Shao v Moral

[2025] NZHC 1132

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.

1      Moral v Shao [2024] NZFC 2842.

2      At [58(a) and (c)].

3      Wood-Luxford v Wood [2013] NZSC 153 at [22].

4      Talbot v Talbot [2017] NZCA 507, [2018] NZFLR 128 at [39]–[44] (citations omitted).

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 Shubin, 1/10th to her China-resident sister Shupei and 1/10th to Mr Shao.7 It appointed Shupei executor of her estate. On Shupei’s renunciation of the appointment, Mr Shao was granted letters of administration.8

[6]    At the time of her death, Ms Wang had been in a de facto relationship with Mr Moral for some 17 years.9 (Mr Shao is in his mid-40s.)10 Ms Wang and Mr Moral lived together in their family home at Auckland’s Northpark,11 which Mr Moral continues to occupy.12 Mr Moral is said to have managed their financial affairs, which included substantial profits made from purchase and sale of three residential properties during their relationship.13

[7]    Mr Shao said Ms Wang’s only assets at the time of her death were her interest in the family home, two bank accounts and “[m]iscellaneous furniture, personal items and a Mercedes vehicle”.14 By consent, statements of the past ten years of Ms Wang’s bank accounts’ transactions were disclosed to Mr Shao,15 as obtained on non-party discovery from Ms Wang’s bank.16 (The Judge identified a third bank account,17 and expanded the non-party discovery order to encompass it,18 finding the account’s address at Ms Wang’s address and its disbursement of $100,000 to her at the time of her payment of that sum to Mr Shao established on the balance of probabilities the account was Ms Wang’s.19)

[8]    The family home is valued at $2.4 million, and secures a $1.2 million mortgage.20 The two bank accounts have modest credit balances, together of some

7 At [8].

8      At [8(c)], n 2.

9 At [7].

10     At [8(c)].

11     At [10(a)].

12 At [11].

13 At [12].

14     At [10(a)–(b) and (d)].

15     At [2], referring to Moral v Shao FC Manukau FAM-2022-092-000230, 1 August 2023 (Minute of Wagner J) at [11].

16 At [3].

17     At [10(c)].

18     At [58(d)].

19 At [55].

20 At [11].

$10,000.21 But one shows a payment of $100,000 to Mr Shao on 21 June 2016,22 funded by a same-day transfer from a fourth account.23 Mr Shao says that fourth account was not Ms Wang’s, but Shupei’s.24

[9]    Mr Moral raises a question if Ms Wang intentionally reduced the value of her estate by inter vivos gifts and/or advances to family members at the expense of retention for the benefit of her relationship with Mr Moral.25

[10]   In answer to an interrogatory if Ms Wang had advanced or gifted money or property or paid money to him during the ten years of discovery, Mr Shao responded:26

Not in any respect that is relevant to the applicant’s family protection claim. No advances were made that would constitute an asset of the estate. Inter-family finances saw funds transferred back and forth during my mother’s lifetime. The net result of this was that me and my family support of my mother, with greater capital contributions than we ever received from her.

Subsequent interrogatories were answered either similarly “not relevant”, as attributable to inter-familial finances or without Mr Shao’s knowledge.

Judgment under appeal

[11]   Observing applications for discovery and interrogatories were not often made in family protection proceedings,27 the Judge assessed he nonetheless had “a limited discretion to make such interlocutory orders”.28

[12]   The Judge found, “because of the small size of the estate”, Ms Wang’s assets may be insufficient to meet Mr Moral’s claim. He held “the extent to which inter vivos gifts may have diminished and/or depleted the estate’s value is relevant” accordingly.29 He concluded “[n]either the discovery given to date nor the answer to interrogatories

21     At [10(b)].

22 At [14].

23     At [37], and see [7] above at n 19.

24 At [35].

25 At [13].

26 At [15].

27     At [48], referring to Bill Patterson Law of Family Protection and Testamentary Promises (5th ed, LexisNexis, Wellington, 2021) at 5.3.

28 At [48].

29     At [49], relying on Commons v Commons [2020] NZCA 49 at [14].

sufficiently addresses these concerns”.30 He was satisfied the threshold for disclosure was met, as “directly relevant to the grounds of the substantive application”.31 For the same reasons, he ordered the interrogatories be answered.32

[13]   Mr Shao, no longer represented by counsel, 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.

Approach on appeal

[14]   Any party to proceedings under the 1955 Act in which the Family or District Courts “make an order” may appeal to this Court against the decision.33 By ‘make an order’, s 15(1) means an order under that Act for provision be made out of the deceased’s estate. The impugned orders here are not that substantive order, but interlocutory discovery and interrogatory orders.

