of the conclusion he reached that there was no testamentary promise, was not required to undertake. The first issue is whether work or services were performed by the Irelands.
Did the Irelands pay towards the Versatile cottage?
[89] Given the extensive submissions advanced as to the Versatile cottage (“the Cottage”) it is appropriate to dispose of this matter first. Looking at the matter in the round I record at the outset that I am prepared to accept that the Irelands did pay for some, if not all, of the Cottage. This conclusion is drawn from a number of sources:
(a) Mr Scott stated expressly (as I note at [84] above) that Mrs Osmand told him that Mr Ireland had remitted funds to her for the Cottage.
(b)Ms Weatherall said that Mrs Osmand told her that Mr Ireland had put a lot of money into the cottage.
(c) Mr Karetai confirmed that Mr Weatherall (deceased) told him that
“some of [the Cottage] was paid for by [Mr Ireland]”.
(d) It is Mr Clearwater’s unchallenged evidence that Mr Ireland was the
one who paid Mr Clearwater for his work in building the Cottage.
(e) In cross-examination Mr Grant acknowledged that he had “no knowledge of where the money came from to build the Cottage”.
[90] This conclusion in itself does not require any resort to the evidence of the Irelands or their daughters. However, I am of the view that their evidence does provide further support for the claim that they paid for the Cottage. This conclusion stands despite the adverse credibility findings made by Judge Flatley, particularly with respect to the Irelands and their eldest daughter, Jessica.
[91] It is impossible to tell with any degree of certainty the extent to which the Irelands paid for the cottage. However, stepping back and casting a broad brush, I have reached the conclusion that their contribution was significant and in the absence of any evidence before the Court to the contrary, although entirely arbitrary, for present purposes I adopt a finding that this was in the order of 50% of its total cost.
Other services and work undertaken
[92] In terms of other services provided and work performed by the Irelands, the starting point must be the joint affidavit they swore, specifically dealing with these matters. The affidavit evidence and notes of evidence will further inform this analysis. For convenience I set out in Schedule 1 an abridged replication taken from the Irelands’ joint affidavit of the table of the services and work they said they undertook.
[93] I also note as a preliminary matter that the fire which destroyed much of the Irelands’ records, financial and otherwise, has weighed with me. I am not convinced that obtaining records from up to 20 years ago is as easy as might have been suggested by Judge Flatley. By way of example, the Financial Transactions Reporting Act 1996, ss 29 – 30 specify a requirement to keep records for five years, while the Companies Act 1993, ss 189 requires the retention of records from the preceding seven years. In such circumstances, I propose to accept the evidence of the Irelands as to work performed at face value absent any conflicting accounts.
[94] Looking at the services provided in the round, I accept as a starting point the following:
(a) The Ireland family expended what would have been significant sums visiting Mrs Osmand from the United Kingdom on a number of occasions. The majority of this travel occurred after execution of the
1991 will.
(b)The Irelands spent significant sums of their own money in assisting Mrs Osmand in improving her assets including the farm, all of this for her benefit.
(c) The Irelands spent numerous hours assisting Mrs Osmand with a plethora of problems and day to day tasks.
(d)The Ireland family provided significant emotional and moral support as well as security of person by living close by.
(e) The Irelands, at various times, lost potential income as a result of various assistance offered to Mrs Osmand.
(f) The genesis of the Ireland family’s emigration lay in the promise that they would receive the farm, which in turn resulted in the provision of the services and work.
[95] The affidavit evidence of the Irelands alone in this area is sufficient in my view, to establish the significant work and services provided. This is so, as I see it, even without resort to other affidavits in support, the affidavits of their daughters or other evidence. However, the fact of provision of services by the Irelands is indeed equally supported in the evidence of others. Even Ms Busch does not deny that Mr Ireland performed work on the farm. In her affidavit she states:
Mum expected people on the farm (including me) to work. Dennis certainly
did work on the farm, but so did a lot of people…
[96] Identifying the extent of services performed in these areas is often a difficult task. In the present case the services in question are not amenable to quantification as readily as the table provided by the Irelands might suggest. What is clear however is that, at the time Mrs Osmand made the promise, she was likely to be of the opinion that both the past and the expected future services and work would be of sufficient value to warrant her leaving the Irelands her farm.
[97] There might be some suggestion here that the services provided by the Irelands were merely a simple part of the familial relationship. I reject this however. First, at least the work after the 1991 will can be said to be derivative of the promise made by Mrs Ireland. Secondly, the reason the Irelands were in New Zealand was principally because they uprooted their life in reliance on the promise. Finally, though Mr Ireland claims Mrs Osmand was like his mother, the affidavit evidence of Ms Busch and the Irelands read together establishes significant dysfunction from time to time in this family. This, coupled with the fact that Mr Ireland was merely Ms Osmand’s adoptive son, whom Mrs Osmand it seems disparaged from time to time to various people, takes this familial scenario outside the bounds of normality.
