Conway v Burdon
[2015] NZHC 479
•13 March 2015
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2014-409-000718 [2015] NZHC 479
BETWEEN NADINE RACHAEL CONWAY
Plaintiff
AND
TIMOTHY COTSFORD BURDON Defendant
Hearing: 10 March 2015 Appearances:
D M Lester and N M Robson for Plaintiff/Applicant
J E Bayley for Defendant/RespondentJudgment:
13 March 2015
JUDGMENT OF ASSOCIATE JUDGE OSBORNE
on plaintiff's summary judgment application
Introduction
[1] The plaintiff (Ms Conway) and the defendant (Mr Burdon) were married in
1990 and together have three children. They separated in 1999. Their marriage was dissolved in 2003.
[2] The parties entered into a deed on 10 July 2003 (the deed). The deed provided for the parties’ separation, custody of the children, maintenance and child support and relationship property division.
[3] In this proceeding Ms Conway asserts that pursuant to Mr Burdon’s
maintenance obligations under the deed, he owed her (including interest)
$538,272.73 at 1 September 2014 (with additional arrears and interest accruing). She seeks summary judgment for those sums.
CONWAY v BURDON [2015] NZHC 479 [13 March 2015]
The issues as to Mr Burdon’s maintenance obligations
The provisions of the deed
[4] Some differing forms of the deed exist.
[5] The form of the deed which both Mr Lester and Mr Bayley accept must be assumed for the purpose of this summary judgment proceeding is dated 10 July 2003 and provides in relation to maintenance and child support:
MAINTENANCE/CHILD SUPPORT
4.Tim will pay the sum of $3,500 per month all in for spousal maintenance and core child maintenance which payment is intended to meet the reasonable costs of rates, insurance, power, gas, firewood, petrol, medical insurance, food, telephone or any other day to day personal items of expenditure.
5.In the event that Tim meets any of the above payments directly, then such payments shall be rebated against the said sum of $3,500.
6.The parties record that Tim has agreed to undertake a review of his taxation position with Nadines [sic] father, Warren, and that in the event there is a tax saving of $500 per month or more to Tim, then Tim shall increase the above payment to $4,000 per month.
7.The parties shall open a joint bank account for meeting additional non core maintenance costs relating to the children on the following terms;
(a) Both parties shall have signing authority over the account;
(b) Tim shall make an initial deposit of $3,000.00 to the account;
(c) Both parties agree to consult with each other in relation to expenditure from the account;
(d) Proper records of expenditure from the account will be kept and made available to the other party upon request;
(e) The account will be replenished as required.
8.The above payments will be reviewed from time to time having regard to the parties [sic] circumstances.
[6] The deed also contains as one of its general provisions a dispute resolution clause which provides:
18.Tim and Nadine agree to take all necessary steps to give effect to the above and that they will use their best endeavours to resolve any future disputes relating to maintenance and the children in good faith and failing that then to undertake mediation.
Version of the deed exhibited by Ms Conway
[7] To her affidavit in support of her summary judgment application, Ms Conway exhibited an identical typed version of the deed to which I have referred but with handwritten amendments on it. The amendments bear the initials of Ms Conway and Alan Harper, the solicitor who witnessed her signature and certified the deed for the purposes of the Property (Relationships) Act 1976.
[8] The amendments were to:
(a) amend the sum of $3,500 in clause 4 to read “$4,000”;
(b) delete clauses 5 and 6; and
(c) add a clause 23 reading “This agreement shall be effective from 10
July 2003”.
[9] Mr Burdon has deposed that the handwritten variations were made solely by Ms Conway and her solicitor after Mr Burdon and his solicitor had executed the (unaltered) agreement. A “re-engrossed” version of the agreement, without changes, was later (in 2004) executed by Ms Conway and her solicitor, then signed by Mr Burdon and his solicitor, but still dated 10 July 2003 as its agreed effective date.
[10] In reply evidence, Ms Conway accepts that Mr Burdon never signed off the version of the deed as amended by hand. She explains that she now recalls that Mr Burdon refused to disclose the result of his tax position which, by virtue of clause 6, may have operated to increase the monthly payments to $4,000.
