Swanick v Bostock - [2023] NZHC 2863

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2022-441-53

[2023] NZHC 2863

BETWEEN
TIMOTHY EARL SWANWICK

Plaintiff

AND

EDWARD ANTHONY BOSTOCK as

sole executor and trustee of the estate of Kenneth Earl Swanwick (deceased)
First Defendant

EDWARD ANTHONY BOSTOCK as

sole executor and trustee of the estate of Betty Reid Swanwick (deceased) Second Defendant

Hearing: On the papers

Appearances:

S J Webster for Plaintiff

M C De Jong for First and Second Defendants N T Gray for Interested Parties

Judgment:

12 October 2023

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[Leave to appeal]

[1] In this case the plaintiff, Mr Timothy Swanwick (“Tim”), is advancing claims against the estates of his late father, Mr Kenneth Swanwick and mother, Mrs Betty Swanwick. The defendants are the executors and trustees of the two estates. They take a neutral position. Tim’s siblings, Caryl Swanwick, Angela Swanwick and Judith Miratana, are interested parties. They oppose Tim’s claim. So the protagonists are Tim on the one hand and his siblings, the interested parties, on the other.

[2]Because probate was granted to the executors of Mr Swanwick’s estate over

15 years ago on 26 September 2008, Tim needs leave pursuant to s 6 of the

SWANWICK v BOSTOCK as [2023] NZHC 2863 [12 October 2023]

Law Reform (Testamentary Promises) Act 1949 (the Testamentary Promises Act) to pursue the component of his claim against his father’s estate founded on that Act.

[3] In my judgment dated 27 June 2023 I declined leave for the reasons set out therein.1

[4] Tim now seeks leave to appeal. He requires leave pursuant to s 56(3) of the Senior Courts Act 2016, which provides that interlocutory judgments may only be appealed with leave from this Court or special leave from the Court of Appeal.

[5] Both counsel have provided me with helpful submissions in relation to the circumstances in which leave will or will not be granted. The principles are well settled. The leading case is the Court of Appeal’s judgment in Greendrake v The District Court of New Zealand, where, citing Finewood Upholstery Ltd v Vaughan2, the Court articulated the principles as follows: 3

(a)a high threshold exists:

(b)the applicant must identify an arguable error of law or fact;

(c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;

(d)the circumstances must warrant incurring further delay; and

(e)the ultimate question is whether the interests of justice are served by granting leave.

[6] Self-evidently, and as the cases emphasise, those principles invite a brief judgment dealing with any application for leave.

[7] As said in Finewood Upholstery Ltd v Vaughan, the leave process is intended to operate as a filter to ensure that only matters that are properly the subject of appeal proceed.4 The objective is to avoid wasting scarce resources, without compromising the interests of justice.

1 Swanwick v Bostock [2023]…

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 Swanick v Bostock

Details

AGLC: Swanick v Bostock [2023] NZHC 2863
Case: [2023] NZHC 2863
Decision Date: 12 October 2023

CaseChat Overview and Summary

In the case of Swanick v Bostock, the plaintiff, Timothy Earl Swanwick, sought leave to appeal the decision of the High Court of New Zealand, Napier Registry, which had denied his application for leave to bring a claim against the estates of his late parents, Kenneth Earl Swanwick and Betty Reid Swanwick. The defendants were the executors and trustees of the estates of the deceased parents, and the plaintiff's siblings were interested parties opposing the claim. The primary legal issue before the court was whether the plaintiff should be granted leave to appeal the earlier decision that denied him leave to pursue his claim against his father's estate under the Law Reform (Testamentary Promises) Act 1949.

The court examined the principles for granting leave to appeal, emphasizing the high threshold for such a request and the importance of ensuring that only significant issues proceed to appellate courts. The plaintiff's counsel argued that there were both factual and legal errors in the earlier judgment, which prevented the plaintiff from advancing his claim. The court found that while some of the arguments related to the interpretation of facts, others were indeed questions of law. The court acknowledged the need for clarity on the interpretation of "final distribution" under the Testamentary Promises Act, as different cases had provided varying views on the matter. Additionally, the court considered the significant personal importance to the plaintiff of being able to advance his claim and the potential precedential value of clarifying the legal issues involved.

Ultimately, the court concluded that the matter warranted appellate consideration due to the need for legal clarification and the plaintiff's inability to proceed with his claim without leave. The court granted the plaintiff leave to appeal, noting that the delay caused by the appeal was outweighed by the benefits of resolving the legal uncertainties and allowing the plaintiff to pursue his claim. The court reserved the decision on costs, expecting the parties to agree on them or submit memoranda if necessary.

Orders