Paewai-Kohe v Paewai - [2014] NZHC 3137

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-2402 [2014] NZHC 3137

UNDER The Family Protection Act 1955

IN THE MATTER

of an Appeal from a Judgment of the
Family Court

BETWEEN

ALMA RUTH PAEWAI-KOHE Appellant

AND

API TERINA PAEWAI First Respondent

Hearing: 27 November 2014

Appearances:

B P Molloy and H Holmes for the Appellant
T Molloy for the Respondents

Judgment:

9 December 2014

JUDGMENT OF THOMAS J

This judgment was delivered by me on 9 December 2014 at 4.00pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:

Haigh Lyon, Auckland. Spencer Legal, Auckland.

PAEWAI-KOHE v TERINA PAEWAI & ORS [2014] NZHC 3137 [9 December 2014]

ANDKAREEVE MOANA WITEHIRA, KAMILLA MARIANA WITEHIRA and KAYLA IVY EMMA WITEHIRA as successors to KARA IVY PAEWAI WITEHIRA (deceased)
Fourth Respondent

ANDMANAHI MONTROSE PAEWAI Fifth Respondent

ANDNOEL MEHA PAEWAI Sixth Respondent

ANDORA GOING-RICHARDSON and DUNCAN RICHARDSON
Seventh Respondents

Introduction

[1] The appellant, Alma Ruth Paewai-Kohe (Alma) appeals against the decision of the Family Court dated 15 August 2014 concerning the will of her mother, Hineapa Paewai (Mrs Paewai).1 Mrs Paewai is the mother of the first, second, third, fifth and sixth respondents, and the grandmother of the fourth respondents. The seventh respondents are the executors of the will.

[2] In her will Mrs Paewai bequeathed the bulk of her estate to Alma. The Family Court held that, in doing so, Mrs Paewai had not made adequate or proper provision for the first to sixth respondents under the will. Pursuant to s 4 of the Family Protection Act 1955 (the Act) the Court ordered that the estate be divided equally amongst all the children.

[3] Alma appeals on the basis that the Family Court Judge made errors of law and fact and that, even if there may be difficulties in the execution of the estate as provided in the will, its underlying scheme and essence should be respected.

Legal principles

The appellate approach

[4] Decisions under the Act are essentially discretionary. On an appeal against the exercise of discretion, the criteria for a successful appeal are stricter than on a general appeal. The lower court must have:2

(a) made an error of law or principle;

(b) taken into account irrelevant considerations;

(c) failed to take into account relevant considerations; or

1 Paewai v Going-Richardson [2014] NZFC 6250.
2 May v May (1982) 1 NZFLR 165 (CA) at 170; Blackstone v Blackstone [2008] NZCA 312, (2008) 19 PRNZ 40 at [8].

(d) made a plainly wrong decision.

[5] In Little v Angus, Cooke J summarised the principles to apply in Family Protection Act cases.3 At p 127 Cooke J noted that on appeal the Court will not substitute its discretion for that of a Judge at first instance unless there be made out some reasonably plain ground upon which the order should be varied. That approach has been confirmed recently by the Court of Appeal.4

The Act

[6] Section 4(1) of the Act is the governing provision.…

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.

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Details

Case: [2014] NZHC 3137
Decision Date: 9 December 2014

CaseChat Overview and Summary

Alma Ruth Paewai-Kohe appeals against the decision of the Family Court that ordered the estate of her mother, Hineapa Paewai, to be divided equally between all her children. The Family Court held that the will made by Mrs Paewai, which left the bulk of her estate to Alma, did not make adequate provision for her other children. Alma argues that the Family Court made errors of law and fact and that the underlying scheme of the will should be respected. The High Court found that the Family Court erred in law by concluding that Mrs Paewai had breached her moral duty to her children by not treating them equally. The Court also found that, while there had been a breach of moral duty, the Family Court's order was not sufficient to remedy the breach. The appeal was allowed, and the order of the Family Court was set aside. The property is to be sold without delay and the net proceeds of sale divided with 40 per cent to the appellant and with the remainder divided equally amongst the first to sixth respondents. All reasonable costs of counsel are to be met from the estate.

Orders