Sayes v Sayes - [2012] NZCA 196

IN THE COURT OF APPEAL OF NEW ZEALAND

CA218/2012
[2012] NZCA 196

BETWEEN MICHAEL WENTWORTH SAYES
Applicant

AND GERRARD WENTWORTH SAYES
First Respondent

AND PRUDENCE JANE TAMATEKAPUA
Second Respondent

AND SHELLEY ANN SAYES
Third Respondent

AND JULIE BELLE GREER
Fourth Respondent

AND KENSINGTON SWAN
Fifth Respondent

AND WALTERS WILLIAMS AND CO
Sixth Respondent

AND KENNETH JOHN CROSSON AND JOHN BEVAN
Seventh Respondents

AND NIGEL GREER AND MATTHEW CARSON
Eight Respondents

AND COLIN JAMES WRIGHT
Ninth Respondent

AND SAYES FAMILY TRUSTEE COMPANY LIMITED
Tenth Respondent

Hearing: 8 May 2012

Court: Arnold, Ellen France and White JJ

Counsel: Applicant in person
S H Barter and M J Hickton-Burnett for First Respondent
H M McKee for Third, Fourth and Tenth Respondents

Judgment: 16 May 2012 at 3 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is dismissed.
BThe application for leave to adduce evidence of the deed dated 24 October 2008 in support of the proposed appeal is dismissed.
CThe application for waiver of privilege is dismissed.
DThe applicant must pay the first, third, fourth and tenth respondents costs for a standard application on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

This is an application under r 29A of the Court of Appeal (Civil) Rules 2005 (the Rules) for an extension of time to appeal the decision of Lang J relating to the distribution of assets of an estate.[1] In addition, the applicant seeks leave under r 45 of the Rules to adduce further evidence in support of the proposed appeal.

Background

[1] Sayes v Tamatekapua HC Auckland CIV-2007-404-516, 2 March 2011.

In February 2007, Gerrard Sayes brought proceedings in the High Court relating to the distribution of assets acquired during their lifetimes by his parents, Beau and Peggy Sayes. Gerrard Sayes is the applicant’s brother. Shelley Sayes, the third respondent, and Julie Greer, the fourth respondent, are the siblings of Gerrard and the applicant. All three of Gerrard’s siblings were parties to the proceedings.
At the time of their deaths, the assets of Beau and Peggy Sayes were owned by different entities. Those entities included various trusts. The then trustees of the trusts, Prudence Tamatekapua (the second respondent), Shelley Sayes, Julie Greer, and the Sayes Family Trustee Company (the tenth respondent), were joined as defendants to the proceedings in their capacity as trustees.
In June 2008, the applicant filed a counterclaim against Gerrard Sayes and cross-claims against some of the other defendants.
Attempts were made to resolve matters at a judicial settlement conference in June 2008. All parties to the proceedings, apart from the applicant, entered into a deed of settlement dated 27 June 2008 (the June Deed). The settlement meant the only outstanding issues for the trial set down for 10 November 2008 were the applicant’s counterclaim and various cross-claims.
On 24 October 2008, four parties[2] who faced the counterclaim or cross-claims entered into a deed setting out how they would apportion liability if…

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 Sayes v Sayes

Details

AGLC: Sayes v Sayes [2012] NZCA 196
Case: [2012] NZCA 196
Decision Date: 16 May 2012

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application by Michael Wentworth Sayes against multiple respondents regarding the distribution of assets from the estate of his late parents, Beau and Peggy Sayes. Michael sought an extension of time to appeal a decision by Lang J, as well as leave to adduce new evidence in support of his appeal, and a waiver of privilege to call his former solicitor as a witness. The appeal centered on the interpretation of a settlement deed and the distribution of an additional payment of $417,000.

The legal issues involved determining whether the new evidence—a deed from October 2008—was fresh, credible, and cogent enough to warrant an extension of time for the appeal. The court also had to consider the adequacy of the applicant's explanation for the significant delay in filing the appeal and the potential prejudice to the respondents if the appeal were to proceed. Additionally, the court needed to decide whether the applicant had waived legal privilege by disclosing communications with his former solicitor.

The Court of Appeal found that the October Deed was not fresh evidence as it could have been produced during the original proceedings. The court concluded that the applicant's explanation for the delay in filing the appeal was inadequate and inconsistent. Moreover, the proposed appeal lacked merit because it relied on the October Deed. The court found that expanding the scope of the appeal to include additional grounds, as suggested by the applicant, would prejudice all parties involved. Consequently, the court dismissed the application for an extension of time, the application to adduce new evidence, and the application for waiver of privilege. The applicant was ordered to pay costs to the specified respondents.

In summary, the Court of Appeal denied the applications made by Michael Wentworth Sayes, finding insufficient justification for extending the time limit for the appeal, deeming the proposed new evidence inadmissible, and rejecting the waiver of privilege. The court emphasized the importance of timely and credible submissions in legal proceedings.

Orders