Darlow - [2022] NZHC 1763

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-833

[2022] NZHC 1763

UNDER Part 19 of the High Court Rules 2016

IN THE MATTER

of the ESTATE OF JANETTE DIANA MOLETA

AND IN THE MATTER

of an originating application for directions under s 133 of the Trusts Act 2019

BY

CHRISTOPHER ROBERT DARLOW

Applicant

Hearing: 30 June 2022

Appearances:

C G Williams for Applicant

Judgment:

21 July 2022

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 21 July 2022 at 2.30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

Solicitors: Grove Darlow, Auckland Counsel: G C Williams, Auckland

RE DARLOW [2022] NZHC 1763 [21 July 2022]

[1] This is an originating application for directions under s 133 Trusts Act 2019 (“Act”). I heard submissions on the application in the Duty Judge list on 30 June 2022. I also convened a telephone conference with Mr Williams, counsel for the applicant, on 21 July 2022.

[2] The applicant is the executor of the estate of Janette Diana Moleta (“estate”). He seeks a direction that, following the conclusion of an appropriate advertising campaign, he may sell, for the best price offered, a property owned by the estate situated at 21A Balfour Road, Parnell, Auckland (“Parnell property”).

Substituted service

[3] Section 133(2) of the Act provides that an application under s 133 must be served in accordance with the rules of the Court on each person interested in the application.

[4] The interested parties in this case are Ms Dellisse Moleta (“Ms Moleta”), and her siblings Ms Jolene Schollum and Ms Lorraine Moleta (“the plaintiffs”).

[5] By application dated 23 June 2022, the applicant applied for substituted service on each of the interested parties, with service to be effected by email.

[6] The grounds on which the applicant sought substituted service on Ms Moleta was that he does not know her whereabouts and, in any event, he and Ms Moleta have been in the habit of communicating by email.

[7] To the extent necessary, I grant the application for substituted service. I say necessary because the application and supporting documents were emailed to Ms Moleta and her legal representative, Ms Judy Maina, on 9 June 2022. By email to the applicant of 29 June 2022, Ms Maina advised that Ms Moleta would not be entering an appearance and consented to the order sought in the originating application.

[8]The plaintiffs were served on 13 June 2022 and have not taken any step.

Background

[9] The following appears from the applicant’s affidavit of 26 May 2022 and a memorandum from Mr Williams of the same date.

[10] The deceased died on 15 July 2017. Ms Moleta was and is the sole beneficiary of the estate.

[11] The plaintiffs brought proceedings against the estate under the Family Protection Act 1955. Hinton J made awards in favour of each. The estate has paid most of the sums due…

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 Darlow

Details

AGLC: Darlow [2022] NZHC 1763
Case: [2022] NZHC 1763
Decision Date: 21 July 2022

CaseChat Overview and Summary

The case of Darlow involves an originating application for directions under section 133 of the Trusts Act 2019. The applicant, Christopher Robert Darlow, is the executor of the estate of Janette Diana Moleta and seeks an order to sell a property owned by the estate. The interested parties in this case are Ms Dellisse Moleta, and her siblings Ms Jolene Schollum and Ms Lorraine Moleta. The legal issues revolve around whether the court should grant the applicant's request to sell the property and if the order proposed is appropriate.

The court examined the circumstances under which it may give a direction to a trustee pursuant to section 133 of the Act. It was determined that the applicant has power to sell the property, but the decision to do so could not be described as "momentous" as required to bring the matter within the second category of cases. Additionally, the proposed order was considered "open ended" as it would authorise the applicant to sell the property for any price, no matter how modest, provided that it was the best offered after a marketing campaign. The court declined to make the order sought and dismissed the application.

No final orders were made in this case as the application was dismissed. The court's decision highlights the importance of considering the specific circumstances of each case when determining whether to grant a direction under section 133 of the Trusts Act 2019.

Orders