Wiklkinson v Wilkinson - [2018] NZHC 2258

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV 2016-419-000257

[2018] NZHC 2258

BETWEEN
PATRICIA MARY WILKINSON

Plaintiff

AND

DAVID WILLIAM WILKINSON and

JOHN DUNCAN LANDERS as executors of the Estate of WILLIAM LOUIS

WILKINSON
First Defendants

AND

PATRICIA MARY WILKINSON, DAVID WILLIAM WILKINSON, HENRY

WILLIAM BELL and WILKINSON INDEPENDENT TRUSTEES LIMITED as
trustees of the K L WILKINSON (NO 2) TRUST, and BARBARA ANN
WILKINSON

Counterclaim Defendants

Hearing: 22 August 2018

Appearances:

S Robertson QC for Applicants/Counterclaim Defendants

P Stevenson for Executors of the Estate of Barbara Wilkinson S Grant for Respondent, the Counterclaim Plaintiff, H W Bell

Judgment:

30 August 2018

JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

This judgment was delivered by me on
30.08.18 at 3:30pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

P M WILKINSON v D W WILKINSON and J D LANDERS as executors of the Estate of W L WILKINSON & ORS [2018] NZHC 2258 [30 August 2018]

Introduction

[1] These summary judgment proceedings arise out of a Heads of Agreement signed by the parties present at a mediation of Family Protection Act 1955 proceedings. The principal protagonists in those proceedings are the children and the grandchildren of the deceased, Mr William Louis Wilkinson. A key issue in the mediation was how the estate should be divided between the children on the one hand, and the grandchildren on the other.

[2] Following the mediation, Mr Henry Bell, one of the grandchildren and the counterclaim plaintiff, filed a counterclaim again the trustees of the K L Wilkinson (No.2) Trust seeking to enforce the Heads of Agreement.

[3] The trustees, named as the counterclaim defendants, seek an order that the counterclaim be dismissed and summary judgment be entered for the defendants on the basis that Mr Bell seeks to enforce a conditional agreement, when the conditions of the agreement have not been fulfilled.

[4] The Heads of Agreement was expressed to be conditional on the agreement of the trustees after having taken legal advice and no such agreement has been given. It is said that the counterclaim plaintiff cannot possibly succeed. The Heads of Agreement was also conditional on the agreement of the deceased’s wife, Mrs Barbara Wilkinson. She likewise did not give her agreement and now also applies for summary judgment.

[5] The issue for determination is whether the counterclaim-defendants have satisfied the Court that Mr Bell’s counterclaim cannot succeed.1 Do the defendants have a complete defence to the counterclaim-plaintiff’s counterclaim and/or a clear answer to the counterclaim which cannot be contradicted?

Relevant legal principles

[6] Rule 12.2 of the High Court Rules 2016 provides that the Court may give judgment against the plaintiff if the defendant satisfies the Court that none of the

1 Ferrer-Aza v NZONE Race Management Ltd [2016] NZHC 885 at [10]-[12].

causes of action in the plaintiff’s statement of claim can succeed. The following principles, as stated by the Court of Appeal in Westpac Banking Corp…

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.

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Details

Case: [2018] NZHC 2258
Decision Date: 30 August 2018

CaseChat Overview and Summary

This case involved a dispute between family members regarding the distribution of the estate of the deceased, Mr. William Louis Wilkinson. The primary issue was the enforcement of a Heads of Agreement, which was signed following a lengthy mediation. The counterclaim plaintiff, Mr. Henry Bell, sought to enforce the Heads of Agreement against the trustees of the K L Wilkinson (No.2) Trust and Barbara Wilkinson, the deceased's wife. The trustees and Mrs. Wilkinson sought summary judgment to dismiss the counterclaim, arguing that the agreement was conditional and the conditions had not been fulfilled.

The court had to determine whether the defendants had satisfied the court that Mr. Bell's counterclaim could not succeed. The legal principles applied in this case involved the rules for summary judgment and the objective approach to contractual interpretation. The court found that the text of the Heads of Agreement clearly stated that the agreement was conditional on the trustees' and Barbara Wilkinson's approval, and since they had not agreed, the counterclaim could not succeed. The court also rejected Mr. Bell's estoppel claim, finding that the representations made during the mediation were not sufficient to establish the necessary elements of estoppel.

The court granted the application for summary judgment, dismissing Mr. Bell's counterclaim. The trustees and Mrs. Wilkinson were also granted an order that it was reasonable for them to have taken the step of prosecuting the summary judgment application. The court directed the parties to file memoranda on the question of costs within 14 days.

Orders