[11] In the event, although the statement of claim asserts that clause 4 provides for payment of $4,000 per month, Mr Lester for Ms Conway pursues summary judgment on the basis of the clause 4 stipulation of $3,500 per month.
Ms Conway’s case
[12] Ms Conway, in addition to asserting that the deed provides for a payment of
$4,000 per month, asserts:
(a) Mr Burdon’s clause 4 obligations and Ms Conway’s clause 5
entitlements are of indefinite duration;
(b) Mr Burdon has never paid the full amount of $4,000 per month since
July 2003;
(c) by spreadsheet Ms Conway exhibits, taking account of the payments received from Mr Burdon and interest on arrears at the rates provided for under the Judicature Act 1908, Mr Burdon owed her at 1
September 2014 $374,932.27 in arrears and $163,340.46 in interest;
and
(d)Mr Burdon never suggested that the maintenance provisions in the deed be formally reviewed (under clause 8).
Mr Burdon’s grounds of opposition
Limitation Act 1950
[13] Mr Burdon’s first ground of opposition was that the claim is barred in whole or in part by s 4 Limitation Act 1950. This ground overlooked the fact that the maintenance obligation was contained in a deed, with the entire claim falling within the 12-year limitation period. By his synopsis of submissions, Mr Bayley indicated the defendant no longer pursues this ground of opposition (although he maintains that delay is relevant to other grounds of opposition).
The term of the obligation
[14] Mr Burdon asserts that the obligation is not indefinite or perpetual but subject to an implied term that the amount payable would reduce and terminate in accordance with ss 64 and 70A Family Proceedings Act 1980 and s 25 Child Support Act 1991.
Mr Burdon’s compliance with his obligations
[15] Mr Burdon asserts that he has complied with his obligations, particularly having regard to the requirement under clause 8 that maintenance payments be reviewed from time to time having regard to the parties’ circumstances.
Breach of dispute resolution clause
[16] Mr Burdon asserts that Ms Conway is in breach of her obligation under clause 18 of the deed to use best endeavours to resolve disputes relating to the maintenance of the children and, failing that, to undertake mediation.
Estoppel
[17] In the event he is in breach of any obligation, Mr Burdon asserts that an estoppel arises in that Ms Conway acquiesced in the non-payment or reduced payment of maintenance, which is relevant to the suspension or remission of arrears.
Rebating of maintenance payments
[18] This ground was not expressly contained in Mr Burdon’s notice of opposition but was raised in detailed affidavits in his affidavit in opposition under a heading “rationale for payments”.
[19] Mr Burdon invokes the requirement of rebate under clause 5 of the deed, whereby there was to be rebated against the sum of $3,500 any of the payments identified in clause 4 which Mr Burdon made directly. Mr Burdon deposes that he was directly meeting various expenses. He gives as examples the rates, insurance and power on a Wanaka property in which Ms Conway resided until the end of 2004.
Plaintiff ’s summary judgment application – the principles
[20] The starting point for a plaintiff’s summary judgment application is r 12.2(1) High Court Rules, which requires that the plaintiff satisfy the Court that the defendant has no defence to any cause of action in the statement of claim or to a particular cause of action.
[21] I summarise the general principles which I adopt in relation to this application:
(a) Commonsense, flexibility and a sense of justice are required.1
(b)The onus is on the plaintiff seeking summary judgment to show that there is no arguable defence. The Court must be left without any real doubt or uncertainty on the matter.2
(c) The Court will not hesitate to decide questions of law where appropriate.3
(d)The Court will not attempt to resolve genuine conflicts of evidence or to assess the credibility of statements and affidavits.4
(e) In determining whether there is a genuine and relevant conflict of facts, the Court is entitled to examine and reject spurious defences or plainly contrived factual conflicts. It is not required to accept uncritically every statement put before it, however equivocal, imprecise, inconsistent with undisputed contemporary documents or
other statements, or inherently improbable.5
(f) In assessing a defence the Court will look for appropriate particulars and a reasonable level of detailed substantiation – the defendant is
