Cochrane v Moulden - [2024] NZHC 3877

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-001988

[2024] NZHC 3877

IN THE MATTER OF the Estate of Olwyn Betty Jean Moulden

BETWEEN

JANENE BARBARA COCHRANE and TERENCE RONALD MOULDEN

Applicants

AND

WARREN JOSEPH MOULDEN

First Respondent

SINCLAIR DOWSETT MEGGITT
Second Respondent

ASB BANK LIMITED

Third Respondent

BANK OF NEW ZEALAND
Fourth Respondent

TAB NEW ZEALAND

Fifth Respondent

Hearing: 28 November 2024

Appearances:

L Lindsay and L McNeely for the Applicants D Collecutt for the First Respondent

Judgment:

17 December 2024

JUDGMENT OF WALKER J

This judgment was delivered by me on 17 December 2024 at 4 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

COCHRANE & Anor v MOULDEN & Ors [2024] NZHC 3877 [17 December 2024]

[1] Olwyn Betty Jean Moulden (Betty) died at the age of 93 on 24 September 2023. She is survived by three adult children: the applicants Janene Cochrane (Janene) and Terence Moulden (Terry), and the first respondent, Warren Moulden (Warren).1 Warren is the executor and sole named beneficiary of Betty’s estate.

[2] Betty executed wills in 1994, 2003 and 2018. The 1994 Will was executed when her husband, Ron, was alive.2 Betty and Ron executed mirror wills in which their three children were to share equally in the estate of the surviving parent and appointing Terry as executor and trustee, with Janene and Warren to jointly hold those roles if Terry died before his parents. Ron died in 1996.

[3] Betty’s 2003 Will materially altered matters. It removed Janene and Terry as residuary beneficiaries, leaving only specific gifts of jewellery to Janene and her granddaughters and appointing Warren as the sole executor and trustee. That is, the remainder of the estate was left entirely to Warren. Janene and Terry were unaware of this fundamental change until after their mother’s death.

[4] That position as to the residue was effectively replicated in Betty’s 2018 Will which also removed the provision of specific gifts of jewellery to Janene and her children. If Warren died before Betty, Terry alone would receive the remainder in contrast to the 2003 Will where both Janene and Terry would receive an equal share. A clause was included in the 2018 Will in the following terms:

I have not provided for my daughter JANENE BARBARA COCHRANE as I have no relationship with her and have not had one for the past 20 to 30 years. WARREN has looked after me all his life and TERENCE has always been on hand to help me with day-to-day matters concerning the home or just my general wellbeing.

[5] This came as a shock to Janene. She deposes that she has had a close and loving relationship with Betty all of her life and the statement in the will is untrue.3 It also appears to be at odds with the provisions in the 2003 Will which Betty executed only 15 years earlier.

1 To avoid confusion, I intend to refer to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cochrane v Moulden

Details

AGLC: Cochrane v Moulden [2024] NZHC 3877
Case: [2024] NZHC 3877
Decision Date: 17 December 2024

CaseChat Overview and Summary

In the case of Cochrane v Moulden, the applicants, Janene Cochrane and Terence Moulden, sought an interlocutory application for pre-commencement discovery against their brother, Warren Moulden, and others, following the death of their mother, Olwyn Betty Jean Moulden. The applicants were concerned about the management of their mother’s estate and the circumstances surrounding the execution of her 2003 and 2018 Wills, which materially altered the distribution of her estate in favour of Warren. The applicants sought documents from 1995 onwards, when they believe Warren’s influence on their mother began to become more pronounced. Warren opposed the application, arguing that it was a fishing expedition and that certain documents relating to his personal financial affairs should be subject to confidentiality protections.

The court had to decide whether the applicants were entitled to pre-commencement discovery under Rule 8.20 of the High Court Rules 2016. This required the court to consider whether the applicants had a real probability of a claim against Warren and whether it was impossible or impracticable for them to formulate the claim without the documents sought. The court also had to determine whether certain documents relating to Warren’s financial affairs should be disclosed on a confidential basis only to the applicants’ counsel.

The court found that the applicants had established the first limb of the test for pre-commencement discovery, as there was a real probability of claims against Warren for undue influence, breach of fiduciary duties, and unconscionability. The court rejected Warren’s argument that certain claims were time-barred, noting that claims of undue influence and breach of fiduciary duties were not subject to the same limitation periods as money claims. The court also found that while Warren’s privacy concerns were valid, they did not outweigh the need for the applicants to review the documents in order to formulate their claims. The court ordered that certain documents be disclosed, subject to confidentiality protections where appropriate.

The final orders of the court required Warren to provide certain categories of documents by a specified date, with some documents to be disclosed on a confidential basis to the applicants’ counsel only. The court also ordered the other respondents to provide relevant documents, with certain documents to be disclosed on a confidential basis where appropriate. The applicants were to pay the costs of the third, fourth, and fifth respondents, while the first respondent’s costs were to be paid by the Estate of Olwyn Betty Jean Moulden. The parties were granted leave to apply to resolve any questions of the terms of the confidentiality undertaking. The court ordered that the first respondent pay 70 per cent of the applicants’ costs, reflecting the applicants’ partial success in the application.

Orders