Cartwright v Joseph [2018] NZHC 2383 (11 September 2018)

Last Updated: 5 November 2018

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2016-488-000058 [2018] NZHC 2383

IN THE MATTER	of the Family Protection Act 1955
AND
IN THE MATTER	of the estate of John Boyd Harrison
BETWEEN	CATHERINE DAILE CARTWRIGHT and SARAH BEVERLEY HARRISON Plaintiffs
AND	NITA WAIRANGI JOSEPH, BARRIE AGAR, BRETT HOGAN and TREVOR DRAFFIN as trustees and executors of the estate of John Boyd Harrison Defendants

Hearing:	6 June 2018
Appearances:	Alex McDonald and Courtney Rutledge for the Plaintiffs Johanna Robertson for Nita Joseph Juliet Golightly for the Executors
Judgment:	11 September 2018

JUDGMENT OF MOORE J

This judgment was delivered by me on 11 September 2018 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

CARTWRIGHT & ANOR v JOSEPH & ORS [2018] NZHC 2383 [11 September 2018]

Introduction

[1] A father breached his moral duty to his daughters by failing to make adequate provision for them in his will. This omission aggravated his failure to provide them with adequate emotional and economic support during their childhood. His daughters claim relief from his estate. The question this judgment confronts is what form that relief should take.

An overview

[2] John Boyd Harrison, known as Tim, died on 23 September 2016. He was survived by Nita Joseph, his partner of 38 years, and his two children, Catherine Cartwright (“Cathy”) and Sarah Harrison (“Sarah”).

[3] In his will of 17 June 2014, for which probate was granted on 1 December 2016, Tim left the whole of his estate to Nita, should she survive him. The estate is valued at just under $4 million; approximately $92,000 in cash and land valued at
$3.8 million.¹ The land consists of a large block in Pataua South, east of Whangārei.
It has significant subdivision potential.²

[4] Cathy and Sarah now apply under s 4 of the Family Protection Act 1955 (“the Act”) for provision under the estate. It is not in dispute that Tim held, and breached, his moral duty to make adequate provision for Cathy and Sarah. Accordingly, the issues for resolution are:

(a) What award is sufficient to remedy the breach of moral duty? and

(b) How is this best effected, given the bulk of the estate is held in land?

¹ According to a 2017 valuation.

² I refer to this land, which in fact comprises two sections, as “the Pataua South property”.

Background

Tim’s upbringing and marriage to Cathy and Sarah’s mother

[5] Tim was born on 19 November 1948. He grew up on the family farm in Pakuranga. His family was wealthy. This was due to a bequest by his grandfather, George Harrison. George set up the George Harrison Trust, which held as its primary asset Pigeon Mountain in Half Moon Bay. It was sold in 1971 for $695,000. Tim and his three siblings each received approximately $90,000.

[6] Tim met Esther Harvey, the mother of Cathy and Sarah, in the late 1960s, when she was working on the Harrison family farm. They married on 12 September 1970. Cathy was born on 26 September 1973. Between her birth and Sarah’s on 26 February 1976, Tim and Esther bought a farm in Owhango, near Taumaranui. The purchase price was met from the couple’s savings as well as proceeds from the George Harrison Trust.

[7] Tim and Esther’s marriage was an unhappy and discordant one. By 1977 the couple had separated. It is generally accepted this was a difficult time for both girls.

Cathy and Sarah’s early childhood

[8] After protracted negotiations, Esther accepted a settlement of $40,000 from Tim. She applied these funds to buy a modest home in Ohinewai in the northern Waikato. When that property was sold, Esther suffered the first of a series of breakdowns and admissions to mental health institutions. She was later diagnosed with schizophrenia. Cathy recalls a childhood of instability; numerous shifts, frugal and uncertain finances and a mother with fragile mental health. A related and ongoing source of stress and concern was Tim’s delinquent approach to his maintenance obligations. He either paid less, was late or simply refused to make payments. From all accounts he deeply resented making any contribution towards his family. At one stage this intransigence forced Esther to bring proceedings which eventually settled.

Tim and Nita

[9] At some point between 1977 and 1980, Tim sold the Owhango farm and bought property in Hamilton including a restaurant. It was there he met Nita.