1 Haines v Carter [2001] 2 NZLR 167 (CA) at [97].
2 Pemberton v Chappell [1987] 1 NZLR 1 (CA).
3 European Asian Bank AG v Punjab & Sind Bank [1983] 2 All ER 508 (CA) at 516.
4 Harry Smith Car Sales Pty Ltd v Claycom Vegetable Supply Co Pty Ltd (1978) 29 ACTR 21.
5 Attorney-General v Rakiura Holdings Ltd (1986) 1 PRNZ 12 (HC).
under an obligation to lay a proper foundation for the defence in the affidavits filed in support of the Notice of Opposition.6
(g)In weighing these matters, the Court will take a robust approach and enter judgment even where there may be differences on certain factual matters if the lack of a tenable defence is plain on the material before the Court.7
(h)The need for judicial caution in summary judgment applications has to be balanced with the appropriateness of a robust and realistic judicial attitude when that is called for by the particular facts of the case. Where a last-minute, unsubstantiated defence is raised and an adjournment would be required, a robust approach may be required
for the protection of the integrity of the summary judgment process.8
(i)Once the Court is satisfied that there is no defence, the Court retains a discretion to refuse summary judgment but does so in the context of the general purpose of the High Court Rules which provide for the just, speedy and inexpensive determination of proceedings.9
Discussion – grounds of opposition
The amount on the claim – the rebating issue
[22] Mr Burdon deposes (albeit with the most modest of detail) that he made payments of a maintenance nature (such as rates, insurance and power) which were required by clause 5 of the deed to be rebated against the monthly sum of $3,500.
[23] Ms Conway in her initial evidence in support of the summary judgment application had not addressed the rebating requirement. Nor did she, in that
evidence, recognise that payments had been made that were required to be rebated.
6 Middleditch v NZ Hotel Investments Ltd (1992) 5 PRNZ 392 (CA).
7 Jowada Holdings Ltd v Cullen Investments Ltd CA 248/02, 5 June 2003 at [28].
8 Bilbie Dymock Corporation Ltd v Patel & Bajaj (1987) 1 PRNZ 84 (CA).
9 Pemberton v Chappell, above n 2.
[24] Belatedly Ms Conway dealt with those matters in her reply affidavit. There she accepted that Mr Burdon had during her period at Wanaka made some direct (rebateable) payments. She deposes that she does not believe that the direct payments for rates, insurance and electricity were more than $8,000 per annum in
2003 and 2004.
[25] Ms Conway deposes that, after she relocated to Christchurch in 2004, Mr Burdon made no more additional “top-up payments” to her, by which I infer she means no further payments of costs identified in clause 4 which would have fallen to be rebated under clause 5.
[26] Mr Lester, for Ms Conway noted that Mr Burdon had provided no schedule of claim payments in relation to the costs identified in clause 4. I observe that that submission glosses over the burden which the plaintiff bears in establishing that a defendant has no arguable defence. Ms Conway in making her claim did not deal with the required rebate although she now recognises that payments were made and are required to be rebated under clause 5. She herself has not provided a schedule which takes those payments into account. Mr Lester instead suggests in his submissions that the “worse case” basis of rebating would be to allow a maximum of
$8,000 per annum for a full two years (which is more than the period of the payments). Ms Conway does depose in her reply affidavit that the schedule attached to her initial affidavit gives credit to Mr Burdon for all the payments she received from him after her relocation to Christchurch in 2004. She identifies, as an instance, an amount of $2,185 for a child’s school uniform. Mr Burdon had given that as an example of a direct payment he had made, leading Ms Conway in reply to observe that the cost ($2,185) was allowed for in her schedule and therefore rebated.
[27] Although recognising the rebating requirement in relation to the Wanaka direct payments, Ms Conway in her reply evidence did not provide a revised schedule dealing with those matters and consequential interest recalculations.
