Ireland v Grant - [2014] NZHC 613

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV 2014-412-000014 [2014] NZHC 613

BETWEEN DENNIS PAUL IRELAND and ANGELA CATHERINE IRELAND
Appellants

ANDSTEPHEN JOHN GRANT and DAVID JAMES SMILLIE
First Respondents

ANDROLIEN GEERTRUIA BUSCH Second Respondent

Hearing: 24 March 2014

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

Judgment: 31 March 2014

JUDGMENT OF WHATA J

[1] The appellants, Dennis Ireland and Angela Ireland, did not satisfy the District Court that Betty Osmand (now deceased) promised them a farm located in Macandrew Bay, Dunedin.

[2] They appeal to this Court claiming that the District Court erred in determining that a promise of testamentary disposition was not made and in finding that the appellants fabricated and manipulated evidence.

[3] This matter is set down for hearing on 6 June 2014. Dennis and Angela now seek leave to file further evidence from Katherine Forsdyke (Angela’s mother) said to support their evidence that a promise was in fact made. That application is
opposed by the respondents.

IRELAND v GRANT and SMILLIE [2014] NZHC 613 [31 March 2014]

[4] The jurisdiction to receive further evidence is expressly provided for at s 5A(5) of the Law Reform (Testamentary Promises) Act 1949. It is self explanatory. That section states:

5A Right of appeal

…

(5) The High Court … 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.

[5] Furthermore, given that this is a general appeal,1 I must approach the application on the basis that this Court must ultimately reach its own view on the merits.2

Procedural background

[6] Ms Hambleton for the first respondents helpfully set out the procedural background. I adopt it:

(a) The Applicants applied to the Family Court for orders under the (sic) The Law Reform (Testamentary Promises) Act 1949 on 23 July
2012.

(b) Mrs Forsdyke swore an affidavit in support of the Applicants on 20
May 2013.

(c) On 30 July 2013 a Judicial Conference was held in the Dunedin Family Court. The Presiding Judge initiated discussion about evidence being given by audio visual link (“AVL”) because there were two witnesses living at a distance, Mrs Forsdyke for the Appellants and Donna Ropata for the First Respondents. The Judge was supportive of evidence being given by AVL, indicated facilities locally where evidence could be heard and referred to the time delay in such a way that it was clear that was not an obstacle for the Court.

(d) The First Respondents gave notice that Mrs Forsdyke was required for cross examination on 2 September 2013.

(e) A Pre-Trial Conference was held on 16 October 2013. At that Conference, Counsel for the Appellants indicated that Mrs Forsdyke would be giving evidence by AVL suggested that her evidence could be given on the Friday of the fixture at 10.00 am New Zealand time, which would be 10.00 pm in the…

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 613
Case: [2014] NZHC 613
Decision Date: 31 March 2014

CaseChat Overview and Summary

The appellants, Dennis and Angela Ireland, appeal to the High Court against the District Court's decision that Betty Osmand did not promise them a farm in Macandrew Bay, Dunedin. The District Court found that the appellants did not provide credible evidence to support their claim of a testamentary promise, and further found that they fabricated and manipulated evidence. The appellants seek leave to file further evidence from Katherine Forsdyke (Angela’s mother) to support their claim that a promise was made. The respondents oppose this application.

The court must decide whether the interests of justice require the admission of the proposed further evidence. The statutory threshold for receiving further evidence is that the interests of justice so require. The court must consider whether the evidence could have been produced at first instance, whether it could have had a material effect on the District Court's decision, and whether it is credible and cogent. The court must also consider the wider implications of admitting further evidence on appeal.

The court found that the appellants had endeavoured to produce the proposed evidence, but failed due to technical difficulties in arranging an audio visual link. The proposed evidence could have had some effect on the District Court's decision, but the court did not believe it would have changed the outcome. The evidence is credible and cogent, providing an arguable basis for the proposition that the District Court was wrong. The court considered the policy against allowing further evidence on appeal, but found that the unfairness to the appellants in being deprived of the opportunity to present this evidence outweighed the unfairness to the respondents.

The court grants leave for the admission of the proposed further evidence, noting that the additional cost to the parties and the court should not be unduly burdensome. The court invites submissions on the costs of this application, tentatively viewing the appellants as having sought and obtained an indulgence.

Orders