Lister v Mathews - [2017] NZCA 86

IN THE COURT OF APPEAL OF NEW ZEALAND

CA585/2016
[2017] NZCA 86

BETWEEN

DEBRA ANNE GRETA LISTER
Applicant

AND

ROBYN ETHEL FRONTIN MATHEWS AND OTHERS
First Respondents

WILSON FAMILY HOME TRUST
Second Respondent

Hearing:	20 March 2017
Court:	French, Miller and Winkelmann JJ
Counsel:	Applicant (in person) No appearance by First and Second Respondents
Judgment:	28 March 2017 at 12.30 pm

JUDGMENT OF THE COURT

AThe application for leave to appeal is declined.
BCosts of $500 awarded to the Second Respondent.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

This is an application for special leave to appeal a judgment of Palmer J given on 7 July 2016.[1] It was given in proceedings brought under the Family Protection Act 1955 for better provision from the estate of the applicant’s late father.
[1]Lister v Matthews [2016] NZHC 1540.
The judgment responded to an application for review of a minute issued by Associate Judge Bell on 5 February 2016. The minute recorded that:[2]
The Courts have given final decisions that the property at Trafalgar Street, Onehunga, Auckland does not form part of the estate of the deceased. That property passed to the Wilson home on the death of the deceased. Ms Lister does not have a claim against the estate of her aunt. She does not have standing to make such a claim under the Family Protection Act. The Trafalgar Street property cannot be the subject of evidence or decision in this case. Instead, the proceeding concerns only the remaining estate.

The Associate Judge accordingly held that the applicant’s evidence for the hearing of her Family Protection Act claim could not deal with any questions relating to the Trafalgar St property. That precluded her from pursuing a claim in that proceeding to the proceeds of the property’s sale or its rental income.

[2]Lister v Lister HC Auckland CIV-2014-443-11, 5 February 2016 at [3].

The Courts referred to in the minute are the High Court and this Court, both of which had previously rejected claims by the applicant that she was entitled to the Trafalgar St property. Asher J held that her father had only a life interest in the property and it reverted to the estate of a Mrs Lyon on his death, and then passed to the Wilson Home Trust under her will.[3] When refusing an extension of time to apply for special leave to appeal, this Court held that Asher J was plainly correct.[4]
[3]Lister v Pegg Ayton Gordon Trustee Ltd [2014] NZHC 2553, (2014) 16 NZCPR 161 at [20].
[4]Lister v Matthews [2015] NZCA 474 at [12].
Since Palmer J delivered his judgment, Davison J has decided the Family Protection Act claim. The applicant persisted in her claim to the property, notwithstanding the ruling under review. Davison J dismissed that part of the claim as res judicata.[5] We are unaware whether an appeal is to be brought from that decision.
[5]Lister v Lister [2016] NZHC 2887 at [46].
In a judgment…

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 Lister v Mathews

Details

AGLC: Lister v Mathews [2017] NZCA 86
Case: [2017] NZCA 86
Decision Date: 28 March 2017 at 12.30 pm

CaseChat Overview and Summary

Debra Lister, the applicant, sought special leave to appeal a decision given by Palmer J in proceedings under the Family Protection Act 1955. The proceedings were brought against Robyn Mathews and the Wilson Family Home Trust, seeking better provision from the estate of the applicant's late father. The decision under appeal was a ruling that the applicant could not bring a claim in the Family Protection Act proceedings to the proceeds of the sale of a property in Trafalgar Street, Onehunga, Auckland, or its rental income. The applicant had previously been unsuccessful in her claim that the property was part of her father's estate and should form part of the proceeds available for distribution under the Family Protection Act. The Court of Appeal was required to decide whether the applicant's application for special leave to appeal raised a question of law or fact capable of a bona fide and serious argument, involving an interest of sufficient importance to outweigh the costs and delay of a further appeal, and having a prospect of success. The Court of Appeal found that none of these criteria were met. The applicant was refusing to accept a series of decisions that made it clear that she had no claim to the Trafalgar Street property. The decision under appeal correctly confirmed that she could not advance a claim to the property in her Family Protection Act proceeding. The Court of Appeal declined the application for special leave to appeal and awarded costs of $500 to the Wilson Family Home Trust.

Orders