[28] Ms Conway’s schedule as she produced it poses a difficulty of analysis in that of the few apparent items of direct payment (apparent from their less than rounded appearance) no explanation was provided as to the nature of the account met. In that
regard, the schedule is lacking in detail particularly in the light of the age of some of the payments as compared with the need to identify to which they related.
[29] This is an unsatisfactory aspect of the plaintiff ’s claim. That said, if no other issues arose on the summary judgment application it is a matter which the Court is sometimes able to deal with justly on the basis that there is a judgment for liability only under r 12.3 High Court Rules or a judgment for liability and a particular portion of the amount claimed to be owing pursuant to r 12.2(1) High Court Rules.
The amount of the claim – the reconciliation issue
[30] Ms Conway’s claim rests on the accuracy of her spread sheet. Her evidence is that the spread sheet reconciles payments made by the defendant with his commitment to pay $3,500.00 per month (resulting in the debt calculations of
$374,932.27 (principal) and $163,340.46 (interest)).
[31] Mr Burdon disputed the reliability of the spread sheet calculations. He referred in particular to the 2005 year during which the parties’ respective solicitors exchanged a number of letters on the subject of the clause 4 obligation. Mr Burdon deposed that upon Ms Conway’s shift to Christchurch he had kept up monthly payments of $1,700.00 (a matter which Ms Conway’s spread sheet appears to confirm). Mr Burdon then explains:
From time to time some additional payments were made and there was considerable correspondence between the solicitors in respect of maintenance payments during 2005. I note that, on 22 December 2005, the plaintiff’s then solicitors wrote to my solicitors and took the position that the total maintenance arrears up to the end of December 2005 was $3,600. This compares with the table produced by the plaintiff in which she now purports to suggest that $72,904.42 was owing as at the end of December 2005.
[32] The reference to a spread sheet figure of $72,904.42 relates to Ms Conway’s first spread sheet, calculated by reference to an obligation to pay $4,000.00 per month. Ms Conway’s amended spread sheet, adopting the $3,500.00 figure, asserts that at 31 December 2005 Mr Burdon’s debt was $57,055.63. The spread sheet figures are the total of principal and interest, but the principal component on the basis in Ms Conway’s spread sheet figures appears to account for at least sixty per cent of her claim. Although Ms Conway filed reply evidence of some length and
detail, she did not address the inconsistency between her solicitor’s
22 December 2005 statement that arrears totalled $3,600.00 and her spread sheet figures suggesting a cumulative principal debt of approximately $52,000.00. Even at trial, Ms Conway would have needed to explain the apparent discrepancy. More so in a summary judgment context, when a reasonable inference is that Ms Conway’s solicitors would have been fully appraised in 2005 of all relevant details in relation to the then recent years of 2003, 2004 and 2005. Given the unequivocal statement of Ms Conway’s solicitors in December 2005 as to the arrears, the Court cannot safely conclude in this summary judgment jurisdiction that the spread sheet calculations for December 2005 are accurate. Ms Conway’s implicit assertion that arrears of approximately $52,000.00 were owing at December 2005 suggests a payment shortfall of more than $1,700.00 per month from July 2003. Yet her solicitor’s letter means that the total shortfall ($3600.00) equates, if correct, to a little over $100 per month.
[33] Mr Burdon’s case is that the reduced maintenance payments made to Ms Conway reflected discussions which occurred from time to time in relation to changes in circumstances. He deposes that some core maintenance payments were made directly (thereby requiring a rebate). The calculations provided by Ms Conway’s solicitors in December 2005 indicate at least arguably that either or both of those explanations were seen as valid and to be accounted for at that earlier date. If that is to be so for the earlier years (as I find it to be), there is a basis for Mr Burdon’s claim that it applies to the whole period of arrears claimed by Ms Conway. In a summary judgment context, the Court can be satisfied neither that there is an amount definitely owing nor (if there is) what that sum is.
The term of the obligation
Construction of the deed – does clause 4 create an obligation without end?
