EBS v CAS - [2013] NZHC 752

PURSUANT TO SECTION 169 OF THE FAMILY PROCEEDINGS ACT 1980, ANY REPORT OF THESE PROCEEDINGS MUST COMPLY WITH SECTIONS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-2595 [2013] NZHC 752

IN THE MATTER OF an appeal under section 72 of the District
Courts Act 1947

BETWEEN EBS Appellant

ANDCAS Respondent

UNDER the Property (Relationships) Act 1976

BETWEEN EBS Applicant

ANDCAS Respondent

UNDER the Family Proceedings Act 1980

BETWEEN EBS Applicant

AND CAS
First Respondent
MICAL SHANE JERVIS TREADWELL, JAMES PETER WOODS, CAS AND EBS AS TRUSTEES OF THE CA & EBS FAMILY TRUST
Second Respondents
BRYAN GEORGE POCOCK, TREADWELLS TRUSTEES NO 2
LIMITED AND CAS AS TRUSTEES OF THE CAS FAMILY TRUST
Third Respondents

EBS v CAS HC WN CIV-2011-485-2595 [15 April 2013]

MICAL SHANE JERVIS TREADWELL, BRYAN GEORGE POCOCK AND CAS AS TRUSTEES OF THE CAS COMMERCIAL TRUST
Fourth Respondents

Hearing: 11 April 2013

Counsel: J J Delany for EBS
H B Rennie QC and A R Davie for CAS Judgment: 15 April 2013
REASONS FOR DECISION OF DOBSON J (Interlocutory application as to admissibility of documents prepared for mediation)

[1] The issue in these proceedings is now the interpretation of a heads of agreement (the HoA) completed at the end of a mediation that related broadly to relationship property issues. In preparation for the argument, the respondent (CAS) sought a ruling as to the admissibility of a memorandum prepared by counsel then acting for the applicant (EBS), for the purposes of the mediation when that was pending. EBS opposed the document and its annexures being admitted.

[2] I respected Mr Delany’s request not to consider the documents that CAS seeks to have admitted, which have been annexed to an affidavit sworn by Mr Bryan Pocock on 27 March 2013. During the argument, it was treated as safe for me to assume that the memorandum constituted a form of “wish list” as to what EBS hoped to achieve from the mediation. In his reply, Mr Rennie clarified that it could more accurately be described as “an agenda” from her perspective, of what she sought to traverse during the mediation.

[3] On the day of the interlocutory hearing I issued a minute indicating that the documents were admissible at the forthcoming substantive hearing. I now provide my reasons for that ruling.

[4] The issues in these proceedings have evolved over time. Initially, EBS sought orders striking down the HoA, or having it declared unenforceable on grounds that included inadequate disclosure by CAS, and on grounds that it was entered into under duress.

[5] More recently, the stance of EBS has changed to the extent that she accepts the binding effect of the majority of the provisions in the HoA, except for a provision that would commit the parties to referring any disagreement between them as to the terms of the HoA back to the mediator who would rule upon the disagreement as an…

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.

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Details

Case: [2013] NZHC 752
Decision Date: 15 April 2013

CaseChat Overview and Summary

In the High Court of New Zealand, EBS appealed against the Wellington District Court's decision on the admissibility of a memorandum prepared by counsel for EBS during mediation, arguing against the document's admission in the substantive proceedings. CAS sought to have the memorandum admitted to clarify the context and content of the mediation and to aid in interpreting the heads of agreement (HoA) resulting from the mediation. The substantive issue was whether the HoA encompassed a settlement of claims that EBS might have had under various statutory provisions or left open the prospect of such claims being pursued.

The court considered the statutory privilege for settlement negotiations and mediation under the Evidence Act 2006, which extends to communications made in connection with an attempt to mediate or settle a dispute. The court also considered the contractual constraints on subsequent use of documents as provided in the agreement to mediate, which emphasised privilege and confidentiality. EBS argued that the statutory privilege and the contractual constraints precluded the admissibility of the memorandum. CAS, on the other hand, argued that the continued recognition of privilege was not warranted once a settlement agreement had been concluded, and the subsequent dispute focused on the interpretation of the settlement agreement.

The court found that the statutory privilege did not apply to prevent the admission of the memorandum because the dispute was not about the existence of the settlement agreement but its scope. The court also held that the contractual constraints did not apply in the circumstances, as they could not be read literally and would be contrary to the interests of justice if they continued to apply after the mediation had concluded successfully. The court concluded that the memorandum could be admitted to aid in interpreting the HoA, as it was necessary to ensure substantive justice.

The court reserved costs on this interlocutory application and would deal with them as part of the costs on the substantive argument.

Orders