Lee v Archer - [2012] NZHC 3551

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2012-409-002048 [2012] NZHC 3551

BETWEEN SUSAN MARGARET LEE Plaintiff

ANDBRODIE JANE ARCHER Defendant

Hearing: 3 December (and Judgment 7 December 2012) Appearances: J M Kirkland for Plaintiff
S P Rennie for Defendant

Judgment: 19 December 2012

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[1] On 7 December 2012 the Court released a judgment recalling a grant of Letters of Administration in the estate of the late Kenneth Cummings to the defendant, who is his daughter. The order was made because I found that Ms Archer had sworn an affidavit which was false in a material respect. She had sworn that at the time of her father’s death he was not in a de facto relationship. The evidence established that he was in a de facto relationship with the plaintiff.

[2] Shortly after the judgment was released, the solicitor for Ms Archer sent an email to the case officer at the Christchurch Registry asking that publication of the judgment be stayed on the ground that the matters contained in it are “family orientated and are inherently private”, that the findings have implications for parties outside of the judgment, and that a stay of the orders including a stay pending appeal was under contemplation.

[3] Given the time at which this email was received, 4.37 pm on 7 December, the case officer drew it to my immediate attention. It was too late in the day to refer it to

SUSAN MARGARET LEE V BRODIE JANE ARCHER HC CHCH CIV-2012-409-002048 [19 December
2012]

counsel for the plaintiff, and given the nature of the proceeding I made an interim order staying publication until further order of the Court. I indicated that application could be made on one day’s notice to set aside the order.

[4] Counsel for Ms Lee then filed a memorandum asking that the stay order be lifted. I issued a Minute on 13 December directing that the memorandum would be treated as a formal application to set aside the stay and that any response by the defendant, Ms Archer, was to be filed and served by 5.00 pm on 14 December.

[5] Counsel for Ms Archer filed a memorandum on 14 December, and an affidavit by her in support. By way of background, counsel cites the steps in relation to the stay on publication which I have set out. However, he then proceeds to advance submissions on the law relating to a stay of execution of the judgment, which is quite another matter. No further grounds were advanced in support of the application to stay publication. I will deal with this stay first, and review the grounds in the original email.

[6] Although I agree with Mr Rennie that this case arose in the context of family issues, it also raised the important issue of whether Letters of Administration should be set aside if based on an affidavit which was false, as well as the factual issue of whether, in fact, the affidavit was…

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 Lee v Archer

Details

AGLC: Lee v Archer [2012] NZHC 3551
Case: [2012] NZHC 3551
Decision Date: 19 December 2012

CaseChat Overview and Summary

This case involves a legal dispute between Susan Margaret Lee and Brodie Jane Archer. The central issue pertains to the revocation of Letters of Administration granted to Brodie Jane Archer, the daughter of the late Kenneth Cummings, due to a false affidavit sworn by Archer, who stated that her father was not in a de facto relationship with Lee at the time of his death. The High Court of New Zealand, Christchurch Registry, was tasked with deciding whether the false affidavit justified the revocation of the Letters of Administration and if there were grounds for staying the publication and enforcement of the judgment pending appeal.

The court examined the legal grounds for staying both the publication and enforcement of the judgment. Regarding the publication stay, the court dismissed the application, finding insufficient justification for withholding the judgment, as no specific parties outside the litigation were identified as being adversely affected. Similarly, concerning the enforcement stay pending appeal, the court considered various factors such as the potential injury to the successful party, the effect on third parties, and the overall balance of convenience. The court concluded that the appeal would not be rendered nugatory, Lee would not be significantly injured, and there was an overall balance of convenience against granting the stay. The court also highlighted concerns about Archer's administration and the public interest in upholding the integrity of court processes.

In summary, the court revoked the interim order staying publication and denied the stay of enforcement of the judgment pending appeal. Susan Margaret Lee was awarded costs on a 2B basis with disbursements fixed by the Registrar.

Orders