Moleta v Darlow - [2021] NZHC 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-000858 CIV-2019-404-001469

CIV-2020-404-002264 [2021] NZHC 2016

BETWEEN
DELLISSE MOLETA

Plaintiff

AND

CHRISTOPHER DARLOW

First Defendant

JOLENE SCHOLLUM
Second Defendant

LORRAINE MOLETA

Third Defendant

Hearing: 10–14 May 2021

Appearances:

PJ Kennelly for the Plaintiff

G Williams for the First Defendant PA Fuscic for the Second Defendant

GF Kelly and KH Lawrence for the Third Defendant

Judgment

5 August 2021

JUDGMENT OF HINTON J

This judgment was delivered by me on Thursday, 5 August 2021 at 1 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
Kennelly Law, Orewa Grove Darlow & Partners
McVeagh Fleming, Auckland
Greg Kelly Law Limited, Wellington

MOLETA v DARLOW [2021] NZHC 2016 [5 August 2021]

[1] Mrs Moleta was a woman who loved her children, but she had very strong opinions and high expectations. In different ways her children have paid the price for that. This case follows her death, which occurred in the saddest of circumstances.

[2] Mrs Moleta’s last will named her daughter Dellisse Moleta as sole beneficiary and executor of her estate. Two of her other daughters, Jolene Schollum and Lorraine Moleta have made claims for further provision under the Family Protection Act 1955 (the FPA). Dellisse also then brought a claim alleging that the New Zealand properties owned by the estate are partly held on constructive trust for her.

[3] On 13 October 2020 Moore J removed Dellisse as executor and appointed Christopher Darlow in her place.1

The estate and Dellisse’s assets

[4] The total value of the estate is approximately NZ$5.4 million. At the date of death that was made up of three New Zealand properties worth approximately NZ$3.3 million (net of mortgage debt which is to be allowed for present purposes at approximately NZ$600,000) and three Australian properties worth approximately NZ$2.18 million (net of mortgage debt of approximately NZ$220,000). Those properties are:

(a)120 Norman Lesser Drive, St Johns; 1/97 Michaels Avenue, Ellerslie; and 21A Balfour Road, Parnell.

(b)2B Dent Street, Merewether, New South Wales (NSW); 24/187-189 Cleveland Street, Redfern, NSW; and 124 Miles Street, Menzies, Queensland.

[5] One of the New Zealand properties, Norman Lesser Drive, has since been sold for $2,121,000. The estate’s assets currently comprise the remaining five properties and approximately NZ$1.9 million cash.

1 Moleta v Moleta [2020] NZHC 2680.

[6] In addition, at the date of her death, Mrs Moleta owned six properties jointly with Dellisse, four in New Zealand and two in Australia. These properties are worth in total about NZ$4.6 million. The Australian properties are subject to a mortgage of approximately NZ$1.12 million. These properties passed to Dellisse by survivorship and do not form part of the estate. The total estimated value of Mrs Moleta’s half- share in the six properties is NZ$1.75 million, after the mortgage. Dellisse therefore benefited by survivorship by a total sum of approximately NZ$1.75 million and she now owns the six properties, altogether worth NZ$3.5 million net.

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 [2021] NZHC 2016
Case: [2021] NZHC 2016
Decision Date: 5 August 2021

CaseChat Overview and Summary

The case of Moleta v Darlow involved claims by two daughters against their late mother's estate under the Family Protection Act 1955, as well as a claim by the eldest daughter for a constructive trust over certain properties. The daughters, Lorraine and Jolene, sought additional provision from the estate, which was valued at approximately $5.4 million, comprising New Zealand and Australian properties. The constructive trust claim by Dellisse, the eldest daughter, sought to establish a beneficial half-interest in three New Zealand properties solely owned by their mother at the time of her death. The daughters argued that their mother had breached her moral duty to provide them with proper maintenance and support. The court rejected the constructive trust claim, finding that Dellisse had not made significant contributions to the properties in question and did not have a reasonable expectation of an interest in them. Regarding the Family Protection Act claims, the court found that the exclusion of Lorraine and Jolene from their mother's will constituted a breach of her moral duty. The court awarded each daughter $950,000, reflecting their rightful place in the family and necessary to ensure they could live comfortably without being overly burdensome on the estate. The court reserved costs for later determination.

Orders