Scott v Garnham

[2021] NZHC 592

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2020-485-99

[2021] NZHC 592

UNDER

the Family Protection Act 1955

IN THE MATTER

of the estate of the late Mary Patricia Scott- Smith

BETWEEN

JAZZ SCOTT

Appellant

AND

MICHAEL ROBERT GARNHAM

Respondent

Hearing:	22 February 2021
Appearances:	S J Zindel for Appellant M R Garnham in Person K L Hoult for A Scott
Judgment:	23 March 2021

JUDGMENT OF COOKE J

[1]                 Ms Jazz Scott appeals against the decision of the Family Court in which she was awarded 10 per cent of her mother’s estate in response to her claims under the Family Protection Act 1955 (the Act).1 In essence she contends the amount awarded is insufficient, and that it should be increased.

Background

[2]                 The relevant facts are not set out in detail in Judge Grace’s decision. To some extent that is understandable given that it was accepted that the testator had breached her moral duties to Jazz, and the only issue to be determined by him was the quantum

1      Scott v Garnham [2020] NZFC 678.

SCOTT v GARNHAM [2021] NZHC 592 [23 March 2021]

of the award that should be made. As the Judge recognised, however he had to first be satisfied that there was a breach of a moral duty under s 4 of the Act before determining quantum, and he duly did so.2

[3]                 I have supplemented the Family Court Judge’s factual findings with facts that are evident from the evidence filed in that Court, particularly the evidence of the executor Mr Michael Garnham. I understand that Mr Garnham sought to provide impartial evidence on the relevant circumstances. Mr Garnham’s firm acted for the deceased, including in preparing various wills which I explain below, and Mr Garnham is now the executor with the agreement of the parties.

[4]                 Jazz is one of three children. A notable feature of the circumstances of this case is that her brother, Mr Paul Scott appears to have taken advantage of his mother while she was alive. The size of her estate has been substantially depleted as a result of events which took place during her life to the financial benefit of Paul and his wife. Paul has played no part in the proceedings. Their mother died on 28 February 2015 leaving a will dated 22 October 2009. The sole beneficiary under that will is Jazz’s sister Ms Ann Scott. Ann accepts that their mother breached her moral duty to Jazz and has been prepared to consent to her receiving 10 per cent of the estate. That was the amount that the Family Court Judge ordered.

[5]                 As the Judge recorded the deceased could at times be difficult and there were examples at various times of both of the daughters being estranged from her.3 There were also periods of time when the deceased lived with Paul and during that time her savings disappeared, a mortgage was registered against her home and Paul and his wife became registered as part owners of the house.4

[6]                 Jazz is 60 years of age. She had a relatively normal relationship with her mother for much of her life through to the 1980s. That included her mother going to stay with her in Hamilton to see her grandchildren, and her grandchildren going to stay with her from time to time. When she was going through a difficult time in her

2 At [23].

3 At [7].

4 At [8].

marriage, her mother went to Hamilton to support her, and took one of the grandchildren back to Wellington for several months during that period. There was also a loan given to Jazz from her mother in the late 1980s.

[7]                 The deceased’s first identified will is dated 14 April 1988. In the event of her husband predeceasing her, she gave specific gifts to the NZ Socialist Unity Party and the NZ U.S.S.R. Society and then divided the residue equally between certain named persons, including the three siblings. At that stage the three siblings were treated equally.

[8]                 In her second identified will of 11 March 1991 she gave her mother a life interest in her property, and gave Paul an option to purchase the property at government valuation. If an offer was not made it was to be sold. The proceeds were then to be divided equally between the three siblings and a charitable organisation. Again this involved equal treatment.

[9]                 In a further will dated 7 November 1994, however, the deceased seems to have excluded Jazz. She records a bequest of only $500 to her including a declaration that she had “not received the natural [love] and affection of a daughter”. If her husband predeceased her the estate was to be divided equally between Jazz’s siblings.

[10]             A further will dated 28 March 1995 appears to have involved a change of heart. Under that will, if her husband predeceased her the three siblings were to share in the estate equally.

[11]             There are no particular events that have been identified that explain these changes in position. There was a family Christmas together in December 1995. In 1996 the deceased’s mother, Jazz’s grandmother, went to live with Jazz in Hamilton. That arrangement came to an end when there were some disagreements. The deceased went to Hamilton and took her mother back to live with her in Wellington. After that time Jazz says she continued to visit from time to time, but there appears to have been a period of estrangement.