Nexus
[98] In many respects this is the easiest part of the inquiry. Having concluded that a promise was made and that services were rendered and work performed in reliance on that promise, I have no trouble in reaching the further conclusion that there is a nexus between the two. Quite plainly, the reason the Irelands emigrated was for the prospect of a better life and in the knowledge that Mrs Osmand’s farm would devolve to them upon her death. The Ireland family relied upon that belief and set
out to New Zealand to begin their new life. The work provided to Mrs Osmand from then on in my opinion is sufficiently linked with those events as to provide a clear nexus.
Was remuneration provided to the Irelands while Mrs Osmand was alive?
[99] Throughout the evidence provided on behalf of Ms Busch and the first respondents, there has been reference to Mrs Osmand providing financial support to the Irelands while she was alive. The Irelands reject this. However, it is necessary to traverse these claims as they have the potential to inform any award made.
[100] An appropriate starting point is the third affidavit of Mr Grant, in which he confirms that Lot 47, a section subdivided from the farm, was “sold” to the Irelands for $55,000. Subsequently, Mrs Osmand entered into Deeds of Forgiveness of Debt between 1993 – 1995 which in substance meant that she gifted that section to the Irelands. And, as I understand the position, the Irelands have now sold that section at a price of $280,000.
[101] In Ms Busch’s affidavit she makes the following comments relevant to this
issue of inter vivos dispositions:
Mum’s financial dealings were not my concern as I was growing up. After Dennis moved back to New Zealand, Mum told me about Dennis’ failed businesses in the UK and how she had given him and loaned him money and also that she had gifted the section up the top of the farm, to build his house on. Mum told me that she bailed him and his family out a lot. She mentioned at least two occasions when she sent money to the United Kingdom to help him with his truck business. This included giving him money when she went to the United Kingdom with a friend, Malcolm Scott. I think some of the loans were not official but I suspect there would be records of the money being transferred to his UK account.
[102] Similar themes of financial assistance and the Irelands being “money hungry” pervade other parts of Ms Busch’s affidavit. The next relevant affidavit is that of Mr Karetai who states:
I remember Aunty Betty talking to me about Dennis having got himself in financial trouble. It was important to Aunty Betty that Dennis get out of trouble and she wanted to help him if she could.
When Aunty Betty gave Dennis the top section and money, that was to get him out of trouble.
From the amounts of money that Aunty Betty talked to me about, and the land that she gave Dennis, I think she gave him at least $100,000.
[103] As to Mr Karetai’s evidence, I note that it is entirely speculative and appears to be without any sound evidential foundation. Next, Ms Paget deposed that:
Betty gave Dennis a section of the farm which was up top by Hinckley Street. One day the neighbours came down and told Betty that they had bought the section off Dennis. Betty didn’t even know Dennis had put it on the market. She was incredibly upset by that.
…
Betty would frequently tell me that Dennis would ask her for money and then abuse her if she wouldn’t give it to him. Often Betty did give him money.
[104] Mrs Ropata made the following relevant comments in her affidavit:
On one of her visits, Betty was telling me a lot about Dennis’s business circumstances and that she had lent him money. I remember Betty saying to me that I needed to know these things because she said to me something like “when I die, I know Dennis will fight for everything, but I have already given him money, he’s had enough”. I remember her saying that she wouldn’t give Dennis any more money, but in later conversations she would tell me of having given him more money.
…
[Betty] talked to me often of giving Dennis money for his truck business in the UK, his bike business in Dunedin and then his house in New Zealand.
Betty talked to me when his business in the UK was going under. She said something to me like “that bloody business is in trouble, he’s going to go bankrupt, I have given him more money and I have told him it will be the last”…
[105] What concerns me about this evidence is that it seems to be rather inconsistent. The accounts of various people as to the specifics are starkly different. In many ways I wonder whether it makes more sense to simply attribute this to Mrs Osmand’s general negativity and willingness to criticise and run people down behind their back (see [66] above) as well as her desire to keep her two familial spheres entirely divorced from one another. In addition, much of this evidence in any event is hearsay. The witnesses for Ms Busch and the first respondents are
purporting to recount statements made by Mrs Osmand to prove the truth of what she said, namely that she supported the Irelands financially. The only direct evidence on this comes from the Irelands, as they would have been the recipients of any funds but, other than the gifted section, they deny they did receive anything significant. Obviously they have a vested interest here. But finally, I think that if Ms Busch and the first respondents wanted to make a point about what they categorise as significant assistance provided by Mrs Osmand over the years, there is likely to be some documentary proof of this which they could provide. And, after all, Mrs Osmand’s records were not destroyed by fire. None of this was put before the Court. Nor did Mrs Osmand’s accountant, Mr Scott, give evidence of this. Indeed, quite the contrary as I have noted at [60] above, he deposed specifically in his affidavit that “During the time that I knew Betty there was never any suggestion by her that she had provided any money to Dennis or Angela.”
