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Charan v Barfoot & Thompson Limited HC Auckland CIV 2010-404-008089 [2011] NZHC 740 (16 June 2011)

Last Updated: 30 July 2011


IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2010-404-008089

IN THE MATTER OF an appeal under sections 117 and 119 of the

Residential Tenancies Act 1986

BETWEEN SURESH CHARAN Appellant

AND BARFOOT & THOMPSON LIMITED Respondent

Hearing: 19 April 2011

Appearances: Appellant in Person

P McKendrick for Respondent

Judgment: 16 June 2011 at 2:00 PM

JUDGMENT OF WHITE J


This judgment was delivered by me on 16 June 2011 at 2.00 pm pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar


Date: ......................

Solicitor: P McKendrick, Glaister Ennor: paul.mckendrick@glaisterennor.co.nz

Copy to: S Charan, 3/14A Wilmay Avenue, Papatoetoe, Manukau 2025

CHARAN V BARFOOT & THOMPSON LTD HC AK CIV 2010-404-008089 16 June 2011

[1] In December 2010 Mr Charan filed an appeal in this Court under s 119 of the Residential Tenancies Act 1986 against the decision of the Papakura District Court dismissing his appeal against a decision of the Tenancy Tribunal delivered on 17

November 2010 making an order that the tenancy between him and Barfoot & Thompson Ltd in respect of the property at Unit 2, 42 Wintere Road, Papatoetoe, Manukau, end on 22 November 2010.

[2] Mr Charan also issued a separate proceeding for judicial review in December

2010 challenging an earlier decision of the Manukau District Court in respect of another decision of the Tenancy Tribunal as well as the decisions of the Tenancy Tribunal and the Papakura District Court that are the subject of this appeal: HC Auckland CIV-2010-404-008387.

[3] An application by Mr Charan for a stay of the decision of the Papakura District Court, made in the appeal, was dismissed by Cooper J for want of prosecution on 14 December 2010.

[4] When the judicial review proceeding was called on 2 February 2011

Woolford J recorded in his minute of that date at [1] that he had been advised by the parties, namely Mr Charan who appeared in person, and Mr McKendrick who appeared for Barfoot & Thompson Ltd, that settlement had been reached and that:

It involves the payment of a sum of money to Mr Charan upon receipt of which Mr Charan will file a notice of discontinuance of these proceedings and a related appeal.

Woolford J adjourned the proceedings to enable settlement to occur and a notice of discontinuance to be filed. Costs were to lie where they fell.

[5] When the appeal and the judicial review proceedings were called on

8 February 2011 Wylie J recorded in his minute of that date at [5] that while a signed settlement agreement had been produced Mr Charan asserted that:

he was tricked, and that he signed the settlement agreement while he was subject to undue influence.

[6] Wylie J also recorded in his minute at [2]-[3] that, notwithstanding that the decision of the Tenancy Tribunal had been executed with service of an order for possession on Mr Charan and vacant possession having been given, Mr Charan still sought a stay of the District Court judgment and a restraining order.

[7] To bring on Mr Charan’s applications for a stay and a restraining order and to enable Barfoot & Thompson Ltd to apply to strike out the appeal and the judicial review proceeding, the following timetable directions were made by Wylie J:

[6] .....

b) The respondent is to file and serve an application to strike out the appeal and review proceedings and any affidavit(s) in support, within 14 days of 8 February 2011.

c) Mr Charan is to file and serve any notice of opposition and affidavit(s) in support within seven days thereafter.

d) The respondent is to file and serve any reply affidavits within seven days thereafter.

e) The respondent is to file and serve its notice of opposition and affidavit(s) in support to Mr Charan’s application for a stay and restraining order within 14 days of 8 February

2011.

f) Mr Charan is to file and serve any reply affidavit(s) within seven days thereafter.

[7] The anticipated applications for striking out, and the application for a stay and restraining order, are to be heard on 19 April 2011 at 10.00 am. The time estimate is half a day.

