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.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

1. 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).

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.

3. 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. 

4. 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.

5. 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, Ellis J found that Ms McConkey’s claim had no prospect of success because the estate was finally distributed before the commencement of the proceedings.[10] 

   [9]McConkey v Clarke [2019] NZHC 924.

   [10]At [74].

6. Ms McConkey applied to the High Court for leave to bring a second appeal.  That application was dismissed by Ellis J on 20 August 2019.[11]

   [11]McConkey v Clarke [2019] NZHC 2047.

7. Ms McConkey now applies to this Court for leave to bring a second appeal.  She makes wide-ranging complaints, many of which are not relevant for present purposes.  Although not named in the will in any capacity, she says that she was to be the administrator, executor and trustee of the estate but she says she did not realise she needed to apply to the Court to do this.  She says she was not informed when letters of administration were granted to Mr Clarke’s four children (including her son) and she complains that the trustees proceeded to distribute the estate despite knowing of the existence of her claim.  Ms McConkey argues that leave must have been given for her proceedings in the Family Court because her documents were accepted for filing.  She seeks an extension of time to exercise her election and an order “bringing back this estate” which she claims was “taken illegally and fraudulently”.  Ms McConkey claims the deed of family arrangement was invalid for various reasons, including because the estate lawyer, Ms Signal, had a conflict of interest. 

8. Leave for a second appeal may only be granted if the proposed appeal raises a question of law or fact capable of bona fide and serious argument involving some matter of sufficient public or private importance to outweigh the cost and delay of a further appeal.[12]  These criteria are plainly not met here.  In particular, we consider the proposed appeal has no realistic prospect of success.  The statutory time limits are clear and have not been complied with.  Ms McConkey has not made the requisite election under s 61 of the Act.  The time to make this election and to pursue a claim under the Act cannot now be extended, the estate having been distributed.  There is simply no jurisdiction for the Court to make the order Ms McConkey seeks directing that the estate assets be ‘brought back’ so that she can start over and advance her claim under the Act.  Section 74 of the Act makes clear that no application for an extension of time can affect a distribution already made.  We can see no arguable error in the concurrent conclusions reached by the Family Court and the High Court that Ms McConkey’s claim is out of time and untenable.

   [12]Waller v Hider [1998] 1 NZLR 412 (CA) at 413.

9. The application for leave to bring a second appeal must accordingly be declined. 

Result

1. The application for leave to bring a second appeal is declined.

2. The applicant is to pay costs to the respondents for a standard application on a band A basis and any usual disbursements.

Solicitors:
McIntosh & Signal Ltd, Feilding for Respondents