FOSTER v CHRISTIE [2019] NZHC 459

FOSTER v CHRISTIE [2019] NZHC 459 [15 March 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2017-404-3027[2019] NZHC 459BETWEEN SOPHIE FLORENCE FOSTERPlaintiffAND CEDRIC ROBERT SANDERSONCHRISTIE and CAITRIONA DEVINEFirst DefendantsMICHELLE FOSTERSecond DefendantHearing: On the papersAppearances: V Bruton QC for the PlaintiffM J Wenley for the First DefendantsNo appearance for the Second DefendantsJudgment: 15 March 2019JUDGMENT OF ASSOCIATE JUDGE P J ANDREWThis judgment was delivered by me on 15 March 2019 at 12:00 p.m.pursuant to r 11.5 of the High Court Rules 2016.Registrar/Deputy RegistrarSolicitors / Counsel:Ms V Bruton QC, Barrister, AucklandThe Small Law Firm, AucklandMr M J Wenley, Willis Legal, NapierIntroduction[1] The first defendants have made an application pursuant to s 56 of the SeniorCourts Act 2016 to appeal my decision of 29 November 2018 (reissued 18 December2018) to the Court of Appeal.1 In that decision I granted the plaintiff's application toset aside the protest to jurisdiction in respect of the plaintiff's claim of undue influenceand in relation to the severance of the joint tenancy. I held that only a New ZealandCourt has jurisdiction to determine those claims.[2] The plaintiff opposes the application for leave to appeal but in the event thatthe application is granted has made application for leave to cross-appeal.[3] By consent, I am determining the applications on the papers, following receiptof written submissions.Relevant legal principles[4] The jurisdiction to grant leave to appeal under s 56 has been recently reviewedby the Court of Appeal in Fairway Holdings Ltd v McCullagh.2 The Court approvedthe approach in Ngai Te Hapu Inc v Bay of Plenty Regional Council where it was held:3We agree that leave to appeal should only be granted where the significanceor implications of an arguable error of fact or law, either for the particular caseor for the applicant or as a matter of precedent, warrants the further delaywhich the appeal process would involve.[5] The Court of Appeal also referred to the following dictum of Somers J inSandle v Stewart:4The purpose of [leave] is to limit the cases which may go on appeal in theinterests of finality of litigation and the work load of the High Court, whilepreserving the integrity of the law and the interests of justice.[6] In Finewood Upholstery Ltd v Vaughan, Fitzgerald J described the leaverequirement as a "filtering mechanism" to ensure that unmeritorious appeals of1 Foster v Christie [2018] NZHC 3103.2 Fairway Holdings Ltd v McCullagh [2018] NZCA 605.3 Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 at [17].4 Sandle v Stewart [1982] 1 NZLR 708 (CA) at 715.interlocutory orders, or appeals of interlocutory orders of no great significance toeither of the parties or more generally, do not unnecessarily delay the proceedings towhich the orders were made.5Analysis and decisionIssue: Has the application for leave to appeal been filed out of time?[7] The first defendants filed a notice of appeal dated 15 January 2019 against myjudgment directly with the Court of Appeal. On 18 January 2019 the Registrar of theCourt of Appeal advised the first defendants that the Court could not accept the appealfor filing because my judgment was an interlocutory one and leave is required unders 56 of the Senior Courts Act 2016.[8] The first defendants then filed an interlocutory application with this Courtdated 18 January 2019 for leave to appeal.[9] In her notice of opposition, the plaintiff says that the application is out of timebecause it should have been filed within 20 working days of my judgment of29 November 2018.[10] However, I conclude that the application has not been brought out of time andthat the time period for calculating the 20 working days should be from the date thejudgment was reissued, namely 18 December 2018. If I am wrong on that issue, thenI would allow leave under s 56(3) for this application to be brought out of time.Issue: Is there an arguable error of general or public importance?[11] The first defendants contend that I applied the wrong test in exercising whatthey contend is a discretion whether to assume jurisdiction. It is alleged that I failedwholly to consider the mandatory matters under r 6.29(1)(a)(ii) of the High CourtRules 2016. The first defendants also challenge my determination that the exceptionto the Mocambique rule in relation to the administration of estates has no application5 Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].to this case. The proposed grounds of appeal are those set out in documents filed withthe Court of Appeal (but rejected by it) dated 15 January 2019.