Angland v Mower - [2016] NZHC 1014

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2008-409-001990 [2016] NZHC 1014

BETWEEN
JOHN SHEARER ANGLAND

First Plaintiff

TREVOR JOHN BURT Second Plaintiff

MICHAEL TONG CHEE CHIN Third Plaintiff

AND

THOMAS ELWIN MOWER Defendant

PHILLIP BOYD WILSON First Counterclaim Defendant

RONALD W ANGLAND & SON (sued as a firm)

Second Counterclaim Defendant

Hearing: 12 May 2016

Appearances:

H C Matthews for Defendant
C M Wakelin for Second Counterclaim Defendant

Judgment:

18 May 2016

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[1] On 11 August 2012 all the parties to this case signed a settlement agreement, with the exception of Mr P B Wilson, the first counterclaim defendant. The claims involving Mr Wilson were settled in July 2013. One provision of the 2012 settlement agreement provides for the proceedings to be discontinued. The plaintiffs have filed a notice of discontinuance, but Ronald W Angland & Son (RWAS) has declined to file a notice of discontinuance of his claim against Mr Mower. Mr Mower applies for an order striking out the counterclaim by RWAS. RWAS
opposes the application.

ANGLAND & ORS v MOWER & ORS [2016] NZHC 1014 [18 May 2016]

[2] The settlement agreement was written by hand at the conclusion of a settlement conference in the court. It records, in Recital 4:

The parties have reached settlement and wish to record the broad heads of agreement with the intention of entering into a full settlement deed. Pending that deed this agreement is binding on the parties.

[3] Contrary to the expectation recorded in Recital 4 the parties did not later

enter “a full settlement deed”.

[4] The first four operative clauses of the agreement set out in detail the basis of settlement of the claims of the plaintiffs against Mr Mower. One of the terms of that aspect of the settlement was a requirement that Mr Mower be paid a sum of money. After those provisions, the agreement contains the following passage:

On payment of $1.5MUS having been made to Tom [Mower] in full he shall take reasonable steps for the judgment held by him against John [Angland]
& HSL [Hossack Station Ltd] to be set aside on the basis that:

(a) He shall use his best endeavours to take reasonable steps to remove, cause to be satisfied or otherwise expunge such judgment; and

(b) Pay the costs associated with that.

On payment having been made in full the Proceedings shall be discontinued without costs.

This agreement is in full and final settlement of the Proceedings between the parties and shall be and remain confidential to them and their advisers.

This passage contains three paragraphs. The first contains the terms of an obligation on Mr Mower to take specific steps in relation to Mr Angland and Hossack. The second and third apply to the entire terms of settlement. For ease of reference in this judgment I refer to the first of these paragraphs as the Mower/Angland settlement.

[5] The settlement obligations between the plaintiffs and Mr Mower have been put into…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Angland v Mower

Details

AGLC: Angland v Mower [2016] NZHC 1014
Case: [2016] NZHC 1014
Decision Date: 18 May 2016

CaseChat Overview and Summary

The case involves a settlement agreement signed by all parties except Phillip Boyd Wilson. The plaintiffs filed a notice of discontinuance, but Ronald W Angland & Son (RWAS) refused to follow suit, arguing that Thomas Elwin Mower had not fulfilled his obligations under the settlement agreement. The court was tasked with deciding whether the settlement agreement was conditional on Mower fulfilling certain obligations or if it was an unconditional settlement, and if conditional, whether Mower had fulfilled his obligations. The court also had to determine whether RWAS's counterclaim should be struck out if Mower had fulfilled his obligations.

The court found that the settlement agreement was indeed conditional until payment was made to Mower, but it became unconditional once that payment was made. The court disagreed with RWAS's argument that the agreement was conditional on Mower taking specific steps regarding a Nevada judgment. The court held that the agreement required discontinuance only after payment had been made, not after Mower took specific steps. Consequently, the counterclaim by RWAS was struck out. The court declined to award costs on an indemnity basis but ordered costs on a 2B basis.

Orders