Riley v Perpetual Trust Ltd [2020] NZFC 9645

Published 10 May 2021

Application to bring proceedings out of time — limitation of actions — merits of case — prejudice to parties — Law Reform (Testamentary Promises) Act 1949, s 6 — Bearman v Hardie Boys [1973] 2 NZLR 204 — Van Uden v Van Uden [2013] NZHC 520. The applicant applied for leave to commence proceedings under the Law Reform (Testamentary Promises) Act ("the Act") out of time. The application came some six years after the limitation period under s 6 of the Act allowed. The applicant's sister appeared as an interested party. When considering an application to commence proceedings out of time, a court had to consider the extent of the delay; the reasons for the delay; prejudice to others; and the merits of the applicant's case. The applicant's parents had owned a substantial farm which he had worked on for some 46 years since age 19. During this time he claimed his father had promised him he would be compensated for all of his work, in particular that he would be compensated in his parents' wills. Prior to the father's death, the parents gifted the applicant 100 acres of land and their daughter (the applicant's sister) a sewing machine. After the mother died in 2013, there was a dispute as to the meaning of a clause in the will, which the applicant interpreted to mean he would be able to buy his sister's share of the farm after having deducted what he had put into it by way of physical and financial investment. A legal opinion sought advised that the clause did not allow offsetting for the work done, but that the applicant may still have a claim under the trust or under the Act. The current proceedings were commenced in early 2020. The Judge considered the evidence and comparable cases and concluded that six years was an unreasonable amount of time in which to commence proceedings, and that the application failed on this ground alone. However for completeness the Judge considered the other factors, noting that the delay was for the most part the applicant's own doing, that the delay had already prejudiced his sister because she had not received her inheritance, and there would be difficulty in establishing that the promise had in fact been made. The application was dismissed.