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 DefendantLORRAINE 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.
[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.
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