Public Trust v Jaffe

[2025] NZHC 1941

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-000718

[2025] NZHC 1941

IN THE MATTER OF

The Estate of Eric Isadore Jaffe

BETWEEN

PUBLIC TRUST

Applicant

AND

ROCHELLE ESTHER JAFFE

Respondent

Hearing:

3 July 2025

Appearances:

G Cairns for the Applicant

No appearance by or on behalf of the Respondent

Judgment:

15 July 2025

JUDGMENT OF POWELL J

This judgment was delivered by me on 15 July 2025 at 3.30 pm.

Pursuant to R 11.5 of the High Court Rules.

…………………..

Registrar/Deputy Registrar

PUBLIC TRUST v ROCHELLE ESTHER JAFFE [2025] NZHC 1941 [15 July 2025]

[1]                 The Public Trust seeks an order pursuant to s 135 of the Trusts Act 2019 (the Act) barring the respondent, Rochelle (known as Shelley) Jaffe, from bringing a claim against the estate of her father, Eric Isadore Jaffe, and authorising the Public Trust to administer the estate without regard to Ms Jaffe’s claims.

[2]Section 135 relevantly provides:

135     Trustee may apply to court to bar claims

(1)The court may, on an application by a trustee,—

(a)bar a claim by any person that directly or indirectly affects the trust property, including a claim against the trustee personally; or

(b)authorise the trustee to administer the trust property without regard to the person’s claim.

(2)Before making an application, a trustee must have served on the person, in accordance with the rules of court, a notice—

(a)describing the general nature of the claim as the trustee understands it to be; and

(b)stating that if a legal proceeding is not, within 90 days after the service of the notice, commenced to enforce the claim, a court may bar the claim or authorise the trustee to administer the trust property without regard to it.

[3]                 In this case, having been made aware that Ms Jaffe was claiming an alleged debt of $300,000, being advances made to her father from 1980, a notice pursuant to s 135(2) of the Act was served on Ms Jaffe on 31 October 2024 but no proceedings were filed by Ms Jaffe. As a result, the present application was brought. Since these were commenced Ms Jaffe has again taken no steps and this application therefore proceeded by way of formal proof. The issue to be determined is whether a barring order should be made pursuant to s 135(1) of the Act.

Background

[4]                 The Public Trust is the executor and trustee of the Estate of Mr Jaffe, who died in November 2022.

[5]                 The estate is relatively modest. There is one major creditor with an agreed debt of $325,000, which results the estate having a net value of $163,476.75, excluding legal and administration fees.

[6]                 The sole beneficiaries of the estate are Mr Jaffe’s daughters, Ms Jaffe and her sister Lauren Kitchin.

[7]                 On 15 October 2023, Ms Jaffe’s solicitor put the Public Trust on notice that Ms Jaffe sought repayment of an alleged debt of $300,000, purportedly for advances made during the lifetime of Mr Jaffe. The email also contained reference to two other specific claims:

(a)An alleged half share in proceeds from the sale of a Browns Bay property sold in 2014; and

(b)Expenses incurred by Ms Jaffe on behalf of the estate following the death of Mr Jaffe.

[8]                 What was described as a “formal claim” against the estate for repayment of the sum of $300,000 was then emailed by Ms Jaffe’s solicitor on 22 December 2023, accompanied by an unsworn affidavit on behalf of Ms Jaffe. A sworn copy of this affidavit was not provided until 5 May 2024. The affidavit identified a number of advances said to have been made by Ms Jaffe to Mr Jaffe from 1980 onwards, and included the advances said to have been made in respect of the Browns Bay property prior to its sale in 2013.

[9]                 Ms Jaffe deposed that Mr Jaffe acknowledged the monies owing to her, and provided her own notes of discussions  with  her father to  that  effect.  She stated  Mr Jaffe was intending to have the amounts owing to her recorded in a new will in 2016 but this was never signed, and indeed the draft provisions of that unsigned will are somewhat equivocal. Ms Jaffe similarly deposed that Mr Jaffe had dictated “a form of acknowledgment of debt/loan” that Ms Jaffe wrote down as Mr Jaffe dictated it, and stated that this document was signed although she has been unable to locate a copy of such a deed, at the time she swore the affidavit or subsequently.

[10]             On 18 January 2024, Ms Jaffe’s solicitor advised the Public Trust that no deed of the copy of acknowledgement of debt had been located and that Ms Jaffe would issue proceedings to prove the debt against the estate.

[11]             No proceedings were issued and indeed no other steps were taken by Ms Jaffe. Instead, on 31 October 2024, the Public Trust issued its notice under s 135(2). This provided:

TO:     Rochelle Esther Jaffe (also known as Shelley Esther Jaffe)

In the estate of Eric Isadore Jaffe

Take notice that pursuant to Section 135 of the Trusts Act 2019, Public Trust, in its capacity as executor and trustee of the Estate of Eric Isadore Jaffe (the “Trustee”), hereby calls upon you to take legal proceedings within a period of 90 days from the date of service of this notice upon you to enforce your claim and also to prosecute the proceedings with all due diligence. Pursuant to s 135(2)(b) of the Trusts Act 2019, if a legal proceeding is not, within 90 days after the service of the notice, commenced to enforce the claim, a court may bar the claim or authorise the Trustee to administer the trust property without regard to it.

The Trustee’s understanding in respect to the general nature of the claim is as follows:

1.You allege that you advanced to Eric Isadore Jaffe sums of money totalling $300,000 as a loan or series of loans from around 1980 to 2001 (“Alleged advances”).

2.The Trustee is unable to accept your claim in respect to the Alleged Advances as there is insufficient evidence provided to the Trustee in support of there being any debt owing.

3.The period of time in which you claim the Alleged Advances occurred, now raises a limitation defence.

4.The Trustee wishes to repay all proven debts and distribute the estate and considers it necessary to resolve or bar your claim in respect to eh Alleged Advances in order to do so.

[12]             As noted, no proceedings were issued by Ms Jaffe within the time specified, that is by 29 January 2025, or subsequently.

Discussion

[13]             Having considered the application, the submissions filed in support, and the evidence adduced, I conclude it is appropriate to make the order as sought.

[14]             While Ms Jaffe provided some detail with respect to her potential claims and despite her solicitor acknowledging the proceedings would have to be issued should she wish to pursue them, no proceedings have, at any time, been forthcoming.

[15]             I am satisfied the s 135(2) notice was adequate in the circumstances. The notice summarised “the general nature of the claim”, and although it suggests the advances were “around 1980 to 2001,” and Ms Jaffe’s affidavit clearly refers to advances after 2001, Ms Jaffe cannot have been under any misapprehension that the notice included all of her potential claims given the notice referred to the advances by Ms Jaffe of “sums of money totalling $300,000” which matches the information about the claim provided by Ms Jaffe.

[16]             As the major creditor of the estate is not able to be paid out prior to resolving Ms Jaffe’s claim, it was entirely appropriate for the Public Trust to issue the s 135(2) notice. Not only have no proceedings been issued since that time, but no steps of any kind have been taken by Ms Jaffe on this application, still less has any kind of explanation been provided as to why no steps have been taken to issue proceedings to date, or indeed that there is any plan to do so in the future.

[17]In the circumstances, there can be no reason not to make the order as sought.

Decision

[18]             Pursuant to s 135(1) of the Trusts Act 2019 an order is made barring any claims by Rochelle Esther Jaffe based on advances to Eric Isadore Jaffe from 1980 totalling

$300,000, and authorising the Public Trust to administer the estate of Eric Isadore Jaffe without regard to any such claim.

[19]There is no order as to costs.

Powell J