Rangi v Popata HC Auckland CIV 2007-404-007458

[2008] NZHC 2375

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2007-404-007458

IN THE MATTER OF     the Estate of CHARLES TUTAKI POPATA

BETWEEN  ANNE RANGI Plaintiff

ANDKIMETHA LEE POPATA Defendant

Hearing:         10 June 2008

Appearances: J G Robertson for Plaintiff

Defendant in person

Judgment:      18 June 2008 at 4 pm

JUDGMENT OF ASSOCIATE JUDGE ROBINSON

This judgment was delivered by me on 18 June 2008 at 4pm pursuant to Rule 540(4) of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors:

Jamieson Castles, PO Box 1926, Auckland

Copy to:

K L Popata, … [address]

ANNE RANGI V KIMETHA LEE POPATA HC AK CIV 2007-404-007458 18 June 2008

[1]      The plaintiff applies for an order by way of summary judgment to enforce a deed executed by the plaintiff and the defendant settling proceedings that the defendant had issued against the plaintiff.

[2]      The plaintiff also seeks leave to bring the application for summary judgment as  the  application  for  summary  judgment  was  not  made  at  the  time  when  the statement of claim was served on the defendant.  The applications are opposed by the defendant.

Background

[3]      The plaintiff, Anne Rangi, claims to have been the de facto wife of the late Charles Tutaki Popata, who was the grandfather of the defendant, Kimetha Lee Popata.  Kimetha Lee Popata’s father was the late Robert Popata, who claims to have been the only child of the late Charles Tutaki Popata.

[4]      Following the death of Charles Tutaki Popata on 30 December 2001, the late Robert Popata and Anne Rangi entered into an agreement on 20 January 2004 which recorded:

(i)        The late Robert Popata was the administrator of the estate of Charles

Tutaki Popata;

(ii)       Anne Rangi was the de facto wife of Charles Tutaki Popata;

(iii)Robert  Popata,  as  the  only  child  of  Charles  Tutaki  Popata,  was entitled  in  terms  of  the  Administration  Act  1969  to  the  entire European estate of Charles Tutaki Popata;

(iv)That  Robert  Popata  and  Anne  Rangi  had  agreed  to  settle  Anne Rangi’s claims to the estate of Charles Tutaki Popata on the basis that she  would  receive  Charles  Tutaki  Popata’s  property  at  14  Jolson Road,  Mt  Wellington,  and  pay  $5000  to  Robert  Popata.     This

settlement was to be in full and final settlement of all claims by Anne

Rangi to the estate of Charles Tutaki Popata.

[5]      That settlement has never been completed.  In October 2006, the late Robert Popata issued proceedings in this Court under CIV 2006-404-006406 for orders cancelling the agreement of 20 January 2004, claiming to have been induced to execute the agreement believing it to be fundamentally different in substance and/or kind to that which it really was, and is such the element of consent was lacking. In a further ground for relief based on the Contractual Mistakes Act 1977, he claimed to have been induced by a mistake to enter into the agreement.

[6]      In  her  defence  to  the  late  Robert  Popata’s  proceedings  to  cancel  the agreement, Anne Rangi claimed to have been in a de facto relationship with the late Charles Tutaki Popata from 1990 until his death, that the late Charles Tutaki Popata had by adoption order made on 24 March 1995, adopted her child, Charles Tutaki Rangi,  born  3  June  1993,  and  that  they  had  lived  together  at  various  places throughout Auckland and Waiheke.

[7]      Anne  Rangi  claims  that  during  his  lifetime  Charles  Tutaki  Popata  had promised her his property at 14 Jolsen Road, Mt Wellington on his death because she had been his partner, was the mother of his child, and had taken care of him.

[8]      On  15  February  2007,  Robert  Popata  died.    Kimetha  Lee  Popata  was appointed executrix of his estate and took over the proceedings pending in this Court for orders cancelling the agreement with Anne Rangi.

[9]      On  22  May  2007,  the  proceedings  were  listed  for  a  judicial  settlement conference for one day on 21 August 2007.  At the same time, a date was fixed for the hearing of these proceedings in this Court for two days during the week commencing 4 February 2008 and the proceedings were set down on 1 November

2007.

[10]     Anne Rangi and Kimetha Lee Popata together with their respective solicitors attended the settlement conference on 21 August 2007. At that conference they came

to an agreement whereby the property at 14 Jolson Road, Mt Wellington was to be sold and after deducting costs of sale and related expenses the proceeds were to be divided equally between them. The agreement included provision as to the marketing and sale of the property, and as to application of income from the property pending sale. The agreement further recorded that as from 22 August 2007 the property was to vest in the parties as tenants in common in equal shares. The agreement was recorded in a formal hand-written deed  which was executed by the parties  and witnessed by their solicitors. The agreement contained provision that the settlement was to be in full and final settlement of all issues between the parties relating to the proceedings and any claims one may have against the other.