[12]             There also appears to have been a further change of view by the deceased about this time. In yet another will of 24 May 1996 the estate was divided between Jazz’s siblings if her husband predeceased her, thereby again excluding Jazz.

[13]             It was some time later Paul appears to have attained significant influence over the deceased. In January 2003 the deceased sold the joint family home in Marine Parade in Seatoun and purchased a property in Strathmore Park. Six months later Paul moved in. There was a significant financial surplus on the sale which is unaccounted for. Mr Garnham’s enquiries establish that the initial sale proceeds from the Strathmore Park property were transferred from the deceased to the personal account of Paul’s wife. On 20 March 2003 the deceased then made a new will with Paul appointed as sole executor and sole beneficiary.

[14]             In late January 2008 Mr Garnham’s firm was then contacted and advised that the deceased wanted to sell the Strathmore Park property because she had decided to move to Thailand with Paul and his wife Kenzie. That duly happened. The move to Thailand was short lived, however, and in June 2008 she returned to New Zealand and was able to re-purchase the property she had earlier sold. She did so for the same purchase price, which was $453,000. By that stage Mr Garnham advises that she only had $203,000 to contribute to the purchase. Mr Garnham explains that Paul had claimed that when moving to Thailand he pooled his resources with his mother and that $227,000 was spent on the Thailand trip. The balance of the purchase price for the re-purchase was funded by a mortgage in the name of the deceased, Paul and his wife. Paul and his wife were also added to the title.

[15]             It appears that the deceased came to realise that Paul had taken advantage of her. The final will, being the will in relation to which probate was granted, is dated 22 October 2009. Jazz’s sister Ann was appointed the sole executor and sole beneficiary. Mr Garnham explains that his firm had been instructed by the deceased that she was concerned that her money and property had been taken by Paul, that she had a desire to change her will and that she wanted to leave both Paul and Jazz out as beneficiaries. The contemporaneous note of these instructions record the deceased felt that Paul had had enough already, that she had not had contact with Jazz and did not feel that she owed her anything, that she did not talk to her and “had had troubles with

her in the past”, and that then left Ann as the only child that she considered deserved anything.

[16]             By early November 2009 the deceased moved to Hamilton with Ann. At this stage Ann raised concerns about her brother’s actions. Proceedings were commenced, particularly concerning the transfer of title of the deceased’s property into the joint names of Paul and his wife.

[17]             There was a further twist, however. The deceased moved back in with Paul and his  wife in March  2011.  Unfortunately this did not appear to go  well  with   Mr Garnham’s firm being contacted by Aged Concern who said that there had been a physical altercation between the deceased and Paul. The deceased was admitted to Wellington Hospital in November 2011. There was concern expressed that the deceased was suffering from dementia.

[18]             Jazz continued to have involvement with her mother during this period. In October 2011 the deceased appointed Jazz as her power of attorney for her health and welfare. The power of attorney as to property was given to the Public Trust. Those powers of attorney were revoked in favour of grants to Paul in late 2012 or early 2013.

After her death Mr Garnham obtained orders to sell the property.5

[19]             Jazz is not in particular financial need. She owns a property in Nelson with a rating value of $920,000 which carries a mortgage liability of some $280,000. She has been, but is not currently employed but she receives rental income of $570 per week. She has weekly outgoings (including living costs) of $473.84. I accept that this involves a comfortable asset position, and a modest but adequate income position.

Approach on appeal

[20]            There is a right of appeal against decisions made by the Family Court under   s 15 of the Act. A question arises whether the approach set out in Austin, Nichols &

5      Garnham v Scott [2018] NZHC 2536.

Co Inc v Stitchting Lodestar6 or that in Kacem v Bashir7 should be applied on appeal. This was considered by the Court of Appeal in Talbot v Talbot where the Court held:8

[37] In our judgment the position is straightforward. Whether or not there has been a breach of the moral duty set out in s 4 of the Act is a threshold issue, turning on matters of law, fact and degree. Appeals involving this threshold issue fall to be determined by reference to the approach set out in Austin, Nichols. If there is a breach of moral duty found, then what remedy should be granted by the court below is an issue involving the exercise of a discretion, and an appellate court will only intervene if there has been an error of law or principle, if the Judge below took into account an irrelevant consideration or failed to take into account a relevant consideration, or if the decision below is plainly wrong.

