Angius v Salier

[2015] NSWSC 1446

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– Entitlement to have orders made as no dispute that binding agreement made by counsel before Plaintiff’s instructions withdrawn – Stay of entry of orders to enable Plaintiff to obtain legal advice – Orders made in other proceedings – Varied by consent of the parties – Orders made but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

1. 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.

2. 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.

3. 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 853), but those proceedings are essentially irrelevant to the issues currently before the court.

The Current Proceedings

4. The Plaintiff filed a Statement of Claim on 2 May 2014. By that Statement of Claim, he sought orders that a number of Deeds entered into with the deceased, as well as Supreme Court Consent Orders made in proceedings involving the deceased, the Plaintiff and their daughter, Jenny Angius, should be set aside. The Plaintiff also sought a family provision order under Chapter 3 of the Succession Act 2006 (NSW) but the court was informed, prior to the commencement of the hearing, that he wished to abandon that claim.

5. By his Defence and Cross-Claim, the Defendant joined issue with the matters pleaded by the Plaintiff, and he asserted the validity of each of the agreements sought to be impugned. By the Amended First Cross-Claim, the Defendant sought orders for the specific performance of two of the Deeds (to the extent each had not been completed by the Plaintiff), as well as consequential relief; in the alternative, he sought specific performance of an Agreement made between the Plaintiff and the deceased (to the extent the same has not been completed by the Plaintiff) and consequential relief; a declaration that the Supreme Court Consent Orders remained operative; in the alternative to the declaration, he sought that 2 trustees be appointed to sell the property situated at Coogee; and, in the alternative, equitable compensation or equitable damages.

6. The Plaintiff joined issue with respect to the matters pleaded in the Amended First Cross-Claim and filed a Defence to it.

7. On 12 February 2015, the proceedings were set down for hearing before me, commencing 28 September 2015, with an estimated duration of 5 days.

8. Subsequently, Robert Angius, the only other child of the deceased and the Plaintiff, made an application, by notice of motion filed on 30 July 2015, that he be joined as the second Defendant in these proceedings. On 11 August 2015, without opposition, the court made an order that he be joined as a party/second Defendant, subject to two conditions, namely, that he would be at risk as to his own costs in that he would pay his own costs of the proceedings unless the court otherwise ordered, and, secondly, that unless the leave of the court was granted, cross-examination by his counsel would be limited to areas not otherwise covered by senior counsel for Mr Salier.

9. There were a number of directions hearings in relation to the preparation for the hearing, the last one being on 11 August 2015, in which directions for submissions were made (with which direction, at the date of hearing, the Plaintiff’s legal representatives had not complied). At that pre-trial directions hearing, the solicitor for the Plaintiff raised an application, by proposed notice of motion, for an order to vacate the hearing dates, but that application was withdrawn before any notice of motion was filed on behalf of the Plaintiff.

The Present Issue for Determination

10. When the hearing commenced, Mr M Hogg of counsel appeared for the Plaintiff; Mr M S Willmott SC appeared for the first Defendant; and Ms V Culkoff of counsel appeared for the second Defendant.

11. After each legal representative announced his, and her, appearance, respectively, the court was informed by counsel that the hearing would not be proceeding because the Plaintiff did not wish to continue with the claims made in the Statement of Claim and that he would consent to almost all the relief sought by the first Defendant in the Cross-Claim. The court was also informed that the only matter outstanding in respect of the Cross-Claim, related to the Plaintiff accounting for rent that had been received from the 3 properties that were to be transferred by the Plaintiff to the Defendant, as administrator of the deceased’s estate. In regard to that rent, the parties were trying to reach an agreement on the quantum, or if agreement could not be reached, an order would be made that accounts should be provided.

12. The following exchanges occurred between the Bench and counsel (at T1.17- 1.24; T2.16-T2.20; T2.27-T2.47; T3.38-T3.44; T4.16-T5.02; and T6.22-T7.15):

“HOGG: In relation to the plaintiff’s claim, in effect that is to be withdrawn.

HIS HONOUR: The whole claim?

HOGG: Indeed, including the provision claim, including the setting aside of the orders. There has been some discussions with my friends for the last seven days or so. We’re just trying to come up with some final terms in the cross claim that deal with the matter in totality and events a little bit further.

…

HOGG: …If my friends are in agreeance - there have been some ongoing discussions that take the matter not only in relation to the issues that are before the Court but some way further. From my perspective - and there’s a little bit of additional time just to finish exploring those and reduce those to a final set of orders if that’s possible.