[10] In 1981, Tim sold the restaurant and bought the Pataua South property. In 1982 he and Nita moved there, living together in the house on the property. Nita advises that during these early years they had little cashflow and worked hard to develop the property. They planted maize and kumara to assist with cashflow. They laid concrete, built an ablution block and laid the power cables to develop the property into a caravan park. They landscaped the park; planting trees, fencing, and building a playground. Over the next 20 years they continued to develop amenities at the park. Nita operated the caravan park, often with the assistance of friends, family members, or employees. During much of this time Tim and Nita supported themselves and their development with full-time employment in Whangārei.

Cathy and Sarah’s relationship with Tim

[11] Initially Sarah and Cathy enjoyed a good relationship with their father. When Tim and Nita moved to Pataua South, both girls would often travel by bus to stay with them. Sometimes Tim would drive to Ohinewai to collect them, or they would stay with their grandmother in Auckland.

[12] At age 11, disenchanted by the lack of stability in her life, Cathy asked Esther if she could move north to live with her father. Esther agreed, and Cathy moved in with Tim and Nita in 1984. She enjoyed the structured life Tim and Nita provided. In early 1986 she was joined by Sarah. This was because Esther was not coping well and had moved to Australia for a fresh start. Cathy describes this change as hard for Sarah, who was only 10 at the time. She was treated as an outsider by Tim.

[13] At some point over the next year, Esther returned for a holiday. She offered to take her daughters back to Australia. Sarah agreed, but Cathy elected to remain in Pataua South. Cathy says that from this point her relationship with her father soured. He became very critical of her. Sometimes he would not speak to her for days at a
time. She also began to encounter financial difficulties and dreaded having to ask her father for anything.

[14] This change in her relationship with Tim led Cathy to become unhappy and isolated. In late 1986 her mother and Sarah returned from Australia, and moved to Whangārei to be closer to Cathy. Cathy says that initially Tim forbade her visiting Esther, but eventually a pattern developed with her spending alternate weekends with her mother and sister. By 1987, she sought Tim’s permission to move back with them. This was refused. She made numerous requests over the following year or so. Each approach was met with a further refusal.

[15] In early 1988, Cathy visited Esther. She decided she could not return to her father. Unbeknownst to her at the time, this would be the last proper contact she would have with her father. She made various attempts to maintain a connection with him. But when she was 15, Tim wrote her the following letter:

“Catherine

Please do not send anything else to me. It was made quite clear to you at the time you left that your actions would severely affect us. Yet you made the choice to do it. As a result life was made very difficult for Nita & I and we almost lost the farm. No doubt this was what your mother had at the back of her mind.

As far as I am concerned, you made your bed, now you lie in it. I have no time at all for disloyal people, they do not get second chances, ever.”

[16] By way of explanation Cathy advises Tim’s reference to being “severely affect[ed]” relates to the maintenance payments he was obliged to make because Esther had custody of both children.

[17] Despite the prohibitions Tim imposed on Cathy, Sarah continued to see him and Nita. She says she did so because she did not wish to lose contact with her father, and because she vainly believed that if she maintained contact it might be easier for Tim and Cathy to resume their relationship.

Later years

[18] Thereafter both Cathy and Sarah continued to live with their mother. They left only when they were old enough to attend university. Both received student allowances because Tim refused to make any contribution to their tertiary education. They also worked for their mother during the summer holidays.

[19] Both Cathy and Sarah studied law. Each has gone on to have a successful career. Over these years Sarah continued to maintain a relationship with Tim, although there were periods during which there was little to no contact. Cathy had no contact at all with her father. She says his funeral was the first time she had seen him since she was 15 or 16.

Tim’s will

[20] Tim’s last will is dated 17 June 2004. Probate was granted on 1 December 2016 in favour of Nita, Barrie Agar, Brett Hogan and Trevor Draffin, the executors named in the will. The crucial clause is cl 4:

“I give devise and bequeath the whole of my estate both real and personal of whatsoever nature and wheresoever situate unto my trustees upon trust to pay thereout my just debts funeral testamentary and graveyard expenses and all death duties payable in respect of my dutiable estate and to stand possessed of the residue for my said fiancée Nita Wairangi Joseph should she be living at the date of my death but should she predecease me then to divide the same into twenty equal parts ...”

