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Parkins v Parkins

Parkins v Parkins

Case [2022] NZHC 2257 6 September 2022

Civil Litigation & Procedure

Equity & Trusts

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IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2021-442-0041

[2022] NZHC 2257

UNDER Section 60 of the Senior Courts Act 2016 and Rule 20.22 of the High Court Rules 2016

IN THE MATTER

of an intended appeal against a decision of the High Court in the Estate of the late Morris Ronald Parkins

BETWEEN

GRANT TREVOR PARKINS

Appellant

AND

STEVEN MORRIS PARKINS AND REECE DARREN PARKINS

Respondents

Hearing: 29 August 2022

Appearances:

R Armstrong for the Appellant G J Praat for the Respondent

Judgment:

6 September 2022

JUDGMENT OF COOKE J

(Declining leave to appeal)

[1] By application dated 28 April 2022 the appellant applies for leave to appeal to the Court of Appeal from the judgment of this Court.1 In that judgment Gendall J dismissed the appellant’s appeal from the District Court where his claim for a constructive trust arising out of contributions he had made to a family property at Oyster Bay in the Marlborough Sounds (the Oyster Bay property) was dismissed.2

1 Parkins v Parkins [2022] NZHC 606.
2 Parkins v Parkins [2021] NZDC 11821.

PARKINS v PARKINS [2022] NZHC 2257 [6 September 2022]

[2] The Oyster Bay property had been owned by the appellant’s parents who died in 1999 and 2010. When the appellant’s father died in 2010, he and his two brothers, who are the respondents, benefitted from their father’s estate in equal shares. The appellant alleged that his significant contributions to the Oyster Bay property entitled him to a greater share in this property by way of a constructive trust. The property was the family batch, representing a little under half of the overall value of the estate.3

[3] In addition, the appellant applies for leave to file further evidence on the proposed appeal in the form of an affidavit from the appellant, although Mr Armstrong accepted that this application was more sensibly dealt with later by the Court of Appeal if leave was granted.

Approach to the grant of leave

[4] Pursuant to s 60 of the Senior Courts Act 2016 leave is required to appeal from a decision of the High Court from an appeal in the District Court. Such applications for leave are dealt with under r 20.22 of the High Court Rules 2016. In Waller v Hider the Court of Appeal outlined the test for leave in the following way:4
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 …

[5] In 2008 the Court of Appeal observed that it may become necessary to restrict the test further to stop a steady increase in the number of second appeals.5 There has been no explicit recalibration of the test following these suggestions. The existing test nevertheless encompasses the appropriate assessment, giving rise to questions of proportionality. In short, there must be…

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 [2022] NZHC 2257
Case: [2022] NZHC 2257
Decision Date: 6 September 2022

CaseChat Overview and Summary

The High Court of New Zealand was called upon to decide whether the appellant, Grant Trevor Parkins, should be granted leave to appeal against the judgment of Gendall J, who dismissed his appeal from the District Court in relation to a claim for a constructive trust arising from contributions he made to a family property in the Marlborough Sounds. The District Court had dismissed the appellant’s claim for a constructive trust over the property, and the High Court upheld this decision. The appellant sought leave to appeal this decision to the Court of Appeal.

The legal issues the court was required to decide included whether the appellant's contributions to the family property entitled him to a greater share by way of a constructive trust, and whether there were sufficiently compelling reasons to grant leave for a second appeal. The court had to assess the proportionality of the costs and delays of a further appeal against the importance of the legal issues raised.

The court found that the appellant had made substantial contributions to the family property, but these contributions did not create an expectation of an interest in the property greater than that of his brothers. The court concluded that it was not unreasonable for the executors of the father’s estate to fail to yield an interest in the property to the appellant. The family context was significant, as the appellant and his siblings were likely to inherit the property in any event. The court also found that the appellant had effectively inherited a 33 per cent beneficial interest in the property, greater than the 25 per cent interest he claimed entitlement to. The court held that the claim was more about the relative entitlements the brothers inherited rather than a claim of being deprived of a 25 per cent interest in an unconscionable way. The court concluded that the possible point of principle identified and the amount at stake did not warrant the cost and delay of a further appeal.

The court dismissed the application for leave to appeal, finding that the prospects of success of any appeal were low and that the cost and delay of a further appeal outweighed the importance of the legal issues raised. The respondents were awarded costs on a 2B basis, subject to any objections and responses to be filed within a specified timeframe.

This case highlights the importance of the family context in claims for constructive trusts and the need to balance the costs and delays of further appeals against the importance of the legal issues raised. The court's decision underscores the principle that substantial contributions to family property do not necessarily entitle a child to a greater share in the property, especially where the contributions are made in the context of familial expectations of inheritance.

Orders