[34] Ms Conway’s case involves the proposition that clause 4 imposed upon Mr Burdon an obligation “without temporal limitation” except by agreement of the parties. In his submissions for Ms Conway, Mr Lester characterised clause 8 of the deed as “little more than an agreement to agree”.
[35] Without knowing more of the circumstances of the parties and their children, it would seem improbable that one partner was agreeing to pay to the other on account of “spousal maintenance and core child maintenance”, on a permanent basis, a sum of $3,500 per month (possibly rising to $4,000 per month depending on the tax position), with the payment to continue regardless of the need for such payment. A number of questions might be expected to arise such as whether the total payment continues to be appropriate if and when the partners’ children all become completely independent. The concept of “the parties’ circumstances” as the relevant criterion for review of the payment suggests that such questions were, objectively, in the parties’ minds in executing the deed.
[36] Ms Conway in her evidence in support of the application explained her position on the indefinite nature of the maintenance obligation in a single sentence:
16. The open-ended nature of the obligation for the defendant to pay me
$4000 balanced out the fact that the agreement was a full and final settlement which would prevent me from pursuing any entitlements I
might have otherwise had pursuant to the Property (Relationships)
Act 1976 and/or against the defendant’s trust.
[37] In opposition, Mr Burdon responded both to the allegation of an open-ended obligation and the concept that there was a “balancing out” against relationship property and trust entitlements. He referred to the fact that the clause for payments includes core child maintenance which “could not sensibly be required to be paid for a child who had reached adulthood”. He referred also to spousal maintenance obligations “logically having to end” once parties have entered into new relationships and/or had their marriage dissolved. Mr Burdon rejected the suggestion that the maintenance obligation was in some way intended as compensation for Ms Conway’s giving up relationship property entitlements. He exhibited a pre-nuptial agreement dated 1 March 1990 by which his interests in farming assets and in trusts were to be his separate property. He notes under the deed that the Wanaka property was to be transferred to Ms Conway and to become her separate property. He further notes that relationship property was dealt with distinctly in the deed and that the stipulation under clause 8 of a review of maintenance payments cuts across the suggestion that the maintenance payments were some de facto form of property compensation.
[38] In her reply evidence, Ms Conway deposes that the ongoing entitlements she was to receive under the deed were a large factor in her electing not to pursue any additional property entitlements she may have otherwise been entitled to. In explanation of her possible entitlements she then refers to her having spent some weekends living in the homestead on the property towards the end of the marriage and also deposes that Mr Burdon purchased a neighbouring farm during the marriage, neither of which assets were “explored” in the context of the negotiation of the deed.
[39] For Ms Conway, Mr Lester framed the ground of opposition relating to the correct approach to clause 4 as being based on either proper interpretation or an implied term.
[40] Mr Lester submitted that it is not possible to interpret clause 4 as limited in time. He observed that there are no words present that can be interpreted as limiting the otherwise open-ended obligation.
[41] Mr Bayley submitted that the plaintiff’s “open ended” construction of clause
4 involves an untenable interpretation, implausible in the absence of the clearest of words. He submitted that even if the language of the deed could be read in the sense of a permanent obligation, then in terms of the dictum of Lord Hoffman in Investors Compensation Scheme Ltd v West Bromich Building Society:10
… the law does not require judges to attribute to the parties an intention which they plainly could not have had.
[42] I find also on point the observation of Tipping J in the Supreme Court’s
judgments in Vector Gas Ltd v Bay of Plenty Energy Ltd.11 His Honour said:
[21] … the common law does not require the court through the objective method, to ascribe to parties an intention that a properly informed and reasonable person would not ascribe to them when aware of all the circumstances in which the contract was made.
[22] Nor does the objective approach require there to be an embargo on going outside the terms of the written instrument when the words in
10 Investors Compensation Scheme Ltd v West Bromich Building Society (1998) 1 WLR 896 (HL)
at 913 per Lord Hoffman.
11 Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] NZSC 5, [2010] 2 NZLR 444.
issue appear to have a plain and unambiguous meaning. This is because a meaning that may appear to the court to be plain and unambiguous, devoid of external context, may not ultimately, in context, be what a reasonable person aware of all the relevant circumstances would consider the parties intended their words to mean.