[106] While I would be entitled to find that, other than the gifted section, Mrs Osmand provided little or no financial help to the Irelands here, I am prepared to provide a small credit for these aspects. I do not propose to quantify this credit, but rather will take it into account in determining the overall quantum of relief.
Relief and quantum
[107] The legal principles dealing with quantum were outlined by Hammond J in the Court of Appeal decision in Samuels v Atkinson38 as follows:
[65] The relevant principles in relation to quantum were rehearsed by this Court in Powell v Public Trustee [2003] 1 NZLR 381. For the Court (Tipping, Hammond and Baragwanath JJ), Tipping J noted that the issue is to determine what constitutes “such amount as may be reasonable” as remuneration for the services actually identified: at [10].
[66] Tipping J said that s 3 of the Act requires the court, in making that assessment, to take into account all relevant circumstances and in particular:
(1) The circumstances in which the promise was made and the services were rendered or the work was performed.
(2) The value of the services or work.
(3) The value of the testamentary provision promised.
38 Samuels, above n 20, at [65]-[68].
(4) The amount of the estate.
(5) The nature and amounts of other claims on the estate. (6) Other relevant circumstances.
[67] In relation to the value of services or work, Tipping J noted (at [24]):
It is always difficult to put a value retrospectively on physical work and services of the kind in issue. It is even more difficult to put a value on services of an intangible kind such as those in this case. In our view they represent the greater part of Mrs Powell's claim. One can look at the matter from the point of view of the cost to the provider of the work and services but also from the point of view of the value of the work and services to their recipient. The Act places the principal focus on the latter dimension.
[68] Tipping J further noted that “in the end the right answer must be a matter of judgment in respect of which there must be a substantial margin of appreciation for the result reached by the trial Judge ... It is not a matter of this Court substituting its own discretionary assessment”: at [42]. In that case, after considering the relevant factors, this Court took the view that the Judge’s assessment represented an amount which was “plainly too low”: at [42].
[108] As a preliminary matter, I accept as uncontested the original value of Mrs Osmand’s estate as $899,089.34 which was substantially comprised of the farm, estimated in this figure at a value of $775,000. From these figures however must be deducted net estate expenses including the estate’s significant legal costs for the present claim. This left a final net balance of the estate at this point of $811,885.49.
[109] It is the farm that is the subject matter of the present application. It is what will be the focus of the relief discussion, though it is relevant that the estate has additional net assets at this point of about $37,000 of which $25,000 has already been the subject of an interim distribution made to Ms Busch. As has been made clear throughout the cases, the overarching goal in granting relief in these cases is to do what is fair.
[110] Bearing that, and the comments of Hammond J in Samuels v Atkinson noted at [107] above firmly in mind, I propose here to exercise my discretion to grant relief. The only question left for me to resolve is how that relief should manifest. I have formed the view that the Irelands have a more significant emotional attachment to the farm than does Ms Busch. This is based on a reading of the affidavit and other
evidence in full. I also find the content of the promise Mrs Osmand made here quite persuasive. The Irelands were under the distinct impression that they would be receiving the farm and I accept they expended significant energy on, and some financial assistance to, the farm over many years in reliance on this promise. This would have included their financial and other assistance provided towards the Cottage on the farm.
[111] In the same breath it cannot be ignored that Ms Busch has a strong moral claim to Mrs Osmand’s estate. This is confirmed by the disposition to her in Mrs Osmand’s will and by ordinary principles of moral duty. Accordingly, as I see it, my task now is to strike a balance between the interests of testamentary freedom, moral duties and upholding the testamentary promise.
Conclusion
[112] Taking into account the nature of the promise made by Mrs Osmand as found in this judgment, the significant work performed and the services rendered and expense incurred in reliance on that promise, the nexus between the promise and those matters, the significant inter vivos dispositions made to the Irelands by Mrs Osmand by way of the gift of the section at least (sold by the Irelands for $280,000), and my finding that the Irelands probably contributed around 50% to the cottage cost, I have concluded that a fair and reasonable outcome in the present case is to make an order vesting 50% of the farm in the Irelands.
