Liong v Norton - [2013] NZHC 1984

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-2039 [2013] NZHC 1984

BETWEEN LISA LIONG Plaintiff

ANDMAURICE KINGSLEY NORTON and NIGEL LAWRENCE FAIGAN being the Trustees and Executors of the Estate of Patricia Kathleen Petherick
First Defendants

ANDMAURICE KINGSLEY NORTON Second Defendant

Hearing: 30 July 2013

Appearances: R J Connell for the Plaintiff
DRI Gay for the First Defendants
G C Jenkin for the Second Defendant

Judgment: 8 August 2013

JUDGMENT OF BROWN J

This judgment was delivered by me on Thursday 8 August 2013 at 12.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors/Counsel:
R J Connell, Connell & Connell, Auckland
D R I Gay, Barrister, Auckland
N L Faigan, Barrister & Solicitor, Auckland
G C Jenkin, Barrister, Auckland
J Ray, Wadsworth Ray, Epsom, Auckland

LIONG v NORTON & ORS [2013] NZHC 1984 [8 August 2013]

[1] By interlocutory application in CIV-2012-404-2039 the plaintiff seeks an order transferring to the High Court proceedings between the parties in the Family Court under FAM-2011-004-002930 commenced by the plaintiff under the Law Reform (Testamentary Promises) Act 1949, together with a direction that those proceedings then be heard with this proceeding.

Background

[2] In 2011 the plaintiff commenced proceedings in the Family Court for orders against the executors and trustees of the estate of the deceased, Patricia Kathleen Petherick, pursuant to the Law Reform (Testamentary Promises) Act 1949 (“the Act”).

[3] Later in 2011 the plaintiff commenced this proceeding which seeks an order that the second defendant’s interest in the deceased’s last will be set aside or in the alternative an order recalling probate granted on 18 November 2011 in CIV-2011-
404-7247.

[4] In 2012 the plaintiff made an application in the Family Court proceeding under s 5(3) of the Act, seeking to have the Family Court proceeding referred to the High Court. Section 5(3) states:

If a Family Court Judge is of the opinion that any proceedings under this Act, or any question in any such proceedings, would be more appropriately dealt with in the High Court, the Judge may, upon application by any party to the proceedings or without any such application, refer the proceedings or the question to the High Court.

[5] That application was considered by Judge D A Burns at a judicial conference on 13 August 2012. In a judgment delivered on 17 August 2012 the Judge directed that the testamentary promises proceeding was to remain in the Family Court at Auckland and not to be transferred to the High Court. No appeal was filed against that decision.

[6] The Family Court proceedings have since progressed in that Court and the matter has been allocated a three day back-up fixture for 14-16 August 2013 and a

firm fixture for 25-27 November 2013. The current High Court proceeding has an eight day fixture commencing on 14 October 2013.

[7] The current application is made in reliance on s 5(4) of the Act which states:

The High Court, upon application by any party…

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: [2013] NZHC 1984
Decision Date: 8 August 2013

CaseChat Overview and Summary

In Liong v Norton, the plaintiff, Lisa Liong, sought to transfer proceedings from the Family Court to the High Court, where she had also filed a related action against the executors and trustees of the estate of the deceased, Patricia Kathleen Petherick. Liong's application was predicated on the Law Reform (Testamentary Promises) Act 1949, which allows for claims regarding unfulfilled promises in a deceased's will. The defendants, including Maurice Kingsley Norton and the executors of Petherick's estate, opposed the transfer, arguing that the Family Court was the more appropriate forum.

The primary legal issue was whether the Family Court proceedings should be transferred to the High Court. This hinged on whether the defendants could demonstrate that the Family Court was the more appropriate forum for the proceedings. The court noted the differing structures of the provisions for transferring proceedings between the Family Court and the High Court, particularly the mandatory nature of the High Court's obligation to transfer unless it found the Family Court to be more appropriate. The defendants argued that an issue estoppel should apply due to a previous decision by Judge Burns declining a similar transfer application. Additionally, they contended that "serial transfer applications" should not be permitted, referencing the reasoning in Thomas v Brougham.

The court rejected the argument of issue estoppel, noting that the justice of the case must be compelling for an interlocutory decision to prevent the later re-litigation of an issue. The court also found that there was no requirement for an applicant to make an election on which forum to apply to for a transfer, allowing for subsequent applications if circumstances changed. In assessing whether the Family Court was more appropriate, the court considered the distinct nature of the issues in each proceeding, the progress made in the Family Court, and the potential for duplication and delay. Ultimately, the court found that the Family Court was more appropriately suited to handle the testamentary promises proceeding, given the distinct issues, the imminent hearing date, and the defendants' ability to meet their onus.

The court dismissed the application and awarded costs to the defendants on a 2B basis for an originating application. This decision underscored the importance of considering the specific circumstances of each case when determining the appropriate forum for proceedings under the Law Reform (Testamentary Promises) Act 1949.

Orders