Paewai v Paewai-Kohe - [2015] NZHC 1007

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-2402 [2015] NZHC 1007

BETWEEN
API TERINA PAEWAI

First Applicant

AND

HUIRANGI PAEWAI SMITH Second Applicant

AND

ENA PAEWAI Third Applicant

AND

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

Fourth Applicant

AND

MANAHI MONTROSE PAEWAI Fifth Applicant

AND

NOEL MEHA PAEWAI Sixth Applicant

AND

ALMA RUTH PAEWAI-KOHE First Respondent

AND

ORA GOING-RICHARDSON AND DUNCAN RICHARDSON

Second Respondent

Hearing: On the papers

Judgment:

13 May 2015

JUDGMENT OF THOMAS J

This judgment was delivered by me on 2015 at pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

PAEWAI & ORS v PAEWAI-KOHE & ORS [2015] NZHC 1007 [13 May 2015]

Introduction

[1] The applicants seek leave to appeal to the Court of Appeal against a decision I gave in the High Court at Auckland on 9 December 2014.1 That decision was an appeal from the Family Court dated 15 August 2014 concerning the will of the mother of the applicants and respondents.2

[2] The application for leave is made under s 15(3) of the Family Protection Act

1955 and s 67 of the Judicature Act 1908. The test to apply is well settled. The appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal.3 The Court of Appeal in Waller v Hider stated the approach to take in the following terms:4

Upon a second appeal this Court is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a Court.

When the disputed matter is entirely or largely a question of fact the task of the applicant under s 67 is harder. An issue of fact in a matter falling within the jurisdiction of an inferior Court will seldom be of public importance. It is better that we make no attempt to define the circumstances in which a factual contest can be taken to have private importance but obviously it may do so if the amount at stake is very substantial or the decision reflects seriously on the character or conduct of the would-be appellant or, as in Cuff, the judgment below has special consequences (for example, bankruptcy) for the losing party. Even then, however, leave cannot be anticipated if the applicant is seeking to disturb concurrent findings of fact in the lower Courts.

[3] The application for leave to appeal was filed in time. Submissions have been

received. With the parties’ consent this matter falls to be determined on…

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] NZHC 1007
Decision Date: 13 May 2015

CaseChat Overview and Summary

The applicants in Paewai v Paewai-Kohe sought leave to appeal a decision of the High Court regarding the will of their mother, Hineapa Paewai. The applicants, who included both children and grandchildren of Mrs Paewai, argued that the will did not provide proper maintenance and support for them. The High Court had found that the will did not adequately provide for the applicants' maintenance and support and had ordered that the estate be divided equally among them and the respondents. The respondents, including Alma Ruth Paewai-Kohe, Mrs Paewai's daughter and the primary beneficiary under the will, appealed to the High Court. The appeal was allowed, and the applicants now sought leave to appeal to the Court of Appeal. The legal issues before the court were whether the High Court had erred in fact or law in its assessment of the will and whether the applicants had shown that the appeal raised a question of law or fact of sufficient importance to warrant further litigation. The court considered each of the applicants' allegations of error of fact and law, finding that there was no error of fact and that the High Court had not erred in law. The court dismissed the application for leave to appeal, finding that the appeal did not raise a question of law or fact of sufficient importance to warrant further litigation. The court held that the High Court had properly balanced the moral claims of the applicants against the wishes of the testatrix and had made a conservative adjustment to the will to repair the breach of moral duty. The applicants had not shown that the appeal raised a question of law or fact of sufficient importance to warrant further litigation.

Orders