IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-3101
[2025] NZHC 1132
IN THE MATTER
of an appeal from a decision of the Family Court
BETWEEN
YE SHAO
Appellant
AND
JAYANTI MORAL
Respondent
Hearing:
6 May 2025
Appearances:
Appellant in person
G C Jenkin for respondent
Date of judgment:
13 May 2025
JUDGMENT OF JAGOSE J
This judgment was delivered by me on 13 May 2025 at 11.00am.
Pursuant to Rule 11.5 of the High Court Rules.
………………………… Registrar/Deputy Registrar
Counsel:
G C Jenkin, Barrister, Auckland
Copy to:
Appellant
SHAO v MORAL [2025] NZHC 1132 [13 May 2025]
[1] Ye Shao appeals the 1 November 2024 decision of Judge A G Mahon in the Family Court at Manukau,1 relevantly requiring Mr Shao to discover statements of bank accounts he holds individually or jointly with his wife and answer outstanding interrogatories in a Family Protection Act 1955 proceeding brought by Jayanti Moral.2
Context of interlocutory applications
[2]The Family Protection Act:3
… permits a claim against an estate on the basis of family connection, irrespective of the intentions or attitude of the deceased. The statutory liability of the estate is a matter of social policy and arises out of a legislative judgment that those within the categories identified may have moral claims to provision which should displace any testamentary intention.
Under the Act:4
The onus is on the claimant to prove that the deceased was in breach of his or her moral duty, as at the date of death, by failing to make adequate provision for the claimant’s proper maintenance and support.
… [T]he test is whether, objectively considered, there has been a breach of moral duty by the deceased judged by the standards of a wise and just testator or testatrix. “Moral duty” is a composite expression which is not restricted to mere financial need but includes moral and ethical considerations. “Proper” also means something different to “adequate”, and the amount to be provided is not to be measured solely by the need for maintenance which would be the case if the Court were concerned solely with adequacy.
[3] Mr Moral seeks provision be made out of Ms Wang’s estate for his proper maintenance and support as her de facto partner.5 He asserts Ms Wang’s failure to provide for him in her will is in breach of her moral duty to him. His discovery and interrogatory applications arose consequently.
Background
[4] Mr Shao’s mother, Shujuan Wang, died on 13 March 2020.6 I offer the Court’s condolence to her survivors.
5 Family Protection Act 1955, ss 3(1)(aa) and 4(1).
6 Moral v Shao, above n 1, at [7].
[5] Ms Wang’s will dated 20 January 2020 left her estate 8/10ths to her New Zealand-resident sister…
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.
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AGLC
Shao v Moral [2025] NZHC 1132
Case
[2025] NZHC 1132
Decision Date
CaseChat Overview and Summary
Ye Shao appeals the 1 November 2024 decision of Judge A G Mahon in the Family Court at Manukau, relevantly requiring Mr Shao to discover statements of bank accounts he holds individually or jointly with his wife and answer outstanding interrogatories in a Family Protection Act 1955 proceeding brought by Jayanti Moral. Mr Moral seeks provision be made out of Ms Wang’s estate for his proper maintenance and support as her de facto partner. He asserts Ms Wang’s failure to provide for him in her will is in breach of her moral duty to him. His discovery and interrogatory applications arose consequently. Mr Shao argues on appeal the Judge relied on Mr Moral’s “false and misleading evidence”, affecting the Court’s exercise of its discretion and leading to its error in law. He contends the Judge’s orders were “overly broad, disproportionate, speculative, and unnecessarily invasive of privacy”, thus misapplying relevant legal principle. And he argues the non-party discovery order “breached procedural fairness” for not giving Shupei or Mr Shao’s wife notice or opportunity to be heard, in breach of their rights to natural justice. The Judge was entitled to make orders for non-party discovery if it appeared to him a non-party may have control of documents they “would have had to discover if … a party to the proceeding”. The Judge also was entitled to order answers to interrogatories, given Mr Shao’s “ambiguous answers in his affidavit filed in answer to some of the interrogatories”. The appeal is dismissed. In my preliminary view, as the unsuccessful party, Mr Shao should pay Mr Moral 2B costs. If either party disagrees, and they cannot otherwise agree, costs are reserved for determination on short memoranda each of no more than five pages.