[12] The plaintiff contends that the application for leave to appeal on the intendedappeal is an exercise in futility. It is argued that the issue of whether the New Zealandrealty forms part of Gwen Foster's estate is an issue that arises solely between theplaintiff Sophie and her sister Michelle, the second defendant, consequent on Sophie'sclaims of undue influence against Michelle. Ms Bruton QC submitted that the firstdefendants have no role to play, qua executors, in determining this controversy.[13] Ms Bruton further contended that there is no arguable error of general or publicimportance requiring determination. She submitted that I was bound by and correctlyapplied the Court of Appeal decisions in Schumacher v Summergrove Estates Ltd,6Americhip, Inc v Dean,7 and In Re Butchart (deceased).8[14] I do not accept the submission that the proposed appeal would be an exercisein futility. The first defendants took an active role in the interlocutory proceedingsbefore me opposing the plaintiff's application to set aside the protest to jurisdictionand I concluded, at [40], that the first defendants did have standing to challenge thejurisdiction of the Court. That issue is, of course, the subject of the plaintiff's proposedcross-appeal. Whether the first defendants have a role to play in determining thesubstantive controversy between the plaintiff and her sister, the second defendant, is alive issue.[15] I also find that there is an arguable error of fact or law in relation to mydetermination on jurisdiction with implications or significance not only for theparticular case but also as a matter of precedent. For the reasons articulated in myjudgment, the question of jurisdiction is complex and, as I see it, might well haveimplications beyond the particular confines of this case.[16] The first defendants challenge my determination on a fundamental basis,contending, as I have noted, that I adopted the wrong test. The relationship between6 Schumacher v Summergrove Estates Ltd [2014] NZCA 412, [2014] 3 NZLR 599 at [30].7 Americhip, Inc v Dean [2014] NZCA 380, [2014] NZAR 1137.8 In Re Butchart (deceased) [1932] NZLR 125 (CA).jurisdiction and the rules applying to forum non-conveniens in the High Court Rulesis, in my view, an issue that would benefit from further analysis by the Court of Appealand warrants any further delay which an appeal process would inevitably involve.Whether I correctly applied the jurisprudence will be for the Court of Appeal todetermine.[17] I thus conclude that the application for leave to appeal should be granted. It isin the interests of justice to do so.[18] I also find that the application for leave to cross-appeal equally raises arguableerrors of fact or law which would have significance not just for the parties in this casebut as a matter of precedent. I accordingly grant leave to the plaintiff to cross-appealon the issues set out at paragraph 22 of the plaintiff's submissions of 26 February2019.Issue: Stay of proceedings[19] I also accept the submission of Mr Wenley, for the first defendants, that if theCourt of Appeal upholds the proposed appeal then that will likely result in this Courtnot assuming jurisdiction over the proceedings in its totality. All matters would thenbe determined by the High Court in Ireland. In other words, if the appeal is granted,it will bring the New Zealand proceeding to an end.[20] I find that in these circumstances I should grant a stay of the proceeding, assought by the first defendant, pending determination of the appeal by the Court ofAppeal or any order of the Court.Result[21] I make the following orders:(a) The first defendants' application for leave to appeal pursuant to s 56 ofthe Senior Courts Act 2016 is granted.(b) I also grant leave, pursuant to s 56, for the plaintiff to cross-appeal onthe following issues:(i) The finding at [40] of my judgment that the first defendantshave standing to challenge the jurisdiction of the High Court.(ii) The finding at [76] of my judgment that the High Courtadjudicating on an application under the Succession Act 1965(Ireland) could potentially make an award in favour of Sophieas to the remaining half share of the New Zealand property, andthe executors would be then bound to carry out that order.(iii) My finding at [79] of my judgment that "if I am wrong in myfindings about jurisdiction I would also conclude that Sophie'srealty-based claims should be heard and determined in Ireland".(c) I grant a stay of the proceedings pending determination of the appealsby the Court of Appeal and/or further order of the Court.[22] I make no order as to costs. In my view, costs should lie where they fall giventhat both applications have been granted.________________________________Associate Judge P J Andrew