Thomas v Cross

[2021] NZHC 1225

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-000766

[2021] NZHC 1225

IN THE MATTER

of an application under s 339 of the Property Law Act 2007

BETWEEN

ANNEMARIE PHYLLIS THOMAS

Plaintiff

AND

DARYL KEITH CROSS and SALVE CROSS

Defendants

Hearing:	On the papers
Counsel:	D Jackson for Plaintiff Defendants self-represented
Judgment:	28 May 2021

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

[By Consent as to Tomlin Order]

This judgment was delivered by me on 28 May 2021 at 11.30 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

THOMAS v CROSS [2021] NZHC 1225 [28 May 2021]

[1]                  The plaintiff commenced this proceeding seeking orders fixing her interest in a property at 50 Knights Road, West Melton and for its sale.

[2]                  The plaintiff and the first-named defendant are mother and son respectively. The second-named defendant is the first-named defendant’s wife.

[3]                  The parties have agreed on terms of settlement. They wish to have those terms recorded by way of a Tomlin Order. They have submitted their settlement to the Court. The terms of settlement are contained in a Deed of Settlement between the parties dated 16 May 2021.

[4]                  Although the defendants are, strictly speaking, self-represented they have received independent legal advice from an experienced lawyer in relation to the terms of the Deed of Settlement.

[5]                  Reflecting the family relationship that exists between the parties, it is perhaps not surprising the Deed of Settlement contains terms that are not appropriately the subject of a Tomlin Order. It is accepted they will be excluded from the scope of the order.

[6]                  It is common practice that a Tomlin Order attaches the terms of an agreed compromise to it as a schedule. In this case, the Deed of Settlement contains information of both a private and confidential nature so this approach is undesirable. It was noted in Divett v Skeates that it is sufficient if the terms of compromise are contained in a separate document clearly identified in the Tomlin Order. That is the approach I take in this case.1

[7]I therefore order by consent:

(a)The plaintiff and the defendants have agreed to the terms set forth in a Deed of Settlement dated 16 May 2021 and filed with the High Court at Christchurch on 17 May 2021. It is ordered that all further

1      Divett v Skeates (2010) 19 PRNZ 653 (HC) at [12].

proceedings in this action are stayed except for the purpose of carrying such terms into effect.

(b)The order in [7](a) shall not apply to cl 13 and to the disclaimers by the first-named defendant in respect of the estate of the plaintiff in cls 12 and 20 of the Deed of Settlement.

[8]                  Leave is granted to the parties to apply as to the carrying out of such terms into effect.

O G Paulsen Associate Judge

Solicitors:
Mortlock McCormack, Christchurch

cc:

D K Cross & S Cross (self-represented), Defendants, Christchurch