LISTER v PEGG AYTON GORDON TRUSTEE LTD [2015] NZHC 839

LISTER v PEGG AYTON GORDON TRUSTEE LTD [2015] NZHC 839 [28 April 2015]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2014-488-000057[2015] NZHC 839UNDER the Family Protection Act 1955, theProperty Law Act 2007, and the TrusteeAct 1956IN THE MATTER of the estate of EARL ARTHURRAYMOND LISTERBETWEEN DEBRA ANNE GRETA LISTERApplicantAND PEGG AYTON GORDON TRUSTEELIMITED, ROBYN ETHEL FRONTINMATHEWS, LANCE IAN LISTER,LINDA LOUISE LISTER/EDDIE ANDTHE WILSON HOME TRUSTRespondentsHearing: 24 April 2015Appearances: Applicant in personC Hallowes for The Wilson Home TrustJudgment: 28 April 2015JUDGMENT OF ASHER J(Application for leave to appeal)This judgment was delivered by me on Tuesday, 28 April 2015 at 1pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Schnauer & Co, Auckland.Copy to: ApplicantIntroduction[1] The applicant Debra Lister seeks leave to appeal my decision of 20 October2014 to the Court of Appeal.1 Her application is opposed by one of the respondents,the Wilson Home Trust.[2] The proceedings concern the will of Iris Lorna Lyons, Ms Lister's aunt.Ms Lister claimed she had an interest in an apartment owned by Ms Lyons becauseher father was given a life interest. Both I and the Associate Judge2 considered thatMs Lister's claim was misconceived and had no chance of success. Ms Lister raisedvarious grounds, none of which had merit.[3] Ms Lister's application for leave to appeal appears not to have been properlyrecorded as filed through errors in the court. With the consent of the Wilson HomeTrust and for the avoidance of doubt I extend the date for filing the application forleave to appeal to today, and record that I treat the application for leave as havingbeen filed within time.[4] Ms Lister asked for a hearing so she could give oral submissions in supportof her application for leave to appeal. She attended that hearing by video link fromthe New Plymouth High Court.[5] I now turn to the question of whether leave should be granted.Should leave be granted?[6] The power to appeal is in s 26P(1AA) of the Judicature Act 1908. The principles to be applied on an application for leave are those applied to anapplication for a second appeal under s 67 of the Judicature Act.3 The principleshave been clearly set out in Snee v Snee4 and Waller v Hider.5 The appeal must raisesome question of law or fact capable of bona fide and serious argument in a caseinvolving some interest, public or private, of sufficient importance to outweigh the1 Lister v Pegg Ayton Gordon Trustee Ltd [2014] NZHC 2553.2 Lister v Pegg Ayton Gordon Trustee Ltd [2014] NZHC 1956.3 Gregory v Gollan HC Auckland CIV-2005-404-3485, 4 July 2007 at [6].4 Snee v Snee [2000] NZFLR 120, (1999) 13 PRNZ 609 (CA).5 Waller v Hider [1998] 1 NZLR 412 (CA).cost and delay of the further appeal. The scarce time and resources of the Court ofAppeal are not to be wasted, and expenses for other parties incurred "withoutrealistic hope or benefit".6[7] Ms Lister in support of the appeal points to her difficult financialcircumstances, and the fact that she needs the assets of her aunt's estate. Herproceedings appear to turn on a misunderstanding on her part as to the nature of herfather's interest in the will of Ms Lyons. Her father had a life interest only, and thefact that she was and is a beneficiary of her father's estate, gave her no rights inrespect of Ms Lyon's estate. Her submissions ignore this reality. In her oralsubmissions to me in support of the appeal she has reiterated that she is the owner ofthe apartment and "the Court does not have the power to take it off her". She alsomentioned that she had the power to terminate the life interest. She mentions thather financial circumstances are such that she must get assistance from her aunt'sestate.[8] Mr Hallowes observed in his submissions to oppose the granting of leave thatMs Lister's grounds in support of her claims change regularly, and I agree with thatassessment. Ms Lister has not shown that there is any question of law or factcapable of bona fide or serious argument. She focuses on her needs and perceptionsrather than the reality of the law and facts. Her appeal has no realistic hope ofsuccess.Result[9] The application for leave to appeal is declined.[10] There will be no order as to costs as Mr Hallowes does not seek costs for the Wilson Home Trust...Asher J6 At 413.