Tangimai v Tangimai

[2014] NZHC 2348

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-003545 [2014] NZHC 2348

IN THE MATTER

of the estate of Mrs Orapa Mani (and

primarily 133 Preston Road, Otara)

UNDER

Part 18 of the High Court Rules 2008; the inherent jurisdiction of the Court (declaratory relief); Law Reform (Testamentary Promises) Act 1949; the dooctrine fo donatio mortis causa

BETWEEN

ROIMATA TANGIMAI Plaintiff

AND

ROIMATA TANGIMAI as administrator of the estate of Orapa Mani

Defendant

Hearing:	22 Sesptember 2014
Counsel:	RS Pidgeon for Plaintiff CR Pidgeon QC for Defendant
Judgment:	22 September 2014

JUDGMENT OF ASHER J

Solicitors:

Pidgeon Law, Auckland.

Sinisa Law Ltd, Auckland. CR Pidgeon QC, Auckland.

TANGIMAI v TANGIMAI [2014] NZHC 2348 [22 September 2014]

Introduction

[1]      Roimata Tangimai is the daughter of the late Mrs Orapa Mani (formerly Mrs Orapa Tangimai).   She brings a claim under the Law Reform (Testamentary Promises) Act 1949 in respect of her mother’s estate.   Her mother died intestate. This claim proceeds by way of formal proof for reasons that I will elaborate on later.

[2]      Ms Tangimai is the only child of the deceased, Mrs Mani.  There are no other siblings.  Mrs Mani is not survived by any other relatives.  She is, however, survived by her husband, Mr Edward Mani.   The assets  of Mrs Mani’s estate include a property at 133 Preston Road, Otara over which there is a mortgage to the ANZ Bank and which is in her sole name, along with minor jewellery and chattels and a car worth in the vicinity of $4,000.  Mrs Mani also had an interest in a property in Aitutaki in the Cook Islands which she had developed with Mr Mani and which is presently occupied by Mr Mani.

[3]      Ms Tangimai lived in the property at Preston Road with her parents from

1989.    Her  father,  Mr  Tangimai  Tangimai,  died  in  1999.    It  would  seem  that following  Mr Tangimai’s  death  in  1999,  Mrs  Mani  became  the  sole  registered proprietor of Preston Road.  The land is all the land comprised and described in the Certificate  of  Title  Volume  2046,  Folio  19  North  Auckland  Land  Registry. Ms Tangimai continued to live there with her mother.

[4]      In 2001 her mother married Mr Edward Mani.   They never lived in the

Preston Road property as a married couple.  Rather, they lived in Mr Mani’s home at

5B Penion Drive, Flat Bush.

[5]      Following  her  mother’s  marriage,  Ms  Tangimai  continued  to  live  at  the Preston Road address.   She had the joint responsibility for the outgoings with her mother.  She has had it would seem from the early 2000s, a good stable job with her employer TDM Automotive.

[6]      In 2000 a mortgage was taken out by Mrs Mani to the ANZ Bank.   The present indebtedness under that mortgage is $118,000.   At a certain point while Ms Tangimai was at least partially responsible for the outgoings, her mother, with

her consent, obtained a $30,000 loan from the ANZ Bank secured against the Preston Road property so that she and Mr Mani would have funds to put a house on land they had in Aitutaki.  Ms Tangimai deposes that her mother had convinced her in 2000 when she left school to stay at the property.  It was mortgaged shortly after she had agreed to do so.

[7]      In mid 2007 Ms Tangimai stated that her mother promised her that she would transfer the Preston Road property to Ms Tangimai on her death.  She states that such a transfer is common in her culture, where land passes from parents to children. From around that time in mid-2007 Ms Tangimai took over making all the payments on the mortgage.  She did so because of the promise that had been made to her.  Her partner,  Matthew,  helped  her  in  the  maintenance  and  upkeep  of  the  property. Ms Tangimai with Matthew’s assistance met all outgoings, including insurance.   Her payments to the ANZ Bank helped maintain the borrowing made for the Aitutaki building.

[8]      Mrs  Mani  died  on  27  June  2012  in  the  presence  of  friends.    Although Mrs Mani was very ill, Ms Tangimai deposed that she was still of sound mind. Mrs Mani confirmed on her death bed that she wanted her daughter to have the house.

