Moleta v Darlow - [2022] NZHC 1330

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-858

CIV-2019-404-1469 [2022] NZHC 1330

UNDER Part 18 of the High Court Rules 2016

BETWEEN

DELLISSE MOLETA

Plaintiff

AND

CHRISTOPHER ROBERT DARLOW

Defendant

JOLENE SCHOLLUM
Second Defendant

LORRAINE MOLETA

Third Defendant

Hearing: On the papers

Judgment:

27 May 2022

JUDGMENT OF HINTON J

(Costs No 2)

This judgment was delivered by me on Thursday 26 May 2022 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:…………………………

Solicitors:
Grove Darlow, Auckland (First Defendant)
McVeagh Fleming, Auckland (Second Defendant) Greg Kelly Law Limited, Wellington (Third Defendant)

Copy to:
Plaintiff

MOLETA v DARLOW [2022] NZHC 1330 [27 May 2022]

[1] The substantive dispute in this matter concerned claims to the estate of Mrs Moleta. Two of her daughters, Jolene Moleta and Lorraine Schollum, claimed further provision under the Family Protection Act 1955, whereas a third daughter Dellisse claimed a constructive trust over properties owned by the estate.

[2] I gave judgment on 5 August 2021 in favour of Jolene and Lorraine.1 On 31 March 2022, I delivered a costs judgment awarding costs against Dellisse in favour of the Jolene and Lorraine.2 I reserved the question of whether those costs could be ordered to be paid out of Dellisse’s share of the estate. Having received further submissions, this judgment addresses that matter.

[3]Dellisse, who now represents herself, makes submissions to the effect that:

(a) the costs awarded were unreasonable in quantum; (b) the parties should bear their own costs; and (c) costs should be borne by the estate, including her costs. I have already dealt with these issues in my judgment of 31 March 2022 and make no further comment on them. There is no point raised that goes to the question of costs being paid from Dellisse’s share of the estate.

Discussion

[4] The defendants submit that the starting point is the High Court Rules 2016, r 14.1, which provides that all matters relating to costs are at the discretion of the Court.3 I am not sure that this rule goes so far as to empower the Court to make the order still at issue.

[5] However, the defendants also note that ss 4 and 5 of the Family Protection Act 1955 (the Act) relevantly provide:

4Claims against estate of deceased person for maintenance

(1) If any person (referred to in this Act as the deceased) dies, whether testate or intestate, and in terms of his or her will or as a result of his or her intestacy adequate provision is not available from his or her estate for the proper maintenance and support of the persons by whom or on whose behalf

1      Moleta v Darlow [2021] NZHC 2016.
2      Moleta v Darlow [2022] NZHC 620.
3      In relation to steps taken in the Family Court, the Family Court Rules 2002, r 207 provides the same discretion.

application may be made under this Act, the court…

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 Moleta v Darlow

Details

AGLC: Moleta v Darlow [2022] NZHC 1330
Case: [2022] NZHC 1330
Decision Date: 27 May 2022

CaseChat Overview and Summary

The High Court of New Zealand was asked to decide whether costs awarded against one party could be paid out of their share of the estate of the deceased. The deceased's estate was the subject of claims under the Family Protection Act 1955, with two daughters claiming further provision and another claiming a constructive trust over properties owned by the estate. The court had already ruled in favour of the two daughters and awarded costs against the third daughter, Dellisse, who now represented herself. The court reserved the question of whether the awarded costs could be paid from Dellisse's share of the estate. Dellisse argued that the awarded costs were unreasonable, the parties should bear their own costs, and the costs should be borne by the estate, including her own costs. The court examined the relevant provisions of the Family Protection Act 1955 and case law, and found that it had the power to order that costs of successful claimants against an estate can be met from a particular beneficiary's portion of the estate. The court ordered that the costs awards set out in its earlier judgment shall be paid out of Dellisse Moleta's share of the estate.

Orders