Robert Erwood v Janet Maxted - [2007] NZSC 38

IN THE SUPREME COURT OF NEW ZEALAND
SC 27/2007
[2007] NZSC 38

BETWEENROBERT ERWOOD

Applicant

ANDJANET MAXTED AND ORS

Respondents

Court:Blanchard, McGrath and Anderson JJ
Counsel:Applicant in person

G M Downing for Respondents

Judgment:31 May 2007

JUDGMENT OF THE COURT

AThe application for leave to appeal is dismissed with costs of $2,500 for the respondents.
BThe stay of execution ordered by the High Court on 16 August 2006 and extended by Blanchard J on 10 May 2007 is revoked.

REASONS
[1]       The applicant sought to enforce a trust which he alleged was created in his favour by his late mother, Lucy Erwood, and under which he claimed a right of occupation of a house in Nelson. His mother had sold the house to the applicant’s brother Edward who is now deceased. Under Edward’s will the applicant’s sister Janet and Mr A J J Glasgow of Nelson, solicitor, were appointed the trustees. The will devised the house to Janet.
[2]       Wild J tried the case in the High Court at Nelson, giving judgment on 26 May 2006.[1] He had previously refused to grant an adjournment to the applicant and the trial took place in the applicant’s absence.
[1]           CIV 2003-442-363.
[3]       Wild J found that the document said to create the trust, a letter from Mrs Erwood to her solicitor in 1979, did no more than express a wish that the applicant and his late brother Fredrick should be able to occupy the house. It did not create a trust. The Judge also found that, even if there might have been a trust, the letter was held by the solicitor in escrow, so that any trust did not come into force. Accordingly Mrs Erwood was free to depart from it and had done so when she sold the property to Edward. The Judge further found that when Edward took title under the Land Transfer Act 1952 he had no knowledge of any purported trust. For these reasons the applicant’s claim failed.
[4]       The applicant appealed to the Court of Appeal against this decision on 22 June 2006. A stay of execution of the High Court judgment was granted on 16 August 2006 by the High Court, and since the decision of the Court of Appeal to which reference will be made shortly, the stay has been extended by Blanchard J for this Court until its determination whether or not to grant leave for the proposed appeal to this Court.
[5]       The applicant failed to comply with r 43 of the Court of Appeal (Civil) Rules 2005 in that he failed within six months after bringing his appeal to apply for the allocation of a hearing date and file the Case on Appeal. He did however make application to the Court of Appeal for an extension of time, doing so within three months after the expiry of the six-month period. The Court of Appeal is able to grant an extension on an application made no later than three months after that expiry.

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.

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Details

Case: [2007] NZSC 38
Decision Date: 31 May 2007

CaseChat Overview and Summary

The case of Robert Erwood v Janet Maxted involves a dispute over the validity of a trust created by the applicant's late mother, Lucy Erwood, in his favour. The trust was meant to entitle the applicant to occupy a house in Nelson. The house was sold by Mrs Erwood to the applicant’s brother, Edward, who is now deceased. The applicant’s sister, Janet, and Mr AJ J Glasgow were appointed trustees under Edward’s will, with the house devised to Janet. The applicant sought to enforce the trust but his claim was dismissed by Wild J in the High Court. The applicant subsequently appealed to the Court of Appeal, but failed to comply with procedural rules, leading to the dismissal of his application for an extension of time. This judgment concerns the applicant’s application for leave to appeal to the Supreme Court of New Zealand.

The primary legal issue in this case is whether the Supreme Court should grant leave to appeal against the Court of Appeal's decision dismissing the applicant's appeal due to non-compliance with procedural rules. Specifically, the Court needed to determine if the interests of justice required the granting of leave. The Court of Appeal had found that the applicant’s failure to comply with procedural timelines constituted disentitling behaviour, and thus, his appeal should be dismissed. The applicant argued that the interests of justice required the granting of leave, but the Supreme Court found otherwise.

The Supreme Court held that the Court of Appeal had the discretion to refuse the extension of time and that it was not an exceptional case warranting special leave to appeal under s 7(b) of the Supreme Court Act 2003. The Court found that the applicant's appeal did not involve a matter of general or public importance, nor did it indicate a substantial miscarriage of justice. The Supreme Court further noted that the applicant’s behaviour in causing delays was disentitling and prejudiced the respondents. The Court of Appeal had acted within its discretion, and thus, the Supreme Court was not satisfied that the interests of justice required granting leave to appeal. Consequently, the application for leave to appeal was dismissed.

The Supreme Court revoked the stay of execution granted by the High Court and extended by Blanchard J, as the application for leave to appeal was dismissed. This means that the original judgment of the High Court stands, and the applicant’s claim to the trust and right of occupation of the house in Nelson is not recognised. The Court ordered the applicant to pay $2,500 in costs to the respondents.

Orders