[11]     In a minute recording the settlement Abbott AJ stated:

I am pleased to  record that the  parties  reached  agreement  on  terms  for settlement of this proceedings at the judicial settlement conference before me today. They have signed a settlement agreement (a copy of which has been left on file). The settlement requires sale of the property which is the subject of the dispute. The written agreement sets out an agreed process for sale and for division of sale proceeds.

I  congratulate  the  parties  on  reaching  this  agreement,  and  on  the  very realistic approach that they adopted throughout the day. As with all settlements it involves significant compromise by both parties from their initial positions. Nevertheless, in my view it represents a very reasonable outcome having regard to the risks to both sides in the litigation and the potential cost and stress of proceeding to trial. This settlement allows them to move on with more positive aspects of their lives.

I also thank counsel for their clear and careful guidance to their clients through the Consequently today. It was a significant contributing factor to the settlement that was reached.

[12]     On 3 October 2007, Kimetha Lee Popata, in an email to the solicitors for Anne Rangi, advised that she wished to put the house up for auction as soon as possible.  She considered auctioning would be more beneficial for both parties as it would be less time consuming and costly.  She advised that she did not want “this to drag on any longer” and stated “by the time this matter is all over we will basically be left with nothing once the real estates and yourselves take your cut”.

[13]     On 18 October 2007, Kimetha Lee Popata, by email to the solicitor for Anne Rangi, gave notice that she was revoking all deeds and settlements relating to the estate of Robert Wayne Popata.  She gave as her reasons the following:

1.It has been bought to my attention as executor and trustee of the estate of Robert Wayne Popata that the settlement has been procured by fraud, deception and misrepresentation on the part of your client.

2.Furthermore, the beneficiaries of the deceased Robert Wayne Popata have instructed me that I am acting outside the provision of the will, and will take legal action against me if I continue on the course to settlement with your client.

[14]     As Kimetha Lee Popata has refused to co-operate with regard to the sale of the property at Jolsen Road and division of the proceeds in accordance with the deed of settlement, Anne Rangi brings these proceedings for orders for specific performance of the deed of settlement.

Grounds advanced by Kimetha Lee Popata for opposing application to enforce deed of settlement

[15]     In opposing the  application  for  summary judgment,  Kimetha  Lee  Popata claims that, although she displayed an objective appearance of consent, she was in fact under considerable duress and consequently did not agree to the settlement.

[16]     Relief is also sought under s 7 of the Contractual Remedies Act 1979 on the basis that she was induced to enter into the settlement by a fraudulent misrepresentation made by Anne Rangi.  In this respect, Kimetha Lee Popata claims that Anne Rangi fraudulently claims to have been the defacto wife of Charles Tutaki Popata.

Duress

[17]     Kimetha  Lee  Popata  says  she  entered  into  the  deed  of  settlement  under duress.  In determining applications for summary judgment, the Court refrains from attempting to resolve genuine conflicts of evidence or to assess the credibility of the

parties’ statements in their affidavits.  However, as noted by the learned authors of

McGechan on Procedure, vol 1, para HR136.08, p 1-913:

The object  of the procedure  would  be  thwarted  if  spurious  defences  or plainly contrived factual conflicts were permitted to prevent judgment being obtained.

[18]     In Pharmacy Care Systems Ltd v Attorney-General CA 198/03 16 August

2004 at para [98], Hammond J summarised the elements of duress in the following way:

First, there must be a threat or pressure.   Secondly, that threat or pressure must be improper.  Thirdly, the victim’s will must have been overborne by the improper pressure so that his or her free will and judgment have been displaced.  Fourthly, the threat or pressure must actually induce the victim’s manifestation of assent.  Fifthly, the threat or pressure must be sufficiently grave to justify the assent by the victim, in the sense that it left the victim no reasonable alternative.   Sixthly, duress renders the resulting agreement voidable at the instance of the victim.   This may be addressed either by raising duress as a defence to an action, or affirmatively, by applying timeously to a Court for avoidance of the agreement.  Seventhly, the victim may be precluded from avoiding the agreement by affirmation.

[19]     The  fact  that  a  person  enters  into  an  agreement  with  reluctance  is  not evidence of duress.  In the present case, the settlement was negotiated in the course of a judicial settlement conference.   Kimetha Lee Popata had  her  legal  adviser present to assist her at the conference.   Whilst I accept that she may have been reluctant to enter into the settlement, that does not mean that the settlement was negotiated under duress or improper pressure.

[20]     Furthermore,  the  fact  that  following  the  conference  Kimetha  Lee  Popata clearly stated a desire to proceed with the settlement is very strong evidence that she was consenting.  Had she entered into the settlement under duress, she would have made it clear that she did not wish to proceed immediately she was free from the pressure that was influencing her at the conference.