[21]             This approach is consistent with the wording of s 4 of the Act – once the Court is satisfied that adequate provision is not available for the maintenance and support of the qualifying person, the Court “may, at its discretion” make orders. Having said that the discretion would need to be exercised so that the inadequacy is addressed, and only to that extent. The evaluation and judgment involved in a finding that there was inadequate provision would also need to be applied to identify the remedy. So it is not the exercise of a discretion in a pure sense. It seems to me that the appeal should be approached with that recognition.

Issues on appeal

[22]In the judgment under appeal the Judge noted:9

[26] Whilst acknowledging that each case must be determined on its own particular merits, Ms Hoult went through a careful analysis of a number of decisions, (Williams v Aucutt [2000] 2 NZLR 479, Henry v Henry [2007] NZCA 42, Fisher v Kirby [2012] NZCA 310, Flathaug v Weaver [2003] NZCA), which lead to her submission that quantum, in cases involving disputes between siblings, have largely resulted in awards of limited amounts, and when considered against the size of each particular estate, is equated to about 10% of the value of the estate. In her submission Ms Hoult submitted that this is the trend which has been emerging over recent times.

6      Austin, Nichols & Co Inc v Stitchting Lodestar, [2007] NZSC 103, [2008] 2 NZLR 141.

7      Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1.

8      Talbot v Talbot [2017] NZCA 507, [2018] NZFLR 128.

9      Scott v Garnham, above n 1.

[23]             The Judge noted that there was no hard and fast rule.10 But he recorded that it was on that basis that it was contended that 10 per cent was appropriate. The Judge said:

[30] … If a trend can be established, which I consider can be shown in the cases referred to by Ms Hoult, then the concentration should be around evidence showing the basis for moving away from that trend and to adjust an award upwards in order to remedy the breach of the moral duty.

[24]             They included the fact that Jazz owned a property that conservatively had a net value of about $650,000-$700,000.

[25]He ultimately concluded:

[52]      Considering the line of authority which  has  been  referred  to  by Ms Hoult, and her analysis of the various awards made in that line of authority, I have come to the view that an award of 10% of the estate, which is represented by the money in the solicitor’s trust account, should be awarded to Jazz in order to compensate her for the breach of moral duty.

[53]      If any further funds are subsequently recovered by the estate, after payment of costs, Jazz would be entitled to 10% of the net sum recovered.

[26]             There is no challenge to the approach to the Judge in finding that there had been a breach of a moral duty resulting in inadequate provision being made for Jazz in accordance with s 4. The Judge properly referred to, then applied the criteria identified by the authorities, including from the decision in the Court of Appeal in Williams v Aucutt.11 But Mr Zindel argued that the award of only 10 per cent was inadequate in this case. He referred to a number of other decisions in which higher awards had been made, contending that they were more comparable in the present case, and that an award of up to 40 per cent would be appropriate.

[27]             In response Ms Hoult addressed each of the authorities that were referred to by Mr Zindel and argued that they were not comparable with the present case. She supported the conclusion reached by the Family Court Judge, particularly given the lack of any immediate financial need arising from Jazz, and the lack of any foundation for a contention that Ann had benefited from Paul’s misconduct.

10 At [28].

11     Williams v Aucutt [2000] 2 NZLR 479 (CA).

Assessment

[28]             There is very little in s 4, or the Act more broadly that informs the Court how to address the individual cases that come before it. It is for this reason that the greatest guidance in any particular case is to be found in previous Court decisions, not only in outlining the general approach, but also providing some assistance in identifying when provision is not adequate and what should be done to address the inadequacy that is found.

[29]             But there remains an inherent difficulty because the cases tend to have specific features. It is for that reason that I largely accept the submission made by Ms Hoult that the reliance on the cases that were advanced by Mr Zindel by itself does not take the appeal very far. One does not need to analyse each individual case in great detail before an important distinguishing characteristic arises.

[30]             It seems to me that the general approach was correctly summarised by Moore J in Cartwright v Joseph who held:12

[33]      Only provision sufficient to remedy the breach is required. The Court is not authorised to rewrite a will merely because of perceived unfairness; the question is what sum is required to give adequate provision for proper maintenance and support. In determining whether testamentary freedom should be interfered with, the Court is given a wide discretion by the statutory scheme of the Act. The assessment of quantum does not require a mathematical or scientific calculation. Rather: “There will always be a band of answers within which individual judges make decisions on the facts of particular cases. It is difficult to say that one award is right and another is wrong.”

