New Zealand Case Law: Decisions & Judgments

Topic

Family protection act 1955

Legal area

Court

20 Nov 2023

JONES v JONES [2023] NZCA 581

Citation

[2023] NZCA 581
Court

Court of Appeal

Security for costs on the cross-appeal was dispensed with because the cross-appeal was very limited, unlikely to add materially to hearing time or to expose the respondent to costs beyond those arising from defending the appeal, and the issue of appointing a replacement executor would require resolution irrespective of the cross-appeal; accordingly the usual protection of security for costs was unnecessary and the appellants should defend that limited point without security.
5 Oct 2023

DAVEY v CARDINALI [2023] NZHC 2782

Citation

[2023] NZHC 2782
Court

High Court

Proceeding was categorised as band 2 overall; band C was not justified despite voluminous and disorganised filings because claimed 2C scale exceeded actual costs and threshold for 'comparatively large' time was not met. A 2B scale was applied to all steps. An uplift was not justified for refusal to accept the 'walk‑away' settlement offer, but a 20% uplift was justified for steps after the 8/9 March 2023 case management direction due to marked failures to comply with directions. An order requiring costs to be paid directly from the plaintiff's estate shares was declined because it would confer…
7 Aug 2023

CHAMBERS v THE NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED [2023] NZHC 2084 [7 August 2023]

Citation

[2023] NZHC 2084
Court

High Court

On the facts the claimant proved she rendered significant services, there was an express promise (supported by contemporaneous accountant's file note and family evidence) and a sufficient nexus between services and promise; deceased failed to make the promised testamentary provision; accordingly the TPA claim succeeds and, alternatively, a common intention constructive trust is established. Appropriate relief in principle vests deceased's 40% shareholdings in CJL and CJEL in the claimant but subject to an income provision for the widow equivalent to 10% of CJL annual net profits for her lifet…
7 Jun 2023

JONES v JONES [2023] NZHC 1408

Citation

[2023] NZHC 1408
Court

High Court

Removal was expedient under s 21 because (1) Laurel's Family Protection claim created a conflict requiring her removal; and (2) Cindy and Jason's conduct (failure to secure and transfer company shares into executor ownership, Cindy's sole directorship, persistent delay, and Jason's overseas residence) created real risks of prejudice to beneficiaries and impeded efficient administration, so appointment of an independent professional executor was necessary to protect beneficiaries and resolve claims promptly.
23 Mar 2023

TARR v ALLISON [2023] NZHC 601

Citation

[2023] NZHC 601
Court

High Court

Court ordered discovery of correspondence (1 July 2019–26 Oct 2020), landline call records for same period, deceased's medical records 26 Oct 2017–26 Oct 2020, bank statements from 29 June 2019 to present, directed executor to publish a will notice in the Law Society newsletter for one month and to seek files from solicitor Gulley (with third‑party discovery if refused); declined order requiring full accounting of beneficiaries' finances at date of death; granted in part the beneficiaries' cross-application requiring plaintiff to disclose specified trust documents and evidence of her financia…
2 Dec 2022

KIRTON v HOPKINS [2022] NZHC 3208

Citation

[2022] NZHC 3208
Court

High Court

On the balance of probabilities the affidavit evidence of the mother, the deceased's conduct of not denying paternity while refusing involvement, and the Y‑chromosome DNA evidence matching the deceased's acknowledged son establish a biological father‑son relationship that justifies a declaration under s 10 Status of Children Act 1969; leave to proceed by originating application was in the interests of justice and was granted.
17 Oct 2022

PAGE v CLAPHAM [2022] NZHC 2633

Citation

[2022] NZHC 2633
Court

High Court

The documents sought were of marginal relevance and not sufficiently material to justify particular discovery because comprehensive sworn evidence of income and assets was already before the court; accordingly the application for discovery was dismissed and the parties were ordered to file updating affidavits by 1 May 2024.
22 Jul 2022

BRAND v DOUGLAS [2022] NZHC 1769

Citation

[2022] NZHC 1769
Court

High Court

Court found the will breached the testator's moral duty by making no provision for his son despite the son's contributions and periods of close relationship; however the estate was modest, the son had no pressing financial need and the testator intended to assist grandchildren, so a modest award of $6,000 was necessary and sufficient to repair the breach without defeating the testator's testamentary intent.
25 May 2022

CHIN v PAYNE [2022] NZHC 1162

Citation

[2022] NZHC 1162
Court

High Court

Proceedings were consolidated under r10.12 to avoid duplicative hearings; discovery must be proportionate to the issues and not based on suspicion; plaintiff must provide a sworn statement of assets and liabilities and an explanation for the timing of removal of the Camelot Trust corporate trustee; limited discovery from the defendant/beneficiary was ordered as relevant to the alleged inter vivos transfer/gift in the 2006–2007 sale of the company (including 2006/07 and 2007/08 accounts and documents recording the value and subsequent transfer to a family trust), while broad historical financi…
31 Mar 2022

MOLETA v DARLOW [2022] NZHC 620

Citation

[2022] NZHC 620
Court

High Court

Award 2B scale costs to Jolene Schollum and Lorraine Moleta for successful FPA and interlocutory applications; decline 25% uplift for one FPA step; deny second counsel certification; award 50% uplift for all steps relating to the Constructive Trust claim because that claim lacked merit and plaintiff repeatedly failed to comply with rules and directions, thereby contributing unnecessarily to time and expense; costs to be borne by plaintiff Dellisse Moleta personally and may be paid from her share of the estate subject to authority.