[21]     Consequently, I do not consider her evidence establishes an arguable case that she entered into the agreement to settle the proceedings under duress.

Fraudulent misrepresentation

[22]     The evidence discloses that throughout the proceedings Kimetha Lee Popata has not accepted Anne Rangi’s claim to have been the de facto partner of Charles Tutaki Popata. She has complained about the lack of documentary evidence supporting Anne Rangi’s claim to have been the de facto partner of Charles Tutaki Popata.  However, both she and her legal advisers were well aware of this deficiency in Anne Rangi’s case when they negotiated the deed of settlement.

[23]     For  a  fraudulent  misrepresentation  to  be  actionable  under  s  7  of  the Contractual Remedies Act 1979, such representation must have induced the party to enter into their contract.

[24]     In particular, s 7(5) precludes a party from cancelling a contract if, with full knowledge of the misrepresentation, the party has affirmed the contract.   In the present case, Kimetha Lee Popata entered into the deed of settlement clearly not believing that there was a de facto relationship between Anne Rangi and Charles Tutaki Popata.  She entered into the agreement to avoid the costs, inconvenience, and delays involved in litigation, together with the risks that such litigation entails.

Decision

[25]     No evidence has been advanced by Kimetha Lee Popata to establish that the settlement she entered into with Anne Rangi was anything other than a bona fide settlement.    In  Hildred  v  Strong  [2007]  NZCA  475,  Robertson  J  quoted  with approval the following extract from the judgment of McKenzie J, at para [23], stated:

The parties are not free agents, in the sense of having the choice whether to deal with each other or not. Their pre-existing dealings have given rise to a dispute which must be resolved…At the mediation, which is necessarily, to some extent at least, an adversarial process, each party is likely to contend strongly for an outcome which is favourable and in accordance with that party’s perception of the merits of the dispute. Some parties will be more willing to compromise than others. These factors must be borne in mind in applying the principles which are relevant to the vitiation of contracts. The fact that the parties have, with independent assistance, reached an agreement to resolve their dispute, must be given weight. Parties ought not lightly to be

able to resile from a settlement. There is a public interest in the finality in dispute resolution processes, which must also be given weight.

[26]     In her affidavit in reply to the application for summary judgment, Kimetha

Lee Popata states:

38.On returning to Brisbane, I had time to reflect, with my immediate and extended family.

39.I realised what a monumental mistake I had made and set in motion steps to rectify the situation.

[27]     That evidence supports the conclusion that Kimetha Lee Popata, on returning to Brisbane, reflecting on the matter, and probably discussing the settlement with others, changed her mind.   A  change of mind  does  not  give  legal  grounds  for cancellation of a contract.

[28]     In the circumstances, therefore, I am satisfied that there are no grounds to justify repudiation or cancellation of the settlement.   I am also satisfied that it is appropriate to grant leave to the plaintiff to bring this application for summary judgment. Accordingly, the plaintiff will be granted leave to apply for summary judgment and summary judgment entered in the plaintiff’s favour against the defendant.

[29]     As the plaintiff has been successful, the plaintiff will be entitled to costs assessed on a 2B basis.

Application for removal of deceased administrator and appointment of independent administrator

[30]     Robert Wayne Popata was granted letters of administration by this court of the estate of Charles Tutaki Popata on 12 November 2003. Robert Wayne Popata died on 15 February 2007 having failed to complete the administration of the estate of Charles Tutaki Popata.

[31]     Kimetha Lee Popata who claims to be the personal representative of Robert

Wayne Popata has not applied to administer the estate of Charles Tutaki Popata. As a

result, Anne Rangi who claims to be a creditor of the estate of Charles Tutaki Popata applies for an order for the removal of the deceased administrator and for the appointment of Christopher Fitzherbert Foote of Auckland, solicitor as an independent administrator under section 21 Administration Act 1969. Although there appears to be no specific provision empowering an Associate Judge to deal with an application under section 21 Administration Act 1969, the registrar of this court is empowered to deal with such applications under rule 644(2)(a) High Court rules. I will   therefore   refer   the   application   for   an   order   under   section   21   of   the Administration  Act  1969  appointing Christopher  Fitzherbert  Foote  of  Auckland, solicitor as administrator of the estate of Charles Tutaki Popata to the registrar of this court for consideration.

Summary of Orders

[32]     There will therefore be the following orders:

a)       An  order  that  the  defendant  do  specifically  perform  the  deed  of settlement entered into between the defendant and the plaintiff dated

21 September 2007.

b)That the application for appointment of Christopher Fitzherbert Foote of Auckland, solicitor as administrator of the estate of Charles Tutaki Popata under section 21 Administration Act 1969 be referred to the registrar of this court.

c)        That the defendant pay the plaintiff’s costs assessed on a schedule 2B

basis with disbursements as fixed by the registrar.

MD Robinson

Associate Judge