McConkey v Clarke - [2020] NZCA 83

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA474/2019
[2020] NZCA 83

BETWEEN	GEMMA LYNETTE MCCONKEY Applicant
AND	JODY DAWN CLARKE SHARON MAY CLARKE Respondents

Court:	Gilbert and Courtney JJ
Counsel:	Applicant in person J A Signal for respondents
Judgment: (On the papers)	2 April 2020 at 9.30 am

JUDGMENT OF THE COURT

AThe application for leave to bring a second appeal is declined.
BThe applicant is to pay costs to the respondents for a standard application on a band A basis and any usual disbursements.

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REASONS OF THE COURT

(Given by Gilbert J)

Gemma McConkey says she was in a de facto relationship with Noel Clarke at the time of his death on 22 August 2014. On that basis, Ms McConkey had the right under s 61(2) of the Property (Relationships) Act 1976 (the Act) to elect to make an application for a division of the relationship property. Such an election must be made by a notice complying with the requirements of s 65 prior to the commencement of proceedings[1] and no later than six months after the grant of administration of the estate.[2] Any proceedings must be filed within 12 months of the grant of administration.[3] Although the Court can grant an extension of time to make the election[4] and to issue proceedings,[5] it cannot do so unless the application for the extension of time is made before the final distribution of the estate.[6] Further, any application for an extension of time does not affect any distribution already made.[7]
[1]Property (Relationships) Act 1976, s 63.
[2]Section 62(1)(b).
[3]Section 90(1)(b).
[4]Section 62(2).
[5]Section 90(2).
[6]Sections 62(4) and 90(4).
[7]Section 74(2).
Administration of Mr Clarke’s estate was granted by the High Court on 12 November 2015. A deed of family arrangement was entered into following a mediation on 14 October 2016 between the named beneficiaries under the will, being Mr Clarke’s three daughters from his first wife and his son with Ms McConkey. In accordance with the terms of this deed, the principal assets of the estate, being two farm properties, were transferred to one of the daughters on the basis that she would pay her sisters and half-brother out. All other assets of the estate were also dealt with in the deed.
Ms McConkey has not at any stage made a compliant election under s 61(2) of the Act. Nor has she made an application for an extension of time. However, she issued proceedings in the Family Court at Palmerston North in November 2017 seeking a division of property under the Act.
Ms McConkey’s proceedings were struck out by the Family Court.[8] Judge David Smith considered that Ms McConkey’s claim was untenable for various reasons including that the estate had been finally distributed prior to the commencement of the proceedings.
[8]McConkey v Clarke [2018] NZFC 6919.
Ms McConkey’s appeal to the High Court was dismissed by Ellis J in a judgment delivered on 30 April 2019.[9] In agreement with Judge Smith,…

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 McConkey v Clarke

Details

AGLC: McConkey v Clarke [2020] NZCA 83
Case: [2020] NZCA 83
Decision Date: 2 April 2020 at 9.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application from Gemma Lynette McConkey for leave to bring a second appeal against Jody Dawn Clarke and Sharon May Clarke. Gemma argued that she was in a de facto relationship with Noel Clarke at the time of his death in 2014 and had the right to elect to make an application for a division of relationship property under the Property (Relationships) Act 1976. Gemma had not made a compliant election or an application for an extension of time to do so, and her proceedings in the Family Court were struck out. The High Court dismissed her appeal, and she now sought leave for a second appeal.

The Court was required to decide whether the proposed appeal raised a question of law or fact capable of serious argument involving some matter of sufficient public or private importance to outweigh the cost and delay of a further appeal. The Court considered that the statutory time limits had not been complied with, and there was no jurisdiction to make the order Gemma sought. The Court found that the proposed appeal had no realistic prospect of success and declined the application for leave to bring a second appeal.

The Court found that the statutory time limits for making an election under the Property (Relationships) Act 1976 and to pursue a claim under the Act had not been complied with, and the estate had been distributed. The Court found that there was no arguable error in the conclusions reached by the Family Court and the High Court that Gemma's claim was out of time and untenable. The Court found that the proposed appeal had no realistic prospect of success and declined the application for leave to bring a second appeal.

The Court ordered that the application for leave to bring a second appeal was declined, and the applicant was to pay costs to the respondents for a standard application on a band A basis and any usual disbursements.

Orders