(Footnotes omitted).
[43] Ms Conway in her own evidence has referred to the background or matrix, with her explanation of why a permanent undertaking as to maintenance might make sense. Her evidence in this regard highlights the need for the full background to be before the Court before a reliable assessment could be made as to the correct construction of this deed in relation to the duration of the obligation.
[44] It is unnecessary to consider further Mr Bayley’s linked submission as to the appropriateness of implying a term to give efficacy to the bargain between the parties. As the route to a successful defence is arguably open as a matter of construction, I refrain from further consideration of any implied term.
[45] Closely aligned to my conclusion in relation to construction is my conclusion in relation to clause 8 of the deed. Whereas Mr Lester characterised clause 8 as being close to an agreement to agree, it is at least open to a construction that it was a mandatory requirement for review (that is to say, when circumstances changed from time to time).
[46] In these circumstances it is not possible for the Court to determine in a summary context what amendment, if any, was required from time to time as the parties’ circumstances changed. What may have been a significant change occurred in late-2004 with Ms Conway’s move from Wanaka to Christchurch. In his evidence, Mr Burdon traverses a number of other changes in Ms Conway’s domestic arrangements which may also have had significance in relation to her circumstances. With the children now aged 23, 19 and 17 years respectively, it is inevitable that relevant changes have occurred in regard to their support also.
[47] Mr Burdon has offered explanations for differences in payments he made along the way. Several of them are at least arguably based legitimately on changes
in circumstances. He appears to accept in his evidence that some cessation of payment, particularly from December 2013, was not appropriate, and he says he regrets having ceased the payments, a matter he subsequently addressed by something in the nature of a catch-up payment. He refers to at least some discussions between the parties as to payments he was making, apparently suggesting that those discussions constituted the “review” required by clause 8. He deposes that “the plaintiff accepted payments of the reviewed amounts”.
[48] Ms Conway rejects the suggestion of mutual review. She deposes that Mr Burdon’s changes in payment were unilateral. She explains a number of matters which affected her ability to pursue relief against Ms Conway, including severe health issues from 2001, financial, emotional and physical problems by 2005, and the damage caused to her home in the Christchurch earthquakes.
[49] The Court can appreciate there have been complications for Ms Conway in pursuing a finalisation of what may still be owed by Mr Burdon. But the uncertainties which surround both the correct construction of the contract, what would be properly payable if the review of payments required by clause 8 took place, and (even assuming the clause 4 payment of $3,500 remained unaltered) what the net liability remains after the rebating required by clause 5.
Construction of the deed – is a clause 8 review prospective only?
[50] For Mr Burdon, Mr Bayley submits that the review required under clause 8 of the deed (from time to time having regard to the parties’ circumstances) is not restricted to one with forward application only. He submits that nothing in clause 8 of the deed as a whole precludes a review with retrospective effect. The latter approach would enable the parties to deal, through the review mechanism, with the consequences of such eventualities as a delay in the review process or a party becoming aware of the other’s improved circumstances well after the improvement has occurred.
[51] Mr Lester submitted that Mr Bayley’s approach amounts to implying a term. Mr Lester submitted that the traditional approach to construing rights such as a review is that they are treated as enabling only prospective review, which does not
cut across accrued rights. Mr Lester did not cite the authority for his submissions. I find them, in the context of this deed, somewhat circular. If cls 4, 5, 6, 7 and 8 are read and construed together, as they must be, it is at least arguable on an objective view of the parties’ intentions, that Ms Conway did not obtain accrued entitlements (meaning the right to immediate payment of a legally enforceable debt) until any review required by clause 8, because of materially changed circumstances, had been undertaken. A long delay by either party in invoking or co-operating in the review process might have consequences through the application of other principles, such as estoppel, but clause 8 itself at least arguably permits outcomes which retroactively affect the maintenance payments otherwise agreed to.
