Under an earlier family agreement, it was to be sold upon their mother’s death and the proceeds distributed among siblings, according to the wishes of the parents, who had separated years earlier.
Justices Dame Ellen France DNZM, Sir Joe Williams KNZM and Sir Stephen Kós KNZM disagreed with Terence’s argument that it raised questions of general or public importance and that there would be a miscarriage of justice if the matter was not heard in the Supreme Court.
They said that, while his appeal rights “weighed heavily in the balance”, there were other interests at stake.
Mother ensured all children received a share
Terence lived in the Auckland home with his mother, Vailima Easthope, who died in August 2021.
Their father, Malu Ale, from whom their mother was separated, died in November 2000.
The couple had four children: Marion, Terence, Joyce and Leonard.
Under an earlier family agreement, the family home was to be sold upon the mother’s death and the proceeds distributed among siblings, according to the wishes of the parents who had separated years earlier. Photo / 123rf
In Ale’s will, he left his estate to be shared equally between his ex-wife, Vailima, and one of their daughters, Joyce.
Vailima had configured her will to ensure all four children gained at least a share in the estate.
She stated that, upon her death, her half-share in the estate was to be divided equally among the remaining three children, Marion, Leonard and Terence.
After Vailima died, Marion, as executor of their father’s estate, and Leonard, as executor of their mother’s estate, entered a Deed of Family Arrangement.
Under this deed, the Mt Eden property was to be sold and the proceeds distributed, with one-half paid to Vailima’s estate to be distributed in accordance with her will, and the other half in accordance with Ale’s will.
But Terence refused to move.
Notice to leave served
Marion then arranged for him to be served with a notice to leave the property so it could be sold.
He refused, having lived there since about 2001 or 2002, the Supreme Court decision said.
Marion then sought a fast-track court procedure used to remove occupants without a full trial.
The legal term, known as summary judgment and vacant possession, can be granted on occasions when a court is satisfied there is no valid, arguable legal defence to someone remaining on a property.
The High Court granted summary judgment and vacant possession, but Terence appealed that decision in the Court of Appeal.
‘No claim to full ownership’
In declining a stay, or a halt on proceedings, the Court of Appeal said Terence had no claim to full ownership of the property, and there was no suggestion he was either willing or able to buy out the interests of the other beneficiaries.
The court said his principal claim was not against the property itself but against his mother’s estate, which was limited to a one-half share in the value of the property.
The Court of Appeal also took the view that the effect on third parties, particularly the other beneficiaries, was important.
It said Terence’s actions meant the estates were incurring costs, therefore reducing the net benefit to the others.
It agreed with the High Court that the prospects of success on appeal were low.
“It was not realistic to consider the applicant would increase his share of the property to more than 50%,” Justice Geoffrey Venning said.
Terence’s effort to appeal to the Supreme Court was on the basis that a stay should have been granted and that the Court of Appeal erred in declining it, because even if successful on appeal, he would not obtain possession of the property.
The Supreme Court said the lower court had applied “settled principles to the application for a stay” and that no question of general or public importance had arisen.
“Nor do we consider there is an appearance of a miscarriage of justice as that term is used in the civil context,” the justices said.
‘Not necessary’ to hear appeal
The court gave weight to the undertaking given by Terence’s siblings, as executors of the respective estates, to provide some protection for his interests.
“In these circumstances, it is not necessary in the interests of justice for the court to hear the proposed appeal.
“The application for a stay in this court accordingly falls away,” the Supreme Court justices said.
Tracy Neal is a Nelson-based Open Justice reporter at NZME. She was previously RNZ’s regional reporter in Nelson-Marlborough and has covered general news, including court and local government, for the Nelson Mail.