[21] As Nita did not predecease Tim she is entitled to his entire estate. Had she died first Sarah would have been entitled to eight of the 20 parts of Tim’s estate.

[22] In cl 5, Tim added:

“I direct ... that the trustees are first and foremost to protect and look to the interests of Nita Wairangi Joseph. She has been my partner for most of my life. She has worked for the improvement of the said assets without reward and it is fitting her efforts over the many years be recognised. I direct that Nita’s wishes are to carry precedent in any trustee decision. It is my express

wish that Nita is to have the full and free use of all the assets of my estate

up until the time of her death.”

[23] Tim’s chronic sense of bitterness and betrayal is revealed in his concluding comments at cl 6:

“I wish it recognised that my parents and my siblings, turned their backs on me, at a time when I approached them for help, some fifteen years ago. They were in a position to help but refused. Since that time we have been estranged. Therefore it is my express wish not one of them is entitled to any share whatsoever in this estate.

Similarly, with my eldest daughter Catherine Daile Harrison, for many years I devoted my life to her. Just to give one example, it used to take me nine hours driving just to pick the children up and I never missed a weekend. Then, when Catherine was fifteen, she decided to go back to her mother, very much against my wishes. Since that time we have been estranged. She has made no effort at reconciliation and no contribution to the estate. It is my wish that she is not entitled to any share whatsoever in this estate.”

Breach of moral duty

[24] The Court’s inquiry under s 4 of the Act, whether there has been “proper maintenance and support”, turns on what has come to be referred to as a “breach of moral duty”.³ While it has been accepted Tim breached his moral duty to Cathy and Sarah, particularisation of the nature of the breach is necessary to inform the calculation of the quantum which should be awarded.

[25] The test under s 4 is “whether adequate provision has been made for proper maintenance and support of the claimant.”⁴ The following principles guide the application of that overarching test:⁵

“‘Support’ is an additional and wider term than ‘maintenance’. In using the composite expression, and requiring ‘proper’ maintenance and support, the legislation recognises that a broader approach is required and the authorities referred to establish that moral and ethical considerations are to be taken into account in determining the scope of the duty. ‘Support’ is used in its wider dictionary sense of ‘sustaining, providing comfort’. A child's path through life is supported not simply by financial provision to meet economic needs and contingencies but also by recognition of belonging to the family and of having been an important part of the overall life of the deceased. Just what provision will constitute proper support in this latter respect is a matter of judgment in all the circumstances of the particular case. It may take the form of lifetime gifts or a bequest of family possessions precious to its members and often part of the family history. And where there is no economic need it may also be met by a legacy of a moderate amount. On the other hand, where the estate

³ Williams v Aucutt [2000] NZCA 289; [2000] 2 NZLR 479 (CA) at [38].

⁴ At [52] per Richardson P.

⁵ At [52].

comprises the accumulation of the family assets and is more than sufficient to meet other needs, provision so small as to leave a justifiable sense of exclusion from participation in the family estate might not amount to proper support for a family member.”

[26] Whether there has been a breach of a moral duty, and what is considered appropriate to remedy it, is to be judged by the standards of a wise and just testator or testatrix.⁶

[27] Cathy and Sarah claim their father breached his moral duty to them by not making provision for them in his estate. Indeed they go further. They say he largely neglected them emotionally and in Cathy’s case effectively abandoned her. On their behalf, Ms McDonald submitted both girls lost their childhood when it was within Tim’s ability to provide them with a happy one. She submitted Tim subjected the girls to a life where Cathy, in particular, was forced to mature early and deal with adult issues such as family estrangement and financial stress well before she had sufficient life experience to do so. Both girls were engaged in an emotionally complex, turbulent and abusive relationship with their father, and had a mother who was obliged to work to keep the family afloat and together; all the while as their lives were unsettled by the instability of regular moves. She submits provision is required for both emotional recognition purposes as well as meeting both daughters’ current economic needs.