…

WILLMOTT: I think I can say this. I think it was last week - or the week before last rather - an indication from the plaintiff that it [sic] was not intending to proceed on the statement of claim. The position is that there was also an indication from the plaintiff that they would consent to the principal relief sought by Mr Cilia [sic] in the cross claim. I think it’s fair to say that in relation to the principal relief on the cross claim there is agreement. What is in issue is essentially a question of an account of rents received in relation to three properties which could be transferred to Mr Cilia [sic], or two of them to be Mr Cilia [sic] and one to another beneficiary, as sought in the cross claim.

We didn’t expressly ask - well, we asked for an account in the cross claim. So I think it’s fair to say that there has been a proposal, there is probably agreement, that the statement of claim would be dismissed. There was an agreement about costs. There was agreement about the specific performance in relation to three properties.

HIS HONOUR: The transfer of three properties?

WILLMOTT: The transfer - specific performance of transfer of three properties, effectively from the plaintiff to - two of them to Mr Cilia [sic] and one to a beneficiary Gabrielle.

…

WILLMOTT: But there were orders in relation to the sale of the property at 2 Denning Street. Effectively the parties have agreed that the orders relating to the appointment of trustee should be amended, and the amendment effectively is the identity of the trustees for sale.

HIS HONOUR: That’s all right. I can make an order vacating the earlier order by consent of the parties.

…

WILLMOTT:… I merely say really the central issue is about the account. It was hoped one could get some agreement about a figure, rather than have it referred out to an accountant. That was really where I think my friend is really alluding to. But at the moment the agreement with John, the plaintiff will transmit…

HIS HONOUR: Is this a binding agreement or is it all wrapped up in

WILLMOTT: No, in principle it is binding.

HIS HONOUR: I see.

WILLMOTT: There’s no doubt about that, I don’t think.

HIS HONOUR: Ms Culkoff, do you have anything to add to what has been said so far?

CULKOFF: No, your Honour, other than the process was a slow one. The original indication from the plaintiff was that they would only discontinue the statement of claim, and then I think a week later it was indicated that they would consent to the consent orders. And then there was silence for two days of last week, certainly from my camp. So I was not really in a position to know whether today we would be starting with a full blown hearing or hopefully with the consent orders.

HIS HONOUR: How long do you think you will need?

WILLMOTT: It’s up to my friend, I think.

HIS HONOUR: Have you moved some of the way towards preparing documents or not?

WILLMOTT: Yes. Proposed orders have been sent. There is no dispute on the majority of them. It’s really on this question about the account. If we can get to an agreement, we will. If not, subject to instructions, I suspect we will simply order for an account in relation to the rents received in relation to those three properties.

…

HIS HONOUR: Thank you very much. Now, what do you suggest I do? How long is it going to take to work out this account issue?

WILLMOTT: Well, I don’t know the answer to that.

HIS HONOUR: Mr Hogg, how long do you anticipate? Is Mr John Angius here?

HOGG: He is, your Honour. I can indicate that it is slow going. I would have thought an hour, an hour and a half would probably see us close to being done.

HIS HONOUR: All right. Why don’t I say not before 12 o’clock?

HOGG: Yes.

HIS HONOUR: Then if you’re still proceeding, you can let me know at that time. But what I want to make absolutely sure about is that we’re not going to get to lunchtime or later and find that this matter has to proceed, for one reason or another.

WILLMOTT: Mr Hogg has assured me that’s not the case. It is the issue.

HIS HONOUR: So either an agreement will be reached on quantum or…

WILLMOTT: Or it will have to be an account or some other midway course.

HIS HONOUR: Would you work out who should deal with the accounting issue? It may be that the most appropriate course is to refer it out rather than having the Court--

WILMOTT: Well, that’s another thing.

HIS HONOUR: --deal with an accounting issue. I meant in that it’s fairly straightforward. It’s just a question of income and outgoings.

WILMOTT: One would have thought so but Mr Hogg says his client doesn’t see it in quite the same clear cut light.

HIS HONOUR: I see.

WILMOTT: I think that’s a fair way of putting it.

HIS HONOUR: Mr Hogg, thank you for your assistance so far.”

13. The court agreed to stand the matter down in the List, initially, until 12:00 noon, and then, until 2:00 p.m., to enable a final typed document to be prepared.

14. At about 2:00 p.m., I was informed by Mr Hogg that the Plaintiff had refused to give instructions and that the Plaintiff wished to address the court.

