MCCONKEY v CLARKE [2019] NZHC 2047

MCCONKEY v CLARKE [2019] NZHC 2047 [20 August 2019]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECIV 2018-454-101[2019] NZHC 2047BETWEEN GEMMA LYNETTE MCCONKEYApplicantAND JODY DAWN CLARKE ANDSHARON MAY CLARKE as Trustees of theEstate of NOEL FRANCIS CLARKERespondentsHearing: 16 August 2019Counsel: Applicant in PersonJ A Signal for RespondentsJudgment: 20 August 2019JUDGMENT OF ELLIS J[1] On 30 April 2019, I dismissed Ms McConkey's appeal against a Family Courtdecision in which Judge David Smith had struck out proceedings she had attempted tobring against the estate of Noel Clarke under pt 8 of the Property (Relationships)Act 1976 (the PRA).1 In essence I agreed with Judge Smith that because Mr Clarke'sestate had been finally distributed she was too late to bring such proceedings and therewas no ability to extend the relevant timeframes.2[2] This judgment needs to be read in conjunction with my earlier judgment.[3] On 28 May 2019, Ms McConkey applied for leave to bring a further appeal. Iheard that application last week.1 McConkey v Clarke [2019] NZHC 924.2 I partly allowed Ms McConkey's costs appeal.The applicable legal principles[4] Section 39B of the PRA provides that the provisions of the Senior CourtsAct 2016 (the SCA) apply to appeals against an order or decision of the High Court underthe PRA. In turn, s 60(1) of the SCA provides that leave is required to bring a secondappeal against a decision of the Family Court.[5] Section 60(2) of the SCA provides that it is to the High Court that theapplication for leave to appeal should first be made.[6] The relevant principles are well known. In order for leave to be granted:3(a) the intended appeal must raise some question of law or fact capable ofbona fide and serious argument; and(b) the case must involve some public or private interest of sufficientinterest that outweighs the cost and delay of the further appeal.This case[7] In her application for leave, Ms McConkey focussed on whether Mr Clarke'sestate had been finally distributed. The obvious logic in doing so is that it is the factof final distribution that gives rise to the absolute time limits that have been found topreclude her claim. I will address that shortly.[8] Before I do so, however, there is a prior point. As I found in my earlierjudgment, Ms McConkey's claim faces a further problem. Assuming for presentpurposes that she is Mr Clarke's "surviving partner",4 she has (indisputably) nevermade a formal election under s 61 of the PRA nor applied for an extension of time todo so. The effect of this is twofold:3 Waller v Hider [1998] 1 NZLR 412 (CA) at 413.4 Because the matter proceeded in the Family Court by way of strike out Ms McConkey was giventhe benefit of the doubt on such factual matters, which otherwise would undoubtedly have beencontested.(a) by virtue of s 63, she is barred from bringing a claim under pt 8 at all;and (similarly)(b) by virtue of s 68, she is deemed to have elected Option B and to haveforegone making such a claim.[9] Neither of those matters are directly affected by the question of finaldistribution.[10] But even if Ms McConkey now sought to apply for an extension of time forelecting Option A (which she has not), I remain wholly unpersuaded thatMs McConkey has identified a question of either law or fact that might give rise to agenuine argument that final distribution has not occurred.[11] In essence, Ms McConkey submitted that the Deed of Family Arrangement,5which settled claims between the beneficiaries of Mr Clarke's will (his four children),and the effect of which was a final distribution of his estate, was invalid.6 She said(inter alia) that it was, in various ways, wrongly executed or witnessed and that it wasnot "delivered". She also said that distribution did not in fact take place in accordancewith the Deed.[12] I dealt with arguments of this kind, at least in passing, at [64] of my substantivejudgment. Even if her attacks on the Deed had arguable substance (which in my viewthey do not) Ms McConkey was not a party to the Deed and I am unable to see howshe has standing to challenge it.7 Nor are all the actual parties to the Deed (who includeMs McConkey's son, John) named as respondents in these proceedings. Moreover,the real estate that made up the bulk of Mr Clarke's estate (and which was the subjectof arrangements under the Deed) has now indisputably been transferred to JodyClarke. Even if this did not signal that a final distribution has, indeed, been madeMs McConkey faces an indefeasibility problem, as well.5 Referred to at [29] – [33] of my judgment.6 Although at footnote 31 of my substantive judgment I observed that final distribution might wellhave occurred earlier.7 As I noted in my judgment, there could be no issue with the Deed under s 73 of the PRA becauseMs McConkey did not have a "pending" claim.[13] Although the absence of any genuinely arguable question of law or fact sufficesto dispose of the present application, I note that the requisite public or private interestis also lacking. Absent any question of law or fact that might have wider ramifications,there can be no public interest in what is essentially a family dispute. And while Iaccept that, from Ms McConkey's subjective viewpoint, her private interest in thematter is strong, that must be weighed against the interests of the respondents. Inparticular, Ms McConkey has, thus far, failed to pay any of the costs awards madeagainst her. She advises (and I accept) that this is because she is unable to do so. Butthe short point is that the respondents should not be required to incur further legal coststhat they are never likely to recover and they are entitled to finality. Indeed, permittinglitigation of this kind to continue runs directly contrary to the object of the strict timelimits at issue in this case.[14] As I have said, due to her failure to make an election, Ms McConkey had nostanding to bring her claim in the first place. Mr Clarke's estate was unequivocallyfinally distributed in 2016. Although Ms McConkey cannot see it, it is in the interestsof everyone that the matter be brought to a close.[15] The application for leave to appeal is declined, accordingly. The respondentsare entitled to their costs, on a 2B basis.___________________________Rebecca Ellis J