[15]   Otherwise, given the absence of any express provision there is no right of appeal against interlocutory orders (but in any event),34 s 124 of the District Court Act 2016 applies—affording a general appeal, conducted by way of rehearing35—under which Mr Shao bears the onus of satisfying me I should differ from the Judge’s decision. I only am justified in interfering with that decision if I consider the decision is wrong; in other words, the Judge erred.36

[16]   Substantively, I should come to my own assessment of the merits of the case afresh, without deference to the Judge (save for some caution in differing on witness

30 At [50].

31 At [53].

32 At [57].

33     Family Protection Act, s 15(1). The subsection’s reference to “subsection 1A” presumably is intended to refer to ‘subsection 1AA’.

34     Section 15(1A).

35     District Court Act 2016, s 127.

36     Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13].

credibility, if I have not had his Honour’s advantage of observing any witnesses),37 including on matters of fact and degree entailing a value judgment.38 If I differ from the Judge, he will be “wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ”.39 I may rely on the Judge’s reasons in reaching my own conclusions, but the weight I give those reasons is a matter for me.40

[17]   But, to  the extent the decision involved exercise of the Judge’s  discretion,    I only may interfere with it if Mr Shao establishes his Honour erred in law or principle, did not address relevant matters or took into account irrelevant matters or was “plainly wrong”.41 “Plainly wrong” is not synonymous with “wrong” but adds the requirement of being “outside the available ambit of judicial discretion”.42

Discussion

[18]   There is no dispute the impugned decision involved exercise of the Judge’s discretion. As the Judge himself recognised,43 that plainly is correct: Mr Moral cannot point to any right to obtain the discovery or answers to interrogatories he sought; either is subject to a judge making permissive interlocutory orders for its provision.44

[19]   Also indisputable is “[a] party’s income and asset position … should be provided in all family protection cases”, as “relevant to whether or not the deceased breached a moral duty”.45 So too then are inter vivos gifts if depleting the estate in its sufficiency to meet any moral duty,46 whether or not they stand to be to be redressed.47

37 At [13].

38 At [16].

39     At [16], referring to Wright v Powell [1982] 1 NZLR 473 (CA).

40     Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31].

41     At [32]; and M v R [2024] NZSC 29, [2024] 1 NZLR 83 at [46], citing May v May (1982) 1 NZFLR 165 (CA) at 170.

42     Hines v R [2024] NZCA 384 at [17], citing National Heart Foundation of New Zealand v Carroll

(2009) 28 FRNZ 268 (HC) at [5], referring to G v G [1985] 1 WLR 647 (HL) at 652.

43     Moral v Shao, above n 1, at [48].

44     District Court Rules 2014, rr 8.5, 8.21 and 8.38.

45     Commons v Commons, above  n  29, at [13], referring to McKenzie  v  Thomas  CA120/02,  14 November 2002 at [14].

46     At [14], referring to Talbot v Talbot, above n 4, at [51] and Ashworth v Lambie [2012] NZHC 1110 at [54].

47     Pollock v Pollock [2022] NZCA 331 at [87].

[20]   On appeal, Mr Shao argues discovery or interrogatory orders should be circumscribed by the substantive answers to those questions of breach, depletion and redress. But that is to put the cart before the horse. Rather anything supporting or adversely affecting either side’s cases—if Ms Wang owed Mr Moral any moral duty; if the estate was sufficient to meet it; if the estate’s distributions then should be adjusted—is in principle discoverable.48

[21]   In ordering Mr Shao’s tailored discovery of statements of his individual and joint bank accounts for the ten years prior to Ms Wang’s death, the implication is the interests of justice required an order involving less discovery than standard discovery would involve.49 And standard discovery may have been substantial, because it is  Mr Shao’s presumptive duty as administrator of Ms Wang’s will:50

… to place before the court all relevant information in his possession concerning the financial affairs of the estate and the deceased’s reasons for making the dispositions made by his will or for not making any provision or any further provision, as the case may be, for any person … .

[22]   As “all relevant information” in Mr Shao’s possession is disclosable in principle, there can be no legitimate objection to the Judge’s tailored discovery order on grounds of scale or privacy. That exactly is the place for exercise of the Judge’s discretion, as the Judge did in confining the discovery to specified accounts for        a specified period of time.51 The ten years precisely is to reflect the scope of consensual discovery already made.52

[23]   ‘Natural justice’ has no broader role to play, which requirements are in any event “flexible, and vary depending on the circumstances”, for consideration “in light of the relevant statutory provisions [and] consistent[ly] with the purposes of the legislation”.53 While so articulated in judicial review settings, there is no call for

48     High Court Rules 2016, r 8.7.

49     Rule 8.8.

50     Family Protection Act, s 11A.

51     Moral v Shao, above n 1, at [54].

52 See [7] above.

53 Kaimai Properties Ltd v Queen Elizabeth the Second National Trust [2024] NZCA 616 at [51], citing Webster v Auckland Harbour Board [1987] 2 NZLR 129 (CA) at 132, Combined Beneficiaries Union Inc v Auckland City COGS Committee [2008] NZCA 423, [2009] 2 NZLR 56 at [11], Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) at 141 and Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355 at [120].

natural justice to have any different meaning here. The question remains what form of procedure is necessary to achieve justice without frustrating the apparent purpose of the legislation.54 Mr Shao is required to disclose all relevant information in his possession. He does not contend for any obligation on him not to disclose the information in his possession.55 He has not renounced his administration of the estate. His wife’s and aunt’s personal interests come a very distant second.

