Tukuogo v Public Trustee
[2024] NZHC 1154
•9 May 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-002337
[2024] NZHC 1154
IN THE MATTER OF an application for orders under s 339 of the Property Law Act 2007 and the inherent
jurisdiction of the High CourtUNDER
Part 19 of the High Court Rules
BETWEEN
OLIVIA NAOMI TUKUOGO as
Administrator in the Estate of FRANK SIOSIUA (deceased)
Applicant
AND
PUBLIC TRUST as Administrators in the Estate of LAUFOUMOKA AFFORD, also known as LAUFOU AFFORD and MOKA AFFORD (deceased)
Respondent
On the papers Counsel:
C F L Godinet for Applicant B Power for Respondent
Judgment:
9 May 2024
JUDGMENT OF VAN BOHEMEN J
This judgment was delivered by me on 9 May 2024 at 4:30 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………..
Counsel/Solicitors:
C F L Godinet, Auckland
Shanahans Law Limited, Auckland Public Trust, Auckland
TUKUOGO v PUBLIC TRUST [2024] NZHC 1154 [9 May 2024]
[1] Olivia Naomi Tukuogo (Olivia), as administrator of the estate of her father, Francis Siosiua (Frank), applies for orders under s 339 of the Property Law Act 2007, and in the exercise of the inherent jurisdiction of the Court, directing the Public Trust, as the administrator of the estate of Frank’s mother, Laufoumoka Siosiua Afford (Laufou Afford):
(a)to transfer to Olivia a one-sixth share of the property at 24 Tiverton Road, Avondale (Lot 1 DP 33228, Identifier NA85A/857 North Auckland) (the Property) and for a residue title to issue in Olivia’s name; and
(b)to sign all documents required for a cross-lease title to issue to Olivia upon Olivia arranging for the deposit of a flats plan for the house built on the Property by Frank.
[2] The purpose of the orders sought is to give effect to arrangements said to have been agreed between Frank and his mother while they were both alive.
[3] The Public Trust does not oppose the application but has filed a notice of appearance reserving its rights in the event another person becomes a party to the proceeding or a party takes a step in the proceeding that is against the Public Trust’s interests.
[4] In accordance with the directions made by Preston J on 24 November 2023,1 Mr Godinet, counsel for Olivia, has confirmed that, on 28 November 2023, the proceeding was served on all beneficiaries of Laufou Afford’s estate: Lingi Siosiua Sisikefu (Lingi), Famuanifo Moka Siosiua (Famuanifo), Afford Ricky Siosiua (Afford), Mele Fauna Siosiua Nelisi (Mele) and Steven Lakamu Siosiua Afford (Steven). These beneficiaries are Laufou Afford’s five other children.
[5] In a memorandum dated 18 December 2023, Ms Power, counsel for the Public Trust, advises that the position of the Public Trust remains as set out in its Notice of
1 Tukuogo v Public Trust HC Auckland CIV-2023-404-2337, 24 November 2023 (Minute of Preston J) at [4].
Appearance. Ms Power also advises that the Public Trust does not consent to the application for the reason that it does not have instructions from all beneficiaries of Laufou Afford’s estate and that it does not seem likely that instructions will issue from all beneficiaries in a manner that would progress the estate towards finalisation.
[6] Ms Power also advises that the Public Trust wrote to the beneficiaries in October 2023 advising that, if they wished to oppose the application, they would need to seek independent legal advice. Ms Power also provides copies of correspondence received by the Public Trust from two of the beneficiaries, Lingi and Famuanifo , setting out their positions on the application.
[7] No notice of opposition, affidavit or any other communication has been filed by any of the beneficiaries.
[8]The parties are content for the Court to take a decision on the papers.
Background
[9] The following account is taken principally from affidavits by Olivia and Cecile Ruby Siosiua (Cecile), who was Frank’s second wife. Some material is also taken from the statements of position of Lingi and Famuanifo that were provided to the Public Trust.
[10] Olivia is the oldest of Frank’s five children. Olivia’s mother is Robyn Ellis. Frank had four other children: Allisha Anasieli Pepe (Allisha), Isabelle Ames Davis (Isabelle), Joshua Zion Talauta Siosiua (Joshua) and Kayle Moana Kie (Kayle). Their mother is Darlene Siosiua.
[11]Frank and Cecile did not have any children together.
[12] Laufou Afford and her late husband lived on the Property, which, when purchased, comprised 5589 square metres. The family was from Niue. It appears to have been the hope of Laufou Afford and her husband that the family would live as a community on the Property, just as they would have done in Niue.
