Lister v Mathews

[2016] NZHC 1540

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-488-000057 [2016] NZHC 1540

BETWEEN

DEBRA ANNE GRETA LISTER

Applicant

AND

ROBYN ETHEL FRONTIN MATHEWS, LANCE IAN LISTER, AND LINDA LOUISE EDDIE

First Respondents

AND

WILSON FAMILY HOME TRUST Second Respondent

Hearing:	23 June 2016
Appearances:	D A G Lister, Applicant in person Appearances for the First and Second Respondents excused
Judgment:	7 July 2016

JUDGMENT OF PALMER J

This judgment is delivered by me on 7 July 2016 at 4 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitors:

Saunders Robinson Brown, Christchurch (J M Stringer) Schnauer & Co, Auckland (C P Hallowes)

And to:

Applicant

LISTER v MATHEWS & ANOR [2016] NZHC 1540 [7 July 2016]

Summary

[1]      Ms Debra Lister applies to review or appeal a decision by Associate Judge Bell in a Minute of 5 February 2016.  However, the Minute simply reflects the legal position decided by the High Court and the Court of Appeal.  The legal position is clear.  Ms Lister wishes to make a claim to a Trafalgar Street property in Onehunga, Auckland, under the Family Protection Act, as being property of her late father.  But the property is not part of her father’s estate.   Her father had a life estate in the property until his death, when it was to be sold and the proceeds paid to the Wilson Family Home Trust, the second respondent.  The Trafalgar Street property cannot be the subject of evidence or decision in the pending Family Protection Act proceeding.

The facts

[2]      I will not repeat a full account of the facts that have been traversed by Associate Judge Christiansen and Asher J in the High Court and by the Court of Appeal.1  The key facts are:

(a)      Ms Iris Lorna Lyons died on 2 March 1995 leaving a life estate in the Trafalgar Street property to her brother, Mr Earl Lister, Ms Lister’s father.  Ms Lyons also left the residue of her estate to Mr Lister.

(b)      Clauses 3(c) and 4 of her will provided:

(c)      I  GIVE  DEVISE  AND  BEQUEATH  my  flat  at  1/84

Trafalgar Street, Royal Oak, unto my Trustee UPON TRUST

to permit my brother EARL ARTHUR LISTER to have the use occupation and enjoyment of the same during his life he paying the rates, insurance and other outgoings and keeping the same in a reasonable state of repair and on his death I DIRECT that the said house property be sold the nett proceeds of sale paid to the WILSON HOME FOR CRIPPLED CHILDREN [now the Wilson Home Trust] at Takapuna for the purpose of purchasing equipment for use in the  Home  AND  I  DECLARE  that  the  receipt  of  the Secretary for the time being shall be a sufficient discharge to my Trustee

1      Lister v  Pegg Ayton Gordon Trustee Ltd  & Ors  [2014] NZHC 1956 (per Associate Judge Christiansen); Lister v Pegg Ayton Gordon Trustee Ltd & Ors [2014] NZHC 2553 (per Asher J); Lister v R E Mathews & Ors [2015] NZCA 474 (Court of Appeal).

4.I GIVE DEVISE AND BEQUEATH the rest residue and remainder of my estate both real and personal of whatsoever kind and wheresoever the same may be situate unto my Trustee UPON TRUST to sell call in and convert the same into  money  (with  power  in  his  absolute  discretion  to postpone such sale calling in and conversion so long as he shall think fit) and after payment thereout of my just debts fuenral [sic] and testamentary expenses TO PAY the balance to my brother EARL ARTHUR LISTER absolutely PROVIDED HOWEVER that if my brother the said Earl Arthur Lister shall die in my lifetime leaving issue living at my death such issue shall stand in the place of such deceased brother and shall take per stirpes and euqally [sic] between them if more than one the share of my estate which such deceased brother would have taken if he had survived me and attained a vested interest.

