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Angius v Salier

Angius v Salier

Case [2015] NSWSC 1446 30 September 2015

Agreement

Stay of Proceedings

Consent

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Angius v Salier [2015] NSWSC 1446
Hearing dates: 28, 29, 30 September 2015
Date of orders: 30 September 2015
Decision date: 30 September 2015
Jurisdiction: Equity
Before: Hallen J
Decision:
See Paragraphs 70 and 71

Catchwords: PRACTICE AND PROCEDURE – Action and cross-claim – Agreement between all counsel representing the parties to resolve the claim and cross-claim – Plaintiff withdraws instructions given after agreement reached – Assertion by Plaintiff that he did not understand proceedings and that agreement procured by duress – No assertion that counsel’s authority exceeded – Plaintiff withdraws instructions to solicitors and counsel – Whether Defendants entitled to have orders made – Entitlement to have orders made as no dispute that binding agreement made by counsel before Plaintiff’s instructions withdrawn – Stay of entry of orders to enable Plaintiff to obtain legal advice – Orders made in other proceedings – Varied by consent of the parties – Orders made but stay of entry
Legislation Cited: Civil Procedure Act 2005 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Ahmed v Chowdhury [2011] NSWSC 893
Ainsworth v Wilding [1896] 1 Ch 673
Bartlett v Coomber [2008] NSWCA 100
Dunwoodie v Teachers Mutual Bank Ltd [2014] NSWCA 24
Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895
Grave v Blazevic Holdings Pty Limited [2012] NSWCA 329
Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235
Howe v Connell [1997] NSWSC 432
Kinch v Walcott [1929] AC 482
Mohtar v Mohtar (1988) 146 LSJS 377
Phillips v Walsh (1990) 20 NSWLR 206
Salier v Angius [2015] NSWSC 853
Category: Principal judgment
Parties: Giovanni (John) Angius (Plaintiff/Cross-Defendant)
Gordon Albert Salier as the Executor of the Estate of the late Laura Angius (Defendant)
Gordon A Salier AM (Cross-Claimant)
Representation:
Counsel:
Mr M Hogg (Plaintiff/Cross-Defendant)
Mr M S Willmott SC (1st Defendant/Cross-Claimant)
Ms V Culkoff (2nd Defendant)
Solicitors:
AKN & Associates (Plaintiff/Cross-Defendant)
Teece Hodgson & Ward (Defendant/Cross-Claimant)

File Number(s): 2011/290751; 2012/396544

Judgment – EX TEMPORE

Introduction

HIS HONOUR: This is the third contested proceeding involving the estate of Laura Angius (“the deceased”), who died on 4 January 2012. The Plaintiff in the proceedings is John Angius, the husband of the deceased at the date of her death. There is evidence that they separated in 2010 (a matter disputed by the Plaintiff). It is clear, however, that no divorce order had been made for the dissolution of their marriage at the date of her death.
The Defendant named in the current proceedings is Mr G A Salier, a solicitor, to whom this court granted Letters of Administration with the Will of the deceased annexed in solemn form, following contested Probate proceedings that I heard and determined in December 2013: see, Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895.
There has been another contested proceeding, determined by Ball J, relating to the construction of the Will of the deceased (Salier v Angius [2015] NSWSC…

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.

Continue reading Angius v Salier

Details

AGLC: Angius v Salier [2015] NSWSC 1446
Case: [2015] NSWSC 1446
Decision Date: 30 September 2015

CaseChat Overview and Summary

The case of Angius v Salier involved a dispute between the parties regarding an agreement reached between all counsel to resolve both the claim and cross-claim. The plaintiff subsequently withdrew the instructions given after the agreement was reached, claiming he did not understand the proceedings and that the agreement was procured by duress. There was no assertion that the counsel's authority was exceeded. The plaintiff also withdrew instructions from his solicitors and counsel. The legal issue before the court was whether the defendants were entitled to have orders made based on the agreement reached by the counsel, despite the plaintiff's subsequent withdrawal of instructions.

The court considered whether the defendants were entitled to have orders made based on the agreement made by the counsel before the plaintiff withdrew his instructions. The court found that there was no dispute that a binding agreement was made by the counsel, and the plaintiff's subsequent actions did not negate the validity of the agreement. The court held that the defendants were entitled to have orders made based on the agreement reached by the counsel. The court also considered the plaintiff's request for a stay of entry of the orders to enable him to obtain legal advice. The court granted a stay of entry to allow the plaintiff to obtain legal advice but ultimately made the orders, which were varied by consent of the parties.

The court's decision was that the defendants were entitled to have orders made based on the agreement reached by the counsel, and the stay of entry was granted to enable the plaintiff to obtain legal advice. The final orders made were varied by consent of the parties, and the stay of entry was lifted, allowing the orders to be enforced. The court's decision highlights the importance of clear communication and understanding between parties and their legal representatives in reaching binding agreements.

Orders