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.

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REASONS OF THE COURT

(Given by Collins J)

Introduction

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.
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.
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].

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

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.

Continue reading Parkins v Parkins

Details

AGLC: Parkins v Parkins [2023] NZCA 41
Case: [2023] NZCA 41
Decision Date: 7 March 2023 at 9.30 am

CaseChat Overview and Summary

This case involves an ongoing dispute between three siblings, Steven, Grant, and Reece Parkins, over the ownership of a bach located in Oyster Bay in the Marlborough Sounds. The bach was originally owned jointly by Rosalie and Morris Parkins. Following Rosalie's death, the property was owned solely by Morris. Upon Morris's death, the property passed in equal shares to his three sons. Grant Parkins initiated proceedings in the District Court, claiming a 25% interest in the bach by way of a constructive trust. Grant's claim was based on his contributions to the construction of the bach and his expectation of inheriting a portion of the property. The District Court dismissed Grant's claim, and his subsequent appeal to the High Court was also unsuccessful. Grant subsequently applied for leave to appeal to the Court of Appeal of New Zealand, which was dismissed by Cooke J.

The legal issues the Court of Appeal had to decide in this case were whether Grant's application for leave to bring a second appeal should be granted. The Court of Appeal needed to determine whether the proposed appeal raised a question of law or fact capable of bona fide and serious argument, and whether the case involved an issue of sufficient importance to outweigh the cost and delay of a further appeal. The Court of Appeal also had to consider the ongoing factual dispute between the siblings and the costs associated with a second appeal.

The Court of Appeal, consisting of Collins and Mallon JJ, declined Grant's application for leave to bring a second appeal. The Court agreed with Cooke J 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 had 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. The Court also noted that the bach was valued at around $500,000, and a successful claim by Grant would increase his interest in the estate by $83,333 to $100,000. The Court found that the proposed appeal did not raise a question of law or fact capable of bona fide and serious argument, and the case did not involve an issue of sufficient importance to outweigh the cost and delay of a further appeal.

The Court of Appeal declined the application for leave to bring a second appeal, and the respondents are entitled to costs on a standard application for leave on a band A basis and usual disbursements.

Orders