[52] Mr Burdon’s evidence in relation to the 2005 year illustrates a factual situation which works in favour of a broader view of the clause 8 review process than that accepted by Mr Lester. On 22 April 2005, Ms Conway’s solicitors identified $7,200 of clause 4 payments as being in arrears. On 30 August 2005 (following what were apparently further correspondence exchanges), Mr Burdon’s solicitors observed that there had very clearly been a change of circumstances (in Ms Conway’s place of residence and her domestic situation). Details of her personal circumstances were requested with a view to the parties’ agreeing on a new amount or, failing agreement, a mechanism for fixing a new amount. On 7 September 2005, Ms Conway’s solicitors replied but without providing financial details. Instead, they sought commitment to a continuation of the $3,500 figure plus payment of all school fees, uniform costs and education expenses. Through this period, Mr Burdon’s solicitors stated that Mr Burdon would be paying the $3,500 but without prejudice to a claw back upon review (although it appears that he in fact failed to pay $3,500 per month). Further correspondence ensued. On 20 December 2005, Mr Burdon’s solicitors noted the absence of any details of the financial circumstances of Ms Conway and the children. Ms Conway’s solicitors’ reply did not engage in the request for information but noted (with a correction the following day) that arrears now stood at $7,200.
[53] The Court was not provided with any correspondence from the following year (2006), although Mr Burdon’s evidence is that he lifted his payments to $2,000 in April 2006 and decreased them to $1,000 in March 2007 (both assertions
according with Ms Conway’s spreadsheet details). Mr Burdon deposed that his solicitor cannot locate correspondence after 2005. He is unsure whether that is because of the impact of Christchurch earthquakes on records or because there was no further correspondence.
[54] It is sufficient to observe that Mr Burdon sought to invoke the clause 8 review process without success in 2005. He deposes that as he later made changes to his payments, Ms Conway did not contemporaneously advise him that the reviewed amounts were not agreed. Mr Lester submitted that a construction of the deed’s maintenance regime which allowed a review to occur years after an event of changed circumstances is objectively unreasonable and could not have been contemplated by the parties. As unsatisfactory as such a regime may initially appear, I am not satisfied (having regard to the example which 2005 presents of an unsuccessful attempt to engage the review process) that Ms Conway has established, beyond argument, a present entitlement to payment of a particular sum of money without Mr Burdon’s having the ability first to challenge either the existence of continuing debt, the amount of it, or both.
Outcome
[55] This is not a suitable case for summary judgment.
Orders
[56] I order:
(a) The plaintiff’s application for summary judgment is dismissed. (b) The costs of the application are reserved.
(c) The plaintiff is to file and serve an amended statement of claim within
10 working days.
(d)The defendant is to file and serve her defence within 10 working days thereafter.
(e) The parties are to complete initial disclosure (or additional initial disclosure) at the time their pleadings are served.
(f) The proceeding is adjourned to a case management conference at 11 am, 21 April 2015 by telephone (Associate Judge Osborne) with counsel to file five working days before memoranda dealing with Schedule 5 matters.
Observation
[57] The parties agreed through clause 18 of the deed that future disputes relating to maintenance would be the subject of good faith resolution endeavours and, failing that, mediation. This requirement was the subject of some submissions at the hearing although I have found it unnecessary to consider it further in relation to summary judgment issues. However, now that the Court has dismissed the summary judgment application upon the basis that the claim is disputable, the mutual obligations of parties under clause 18 clearly come into play.
[58] By reason of some of the differences that exist between the parties in relation to the deed, including whether it is too late for a review to occur, the parties now face the very real prospect that even a trial of Ms Conway’s claims may not provide a final resolution. The agreed process of mediation is likely to afford the parties significant prospects of resolving all issues at once. The Court commends to the parties the process of mediation. If the parties agree upon that course they may prefer to defer taking the directed steps in relation to this proceeding in which event counsel have leave to file a memorandum setting out any agreement as to the terms
of a stay while mediation occurs.
Solicitors:
Geddes & Maciaszek
Counsel: D M Lester, Barrister, Christchurch
Rhodes & Co, Christchurch
Associate Judge Osborne
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