Swanick v Bostock
[2023] NZHC 2863
•12 October 2023
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 DefendantEDWARD 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] NZHC 1600 (The Judgment).
2 Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [9]-[14].
3 Greendrake v The District Court of New Zealand [2020] NZCA 122 at [6].
4 Finewood Upholstery Ltd v Vaughan, above n 2, at [13].
[8] On what bases, then, is it contended, in this case, that leave to appeal should be granted?
The threshold test
[9] The courts have consistently made it clear that the threshold for leave is a high one. In the generality of cases interlocutory matters are best dealt with at first instance so that the substantive proceeding can proceed efficiently, which is in the interests of all parties.
[10] There are of course cases that warrant appellate consideration. However, to cross the high threshold, an applicant must do more than raise a possible defect in the impugned judgment. There must be an arguable error of one sort or another that requires correction.5
Alleged errors of fact and law
[11] Mr Webster’s submissions focussed primarily on this aspect of the test. He identified aspects of my judgment which he submitted contained both factual and legal errors.
[12] I propose to address his submissions, and Mr Gray’s reply to the same, following Mr Webster’s organisation of these.
Errors of fact
[13] Under this heading, Mr Webster identified a series of alleged errors which I would have categorised as errors of law.
[14]In paragraph 6 Mr Webster submits:
6.The Associate Judge made a finding that [Mr Swanwick’s] estate had been “distributed”. That is not the test in s 6 TPA. The relevant phrase is “final distribution”. The Associate Judge goes on to say that “much of [the estate] remains held by Mr Bostock in his capacity as the trustee of Mr Swanwick’s will trust but does not categorically say that there has been a final distribution of the estate in terms of the Act. The
5 Burden v ESR Group (NZ) Ltd [2019] NZHC 2745 at [12].
plaintiff says that the fundamental error in the judgment is the failure to mention or analyse the factually relevant cases that were put before the court and apply them to the facts of the present case. Those are cases in which the Court of Appeal and the High Court found that the respective estates had not been finally distributed. The fact scenarios in each are identical to or strikingly similar to that detailed in the present case, to the point where precedent should have compelled the court to make a similar finding.
(footnotes omitted)
[15] As Mr Gray submits, while it is true that my judgment used the term “distributed”, it appears to me to be quite clear from the context that that was used as a shorthand description of the test, which, as Mr Webster correctly says, is whether there had been a final distribution of Mr Swanwick’s estate. It is not obvious to me that there can be any serious confusion about that.
[16] As to the balance of the paragraph, essentially, Mr Webster’s submission is that my judgment was erroneous in that I did not reach the conclusion for which he contended on behalf of his client, because I did not correctly interpret the law and apply it to the facts. Mr Webster then reiterates the submissions that he made in more detail at the hearing, identifying the cases which he says are relevant and submitting that they applied to this case in a way that favoured the outcome his client contends. Towards the end of this submission, Mr Webster summarises the errors upon which he relies, impugning my findings that:
(a)the residuary estate had been ascertained when material steps in the administration including payment of ongoing taxation and other liabilities and dissolution of the farm partnership were yet to be completed;6
(b)the beneficiaries had been ascertained when the will stipulated that GST registered entities were required to be formed before distribution of the farm property could occur;7 and
6 The Judgment, above n 1, at [29].
7 At [33].
(c)the registration of the farm property in the name of the personal representative was irrelevant and not a step in the administration of the estate that still required completion.8
[17]It is correct that I reached those conclusions.
[18] Effectively, Mr Webster reiterates the contentions that he advanced at the hearing in contending that I was in error to do so.
Errors of law
[19] Again, the criticisms that Mr Webster makes under this heading essentially reiterate the submissions made by him on Tim’s behalf at the hearing, which he contends I did not resolve correctly.
[20] One example will illustrate this. Mr Webster submits that I erred in law by taking into account how the executors of the estate had been treating the testator's half share in the farming business as forming part of the capital of the will trust, when what the executors believed or intended to be the case is irrelevant.9 As Mr Grey submits, this part of the judgment is a factual description and does not make reference to what the executors intended or believed.
Exercise of discretion
[21] Under this heading, Mr Webster identifies what he submits are errors I made in exercising the discretion involved. I do not propose to address these because, in the end, they appear to amount to a contention that in exercising the discretion that was before the Court I came to a conclusion which was contrary to that contended for on Tim’s behalf. I am not persuaded that I had regard to irrelevant considerations or failed to have regard to relevant considerations in doing so.
8 At [35].
9 At [29].
[22] Finally, under this heading, Mr Webster returns to my assessment of whether the relevant aspect of Tim’s claim has reasonable prospect of success. I have already addressed this topic.
General or public importance
[23] Mr Webster submits that this matter is of importance from a general or public perspective. In doing so, he cites Cartwright J’s observations in Re Eagle10 that the Testamentary Promises Act does not define the term “final distribution”.
[24] As Mr Webster observes, it is fair to say that different views have emerged from the cases which address the issue, and that it would be helpful if the issues were clarified.
[25] In my assessment, there is something in this submission. Mr Gray contends that the legal position is clear, and that I applied the correct test. However, although there are a number of cases that address the issue, there is, in my assessment, room for debate as to when an estate may or may not be said to be finally distributed. Indeed, aspects of this case illustrate the point clearly. At several points it was necessary to assess whether Mr Swanwick’s personal representatives were acting in their capacities as executors or whether they were acting in their capacities as trustees.
[26]This, in my view, is a strong point in favour of Tim having leave to appeal.
Importance to applicant
[27] This issue is not simply a question of the importance of the matter to the applicant (as Mr Webster’s submissions suggest). As Mr Gray contends, the question is whether it is of such importance as to outweigh the lack of any general or precedential value. To that extent, the point is probably otiose in this case, having regard to the view I have reached that the matter is of some importance in terms of precedential value.
10 Re Eagle (dec’d) HC Auckland M721/97, 21 November 1997.
[28] Nevertheless, I accept the submission that the matter is of significance from Tim’s point of view. The strongest point seems to me to be that, as matters stand, Tim cannot advance aspects of his proposed claim. This is unlike a situation where the Court declines a plaintiff summary judgment and the plaintiff may still take the matter to trial.
Delay
[29] No doubt the granting of leave in this case will result in delay in the disposition of the matter. Whilst that counts against the granting of leave, it seems to me to be outweighed by other considerations.
Interests of justice
[30] In a sense, all other considerations ultimately go to whether it is in the interests of justice to grant leave, and little point would be served by analysing this as a separate matter.
Conclusion
[31] For those reasons, most particularly those relating to the need for clarification of the law and Tim’s inability to advance his claim against his father’s estate without leave, my view is that leave to appeal should be granted.
[32] Costs are reserved. I expect counsel will be able to agree on these. If not, they may file memoranda in the usual way.
Associate Judge Johnston
Solicitors:
Webster Inc Ltd, Napier for Plaintiff
Bramwell Bate Lawyers, Hastings for First and Second Defendants Sainsbury Logan & Williams, Napier for Interested Parties
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