McConkey v Clarke - [2019] NZHC 2047

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV 2018-454-101

[2019] NZHC 2047

BETWEEN
GEMMA LYNETTE MCCONKEY

Applicant

AND

JODY DAWN CLARKE AND

SHARON MAY CLARKE as Trustees of the Estate of NOEL FRANCIS CLARKE

Respondents

Hearing: 16 August 2019

Counsel:

Applicant in Person

J A Signal for Respondents

Judgment:

20 August 2019

JUDGMENT OF ELLIS J

[1] On 30 April 2019, I dismissed Ms McConkey’s appeal against a Family Court decision in which Judge David Smith had struck out proceedings she had attempted to bring against the estate of Noel Clarke under pt 8 of the Property (Relationships) Act 1976 (the PRA).1 In essence I agreed with Judge Smith that because Mr Clarke’s estate had been finally distributed she was too late to bring such proceedings and there was no ability to extend the relevant timeframes.2

[2]This judgment needs to be read in conjunction with my earlier judgment.

[3] On 28 May 2019, Ms McConkey applied for leave to bring a further appeal. I heard that application last week.

1 McConkey v Clarke [2019] NZHC 924.
2 I partly allowed Ms McConkey’s costs appeal.

MCCONKEY v CLARKE [2019] NZHC 2047 [20 August 2019]

The applicable legal principles

[4] Section 39B of the PRA provides that the provisions of the Senior Courts Act 2016 (the SCA) apply to appeals against an order or decision of the High Court under the PRA. In turn, s 60(1) of the SCA provides that leave is required to bring a second appeal against a decision of the Family Court.

[5] Section 60(2) of the SCA provides that it is to the High Court that the application for leave to appeal should first be made.

[6]The relevant principles are well known. In order for leave to be granted:3

(a)the intended appeal must raise some question of law or fact capable of bona fide and serious argument; and

(b)the case must involve some public or private interest of sufficient interest that outweighs the cost and delay of the further appeal.

This case

[7] In her application for leave, Ms McConkey focussed on whether Mr Clarke’s estate had been finally distributed. The obvious logic in doing so is that it is the fact of final distribution that gives rise to the absolute time limits that have been found to preclude her claim. I will address that shortly.

[8] Before I do so, however, there is a prior point. As I found in my earlier judgment, Ms McConkey’s claim faces a further problem. Assuming for present purposes that she is Mr Clarke’s “surviving … partner”,4 she has (indisputably) never made a formal election under s 61 of the PRA nor applied for an extension of time to do so. The effect of this is twofold:

3 Waller v Hider [1998] 1 NZLR 412 (CA) at 413.
4 Because the matter proceeded in the Family Court by way of strike out Ms McConkey was given the benefit…

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 [2019] NZHC 2047
Case: [2019] NZHC 2047
Decision Date: 20 August 2019

CaseChat Overview and Summary

Gemma Lynne McConkey has brought a second application for leave to appeal a Family Court decision in which proceedings she attempted to bring against the estate of Noel Francis Clarke were struck out under pt 8 of the Property (Relationships) Act 1976. The respondents to the application are Jody Dawn Clarke and Sharon May Clarke, as Trustees of Noel Clarke's estate. In her earlier appeal, Ms McConkey sought to challenge the Family Court's decision to strike out her claim on the basis that the estate of Noel Clarke had not been finally distributed. The legal issues in this case were whether the intended appeal raised a question of law or fact capable of bona fide and serious argument, and whether the case involved some public or private interest that outweighed the cost and delay of the further appeal. The court found that Ms McConkey had not identified a question of either law or fact that might give rise to a genuine argument that final distribution had not occurred. The court also found that the requisite public or private interest was lacking, and that permitting litigation of this kind to continue ran directly contrary to the object of the strict time limits at issue in this case. The application for leave to appeal was declined, and the respondents were entitled to their costs on a 2B basis.

Orders