Supreme Court - This summary is provided to assist in the understanding of the
Court’s judgment. It does not comprise part of the reasons for that
judgment. The full judgment with reasons is the only authoritative
document.
The full text of the judgment and reasons can be found
at Judicial Decisions of Public Interest www.courtsofnz.govt.nz
In 1993 Mrs Greenfield and her husband left New Zealand to serve as
missionaries in Singapore. They enjoyed residency status there, were
treated as Singaporean residents for tax purposes, and were eligible to
apply for Singaporean citizenship.
The Greenfields have, however,
maintained significant connections with New Zealand. They have
children and grandchildren living in New Zealand where they retain
property and spend around three weeks a year with additional visits for
medical treatment and family reasons. They have always intended to
retire to New Zealand but have not yet set a date for their return.
Mrs Greenfield turned 65 on 1 February 2012 and shortly afterwards
applied for New Zealand Superannuation.
GThis application was declined
by the Chief Executive of the Ministry of Social Development on the
ground that she was not “ordinarily resident in New Zealand”, as is
required by s 8(a) of the New Zealand Superannuation and Retirement
Income Act 2011. The Chief Executive’s decision was upheld by a
Benefits Review Committee and by the Social Security Appeal Authority.
Mrs Greenfield appealed successfully against the Authority’s decision to
the High Court, but a subsequent appeal by the Chief Executive to the
Court of Appeal was allowed. Mrs Greenfield was then granted leave to
appeal to the Supreme Court; the approved question being whether the
Court of Appeal had correctly interpreted the phrase “ordinarily resident
in New Zealand”.
Counsel for Mrs Greenfield submitted that the Court of Appeal had
placed insufficient weight on Mrs Greenfield’s intention to retire to
New Zealand. It was further submitted that the Court of Appeal had
erred in holding that the phrase “ordinarily resident in New Zealand”
necessarily required more than casual physical presence in New
Zealand. Counsel for the Chief Executive argued that the interpretation
that the Court of Appeal had adopted was correct. It was submitted that
a close and clear connection between an applicant and New Zealand
was necessary to give effect to the purpose of the legislation; and that
s 8(a) required an applicant for New Zealand Superannuation to show
that on the date of their application they usually physically lived in
New Zealand, with any absences from New Zealand being only
temporary.
In a unanimous decision the Supreme Court has dismissed the appeal.
While an intention to ultimately return to New Zealand is relevant to the
assessment of whether an applicant is “ordinarily resident” in the country
for the purposes of s 8(a), such an intention is not in itself determinative.
The domestic realities of an applicant’s life must also be considered, and
a person will not be considered “ordinarily resident in New Zealand”
during lengthy and non-temporary absences, particularly if during such
absences another country is regarded as home. This conclusion has
been reached in light of a consideration of the overall scheme of the
legislation and the statutory history. It draws further support from
previous High Court decisions.
Contact person: Gordon Thatcher, Supreme
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