West v West - [2019] NZSC 109

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 56/2019
[2019] NZSC 109

BETWEEN	ALLAN JACK WEST Applicant
AND	GEOFFREY ALLAN WEST First Respondent DAVID JOHN CAMERON WEST Second Respondent THE PARTNERS OF LANGLEY TWIGG LAW Third Respondents

Court:	O’Regan and Ellen France JJ
Counsel:	Applicant in person D M Kerr for First and Second Respondents C L Bryant for Third Respondents J F Armstrong for C J Davis
Judgment:	9 October 2019

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.

B There is no order as to costs.
____________________________________________________________________

REASONS

Introduction

The applicant (Mr West) seeks leave to appeal from a decision of the Court of Appeal dismissing his appeal from a judgment of Edwards J.[1] Edwards J dismissed three applications by Mr West for particular discovery.[2]

Background

[1]West v West [2019] NZCA 225 (Brown, Whata and Moore JJ).

[2]West v West [2018] NZHC 2723 [HC judgment].

The present application arises in the context of a challenge brought in an earlier proceeding in the High Court relating to the transfer, in late November 2014, by Mr West (then aged 92) of his property at Muriwai, Auckland, to his two sons, the first and second respondents. Under the terms of the transfer, the purchase price was forgiven, Mr West retained the right to live on the property and the first and second respondents undertook various financial obligations.
The proceeding was issued by Mr West in the High Court in November 2016. Mr West sought return of the property on various bases, including that the transfer was an unconscionable bargain. Mr West also claimed that the transfer was the result of negligence by a lawyer in the third respondents’ firm who had acted for all parties to the transfer.
In late 2017, Downs J issued a judgment dismissing all of the claims.[3] The judgment was subsequently sealed. Mr West was granted an extension of time to file a notice of appeal to the Court of Appeal in June 2018.[4] Subsequently, he was granted an extension of time to file his case on appeal and apply for a hearing date.[5] Mr West did not take the necessary steps to maintain the appeal and it was deemed abandoned on 19 December 2018.
[3]West v West [2017] NZHC 3110. The claim based on an unconscionable bargain failed because the Judge concluded that, although Mr West was elderly, he was not disabled in the relevant sense. The Judge also found that while it was inappropriate for the solicitor in question to act for all parties (as the firm admitted), that was not causative of loss.
[4]West v West [2018] NZCA 216.
[5]West v West [2018] NZCA 511.
After the appeal against the judgment of Downs J had been filed in August 2018, Mr West made applications for discovery in the High Court. Edwards J described the applications as follows:[6]
(a)An application against Mr Davis, a partner in 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 West v West

Details

AGLC: West v West [2019] NZSC 109
Case: [2019] NZSC 109
Decision Date: 9 October 2019

CaseChat Overview and Summary

In the case of West v West, the applicant, Allan Jack West, sought leave to appeal against the decision of the Court of Appeal dismissing his appeal from a judgment of Edwards J. The original case involved a dispute over the transfer of property at Muriwai, Auckland, which was transferred by Mr West to his two sons, Geoffrey Allan West and David John Cameron West, in late November 2014. Mr West brought an action in the High Court in November 2016, seeking return of the property on various grounds, including that the transfer was an unconscionable bargain and the result of negligence by a lawyer in the third respondents' firm who acted for all parties. Downs J dismissed all claims, a decision that was upheld on appeal by the Court of Appeal. Following the dismissal of the appeal, Mr West made applications for discovery in the High Court, which Edwards J dismissed on the basis that the High Court was functus officio.

The legal issues before the Supreme Court in this application for leave to appeal were whether the Court of Appeal's decision to uphold the dismissal of Mr West's discovery applications raised any questions of general or public importance, and whether the criteria for leave to appeal were met. The court needed to determine if the issues raised by Mr West warranted further judicial consideration, and if there was any appearance of a miscarriage of justice. The primary focus was on whether the Court of Appeal correctly applied the principles of finality and the functus officio doctrine, and if the issues raised by Mr West were fact-specific or related to the earlier judgment of Downs J.

The Supreme Court found that none of the matters Mr West wished to argue gave rise to any question of general or public importance. The issues were either fact-specific or related to the earlier High Court judgment of Downs J, which were outside the scope of the Court of Appeal's judgment. The Court of Appeal's decision did not give rise to any appearance of a miscarriage of justice. Consequently, the criteria for leave to appeal were not met. The application for leave to appeal was dismissed, and there was no order as to costs.

Orders