15. When I asked senior counsel for the first Defendant about what stage the first Defendant believed the matter had reached, he maintained that a binding agreement had been reached between the parties. He added that this was demonstrated by the inclusion of an additional term in the typed Short Minutes of Order, which the Plaintiff, himself, had requested.

16. Counsel for the second Defendant confirmed that the second Defendant was of the same view.

17. Whilst I was reticent to allow the Plaintiff to address the court whilst he had legal representation (albeit to whom he refused to give instructions), I thought that a summary of the issue, as I understood it, was appropriate, before hearing from him. The following exchange then occurred at T8.16-T8.43:

“HIS HONOUR: Let me bring you up to date as to what I understand the position to have been. This morning I was informed that subject to one matter, the parties had reached an agreement in regard to the resolution of the case. The matter outstanding related to some accounting in relation to the rent that had been received by you in regard to three properties and there were two alternatives.

One alternative was that you, through your legal representatives and the defendants through their legal representatives, would reach an agreement on the amount of rent to be paid. The other alternative was that an order would be made that a third party would work out from documents that were produced what income had been received and what outgoings there were which would clarify the amount of rent that ought to be paid in accordance with the arrangements that had been reached.

The Court was also informed that you did not intend to proceed with your claim to set aside the various transactions which were the subject of the statement of claim. Now, I think - I’ll clarify, Mr Hogg, have I captured that accurately?

HOGG: Yes.

HIS HONOUR: Mr Wilmott?

WILMOTT: Yes.

HIS HONOUR: Ms Culkoff?

CULKOFF: Yes.”

18. Regrettably, the task of identifying the concerns of the Plaintiff, by allowing him to address the court (a course that Mr Hogg seemed to support), proved no more than a vain hope. At this time, the Plaintiff really did no more than complain about the conduct of the legal representatives of the Defendants in seeking a great deal of money; that he and the deceased had been married for 54 years at the date of her death; and that they had not been separated. He stated that he “wanted to continue with the case because I’m not at fault whatsoever…” (T9.13-T9.14).

19. I shall not encumber these reasons with a recitation of the Plaintiff’s statements from the bar Table which did not seem to go to the question whether what counsel had stated accurately reflected the position.

20. The following exchange then took place at T11.16-T11.41:

“HIS HONOUR: Now Mr Hogg, what do you intend to do?

HOGG: I currently do not have instructions. It may be with a short adjournment I could obtain some and we could commence but at this stage I don’t have instructions.

HIS HONOUR: Mr Wilmott, what’s the position?

WILMOTT: As far as we’re concerned, there’s a binding agreement.

HIS HONOUR: I see.

WILMOTT: The relevant short minutes have been signed by both defendants. They were drawn up in accordance with the express agreement as to the wording by the legal representatives of the plaintiff.

HIS HONOUR: Mr Hogg, what do you say about that?

HOGG: I can indicate that there previously was instructions in relation to the terms that are before you.

HIS HONOUR: I haven’t got any terms, so no terms are before me.

HOGG: The terms that are proposed to be handed up. To be fair, I simply do not have instructions whatsoever at this point to know or advance the matter any further.”

21. Subsequently, Mr Willmott SC added, at T13.34-T13.39:

WILMOTT: So as far as we’re concerned, and I think the second defendant concurs, that all matters in relation to the transfer of the properties, agreement about what the parties have to do insofar as the money is known, that’s a specific sum specified that has to be paid. The amounts that - from the particular period that hasn’t been calculated, that an account will be taken in relation to those. They are relatively small amounts.”

22. I then asked his counsel to explain to the Plaintiff the different alternatives that might be available. I adjourned the matter again, this time for about 25 minutes, to enable Mr Hogg to do so, and also, if possible, to enable him to obtain further instructions, before deciding what step I should then take.

23. Upon my return to the Bench, the following exchanges took place at T14.36-T15.5; T17.12-T18.28:

“HOGG: Your Honour, thank you for that time. I can indicate that I have very limited instructions and I’ve only been able to get them in relation to a specific area.

HIS HONOUR: Yes.

HOGG: It seems that the issue is … that there is agreement in relation to the orders but only on a condition which isn’t agreed by the other parties because of the nature of the agreement. It’s a little bit hard to articulate without your Honour seeing the proposed the orders but in effect there is a very large Westpac loan that my client asserts he has paid out of private funds and there should be a reckoning or an accounting of that back into the pool. My client is after a specific order that, assuming he does provide that documentation then, in effect, that can go back into the pool.