[28] I agree there is little question that Tim breached his moral duty to both daughters by making no provision for them in his estate. Provision was necessary to recognise their place in his family after a period of significant estrangement. Cathy and Tim were entirely estranged for a period of some 30 years prior to Tim’s death. Sarah’s relationship with him was unstable and strained. To Nita’s considerable credit she accepts this and agrees it was caused by failures on Tim’s part. There is simply no basis to apportion any blame to either daughter. Neither Cathy nor Sarah was in the slightest bit responsible for the failure of their relationship with their father. Both were young girls when the relationships began to deteriorate. It is also apparent, despite Tim’s poor treatment of his daughters, that both loved their father and hoped to maintain contact with him. In Cathy’s case she persevered until Tim made it plain he

⁶ Little v Angus [1981] 1 NZLR 126 (CA) at 127.

was not prepared to have any further contact with her. In Sarah’s, she maintained a relationship in spite of difficulties.

[29] I also agree with Ms McDonald that, as the Court of Appeal observed in Little v Angus, changing societal attitudes must have an impact on what amounts to a breach of moral duty;⁷ that contemporary social attitudes would rightly condemn Tim’s behaviour. He acted with little or no regard for the emotional or financial wellbeing of his daughters. As she submits, a wiser and more mature father in Tim’s position would have reflected on his relationship with his daughters putting to one side his anger and resentment. It follows that although by the time of his death Tim was completely estranged from Cathy and at best had a strained relationship with Sarah, his failure to remedy this state of affairs in his will constitutes a breach of moral duty.

[30] In terms of economic support, I accept Tim all but completely failed to provide his daughters with economic support during their childhood. Any financial comfort Cathy and Sarah now enjoy is largely due to their own efforts. No credit of any kind may be given to Tim for the fact that both his daughters have succeeded despite such trying and avoidable circumstances. However, I consider this factor goes to an assessment of the magnitude of his emotional failure; it is a component of his failure to recognise and treat them as members of his family rather than a separate failure to provide appropriate economic support in his will. That is because both Cathy and Sarah are highly educated and employable. Sarah continues to work, while Cathy has left her employment to raise a family. Both are in reasonably stable financial positions, particularly Cathy. There is no present need for economic support. It was accepted in oral argument that although their present circumstances are slightly different, both should be treated on the same basis and any provision ordered by the Court should treat each daughter equally.

What quantum should be awarded, and what form should the award take?

[31] Assessing how Tim’s breach of moral duty is to be treated is not straightforward. This is because the estate is comprised of a number of parcels of land; some a good deal more valuable than others and some more capable of subdivision

⁷ At 127.

and realisation than others. This is discussed more fully below. Thus the appropriate quantum which should be awarded to meet Tim’s breach of moral duty is, to a considerable extent, tied to the form of award made to Cathy and Sarah.

[32] However, for reasons I expand on below, there is considerable value in making a determination about the quantum Cathy and Sarah are entitled to now. In particular, it informs which development and sale options are viable. Accordingly, I shall decide the issue of quantum first before considering what particular award best meets the needs of Cathy and Sarah without unduly interfering with the wishes of the testator and overburdening the executors. Because I am conscious of the complexities underlying the division of the estate, I shall make only provisional orders at this stage.

Quantum

(a) Legal principles governing quantum

[33] Only provision sufficient to remedy the breach is required. The Court is not authorised to rewrite a will merely because of perceived unfairness; the question is what sum is required to give adequate provision for proper maintenance and support.⁸ In determining whether testamentary freedom should be interfered with, the Court is given a wide discretion by the statutory scheme of the Act. The assessment of quantum does not require a mathematical or scientific calculation.⁹ Rather:¹⁰

“There will always be a band of answers within which individual judges make decisions on the facts of particular cases. It is difficult to say that one award is right and another is wrong.”

[34] One study found that in respect of adult children, claims much above the 10 per cent mark cannot be assumed, and if the estate is large and the child is not in financial need then between 12.5 and 20 per cent is available.¹¹ But those conclusions were made in the context of the widely variable circumstances of family protection cases. Ultimately, these observations provide little more than a comparative yardstick which

⁸ Williams v Aucutt, above n 3, at [68] per Blanchard J.

