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…

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 [2016] NZHC 1540
Case: [2016] NZHC 1540
Decision Date: 7 July 2016

CaseChat Overview and Summary

The High Court of New Zealand considered an application by Debra Anne Greta Lister to review a decision made by Associate Judge Bell in Lister v Mathews & Anor. The case involved a dispute over a property at Trafalgar Street, Onehunga, Auckland. Lister sought to claim the property under the Family Protection Act, arguing it belonged to her late father. However, the property was not part of her father's estate; instead, it was to be sold upon his death, with the proceeds going to the Wilson Family Home Trust.

The legal issues before the court were whether the Associate Judge's Minute accurately reflected the legal position established by previous judgments and whether there were grounds for reviewing the Minute. The court had to determine if the Trafalgar Street property could be the subject of the Family Protection Act proceeding given that it was not part of the deceased's estate. The court also needed to address whether Clause 4 of Iris Lorna Lyons' will had any impact on the property and if the Wilson Home Trust had received rent during Lister's father's lifetime.

Palmer J concluded that the Minute correctly reflected the legal position, which had been consistently upheld by the High Court and the Court of Appeal. The court found that the Trafalgar Street property was not part of Lister's father's estate; it was to be sold, with the proceeds going to the Wilson Family Home Trust. Clause 4 of the will did not affect the property, and there was no evidence before the court that the Wilson Home Trust had received rent during Lister's father's lifetime. The court dismissed Lister's application for review and awarded costs on a 1A basis in favor of the respondents.

Orders