Scott v Scott - [2009] NZCA 417

IN THE COURT OF APPEAL OF NEW ZEALAND
CA634/2008
[2009] NZCA 417
BETWEENLEWTYN MICHAEL SCOTT

Appellant

ANDROSEMARY ANN SCOTT

First Respondent
ANDLEE MCNEILLY

Second Respondent
ANDALISON SCOTT

Third Respondent
ANDCARA ANN CLARE

Fourth Respondent

Hearing:16 September 2009

Court:Hammond, Harrison and Miller JJ
Counsel:K G Davenport and R A Edwards for Appellant

R E Harrison QC for Respondents

Judgment:18 September 2009 at 4 pm

JUDGMENT OF THE COURT

A The application is dismissed.
BThe appellant must pay the respondents costs as for an application for leave to appeal on a Band B basis and usual disbursements. (There is no specific rule on stay applications; this is the nearest analogy.)

REASONS OF THE COURT
(Given by Hammond J)
Introduction
[1] We have before us an application for a stay of execution or interim relief in relation to orders made in a judgment of this Court dated 19 June 2009 ([2009] NZCA 255) (which we will call the first judgment), and two judgments of the High Court dated 15 September 2008 and 5 August 2009 (which we will collectively call the second judgment).
[2]       Leave to appeal to the Supreme Court against the first judgment was filed on 24 July 2009. An oral hearing is to be allocated for that application but a date has not yet been fixed. We were told it is likely to be heard later this month, or early in October 2009.
[3]       As to the second judgment, an appeal has been filed in this Court. Ironically, given the history of this litigation, it was one day late but Mr Harrison QC will consent to an extension of time for that appeal. Security for costs has not yet been paid, and again given the history of the litigation, preparation of a case on appeal is likely to have its own difficulties.
[4]       The background to this lengthy, bitter, convoluted, and no doubt expensive family litigation is set out in the first judgment. We do not repeat it here. It is necessary only to record that the litigation concerns the parties’ interests in two farm properties, which for convenience were described as the trust farm and Tombstone.
The present state of the High Court litigation
[5]       For present purposes, the point which has been reached in the High Court litigation is that Stevens J has directed:
(a)A sale of the trust farm by public tender. The bids will close on 30 September 2009.
(b)The removal of the present executors and trustees in the A R Scott Estate, and the appointment of Mr Allan Tate (a solicitor) in their place.
(c)A sale of the whole of Tombstone by the sole executor to realise the estate’s half interest in that farm.

(d) That Mr Scott forthwith vacate Tombstone.

The proposal that this Court recast the sale
[6] By his application Mr Scott also advances the proposition (startling in a stay application) that directions should be given by this Court that he be “entitled” to purchase the relevant property interests on…

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 Scott v Scott

Details

AGLC: Scott v Scott [2009] NZCA 417
Case: [2009] NZCA 417
Decision Date: 18 September 2009

CaseChat Overview and Summary

The case of Scott v Scott involves a lengthy and contentious family dispute concerning the interests of the parties in two farm properties. Lewtyn Michael Scott, the appellant, sought a stay of execution or interim relief in relation to orders made by the New Zealand Court of Appeal and the High Court. The respondents, Rosemary Ann Scott, Lee McNeilly, Alison Scott, and Cara Ann Clare, opposed the application. The central issue in the case was whether the Court of Appeal should grant a stay of execution or interim relief in relation to the sale of the farm properties. The appellant argued that he should be allowed to purchase the properties on specific terms, while the respondents contended that the appellant could simply bid for the properties like any other potential buyer.

The Court of Appeal considered the arguments presented by both parties and found that the appellant could not relitigate the merits of the case within the stay application. The Court rejected the appellant's argument that the farm was literally turangawaewae, which was a definitive underlying principle in New Zealand law. The Court also noted that the appellant had refused to give a waiver of privilege to enable his former solicitor to be spoken to and, if necessary, to make an affidavit. This was a matter of considerable significance in the context of the appeal to the Supreme Court.

In relation to the second judgment (High Court), the Court found that the appellant was going to have to buy out the other interests in the properties at some point. The Court of Appeal could not accede to the appellant's application to have the Court endorse a "buy-out application" in relation to the trust farm. The Court found that the High Court had ordered the sale of the two farm properties, and that the appellant could not dictate the basis on which these properties should be sold. The Court concluded that the most appropriate process for the sale of the trust farm was a tender process, and that the appellant could not simply substitute his personal preference for the decision of the Judge.

The Court of Appeal dismissed the application and ordered the appellant to pay the respondents' costs as for an application for leave to appeal on a Band B basis and usual disbursements.

Orders