LISTER v MATHEWS [2016] NZCA 533

LISTER v MATHEWS [2016] NZCA 533 [9 November 2016]IN THE COURT OF APPEAL OF NEW ZEALAND[2016] NZCA 533BETWEEN DEBRA ANNE GRETA LISTERApplicantAND ROBYN ETHEL FRONTIN MATHEWS,LANCE IAN LISTER AND LINDALOUISE LISTER/EDDIEFirst RespondentsWILSON HOME TRUSTSecond RespondentCounsel: Applicant in personJudgment:(On the papers)9 November 2016 at 4.00 pmJUDGMENT OF FRENCH J(Review of Deputy Registrar's decision)A The Deputy Registrar's decision refusing to accept for filing the notice ofapplication for special leave to appeal dated 10 October 2016 is upheld.B The time for filing the notice of application for special leave to appealagainst Palmer J's review decision of 7 July 2016 is extended to fiveworking days from the date of this judgment.____________________________________________________________________REASONSIntroduction[1] Ms Lister seeks a review of the Deputy Registrar's decision refusing toaccept for filing an application for special leave to appeal dated 10 October 2016.[2] In her application Ms Lister sought leave to appeal four decisions.1[3] The Deputy Registrar declined to accept the application on the ground of lack of jurisdiction in relation to three of the four decisions.Background[4] All four decisions concern a residential property (the Trafalgar Streetproperty) formerly belonging to Ms Lister's aunt. The aunt died in March 1995. Inher will the aunt gave Ms Lister's father (Earl)2 a life interest in the Trafalgar Streetproperty. The will also provided that on Earl's death the Trafalgar Street propertywas to be sold and the proceeds paid to the Wilson Home for Crippled Children (now the Wilson Home Trust). Earl died in October 2011. Ms Lister is one of fourexecutors and trustees of Earl's estate and also of her aunt's estate.[5] Since Earl's death Ms Lister has been asserting on various grounds that theTrafalgar Street property is part of her father's estate. She issued proceedings in the High Court in 2014 against her father's estate. Three causes of action were pleaded:(a) a claim under the Family Protection Act 1955;(b) a claim under s 64 of the Property Law Act 2007; and(c) a claim under s 83B of the Trustee Act 1956.1 Lister v Mathews [2015] NZCA 474 [Court of Appeal decision]; Lister v Lister HC Auckland CIV-2014-443-11, 5 February 2016 (Minute of Bell AJ); Lister v Mathews [2016] NZHC 1540 [Judgment No 1 of Palmer J]; Lister v Mathews [2016] NZHC 2171 [Judgment No 2 of Palmer J].2 To avoid confusion, we refer to Ms Lister's father by his first name.[6] In her claim under the Property Law Act Ms Lister claimed an absolute interest in the Trafalgar Street property by virtue of her executorship of the twoestates or by virtue of her being Earl's daughter.[7] On the application of the Wilson Home Trust, Associate Judge Christiansen struck out the claim under s 64 of the Property Law Act as disclosing no tenable cause of action.3 The Associate Judge's decision was upheld by Asher J on review.4Justice Asher confirmed that the aunt's will only conferred a life interest on Earl and accordingly the Trafalgar Street property never became part of Earl's estate. The Trafalgar Street property was always part of the aunt's estate and was separate fromher residual estate. Under the aunt's will it passed to the Wilson Home Trust on Earl's death.[8] I turn now to consider each of the four decisions Ms Lister wishes to appeal and whether this Court has jurisdiction.The decision of this Court dated 7 October 20155[9] In the decision this Court, comprising a panel of three judges, declined Ms Lister an extension of time to file an application for special leave to appeal fromAsher J's judgment. It confirmed the High Court's interpretation of the aunt's willand held the proposed appeal did not have any prospect of success. The Courtdescribed Ms Lister's arguments as untenable and misconceived.6[10] The Court's decision effectively disposed of the application for special leave.This Court does not have any jurisdiction to entertain an appeal from its own decision.73 Lister v Pegg Ayton Gordon Trustee Ltd [2014] NZHC 1956.4 Lister v Pegg Ayton Gordon Trustee Ltd [2014] NZHC 2553.5 Court of Appeal decision, above n 1.6 At [12].7 Judicature Act 1908, pt 2.Minute of Associate Judge Bell8[11] On 5 February 2016 Associate Judge Bell issued timetabling directionsrelating to Ms Lister's Family Protection Act claim and a separate proceeding filedby the other executors to have Ms Lister removed as executor.