Thomas v Mackintosh - [2017] NZCA 366

IN THE COURT OF APPEAL OF NEW ZEALAND

CA669/2016
[2017] NZCA 366

BETWEEN	PHILIP DEAN THOMAS Appellant
AND	JOHN BOWDEN MACKINTOSH AND MATTHEW CHADLOW HALL AS EXECUTORS AND TRUSTEES OF THE ESTATE OF NORMAN DEAN THOMAS First Respondents
AND	ALISON MARGARET SYME, MARK WREFORD REED, SIMON THOMAS REED AND ELEANOR MARY MARR Second Respondents

Hearing:	14 August 2017
Court:	French, Miller and Cooper JJ
Counsel:	H A Evans for Appellant C A McVeigh QC for First Respondents No appearance for Second Respondents
Judgment:	24 August 2017 at 10.00 am

JUDGMENT OF THE COURT

AThe application for an extension of time is granted on condition that the appellant pay $150,000 to the first respondents by 31 August 2017.
BThe appellant must file the case on appeal and apply for a hearing date by 1 September 2017.

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REASONS OF THE COURT

(Given by French J)

Mr Thomas filed an appeal against an oral decision of Heath J ordering the sale of a farm property known as Mays Block.[1] Under r 43 of the Court of Appeal (Civil) Rules 2005, Mr Thomas was required to file the case on appeal by 18 April 2017.[2] He failed to do so and now seeks an extension of time.
[1]Mackintosh v Thomas [2016] NZHC 3141.
[2]A literal interpretation of r 43(5) of the Court of Appeal (Civil) Rules 2005 would require the case on appeal to have been filed by 14 April 2017. However due to the intervening Easter vacation, the filing would have been accepted on 18 April.
Justice Heath’s decision was made in the context of a family dispute over the estate of Mr Thomas’ father. The first respondents are the professional trustees of the estate. They oppose the application for an extension of time. The second respondents are either beneficiaries under the will of the late Mr Thomas or family members who have made claims against his estate. None of the second respondents opposes the application for an extension of time.
The estate consists primarily of interests in 11 farm properties worth in total approximately $20 million. Mays Block is one of the 11 properties. Mr Thomas is the registered proprietor of one half of Mays Block and the trustees the registered proprietors of the other half. Mr Thomas has lodged a caveat against the one half interest owned by the trustees on the ground that they hold it on a constructive trust in his favour.
The family has for some considerable period been endeavouring to resolve the various differences. On 20 September 2015, a Heads of Agreement was signed, whereby the parties (including Mr Thomas and the second respondents) agreed to allocate the various farm properties between them. The Heads of Agreement did not resolve all outstanding issues and negotiations continued.
Meantime, the point was reached in early 2016 that the trustees urgently required access to funding in order to meet the estate’s tax obligations and also pay for the ongoing costs of administering the estate. The trustees applied…

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 Thomas v Mackintosh

Details

AGLC: Thomas v Mackintosh [2017] NZCA 366
Case: [2017] NZCA 366
Decision Date: 24 August 2017 at 10.00 am

CaseChat Overview and Summary

The case of Thomas v Mackintosh involves Philip Dean Thomas appealing an oral decision by Heath J that ordered the sale of a farm property known as Mays Block. The Court of Appeal of New Zealand heard the appeal and made a decision on 24 August 2017. The first respondents, John Bowden Mackintosh and Matthew Chadlow Hall as executors and trustees of the estate of Norman Dean Thomas, opposed the application for an extension of time, while the second respondents, Alison Margaret Syme, Mark Wreford Reed, Simon Thomas Reed, and Eleanor Mary Marr, did not oppose the application.

The legal issue before the Court of Appeal was whether the appellant, Mr Thomas, should be granted an extension of time to file his case on appeal, despite having failed to file by the required deadline. The Court had to consider the reasons for the delay, the potential merit of the appeal, and the impact of the delay on the trustees who were without funds and unable to meet their obligations.

The Court of Appeal found that while the delay was understandable, it was still incumbent on Mr Thomas to progress his appeal despite the settlement discussions. The Court also accepted that the appeal may have some merit. However, the continuing delay had a seriously prejudicial effect on the trustees who were without funds and had accumulated liabilities of approximately $550,000. In light of these considerations, the Court granted the application for an extension of time on condition that Mr Thomas pay the trustees the sum of $150,000 by 31 August 2017. The Court also ordered that Mr Thomas file the case on appeal and apply for a hearing date by 1 September 2017. The Registry was directed to allocate an urgent half-day fixture.

In summary, the Court of Appeal granted an extension of time for the appellant to file his case on appeal, but on condition that he pay the trustees a sum of $150,000 by 31 August 2017. The Court also ordered that the appellant file the case on appeal and apply for a hearing date by 1 September 2017.

Orders