Pickering v Straubel - [2012] NZHC 695

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2011-409-000463 [2012] NZHC 695

BETWEEN JANICE HELENA PICKERING Plaintiff

ANDPAUL COLIN MAX STRAUBEL First Defendant

ANDGEOFFREY JOHN HATTON SHARP Second Defendant

Hearing: 21 March 2012

Appearances: A J Nolan for Plaintiff
M R Cowan for First Defendant
H M Twomey and W Robertson for Second Defendant

Judgment: 5 April 2012

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[1] In 2005 the plaintiff, to whom I shall refer as Mrs Pickering, was engaged in litigation in the High Court with her daughter concerning, amongst other matters, the estate of her late mother, of which she, the first defendant (Mr Straubel) and one other person were the trustees. On 22 March 2005 Mrs Pickering and her daughter engaged in a mediation run by the second defendant (Mr Sharp) who is a barrister and professional mediator. Mr Straubel attended part of the mediation, though was not a party to it. Before the mediation commenced, a mediation agreement was signed by Mrs Pickering, her daughter, and Mr Sharp. At the end of the mediation Mrs Pickering and her daughter agreed to resolve certain issues and signed an agreement recording them. Thereafter, Mrs Pickering has sought to resile from the matters to which she then agreed.

[2] In this proceeding she claims that Mr Straubel owed to her a fiduciary duty as executor and trustee of the will, imposing upon him obligations to act in accordance

JANICE HELENA PICKERING V PAUL COLIN MAX STRAUBEL HC CHCH CIV-2011-409-000463 [5
April 2012]

with the trusts established under the will, to objectively assess and consult in respect of any claims against the estate, and not to act in conflict with his duties to the plaintiff. It is said that Mr Straubel breached his duties to Mrs Pickering in a number of ways, before and at the mediation. She claims losses in the form of legal fees for her subsequent involvement in litigation based on the agreement reached at the mediation, and damages for stress.

[3] In a second cause of action Mrs Pickering alleges negligence against Mr Straubel based on an alleged duty of care to her. She pleads identical obligations to those alleged in relation to Mr Straubel’s alleged fiduciary duty, and breaches in terms identical to those alleged as breaches of his fiduciary duty. The same losses are claimed.

[4] The cause of action against Mr Sharp is based on alleged breach of the mediation agreement in nine respects. The same damages are claimed.

[5] Each of the defendants has applied to strike out the causes of action against him. These were argued on 21 March in chambers. The second defendant has also applied for summary judgment against the plaintiff. This application was argued in court.

Limitation Act issue

[6] This proceeding was filed on 23 March 2011. It is common ground between the plaintiff and each of the defendants that the cause of action relied on in this proceeding arose on 22 March 2005. In March 2011 Mrs…

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: [2012] NZHC 695
Decision Date: 5 April 2012

CaseChat Overview and Summary

In Pickering v Straubel, the plaintiff, Mrs Pickering, sought damages from two defendants, Mr Straubel and Mr Sharp, for various breaches of fiduciary and contractual duties. Mrs Pickering, as a co-trustee of her late mother's estate, alleged that Mr Straubel, another co-trustee and the estate's solicitor, had breached his fiduciary duty by failing to consult with her before a mediation, advocating for a settlement that disadvantaged her, and chairing the mediation without her knowledge. Mrs Pickering also alleged that Mr Sharp, the mediator, breached the mediation agreement in nine ways. The defendants argued that Mrs Pickering's claims were barred by the Limitation Act 1950 and should be struck out for various reasons, including lack of a reasonably arguable cause of action and being time-barred. The court found that Mrs Pickering's claims against both defendants were either struck out or dismissed for being time-barred, and summary judgment was entered in favour of Mr Sharp. The court ruled that the Canterbury Earthquake Recovery Act 2011 did not permit extending the limitation periods under the Limitation Act 1950, and the first defendant was not under a fiduciary duty to Mrs Pickering. Additionally, the court found that Mrs Pickering's decision to enter into the mediation agreement was voluntary and under independent advice, and thus her losses were not caused by any conduct of the defendants.

Orders