Hearing:	11 October 2017
Court:	Gilbert, Venning and Wylie JJ
Counsel:	P A Cowey and H C Carey for Appellant No appearance for First and Second Respondents J V Ormsby and T M Ritchie for Graham Talbot (in his personal capacity) in CA557/2016 R L D Paul for Respondent in CA278/2017
Judgment:	10 November 2017 at 12.30 pm

JUDGMENT OF THE COURT

AThe appeal in CA557/2016 is dismissed.
BThe appeal in CA278/2017 is dismissed.
CThe appellant must pay Graham Talbot costs on a band A basis and usual disbursements in CA557/2016.
DThe appellant must pay the respondent costs on a band A basis and usual disbursements in CA278/2017.
EThere is no award of costs in favour of the first and second respondents in either appeal.

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REASONS OF THE COURT

(Given by Wylie J)

Introduction

The primary appeal (CA557/2016) is brought under the Family Protection Act 1955 (the Act). The appellant, Jillian Talbot (Jillian), seeks further provision from the estates of her late parents, Edwin Talbot (Edwin) and Pamela Talbot (Pamela).
Jillian’s application initially came before Gendall J in the High Court in Timaru. He was not persuaded that there had been any breach of moral duty by Edwin and Pamela and he dismissed the application.[1] Jillian now appeals this decision contending that it was wrong. She asserts that Gendall J adopted too narrow an approach and that he failed to consider various matters said to be relevant. She asks this Court to determine whether adequate provision was made for her proper maintenance and support and to remedy any inadequacy we find has been made out.
[1]Talbot v Talbot [2016] NZHC 2382, [2016] NZFLR 1019 [Substantive Judgment].
Graham Talbot (Graham) is Edwin and Pamela’s only son and Jillian’s older brother. He is the executor of Edwin’s and Pamela’s estates. In that capacity, he abides the decision of the Court. As a beneficiary of both estates, he is affected by Jillian’s application. In his personal capacity he opposes Jillian’s application for further provision from the estates.
Rachel Cashin (née Talbot) (Rachel) is the oldest child. She makes no claim under the Act. She has made it clear that, if Graham is ordered to repay moneys that he (and entities associated with him) owed to his parents and which were forgiven in their wills, she is not seeking any share of that repayment. She abides the decision of this Court.
The secondary appeal (CA278/2017) relates to costs. Gendall J reserved costs in the primary proceedings. The parties could not agree and Gendall J issued two separate judgments in this regard:
(a)In the first judgment, Jillian was ordered to pay the…

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 Talbot v Talbot

Details

AGLC: Talbot v Talbot [2017] NZCA 507
Case: [2017] NZCA 507
Decision Date: 10 November 2017

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered two appeals from a decision of Gendall J in the High Court at Timaru. The first appeal, CA557/2016, was brought under the Family Protection Act 1955 by Jillian Kate Talbot (Jillian), who sought further provision from the estates of her late parents, Edwin Talbot (Edwin) and Pamela Lisbeth Talbot (Pamela). The second appeal, CA278/2017, related to costs. Jillian sought to challenge the order requiring her to pay indemnity costs to Rachel Louise Cashin (Rachel). Graham Edwin Lawrence Talbot (Graham) was the executor of both estates and opposed Jillian's application. The primary issues were whether adequate provision had been made for Jillian's proper maintenance and support, and if the trial judge had correctly determined that adequate provision had been made. The secondary issues were whether the trial judge applied the correct criteria in exercising his discretion to award costs on an indemnity basis, and if the quantum of costs was reasonable.

The Court held that the threshold issue of whether there had been a breach of the moral duty set out in s 4 of the Family Protection Act 1955 was a matter of law, fact, and degree, and appeals involving this issue fall to be determined by reference to the approach set out in Austin, Nichols & Co Inc v Stichting Lodestar. If a breach of moral duty was found, then what remedy should be granted by the court below was an issue involving the exercise of a discretion. The Court found that there had been no breach of duty by either Edwin or Pamela to Jillian, and that they made adequate provision for Jillian's proper maintenance and support in their respective wills. The Court dismissed Jillian's appeal in CA557/2016. In relation to the costs appeal, CA278/2017, the Court found that the trial judge applied the correct criteria in exercising his discretion to award costs on an indemnity basis, and that the quantum of costs was reasonable. The Court dismissed Jillian's appeal in CA278/2017. Jillian was ordered to pay Graham's costs on a band A basis and usual disbursements on appeal CA557/2016, and Rachel's costs on a band A basis and usual disbursements on appeal CA278/2017. The estate was not represented, and no costs were awarded in favour of either the first or second respondents.

Orders