Moleta v Darlow - [2022] NZHC 620

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 620

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:

31 March 2022

JUDGMENT OF HINTON J

(Costs)

This judgment was delivered by me on Thursday 31 March 2022 at 4.30 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 620 [31 March 2022]

[1] On 5 August 2021, I gave judgment in favour of the defendants.1 The plaintiff (Dellisse), the second defendant (Jolene) and the third defendant (Lorraine) are all sisters. This proceeding arose in unfortunate circumstances following the death of their mother, Mrs Moleta.

[2] Jolene and Lorraine originally made claims in the Family Court for further provision from their mother’s will under the Family Protection Act 1955 (the FPA claims). Dellisse subsequently brought a claim against the estate in this Court alleging that properties owned by the estate are partly held on constructive trust for her (the Constructive Trust claim). The FPA claims were transferred and the proceedings heard together before me in the High Court in a five day trial.

[3] I found that the properties owned by the estate are not owned on constructive trust for the benefit of Dellisse. As a result, Dellisse’s Constructive Trust claim was dismissed. I also found that Mrs Moleta had breached her moral duty to both Jolene and Lorraine. To remedy that breach, I ordered that Mrs Moleta’s final will be varied to provide each of them with $950,000 from the estate. In sum, Jolene and Lorraine were the successful parties on both claims.

[4]The first defendant, the executor of the estate Mr Darlow, does not seek costs.

[5]Jolene seeks:

(a)costs calculated on a 2B basis on the High Court scale for all steps taken in relation to her FPA claim in the High Court;

(b)costs calculated on a 2B basis on the District Court scale for all steps taken in relation to her FPA claim in the Family Court;

(c)costs on a 2B basis with a 50 per cent uplift for all steps taken in respect of the Constructive Trust claim because the claim lacked merit and Dellisse failed to comply with directions of the Court;

1 Moleta v Darlow [2021] NZHC 2016.

(d)costs on a 2B basis for steps taken in support of Lorraine’s interlocutory application to remove Dellisse as executor of Mrs Moleta’s estate; and

(e)costs on a 2B basis with a 50 per cent uplift for steps taken in opposition to Dellisse’s application to adjourn the trial because Dellisse contributed unnecessarily to the time and expense of the application.

[6]In total, Jolene seeks a costs award of $124,449.50 plus disbursements…

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 620
Case: [2022] NZHC 620
Decision Date: 31 March 2022

CaseChat Overview and Summary

The High Court of New Zealand was asked to decide the costs of a case between Dellisse Moleta, Jolene Schollum, Lorraine Moleta, and Christopher Robert Darlow, the executor of their mother's estate. The dispute arose from claims under the Family Protection Act 1955 and a claim for constructive trust over properties owned by the estate. In a previous judgment, the court found in favor of Jolene and Lorraine, ordering variations to the final will to provide them with financial provision from the estate. Jolene and Lorraine sought costs, arguing that Dellisse's claims were meritless, she failed to comply with court directions, and they should receive increased costs as a result. Dellisse opposed the costs application, arguing that her claims were not without merit and she complied with court directions as much as possible. The court found that Jolene and Lorraine were entitled to costs as successful parties, with a 50% uplift for steps taken in relation to the Constructive Trust claim. The court declined to award a 25% uplift for one step in the Family Protection Act claim and certification for second counsel. The costs were ordered against Dellisse personally, but the court reserved the right to order that they be paid from her share of the estate. Lorraine was awarded $126,071.75 in costs and disbursements of $6,529.50, while Jolene was awarded $124,449.50 in costs and disbursements of $3,308.13. The court also awarded costs for steps taken in relation to interlocutory applications.

Orders