[34]      One study found that in respect of adult children, claims much above the 10 per cent mark cannot be assumed, and if the estate is large and the child is not in financial need then between 12.5 and 20 per cent is available. But those conclusions were made in the context of the widely variable circumstances of family protection cases. Ultimately, these observations provide little more than a comparative yardstick which may or may not assist in applying of the principles. An evaluative approach is required. As the Court of Appeal has more recently stated in Fisher v Kirby :

“The decisions of this Court from and including Little v Angus are properly viewed as a timely reminder that awards should not be unduly generous. But, in our view, neither should they be unduly niggardly, particularly where the estate is large and it is not necessary to endeavour to satisfy a number of deserving recipients from an

12     Cartwright v Joseph [2018] NZHC 2383.

inadequate estate. A broad judicial discretion is to be exercised in the particular circumstances of each case having regard to the factors identified in the authorities.”

[31]             The present case has particular features of significance. The most important factor is that one of the three siblings who might have had a claim to benefit from the estate has taken advantage of his mother and utilised her financial resources for the benefit of him and his wife. At the time of the hearing before the Family Court the estate had funds of approximately $248,000. At the time of the hearing before this Court that is now less than $227,000 as a consequence of ongoing costs. Mr Garnham explains in his affidavit that Paul and his wife had not been able to explain the disappearance of somewhere between $200,000 and $400,000 worth of assets or funds. The Judge also found that had Paul not conducted himself as he had, the value of the estate would be somewhere in the region of $600,000 to $900,000. That is a difference of between $350,000 and $650,000.

[32]             It is also important to focus on why there was a breach of moral duty by the deceased in this case even though this was not in dispute. That is because the remedy should correspond to what is required to make adequate provision. I agree with the Family Court Judge that there was a breach in this case. It arises not because of a particular financial need that Jazz has, but because of the irrational way in which the deceased managed her affairs, including the changing bequests in her wills in a way that involved undue favouritism and corresponding disentitlement in relation to the three siblings. The various wills that she executed over the years, and the volatility involved in her intentions, involve a failure to make appropriate provision in a general sense. She was clearly manipulated by Paul. She came to appreciate that she had improperly preferred Paul when making her last will, but the exclusion of Jazz in that will can be seen as a continued manifestation of an inability to make proper provision for the maintenance of her children. As the Judge held there was no disentitling conduct by Jazz. Jazz was simply out of favour at the time the last of the wills were made.

[33]             It is an important feature of the present case, however, that Jazz is not in pressing need for financial assistance.  She has net assets of some value.  I accept  Mr Zindel’s point that her income is comparatively modest compared with her assets.

But this is not a case where the testator has failed to make provision because there are needs of a beneficiary that are not being properly met. The lack of adequate provision arises from the irrational exercise of favouritism by the deceased, and raises what has sometimes been called a recognition award. To be more precise about that kind of award, it seems to me that it can arise when the estate is being divided between family members with equivalent claims for maintenance, such as siblings, and where there is a failure to properly make provision for one party who is in the same position from those who benefit without any rational basis. That can involve inadequate provision under s 4.

[34]             Against that background it seems to me that there needs to be a more precise identification of the reasons why the Judge is said to have erred given the facts and circumstances of this case. Appealing to other authorities involving very different factual circumstances does not provide much assistance. In that context there are two points arising from Mr Zindel’s submissions potentially relevant to whether the Judge erred.

The 10 per cent presumption

[35] First the Family Court Judge accepted there was a trend revealed by the cases, and that the concentration should be on whether the Court should move upward or downward from that trend.13 Given the reference to the trend being an award of 10 per cent in disputes between siblings it appears clear that the Judge started with a 10 per cent figure, and then assessed whether to move up from that point in light of the facts of the case. That was again referred to in [48] of the judgment, and also in his conclusions at [52].

[36]I accept Mr Zindel’s criticism of the use of 10 per cent as a starting point. In

Chambers v Chambers Mallon J held:14

[114]          Mr Miles submits that 10 per cent of the estate is a broad “rule of thumb” for claims made by adult children who are not in financial need. That is less than the range of 12 to 25 per cent of the estate provided in the cases surveyed between 1985 and 1994 referred to in Williams v Aucutt. However, as discussed in that case “there are pointers to concerns that some orders in

13     Scott v Garnham, above n 1, at [30].

14     Chambers v Chambers [2015] NZHC 583. Footnotes omitted.

recent years may have been out of line with current social attitudes to testamentary freedom relative to claims by adult children.” Where there is no economic need the moral duty may be met by a legacy of a moderate amount although what will constitute proper support is a matter of judgment in the circumstances of the particular case. A few years later commentators suggested that 10 per cent would reach the upper limit of a purely “support” claim. More recently, while querying whether it was desirable to attempt to quantify claims in percentage terms, another commentator agreed that an award above 10 per cent was unlikely.

