COURT OF APPEAL

New Zealand Times, Volume LII, Issue 12181, 4 July 1925, Page 2

COURT OF APPEAL

A FAMILY DISPUTE SOUTH ISLAND CASE APPELLANTS SUCCESSFUL The Court of Appeal (the Chief Justice, Sir Robert Stout, Mr Justice Sim, Mr Justice Herd man, Mr Justice MacGregor, and Sir Justice Alters) was occupied yesterday in hearing the ease of an appeal from the judgment of Mr Justice Ostler, in the estate of John Patchett, the appellants being George William Patchett, Robert Patchett, Bernard Patchett, and Roy Patchett. The respondent was Charlotte Hyndman, daughter of deceased. In the court below respondent testified that she, her husband, and family lived rent free in a house belonging to deceased from 1903 to 1918. The deceased lived with them, was not charged for lodging, and employing the husband at 30s per week. Also that although the husband ceased in 1918 to be so employed, deceased stayed on ' until' September, 1924, when he died at the age of 82. He did not pay for board and lodging between 1918 and 1924. and received in addition a considerable amount of attention from his daughter, whom he omitted altogether from his will. She claimed provision out of the estate, or alternatively iil9s for hoard during the period mentioned. During the trial the respondent applied to increase the claim on quantum meruit for services rendered- The judge had held that the claim was a just' one, and awarded £3OB 15s in favour of respondent. Appeal was now sought on grounds that the judgment wgs erroneous in law. the amount wrongly assessed, and the judgmnet not in accordance with the statement of claim, and that any amendment to the claim was wrong in law. Mr H. Mills appeared for the respondent, and Mr T. F. Relling (appellant) for the appellant. NO DEFINITE CONTRACT Counsel for the appellant argued that in order to find in favour of plaintiff as had been done, it would haive been nfipessgry to prove a definite contract. No such contract was proved or even alleged. His Honour had found in such a way as to negative the existence of, such a contract. He stated in his judgment'that the plaintiff was induced to carry op as die had done on'the understanding that the testator would leave the house to herself and her husband. In her evidence the woman had said that there was no agreement between herself ' and her father——

Mr Justice MacGregor: Did you gslr for a nonsuit ? Counsel: As a matter of fact the oucstion of law was not argued. His Honour Mr Justice Ostler was in a hurry to catch a boat, and i?as not. prepared to wait. Continuing, counsel ftiqted that as a matter of fapt the Hyndman’s had beep induped to come down to Blenheim on a promise that something jvquld ho given to them under the will. Mr Justice' Qstlpr had,, found that Mre Hyndman had contipuedod to occupy the" house under that expectation. Mr Justice .Sim: He finds more than that. He finds that there was up actual understanding. Continuing, counsel said iligt this fact was borne opt by nil old will Under which t.he daughter was to benefit, and submitted that if this were allowed it definitely negatived the existence of a , contract. He quoted authorities to show that a case could not succeed, where a person bud corit* E). v e service in the expectation of receiving benefit'under a will. He contended further tjiat tjie judgment was inequitable as the benefit received by Mrs Hyndman was at least equal to that conferred on tile father by services rendered. The Chief Justice: The only scrv ices rendered were those of giving the father fqod and looking after himP Mr Justice Merely those called fpr by piety , and filial duty. '

Proceeding, counsel held that it was reasonable i'6 suppose that the daughtef would have continued tq ocpiipy the house even if there were no expectation of benefit, as she was really a material gainer by the arrangement. As a matter of fact, she did get the use of flip hquse pept-free for six months, under the provision? of the Will- ' "

Mr . Mills, for respondent, outlined the circumstances under which plaintiff had come to Blenheim, being uj T dticpd' thereto by an express promise of benefit under ihe will. The errangem.ent that was made at that time, howdyer,' ceased in 1918, and it was fropi that time on that the present claim for services was being made. The Chief Justice: put where is your contract: There was fi,o contract made'fop sejrvicps rppffergd. tan you say that there wps any contract made to supply 'services and keep house ?'■ You cannot. Therefore, you cannot claim on that score.

.Mr Justice MacGregor: I think your difficulty is two-fold- You have to prove firstly, that there was a contract either expressed or implied and secondly, you ljave to prove this claim. Counsel jvas proceeding to argue that when services could be proved, that then the onus was on the ether side to disprove a contract when' the' Chief Justice interrupted hv stating “That i? not law, Mr Mil)? I”

dyp.GJMEMT FOR APPELLANTS In giving judgment for thp appellant, the Clhief Justice said that it was not reasonable to suppose that a contract for payment for food " and attendance would' ho made l>y testator while lie was living in his own house, and his daughter and her husband were living with him. There Was no doubt that if a person asked for certain services to be performed for him, then a claim could be madp on quantum meruit., but in this case this had not been done. Mrs 'Hyn&ronn had said in evidence that she had looked after her father because she expected that the bouse would be loft to her. As a matter of fact the house waa loft to her for six months. Hho pad, therefore, benefited, and there was no express contract as to the extent of benefit she should receive. If the father find comb to tho conclusion that fim was fn q better position than other members of the family, he was entitled to cut her out from further benefit. The estate was worth about' £ISOO, arid the evidence showed that Mrs Hynduian’s husband had a suhsjmpiial bank balance, and was in receipt of a good wage. Mr Justice Ostler had arrived at the conclusion that she con'd not claim under the Family Protection Act, probably because lie had seen that she was better off than other member? of the family. He did not see therefore, that tho judgment cou)d be upheld. Their Honours Justices Sim. Herdman. MacGregor, arid Alpers concurred in tho decision, arid the appeal was allowed, with costs on the lowest scale.