McNaughton v McNaughton

[2024] NZHC 709

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2023-454-73

[2024] NZHC 709

BETWEEN

RICHARD MCNAUGHTON

Plaintiff

AND

JANET MCNAUGHTON

First Defendant

JAMES MCNAUGHTON

Second Defendant

Hearing:

5 February 2024

Appearances:

Plaintiff In Person

G Mason for Defendants

Judgment:

9 April 2024

JUDGMENT OF ASSOCIATE JUDGE SKELTON

[Defendants’ summary judgment; summary judgment on defendants’ counterclaim]

TABLE OF CONTENTS

Background  [2]

Legal Principles  [12]

Leave to apply for summary judgment  [12]

Summary judgment  [18]

Strike out  [23]

Issues to be determined  [26]

Leave to apply for summary judgment  [27]

MCNAUGHTON v MCNAUGHTON [2024] NZHC 709 [9 April 2024]

Did the settlement agreement become unconditional and is it supported by

consideration?  [32]

Mistake — fifth cause of action  [44]

Misrepresentation — seventh cause of action  [56] Section 9 of the Fair Trading Act 1986, misleading and deceptive conduct —

eighth cause of action  [66]

Breach of settlement agreement — tenth cause of action  [70]

Claims carried over from the “26” proceeding — first, second, third and fourth causes of action  [80]

General damages — ninth cause of action  [98] Summary as to defendants’ application for summary judgment and strike out [100] Defendants’ counterclaim — specific performance  [103]

Result  [108]

[1]Before me are applications by the first and second defendants for orders:

(a)striking out all causes of action in the plaintiff’s statement of claim dated 6 September 2023 and the amended statement of claim  dated  24 October 2023;

(b)striking out particular paragraphs of the statement of claim and amended statement of claim;

(c)for summary judgment for the defendants on the plaintiff’s statement of claim;

(d)for summary judgment for the defendants on their counterclaim;

(e)for leave to apply for summary judgment.

Background

[2]        The plaintiff previously issued proceedings against his parents, the first and second defendants in CIV-2022-454-26 (the “26” proceeding).

[3]        The “26” proceeding related to a residential property in the Wairarapa which the first and second defendants had purchased from the plaintiff, and subsequently sold. In the proceedings, the plaintiff alleged that his parents held the property on trust, and he and his ex-wife were beneficiaries of the trust. He asserted that as trustees his parents had failed to provide information and were in breach of fiduciary duty. Further, they were estopped from departing from what was alleged to have been said in an email the first defendant wrote on 29 December 2020 about the basis of the purchase of the property.

[4]        The plaintiff applied unsuccessfully for summary judgment in the “26” proceeding.1

[5]        A judicial settlement conference was held on 18 August 2023. Following the judicial settlement conference, the parties recorded a conditional settlement agreement in a brief handwritten agreement. Further terms were recorded in a minute dictated at the conclusion of the conference by Associate Judge Lester dated 18 August 2023 (Minute No 1).2

[6]The settlement agreement recorded:

18/8/2023

We Jim and Janet McNaughton agree that an independent accountant be appointed to deal with tax* arising from the profit…