Skelton v Nair - [2016] NZCA 316

IN THE COURT OF APPEAL OF NEW ZEALAND

CA294/2015
[2016] NZCA 316

BETWEEN	BEVIN HALL SKELTON Appellant
AND	DARAN NAIR Respondent

Hearing:	16 June 2016
Court:	Harrison, Mallon and Toogood JJ
Counsel:	Appellant in person E J Werry for Respondent
Judgment:	7 July 2016 at 10.15 am

JUDGMENT OF THE COURT

A The appeal is dismissed.

BThe appellant must pay the respondent costs for a standard appeal on a band A basis and usual disbursements.

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REASONS OF THE COURT

(Given by Toogood J)

Mr Bevin Skelton appeals against a decision of Asher J striking out a High Court proceeding in which Mr Skelton sued Mr Daran Nair, formerly the receiver of a partnership between family trusts established by Mr Skelton and his wife Marie.[1] The proceeding was struck out on the basis that Mr Skelton’s claims had previously been compromised by a binding settlement of earlier proceedings involving the trusts and dealings between them over property and other matters to which Mr and Mrs Skelton and Mr Nair were parties.

Background

[1]Skelton v Nair [2015] NZHC 832 [HC decision].

The background to the proceeding, and a summary of Asher J’s judgment, were accurately and helpfully set out in a judgment of Winkelmann J in this Court upholding a decision of the Registrar refusing to dispense with security for costs.[2] We adopt that summary for the purposes of this judgment.
[2]Skelton v Nair [2015] NZCA 343 at [2]–[8].
In 2006 Mr and Mrs Skelton were involved in litigation. Mr Nair, a chartered accountant, was appointed as a receiver of a partnership known as the Urban and Country Partnership (the UC Partnership) which was in effect a partnership of Mr and Mrs Skelton’s trusts.
As receiver of the partnership, Mr Nair commenced a proceeding against Mr Skelton’s trust and another associated trust, seeking recovery against the trustees of $439,000. There was a settlement conference on 4 August 2008 before an Associate Judge at which settlement of the claim was reached, and a Heads of Agreement executed by the parties (the Heads of Agreement). There were then two later deeds of settlement dated 30 August 2008 (the 2008 deed) and February 2009 (the 2009 deed), in implementation of the Heads of Agreement.
Mr Skelton filed the proceeding the subject of this appeal in July 2014. The original statement of claim was 17 pages long and contained hundreds of clauses and sub-clauses. Mr Nair applied to strike out the proceeding on the basis of that pleading, but Mr Skelton was given an opportunity to file an amended statement of claim before the application was heard.
In an amended statement of claim filed in November 2014 (the Amended Claim), Mr Skelton pleaded that on 18 May 2007 Mr Nair entered into an agreement to sell the half share in an apartment owned by Mr Skelton’s interests to a Mr Howcroft, another apartment owner, and his spouse (the Howcroft agreement).
Mr Skelton alleged that Mr Nair did not disclose the existence of this…

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 Skelton v Nair

Details

AGLC: Skelton v Nair [2016] NZCA 316
Case: [2016] NZCA 316
Decision Date: 7 July 2016 at 10.15 am

CaseChat Overview and Summary

Skelton v Nair involved an appeal against a decision by Asher J to strike out a proceeding initiated by Mr. Skelton against Mr. Nair, a former receiver of a partnership between family trusts. The court was tasked with deciding whether the proceeding should have been dismissed on the grounds that Mr. Skelton's claims had been compromised by a prior binding settlement. The settlement in question included the Heads of Agreement executed on 4 August 2008 and subsequent deeds of settlement dated 30 August 2008 and February 2009.

The legal issues before the court included whether Mr. Skelton's claims were effectively compromised by the prior settlement, and if pursuing the current proceeding constituted an abuse of process. The court had to consider whether Mr. Skelton's allegations regarding the sale of an apartment and the duty to disclose material information were sufficiently distinct from the prior settlement to warrant a new proceeding. Furthermore, the court needed to assess whether the proceeding was frivolous or vexatious, as determined by Asher J.

The Court of Appeal upheld the decision to strike out the proceeding, affirming that Mr. Skelton's claims had indeed been compromised by the prior binding settlement. The court found that the essential allegations and relief sought in the current proceeding were substantially the same as those that had been settled. The court also agreed that the proceeding was an abuse of process, as it involved claims that had already been addressed and settled. The Court of Appeal dismissed the appeal, requiring Mr. Skelton to pay costs to Mr. Nair on a standard appeal basis and usual disbursements.

Orders