Waite v Waite - [2023] NZHC 829

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2023-419-44

[2023] NZHC 829

UNDER the District Courts Act 2016

IN THE MATTER

of an appeal against a decision of the District Court at Te Awamutu

BETWEEN

GRAEME JOHN WAITE

Appellant

AND

NGAERE ELEANOR WAITE

Respondent

Hearing: 2 October 2023

Appearances:

D O’Neill and F C Oback for the Appellant

K McDonald and N T Porima for the Respondent

Judgment:

20 December 2023

JUDGMENT OF GAULT J

This judgment was delivered by me on 20 December 2023 at 10:30 am pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:
Mr D O’Neill and Ms F C Oback, Barristers, Hamilton
Ms J Cooney (appellant’s instructing solicitor), Cooney Law, Cambridge Ms K McDonald and Ms N T Porima, Gallie Miles, Te Awamutu

WAITE v WAITE [2023] NZHC 829 [20 December 2023]

[1] Mr Graeme Waite (Graeme Waite) appeals against the reserved judgment of Judge R H Paul in the Family Court at Te Awamutu dated 25 January 2023,1 declining an application for leave under s 88(2) of the Property (Relationships) Act 1976 (PRA) to apply for orders under ss 23 and 25(1)(a) of the PRA to bring assets, which had transferred by survivorship to the respondent, Ms Ngaere Waite (Ngaere Waite), into the estate of Graeme Waite’s late father, Mr Jack Waite (Jack Waite).

Factual background

[2] Graeme Waite was born on 21 March 1955. In 1960, his parents separated. In 1965, his mother died. Graeme Waite did not inherit anything from her estate.

[3]In the 1970s, Jack Waite married Ms Watkins. In 1985, Ms Watkins died.

[4]On 14 April 1988, Jack Waite married Ngaere Waite.

[5] On 20 July 1988, Jack Waite executed a final will (the will). The will appointed two solicitors in Hastings, Mr Gallate and Mr Mansfield, as executors and trustees of the will, and provided:

(a)to Graeme Waite (his only son) – a silver dish, his clothing, personal effects/papers, carpentry tools and endowment insurance policy (if it did not vest in Graeme Waite upon his death);

(b)to Ngaere Waite – $25,000 plus a life interest in the home that they occupied and the income from the residuary estate: and

(c)after Ngaere Waite’s death, the residuary estate to Graeme Waite.

[6] In 1989, Ngaere and Jack Waite purchased a section at Te Pahu Road with proceeds from the sale of separate properties that each had owned. They also used the proceeds to build a large home which was used as a rest home and then later as a bed

1 Waite v Waite [2023] NZFC 580.

and breakfast. Jack Waite built the home and Ngaere Waite did most of the work within the business.

[7] On 10 February 2010, Jack Waite executed a codicil to the will deleting the appointment of Mr Gallate as executor and trustee. In all other respects, Jack Waite confirmed the will.

[8] In 2014, Ngaere and Jack Waite sold…

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 Waite v Waite

Details

AGLC: Waite v Waite [2023] NZHC 829
Case: [2023] NZHC 829
Decision Date: 20 December 2023

CaseChat Overview and Summary

Graeme Waite appeals against a Family Court decision declining his application for leave to apply for orders under the Property (Relationships) Act 1976 (PRA) to bring assets transferred by survivorship to Ngaere Waite, his stepmother, into his late father's estate. Graeme Waite argues that the Family Court should have granted leave, as refusing it would cause serious injustice. The key issues are whether the absence of a Family Protection Act (FPA) claim by Graeme Waite is relevant to the s 88(2) application for leave, whether the Judge erred in relation to the couple’s intentions, and ultimately whether refusing leave would cause serious injustice. The court found that the absence of an FPA claim by Graeme Waite was not a prerequisite for the leave application and should not have been considered. Regarding the couple's intentions, the court found that Jack Waite's understanding of the effect of owning the Kihikihi Road property as joint tenants was relevant to the assessment of serious injustice. The court also found that the Judge was entitled to take the 2014 joint tenancy at face value, as neither party called the solicitor who acted on the 2014 purchase. Finally, the court found that refusing leave would not cause serious injustice. The appeal was dismissed.

Orders