The arrangements agreed between Laufou Afford and Frank
[13] In September 1994, Frank, Cecile and three of Frank’s then teenage children, Allisha, Isabelle and Joshua, moved to live at the Property in the main house where Laufou Afford lived.
[14] In 1995, Laufou Afford agreed that Frank would build a house for the use of himself and his family on the Property on the understanding that Laufou Afford would transfer to Frank the land on which the house was to be situated.2 It appears from Lingi’s statement of position that Laufou Afford and her husband had made a similar offer previously to Frank, who had not taken it up. However, after two other siblings had built houses on the Property, his mother agreed that Frank could do the same.
[15] According to Lingi’s statement of position, the two siblings who built houses and obtained shares of the freehold title to the Property and cross-lease titles to the land on which their houses were situated were Mele and Steven. It is apparent from the certificate of title to Flat 1 (the main house) of the Property that they each obtained one-sixth shares in the Property.3
[16] In February 1995, Frank and Cecile had plans prepared for their proposed house.
[17]On or about 9 March 1995, Laufou Afford:
(a)executed a memorandum of transfer transferring a one-sixth share in the Property to Frank;
(b)signed a deed of gift recording that she had transferred an interest in the Property to Frank for consideration of $27,000, which Laufou Afford then gifted to Frank; and
2 Any reference to the land on which a house is situated includes the land surrounding the house as shown on any flats plan.
3 The certificate of title to Flat 1, the main residence on the Property, records that the title comprises a two-thirds share in the fee simple of the area comprising 5589 square metres as well as a 999- year lease, commencing 1 August 1990, to Flat 1. It follows that title to one-third of the Property had already been transferred.
(c)signed an irrevocable power of attorney appointing Frank to be her attorney for specified purposes including:
(i)applying for a flats plan affecting the property described in the schedule of the power of attorney;
(ii)executing in Laufou Afford’s name any lease with respect to the flat or flats shown in the flats plan;
(iii)doing all that was required to enable the deposit of the plan, registration of the lease and the issue of composite certificates of title in respect of the estates expected to be created.
[18]The schedule to the power of attorney stated:
Undivided one sixth share 5589m2 Lot: 1
DP: 33228 CT: 85A/857
[19] Cecile says the family has been unable to find the memorandum of transfer. However, she exhibits a copy of the Deed of Gift to her affidavit and Olivia exhibits a copy of the power of attorney to her affidavit.
Subsequent developments
[20] Frank’s house was built on the Property. According to Cecile, she and Frank, and Allisha, Isabelle and Joshua lived in the house for some 18 years, except that, for the 15-month period from January 2000 to April 2001, Cecile and Frank lived in Sydney. In 2013, Cecile and Frank moved to Australia for work reasons. Cecile remains resident in the Gold Coast. It appears that the house has been rented out to / occupied by other members of the wider Afford family since 2013.
[21] Although plans were prepared for a share of the title to be transferred to Frank and a cross-lease title issued in respect of the land on which the house was situated,
those plans were not finalised. It appears from Cecile’s affidavit and the statements of position of Lingi and Famuanifo that there was disagreement among the siblings on various matters, including whether the whole Property should be subdivided and separate titles issued, and over the materials for, and the responsibility for the costs of constructing, the driveway to the new house. It also appears that some family members considered that Frank did not deliver on undertakings he had made to his mother to renovate the main house on the Property and considered that Frank was dilatory in attending to the legal requirements needed to give effect to the arrangements agreed with their mother.
[22] In any event, no title was issued to give effect to the memorandum of transfer and no cross-lease title in respect of the land on which Frank’s house was situated was issued.
[23]Laufou Afford died unexpectedly on 12 June 2007.
[24]In her will dated 12 April 2001, Laufou Afford:
(a)appointed the Public Trustee to be her executor and trustee;
(b)appointed Lingi and Frank to be advisory trustees;
(c)noted that the Property had been partly cross leased and set out arrangements for title to an interest in the fee simple and a cross lease for the main house to transfer to Lingi, with the remaining land to transfer to Famuanifo and Afford in equal shares;4 and
(d)gave the residue of her estate to be divided equally among her six children, including Frank, if still living.
4 These arrangements were contingent on the three siblings agreeing to share the costs of the cross- leasing. If there was no such agreement or if the cross-leasing could not occur for other reasons, the Property was to be divided with a 50 per cent share going to Lingi, and the remaining 50 per cent to be divided equally between Famuanifo and Afford.
