Hayes v Guerin HC Gisborne CIV 2009-410-10 [2010] NZHC 998 (5 March 2010)

Last Updated: 30 June 2010

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

_{CIV 2009-410-10}

IN THE MATTER OF an appeal under the Family Protection Act

1955

BETWEEN MARTA HAYES Appellant

AND JUDITH GUERIN Respondent

CIV 2007-416-07

UNDER the Administration Act 1969

IN THE MATTER OF the estate of Elizabeth Hansen Hayes ("the

Deceased")

BETWEEN MARTA HAYES Plaintiff

AND JUDITH GUERIN Defendant

Hearing: 5 March 2010

Counsel: K W Clay for the Plaintiff/Appellant

J C Bunbury for the Defendant/Respondent

Judgment: 5 March 2010

JUDGMENT ON APPLICATIONS FOR LEAVE TO APPEAL, STAY, AND COSTS

[1] The parties have agreed that I may deal with the following applications on the

_{papers: leave to appeal to the Court of Appeal from that part of my judgment of 19}

HAYES V GUERIN HC GIS CIV 2009-410-10 5 March 2010

June 2009 dealing with the Family Protection Act appeal; stay of execution pending appeal in both proceedings; and costs of the appeal.

[2] As usual, a plethora of documents have been filed. There is an application for leave to appeal and a supporting affidavit detailing paragraph-by-paragraph criticisms of my factual findings “due to the poor presentation of evidence by Marta”, the application for stay and a supporting affidavit, and the submissions of Mr Clay, who now represents Marta, and Mr Bunbury. Marta herself has continued to file documents, and amendments to those documents. They include a memorandum on money and assets in the Registrar’s custody, a memorandum with appeal application, and a memorandum on assets of the estate fraudulently retained by Judith.

Leave to appeal

[3] I need not dwell on the test for leave, which is well established: Waller v Hider [1998] 1 NZLR 412, 413. Appeals on questions of fact are seldom of sufficient public importance to justify an appeal, and second appeals are not an opportunity to raise new matters that could have been advanced at trial or on the first appeal: P v P (No 2) [1958] NZLR 349, 351.

[4] The matters raised in support of the application for leave are:

• whether certain matters negated a moral duty to Judith (the inheritance received by Judith from her father, the note to the will left by Elizabeth, the difference between the financial circumstances of Marta and Judith, alleged payment for Judith’s services during Elizabeth’s lifetime, and alleged gifts to Judith during Elizabeth’s lifetime);

• whether the award was excessive in all the circumstances, noting that the estate is smaller now than it was at Elizabeth’s death; and

• whether the Administration Act proceeding should have been heard before the

Family Protection claim.

Marta makes the further point in her separate papers that she is disadvantaged because she represented herself, with the result that the hearing was unfair.

[5] I accept Mr Bunbury’s submission that none of these matters justify leave to appeal. They are all fact-specific, and could have been raised with reasonable diligence or were in fact addressed in the Family Court or in this Court. Some, such as the absence of representation or the sequence of fixtures, are the result of Marta’s own strategic decisions, for which she must take responsibility.

[6] I have considered whether leave ought to be granted because the Administration Act claim, which may be appealed without leave, is connected to the Family Protection Act claim. It is true that the Administration Act claim requires an understanding of the background, including the facts relevant to the Family Protection Act claim. However, the two are conceptually distinct. The Administration Act claim relates to assets retained or disposed of by Judith and allegedly forming part of Elizabeth’s estate, while the Family Protection Act claim addresses the shares of the two claimants in the estate. If the Court of Appeal takes a different view of the case, it may grant leave.

[7] Leave to appeal is refused.

Stay

[8] Physical assets in the Registrar’s custody have now been returned to Marta as I understand it (see my minute of 24 July). Her application for stay relates to funds held by the Registrar, originally pursuant to directions given by Potter J (see paragraph [21] of my judgment).

[9] This is not a case in which Marta’s right of appeal might be rendered nugatory were a stay to be refused. It is common ground that Judith is in a strong financial position. Indeed, Marta’s proposed appeal is in large measure founded on the premise that Judith is a wealthy woman. She is plainly able to repay any money that she receives as a result of the Court’s judgment. In the circumstances, there is

no sufficient reason why Judith should be denied the fruits of the concurrent judgments of the Family Court and this Court on appeal.

[10] The stay is denied. This order is to lie in Court for 30 days to allow Marta to seek a stay in the Court of Appeal.

Costs

[11] In my judgment I indicated that I proposed to make a modest award of costs in Judith’s favour (see paragraph [96]).

[12] The parties have not been able to reach agreement on costs. Mr Bunbury seeks costs on a 2B basis, amounting to $8,480. Mr Clay invites me to fix costs on a

1A basis, and draws my attention to expenses of $6,835 incurred by Marta in relation to the Administration Act proceeding, in which she enjoyed some small success.

[13] In the circumstances, costs must be a matter of judgment and impression, having regard to overall success, the costs incurred on each side, and the scale. I fix costs payable to Judith at $3,000 together with disbursements of the Family Protection Act appeal and the Administration Act claim as fixed by the Registrar. As directed in my judgment, that sum is to be deducted from the proceeds held by the Registrar before any balance is paid to Marta.

Miller J

Solicitors:

Kegan & Kite, Gisborne for the Respondent/Defendant

Addendum

This judgment was written on 24 August last. Through an error for which I take responsibility, it was not distributed until the matter was drawn to my attention by the parties. I apologise to them for this oversight.