(c)      Mr Earl Lister died on 31 October 2011.   Since then Ms Lister has been asserting that she is entitled to the Trafalgar Street property.

(d)All the judicial decisions referred to are clear that Ms Lister is not entitled  to  the  Trafalgar  Street  property.    Asher  J,  in  a  passage approved by the Court of Appeal summarised the legal position:2

Mr Lister got a freehold estate in the property, but it was only a life estate which ceased upon his death.  The Wilson Home Trust had a beneficial interest in the property as a remainder, and the land reverted to Mrs Lyon’s estate on the death of Mr Lister and then in accordance with the trust that was created, was to be transferred to the Wilson Home Trust.

(e)      On Monday 11 July 2016 a hearing is scheduled of an application to have Ms Lister removed as executor of Mr Earl Lister’s estate and of a family protection claim by Ms Lister against that estate.

The decision here

[3]      In preparing for Monday’s hearing, on 5 February 2016, Associate Judge Bell issued a Minute which stated, at paragraph 3:

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

2      See the Court of Appeal decision in Lister v Mathews, above n 1, at [12], citing Asher J in Lister v Pegg Ayton Gordon Trustee Ltd, above n 1, at [20].

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.

[4]      Paragraph [7] repeated, in relation to the deadline for filing and service of her affidavit evidence for the hearing, “[h]er evidence is not to deal with any questions relating to Trafalgar Street”.

[5]      Ms  Lister  has  sought  review  or  appeal  of  those  aspects  of  the  Minute. Section 26P  of  the  Judicature Act  1908  entitles  her  to  apply  for  review  of  an Associate Judge’s order or decision.   I have read the 10 pages of her written submissions and heard her oral argument.  The respondents have each filed written submissions but their appearances at the hearing were excused by Edwards J.

[6]      There are no grounds on which review or appeal of Associate Judge Bell’s Minute are justified.  The Minute simply reflected the legal position decided by the High  Court  and  the  Court  of Appeal.    The  legal  position  is  clear  and  is  that summarised in the Minute.   The Trafalgar Street property is not part of Mr Earl Lister’s estate.  He had a life estate in the property until his death, when it was to be sold and the proceeds paid to the Wilson Family Home Trust.  The Trafalgar Street property cannot be the subject of evidence of decision in the pending Family Protection Act proceeding regarding Mr Lister’s estate because that estate does not include the property.  Mrs Lister does not have standing under the Family Protection Act to make a claim against her aunt’s estate.

[7]      Because several points appeared to be causing Ms Lister confusion at the hearing I also note:

(a)      Clause 4 of Ms Lyons’ will does not override clause 3.   The “rest residue and remainder of my estate” referred to in clause 4 means what is left of her estate after the bequests identified in clause 3 are subtracted from it.  The word “remainder”, as it is used in clause 4, does not mean the interest in the Trafalgar Street property that remains after the life estate in it expires.  Clause 4 does not affect the Trafalgar

Street  property.    Clause  4  does  not  give  Ms  Lister  the  power  to postpone sale of the property.

(b)Ms Lister claims that the Wilson Home Trust received rent for the property during her father’s lifetime.  If that were true that would be surprising since Mr Lister had a life estate in the property.  But there is no evidence of that before me and I do not understand it to be at issue in the current proceedings.  That is a matter Ms Lister will need to take up with the Wilson Home Trust, separately, if she wishes.

(c)      On the basis of the information before me Ms Lister is correct in her belief that the Wilson Home Trust does not have a life estate in the property.  It is entitled to the proceeds of its sale. But I have not seen

any suggestion from the respondents to the contrary.

Result

[8]      I decline the application to review the Minute of Associate Judge Bell.

[9]      Ms Lister needs to accept the legal situation as several courts have found, and carefully explained, it to be.

[10]     I award costs on a 1A basis in relation to the application against Ms Lister in favour of the respondents.  If agreement cannot be reached on the quantum of costs I grant leave for the parties to file and serve memoranda as to the outstanding issues.

Palmer J