The difficulty is that the documents haven’t been produced and that my friends at the bar table would really find it difficult, in my submission, to be able to agree to an order without some knowledge as to exactly what that looks like. The timeframe that will probably be the key element, as to when those funds, if indeed they were paid, were actually paid on behalf of the deceased.

…

HOGG: Mr Angius’s position is that, well, that was a joint loan, it’s created that there’s joint assets therefore it should be added back into the pool or it should be accountable in some way back to the estate. My understanding, your Honour, it’s not in relation to--

HIS HONOUR: Back into the estate, you mean paid by the estate?

HOGG: Yes, yes.

HIS HONOUR: That does not appear to be any part of the current claim by Mr Angius, is that the position?

HOGG: That is correct, there is nothing in the original pleadings or in the cross claim or the defence for the cross-claim that deals with this issue at all.

HIS HONOUR: Right, okay. Mr Hogg, other than perhaps noting an additional term, for example, that should the estate not indemnify Mr Angius for any part of the claim that he says that he may bring separate proceedings to enforce that claim, is there any problem about the form of the order that has been suggested by Mr Wilmott? Which, I gather, from what he said earlier, was the form of order that you asked for?

HOGG: I think that question has two parts. The first is there is no issue with the form of words. What my client objects to is that it doesn’t give him certainty and, to use his words, the cost of bringing a further application is what concerns him. He is trying to achieve all things perhaps in these proceedings, that the Court may have a view that that may be just impossible. As to the question does the course that has already been negotiated between the parties, with the addition that your Honour has suggested, would that ultimately take care of the issue? In my submission it would. But certainly Mr Angius is pressing today for some totality in the matter, so that he can put that part of his life to rest.

HIS HONOUR: Right. The difficulty about that appears to be that if he had the documents the subject of his claim, it may be possible to achieve that.

HOGG: Yes.

HIS HONOUR: The difficulty is that since he doesn’t, I don’t quite know what I can do other than to, for example, give him the opportunity to take the course that has been suggested and hope that good sense prevails, or if there remains a dispute, since it isn’t part of the proceedings to know quite what to do, other than to note that if agreement can’t be reached on that issue, he will have to commence separate proceedings. The other alternative is that I suppose, because Mr Angius may be concerned, in view of the size of the amount that he says needs to be taken into account, I have no doubt that Mr Cilia (sic) would give an undertaking for example that there would be no distribution of the estate till this issue were sorted out.

So in other words, Mr Angius would be protected that the estate wouldn’t be distributed, and he would then know that in the event that he had to commence separate proceedings, that there were sufficient assets to ensure that to the extent that he’s entitled to recovery, there would be sufficient assets to enable him to receive the amount. Now, obviously it would be in everyone’s interests if everything could be wrapped up today, but clearly that is not possible in light of the fact that there may be a multiple of documents and investigations that would need to be undertaken on both sides to adjust the position. I’m just not sure, Mr Hogg, what else could be done to protect Mr Angius’ position.

HOGG: I can indicate that before we left for the last adjournment, your Honour asked me to explain the totality of the likely outcomes of the various options. I have done that. Indeed, apart from some additions that your Honour has made, they have been canvassed widely with my client. The position I find myself in, that we keep coming back to the Court, probably need to just make that order, that that’s how it will work, or an order that there isn’t the power to deal with the matter today, because Mr Angius hasn’t been accepting necessarily from myself that that is the case.”

24. (The suggestions by the court were made because the different disputes to which I have referred have prevented distributions being made, a matter that was raised by counsel for the second Defendant. In addition, the transfer of one property to Gabrielle, a grandchild of the deceased, which was part of the agreement said to have been reached with the Plaintiff, would also be able to proceed.)

25. It appears from the above that counsel for the Plaintiff accepted that a final and binding agreement to settle the proceedings had been reached. The issue being raised by the Plaintiff was how the claim for reimbursement, from the estate of the deceased, which had not been pleaded as part of the current proceedings, should proceed. The Plaintiff was keen to reach an agreement about that aspect, whilst the first Defendant, not unreasonably, could not agree to that course since he had no knowledge of the precise claims being made by the Plaintiff or their quantum.

26. In view of the fact that I did not have a transcript of the events of the day, and as it was almost 4:00 p.m., I adjourned the matter until 10:00 a.m. yesterday.