[25] The will did not specify any arrangements concerning the issue of an interest in the freehold title to the Property or the cross lease of the land on which Frank’s house was situated.
[26] Following Laufou Afford’s death, various efforts were made by Frank and Cecile to obtain title to a share of the freehold title to the Property and a cross-lease title for the land on which Frank’s house is situated but these have not been successful.
[27] Frank died unexpectedly on 18 June 2018. He died intestate. As his oldest child, Olivia was appointed administrator of his estate. Further efforts were made to secure the issue of a share of the freehold title to the Property and a cross-lease title to the land on which the house is situated. However, there has been reluctance on the part of some family members to agree.
[28] It appears from Cecile’s affidavit and the statements of position of Lingi and Famuanifo that some family members continue to have reservations about the proposal. These include concerns that this may allow the house to be sold outside the family, that the proposal is not consistent with the arrangements made by Laufou Afford in her will, and because they consider that more information is needed to show that the house meets regulatory requirements.
[29] In her statement of position, which was made on 6 December 2023, Lingi asked that the application be deferred to another time when the family was able to meet and discuss issues and questions identified by Lingi and come to an amicable agreement and a fair resolution that would honour the will and legacy of their late mother, Laufou Afford.
Discussion
[30] The application was put before me as Duty Judge in the week of 12 February 2024. For various reasons, I had to prioritise other hearing and judgments so was unable to attend to the application until 3 May 2024.
[31] Despite the passage of a further five months since the application was formally served on all beneficiaries, no beneficiary has communicated with the Court. I infer,
therefore, that there has not been any resolution of the issues within the family. I also infer that no beneficiary has been prepared to object formally to the application.
[32] In these circumstances, I am satisfied that the Court must take steps to resolve what is clearly a difficult issue within the wider family, particularly when that issue is delaying the administration of Frank’s estate.
[33] As a preliminary matter, it is important to record that, contrary to statements in the affidavits of Olivia and Cecile, it is not the case that Frank was not a beneficiary of Laufou Afford’s estate. Under Laufou Afford’s will dated 12 April 2001, Frank and his five siblings were equal beneficiaries in Laufou Afford’s residuary estate.
[34] What Laufou Afford did not do in her will was to make any provision for Frank to share in the Property. But the same is true with respect to two other children of Laufou Afford: Mele and Steven, the two siblings who had already secured title to one-sixth of the freehold estate in the Property and cross-lease titles to the land on which their houses are situated.
[35] It is apparent that, in her will, Laufou Afford was making provision for the three children who had not built houses on the Property or received any transfer of title in the Property: Lingi, who received the main house and surrounding land, and Famuanifo and Afford, who received the remaining land in equal shares.
[36] Given that, in March 1995, Laufou Afford had already signed documents arranging for the transfer of one-sixth of the Property to Frank and the issue of a cross- lease title to the land on which Frank’s house was to build, I consider it probable that, when making her will in April 2001, Laufou Afford believed that those arrangements had already been given effect or would have been given effect by the time she died. That is, I consider it probable that Laufou Afford made her will on the basis that one half of the Property had already been transferred in three one-sixth shares, or would have been transferred by the time she died, to Mele, Steven and Frank. Accordingly, the focus in her will was on ensuring that her other three children also gained shares of the Property. I am satisfied that Laufou Afford believed that Frank had already received, or would have received by the time she died, title to a one-sixth
share in the Property and a cross-lease title for the land on which Frank’s house is situated.
[37] For these reasons, I am satisfied that the orders applied for are consistent with the arrangements contemplated in Laufou Afford’s will and are necessary to give effect to those arrangements. Without such orders, those arrangements cannot be put into effect and those entitled to share in Frank’s estate are prevented from obtaining those entitlements.
Result and orders
[38] I am satisfied, therefore, that it is in the interests of justice to grant the application by Olivia for orders under s 339 of the Property Law Act and in the exercise of the inherent jurisdiction of the Court.
[39] In accordance with s 339 of the Property Law Act and in the exercise of the inherent jurisdiction of the Court, I direct the Public Trust:
(a)to transfer to Olivia Naomi Tukuogo a one-sixth share of the property at 24 Tiverton Road Avondale (Lot 1 DP 332288, Identifier NA85A/857 North Auckland) and for a residue title to issue in Olivia’s name; and
(b)to sign all documents required for a cross-lease title to issue to Olivia Naomi Tukuogo upon Olivia arranging for the deposit of a flats plan for the house built on the Property by Francis Siosiua.
G J van Bohemen J
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