Lewtyn Scott v Rosemary Scott - [2009] NZSC 111

IN THE SUPREME COURT OF NEW ZEALAND
SC 65/2009
SC 84/2009
[2009] NZSC 111

BETWEENLEWTYN MICHAEL SCOTT

Applicant

ANDROSEMARY ANN SCOTT

First Respondent
ANDLEE MCNEILLY

Second Respondent
ANDALISON SCOTT

Third Respondent
ANDCARA ANN CLARE

Fourth Respondent

Hearing:16 October 2009

Court:Tipping, McGrath and Wilson JJ
Counsel:K G Davenport for Applicant

R E Harrison QC for Respondents

Judgment:16 October 2009
Reasons:29 October 2009

JUDGMENT OF THE COURT

A The applications are dismissed.
BThe applicant is ordered to pay to the respondents jointly costs of $7,500 and reasonable disbursements.

REASONS
(Given by Wilson J)

Introduction
[1]        The applicant was in dispute in the High Court with the first respondent, his mother, and the other respondents, his sisters, over two family farms, known as “Tombstone Station” and the “Scott Trust” farm. Stevens J delivered two judgments, the first on 15 September 2008[1] and the second on 5 August 2009.[2] The applicant filed an appeal against the first judgment on 13 October 2008. He did not file the Case on Appeal and seek a fixture within six months, as required by r 43 of the Court of Appeal (Civil) Rules 2005. On 16 June 2009 the Court of Appeal, in the absence of the applicant and with no counsel representing him, considered an application by him under r 43(2)(a), made shortly prior to the expiration of the six months from the filing of the appeal, to extend that time. On 19 June 2009 it refused the application, with the result that his appeal is treated as having been abandoned.[3] The applicant sought leave to appeal to this Court against that refusal.
[1]Scott v Scott & Ors (High Court, Tauranga, CIV-2004-470-000094, 15 September 2008, Stevens J).
[2]Scott v Scott & Ors (High Court, Tauranga, CIV-2004-470-000094 and CIV-2004-470-000957, 5 August 2009, Stevens J)
[3] [2009] NZCA 255 (Hammond, O’Regan and Ellen France JJ).
[2]        On 3 September this year, the applicant filed an appeal against the second judgment of Stevens J, which was primarily directed to issues of relief. On 16 September, the Court of Appeal heard applications by Mr Scott for stays of proceedings based on his application for leave to appeal to this Court (in relation to the deemed abandonment of his appeal against the first judgment of Stevens J) and his appeal to the Court of Appeal (in relation to the second of the High Court judgments). On 18 September the Court refused both stays.[4] On 24 September, the applicant filed an application for leave to appeal to this Court against the refusal of the stays by the Court of Appeal.
[4] [2009] NZCA 417 (Hammond, Harrison and Miller JJ).
[3]        At a hearing on 16 October, we first heard Ms Davenport in support of the application for leave to appeal against the refusal of the Court of Appeal to extend time under r 43. Without finding it necessary to call upon Mr Harrison QC, but having considered his written submissions, we refused the application and said that we would give our…

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.

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Details

Case: [2009] NZSC 111
Decision Date: 29 October 2009

CaseChat Overview and Summary

The case of Lewtyn Scott v Rosemary Scott was heard by the Supreme Court of New Zealand. Lewtyn Scott, the applicant, was engaged in a dispute with Rosemary Scott, his mother, and other family members, concerning two family farms. Stevens J had delivered two judgments in the High Court, which Lewtyn Scott appealed. However, Lewtyn Scott did not file the Case on Appeal and seek a fixture within the six-month period required by rule 43 of the Court of Appeal (Civil) Rules 2005. Consequently, his appeal was deemed abandoned. Lewtyn Scott sought leave to appeal to the Supreme Court against the refusal of the Court of Appeal to extend time. The Court of Appeal had refused the application, and Lewtyn Scott sought leave to appeal against this refusal and the refusal of a stay of the second judgment of Stevens J. The Supreme Court heard the applications and ultimately dismissed both of them.
The legal issues the court needed to decide involved the application for leave to appeal against the refusal of the Court of Appeal to extend time and the refusal of a stay of the second judgment of Stevens J. The Court of Appeal had refused the extension of time due to the history of delays and prevarications by Lewtyn Scott. Additionally, Lewtyn Scott's refusal to waive privilege, which prevented relevant information from being presented to the Court, further supported the Court of Appeal's decision. Regarding the refusal of a stay, the Court of Appeal concluded that the decision on the sale of the farms was appropriate and could not be realistically challenged. There was no substantial miscarriage of justice, and it was too late to grant Lewtyn Scott a "pre-emptive offer" to purchase the property.
The Supreme Court dismissed both applications, stating that the Court of Appeal's decisions were justified and appropriate. The Court acknowledged the professional conduct of Lewtyn Scott's counsel, Ms Davenport, despite her client's failure in both applications. The Court ordered Lewtyn Scott to pay $7,500 and reasonable disbursements to the respondents jointly. The Court's decision was based on the history of delays and prevarications by Lewtyn Scott, as well as the appropriateness of the Court of Appeal's decisions on the sale of the farms.

Orders