Paewai v Paewai-Kohe - [2015] NZCA 437

IN THE COURT OF APPEAL OF NEW ZEALAND

CA331/2015
[2015] NZCA 437

BETWEEN

API TERINA PAEWAI
First Applicant

HUIARANGI PAEWAI SMITH
Second Applicant

ENA PAEWAI
Third Applicant

KAREEVE MOANA WITEHIRA, KAMILLA MARIANA WITEHIRA AND KAYLA IVY EMMA WITEHIRA AS SUCCESSORS TO KARA IVY PAEWAI WITEHIRA (DECEASED)
Fourth Applicants

MANAHI MONTROSE PAEWAI
Fifth Applicant

NOEL MEHA PAEWAI
Sixth Applicant

AND

ALMA RUTH PAEWAI-KOHE
First Respondent

ORA GOING-RICHARDSON AND DUNCAN RICHARDSON
Second Respondents

Hearing:	7 September 2015
Court:	Harrison, French and Cooper JJ
Counsel:	T Molloy for Applicants B P Molloy and H G Holmes for First Respondents No appearance for Second Respondents
Judgment:	11 September 2015 at 2.30 pm

JUDGMENT OF THE COURT

AThe application for leave to appeal is dismissed.
BThe respondents are entitled to costs calculated for a standard application for leave to appeal on a band A basis with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

The applicants, all of them children or grandchildren of Hineapa Paewai (deceased), seek leave to appeal to this Court under s 67(2) of the Judicature Act 1908 and s 15(3) of the Family Protection Act 1955 (the Act) against a judgment of Thomas J.[1]
[1]Paewai-Kohe v Paewai [2014] NZHC 3137 [High Court judgment].
Thomas J had allowed an appeal against a Family Court decision granting the respondents’ substantive application under s 4 of the Act.[2] She subsequently refused an application for leave to appeal to this Court.[3]
[2]Paewai v Going-Richardson [2014] NZFC 6250 [Family Court judgment].
[3]Paewai v Paewai-Kohe [2015] NZHC 1007.
Api Paewai, Huiarangi Paewai Smith, Ena Paewai, Manahi Paewai and Noel Paewai are five of the deceased’s children. Nitama and Kara Witehira were also children of the deceased, and are themselves now deceased. The fourth applicants, Kareeve, Kamilla and Kayla are the children of Kara Witehira, and so they are the deceased’s grandchildren. Alma Paewai-Kohe was the eighth of the deceased’s children and the second respondents are the executors of Mrs Paewai’s will.
Mrs Paewai died on 29 October 2009. She made her last will on 4 July 2008, when she was 82 years old. Under the will, her estate was to be divided as follows:[4]
[4]High Court judgment, above n 1, at [9].
(a)The family home at 7 Hillside Crescent, Mount Eden, Auckland, was left to Alma together with one half of the land at the address on which the dwelling was erected.
(b)Following subdivision, the other half of the land was to be sold.
(c)The proceeds of sale – net of costs of subdivision and sale – were to be divided between Ena (Auckland), Kara (Manurewa), Noel (Auckland), Huiarangi (Gold Coast), Api (Auckland) and Manahi (New South Wales) in the following proportions:
(i)Ena and Manahi were to receive 10% each;
(ii)Noel, Huiarangi and Api were to receive 20% each; and
(iii)Kara was to receive 20% on trust for her maintenance and welfare during her lifetime and then the balance to her three children: Kareeve, Kayla and Kamillia.
(d)Alma was to…

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: [2015] NZCA 437
Decision Date: 11 September 2015 at 2.30 pm

CaseChat Overview and Summary

The case of Paewai v Paewai-Kohe involved an appeal against a High Court decision that had itself overturned a Family Court ruling concerning the estate of Hineapa Paewai, who had passed away in 2009. The applicants, who were the children and grandchildren of Hineapa, sought leave to appeal against the High Court judgment that had modified the terms of Hineapa's will. The High Court had upheld the Family Court's original finding that Hineapa had breached her moral duty to her children by unequally distributing her estate, but had disagreed with the Family Court's approach to rectifying that breach. The applicants contended that the High Court had erred in law, failed to consider material mistakes of fact, and had made an incorrect finding regarding appropriate provision for them.

The primary legal issues before the Court of Appeal were whether the applicants had identified questions of law or fact that were of sufficient importance to warrant a second appeal, and whether the High Court had properly applied the law in reaching its conclusions. The Court of Appeal had to assess whether the High Court's decision involved a question of law or fact that was capable of serious argument, and whether it was in the public or private interest to allow a further appeal. The applicants had to demonstrate that the High Court's decision was in error and that the proposed appeal would not merely be a reiteration of arguments already considered and ruled upon by the Family and High Courts.

The Court of Appeal found that the High Court had not erred in law by not adopting the principle of equal division as a starting point. It was accepted that the Family Court had erred in presuming equal sharing, but the High Court's reasoning in evaluating the relevant issues was based on relevant decisions of the Court and was not in error. The Court of Appeal found that the High Court had properly considered the relevant factors justifying special provision for one of the beneficiaries, Alma Paewai-Kohe. The Court also concluded that the High Court had not failed to consider mistakes of fact and that its findings on appropriate provision were not plainly wrong. The Court of Appeal determined that the applicants had not identified any questions of law or fact that would justify a second appeal.

The Court of Appeal dismissed the application for leave to appeal and ordered that the respondents were entitled to costs calculated for a standard application for leave to appeal on a band A basis with usual disbursements. The Court found that the applicants had not demonstrated that the High Court's decision was in error to a degree that would justify a second appeal. The Court concluded that the High Court had properly applied the law and that the proposed appeal would not involve any new or significant legal issues.

Orders