[115]          Whether 10 per cent of the estate provides a useful guide or not, it is clear that awards to adult children on a purely “support” basis are to be modest. …

[37]             This is not an endorsement of the 10 per cent approach, even as a starting point. Two later decisions, both involving law practitioners identify how important the specific facts and circumstances of the individual case are. In O’Neill v O’Neill, Downs J rejected a claim from a child who was not in financial need who had been excluded.15 Downs J held:16

[85] Ultimately, I am not persuaded Larry breached his moral duty to the children. I consider decisive the modesty of the estate; Larry’s primary duty to Judith, and her needs. I acknowledge the recognition award case law, and that adult children not in financial need sometimes receive up to 10 per cent of an estate. However, every case under the Family Protection Act turns on its facts. Richardson P made the same point in Williams v Aucutt, as did Blanchard J writing separately. Those here count against an award.

[38]             In Brosnahan v Meo Cull J held that a provision of one-third of an estate to the deceased’s son did not amount to adequate provision even though the son had no financial need.17 The award made by the Court increased his entitlement to one half. The Court emphasised the primacy of the relationship between parent and child,18 as well as the son’s contributions to the accumulation of family assets over many years and his “unswerving filial loyalty”.19

[39]             What both of these cases demonstrate is the real danger in using a 10 per cent figure, even as a starting point. Each case turns on its own facts and circumstances.

15     O’Neill v O’Neill [2020] NZHC 2988.

16     Footnotes omitted.

17     Brosnahan v Meo [2021] NCHC 79.

18     At [49] with reference to Flathaug v Weaver [2003] NZFLR 730 (HC).

19 At [116].

[40]             In the present case there has been a breach of duty by the deceased. She allowed her son to take a very significant portion of what would have been the estate, and then when faced with that realisation gave all that was left to only one of her two daughters. Whilst the excluded daughter was not playing an active role in her life at that time, she had done nothing to be totally excluded. Even though that daughter is not in need, provision was required to be made for her, particularly given the already unequal division of the financial resources.

[41]             But on the other hand Jazz is not in financial need. Moreover, Ann has played a greater role in her mother’s life. Neither is this a case of the deceased failing to respond to real contributions to her life, as was the case in Brosnahan. It must be recognised that it is not the function of a Court to correct what might be thought to be unfairness. What is in issue is what s 4 calls “proper maintenance and support”. A person making a will is free to decide to deal with their property as they please provided that the duty referred in s 4 is complied with.

[42]             Here the duty was breached by making no provision at all, in circumstances where the estate had already been depleted by misconduct by the sibling. But that misconduct also affected Jazz’s sister. She has received less than she otherwise would have been entitled to but for Paul’s actions. In those circumstances, and whilst the  10 per cent starting point can be criticised, it seems to me that the ultimate award could only be criticised if it were established that Ann was a knowing participant in Paul’s wrongdoing. Otherwise I consider that the award is appropriate, particularly given the lack of financial need by Jazz.

Was Ann involved in Paul’s misconduct?

[43]             In his submissions Mr Zindel argued that the actions of Paul were taken with “some apparent support by Ann”. He also referred to there being an alliance between Ann and Paul to cut Jazz out of the estate. In support of that submission he referred to two matters.

[44]             First, he said that this alliance had been referred to in Mr Garnham’s affidavit. I do not read Mr Garnham’s affidavit in that way. That affidavit records that Paul had told him in September 2016, during the administration of the estate, that he and Ann

wanted to cut Jazz out of the estate because she was estranged and that Ann “was happy for him to have the house”. That does not record anything that Ann said. In her affidavit Ann said:

In the earlier attempts to reach settlement, when I was not represented by a solicitor and before all of the current evidence was made available regarding Paul and Kenzie’s conduct, I did take the position that I wanted to find a settlement which would allow Paul to remain in the Wellington home.

[45]             She also provided evidence on the financial dealings she had had with Paul which did not suggest any involvement with the wider matters of misconduct.

