THE NATIONAL HEART FOUNDATION OF NEW ZEALAND AT AUCKLAND AND THE ROYAL NEW ZEALAND FOUNDATION FOR THE BLIND AT AUCKLAND, BOTH CHARITABLE BODIES V PHILIPPA MARGARET CARROLL HC NEL CIV 2008 442 495

THE NATIONAL HEART FOUNDATION OF NEW ZEALAND AT AUCKLAND AND THE ROYAL NEW ZEALAND FOUNDATION FOR THE BLIND AT AUCKLAND, BOTH CHARITABLE BODIES V PHILIPPA MARGARET CARROLL HC NEL CIV 2008 442 495 21 April 2009IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY CIV 2008 442 495UNDER The Judicature Act 1908 IN THE MATTER OF an application for leave to appeal to the Court of Appeal against the High Court decision and a claim under the Family Protection Act 1955 BETWEEN THE NATIONAL HEART FOUNDATION OF NEW ZEALAND AT AUCKLAND AND THE ROYAL NEW ZEALAND FOUNDATION FOR THE BLIND AT AUCKLAND, BOTH CHARITABLE BODIES Applicants AND PHILIPPA MARGARET CARROLL Respondent Hearing: 21 April 2009 Counsel: B R Fraser for Applicants M Radich for Respondent Judgment: 21 April 2009ORAL JUDGMENT OF GENDALL J Introduction[1] This is an application for leave to appeal to the Court of Appeal from a decision of the High Court at Nelson dismissing an appeal from the Family Court in respect of the claim under the Family Protection Act 1955. [2] Philippa Carroll, the respondent, is the only child of Sherle Edwin Gimblett, who died on 12 August 2006. Her mother pre-deceased her father. He left an estateof approximately $1.7 million, which had increased to about $1.9 million at the date of hearing. [3] He provided a bequest of $100,000 to his daughter and gifts of $250,000 to each of his two grandchildren. [4] The balance of the estate, of approximately $1.3 million, was left to four charities. They are the named two applicants, the National Kidney Foundation (now joined as a third applicant) and the Cancer Society of New Zealand (it not joining in this application for leave). [5] In Family Protection Act proceedings determined in the Family Court at Nelson Judge R J Russell awarded Mrs Carroll a further $300,000, making a final provision of $400,000. The charities appealed to the High Court. In the judgment of Wild J delivered on 25 February 2009 that appeal was dismissed. His Honour ordered Mrs Carroll's costs to be paid out of the estate, the effect being that the charities assumed the burden of those costs on that appeal. [6] As I have said, three of the charities now wish to take the matter further and apply, as they must, for leave to appeal to the Court of Appeal.Statutory requirement[7] Appeals such as this are governed by s 67 of the Judicature Act 1908. Relevantly, it provides that a High Court decision on an appeal from the Family Court is final unless leave is obtained from the High Court or, if the High Court refuses leave, then such may be obtained from the Court of Appeal. The test is whether the appeal raises some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, which is of sufficient importance to outweigh the cost and delay of the further appeal. The authorities are replete and well known. They include Rutherfurd v Waite [1923] GLR 34; Cuff v Broadlands Finance Ltd [1987] 2 NZLR 343; Waller v Hider [1998] 1 NZLR 412, Snee v Snee [2000] NZFLR 120 (CA), and more recently in DownerConstruction (New Zealand) Ltd v Silverfield Developments Ltd [2008] 2 NZLR 591. [8] The Court of Appeal in Waller v Hider sounded a warning to the legal profession (at page 413) bemoaning the fact that:Notwithstanding frequent reminders of the test, applications continue to be made which have little or no prospect of success . The scarce time and resources of the High Court and of this Court are not to be wasted, nor additional expense for an unsuccessful client incurred without realistic hope of benefit.[9] The Court of Appeal added (at page 413):Upon a second appeal this Court is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a Court.Applicant's contentions[10] Counsel for the charities contends that the case does concern issues of significant public importance, they being:Matters which would usually be the subject of consideration and ruling by the Court of Appeal and provide guidance both to will makers and to all contemplating FPA (Family Protection Act) claims.[11] Those issues, counsel contends, are:(i) What is the significance of the origins of the estate when making a will and (subsequently) in an FPA (Family Protection Act) claim? (ii) (If origins of the estate are significant) are gifts to a claimant's family a material consideration to be taken into account in assessing breach of moral duty? (This point concerns the testamentary provisions made for the grandchildren, being the children of the claimant.) (iii) How are the principles laid down by the Court of Appeal inWilliams v Aucutt [2002] 2 NZLR 479 to be applied to a "support" ("recognition") claim in light of (i), (ii) above?Discussion[12] It is not generally the function of a Judge dealing with leave application such as this to enter into any detailed discussion as to the merits of claimed issues. Rather, it is to identify whether the appeal does raise some question of law or fact capable of bona fide serious argument on matters, and which are of sufficient importance to require a further level of appeal. [13] However, shortly put, counsel for the charities advances three propositions or features of this case. First, the deceased's estate had been increased through inheritance of the assets of the wife, who predeceased him, and the manner in which the judgment under appeal dealt with that factor was