Lister v Mathews [2015] NZCA 474 (7 October 2015)

Last Updated: 14 October 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA352/2015 [2015] NZCA 474
BETWEEN	DEBRA ANNE GRETA LISTER Applicant
AND	R E MATHEWS & ORS Respondents

Hearing:	5 October 2015
Court:	Ellen France P, Wild and Cooper JJ
Counsel:	Applicant in Person C P Hallowes for Respondents
Judgment:	7 October 2015 at 3 pm

JUDGMENT OF THE COURT

1. The application for an extension of time to apply for special leave to appeal to the Court of Appeal is dismissed.

2. No order as to costs.

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REASONS OF THE COURT

(Given by Wild J)

[1] Ms Lister applies, under s 29A of the Court of Appeal (Civil) Rules 2005, for an extension of time to file an application for special leave to appeal from a judgment of Asher J delivered in the High Court at Auckland on 20 October 2014.^[1]
[2] In that judgment, Asher J dismissed an application by Ms Lister to review a judgment of Associate Judge Christiansen delivered on 19 August 2014.^[2] The Associate Judge had struck out Ms Lister’s claim against the Wilson Home Trust. Justice Asher declined an application by Ms Lister for leave to appeal to this Court.^[3] Accordingly, Ms Lister requires special leave from this Court to appeal, pursuant to s 26P(1AA) of the Judicature Act 1908.
[3] Ms Lister has been representing herself throughout. Her explanation for getting out of time with her s 26P(1AA) application for special leave is that she made a procedural mistake in seeking judicial review of the High Court decisions, instead of seeking leave to appeal to this Court.^[4]
[4] Given that explanation and the fact that it comes from a self-represented litigant, we intend focusing on two considerations:

• (a) whether the proposed second appeal has merit; and
• (b) whether it raises any question, whether of fact or law and whether of public or private interest, sufficiently important to warrant a second appeal.

[5] This case concerns the interpretation of the will of Ms Lister’s aunt, the late Iris Lyons. Mrs Lyons died on 2 March 1995. Her will dated 10 December 1993 contained this devise:

3(c) I GIVE DEVISE AND BEQUEATH my flat at 1/84 Trafalgar Street, Royal Oak, unto my Trustee UPON TRUST to permit my brother EARL ARTHUR LISTER to have the use occupation and enjoyment of the same during his life be paying the rates, insurance and other outgoings and keeping the same in a reasonable state of repair and on his death I DIRECT that the said house property be sold and the nett proceeds of sale paid to the WILSON HOME FOR CRIPPLED CHILDREN at Takapuna for the purpose of purchasing equipment for use in the Home AND I DECLARE that the receipt of the Secretary for the time being shall be a sufficient discharge to my Trustee.

[6] By that clause Mrs Lyons devised a life interest in the Trafalgar Street property to Earl Arthur Lister. Mr Lister was the father of the applicant, Ms Lister. He died on 31 October 2011.
[7] Since her father’s death, Ms Lister has been asserting, on various grounds, that the Trafalgar Street property is part of her father’s estate and so she is entitled to it.
[8] Before Associate Judge Christiansen Ms Lister argued:^[5]

• (a) Section 64 of the Property Law Act 2007 confirms that, as she is Mr Lister’s daughter and one of the issue (a niece) substituted by Mrs Lyons’ will, there has been lapse in the continuum of the absolute gift of the property. Therefore the gift over, of the net proceeds from the sale of the property, to the Wilson Home Trust, has failed.
• (b) By cl 3(c) of her will Mrs Lyons gave Mr Lister absolute discretion to alienate his interest. When a testator makes a bequest to a beneficiary and goes on to say “and in the case of death” of the beneficiary then over to another, the first person will take absolutely if that first beneficiary survives the testator. The gift over can take effect only if the first beneficiary dies in the lifetime of the testator.
• (c) Real property goes on the death of the owner to her executor. Mr Lister is the executor of the will of Mrs Lyons. If, however, Mrs Lyons’ property has not been alienated, Ms Lister, as “issue” and the person appointed executor by virtue of s 13 of the Administration Act 1969 and Mrs Lyons’ will, takes the property — absolutely.

[9] None of these arguments found favour with the Associate Judge. He concluded:^[6]

[27] Ms Lister’s belief that the reversion is a gift over that has failed is incorrect. Her belief that the flat falls into Ms Lyons residual estate and therefore that she will inherit through her father Mr Lister is also incorrect. Finally Ms Lister’s belief that she is entitled to absolute ownership of the flat as a trustee is incorrect because she does not by virtue of that position take absolute title to that property.

