Turrell v Roskam

[2020] NZHC 573

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-743

[2020] NZHC 573

UNDER

the Family Protection Act 1955

BETWEEN

EMMA CAROLINE TURRELL

First Plaintiff

ARIE EDWARD ROSKAM
Second Plaintiff

CAROLINE OLIVE ROSKAM-TURRELL
Third Plaintiff

AND

MARY KATHERINE ROSKAM (AS

EXECUTOR FOR THE ESTATE OF ARIE WILLIAM ROSKAM)

Defendant

Hearing:	On the Papers
Counsel:	E J Horner for Plaintiffs C J Kelly for Defendant
Judgment:	20 March 2020

JUDGMENT OF CLARK J

[1]        This judgment determines an interlocutory application for approval of a Deed of Settlement.

[2]        The proceeding was brought by the first plaintiff under the Family Protection Act 1955 for proper maintenance and support. The second and third plaintiffs are the first plaintiff’s children. Ms Turrell, the first plaintiff, is the surviving de facto partner of Ari William Roskam, who I refer to as Mr Roskam to avoid confusion with the second plaintiff. Mr Roskam’s last will dated 29 September 1994 predated his

TURRELL v ROSKAM (AS EXECUTOR FOR THE ESTATE OF ARIE WILLIAM ROSKAM) [2020] NZHC 573 [20 March 2020]

relationship with Ms Turrell and made no provision for her or their children. Accordingly, the claim under the Family Protection Act was brought.

[3]        The  proceeding  was  the  subject  of  a  judicial  settlement  conference  on  6 November 2019. Other parties directed to be served were present. All issues between the parties were settled on terms reflected in a  Deed of Settlement dated     6 November 2019. At the time the settlement deed was entered into Ms Turrell’s children were minors (and remain so).

[4]        By application dated 21 February 2020, Ms Turrell applies to the Court for approval of the Deed of Settlement entered into on her own behalf and on behalf of her two children. The application is made in reliance on s 105 of the Contract and Commercial Law Act 2017. Section 105 provides:

105     Claim that has become subject of proceeding

(1)If the claim has not been compromised or settled in accordance with section 104, and has become the subject of a proceeding before a court in New Zealand, no settlement, compromise, or payment and no acceptance of money paid into court is valid (to the extent that it relates to the minor’s claim) without the approval of the court.

(2)Subsection (1) applies whenever the settlement, compromise, payment, or acceptance is entered into or made

[5]        The Court may refuse an application for its approval under s 105 or grant approval unconditionally or subject to such conditions and directions that it thinks fit.

[6]        Sections 103–107 appear in subpt 6 of the Contract and Commercial Law Act 2017. That Act re-enacted, in an up-to-date and accessible form, legislation relating to contracts, the sale of goods, electronic transactions, the carriage of goods and various other commercial matters.1 Sections 105–107 essentially re-enact s 12 of the now repealed Minors Contract Act 1969.

1      Contract and Commercial Law Act 2017, s 3.

[7]        Under the Deed of Settlement, the deceased’s estate transfers to Ms Turrell, the first plaintiff. The transfer is to occur within 15 working days following the Court’s approval of the settlement deed. It was a condition of the settlement that an application would be made to the Court for an order giving effect to the settlement.

[8]        A memorandum of counsel for the defendant has been filed. Ms Roskam, as executor of the estate of her brother (Mr Roskam) supports the application for approval of the Deed of Settlement on behalf of the minor children.

[9]        Ms Roskam believes it is in the interests of all three plaintiffs and also the wider Roskam family that the matter is now settled. She specially requests the Court to approve the Deed of Settlement so that administration of the estate can be completed. The difficulties over the estate have caused divisions within the wider family and it is important that those conflicts are resolved.

[10]      I propose to approval the settlement unconditionally. The claim which the plaintiff commenced under the Family Protection Act 1955 was brought for proper maintenance and support in light of the fact Mr Roskam had died unexpectedly, leaving a will that predated their relationship and made no provision for his family.

[11]      That proceeding has been compromised in the interests of a settlement with which all previous beneficiaries under the previous will agree. As I have mentioned, the whole of the estate is to transfer to the first plaintiff who has agreed to accept a sum reflecting the net value of the estate (which includes a liability to an entity). If it were pursued, the proceeding has the potential to diminish the value of the estate through litigation costs.

[12]      In addition to the financial benefits to the plaintiffs it is clearly in the wider family interest that the proceeding and issues are resolved amicably rather than through potentially protracted litigation.

Disposition

[13]      The Deed of  Settlement  entered  into  by  the  plaintiffs  and  defendant  on 6 November 2019 is approved.

Karen Clark J

Solicitors:

Mahony Horner, Wellington for Plaintiffs

Greg Kelly Law Ltd, Wellington for Defendant