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Parlane v Hayes

Parlane v Hayes

Case [2015] NZCA 341 30 July 2015

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA356/2014
[2015] NZCA 341

BETWEEN	DOUGLAS FREDERICK PARLANE Appellant
AND	KELLY SUZANNE HAYES AND ANDREW NATHANIEL HAYES IN THEIR CAPACITY AS THE EXECUTORS AND TRUSTEES OF THE ESTATE OF MARLENE RUTH KEEYS Respondent

Hearing:	7 July 2015
Court:	Miller, Lang and Wylie JJ
Counsel:	M B Dodds for Appellant J G Ross for Respondent
Judgment:	30 July 2015 at 11.30 am

JUDGMENT OF THE COURT

A The appeal is allowed. We declare that the Judge was wrong to refuse to read the affidavits of the defence witnesses whom counsel proposed to call at the hearing.
BThe application for leave to adduce fresh evidence is granted.
C Costs in this Court will lie where they fall.
DThe costs award in the High Court is set aside, and costs are to be fixed there with regard to this judgment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

Introduction

Douglas Parlane was a defendant in a civil proceeding. He agreed to a timetable for exchanging evidence but exchanged his late, notwithstanding that most of it had been prepared in affidavit form and sworn before the timetable was agreed. No attempt was made to extend time or excuse the delay.
The plaintiffs, Kelly and Andrew Hayes, objected to the affidavits being filed late and satisfied the trial Judge, Duffy J, that the delay would necessitate an adjournment. The Judge accordingly refused to read the affidavits. That decision left Mr Parlane without evidence and his counsel promptly sought and was given leave to withdraw. The hearing then proceeded as a formal proof, with a separate substantive judgment being delivered for the plaintiffs.[1]
[1]Hayes v Parlane [2014] NZHC 2416 [Substantive judgment].
The judgment under appeal is the decision of Duffy J, delivered orally on 3 June 2014[2] with reasons provided later,[3] to refuse to read the affidavits. The substantive judgment, which was delivered on 3 October 2014, is not the subject of an appeal, but that appears to have been an oversight on the part of Mr Parlane’s advisors.[4]
[2]Hayes v Parlane HC Whangarei CIV-2013-488-269, 3 June 2014.
[3]Hayes v Parlane [2014] NZHC 1306 [Interlocutory reasons judgment].
[4]It is not in dispute that although the judgment under appeal was interlocutory in nature, and was followed by a substantive decision, it is properly the subject of an appeal brought under s 66 of the Judicature Act 1908: Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 309.
On appeal, Mr Parlane sought to file an affidavit of his trial counsel, Mr Swan, to explain and excuse the delay in exchanging the defence affidavits. The respondents filed no evidence in response and appeared by their trial counsel, Mr Ross, who resisted admission of Mr Swan’s affidavit. There was no
cross-examination.

The narrative

The proceeding concerns a claim to the estate of Marlene Keeys, who died of illness, aged 66, on 18 November 2012. Mr Parlane had been in a relationship with Ms Keeys…

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 Parlane v Hayes

Details

AGLC: Parlane v Hayes [2015] NZCA 341
Case: [2015] NZCA 341
Decision Date: 30 July 2015 at 11.30 am

CaseChat Overview and Summary

The appeal in Parlane v Hayes involved a claim by Douglas Parlane against the estate of Marlene Ruth Keeys, deceased, who had left him a legacy in her will. Parlane sought to establish a de facto relationship with Keeys, entitling him to a larger share of the estate. The executors of Keeys' estate, Kelly and Andrew Hayes, opposed Parlane's claim, leading to a proceeding in the High Court. The primary issue on appeal was whether the trial Judge, Duffy J, was correct in refusing to read the defence affidavits filed by Parlane, which had been submitted late. Parlane argued that the Judge exercised her discretion incorrectly, particularly given the executors' own delays in providing their evidence.

The Court of Appeal allowed the appeal, finding that the Judge had indeed erred in her discretion. The Court held that Duffy J gave insufficient weight to the procedural history of the case, including the parties' ability to negotiate their own timetable and the lack of prior defaults by Parlane. The Court also disagreed with the Judge's assessment that the interests of justice favoured excluding the late affidavits. Instead, the Court found that the injustice of denying Parlane a hearing on the merits outweighed the consequences of an adjournment. The Court acknowledged that while case management is crucial, denying a party their day in court should only be a last resort.

The appeal's outcome has implications for the substantive judgment delivered in the High Court, which found in favour of the executors. The Court of Appeal encouraged both parties to negotiate a resolution to avoid further delay and expense. Regarding costs, the majority of the panel decided that costs should lie where they fall, while one judge opined that the executors should bear the costs in the Court of Appeal due to the well-founded nature of Parlane's appeal. The costs awarded in the High Court were set aside and will be re-assessed with regard to this judgment.

Orders