[46]             The other paragraph of Mr Garnham’s affidavit is simply a reference to an email that Ann sent saying that she and Paul would administer the estate and that he was not required. Again, that is not evidence that demonstrates that Ann had any involvement with her brother’s prior misconduct.

[47]             The second matter relied on by Mr Zindel was that Ann had failed to provide any financial information relating to her personal circumstances. He contended that the Family Court Judge had failed to take into account the absence of any financial disclosure by Ann.

[48]             I accept that Ann did not provide financial information in her evidence other than the information she provided concerning her dealings with Paul. But I do not accept that forms any basis for the suggestion that the Judge should have found that Ann worked alongside Paul in relation to the areas of misconduct. That is contrary to the evidence that she gave, and there is no basis in the evidence to establish that she was involved in this way.

[49]             It is significant that there was no attempt to cross-examine Ann in the Family Court, and neither were steps taken to require her to provide discovery of financial information. Mr Zindel responded to this point by contending that in Armer v Simpson Allan J indicated that it was a universal practice that Family Protection Act cases would go to trial on the affidavits without cross-examination. 20 It is likely correct that most Family Protection Act cases can be dealt with on affidavit evidence alone, and

20     Armer v Simpson (2010) 20 PRNZ 645.

that cross-examination is unlikely to be of assistance. But cross-examination can, and should take place if it is necessary to decide a case. In the High Court, claims under the Family Protection Act take place under Part 18, and under that Part notice can be given requiring a deponent to be available for cross-examination.21 Rules 377 - 387 of the Family Court Rules 2002 are not as specific. But Mr Zindel accepted that there is a right to give a notice that witness attend for cross-examination, and that the appellant had not given such notice. If the appellant wanted to pursue the allegation that her sister was involved in her brother’s misconduct that allegation needed to be raised, and put directly in cross-examination. Equally if the appellant wished to obtain financial information from his sister to ascertain whether that was so a proper application should have been made to that effect.

[50]             I do not accept Mr Zindel’s point by analogy to relationship property claims that once Jazz had raised issues in her affidavit Ann had an obligation to respond.22 The approach in relationship property cases involves particular features of that legislative regime arising from the more inquisitorial role the Court can perform. Here, if the appellant wished to pursue the allegations now advanced it was necessary for it to be expressly raised in the proceedings in the Court below.

[51]             For these reasons I do not accept there was any basis for the allegation that Ann was involved in her brother’s misconduct and neither can there be any criticism of the Family Court Judge for failing to find that there was such an association. In those circumstances Paul’s misconduct was also at Ann’s expense, and the Judge was entitled to proceed on that basis.

Conclusion

[52]             Given that there is no basis to say that Ann benefited from Paul’s misconduct, it seems to me that the decision of the Family Court was an appropriate one. Indeed some authorities suggest that 10 per cent is the upper limit of an award to a sibling who is not in financial need when the estate is a small one. I do not expressly endorse

21     High Court Rules 2016, rr 18.15(1)(b) and 9.74.

22     M v B [2006] 3 NZLR 660 (CA) at [38]-[50].

that view, but on the facts of this case I do not accept that Jazz is entitled to more to remedy her mother’s failure to make adequate provision for her.

[53]             The only matter that has caused me concern is that the award made to Jazz is made in percentage terms, and that as a consequence of the ongoing costs to the estate the amount that Jazz will recover is reducing. I note, however, that the High Court has previously observed that a percentage approach is often taken with small estates.23 Moreover in the present case the percentage approach was adopted precisely because of the prospect of the estate bringing proceedings against Paul and recovering from him. The Judge expressly recorded that Jazz would be entitled to 10 per cent of any net recoveries associated with further recoveries made by the estate.24 In those circumstances the Family Court Judge’s approach was not an inappropriate one.

[54]For the above reasons the appeal is dismissed.

[55]             I understand that the appellant may be in receipt of legal aid. If there are any issues as to costs that the parties cannot agree upon a memorandum may be filed seeking costs (no more than five pages plus a schedule) which is to be responded to by a memorandum in opposition within five working days (no more than five pages plus a schedule).

Cooke J

Solicitors:

Zindels, Nelson for Appellant

Niemand Peebles Hoult, Hamilton for Respondent

Copy to:
M R Garnham

23     Carson v Lane [2019] NZHC 3259 at [94].

24     Scott v Garnham, above n 1 at [53].