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 of the doubt on such factual matters, which otherwise would undoubtedly have been contested.

(a)by virtue of s 63, she is barred from bringing a claim under pt 8 at all; and (similarly)

(b)by virtue of s 68, she is deemed to have elected Option B and to have foregone making such a claim.

[9]    Neither of those matters are directly affected by the question of final distribution.

[10]   But even if Ms McConkey now sought to apply for an extension of time for electing  Option  A  (which  she  has  not),  I   remain   wholly   unpersuaded   that Ms McConkey has identified a question of either law or fact that might give rise to a genuine argument that final distribution has not occurred.

[11]   In essence, Ms McConkey submitted that the Deed of Family Arrangement,5 which settled claims between the beneficiaries of Mr Clarke’s will (his four children), and the effect of which was a final distribution of his estate, was invalid.6 She said (inter alia) that it was, in various ways, wrongly executed or witnessed and that it was not “delivered”. She also said that distribution did not in fact take place in accordance with the Deed.

[12]   I dealt with arguments of this kind, at least in passing, at [64] of my substantive judgment. Even if her attacks on the Deed had arguable substance (which in my view they do not) Ms McConkey was not a party to the Deed and I am unable to see how she has standing to challenge it.7 Nor are all the actual parties to the Deed (who include Ms McConkey’s son, John) named as respondents in these proceedings. Moreover, the real estate that made up the bulk of Mr Clarke’s estate (and which was the subject of arrangements under the Deed) has now indisputably been transferred to Jody Clarke.  Even if this did not signal that a final distribution has, indeed, been made  Ms McConkey faces an indefeasibility problem, as well.

5      Referred to at [29] – [33] of my judgment.

6      Although at footnote 31 of my substantive judgment I observed that final distribution might well have occurred earlier.

7      As I noted in my judgment, there could be no issue with the Deed under s 73 of the PRA because Ms McConkey did not have a “pending” claim.

[13]   Although the absence of any genuinely arguable question of law or fact suffices to dispose of the present application, I note that the requisite public or private interest is also lacking. Absent any question of law or fact that might have wider ramifications, there can be no public interest in what is essentially a family dispute. And while I accept that, from Ms McConkey’s subjective viewpoint, her private interest in the matter is strong, that must be weighed against the interests of the respondents. In particular, Ms McConkey has, thus far, failed to pay any of the costs awards made against her. She advises (and I accept) that this is because she is unable to do so. But the short point is that the respondents should not be required to incur further legal costs that they are never likely to recover and they are entitled to finality. Indeed, permitting litigation of this kind to continue runs directly contrary to the object of the strict time limits at issue in this case.

[14]   As I have said, due to her failure to make an election, Ms McConkey had no standing to bring her claim in the first place. Mr Clarke’s estate was unequivocally finally distributed in 2016. Although Ms McConkey cannot see it, it is in the interests of everyone that the matter be brought to a close.

[15]   The application for leave to appeal is declined, accordingly. The respondents are entitled to their costs, on a 2B basis.

Rebecca Ellis J