[8] As required by these directions, Barfoot & Thompson Ltd filed its strike out application, its notice of opposition to Mr Charan’s stay and restraining order and its affidavit in support on 22 February 2011. Barfoot & Thompson Ltd also took steps to serve their documents on Mr Charan by posting and emailing them to him on

21 February 2011 and by serving them personally on him on 15 March 2011.

[9] As Mr Charan denied having received the documents by 22 February 2011, he did not comply with the timetable directions made by Wylie J on 8 February

2011. Instead he applied on 11 April 2011 for an order setting them aside and filed an affidavit in support which included his reasons for challenging the settlement

agreement. Mr Charan claimed that the documents sent to him on 21 February 2011 were posted and emailed to the wrong addresses and that while he acknowledged personal service of the documents on 15 March 2011 he had “rejected” them.

[10] In terms of the requirements of rules 6.1, 6.5 and 6.11 of the High Court Rules, which apply by virtue of s 119(2) of the Residential Tenancies Act 1986, and the evidence in the affidavit of service for Barfoot & Thompson Ltd, I am satisfied that the documents were served on Mr Charan at an address for service given in accordance with the rules as well as by email and personally. I am also satisfied that he was probably served by 22 February 2011, but, if not, I would in the circumstances of this case extend the time under rule 1.19 of the High Court Rules to the date on which Mr Charan received the documents by post or email or, if necessary, to 15 March 2011 when he was personally served with them in accordance with the requirements of rule 6.11. Having been present in Court on

8 February 2011, Mr Charan knew that the documents were coming. He knew what the Barfoot & Thompson Ltd applications were for and that those applications and his own applications would be heard by this Court on 19 April 2011. He filed his application and affidavit of 11 April 2011. No question of prejudice arose. There was no reason for Mr Charan not to comply with the timetable directions. His application for an order setting aside the directions is therefore dismissed.

[11] I have considered Mr Charan’s application for a stay of the Papakura District Court decision and a restraining order and taken into account the submissions he made at the hearing on 19 April 2011 and the further documents he provided under cover of his letter dated 20 April 2011. Mr Charan’s submissions and the documents sent to the Court after the hearing relate to the background of the hearings before the Tenancy Tribunal and the Manukau and Papakura District Courts. As such they address the issues he sought to raise in his appeal and judicial review proceeding. Mr Charan is seeking a stay and a restraining order so that he may pursue his appeal and judicial review proceeding. There are, however, a number of significant difficulties for Mr Charan in adopting this approach.

[12] First, the application for a stay has already been dismissed by Cooper J on

14 December 2010.

[13] Second, as recorded by Woolford J in his minute of 2 February 2011, a settlement was reached on that day. Mr Charan was present in Court when the Judge was advised of the settlement and its terms, including the discontinuance of the appeal and review proceeding. The settlement would not have been recorded by the Judge if Mr Charan had taken issue with any aspect of it.

[14] Third, as recorded by Wylie J in his minute of 8 February 2011, the judgment of the Papakura District Court has been executed with service of an order for possession and vacant possession having been given. No practical purpose would now be served in granting a stay.

[15] Faced with Barfoot & Thompson Ltd’s application to strike out the appeal

and judicial review proceeding on the grounds of the settlement reached on

2 February 2011, Mr Charan now claims that he was “tricked” into the settlement and that he signed the agreement while subject to “undue influence”. He also claims that he changed his mind about the agreement after speaking with his wife. In support of the claim of “undue influence”, Mr Charan referred to the decision of the High Court of Australia in Commercial Bank of Australia Ltd v Amadio and Halsbury’s Laws of England.[1]

[16] The affidavit evidence for Barfoot & Thompson Ltd established, however, that prior to the case being called in Court on 2 February 2011 there were negotiations between Mr Charan and counsel for the other parties in the proceedings, namely Crown Counsel and counsel for Barfoot & Thompson Ltd, which resulted in agreement as to the payment by Barfoot & Thompson Ltd of $1,700 to Mr Charan in return for his discontinuing the appeal and the judicial review proceeding. The agreement was then recorded in a handwritten note that read:

Parties:

1. Suresh Charan (“Mr Charan”)

2. Barfoot & Thompson Ltd (“Barfoots”)

Background:

A. Mr Charan has filed appeal CIV 2010-404-008-089 against Barfoots

(“Appeal Proceedings”).

B. Mr Charan has filed an application for Judicial Review CIV 2010-

404-008-387 against Barfoots and Manukau District Court/ Mr Brearley/Papakura District Court (“Judicial Review Proceedings”).

