Monk v Monk

[2012] NZHC 470

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2010-409-000087 [2012] NZHC 470

BETWEEN  ARYAL JONATHAN MONK SARAH JANE MONK Plaintiffs

ANDSHERYL JANETTE MONK First Defendant

ANDJOHN BERNARD MONK Second Defendant

ANDJOHN BERNARD MONK SHERYL JANETTE MONK

IN THEIR CAPACITY AS TRUSTEES OF THE MONK FAMILY TRUST

Third Defendants

Hearing:         19 March 2012

Appearances: G M Brodie for Plaintiffs

First Defendant in person
No appearance for Second Defendant

Judgment:      20 March 2012

RESERVED JUDGMENT OF HON JUSTICE FRENCH

Introduction

[1]      The  plaintiffs  seek  to  enforce  what  they  say  is  a  binding  settlement agreement.

[2]      The first defendant, Mrs Sheryl Monk, was a signatory to the agreement.  For various reasons, however, she refuses to carry out its terms.

MONK V MONK HC CHCH CIV-2010-409-000087 [20 March 2012]

Factual background

[3]      The plaintiffs are Mrs Monk’s son and daughter-in-law.

[4]      They  issued  proceedings  in  January  2010  against  Mrs  Monk  and  her estranged husband, Mr John Monk. The parents were sued in their personal capacity, as well as in their capacity as trustees of the Monk Family Trust.

[5]      The gravamen of the plaintiffs’ complaint was that the plaintiffs assisted the defendants in the acquisition and development of a substantial dairy farm.   The plaintiffs claimed a common understanding that they would benefit from the profits on the basis that it was conducted as a joint venture.   They further alleged that following the breakdown of the marriage between the first and second defendants, they were effectively shut out from the development.  The plaintiffs sought an award of the share of the profits.

[6]      The  statement  of  claim  pleaded  three  causes  of  action:  joint  venture, constructive trust and proprietary estoppel.

[7]      The  father,  Mr  John  Monk,  was  supportive  of  the  claim.    However  the mother, Mrs Sheryl Monk, asserted that the arrangements involved nothing more than an agreement to pay a salary and/or remuneration by way of participation in a sharemilking agreement.

[8]      The proceeding progressed to the point where a five-day fixture was allocated and briefs of evidence exchanged.

[9]      The hearing was set down for 19 March 2012.

[10]     Following an initiative by the defendants, the parties agreed to participate in a formal mediation held at Christchurch on 9 and 10 February 2012.   The mediator was a local barrister.

[11]     All parties, including Mrs Sheryl Monk, were represented by lawyers.  Mrs

Monk was also supported by her daughter and a family friend.

[12]   The mediation took two days, although part of that time was spent on unsuccessful attempts to negotiate a resolution of the relationship property dispute between the first and second defendants.

[13]     An agreement was, however, reached between the parties to this proceeding and recorded in a written document signed on 10 February 2012.

[14]     The settlement agreement reads as follows:

An agreement made this 10th day of February 2012

This agreement is entered into in settlement of High Court proceedings CIV

– 2010-409-00087.

The parties agree:

1.To settle the proceedings by payment to the Plaintiffs of the sum of $550,000.00.

2.When  paid,  the  sum  will  be  accepted  in  full  and  final satisfaction  of  their  claim  and  of  the  claim by Westpark Farming Limited against the Monk Family Trust.

3.        Payment shall be made as follows:

a.    Sheryl Monk shall contribute the sum of $200,000.00.

b.    She shall pay either personally or from the capital of the

Monk Family Trust which is subject to her control.

c.    John Monk shall contribute the sum of $350,000.00.

d.    He shall pay either personally or from the capital of the

Monk Family trust which is subject to his control.

e.    If and to the extent that the payments are made from trust  funds  the  payment  shall  be  accounted  for  as a capital distribution.

4.        John Monk reserves the right to require the Plaintiffs to apply up to

$100,000.00 towards and in partial satisfaction of debts presently owing to him by the Plaintiffs.

5.The Defendants shall direct Wynn Williams, solicitors, to distribute the balance of the escrow account held by them to Sheryl Monk or as directed by her.

6.The defendants shall direct Helmore Ayres, solicitors, to distribute the balance of the escrow account held by them to John Monk or as directed by him.

7.Presentation of this agreement to Wynn Williams and Helmore Ayres shall be sufficient instruction to those firms to make the above distributions.

8.Payment of the settlement sum shall be made to MacIntosh Bradley and Price in cleared funds by 4pm Friday 17 February 2012.   If payment is not made by this time the Plaintiffs may then elect to either continue with the proceedings or sue to recover the settlement sum.

9.Upon   payment   of   the   settlement   sum,   the   Plaintiffs   shall immediately file a notice of discontinuance in the court with a noting that there is no issue as to costs.

