LISTER v MATHEWS AND OTHERS [2017] NZCA 86

LISTER v MATHEWS AND OTHERS [2017] NZCA 86 [28 March 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA585/2016[2017] NZCA 86BETWEEN DEBRA ANNE GRETA LISTERApplicantAND ROBYN ETHEL FRONTIN MATHEWSAND OTHERSFirst RespondentsWILSON FAMILY HOME TRUSTSecond RespondentHearing: 20 March 2017Court: French, Miller and Winkelmann JJCounsel: Applicant (in person)No appearance by First and Second RespondentsJudgment: 28 March 2017 at 12.30 pmJUDGMENT OF THE COURTA The application for leave to appeal is declined.B Costs of $500 awarded to the Second Respondent.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] This is an application for special leave to appeal a judgment of Palmer J given on 7 July 2016.1 It was given in proceedings brought under the FamilyProtection Act 1955 for better provision from the estate of the applicant's late father.[2] The judgment responded to an application for review of a minute issued by Associate Judge Bell on 5 February 2016. The minute recorded that:2The Courts have given final decisions that the property at Trafalgar Street, Onehunga, Auckland does not form part of the estate of the deceased. That property passed to the Wilson home on the death of the deceased. Ms Lister does not have a claim against the estate of her aunt. She does not have standing to make such a claim under the Family Protection Act. The Trafalgar Street property cannot be the subject of evidence or decision in this case. Instead, the proceeding concerns only the remaining estate.The Associate Judge accordingly held that the applicant's evidence for the hearing ofher Family Protection Act claim could not deal with any questions relating to the Trafalgar St property. That precluded her from pursuing a claim in that proceedingto the proceeds of the property's sale or its rental income.[3] The Courts referred to in the minute are the High Court and this Court, both of which had previously rejected claims by the applicant that she was entitled to the Trafalgar St property. Asher J held that her father had only a life interest in the property and it reverted to the estate of a Mrs Lyon on his death, and then passed to the Wilson Home Trust under her will.3 When refusing an extension of time to apply for special leave to appeal, this Court held that Asher J was plainly correct.4[4] Since Palmer J delivered his judgment, Davison J has decided the Family Protection Act claim. The applicant persisted in her claim to the property, notwithstanding the ruling under review. Davison J dismissed that part of the claim as res judicata.5 We are unaware whether an appeal is to be brought from that decision.1 Lister v Matthews [2016] NZHC 1540.2 Lister v Lister HC Auckland CIV-2014-443-11, 5 February 2016 at [3].3 Lister v Pegg Ayton Gordon Trustee Ltd [2014] NZHC 2553, (2014) 16 NZCPR 161 at [20].4 Lister v Matthews [2015] NZCA 474 at [12].5 Lister v Lister [2016] NZHC 2887 at [46].[5] In a judgment dated 9 November 2016, French J held that the Registrar rightly rejected an application for special leave on the ground that the Court had no jurisdiction over three of the four grounds raised.6 Strictly, the Court has jurisdiction only to review the judgment of 7 July 2016. The applicant then filed an application for leave to appeal that judgment only.[6] The question for this Court is whether the proposed appeal raises some question of law or fact capable of bona fide and serious argument in a case involving some interest of sufficient importance to outweigh the cost and delay of the further appeal. It must also have some prospect of success.7[7] We are satisfied that none of these criteria are made out. As her submissions before us made clear, the applicant simply refuses to accept a series of decisions that have made it clear she has no claim to the Trafalgar St property. It is not now open to her to relitigate those claims by advancing a claim to the proceeds of the property on the premise that she owned it. The decision she seeks to review confirmed that she could not advance a claim to the property in her Family Protection Act proceeding. That was plainly correct.[8] In a minute dated 9 February 2017, Wild J stated of the present application that:8This application is, unmistakably, a still further attempt by the applicant topursue her claim to her late aunt's property on what this Court has held is amisconceived basis. If it fails, Ms Lister exposes herself to an order for costs, and that order is likely to reflect the fact that it is only Ms Lister who has requested that her application be heard orally.French J gave a similar warning.9 It is unfortunate that the applicant has persisted in the face of this advice.[9] The other parties sensibly chose not to appear, though counsel for the Wilson Home Trust filed a memorandum. The applicant says her financial circumstances are poor and she should not be ordered to pay costs. However the Trust has incurred6 Lister v Matthews [2016] NZCA 533.7 Waller v Hider [1998] 1 NZLR 412 (CA) at 413.8 Lister v Matthews CA585/2016, 9 February 2017 at [10(b)].9 Lister v Matthews, above n 8, at [24].costs and it is entitled to an award. We award costs of $500 to the Wilson Home Trust.Solicitors:Saunders Robinson Brown, Christchurch for First RespondentSchnauer & Co, Auckland for Second Respondent