C. Full and final settlement has been agreed as per below. Agreements:

1. In full and final settlement of all claims arising either directly or indirectly out of the tenancy of the property at 2/42 Wintere Road, Papatoetoe (“the Property”) by Mr Charan against Barfoots and vice versa, to include without limitation the Appeal and Judicial Review Proceedings it is agreed that:

(a) Barfoots is to pay Mr Charan the sum of $1700 (seventeen hundred dollars) within 7 (seven) days of the date of this agreement.

(b) Mr Charan is to discontinue the Appeal with there being no issue as to costs.

(c) Mr Charan is to discontinue the Judicial Review Proceedings against all parties to that proceeding no issue as to costs. Crown Counsel for the parties other than Barfoots has confirmed that there is no issue as to costs in respect of those parties.

2. In the event that Barfoots was not to pay the $1,700 then Mr Charan can restore his Appeal and Judicial Review Proceedings.

3. Barfoots is to release the bond money of $780 (seven hundred and eighty dollars) deposited with the Department for Housing and Building.

Signed

Suresh Charan

Witness

P M McKendrick

Solicitor Auckland

[17] The evidence for Barfoot & Thompson Ltd was that the last two clauses in the agreement were included at Mr Charan’s request and that the agreement was read aloud in the presence of Mr Charan, who was also able to read it himself, before it was signed.

[18] In his affidavit of 11 April 2011 in support of his application to set aside the directions of Wylie J, Mr Charan took issue with the affidavit evidence for Barfoot & Thompson Ltd relating to the settlement agreement. Mr Charan deposed that:

33. On 2 of February 2011 I was hampered [sic] both by the Crown Counsel Mr M. Downs and the respondent’s Solicitor Mr Paul McKenderick [sic] at the High Court, Auckland when I went to attend management conference set at 10 am for my application for judicial review in CIV-2010-404-008387.

34. Mr M. Downs cautioned me that he was contemplating to apply to have my application for judicial review struck out on the ground that I had included exemplary damages in my claim but he refused to answer me when I raised to him:

(a) On what jurisdiction did the second defendant, Russell Brearley, write Judge Gibson seeking clarification on issue of my appeal filed as of a right under section 117 of the Residential Tenancy [sic] Act 1986? and

(b) How can Judge Gibson dispose of my appeal arbitrarily when it was under section 117 of the Residential Tenancy Act 1986 which states: “.. any party to any proceedings before the Tribunal who is dissatisfied with the decision of the Tribunal in the proceedings may appeal to District Court against that decision.”

(c) How can Judge claim that there is no jurisdiction to grant monetary compensation to successful appellant when section 77(2)(n) of the Residential Tenancy Act 1986 states that the Tribunal: “.. to order the landlord or the tenant under any tenancy agreement to which this Act applies to pay the other party such sum by way of damages or compensation as the Tribunal shall assess in respect of the breach of any express or implied provision of the tenancy agreement or any provision of this Act?”

(d) How can the Tribunal Smallholme substitute another notice on hearing without complying with section 91 (1) and (2) (a) of the Residential Tenancy Act and make orders?

35. I was then hampered by Mr Paul McKenderick, who persisted for settlement for the issues before the Court.

36. On my refusal he followed me around, even inside the Court, offering increase amount of compensation from $500 to $1700 to agree for settlement.

37. He argued that I may not get damages as much as he was offering. If I were to loose [sic] my claim I may have pay heavy costs to the respondent.

38. For peace of my mind I took into consideration the respondent’s willingness for payment of $1700.00 as compensation and return of the premises to me as tenant for settlement.

39. Mr McKenderick wrote and read out to me to initial and sign it. He did not give it to me to read it. I took him in trust. He than [sic] called the Manager of the Barfoot & Thompson Ltd to sign it.

40. However I became suspicious when Mr McKenderick was making submission to Judge Woodford [sic], I interrupted to advise his Lordship that the agreement was conditional, and his lordship then added in his decision: “In those circumstances, I adjourn these proceedings to the Duty Judge list in two weeks time, that is on

16 February 2011. However, it is anticipated that settlement will have occurred prior to that date which case a notice of

discontinuance should be filed. If a notice of discontinuance is filed,

no further appeal by the parties will be required..”

41. On receiving the said purported agreement I rejected it and so did my wife who had been paying rent right from the day of commencement of the tenancy on 7/11/2005. She paid the rent and receipt also was issued on her name. I produce a copy of the receipt as a proof:

[photocopy of receipt dated 14-11-05 for $260 issued by Barfoot & Thompson Ltd]

42. The purported agreement was lopsided to prevent me taking any action against the respondent in respect of tenancy which I did not agree.