[24]   The Judge identified the sought information’s relevance.56 It cannot be said his identification was wrong in law or principle.57 If it also was founded on contestable assessments of Mr Moral’s evidence, as Mr Shao contends in reliance on new (but not fresh) evidence as to disposition of Ms Wang’s funds ultimately in Mr Moral’s interest,58 that was an assessment for the Judge to make in the exercise of his discretion. And the Judge was explicit he had not concluded Mr Moral’s evidence was correct, but only (and in combination with Mr Shao’s previous evidence) it “raise[d] serious questions” which discovery to date and answers to interrogatories insufficiently answered.59 In that respect, the Judge was following the indicated “second stage of tailored discovery”,60 to interrogate information already available.

[25]   The new evidence cannot now be relied on to dispute the Judge’s exercise of his discretion. In any event, the new evidence substantiates the Judge’s overall concern: he should have ‘all relevant information’ about Ms Wang’s financial position.

[26]   The Judge also 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”.61  Such is a reference at least to standard

54 Dotcom v United States of America, above n 53, at [120], citing Daganayasi v Minister of Immigration, above n 53, at 141 and Wyeth (NZ) Ltd v Ancare New Zealand Ltd [2010] NZSC 46, [2010] 3 NZLR 569 at [40]; Greenpeace Aotearoa Inc v Hiringa Energy Ltd [2023] NZCA 672, [2024] NZRMA 93 at [211].

55     Family Protection Act, proviso to s 11A.

56     Moral v Shao, above n 1, at [53].

57     See [19] above at n 45.

58     Shao v Moral HC Auckland CIV-2024-404-3101, 26 March 2025 (Minute of Robinson J) at [8]–[11].

59     Moral v Shao, above n 1, at [49]–[50].

60     Commons v Commons [2019] NZHC 557 at [29].

61     District Court Rules, r 8.21(1).

discovery. Clearly the bank has documents supportive of or adversely affecting the parties’ respective cases, including on the balance of probabilities the fourth account.62

[27]   Similarly—as relating to a matter in question in the proceeding,63 and being satisfied the order was necessary at the time it was made64—the Judge had discretion to order answers to interrogatories. The Judge specifically observed he was motivated by Mr Shao’s “ambiguous answers in his affidavit filed in answer to some of the interrogatories”.65  Rather  than being  openly  responsive as befits  an  administrator,

Mr Shao’s responses were conclusory, as has been seen.66

[28]   Mr Shao points to nothing in the interrogatories as rendered them contrary to principle.67 His attempt instead to align them with an interrogatory impugned in other proceedings is mistaken.68 Those administered in this proceeding plainly are: relevant as I have explained;69 not “omnibus” but capable of being answered each directly;70 not ‘fishing’ (meaning looking for, rather than at, evidence);71 and necessary to give narrative to the discovery.

[29]   In summary, for that purpose, the Court sought “evidence of all payments made by [Ms Wang] to [Mr Shao] during the 10-year period”.72 Such justified all the Judge’s orders. It cannot be said a justification outside “the available ambit of judicial discretion”;73 it is not ‘plainly wrong’. I will dismiss the appeal.

Result

[30]The appeal is dismissed.

62 See [8] above.

63     District Court Rules, r 8.38(2).

64     Rule 8.38(4).

65     Moral v Shao, above n 1, at [53].

66 See [10] above.

67     Todd Pohokura Ltd v Shell Exploration NZ Ltd [2009] NZCA 561 at [14]–[16].

68     At [17]–[26].

69 At [19] above.

70 Mr Shao argued the phrasing of the first interrogatory did not permit a ‘Yes’ or ‘No’ answer. I disagree. The first interrogatory asks if any of particular transactions occurred; if so, the second seeks they be specified. While the fourth interrogatory combines the two steps, nonetheless they can easily be segregated as for the first two interrogatories.

71     Re Securitibank (No 31) (1984) 1 PRNZ 514 (HC) at 519–520.

72     Moral v Shao, above n 1, at [53].

73 See [17] above.

Costs

[31]   In my preliminary view, as the unsuccessful party74—in this proceeding of average complexity,75 in which a normal amount of time is considered reasonable for each step76—Mr Shao should pay Mr Moral 2B costs.

[32]   If either party disagrees, and they cannot otherwise agree, costs are reserved for determination on short memoranda each of no more than  five pages—annexing  a single-page table setting out any contended allowable steps, time allocation and daily recovery rate—to be filed and served by Mr Moral within 10 working days of the date of this judgment, with any response or reply to be filed within five working day intervals after service.

—Jagose J

74     High Court Rules, r 14.2(1)(a). 75           Rules 14.2(1)(b) and 14.3(1). 76     Rules 14.2(1)(c) and 14.5(b).