[113] This leaves untouched the remaining net assets in Mrs Osmand’s estate which all go to Ms Busch in accordance with her will. This division will mean that, based on the value of the Estate as found above, Mrs Osmand’s will is varied as follows:
(a) Ms Busch is to receive:
(i)A ½ share in the 590 Portobello Road Farm Property, for the time being worth $387,500.00 (based on the estimated Estate Value figure of $775,000.00)
(ii) A 100% interest in the remainder of Mrs Osmand’s estate.
(b) The Irelands are to receive:
(i)A ½ share in the 590 Portobello Road Farm Property, for the time being worth $387,500.00 (based on the estimated Estate Value figure of $775,000.00)
An order to this effect is now made. The appeal by the Irelands therefore succeeds to this extent.
[114] Due to the nature of the promise made by Mrs Osmand to the Irelands, and the less than amicable relationship that seems to exist between the Irelands and Ms Busch, I express some concern as to whether they are able to come together and agree as to how the farm is to be worked, or to agree as to its fate. A sale of the farm may well prove to be inevitable, but only time will tell on this. Ideally, if a sale is to eventuate, usefully a Court could confer on both the Irelands and Ms Busch for a limited time consecutive rights of first refusal should the other wish to ‘cash up’ and move on. But that is a matter, if it does arise, for the future.
[115] Leave is reserved therefore for either party to approach this Court further on
48 hours notice should further directions be required regarding the implementation of this decision and any matters concerning final use or disposal of the farm property.
Costs
[116] As to costs on this appeal, I express the tentative view, without predetermining the issue, that costs should lie where they fall in this matter and that it should not be taken for granted that costs will be borne by the estate.
[117] The parties are to agree on costs. If they cannot, the parties may file memoranda on costs sequentially.
Schedule 1
Date
Item
Expense
Hours
1981 – 1982
Dennis and Angela travel & work – 2 weeks
$6,000 return airfares
Dennis 80 hours
Angela 80 hours
1982
Dennis visit
$3,000 return airfares
October 1985
Dennis visit to help Betty on farm – 4 weeks
$3,000 return airfares
Dennis 160 hours
November 1986
Dennis and Angela visit to help Betty on farm – 6 weeks
$6,000 return airfares
Dennis 240 hours
Angela 240 hours
October 1990
Dennis visits to remove lodger and help Betty
$3,000 return airfares
Dennis 80 hours
January 1991
Dennis and Angela visit to help Betty on farm
$7,500 return airfares
Dennis 240 hours
Angela 240 hours
January 1993
Ireland family visit
Betty
$10,500 return airfares
Angela 240 hours
Dennis 240 hours
January 1996
Ireland family visit Betty to help on the farm
$12,000 return airfares
$450 groceries for
Betty
Dennis 240 hours
Angela 328 hours
1996 – 1997
Dennis and Angela pay for the Cottage and furnishings
$44,000 for the
Cottage
$15,000 respectively
June 1997
Dennis visits Betty to help on the farm
$3,000 return airfares
$3,000 cost of
Dennis 80 hours
Dennis appointing
manager to his business while away from England
November 1997
Ireland family visit Betty to help on the farm
$12,000 return airfares
$3,000 cost of Dennis appointing manager to his business while away from England
$300 groceries for
Betty
Dennis 80 hours
Angela 160 hours
1998
Dennis visits to help
Betty and prepare for emigration
$3,000 return airfares
Dennis 80 hours
1998 – 1999
Ireland family emigrates to New Zealand
$18,000 airfares to
New Zealand
$12,000 Dennis commuting airfares
$11,100 shipping costs
$3,150 groceries for
Betty
$800 Betty electricity
$500 clothing for
Betty
$200 craft supplies for Betty
Dennis 1,064 hours
Angela 2,204 hours
1999 – 2002
Angela and children return to UK
$4,950 weekly phone calls to betty
because Dennis fell
ill
for 165 weeks
$1,000 linen purchased for homestay
2002 – 2004
Ireland family returns to New Zealand
$19,000 shipping business equipment to New Zealand
$18,000 airfares
$6,825 groceries for
Betty
$259.20 petrol driving Betty to hospital
Dennis 3,736 hours
Angela 60 hours
2004 – 2011
General care and work
$11,200 groceries for Betty
Dennis 5,610 hours
...................................................
Gendall J
Solicitors:
Antony Hamel, Dunedin
Gallaway Cook Allan, Dunedin
Solomons, Dunedin
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