Carr v Sowerbutts [2019] NZFC 9892

Published 23 March 2021

Application for provision from estate — leave to commence proceedings of deceased person's estate —breach of moral duty — enforcement of settlement — serious injustice — principles of contract — definition of court order — interlocutory application — Property (Relationships) Act 1976, ss 25 & 88 — Family Protection Act 1955, s 4 — Family Court Rules 2002, rr 178 & 179 — Siebe Gorman & Co Ltd v Pneupak Ltd (UK) [1982] 1 ALL ER 377 — Edwards v Edwards [2012] NZHC 1630 — Phipps v Phipps [2015] NZFC 4657; [2016] NZFLR 531 — Williams v Williams (28 September 2005, Family Court, Taupo, FAM-2004-069-140 - Judge Hikaka) — Rusden v Rusden [1981] 5 NPC, 132. Proceedings were brought under the Property (Relationships) Act (the PRA) and the Family Protection Act in respect of the estate of a deceased man. An application had been brought under s 88 of the PRA for leave to commence proceedings by the trustee of the deceased's estate to re-call into the deceased's estate a one-half share of what is relationship property passed by survivorship to his widow (the respondent). Two of the deceased's children (the applicants) wanted the relationship property to be reclaimed into the estate so they could obtain provision from it. They maintained their father owed them a moral duty to make provision for him under his will and he breached that duty by failing to do so. The deceased's third son had filed a notice of appearance on the proceedings but did not participate. Negotiations began in 2016 to resolve issues concerning the estate, but they were unsuccessful and culminated in a judicial settlement conference in 2018. This interlocutory application was to determine whether an agreement made between the applicants and the respondent at that judicial settlement conference should be enforced. The applicants argued that the settlement agreement was made a consent order in an oral judgment by the Judge, or, that even if that judgment was not a consent order, the parties had still reached a binding agreement according to ordinary principles of contract law. The respondent submitted that the "judgment" referred to was not actually a judgment as it did not contain any order or determination of the Court. Further the terms of the agreement were too uncertain to be a binding contract. The Judge at this hearing was satisfied that the "oral judgment" was mistakenly labelled a judgment as it contained no orders, directions or confirmation of the agreement. The settlement agreement had not been made a consent order, so was not binding on the parties and could not be enforced. The Judge also found that the terms of the agreement were too vague. There was confusion between the parties evidenced by subsequent discussions over emails. It was also likely the respondent had entered into the agreement at a time when she was under significant stress and illness, so to enforce the agreement would be unfair. The interlocutory application was declined. The matters would have to proceed to a substantive hearing. Judgment Date: 6 December 2019.