Marshall v Singleton - [2020] NZCA 105

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA569/2019
[2020] NZCA 105

BETWEEN	PETER JAMES MARSHALL Appellant
AND	ANN ELIZABETH SINGLETON AND SUSAN HAZEL MARSHALL Respondents

Counsel:	Appellant in person P J Stevenson for Respondents
Judgment: (On the papers)	22 April 2020 at 11.00 am

JUDGMENT OF BROWN J
(Review of Deputy Registrar’s decision)

The application to review the Deputy Registrar’s decision declining to dispense with security for costs is declined. Security for costs of $7,060 is payable by 21 May 2020.

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REASONS

Introduction

The testator, who died on 11 January 2018, left a will dated 11 April 2015 (the 2015 will) dividing his estate equally among his four adult children who included the appellant and the respondents. The appellant was named as executor of the 2015 will. In the weeks prior to the testator’s death another document was prepared, but which the testator did not sign, which would have had the effect of altering the distribution of his estate among the children.
The respondents applied in the High Court under s 19(1) of the Administration Act 1969 for orders nisi for the administration of the estate pursuant to the terms of the 2015 will. The appellant applied to have the unsigned document declared a valid will under s 14 of the Wills Act 2007 (the Act).
In a judgment delivered on 1 October 2019 Venning J dismissed the application under s 14 and made orders for the administration of the estate including the appointment of an independent person as executor and trustee.[1] The appellant appeals against both aspects of the judgment.
[1]Singleton v Marshall [2019] NZHC 2486.
By letter dated 30 October 2019 the appellant was advised by the Registry that security for costs had been set at $7,060 and this was required to be satisfied by 27 November 2019. The appellant made an application for dispensation from the requirement to pay security for costs. In a decision dated 5 February 2020 the Deputy Registrar declined the application for dispensation.
The appellant now seeks a review of that decision which is opposed by the respondents.

Relevant principles

The principles applicable to dispensation from security for costs were reviewed by the Supreme Court in Reekie v Attorney-General.[2] The Court stated that the Registrar should dispense with security if of the view that it is right to require the respondent to defend the judgment under challenge without the usual protection as to costs provided by security.[3] The Court explained:
[35] … we consider that the discretion to dispense with security should be exercised so as to:
(a)preserve access to the Court of Appeal by an impecunious appellant in the case of an appeal which a solvent appellant would reasonably wish to prosecute; and
(b)prevent the use of impecuniosity to secure the advantage of being able to prosecute an appeal which would not be sensibly pursued by a solvent litigant.
A reasonable and solvent litigant would not proceed with an appeal which…

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 Marshall v Singleton

Details

AGLC: Marshall v Singleton [2020] NZCA 105
Case: [2020] NZCA 105
Decision Date: 22 April 2020 at 11.00 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of Marshall v Singleton was heard and decided on 22 April 2020. The appellant, Peter James Marshall, appealed against a decision made by Venning J in the High Court concerning the administration of his deceased father's estate. The respondents, Ann Elizabeth Singleton and Susan Hazel Marshall, opposed the appeal. The central issue was the administration of the estate according to the terms of the 2015 will, which divided the estate equally among the testator's four adult children, including the appellant. The appellant sought to have an unsigned document declared a valid will, while the respondents applied for orders nisi for the administration of the estate as per the 2015 will. Venning J dismissed the appellant's application and ordered the appointment of an independent person as executor and trustee.

The Court of Appeal reviewed the Deputy Registrar's decision to deny the appellant's application for dispensation from the requirement to pay security for costs. The principles guiding the dispensation of security for costs were outlined in Reekie v Attorney-General, emphasizing that the discretion should preserve access to the Court of Appeal for an impecunious appellant and prevent the use of impecuniosity to gain an unfair advantage. The Deputy Registrar declined the appellant's application based on the argument that funds were available from the estate to pay the respondents if the appeal was unsuccessful. However, the Deputy Registrar found that the appellant had not provided any evidence of his financial circumstances, and the presence of funds in the estate did not substitute for the actual payment of security.

The Court of Appeal considered the application for review, noting that the appellant's request was informal and lacked evidence of his financial position. The Court rejected the appellant's argument that funds held by the estate could be used to offset the security for costs, as there was no evidence that the funds owed to him by the estate exceeded the security amount. The Court also noted that the appellant had no obligation to continue administering the estate given the appointment of an independent executor and trustee. Therefore, the Court concluded that the appellant had not demonstrated a valid reason for dispensing with the security for costs requirement. The application to review the Deputy Registrar’s decision was declined, and the appellant was required to pay security for costs of $7,060 by 21 May 2020.

Orders