Guthrie v Brown - [2022] NZHC 748

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2021-412-61

[2022] NZHC 748

UNDER the Senior Courts Act 2016 and Property Law Act 2007

BETWEEN

JENNIFER ANNE GUTHRIE and CHRISTOPHER WILLIAM RUSHTON,

as executors and trustees of the ESTATE OF BEVERLEY ANN RUSHTON

Plaintiffs

AND

JONATHAN ANDREW BROWN

Defendant

Hearing: Determined on the papers

Counsel:

R M Reeve for Plaintiffs G A Paine for Defendant

Judgment:

12 April 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Costs)

GUTHRIE v BROWN [2022] NZHC 748 [12 April 2022]

[1] The plaintiffs in this proceeding sought orders giving effect to a settlement reached at a Judicial Settlement Conference (JSC) held in the Family Court, which agreement was recorded in orders of the Family Court.

[2] The defendant in this proceeding, Mr Brown who lives in America, was represented at the JSC by counsel and was in contact with counsel by telephone during the JSC. The agreement reached was recorded in a handwritten note (the Agreement) signed by all parties and by Mr Brown’s counsel.

[3] The terms of settlement were then recorded in a deed of family arrangement (the Deed), again, signed by all parties save for Mr Brown, but his counsel orally confirmed Mr Brown’s consent to the Deed. The Deed, along with a draft consent order, were emailed to the Family Court with Mr Brown’s counsel copied in. The covering email recorded that Mr Brown’s counsel had the oral agreement of his client to the Deed. The Family Court sealed the consent order in October 2020, that being the order subject to this proceeding.

[4] Under the order, Mr Brown was obliged to sign a listing agreement to allow a property owned by the executors and trustees of Estate of Beverley Ann Rushton (the Estate) and Mr Brown, to be sold. The listing agreement was sent to Mr Brown’s counsel in late November 2020 and, while counsel orally advised that Mr Brown would sign the listing agreement, he never did so.

[5] Accordingly, this proceeding sought, pursuant to s 121 of the District Court Act 2016, an order authorising the Registrar of the High Court to sign, on behalf of Mr Brown, all necessary documents required to sell the property. Mr Brown, through counsel, filed a statement of defence.

[6] In Mr Brown’s statement of defence, he admitted being represented by counsel at the JSC and having telephone discussions with his counsel during the JSC but, in substance, denied being bound by the Agreement reached at the JSC. A theme of Mr Brown’s pleading was that he had “[i]nsufficient knowledge and therefore denies” the allegation that his counsel agreed to the settlement on his behalf, signed the terms

of the settlement Agreement on his behalf, or orally agreed to the terms of the Deed on his behalf.

[7] The plaintiffs sought leave to apply for summary judgment of their application, that being necessary as they had not…

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 Guthrie v Brown

Details

AGLC: Guthrie v Brown [2022] NZHC 748
Case: [2022] NZHC 748
Decision Date: 12 April 2022

CaseChat Overview and Summary

In Guthrie v Brown, the plaintiffs sought orders to enforce a settlement agreement reached at a Judicial Settlement Conference (JSC) held in the Family Court. The defendant, Mr Brown, who resides in the United States, was represented by counsel at the JSC and was in contact with his counsel by telephone. The agreement reached at the JSC was recorded in a handwritten note (the Agreement) signed by all parties and Mr Brown's counsel. The terms of the settlement were subsequently recorded in a deed of family arrangement (the Deed), which was signed by all parties except for Mr Brown, although his counsel orally confirmed his consent to the Deed. The Family Court sealed the consent order in October 2020.

The court was required to decide whether Mr Brown was bound by the Family Court order and whether the plaintiffs were entitled to summary judgment. The court found that Mr Brown was represented by counsel at the JSC and had telephone discussions with his counsel during the JSC, but he denied being bound by the Agreement reached at the JSC. The court found that the challenge to the Agreement could only be on the basis that it was signed without Mr Brown's authority. The court also found that if Mr Brown was to maintain his position, he would be waiving solicitor-client privilege in relation to his discussions with counsel. Mr Brown declined to waive privilege and did not apply to set aside the Family Court order. The court found that the plaintiffs were entitled to summary judgment and ordered that the property be sold.

The court ordered that costs should follow the event in favour of the plaintiffs. The court rejected the defendant's submission that the proceeding should be treated as a Category 1 proceeding, finding it to be a Category 2B matter. The court awarded an uplift of 25 per cent to the costs on a 2B basis, finding that it was not tenable for Mr Brown to deny the effect of the Family Court order without taking steps to set aside the Family Court order or following through on the waiver of privilege inherent in his position. The court directed that the costs can be deducted from any distribution to Mr Brown.

Orders