Whalen v Mitchell

[2022] NZHC 374

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2019-443-008

[2022] NZHC 374

UNDER

the Trustee Act 1956, the Administration Act 1969 and Part 18 of the High Court Rules

IN THE MATTER

of the estate of PAUL DURHAM MITCHELL late of Waitara, Welder

BETWEEN

SARA LEE WHALEN of Melbourne, Insurance Consultant and

LOGAN DAVID JURY-MITCHELL of

Waitara, Trade Assistant Plaintiffs

AND

STUART FREDERICK MITCHELL of

Waitara, Company Director and
LOGAN MCARTHUR MITCHELL of

Waitara, Retired as executors and trustees of Estate of PAUL DURHAM MITCHELL

First Defendants

NYLA FLORENCE MITCHELL of Waitara,
Retired

Second Defendant

Hearing:

7 March 2022

Counsel:

A Laurenson for Plaintiffs

No appearance for Defendants

Judgment:

7 March 2022

JUDGMENT OF CHURCHMAN J

WHALEN & ANOR v MITCHELL & ORS [2022] NZHC 374 [7 March 2022]

Background

[1]    The plaintiffs, by way of statement of claim dated 25 March 2019, commenced proceedings against the trustees in the estate of their father, the late Paul Durham Mitchell.

[2]    The proceedings related to an allegation by the plaintiffs that the defendants had misappropriated funds from the estate of the late Paul Mitchell.

Settlement agreement

[3]    On 10 February 2020, the plaintiffs and defendants entered into a written settlement agreement settling the dispute between them.

[4]    The defendants denied any misappropriation but agreed to pay $40,000 to settle the claims against them.

[5]    The payment was due to be made by 31 March 2020, and the default interest payment for late payment was 10 per cent per annum (calculated as being $10.96 per day) as from 1 April 2020 until payment in full of the outstanding sum and all accumulated interest had been paid.

[6]    The agreement provided that upon receipt of a settlement payment, the plaintiffs would file and serve a notice of discontinuance which recorded that there was no issue as to costs.

Developments

[7]    The defendants failed to make any payments pursuant to the settlement agreement.

[8]The plaintiffs now wish to enforce the settlement agreement.

[9]    I heard evidence from Logan David Jury-Mitchell to the effect that, as at the date of the hearing, no payments had been received and there had been no contact from the defendants.

Outcome

[10]   I am satisfied that the defendants executed the settlement agreement and are bound by it but have breached its terms.

[11]   I am satisfied that the plaintiffs are entitled to interest since 1 April 2020 at an annual rate of 10 per cent per annum being $10.96 per day on a non-payment.

Costs

[12]   I am satisfied that costs, up until the date of execution of the settlement agreement, are covered by the terms of that agreement. However, the hearing was caused by the defendants’ failure to comply with the terms of the settlement agreement. There has been no explanation for that.

[13]   In the circumstances, I am satisfied that the plaintiffs are entitled to solicitor and client costs for all of the work undertaken by their solicitor in attempting to enforce the terms of the settlement agreement.

Result

[14]Judgment for the plaintiffs against the defendants is given in the sum of

$40,000 plus interest thereon at 10 per cent from 1 April 2020 (daily rate $10.96).

[15]   The plaintiffs are entitled to actual and reasonable solicitor and client costs for all work undertaken to enforce the settlement agreement, and counsel is to file an updated schedule of such costs, together with a draft order for sealing.

Churchman J

Solicitors:
Govett Quilliam Solicitors, New Plymouth for Plaintiffs