[12] In the minute Associate Judge Bell stated that the Courts had given finaldecisions that the Trafalgar Street property did not form part of Earl's estate and thatMs Lister did not have standing to bring a Family Protection Act claim against heraunt's estate.9 The Associate Judge therefore directed that the Trafalgar Street property could not be the subject of evidence or decision in the case.[13] Ms Lister sought to challenge those directions by way of review in the High Court.[14] That was the correct process for her to follow if she wanted to challenge those directions. This Court did not have jurisdiction to entertain an appeal directlyfrom Associate Judge Bell's directions.10 And that remains the case.Review decision of Palmer J11[15] In a decision dated 7 July 2016 Palmer J upheld the directions made by Associate Judge Bell and stated there were no grounds justifying a review.12Justice Palmer said the Associate Judge's directions simply reflected the correct legalposition. The judgment concluded that Ms Lister needed to accept the legal situation as several courts have found, and carefully explained, it to be.13[16] This Court does have jurisdiction under s 26P of the Judicature Act 1908 toconsider an appeal against Palmer J's review decision but leave must first be8 Lister v Lister, above n 1.9 Lister v Lister, above n 1, at [3].10 Judicature Act, s 26P.11 Judgment No 1 of Palmer J, above n 1.12 At [6].13 At [9].obtained by the High Court or, if the High Court refuses leave, by special leave of this Court.14Leave decision of Palmer J15[17] Ms Lister recognised that leave was required and, as was appropriate, sought leave in the first instance from Palmer J. In a decision dated 14 September 2016 Palmer J declined to grant leave on the grounds the application was out of time andlacked merit. The Judge again referred to the "completely misconceived legal basis" of Ms Lister's attempts to pursue a claim against the Trafalgar Street property.16[18] This Court has no jurisdiction to hear an appeal against a High Court decision declining leave to appeal to this Court.17Analysis[19] I am satisfied this Court has jurisdiction to entertain only one of the fourproposed appeals listed in Ms Lister's application for special leave to appeal, namelythe review decision of Palmer J.[20] It follows I agree the notice of application was defective and the Deputy Registrar was correct to refuse to accept it for filing.[21] Unfortunately, there is now a further complication. Although Ms Lister was advised of the jurisdiction problems at the earliest possible opportunity, she has done nothing to rectify the situation. Time has passed and now the time limit under the Court of Appeal (Civil) Rules 2005 for filing an application for special leave toappeal against Palmer J's review decision has expired.1814 Judicature Act, s 26P(1AA).15 Judgment No 2 of Palmer J, above n 1.16 At [1].17 Rafiq v Meredith Connell [2015] NZCA 145 at [5]; Simes v Tennant (2005) 17 PRNZ 684 (CA) at [39].18 Court of Appeal (Civil) Rules 2005, r 14(2)(b).[22] However, Ms Lister's original (albeit defective) application did refer to Palmer J's review decision and was filed within time. Therefore, I am, in the interests of justice, prepared to grant her an extension of time of five working days from the date of this judgment to file a notice of application for special leave toappeal Palmer J's review decision (and Palmer J's review decision alone).[23] Once the correct application has been filed, the Deputy Registrar can thenconsider Ms Lister's application for a fee waiver.A final comment[24] On the face of it, the proposed appeal against Palmer J's review decisionappears to be an attempt to relitigate matters that have already been determined by this Court against Ms Lister. That would suggest Ms Lister is likely to face formidable obstacles in obtaining leave and could expose herself to a claim for increased costs on the application.Outcome[25] The Deputy Registrar's decision refusing to accept for filing the notice of application for special leave to appeal dated 10 October 2016 is upheld.[26] The time for filing the notice of application for special leave to appeal againstPalmer J's review decision of 7 July 2016 is extended to five working days from the date of this judgment.Solicitors:Saunders Robinson Brown, Christchurch for First RespondentsSchnauer & Co, Auckland for Second Respondents