43. I only agreed for settlement on the ground that I will have retained the premises and the payment $1700.00 would to some extent compensate me for breaches committed by the Respondent.

44. No money has been paid or accepted and for which reason I say the purported agreement is not enforceable.

[19] At the hearing on 19 April 2011 Mr Charan acknowledged, however, that:

(a) the last two clauses in the agreement had been included at his request; (b) the agreement had been read to him;

(c) he had signed it;

(d) he had understood it;

(e) the agreement did not refer to retaining the premises because they had already been repossessed; and

(f) he had been offered the $1,700 by Barfoot & Thompson Ltd, but had declined to accept it.

[20] On the basis of these acknowledgments and the minute of Woolford J, I accept the evidence for Barfoot & Thompson Ltd that a full and final settlement was reached between the parties on 2 February 2011 on the terms set out in the written agreement signed by the parties on that date. Under the terms of the agreement Barfoot & Thompson Ltd is to pay Mr Charan $1,700 and he is to discontinue his appeal and judicial review proceeding. There is no suggestion in the minute of Woolford J that the agreement was “conditional” in the sense that Mr Charan was entitled to resile from it. As recorded in the Judge’s minute, the proceedings were adjourned to enable settlement to occur.

[21] There is no basis for setting aside the settlement agreement on the grounds raised by Mr Charan. Neither his affidavit evidence nor his submissions persuaded me that he had been “tricked” into the settlement or that he had signed it as a result of “undue influence”. There is no evidence in this case of improper pressure or coercion by Crown Counsel or counsel for Barfoot & Thompson Ltd, or any “relationship” between them and Mr Charan in which they had a measure of influence or ascendancy, or, if there were such a relationship, any evidence that counsel had taken unfair advantage of it: cf Royal Bank of Scotland Plc v Etridge

(No. 2).[2] On the contrary, Mr Charan’s own evidence established that counsel for the

other parties had simply been advising him, quite properly, of the likely consequences involved in pursuing his proceedings and had negotiated a settlement with him for an amount which he did not claim was unreasonable in the circumstances. The minute of Woolford J, together with the evidence for Barfoot & Thompson Ltd and Mr Charan’s acknowledgments at the hearing on 19 April 2011, confirmed that he was fully cognisant of the terms of the settlement and that he entered into the agreement of his own free will. The decision of the High Court of Australia in Commercial Bank of Australia v Amadio dealt with a quite different

factual situation. The passage in Halsbury’s Laws of England at [712] summarises the law relating to undue influence which has been applied here. The settlement agreement therefore remains valid, binding and enforceable.

[22] This conclusion means that in terms of rule 15.1 of the High Court Rules the application by Barfoot & Thompson Ltd for an order striking out the appeal and the judicial review proceeding should be granted. There is no reason for the appeal and review proceeding to be pursued once they have been settled: Corbett v Bolesworth.[3]

It would be an abuse of the process of the Court to permit them to be pursued.

[23] To enable Barfoot & Thompson Ltd to offer the $1,700 to Mr Charan again and to enable him to accept the payment in settlement, the order striking out the appeal and the judicial review proceeding will not, however, take effect for 14 days from the date of this judgment.

Result

[24] The applications by Mr Charan for an order setting aside the directions made by Wylie J on 8 February 2011 and for a stay of the Papakura District Court decision and a restraining order are dismissed.

[25] The application by Barfoot & Thompson Ltd for an order striking out the appeal and the judicial review proceeding is granted, with the order to take effect

14 days after the date of this judgment.

Costs

[26] Barfoot & Thompson Ltd, as the successful party, is entitled to its costs on a category 2B basis, being the classification fixed by Wylie J on 8 February 2011, with

disbursements to be fixed by the Registrar.


D J White J


[1] Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447 at 461-462; and Halsbury’s Laws

of England (4th ed, reissue, 1998) vol (9)(1) Contract at [712].
[2] Royal Bank of Scotland Plc v Etridge (No. 2) [2002] 2 AC 773 (HL) at [6]-[12].
[3] Corbett v Bolesworth HC Auckland CIV 2005-404-007172, 9 September 2009.


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