[9]      Following her death Mr Mani returned to Aitutaki where he now lives on the property that he and Mrs Mani developed.

[10]   Mr Mani registered a notice of claim under s 42(2) of the Property (Relationships) Act 1976 on 16 November 2012 on the Preston Road title.  However, he has taken no steps to pursue that claim.  As the surviving spouse of Mrs Mani he has not made a choice under s 61 of the Property (Relationships) Act.  Therefore by virtue of s 68(1) of that Act he has chosen option B.  Under option B he has elected not to make an application for a division of the relationship property, but rather to receive such interest as he is entitled to on the intestacy under s 61(3)(c).

[11]     Ms Tangimai continues to live at Preston Road.  She seeks in this proceeding to have an order transferring it into her name by virtue of the testamentary promise.

Mr Mani has taken no steps and for reasons that I will set out later, does not appear to oppose his notice of claim being discharged and the Preston Road property being transferred to Ms Tangimai.

Law Reform (Testamentary Promises) Act 1949

[12]     Under s 3 of the Law Reform (Testamentary Promises) Act a claim may be brought against the estate founded on the rendering of services to or the performance of work for the deceased the claimant’s lifetime providing an express or implied promise is proven by the deceased to reward the claimant for that services and work by making some testamentary provision for the claimant.

[13]     I have the affidavit evidence before me of Ms Tangimai.  It satisfies me that in 2007 a promise that the property would be hers on Mrs Mani’s death was made to Ms Tangimai by Mrs Mani.  Ms Tangimai had contributed to the outgoings in the years prior to the promise being made.  Mrs Mani was content to leave her daughter in the property paying the outgoings on the basis of this promise.  The promise was confirmed by Mrs Mani on her deathbed in 2012.

[14]     I am also satisfied that on the basis of this promise Ms Tangimai made payments on the house, met the outgoings and maintained it.  She did of course get the benefit of living in the house.  Nevertheless, her mother presumably wished to retain the house and would have seen the payments being made by her daughter as a service to her.  In particular I note that of the borrowing against the Preston Road address, $30,000 was applied to the building of a house in Aitutaki for Mrs Mani and Mr Mani.  In a sense Ms Tangimai, by paying the outgoings on the mortgage, could be seen as contributing to the Cook Islands house on the basis of the promise made to her.

[15]     Financial assistance is a recognised service of the type contemplated in s 3(1) of the Law Reform (Testamentary Promises) Act.1   I am satisfied that Ms Tangimai is able to make a claim and that she did provide a service.  The question that arises is

whether it has been shown that what is in effect the equity in the Preston Road

1      Re Blackie HC Christchurch CP21/01, 18 February 2002 at [17] and [27]; Ireland v Grant

[2014] NZHC 1523 at [28]–[29].

property can be transferred to her.   Given that there is a mortgage to the ANZ of

$118,000, and the property has been valued at $343,000, the portion of Mrs Mani’s

estate that will pass to her daughter is effectively $225,000.

[16]     I bear in mind that this is not the total value of the estate.  There is also the jewellery and the car, and also the interest in the Aitutaki property.  It would seem that Mr Mani may well be able to claim that Aitutaki property under the Administration Act 1969, which may also apply in the Cook Islands.

[17]     The fact that the order sought by Ms Tangimai exactly corresponds to the promise is of course not conclusive.   I have to consider what is reasonable.   In assessing quantum the Court must have regard to the circumstances in which the promise was made, the circumstances in which the services were rendered and the work performed, the amount of the estate and the nature and amounts of the claims of other persons in respect of the estate whether as creditors, beneficiaries, spouse or otherwise.

[18]     I have outlined the circumstances and the work performed, and the amount of the estate.   It is necessary to consider the competing claims.  Since Mrs Mani has only one surviving blood relative, her daughter, there is only the potential claim of Mr Mani to be considered.

[19]     It is not certain that Mr Mani will have had a relationship property interest in the property.  He did not live in it and there is no evidence that he contributed to it. It is quite possible that he did, at least indirectly, during the years when Mrs Mani together with her daughter was meeting outgoings, contributed to maintaining the property.   It is possible therefore that he may have had a s 9A of the Property (Relationships) Act claim, although this has not been made out given that Mr Mani has not filed any affidavits or taken any steps.

