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…

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.

Continue reading Tangimai v Tangimai

Details

AGLC: Tangimai v Tangimai [2014] NZHC 2348
Case: [2014] NZHC 2348
Decision Date: 22 September 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Roimata Tangimai brought a claim against the estate of her late mother, Mrs Orapa Mani, under the Law Reform (Testamentary Promises) Act 1949. Mrs Mani had passed away intestate, and the only surviving relatives were her husband, Mr Edward Mani, and her daughter, Ms Tangimai. Mrs Mani owned a property at 133 Preston Road, Otara, along with minor jewellery, a car, and an interest in a property in Aitutaki in the Cook Islands. Ms Tangimai claimed that her mother had promised her the Preston Road property upon her death, a promise that was confirmed by Mrs Mani on her deathbed. The legal issues that the court needed to decide were whether Ms Tangimai had provided a service or rendered work for Mrs Mani in reliance on the promise and whether it was reasonable to transfer the property to Ms Tangimai subject to the existing mortgage. The court found that Ms Tangimai had indeed provided a service by taking over the mortgage payments on the property in reliance on the promise made by her mother. Considering the circumstances in which the promise was made, the services rendered, the amount of the estate, and the competing claims of Mr Mani, the court concluded that it was reasonable to transfer the property to Ms Tangimai subject to the ANZ mortgage. The court also noted that Mr Mani had not pursued any claim on the property and appeared to be content for Ms Tangimai to receive it. The court's orders were subject to the filing of an affidavit of service on Mr Mani and an affidavit by Ms Tangimai confirming the truth and accuracy of the statements in the statement of claim. The court declined to order that the costs of both parties and Ms Tangimai's costs in other proceedings be met by the estate, as it would have the unintended consequence of reducing what Mr Mani would receive.

Orders