Parkins v Parkins

[2023] NZCA 41

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA509/2022
 [2023] NZCA 41

BETWEEN	GRANT TREVOR PARKINS Applicant
AND	STEVEN MORRIS PARKINS First Respondent REECE DARREN PARKINS Second Respondent

Court:	Collins and Mallon JJ
Counsel:	A R Armstrong for Applicant G J Praat for Respondents
Judgment: (On the papers)	7 March 2023 at 9.30 am

JUDGMENT OF THE COURT

AThe application for leave to bring a second appeal is declined.

BThe respondents are entitled to costs on a standard application for leave on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

1. The focus of this litigation is a bach at Oyster Bay in the Marlborough Sounds.  The bach was initially owned jointly by Rosalie and Morris Parkins.  Following Rosalie’s death in 1999 the property was owned solely by Morris.  When he died in 2010 his estate, including the bach, passed in equal shares to his three adult sons, Steven, Grant and Reece.

2. Grant commenced proceedings in the District Court claiming a 25 per cent interest in the bach by way of constructive trust.  The claim was based on the contention that Grant made contributions to the construction of the bach that merited him receiving 25 per cent of the bach and then 33 per cent of the remaining estate, including the remaining 75 per cent of the bach, by way of inheritance. 

3. Grant’s claim failed in the District Court.[1]  His appeal was dismissed in the High Court.[2]  Grant’s application for leave to appeal to this Court was dismissed by Cooke J.[3]

Governing principles

[1]Parkins v Parkins [2021] NZDC 11821 [District Court judgment].

[2]Parkins v Parkins [2022] NZHC 606 [First appeal judgment].

[3]Parkins v Parkins [2022] NZHC 2257 [Leave judgment].

1. The jurisdiction for leave to appeal to this Court is set out in s 60(2) of the Senior Courts Act 2016. 

2. The principles governing applications for leave to bring a second appeal to this Court were explained in Waller v Hider.[4]  Those principles continue to apply in respect of applications under s 60(2) of the Senior Courts Act.  This Court explained in Butch Pet Foods Ltd v Mac Motors Ltd:[5]

   [4]       The test for leave to bring a second appeal to this Court is well‑established.  The proposed 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.  On a second appeal this Court is not engaged in the general correction of error.  Its primary function is 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.

The application

[4]Waller v Hider [1998] 1 NZLR 412 (CA) at 413.

[5]Butch Pet Foods Ltd v Mac Motors Ltd [2018] NZCA 276, (2018) 24 PRNZ 500.

1. Grant’s claim is very fact specific.  There continue to be disputes between the three brothers about the nature and extent of:

   (a)Grant’s contribution to the development of the bach;

   (b)Steven and Reece’s contributions to the development of the bach; and

   (c)the benefits given to each of the brothers by Rosalie and Morris.

2. It is accepted that the Courts below correctly identified the requirements for the creation of a constructive trust set out in Blumenthal v Stewart, namely that:[6]

   (a)there are contributions, direct or indirect, to the property in question;

   (b)there is reasonable expectation of an interest in the property founded upon the contributions made to the property; and

   (c)it is reasonable to expect the legal owner of the property to yield an interest in the property.

   [6]Blumenthal v Stewart [2017] NZCA 181, [2017] NZFLR 307 at [12].

3. As Cooke J explained:[7]

   [7]       … Here both the District Court and High Court found that [Grant] did make direct and indirect contributions to the Oyster Bay property.  But both Courts concluded that those contributions did not create an expectation of an interest in the property greater than that of [Grant’s] two brothers, and that it was not unreasonable for the executors of [Morris’] estate to fail to yield interest in the property.

   [7]Leave judgment, above n 3 (footnote omitted).

4. Putting aside the ongoing factual dispute, we agree with Cooke J when he said that Grant’s argument that he should be the beneficiary of a constructive trust because he assisted his father build the bach which all of the family expected to enjoy has little prospect of success, particularly where Grant expected the bach would pass to him and his brothers, in whole or in part, following the death of Morris.

5. It is also significant that, as of 2018, the bach is valued at around $500,000.  Mr Praat, counsel for Steven and Reece, calculates that if Grant’s claim succeeds his interest in the estate will increase by $83,333.  Given there has been no recent valuation of the bach, Mr Armstrong, counsel for Grant, disputes this calculation but accepts that a figure of around $100,000 would be justifiable.  These figures demonstrate the costs of a second appeal weigh heavily against the granting of leave.

6. We are not satisfied the proposed appeal raises a question of law or fact capable of bona fide and serious argument.  Nor are we satisfied that the case involves an issue of sufficient importance to outweigh the cost and delay of a further appeal.

Result

1. The application for leave to bring a second appeal is declined.

2. The respondents are entitled to costs on a standard application for leave on a band A basis and usual disbursements.

Solicitors:
Ross Armstrong Lawyer, Christchurch for Applicant
Knapps Lawyers, Nelson for Respondents