Moleta v Darlow - [2021] NZHC 564

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 564

BETWEEN
DELLISSE MOLETA

Plaintiff/Defendant

AND

CHRISTOPHER DARLOW

First Defendant/Plaintiff

AND

JOLENE SCHOLLUM

Second Defendant

AND

LORRAINE MOLETA

Third Defendant

Hearing: (On the papers)

Counsel:

Patrick Kennelly for the Plaintiff/Defendant Garry Williams for the First Defendant/Plaintiff

Peter Fuscic and Kate Thompson for the Second Defendant Kimberly Lawrence for the Third Defendant

Judgment:

18 March 2021

JUDGMENT OF MOORE J

This judgment was delivered by me on 18 March 2021 at 5:30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar / Deputy Registrar Date:

MOLETA v DARLOW & ORS [2021] NZHC 564 [18 March 2021]

Introduction

[1] Dellisse Moleta (“Dellisse”) applies for an order adjourning the seven-day fixture due to start on 10 May 2021.

[2] The second and third defendants, Jolene Schollum (“Jolene”) and Lorraine Moleta (“Lorraine”) oppose the application and, in the alternative, submit that in the event the application is granted unless orders should be made compelling Dellisse to comply with timetabling directions with a view to any new trial proceeding after mid- July 2021 on a priority basis. In any event they seek costs on a 2B basis with 50 per cent uplift.

[3] The first defendant, Christopher Darlow, the substituted trustee, maintains a neutral position.

Background

[4] I have previously described the background to these proceedings as in “tortuous”.1 The most recent developments add to that complexity. It is necessary to traverse them, albeit briefly, to provide the context for my conclusions which follow.

[5] The proceedings relate to a challenge to the last will of Janette Moleta who died in Auckland on 15 July 2017. Probate was granted out of the Wellington High Court on 20 November 2017. Dellisse, Jolene and Lorraine are the children of Janette.

[6] Janette left her entire estate to Dellisse who she appointed as sole executor. The estate is comprised of three residential properties in Auckland with a combined estimated value of between $4 million and $5 million.

[7] In March and July 2018 respectively, Jolene and Lorraine brought applications in the Family Court under the Family Protection Act 1955 (“the FPA”) seeking an order that Janette had breached her moral duty by failing to make adequate provision for them in her will. Progress towards a fixture in the Family Court was slow, due

1 That please Minute of 12 February 2021. That is no overstatement.

largely to failures by Dellisse to meet various directions primarily, it appears, because of changes in her legal representation.

[8] On 8 May 2019, that is about four months after Jolene had commenced her FPA proceedings, Dellisse filed in this Court a constructive trust claim against the estate. The parties agreed to transfer the FPA claims to this Court to be consolidated with Dellisse’s constructive trust claim.

[9] There then followed a number of procedural skirmishes in this Court. These included the filing of an application for directions…

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 564
Case: [2021] NZHC 564
Decision Date: 18 March 2021

CaseChat Overview and Summary

The application by Dellisse Moleta to adjourn a seven-day trial scheduled to commence on 10 May 2021 was declined by Moore J. The second and third defendants, Jolene Schollum and Lorraine Moleta, opposed the application and sought, in the alternative, orders compelling Dellisse to comply with timetabling directions and costs on a 2B basis with a 50 per cent uplift. The first defendant, Christopher Darlow, maintained a neutral position. The proceedings related to a challenge to the last will of Janette Moleta who left her entire estate to Dellisse, her sole executor. The estate was comprised of three residential properties in Auckland with a combined estimated value of between $4 million and $5 million. Jolene and Lorraine, Janette's daughters, had brought applications in the Family Court under the Family Protection Act 1955 seeking an order that Janette had breached her moral duty by failing to make adequate provision for them in her will. The parties agreed to transfer the Family Protection Act claims to the High Court to be consolidated with Dellisse's constructive trust claim. The court granted an application to remove Dellisse as executor and trustee and appointed Christopher Darlow in her place. Lorraine became aware that Dellisse had transferred the three estate properties into her personal name. Dellisse sought to reassure the court that there was no "ill intent" in the transfer of the titles and that two of the properties should be transferred into Darlow's name. The court convened a telephone conference to discuss these developments and made timetabling directions which required Dellisse to give discovery and inspection of all documents in her possession, power or control relative to her constructive trust claim by 22 January 2021. None of the discovery orders had been complied with by Dellisse. Dellisse's application for an adjournment was declined as the court found that it had been caused by the dilatory nature of her participation in virtually all aspects of this litigation. The court found that there was a strong public interest in the expeditious resolution of this intra-familial dispute. The court ordered that all outstanding discovery by Dellisse was to be completed by 29 March 2021 and that Dellisse's evidence was to be filed and served no later than 5:00 pm on 9 April 2021. Lorraine and Jolene's evidence was to be filed and served no later than 5:00 pm on 19 April 2021. The court also ordered that unless orders relative to Dellisse's obligations to give discovery should be made. Lorraine and Jolene, as successful parties, were entitled to costs. The court invited the parties to consult with a view to reaching agreement and filing a consent memorandum. In the event of disagreement, if any party wished to file any further memoranda on this issue, they were to be filed and served no later than 21 days from the date of this judgment.

Orders