[28] Therefore Ms Lister’s claims of an absolute interest in the flat by virtue of her executorship of the two estates or by virtue of her being the daughter of Mr Lister must fail. It follows that the claim based on s 64 of the Property Law Act cannot succeed.

[10] On review, Asher J considered these same arguments. For reasons the Judge explained in some detail — but which we need not repeat here — Asher J agreed that each of Ms Lister’s arguments was untenable. It suffices to set out these two passages from Asher J’s judgment:^[7]

[12] The key flaw in Ms Lister’s reasoning is her lack of recognition of the distinction between the beneficial and legal interests, and her unwillingness to accept Mrs Lyons plain intention that the proceeds of sale after her brother’s death go to the Wilson Home Trust. The property never became part of Mr Lister’s estate. He only had a right to live there during his life. The home was always part of Mrs Lyons estate and was separate from the residual estate referred to in paragraph 4.

...

[20] The legal position is indeed entirely straightforward. Mr Lister got a freehold estate in the property, but it was only a life estate which ceased upon his death. The Wilson Home Trust had a beneficial interest in the property as a remainder, and the land reverted to Mrs Lyons estate on the death of Mr Lister and then in accordance with the trust that was created, was to be transferred to the Wilson Home Trust.

[11] Justice Asher considered Ms Lister’s cause of action against the Wilson Home Trust “clearly untenable” and dismissed Ms Lister’s application for review.^[8]
[12] The interpretation placed on cl 3(c) of Mrs Lyons’ will by Associate Judge Christiansen, confirmed on review by Asher J, is correct, for the reasons given by the two Judges. The arguments Ms Lister put to the High Court and repeated to us are untenable and misconceived.
[13] In support of her application to this Court Ms Lister relied, we think for the first time, on s 230 of the Property Law Act:

230 Merger of reversion not to affect remedies

(1) This section applies to a lease if the reversion expectant on the lease is merged in a remainder or other reversion, or in a future estate or interest in the land.

(2) The person entitled to the estate or interest into which that reversion has merged has the same remedies for non-performance or nonobservance of the covenants or conditions of the lease, and has the same rights to give notice to the lessee of termination of the lease, as the person who would for the time being (but for the merger) have been entitled to the reversion expectant on the lease would have had.

[14] Section 230 is the first section in sub-pt 4 — Effect on leases of transactions concerning reversion — of the Property Law Act. By its terms, s 230 “applies to a lease ...”. There was no lease here: Mrs Lyons did not lease the property to Mr Lister. Rather, she devised a life interest in the property to Mr Lister. Section 230 has no application.
[15] The proposed second appeal to this Court therefore lacks any merit and has no prospect of success. We can say that with confidence, because the interpretation of the will is clear, and nothing new could emerge if this Court heard the proposed second appeal substantively.
[16] The proposed appeal is accordingly not one that raises any question of law or fact capable of genuine and serious argument on further appeal, and is not one of sufficient importance to warrant the costs and delays involved in a second appeal. The arguments advanced by Ms Lister have been carefully gone into once, and then even more thoroughly a second time, by the High Court. Unsurprisingly — because the interpretation of the will is straightforward — the answer has been exactly the same on both occasions. We can see no realistic prospect — indeed we can see no prospect at all — that the outcome would be any different if this Court heard the proposed second appeal.
[17] Accordingly, Ms Lister’s application for an extension of time to apply for special leave for a second appeal to this Court is dismissed.
[18] Mr Hallowes did not seek an order for costs. Accordingly, there will be no order as to costs.

Solicitors:
Schnauer and Co, Auckland for Respondents

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^[1] Lister v Pegg Ayton Gordon Trustee Ltd & Ors [2014] NZHC 2553 [Judgment of Asher J].

^[2] Lister v Pegg Ayton Gordon Trustee Ltd & Ors [2014] NZHC 1956 [Judgment of Associate Judge Christiansen].

^[3] Lister v Pegg Ayton Gordon Trustee Ltd & Ors [2015] NZHC 839.

^[4] The Registrar of the High Court refused to accept for filing that judicial review application. Ms Lister then sought to review the Registrar’s decision. In an on the papers judgment delivered on 5 June 2015, Ellis J held the High Court has no jurisdiction to judicially review a decision of one of its own Judges or Associate Judges: Lister v The (Deputy) Registrar of the High Court of New Zealand Auckland Registry [2015] NZHC 1246.

^[5] Judgment of Associate Judge Christiansen, above n 2, at [8]–[12].

^[6] Judgment of Associate Judge Christiansen, above n 2.

^[7] Judgment of Asher J, above n 1.

^[8] At [21].