⁹ Warboys v Jones [2004] NZFLR 360 (HC) at [33] per Wild J.

¹⁰ Public Trust v Relph [2008] NZHC 1944; [2009] 2 NZLR 819 (HC) at [57].

11. Nicola Peart “Forced Heirship in New Zealand” (1996) 2 BFLJ 97; see also Nicola Peart “Awards for Children Under the Family Protection Act” [1995] 1 BFLJ 224.

may or may not assist in applying of the principles. An evaluative approach is required. As the Court of Appeal has more recently stated in Fisher v Kirby:¹²

“The decisions of this Court from and including Little v Angus are properly viewed as a timely reminder that awards should not be unduly generous. But, in our view, neither should they be unduly niggardly, particularly where the estate is large and it is not necessary to endeavour to satisfy a number of deserving recipients from an inadequate estate. A broad judicial discretion is to be exercised in the particular circumstances of each case having regard to the factors identified in the authorities.”

(b) The appropriate quantum

[35] In terms of quantum, Ms McDonald submits the estate is sufficiently large to provide appropriately for Cathy and Sarah while ensuring Nita’s needs are met. She submitted, and I agree, that the challenge is settling on an arrangement which will best serve both purposes, particularly given Nita’s home and income is wrapped up in land which comprises the most valuable and readily divisible part of the estate.

[36] Ms McDonald’s proposal involves provision of 15 per cent of the estate to each daughter. This apportionment sits very much at the higher end the Courts have considered appropriate in cases of this type. On the guidelines drawn from the authorities I am of the view an award closer to 10 per cent would be sufficient to remedy the breach, taking into account the well-settled principle the Court should go no further than is necessary when interfering with testamentary freedom.¹³ In particular, I bear in mind that there is no need for economic maintenance, which might otherwise justify a larger award. But while the estate is large enough to accommodate the needs of all parties, there are practical considerations which complicate the superficial attraction of simply applying a percentage based division. With that in mind, I turn to consider the form of the award.

¹² Fisher v Kirby [2012] NZCA 310 at [120].

¹³ Silbery v Silbery-Dee [2008] NZFLR 191 (HC) at [10].

Form of the award

(a) The Estate

[37] As noted, the principal asset of the estate is the Pataua South property. This comprises two titles; NA51D/609 (“609”) and NA51D/610 (“610”). 609 is approximately 44 hectares, while 610 spans approximately 32 hectares. The camping ground sits at the northern tip of 609, but is bounded by water to the north and south. 610 also straddles the water to the south, but only a sliver borders the water to the north. 609 comprises four sections: S11/1 to the north, on which the camping ground is located; S11/2 to the south; S11/3 below it, extending to the east to the border with 610; and S11/4 along the southern coast. Over S11/1 Tim secured a zoning overlay in 2005, meaning it can be subdivided into 28 lots. It is the most valuable part of the titles. Telfer Young valued both titles, if sold jointly, at $3.8 million in 2017. However, if subdivided into 28 lots, S11/1 could be worth almost $10 million.

[38] The land has recently been subject to plan changes by the Whangārei District Council, which Tim was planning to respond to prior to his death. The executors did not proceed with any development options identified in a report by Cato Bolam, a consultancy firm, but did (unsuccessfully) oppose the proposed plan changes. Those proposed changes have since been accepted and notified. A Cato Bolam report of 26 January 2018 advises that the effect of the new plan is:

(a) S11/1 is zoned Rural Village Residential Environment, and can be subdivided into 28 lots.

(b) The remainder of 609 and 610 are zoned Rural Countryside, which allows for development to 20 hectare lots, but with three extra titles for 20 hectares of high quality bush and/or wetland.

(c) As a result 609 may be divided into a 28 lot subdivision on S11/1, and a further two lots as a controlled activity, or five lots as a discretionary activity, if it meets the definition of “high quality”.
(d) 610 meanwhile may be divided into three lots only, given its smaller expanse. Moreover, the bulk of the title is within the coastal inundation and floor hazard zone, and achieving building sites would require filling and stabilisation. But the low-lying area could become wetland creating an environmental benefit supporting up to three lots.

