Relph v Public Trust - [2010] NZCA 432

IN THE COURT OF APPEAL OF NEW ZEALAND
CA284/2009
[2010] NZCA 432
BETWEENDYVEKE VIGDIS ELIZABET RELPH

Applicant

ANDTHE PUBLIC TRUST

First Respondent
ANDANDREW MARK RELPH, PRISCILLA MAY BARKHUIZEN AND ROSEMARY ANNE NIEMACK

Second Respondents

Hearing:15 September 2010

Court:Glazebrook, Hammond and Ellen France JJ
Counsel:H A Cull QC for Applicant

R J B Fowler for Second Respondents

Judgment:22 September 2010 at 2.30 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted on the conditions set out in [13] of the reasons of the Court.
B The second respondents must pay the applicant costs for a standard application on a band A basis and usual disbursements.

REASONS OF THE COURT
(Given by Ellen France J)
Introduction
[1]        This is an application under r 29A of the Court of Appeal (Civil) Rules 2005 for an extension of time to appeal a decision of Heath J.[1] The applicant, Mrs Relph, wants to appeal Heath J’s order determining the respective shares of Mrs Relph and her late husband’s children in Mr Relph’s estate.
Background
[1]      Public Trust v Relph [2009] 2 NZLR 819 (HC).
[2]        Mr Relph died in 2007. He was survived by Mrs Relph, his second wife with whom he had lived for about 40 years initially in South Africa and then in New Zealand, and by four adult children of his first marriage.
[3]        At the time of Mr Relph’s death, almost all of his assets (worth approximately $1.6 million) were held jointly with Mrs Relph. Those assets, which included art work and other non-cash assets, passed to Mrs Relph by survivorship. Mr Relph’s estate was insufficient to pay particular legacies in a will written in 2005. Mr Relph also had assets in Switzerland and South Africa. The South African assets appeared to be of negligible worth but the Swiss assets are more substantial.
[4]        Three of Mr Relph’s children (Rosemary, aged 56 when the matter was before Heath J in 2008, Andrew, 54 and Priscilla, 47) claimed against his estate under the Family Protection Act 1955. The fourth child was estranged from Mr Relph and has not taken any part in the proceedings. Under a separate testamentary document, Andrew and Priscilla each received AUD$100,000 plus Kruger rands worth around $30,000 from the Swiss assets.
[5]        In order for there to be assets in Mr Relph’s estate to pay any family protection award to the children the Public Trust, as the personal representative of Mr Relph, sought to bring proceedings for a division of relationship property.
[6]        Heath J granted leave under s 88 of the Property (Relationships) Act 1976 to the Public Trust to bring proceedings for division of the relationship property. The Judge concluded that Mr and Mrs Relph’s assets should be split 50/50.[2] In terms of the family protection claims, Heath J concluded Mr Relph had breached his moral duty to the children and that some provision was required to remedy that breach. Heath J took the view that the children should…

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 Relph v Public Trust

Details

AGLC: Relph v Public Trust [2010] NZCA 432
Case: [2010] NZCA 432
Decision Date: 22 September 2010

CaseChat Overview and Summary

In Relph v Public Trust, the Court of Appeal of New Zealand considered an application by Mrs Relph to extend the time for appealing a decision made by Heath J regarding the distribution of her late husband's estate. The appeal was against the decision determining the shares of Mrs Relph and her late husband's children in Mr Relph's estate. The key issue before the Court was whether to grant an extension of time for Mrs Relph to appeal Heath J’s decision.

The Court examined whether an extension of time was necessary and whether the reasons for the delay, the length of the delay, the conduct of the parties, and the extent of any prejudice caused by the delay met the overall interests of justice. Mrs Relph provided an affidavit explaining the reasons for the delay, which included a lack of clarity about the impact of the initial decision pending the valuation of various assets. The Court found that Mrs Relph acted promptly once the position became clear and that the second respondents were not prejudiced by the delay. The Court also noted that the appeal was not so hopeless that an extension should be declined.

Given the circumstances, the Court of Appeal decided to grant an extension of time for Mrs Relph to appeal Heath J’s decision. The extension was granted on the conditions that Mrs Relph file an amended notice of appeal, pay the filing fee, deal with security for costs, and file a case on appeal by 29 October 2010. Additionally, Mrs Relph was awarded costs for the standard application on a band A basis and usual disbursements.

Orders