Lister v Pegg Ayton Gordon Trustee Limited

[2015] NZHC 839

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-488-000057 [2015] NZHC 839

UNDER

the Family Protection Act 1955, the

Property Law Act 2007, and the Trustee
Act 1956

IN THE MATTER

of the estate of EARL ARTHUR RAYMOND LISTER

BETWEEN

DEBRA ANNE GRETA LISTER Applicant

AND

PEGG AYTON GORDON TRUSTEE LIMITED, ROBYN ETHEL FRONTIN MATHEWS, LANCE IAN LISTER, LINDA LOUISE LISTER/EDDIE AND THE WILSON HOME TRUST Respondents

Hearing:	24 April 2015
Appearances:	Applicant in person C Hallowes for The Wilson Home Trust
Judgment:	28 April 2015

JUDGMENT OF ASHER J (Application for leave to appeal)

This judgment was delivered by me on Tuesday, 28 April 2015 at 1pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Schnauer & Co, Auckland.

Copy to: Applicant

LISTER v PEGG AYTON GORDON TRUSTEE LTD [2015] NZHC 839 [28 April 2015]

Introduction

[1]      The applicant Debra Lister seeks leave to appeal my decision of 20 October

2014 to the Court of Appeal.1   Her application is opposed by one of the respondents, the Wilson Home Trust.

[2]      The  proceedings  concern  the  will  of  Iris  Lorna  Lyons,  Ms Lister’s  aunt. Ms Lister claimed she had an interest in an apartment owned by Ms Lyons because her father was given a life interest.  Both I and the Associate Judge2 considered that Ms Lister’s claim was misconceived and had no chance of success.  Ms Lister raised various grounds, none of which had merit.

[3]      Ms Lister’s application for leave to appeal appears not to have been properly recorded as filed through errors in the court.  With the consent of the Wilson Home Trust and for the avoidance of doubt I extend the date for filing the application for leave to appeal to today, and record that I treat the application for leave as having been filed within time.

[4]      Ms Lister asked for a hearing so she could give oral submissions in support of her application for leave to appeal.  She attended that hearing by video link from the New Plymouth High Court.

[5]      I now turn to the question of whether leave should be granted.

Should leave be granted?

[6]      The power to appeal is in s 26P(1AA) of the Judicature Act 1908.   The principles  to  be  applied  on  an  application  for  leave  are  those  applied  to  an application for a second appeal under s 67 of the Judicature Act.3    The principles

have been clearly set out in Snee v Snee4 and Waller v Hider.5   The appeal must raise

some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the

1      Lister v Pegg Ayton Gordon Trustee Ltd [2014] NZHC 2553.

2      Lister v Pegg Ayton Gordon Trustee Ltd [2014] NZHC 1956.

3      Gregory v Gollan HC Auckland CIV-2005-404-3485, 4 July 2007 at [6].

4      Snee v Snee [2000] NZFLR 120, (1999) 13 PRNZ 609 (CA).

5      Waller v Hider [1998] 1 NZLR 412 (CA).

cost and delay of the further appeal.  The scarce time and resources of the Court of Appeal  are  not  to  be  wasted,  and  expenses  for  other  parties  incurred  “without realistic hope or benefit”.6

[7]      Ms  Lister  in  support  of  the  appeal  points  to  her  difficult  financial circumstances, and the  fact that she needs the assets of her aunt’s  estate.   Her proceedings appear to turn on a misunderstanding on her part as to the nature of her father’s interest in the will of Ms Lyons.  Her father had a life interest only, and the fact that she was and is a beneficiary of her father’s estate, gave her no rights in respect of Ms Lyon’s estate.   Her submissions ignore this reality.   In her oral submissions to me in support of the appeal she has reiterated that she is the owner of the apartment and “the Court does not have the power to take it off her”.  She also mentioned that she had the power to terminate the life interest.  She mentions that her financial circumstances are such that she must get assistance from her aunt’s estate.

[8]      Mr Hallowes observed in his submissions to oppose the granting of leave that Ms Lister’s grounds in support of her claims change regularly, and I agree with that assessment.   Ms Lister has not shown that there is any question of law or fact capable of bona fide or serious argument.  She focuses on her needs and perceptions rather than the reality of the law and facts.   Her appeal has no realistic hope of success.

Result

[9]      The application for leave to appeal is declined.

[10]     There will be no order as to costs as Mr Hallowes does not seek costs for the

Wilson Home Trust.

……………………………..

Asher J

6      At 413.