Albany v Albany

Case [2010] NTSC 25


Albany v Albany [2010] NTSC 25

PARTIES:  JOHN PATRICK ALBANY
v
YVONNE KATHLEEN ALBANY

AND

MARJORIE DAWN ALBANY

AND

KEVIN ALEC ALBANY

TITLE OF COURT:  SUPREME COURT OF THE
NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:  NO 7 OF 2009 (20920924)
DELIVERED:  24 MAY 2010
HEARING DATES:  15 & 16 FEBRUARY 2010
JUDGMENT OF:  MILDREN J
CATCHWORDS: 

CONTRACTS – deceased estate – mediation – privilege – was a binding agreement reached? – intention of the parties that the agreement be incorporated into a deed – action for specific performance

Family Provision Act 1982 (NSW)
Family Provision Act, s 7(2), s 8, s 8(1), s 17(1), s 17(3), s 21
Supreme Court Rules, O.48 r.(2), O.48 r.13, O.48 r.13(8), O.48 r.13(16)
Supreme Court of the NT Practice Direction Nos 2 of 2008; 1 of 2009

A Dickey, Family Provision After Death, 1992, Law Book Co; de Groot &

Nichol, Family Provision in Australia, 3rd ed

Masters v Cameron (1954) 91 CLR 353; Sinclair, Scott & Co Ltd v

Naughton (1929) 43 CLR 310; Slee v Warke (1949) 86 CLR 271; applied

Langford v Cleary (No 2) (1998) 8 Tas R 52; distinguished

Admiral Management Services v Para-Protect Europe Ltd [2002] 1 WLR
2722; [2003] 2 All ER 1017 ; Australian Broadcasting Corporations v XIVth
Commonwealth Games Ltd (1988) 18 NSWLR 540; Bartlett v Coomber
[2008] NSWCA 100; Biala Pty Ltd v Mallina Holidays Ltd [1990] WAR 174
; G R Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986)
40 NSWLR 631; Groser v Equity Trustees Ltd [2008] VSC 163; Harris v
Caladine (1991) 172 CLR 84; Moffatt Property Development Group Pty Ltd
v Hebron Park Pty Ltd (unreported (2009) QCA 60; BC200901683);
Oceanbulk Shipping & Trading SA v TMT Asia Ltd [2009] 1 WLR 2416;
Smallman v Smallman [1972] Fam 25; State of Western Australia v Southern
Equities Corporation Ltd (in Liq) (1996) 69 FCR 245; (1996) 142 ALR 597 ;
Taylor v Johnson (1983) 151 CLR 422; Tomlin v Standard Telephones &
Cables Ltd (1969) 3 All ER 201; followed

Barns v Barns (2001) 80 SASR 331; Blunden v Blunden [2008] SASC 286; Coomber v Stott [2007] NSWSC 513; Daebritz v Gandry [2001] WASC 45; Grove v Fisher [2002] WASC 247; Guardian Trust & Executors Co of New Zealand v Public Trustee of New Zealand [1942] AC 115; In the Estate of

Gough, Deceased; Gough v Fletcher [1973] 5 SASR 559; In the Will of
Lanfear (Deceased) (1940) 57 WN (NSW) 181; Legal Practitioners
Complaints Committee v Reyburn [2007] WASAT 29; Lieberman v Morris
(1944) 69 CLR 69; McGrath v Queensland Trustees [1919] St R Qd 169; Re
Burton (Deceased)[1958] QWN 27; Re Lanfear (1940) 57 WN (NSW) 181;
Re S J Hall [1959] SR (NSW) 219; Re Wright [1966] TasSR (NC 1) 287;
Rutter v McCusker…

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AGLC
Albany v Albany [2010] NTSC 25
Case
[2010] NTSC 25
Decision Date

CaseChat Overview and Summary

This case involved a dispute over the distribution of a deceased's estate between the plaintiff, his former spouse, and his children. The plaintiff filed a motion seeking provision to be made for him out of the deceased's estate under the Family Provision Act. The former spouse and children also filed a separate action against the Public Trustee of the Northern Territory, seeking similar relief. The parties attended a mediation, and the plaintiff claimed that he reached a binding agreement with the former spouse to settle his claim. The former spouse denied reaching any binding agreement. The court was required to decide whether a binding agreement was reached between the plaintiff and the former spouse, and if so, whether the court should order specific performance of the agreement.

The court found that a binding agreement was reached between the plaintiff and the former spouse during the mediation, but it was not conditional upon the execution of a formal deed. The court determined that the agreement was subject to the approval of the court and that the parties were obliged to bring the agreement to the court for approval. The court also found that the agreement was not vitiated by mistake or abandonment. The court ordered specific performance of the agreement, subject to certain implied terms, and declined to make final orders at that stage due to the need to consider the claims of the other defendants.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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