[20]     However, on the information before me it has to be said that any moral claim he would have on the property would be limited. This is indeed borne out by the fact that he does not seem to be pursuing any claim (while I acknowledge that he did initially file a notice of claim).   In any event, having not opted for option A his

relevant claim is his claim under the Administration Act.  That claim must be seen against the perspective of the history of the property and the fact that he has got significant other benefits from the estate of Mrs Mani.

[21]     In the end I assess the competing claims as being only that limited claim of Mr Mani.   He has not pursued that claim and appears to be content for his step- daughter to receive the Preston Road property.

[22]     In the particular circumstances, having assessed quantum, I am satisfied that Mrs Mani’s wish can prevail and that the property can be transferred subject to the ANZ  mortgage  to  her  daughter.    I  am  therefore  prepared  to  make  an  order transferring the property to her subject to the mortgage.

Service

[23]     There are three affidavits of service on the file.   Mr Mani was personally served in New Zealand with the application for directions, letter of administration and other related documents, including a minute of the Court of 12 February 2014 which gave notice of the claim under the Law Reform (Testamentary Promises) Act. He took no steps.  He was then informed of the various documents and there is an affidavit of service of Ms Hucker of 20 May 2014 that the courier was instructed to serve Mr Mani, but it seems the courier failed to get an acknowledgement of service. There is also an affidavit of Lynette Walden of 25 July 2014 where she records a file note of counsel indicating a telephone conversation with Mr Mani which indicates he was well aware of the proceedings but wished to take no steps.

[24]     I do not regard these affidavits of service as being sufficiently conclusive of service.  What is required is an affidavit that shows personal service on Mr Mani of the statement of claim, notice of proceeding and other relevant documents.2   It would seem from the evidence I have that such service has taken place but the affidavit of personal service is missing at this point.   I will therefore make any of my orders

subject to the filing of such an affidavit of service.

2      High Court Rules, rr 6.10 and 6.10.

[25]     If  no  affidavit  of  service  can  be  filed  then  these  orders  will  remain conditional on Mr Mani being served again with the proceedings, and he will have five weeks following the filing of those proceedings to apply to have the orders set aside and for a hearing.

[26]     I also note that some of the important allegations are in the statement of claim, but there is no affidavit on this file confirming that those statements are true and correct.  I emphasise that affidavits have been filed and do cover much of the relevant evidence, but they do not go that far.  The orders are therefore subject to a further affidavit being filed by Ms Tangimai confirming that the statements in the statement of claim are to the best of her knowledge true and correct.

[27]     My orders are therefore as follows:

(a)      That the notice of claim of interest pursuant to s 42(2) of the Property (Relationships) Act 1976 which was registered by Edward Mani as registered instrument 9228329.1 on the title to 133 Preston Road, Otara (being all of the land described in Certificate of Title Volume

2046, Folio 19 North Auckland Land Registry) be removed forthwith;

(b)The property known as 133 Preston Road, Otara (being all of the land described  in  Certificate  of  Title  Volume  2046,  Folio  19  North Auckland Land Registry) be vested in entirety personally in Roimata Tangimai (subject to the existing mortgage to the ANZ Bank);

[28]     These orders are to lie in Court and are not final orders.   That status will continue until I issue a minute stating that I have received an affidavit of service or other documents that satisfy me that Mr Mani has been served.

[29]     These orders are also subject to Ms Tangimai filing an affidavit deposing that the statements in the statement of claim are to the best of her knowledge true and correct.

[30]     Mr Pidgeon has perfectly reasonably asked that the costs of both parties in this proceeding and the costs of Ms Tangimai in other proceedings are to be met by the estate.  I decline to make that order.  I would be concerned that any such order would mean that Mr Mani’s entitlement, in particular the assets he has received and the property at Aitutaki, would be used to meet these costs.  I know this is a small estate and Ms Tangimai’s costs have been met to date by Legal Aid, but despite this I am not able to make an order that the costs be met by the estate in case it would have the unintended consequence of reducing what Mr Mani will receive.

……………………………..

Asher J