[39] The estate also includes the business operating at the camping ground. In the financial years ending 2014, 2015, 2016 and 2017, the business generated net profits before tax of $43,469, $56,129, $44,455 and $82,505. Nita was paid a salary of
$52,000 per annum out of those profits.

[40] At present there is also approximately $92,000 in cash in the estate, although this sum has been substantially reduced by $73,400 which Nita contributed to developing the caravan park. I determine this advance should be treated as a liability.

(b) The position of the parties

[41] Ms McDonald helpfully summarised four development options in a document she produced at the hearing. Similarly, in her submissions Ms Golightly, for the executors, outlined a number of development options identified by Cato Bolam and valued by Telfer Young. The key aspects are:

(a) The easiest option is to sell both titles 609 and 610 together.

(b) The Campground Overlay at S11/1 is valuable and well worth separating from the balance of 609. It could be developed, or possibly sold. If subdivided from the balance of the 609 land, it is valued at
$3.5 million plus GST.

(c) The residue of 609 is valued at $40,000 including GST, assuming right- of-way access over the end of 610 to Mahanga Road.

(d) The combined value of the residue of 609 and all of 610, as one title, is
$770,000 including GST.
[42] Ms Golightly points out that the estate may be able to meet a modest award from cash reserves or income. The executors have also received an indication from the ANZ Bank that up to $200,000 in lending may be available to satisfy any judgment in favour of the plaintiffs. Otherwise, the executors accept a more significant award would need to be met by the sale of 610 or vesting in the plaintiffs shares in the fee simple in either 609 or 610. This, Ms Golightly submits, could result in a net cash pool for distribution to Cathy and Sarah of approximately $248,750, or 6.5 per cent of the estate, each.

[43] Ms Robertson, for Nita, similarly submitted that the most appropriate award, given Tim’s unequivocal testamentary direction was for Nita to remain on the property and her own capital investment in the property, would be the transfer of 610 to Cathy and Sarah. This reflects Option B in Ms McDonald’s summary document.

[44] As noted, Cathy and Sarah each seek an award equating to a 15 per cent share (or greater). Ms McDonald submitted awarding 610 outright, or any proceeds of sale, would not properly reflect Tim’s moral duty to them. She also pointed out that Nita and Tim had been intending to sell at some point, and Nita is approaching retirement age. This proposal involves:

(a) sale of 610, with the net proceeds to be paid in equal shares to Cathy and Sarah;

(b) a right of occupancy of 609 being granted to Nita for the next five years, subject to Cathy and Sarah holding a 30 per cent share in the ownership of the fee simple as tenants in common with equal shares; and

(c) sale after five years, or sooner if Nita wishes, of 609, with the proceeds of sale to be allocated as above, with Nita retaining 70 per cent, and Cathy and Sarah being given a 15 per cent share each, with the sale proceeds of 610 being inflation-adjusted and deducted from the sum paid to each of them.
[45] In terms of the development options, this would involve Option A, i.e. the subdivision of S11/1 from the balance of 609, and the potential for it to be further subdivided into as many as 28 lots. The balance of 609 would then be amalgamated with 610. This option is preferred by Cathy and Sarah because it would maximise the value of the Pataua South property.

(c) Assessment

[46] I have already indicated that an award of 15 per cent of the estate to each daughter is excessive, sitting as it does at the high end regarded as appropriate for a claim of this sort. I am fortified in this view by the fact that awarding Cathy and Sarah each 15 per cent would require the sale of all the land. In my view such an order would interfere too greatly and unnecessarily with the testator’s wishes that Nita remain on the land. Cathy and Sarah’s proposal would effectively result in Nita’s eviction before she is at retirement age, and require her to leave a property she has spent the better part of forty years of her life developing.

[47] I have also considered whether adopting this proposal, but ordering sale after five or 10 years, would satisfy the competing interests in play. I have concluded it would not. Such a course would unfairly restrain Nita’s future options, and would still have the effect of removing her from the property. She may wish to remain and continue the business, which is her only source of cashflow. It also would be contrary to Tim’s testamentary intentions to constrain Nita’s rights of occupation to a five or 10 year window.

