DYVEKE VIGDIS ELIZABET RELPH V THE PUBLIC TRUST AND ANOR CA284/2009

DYVEKE VIGDIS ELIZABET RELPH V THE PUBLIC TRUST AND ANOR CA284/2009 22 September 2010IN THE COURT OF APPEAL OF NEW ZEALAND CA284/2009 [2010] NZCA 432BETWEEN DYVEKE VIGDIS ELIZABET RELPH Applicant AND THE PUBLIC TRUST First Respondent AND ANDREW MARK RELPH, PRISCILLA MAY BARKHUIZEN AND ROSEMARY ANNE NIEMACK Second Respondents Hearing: 15 September 2010 Court: Glazebrook, Hammond and Ellen France JJ Counsel: H A Cull QC for Applicant R J B Fowler for Second Respondents Judgment: 22 September 2010 at 2.30 pmJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted on the conditions set out in [13] of the reasons of the Court. B The second respondents must pay the applicant costs for a standard application on a band A basis and usual disbursements.REASONS OF THE COURT(Given by Ellen France J)Introduction[1] This is an application under r 29A of the Court of Appeal (Civil) Rules 2005 for an extension of time to appeal a decision of Heath J.1 The applicant, Mrs Relph, wants to appeal Heath J's order determining the respective shares of Mrs Relph and her late husband's children in Mr Relph's estate.Background[2] Mr Relph died in 2007. He was survived by Mrs Relph, his second wife with whom he had lived for about 40 years initially in South Africa and then in New Zealand, and by four adult children of his first marriage. [3] At the time of Mr Relph's death, almost all of his assets (worth approximately $1.6 million) were held jointly with Mrs Relph. Those assets, which included art work and other non-cash assets, passed to Mrs Relph by survivorship. Mr Relph's estate was insufficient to pay particular legacies in a will written in 2005. Mr Relph also had assets in Switzerland and South Africa. The South African assets appeared to be of negligible worth but the Swiss assets are more substantial. [4] Three of Mr Relph's children (Rosemary, aged 56 when the matter was before Heath J in 2008, Andrew, 54 and Priscilla, 47) claimed against his estate under the Family Protection Act 1955. The fourth child was estranged from Mr Relph and has not taken any part in the proceedings. Under a separate testamentary document, Andrew and Priscilla each received AUD$100,000 plus Kruger rands worth around $30,000 from the Swiss assets. [5] In order for there to be assets in Mr Relph's estate to pay any family protection award to the children the Public Trust, as the personal representative of Mr Relph, sought to bring proceedings for a division of relationship property.1 Public Trust v Relph [2009] 2 NZLR 819 (HC).[6] Heath J granted leave under s 88 of the Property (Relationships) Act 1976 to the Public Trust to bring proceedings for division of the relationship property. The Judge concluded that Mr and Mrs Relph's assets should be split 50/50.2 In terms of the family protection claims, Heath J concluded Mr Relph had breached his moral duty to the children and that some provision was required to remedy that breach. Heath J took the view that the children should share 50 to 60 per cent of the value of the estate between them after existing bequests and gifts with Rosemary receiving a larger share to reflect the Swiss assets already received by Andrew and Priscilla. The Judge suggested the appropriate distribution would include payment of $120,000 each to Andrew and Priscilla and $220,000 to Rosemary. The Family Protection Act proceeding was adjourned in the hope that orders could be made by consent. That did not occur, despite various attempts to settle the matter and, in a later decision on 18 June 2009, Heath J made final awards. 3[7] On 20 May 2009 Mrs Relph filed an application for an extension of time to appeal against the decision of Heath J. The application is opposed.Discussion[8] There is an initial question as to whether an extension of time is necessary. [9] Ms Cull QC on behalf of Mrs Relph argues that there is an appeal as of right because time runs from the date of Heath J's second decision in June 2009. However, as Mr Fowler on behalf of the second respondents submits, the first decision of 8 December 2008 is really the focus of Mrs Relph's complaint. While the notice of appeal does not make that clear, Ms Cull confirmed the appeal is a "root and branch" challenge to the quantum decision. Further, the notice of appeal was filed before the Judge's second decision so it is a little strained to conceive of it as an appeal against the second decision. It follows that an extension of time is required.2 At [43].3 Public Trust v Relph (No 2) HC Auckland CIV-2008-404-1922, 18 June 2009.[10] The test for whether an extension of time to appeal should be granted under r 29A is as expressed in My Noodle Ltd v Queenstown-Lakes District Council4 in which the Court said there were a number of factors relevant to the decision, including:[19] ... the reason for the delay, the length of the delay, the conduct of the parties and the extent of any prejudice caused by the delay: New Plymouth District Council v Waitara Leaseholders Association Incorporate [2007] NZCA 80 at [22]. The overall test, however, is whether granting an extension would "meet the overall interests of justice": Havanaco Ltd v Stewart (2005) 17 PRNZ 622 at [5] (CA).[11] Mrs Relph has provided an affidavit explaining the reasons for delay. On its own, this would not provide a complete answer. There was also, however, a lack of clarity about the impact of the first decision pending valuation of various assets and, as we have indicated, the inter-relationship of the two decisions gave rise to some confusion. Certainly, once the position was clear, Mrs Relph acted promptly and the second respondents accept they are not prejudiced by the delay. [12] As to the merits, the second respondents maintain that Heath J has exercised his discretion within a range of possible awards in a manner that is unremarkable. Mrs Relph maintains that the effect of the decision is to exclude her from her husband's estate. On this aspect, there are disputes between the parties as to the figures now the various assets have been valued and therefore as to the impact on Mrs Relph. We cannot resolve those differences. However, on the material before us, we can say that this is not one of those cases where the appeal is so hopeless that an extension of time should be declined. It may also be useful for the Court to consider further the approach to the provision for adult children in cases such as this. [13] In these circumstances, we consider it is in the interests of justice to grant an extension of time. The matter does need now to proceed promptly so we grant an extension of time on the basis that Mrs Relph will by 29 October 2010: (a) File an amended notice of appeal; (b) Pay the filing fee;4 My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518.(c) Deal with security for costs; and (d) File a case on appeal.Costs on this application[14] The applicant, having succeeded, is awarded costs for a standard application on a band A basis and usual disbursements.Solicitors: Forest Harrison, Auckland for Applicant DLA Phillips Fox, Wellington for Second Respondents