10.      All parties shall bear their own costs.

11.       The liability of Sheryl and John Monk and the trust capital under their respective control is a several liability and settlement against one is not dependent upon settlement against the other.

12.The  settlement  sum is  paid  on  capital  account  and  is  not  to  be regarded as revenue.

13.It is acknowledged that Sheryl has expressed the view that she does not wish to have a relationship with the Plaintiffs.

[15]     Under the agreement, settlement was due to occur on Friday 17 February

2012.  However, on that date Mrs Sheryl Monk advised the plaintiffs’ solicitors that

she refused to settle and would not be paying her contribution of $200,000.

[16]     The plaintiffs have decided to enforce the settlement agreement rather than pursue  the  original  causes  of  action,  an  election  specifically  reserved  to  them pursuant to the settlement agreement.  One of the reasons they have chosen to take that course of action is because the father, Mr John Monk, is willing to honour his part of the settlement.

[17]     Having elected to sue Mrs Monk on the settlement agreement, the plaintiffs then sought and obtained leave to amend their statement of claim by adding a fourth cause of action based on the settlement agreement.

[18]     In the meantime, Mrs Monk had dismissed her lawyer.

[19]     Her lawyer was granted leave to withdraw on 24 February 2012.

[20]     At the hearing before me on 19 March 2012, Mrs Monk advised that she could not afford to engage another lawyer, but was not eligible for legal aid.  She therefore had no choice but to represent herself.

[21]     I discussed with Mrs Monk whether or not she wanted an adjournment.  She herself was uncertain on that point, and after some discussion said to me that she wanted to proceed.  In any event, even if she had applied for an adjournment I would have refused it.  The fixture date has been known since 12 October 2011; Mrs Monk was aware that on 24 February 2012 Chisholm J directed that the claim against her was to proceed on the fixture date; she has had sufficient time to engage another lawyer.  In my view, in all the circumstances it was in the interests of justice for the matter to proceed, and I so directed.

[22]     Evidence was then given by Mr Aryal Monk on behalf of himself and his wife regarding the agreement.  Mrs Sheryl Monk cross-examined Mr Monk and then gave evidence herself.

[23]     Mrs Monk gave the following reasons as to why the agreement should not be enforced against her:

(i)She felt “traumatised” at the mediation, not having seen her son and daughter-in-law for several years, and because of past wrongs.

(ii)The agreement was supposed to be confidential and there had been a breach of the confidentiality obligation under the settlement agreement.

(iii)Her lawyer gave her advice after the mediation which, if she had received before, would have meant she would never have signed the agreement.

(iv)She was pressured into signing the settlement agreement by her lawyer, who had only been recently instructed and who was not familiar with the background.

(v)She was pushed into it, felt pressured to sign and just wanted to get it over with.

(vi)Her son should not be advantaged over her other children.  It was never intended that he and his wife would share in the profits.

(vii)     Her son had cheated her.

Discussion

[24]     I have carefully considered each of the points raised by Mrs Monk.

[25]     However, I am satisfied that none of the matters she has raised are grounds for setting aside the agreement.

[26]     The evidence satisfies me that the mediation was conducted in a proper and professional manner.   Mrs Monk had the benefit of legal representation and two support people.  There were opportunities during the course of the mediation for her to speak privately with her solicitor.  Further, the agreement was only signed on the second day. There was, therefore, opportunity for overnight reflection.

[27]     If her solicitor did pressure her, and if that pressure was improper, then that is a matter between Mrs Monk and her solicitor.  It is not a ground which could vitiate the agreement as between her and the plaintiffs.

[28]     Similarly, the breach of confidentiality which she alleges relates not to any actions of the plaintiffs but to the alleged actions of the solicitor representing her husband.

[29]     As for any alleged wrongdoing on the part of the son, Mrs Monk confirmed that this was known to her before the mediation.

[30]     I gained the very clear impression that Mrs Monk now regrets signing the agreement.   She has had second thoughts and wants to be able to re-litigate the merits of the plaintiffs’ original claims.   However, those claims (which included a claim for $2m) have been compromised and as I have said, I am satisfied there was nothing in the circumstances by which the settlement was reached, or its terms, that could possibly justify the Court declining to enforce the agreement.

[31]     I am satisfied that the agreement is binding and legally enforceable against

Mrs Monk.

Outcome

[32]     Judgment is entered in favour of the plaintiffs against the second defendant, Mrs Sheryl Monk, in the sum of $200,000.

[33]     I also award the plaintiffs interest on the $200,000 from 17 February 2012 to date of judgment at the rate of 8.25 per cent per annum pursuant to the Judicature Act 1908.

[34]     I also order Mrs Monk to pay costs to the plaintiffs in the sum of $2000 together with disbursements as fixed by the Registrar.  The sum of $2000 is based on Mr Brodie’s advice that he proposes to charge the plaintiffs only $2000, which is less than scale costs.

Solicitors:

G M Brodie, Christchurch

Copy to First Defendant