Waine v Tigg - [2018] NZHC 1976

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV 2017-442-0056

[2018] NZHC 1976

UNDER Section 124 District Court Act 2016

IN THE MATTER

of an appeal from a judgment of the Family Court

BETWEEN

DAVID WAINE AND STEVEN WAINE

Appellants

AND

HELEN TIGG AND KEITH PARKER

First Respondents

ROSS HANNAY MCKECHNIE, DAVID WAINE AND CELIA JANE SMITH

Second Respondents

Hearing: 6 March 2018

Appearances:

G M Downing for Appellants

A M Halloran and Y E Clarisse for Respondents G J Praat for Trustees and Executors

Judgment:

9 August 2018

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 9 August 2018 at 2.30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

Solicitors:McFadden McMeeken Phillips, Nelson Pitt & Moore, Nelson

Copy for: Knapps Lawyers, Richmond

WAINE v TIGG [2018] NZHC 1976 [9 August 2018]

Introduction

[1] This is an appeal against a decision of Judge R J Russell in the Family Court at Nelson on 15 August 2017.1

[2] The Judge determined an application by Mr Keith Parker and Ms Helen Tigg (“Keith” and “Helen” or the “claimants”) for provision from the estate of their father,
Mr James Parker.2

[3] Mr Parker died on 31 March 2014, leaving nothing to Keith or Helen in his will. Rather, subject to some specific bequests, Mr Parker left his residuary estate to his nephews, Mr David Waine and Mr Steven Waine (“beneficiaries”), in equal shares.

[4] At the time of the hearing before the Judge, the net value of Mr Parker’s estate was $643,283.69. The Judge determined that, at the date of his death, Mr Parker had a moral duty, or obligation, to make adequate provision for the proper maintenance and support of Keith and Helen, and that he had failed to do so. The Judge ordered that provision of $100,000 should be made from the estate for Helen in recognition of her need for support, and $175,000 for Keith as provision for his support and maintenance, meaning the beneficiaries would receive approximately $368,000.

[5] There is no dispute on appeal that Mr Parker owed a moral duty to make provision for Keith and Helen’s proper maintenance and support.

[6] The principal issues on appeal are the quantum of the awards and, as regards Keith, whether there was sufficient evidence to establish a need to make provision for his proper maintenance.

[7] The beneficiaries contend that the Judge should have made an award to recognise the need for support only and that such award should not have exceeded 8 to 10 per cent of the estate, say, up to $64,300.

1 Tigg v McKechnie [2017] NZFC 6342.
2 The application was made pursuant to s 4 Family Protection Act 1955.

[8] Counsel for Keith and Helen, Ms Halloran, submitted that the Judge’s decision was correct. She submitted that Keith’s evidence was sufficient to establish that he was in financial need and that the quantum of an…

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 Waine v Tigg

Details

AGLC: Waine v Tigg [2018] NZHC 1976
Case: [2018] NZHC 1976
Decision Date: 9 August 2018

CaseChat Overview and Summary

In Waine v Tigg, the High Court considered an appeal against a decision of the Family Court to make provision from the estate of Mr James Parker, who had died leaving his residuary estate to his nephews, Mr David Waine and Mr Steven Waine, in equal shares. The claimants, Keith and Helen, Mr Parker's children from a previous marriage, had not seen or been in contact with him for 45 years. They sought provision under section 4 of the Family Protection Act 1955. The Family Court judge had ordered that provision of $100,000 be made for Helen, and $175,000 for Keith. The principal issues on appeal were the quantum of the awards and, as regards Keith, whether there was sufficient evidence to establish a need to make provision for his proper maintenance. The Court found that the evidence before the Court was sufficient to establish a need for maintenance, and that neither award was plainly wrong. The appeal was dismissed.

Orders