Silbery v Silbery-Dee, Silbery and Basil-Jones (as Trustees) [2008] NZCA 56 (13 March 2008)

Last Updated: 26 March 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA676/07

[2008] NZCA 56

BETWEEN LIONEL JOHN SILBERY
Applicant

AND ANGELA RUTH SILBERY-DEE, GEOFFREY DAVID SILBERY, MICHAEL BASIL-JONES (AS TRUSTEES)
Respondents

Court: O'Regan, Robertson and Arnold JJ

Counsel: B A Gibson for Applicant
J L Marshall QC for Angela Ruth Silbery-Dee
C S Chapman for Geoffrey David Silbery
G Allan for Michael Basil-Jones

Judgment: 13 March 2008 at 3 pm

(on the papers)

JUDGMENT OF THE COURT

A Special leave to appeal out of time is granted.

B This appeal is to be heard in conjunction with the appeal in CA677/07.

100. The applicant is to file and serve an amended notice of appeal within 14 days of the date of this judgment consolidating the grounds of appeal to be raised in CA677/07 and in this appeal.
     

REASONS OF THE COURT

(Given by Arnold J)

[1] This is an application for special leave to appeal out of time against a judgment of Simon France J delivered on 22 August 2007: HC WN CIV 2005-485-2499. The application is made under r 29(4) of the Court of Appeal (Civil) Rules 2005.
[2] Counsel for the respondents have filed memoranda indicating that they consent to the granting of special leave. In light of that, Arnold J directed that the application be dealt with on the papers, pursuant to r 26(4)(b)(ii).
[3] The applicant made claims under the Law Reform (Testamentary Promises) Act 1949 and under the Family Protection Act 1955. In his judgment of 22 August 2007 (the substantive judgment), Simon France J rejected the claim under the first mentioned Act but allowed the claim under the second. He was not able to deal with quantum, however, as the estate accounts had not been finalised.
[4] Following the substantive judgment, the parties agreed that no objection would be made to an application for leave to appeal out of time against the judgment given that the issue of quantum remained to be resolved. Until the question of quantum was dealt with, no party could make an informed decision about whether it wished to appeal.
[5] On 19 November 2007 Simon France J gave a further judgment in which he dealt with quantum (the quantum judgment). Once that was available, the applicant determined that he wished to appeal against both judgments. He filed an appeal within time against the quantum judgment and an appeal out of time against the substantive judgment.
[6] In these circumstances it is clear that special leave should be granted in respect of the substantive judgment. Accordingly:

(a) We grant special leave to appeal out of time against Simon France J’s judgment of 22 August 2007;

(b) This appeal is to be heard in conjunction with the appeal against the 19 November 2007 judgment (CA677/07);
(c) The applicant is to file and serve an amended notice of appeal within 14 days of the date of this judgment consolidating the grounds of appeal to be raised in CA677/07 and in this appeal.
[7] The question of security for costs in relation to this appeal is to be dealt with in the first instance by the Registrar.

Solicitors:
B A Gibson, Wellington for the Applicant