flawed. It is not a particularly unusual situation that confronts Family Protection claimants or respondents. It is simply one circumstance, which may relate to whether there has been a breach of moral duty and, if so, the extent of any reward required to remedy that breach. [14] Secondly, counsel says the facts surrounding this case involving gifts or bequests made directly to other members of the family, being the children of the deceased's daughter required consideration in assessing breach of moral duty and size of award. That, too, is not an unusual circumstance. [15] Thirdly, it was contended that the Court of Appeal in Williams v Aucuttendorsed a "conservative approach". That is whether adequate provision has been made for the proper maintenance and support of a claimant may be looked at in two separate ways, namely the need for financial support on the one hand, and, separately support through recognition of belonging to a family and being an important part of the life of the deceased, on the other hand, and both may require separate consideration. [16] Counsel for Mrs Carroll argued that the application is not really one where alleged errors of law have been made, or where there arise broad questions of law which require determination. Ms Radich says that the Family Court and High Court judgments were essentially factually based. Those findings, in summary, were that Mrs Carroll was a loving and dutiful only child, the provision of $100,000 made forher from an estate of $1.7-$1.9 million was clearly in breach of her father's duty to her and that a further $300,000 out of an estate that size (representing approximately 20% of the total estate) was a factual or judgment finding which the High Court was entitled to uphold. Indeed, Wild J said in his judgment that he would not have been disposed to interfere with an award of the Family Court, if it had been made to the extent of a total of $500,000 for Mrs Carroll. [17] In spite of the careful and intricate way issues were framed by counsel for the applicants, I am not persuaded at all that this is a case where leave should be granted. The significance of the origins of an estate is something that has been considered and discussed in many cases. It is but one factual circumstance that the Court may take into account in assessing whether there has been a breach of moral duty and also what award may be required to remedy that breach, given that the extent of any award must be commensurate, or bear some relationship to, the extent of the breach. Likewise, questions involving gifts, whether inter vivos or testamentary or to family members of a claimant are factual matters, to be assessed along with all other factors, in deciding whether there had been a breach of moral duty on the part of the deceased. [18] Thirdly, I do not see the judgment of the Court of Appeal inWilliams v Aucutt, followed in Auckland City Mission v Brown [2002] 2 NZLR 650, and its continued application, has posed any difficulty in cases that have followed.Williams v Aucutt did not, I think, espouse any new principles. It but simply reaffirmed, or reminded the legal community, of the proper approach in Family Protection cases, and in particular in cases where an estate was substantial and a claimant had no need for financial support or assistance. That was a case where there was a competing significant moral claim from a needy sister of that complainant unlike the present. Apart from Auckland City Mission v Brown the Court of Appeal has referred to the approach, and the comments in Williams vAucutt, in Henry v Henry [2007] NZFLR 640; Flathaug v Weaver [2003] NZFLR 730, and I am unable to see any question that requires new determination in the public interest of matters that are of sufficient importance to outweigh the cost of a further appeal in this case. There are no matters, in my view, that require the Court of Appeal to be engaged in a further review of the well established principles.[19] Naturally, there are private interests involved between charities and Mrs Carroll, in the sense that the former have had their awards reduced by $100,000 each, but still they have entitlements of approximately $250,000 each. In my view, matters counsel advanced do not comprise issues of sufficient importance, in the context of these incorporated charitable bodies, to justify leave being granted. [20] Ms Radich argued that the case in the Family Court, and pursuant to the decision of Wild J, essentially turned on its facts, and was not a case where sufficient issues of public or private importance arise. I accept that contention. Further pursuit of this litigation, which has already been twice considered and ruled upon by Courts, is not in my view justified. The applicants, rather than alleging errors of law, appear to me to be submitting questions for declaration or determination by the Court of Appeal in the general way when those are matters which, have been frequently discussed in many earlier cases where individual factual circumstances have so required. [21] For those reasons I am not satisfied that the statutory test contained in s 67 of the Judicature Act 1908, and referred to in established authorities have been met. Accordingly, leave to appeal the decision of Wild J is declined. Mrs Carroll is entitled to costs on this application, which are fixed on a category 2B basis. _______________________ J W Gendall JSolicitors: B R Fraser, Fletcher Vautier Moore, PO Box 90, Nelson M Radich, Radich Law, PO Box 842, Blenheim