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

TURRELL v ROSKAM (AS EXECUTOR FOR THE ESTATE OF ARIE WILLIAM ROSKAM) [2020] NZHC573 [20 March 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2018-485-743[2020] NZHC 573UNDER the Family Protection Act 1955BETWEEN EMMA CAROLINE TURRELLFirst PlaintiffARIE EDWARD ROSKAMSecond PlaintiffCAROLINE OLIVE ROSKAM-TURRELLThird PlaintiffAND MARY KATHERINE ROSKAM (ASEXECUTOR FOR THE ESTATE OF ARIEWILLIAM ROSKAM)DefendantHearing: On the PapersCounsel: E J Horner for PlaintiffsC J Kelly for DefendantJudgment: 20 March 2020JUDGMENT OF CLARK J[1] This judgment determines an interlocutory application for approval of a Deedof Settlement.[2] The proceeding was brought by the first plaintiff under the Family ProtectionAct 1955 for proper maintenance and support. The second and third plaintiffs are thefirst plaintiff's children. Ms Turrell, the first plaintiff, is the surviving de facto partnerof Ari William Roskam, who I refer to as Mr Roskam to avoid confusion with thesecond plaintiff. Mr Roskam's last will dated 29 September 1994 predated hisrelationship 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 on6 November 2019. Other parties directed to be served were present. All issuesbetween the parties were settled on terms reflected in a Deed of Settlement dated6 November 2019. At the time the settlement deed was entered into Ms Turrell'schildren were minors (and remain so).[4] By application dated 21 February 2020, Ms Turrell applies to the Court forapproval of the Deed of Settlement entered into on her own behalf and on behalf ofher two children. The application is made in reliance on s 105 of the Contract andCommercial 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 withsection 104, and has become the subject of a proceeding before a courtin New Zealand, no settlement, compromise, or payment and noacceptance of money paid into court is valid (to the extent that itrelates 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 grantapproval 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 Act2017. That Act re-enacted, in an up-to-date and accessible form, legislation relatingto contracts, the sale of goods, electronic transactions, the carriage of goods andvarious other commercial matters.1 Sections 105–107 essentially re-enact s 12 of thenow 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, thefirst plaintiff. The transfer is to occur within 15 working days following the Court'sapproval of the settlement deed. It was a condition of the settlement that an applicationwould 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, asexecutor of the estate of her brother (Mr Roskam) supports the application for approvalof 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 thewider Roskam family that the matter is now settled. She specially requests the Courtto approve the Deed of Settlement so that administration of the estate can becompleted. The difficulties over the estate have caused divisions within the widerfamily and it is important that those conflicts are resolved.[10] I propose to approval the settlement unconditionally. The claim which theplaintiff commenced under the Family Protection Act 1955 was brought for propermaintenance 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 withwhich 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 asum reflecting the net value of the estate (which includes a liability to an entity). If itwere pursued, the proceeding has the potential to diminish the value of the estatethrough litigation costs.[12] In addition to the financial benefits to the plaintiffs it is clearly in the widerfamily interest that the proceeding and issues are resolved amicably rather thanthrough potentially protracted litigation.Disposition[13] The Deed of Settlement entered into by the plaintiffs and defendant on6 November 2019 is approved._____________________________Karen Clark JSolicitors:Mahony Horner, Wellington for PlaintiffsGreg Kelly Law Ltd, Wellington for Defendant