Tao v Malone

[2022] NZHC 1657

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1170

[2022] NZHC 1657

UNDER

the inherent jurisdiction of the High Court

IN THE MATTER

of the Estate of Denis Edmond Malone

BETWEEN

LIPING TAO

Applicant

AND

LOUISE ANNE MALONE

Respondent

Hearing:	13 July 2022 (on the papers)
Judgment:	13 July 2022

JUDGMENT OF VENNING J

Interim Injunction

This judgment was delivered by me on 13 July 2022 at 2.15 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Great Wall Lawyers, Auckland

TAO v MALONE [2022] NZHC 1657 [13 July 2022]

[1]    The Registrar has referred this file to me as duty Judge. The applicant seeks an injunction restraining the respondent executor from making further distributions from the estate of Denis Edmond Malone, (the estate) until further orders from the Court.

[2]    The application is made without notice. The applicant is the widow of the deceased. The respondent is the administrator of the estate of the deceased. She is a sister of the deceased. The deceased died without leaving a will. Letters of administration were granted to the respondent in January 2020.

[3]    The applicant elected option B pursuant to s 61 of the Property Relationships Act 1976 so that pursuant to ss 77 of the Administration Act 1969 and cl 5 of the Administration (Prescribed Amount) Regulations 2009, she is entitled to receive

$155,000 (plus interest until paid) and following that, the estate is to be divided into a third for her and two-thirds for the deceased’s children. The deceased had two children so that, after payment of the prescribed amount of $155,000 the balance of the estate (apart from chattels) should be divided equally amongst the applicant and the deceased’s two children.

[4]    There have been issues between the applicant and the respondent regarding the administration of the estate. It is unnecessary to traverse the detail of those issues for present purposes.

[5]    The injunction is sought to prevent the respondent from, today, making a “substantial distribution” to the deceased’s children.

[6]    The applicant opposes the distributions being made on the basis that she is not satisfied she has been provided sufficient information by the respondent and is concerned that she may receive less than she is entitled to and consequently may suffer a loss.

[7]The principles to consider on an application for interim injunction are settled.

[8]    First, does the plaintiff have a serious question to be tried and second, where does the balance of convenience lie? Finally, the interests of justice overall.

Serious question

[9]    The applicant deposes in the course of her affidavit evidence that in July 2021 distributions of $155,500 were made to her and to the deceased’s children. She has challenged the basis for those payments to the deceased’s children. She has also attached correspondence with the respondent, including an email of 29 June 2022 which apparently attached a draft distribution statement dated 19 May 2022. The email of 29 June 2022 refers to holding back sufficient to cover tax and further expenses but the draft distribution statement of 19 May 2022 does not retain anything for tax and further expenses. On its face it is a final distribution statement. Nor does it show the payments of $155,500 which the applicant says were paid to her and the other beneficiaries in July 2021. The statement records a balance of $1,861,737.48 held with distributions to the applicant of $771,605.01 and $620,579.16 each to the two children.

[10]   Other emails attached to the applicant’s affidavit do not appear to be complete, for example, the email at exhibit F dated 5 July 2022 from the respondent’s solicitor, referred to and attached an email from solicitors representing the other two beneficiaries, but that was not included.

[11]   The email chain ends at 7 July. I also note that on 7 July the solicitors for the respondent referred to the possibility of the injunction and invited a discussion.

[12]   The position is unsatisfactory, but the Court is placed in a position where the evidence suggests a final distribution may be made without taking account of the distribution the applicant deposes has been made and it is told by counsel’s memorandum there will be a distribution today unless an injunctive order is made.

[13]   On the basis of the evidence deposed to by the applicant previous unexplained distributions have been made to the other beneficiaries of $155,500 each which, on the face of the other documents annexed to the applicant’s affidavit and prepared by

the  respondent,  do  not  take  those  distributions into account.    In reliance on the applicant’s affidavit evidence as it stands there are issues to be addressed.

Balance of convenience

[14]   The balance of convenience favours the issue of an injunction for a short time at least. A delay of a further week in making the distributions should not unduly prejudice the other beneficiaries. Further, the applicant has given an undertaking and moneys are held by the respondent to her credit, which could be applied to meet any costs or losses arising from this application.

[15]   For those reasons, and with some reservation, the Court makes the following orders:

(a)the respondent Louise Anne Malone as administrator of the estate of Denis Edmond Malone is restrained from exercising her powers to make any further distributions from the estate until Wednesday 20 July 2022;

(b)the above order is made on condition that the applicant is to forthwith serve a copy of the proceedings on the respondent’s solicitors and on the solicitors representing the other beneficiaries;

(c)the application is adjourned for call at 10.00 am on Wednesday 20 July 2022 when the issue of whether the interim injunction should be extended or amended will be addressed.

[16]Costs are reserved.

Venning J