[48] There is also the position of the executors to be considered. They should not be bound to administer this estate beyond what is reasonable. Requiring sale in five or 10 years would require the executors to maintain their involvement in the estate for an unreasonably extended period. Ms Golightly made it plain that such a course is strongly resisted by the executors who are rightly and understandably of the view Tim’s estate should be wound up as soon as is practically possible. For these reasons I have serious misgivings about proceeding with development Option A.

[49] Counterbalancing this is my concern that by ordering the transfer of 610, Cathy and Sarah would receive only about seven per cent of their father’s estate. In my view
that would be a “niggardly” award insufficient to remedy Tim’s breach of moral duty to his daughters. For that reason I am not prepared to adopt development Option B.

[50] There are however aspects of Option C which have some attraction. An order in accordance with that option would involve:

(a) the subdivision of 609 involving S11/1, where the camping ground is located, being separated from the remaining section; and

(b) the title of the residue of 609 being joined with the title to 610 and sold, with the proceeds going to Cathy and Sarah.

[51] According to a Telfer Young report of 29 March 2018, that sale would net approximately $770,000, equivalent to 20 per cent of the estate, or 10 per cent each.

[52] This would come at some cost. These have been estimated at $112,000 comprising the boundary adjustment, subdivision and legal costs. At the hearing Ms McDonald submitted these costs made this option a higher risk one. However, I consider at this stage the benefits outweigh the disadvantages, and even with the substantial costs involved, this course appears to best satisfy the interests of all the parties. In particular, as well as Cathy and Sarah receiving close to 10 per cent of the estate each, Nita would be able to retain the most valuable part of the land at Pataua South which covers approximately 5.2 hectares, and crucially includes the camping ground. She would be able to continue operating the camping ground business if that was her wish.

[53] Because this course appears to benefit all stakeholders, my provisional view is the costs of division and sale should be borne by the estate, and charged to the parties in accordance with their shares (that is, 20 per cent of the cost should be deducted from Cathy and Sarah’s combined entitlement). That should mitigate some of Ms McDonald’s concerns about the cost of subdivision diluting Cathy and Sarah’s entitlement.
[54] However, I am conscious that this course attracted relatively little attention at the hearing. I am also conscious that not having had the opportunity to hear planning evidence, my orders might have unintended and/or unseen consequences. Alternatively, the parties, guided by my findings in this judgment, may agree to proceed with subdivision of the remainder of 609 and 610 before sale in order to maximise their joint returns or indeed some other option not specifically addressed in argument. Given the reasonable and realistic approach taken by Nita, and the lack of avarice on the part of Cathy and Sarah, I am confident that with the benefit of my finding on quantum the parties may well be able to agree on a mutually acceptable course. To their considerable credit, this is not a case of deep seated family division.

[55] For these reasons I have decided not to make final orders at this stage. I intend to grant the parties an opportunity to comment on this proposal before doing so. The parties should not treat the invitation for further submissions to relitigate the breach of moral duty or the share of the estate I have decided Cathy and Sarah are entitled to. Any submissions should be focused on the feasibility of Option C, and/or any other development options they consider are consistent with the views I have expressed in this judgment which would have the effect of releasing or realising funds sufficient to meet the 10 per cent quantum I have determined Cathy and Sarah are each entitled to. If they consider it necessary, the parties may commission a further joint valuation and/or subdivision report on this option or any others they consider necessary to determine the most appropriate mechanism to give effect to my orders as to quantum.

Result

[56] I find that Tim was in breach of his moral duty to his daughters in failing to provide for them in his will.

[57] An award of a 10 per cent share each in the estate is appropriate to remedy the breach.

Directions

[58] The parties are to file and serve any further submissions on what form the award should take within 20 working days of the date of this judgment. If further
time is required the parties should file a joint memorandum seeking revised timetabling orders. They may also commission a further valuation and/or subdivision report commenting on the feasibility of this course and file that with any submissions. If agreement is able to be reached on how to proceed on the basis of this judgment, a joint memorandum recording that should be filed.

[59] I shall make directions on costs after making any final substantive orders which are required.

Moore J

Solicitors/Counsel:

Ms McDonald, Auckland Ms Rutledge, Auckland Ms Robertson, Auckland

Marsden Woods Inskip Smith, Whangarei