West v West - [2019] NZCA 225

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA692/2018
[2019] NZCA 225

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

Court:	Brown, Whata and Moore JJ
Counsel:	Appellant in person D M Kerr for First and Second Respondents C L Bryant for Third Respondents J F Armstrong for C J Davis
Judgment: (On the papers)	19 June 2019 at 12.30 pm

JUDGMENT OF THE COURT

A The appeal is dismissed.

BThe appellant must pay the respondents and Mr Davis one set of costs for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Mr Allan West appeals from a judgment of Edwards J dismissing three applications which he made for particular discovery in circumstances where Mr West’s substantive claim had been already determined in the High Court and an appeal filed in the Court of Appeal.[1] The appeal challenges the basis for the Judge’s conclusion that the High Court was functus officio.
[1]West v West [2018] NZHC 2723.
The appeal was heard on the papers at the request of Mr Allan West.

Background

The circumstances giving rise to the litigation in the High Court and the conduct of the hearing are succinctly recorded in the submissions of Ms Bryant for the third respondents which we record:
7The appellant lives on a rural property at Muriwai in Auckland. In November 2014, at age 92, he transferred his property to his two sons, the first and second respondents. Under the terms of the transfer, the purchase price was forgiven, the appellant has the right to live on the property for so long as he wishes, and the first and second respondents have assumed various financial obligations to the appellant, his estate and other family members.
8On 23 November 2016, the appellant issued proceeding CIV 2016-404-2992 in the High Court at Auckland. He sought the return of the property on the basis that the transfer was an unconscionable bargain and/or a breach of fiduciary duty and/or the result of undue influence. The third respondents, whose firm had acted for all parties to the transaction, were joined in 2017. They admitted the firm had breached its duty to refer the appellant for independent advice.
9The claim was given a priority fixture. It proceeded through discovery and the exchange of witness statements to a defended hearing before Downs J on 26-29 September 2017. The appellant gave evidence in person at that hearing, as did the first and second respondents and Guy Wellwood of the third respondents’ firm. The appellant was not present in person in Court during the respondents’ evidence.
10The hearing was adjourned to 27 November 2017 for closing submissions. The appellant’s counsel withdrew shortly before the resumed hearing date, and his solicitors were also given leave to withdraw. The appellant provided his closing submissions in writing, in…

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] NZCA 225
Case: [2019] NZCA 225
Decision Date: 19 June 2019 at 12.30 pm

CaseChat Overview and Summary

In the appeal case of West v West, Allan Jack West, the appellant, appeals against the judgment of Edwards J dismissing his applications for particular discovery. The appeal challenges the basis for the Judge's conclusion that the High Court was functus officio. Allan West, the appellant, had previously brought a claim against his two sons and their law firm, seeking the return of property that he had transferred to his sons. The High Court dismissed the claim, and an appeal was subsequently filed with the Court of Appeal. After the appeal was filed, Allan West made a series of discovery applications, which were dismissed by Edwards J. Allan West then filed a notice of appeal against Edwards J's judgment.

The central legal issue in this appeal is whether the High Court was functus officio, meaning that it was unable to take further action in relation to the matter once a judgment had been made and an appeal had been lodged. The Court of Appeal held that the High Court was indeed functus officio, and thus Edwards J was correct in dismissing Allan West's applications for particular discovery. The Court of Appeal found that the principle of functus officio is based on the public interest in there being an end to litigation. The respondents' and Mr. Davis's contentions were deemed sound, and the appeal was dismissed. The appellant was ordered to pay the respondents and Mr. Davis one set of costs for a standard appeal on a band A basis and usual disbursements.

Orders