TALAGI V TALAGI HC AK CIV 2008-404-002736 [2009] NZHC 294 (10 March 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                          CIV
2008-404-002736

                UNDER                           the Administration Act 1969 and the
                           
                    Family Protection Act 1955

                IN THE MATTER OF                the estate of Pehalo Maika Talagi

                BETWEEN                         ANTHONY TALAGI
                                                Plaintiff

     
          AND                             RAURUINA MESEPA TALAGI AND
                                                RICHARD MARKO
TALAGI
                                                Defendants


Counsel:        S W M Piggin for plaintiff
                I
P Tongatule for defendants
                K M Wakelin for Official Assignee on behalf of estate of Pioiva
                Talagi
in bankruptcy
                G L Harrison for minor grandchildren

Judgment:       10 March 2009 at 4:00pm


           CONSENT
JUDGMENT OF ASSOCIATE JUDGE ABBOTT




                   This judgment was delivered by me on 10 March 2009 at 4:00 pm,
       
                     pursuant to Rule 11.5 of the High Court Rules.



                                     Registrar/Deputy Registrar




Solicitors:
John F Heard, Solicitor, PO Box 625 8001, Greenwood Corner, Auckland 1347 for plaintiff
Tongatule Law Office, PO
Box 68250, Newton, Auckland 1145 for defendants
Meredith Connell, PO Box 2213, Auckland 1010 for Official Assignee of Pioiva Talagi

G L Harrison, PO Box 5444, Auckland 114 for minor grandchildren



TALAGI V TALAGI HC AK CIV 2008-404-002736 10 March 2009

[1]
   The plaintiff Anthony Talagi applied for orders revoking grant of probate in
the estate of his father Pehalo Maika Talagi to the
defendants, or alternatively
seeking further provision out of the estate under the Family Protection Act 1955.
The defendants, who
are both executors of and principal beneficiaries under the will,
filed a statement of defence, together with a counterclaim seeking
further provision
for themselves in the event that probate was revoked.


[2]    The proceeding was served on all children and adult
grandchildren of the
deceased.    Counsel was appointed to represent the interests of any minor
grandchildren whose interests were
considered not to be sufficiently represented by
their own parents.


[3]    One of the children of the deceased, Pioiva Talagi,
is an undischarged
bankrupt. The Official Assignee filed an appearance. He was the only person other
than the named parties to take
steps.


[4]    The parties and several other family members attended a judicial settlement
conference on 23 February 2009. Prior
to the settlement conference counsel for the
Official Assignee advised that he did not wish to take an active part. His attendance
was excused. At the commencement of the settlement conference counsel for the
minor grandchildren advised that none of them could
mount a claim for further
provision from the estate. He was excused from further participation.


[5]    The parties and the other
family members present at the conference reached
agreement to settle the matter on the basis that the plaintiff did not proceed with
his
application to revoke probate, and the defendants and other family members agreed
that further provision should be made for the
plaintiff from the estate. The parties
have filed a memorandum seeking orders by consent.


[6]    I make the following orders accordingly
(by consent):


       a)      That provision for the plaintiff Anthony Talagi be made out of the
               estate by payment
to him of $112,000 inclusive of his costs, on

              condition that the plaintiff is to be liable for the costs of counsel
for
              the minor grandchildren, Mr G L Harrison.


       b)     The agreed sum of $112,000 shall be paid to the trust
account of the
              plaintiff's solicitor John F Heard of Auckland within 8 weeks of
              23 February 2009, namely by 20 April 2009.


       c)     The payment of the sum of $112,000
shall be in full and final
              settlement of all claims in the proceeding. In particular, the plaintiff
              Anthony
Talagi acknowledges that he has no further claim in respect
              of the deceased's property at 7 Fisherton Street, Grey
Lynn.


       d)     If the sum of $112,000 is not paid within 8 weeks, the defendants
              shall pay interest on that
sum from 20 April 2009 until the date of
              payment of $112,000 at the rate of 12% per annum, calculated daily.


   
   e)     The defendants shall be liable under this judgment both as executors
              and personally.


[7]    Counsel have
submitted a draft judgment for sealing which is more in the
nature of a memorandum than a judgment in usual form. The judgment for
sealing is
to be resubmitted in the form provided under the High Court Rules




                                               
            ____________________
                                                            Associate Judge Abbott