27. Following the adjournment, an email was received my Associate (apparently sent at approximately 9:15 p.m. on Monday 28 September 2015) by the solicitor acting for the Plaintiff, which was in the following terms:

“We advise that as of 7pm today our instructions in the current proceedings have been withdrawn.  Mr Hogg will attend to seek leave to withdrawal (sic) from the matter when the it (sic) returns tomorrow.”

28. When the matter proceeded yesterday, the appearances were as they had been. I informed the parties that the email referred to above had been received in my Chambers, whereupon Mr Hogg confirmed that his solicitors’ instructions had been terminated. (His solicitors did not appear at court yesterday.) He then sought the “leave of the Court to withdraw from the matter in circumstances where I simply cannot act without instructions” (T27.26-T27.27).

29. Before dealing with his application to withdraw, the following exchange occurred between the Bench and the Bar table (at T27.29-T28.24):

“HIS HONOUR: Mr Willmott, what’s your application this morning?

WILLMOTT: My application is that orders should be made in accordance with the short minutes.

HIS HONOUR: Do you mean by that I should determine under s 73 of the Civil Procedure Act whether the parties to the proceedings have been - whether the proceedings have been compromised or settled between them and if so on what terms?

WILLMOTT: Mr Hogg would confirm that on his instructions at somewhere between quarter past and half past 12 yesterday he says this to me as counsel and it’s clearly in accordance with mine and I suspect Ms Culkoff’s recollection, that the terms of what has been put into the short minutes had been apparently agreed.

HIS HONOUR: I see. There was an earlier indication to the Court by everybody that an agreement had been reached previously, the only issue being whether or not the issue of accounts should be determined in a particular way.

WILLMOTT: Correct.

HIS HONOUR: And as I understood it, what you’re now saying is that in relation to that aspect of the matter, agreement was in fact reached?

WILLMOTT: Correct. The matter proceeded in this way, that some time

HIS HONOUR: Well just a moment Mr Willmott. I don’t know that I want to go into the detail of that just at the moment. Mr Hogg, I gather from your silence that you don’t demur from what Mr Willmott had told me?

HOGG: Mr Willmott certainly has given an accurate recollection as to what took place. Your Honour will remember yesterday the last instructions that I had and I put before the Court was there is agreement with the orders on the condition that there was an additional payment. That issue became relevant only after there was a general agreement between the parties that orders had been reached.

HIS HONOUR: And I gather that the short minutes of order that were reduced to writing, with the exception of the condition that you’ve indicated, record what the agreement reached between the parties was in relation to the matter without the condition which arose seemingly as you’ve just indicated, after agreement was reached?

HOGG: That’s correct.”

30. I then called upon the Plaintiff, who confirmed that he had withdrawn instructions from the solicitors who had been acting for him and that he was representing himself. He maintained that he “didn’t understand the proceeding” (T30.06) and that he had been subjected to “duress”.

31. Mr Willmott SC then provided me with a form of Short Minutes of Order that, he submitted, reflected the agreement of the parties, which had been signed by the legal representative of each of the Defendants, and which the Plaintiff had refused to sign, or give instructions to his legal representative to sign on his behalf.

32. Mr Hogg confirmed that he had been provided with a copy of the Short Minutes of Order, in each matter, which had been provided to the Plaintiff.

33. Mr Willmott SC submitted that orders in terms of the Short Minutes of Order, in each matter, should be made in accordance with what the parties had agreed upon yesterday. Ms Culkoff, as counsel for the second Defendant, agreed that orders should be made in accordance with the terms of the Short Minutes of Order.

34. The court then raised the question whether a notice of motion should be filed in the proceedings by the Defendants seeking relief under s 73 of the Civil Procedure Act 2005 (NSW): Ahmed v Chowdhury [2011] NSWSC 893, per Slattery J, at [4]; Grave v Blazevic Holdings Pty Limited [2012] NSWCA 329, per Campbell JA, at [3]-[5].

35. Mr Willmott SC submitted that it was not necessary to seek relief under s 73 because there was, in reality, no dispute that the proceedings had been settled between the parties. He relied upon the fact that all counsel had expressly acknowledged the settlement of the proceedings; that there was no dispute as to the terms of the settlement; and that the Short Minutes of Order that had been prepared and signed by counsel for the Defendants, in each case, accurately reflected those terms.

36. It seemed clear, by this time, that there was no reason to require Mr Hogg to remain in court, and he was informed that he could leave at his convenience, the Plaintiff having confirmed that his solicitors’ instructions had been withdrawn. To his credit, whilst he vacated the bar table, Mr Hogg remained in court until the matter was finally adjourned.

37. The continuation of the hearing was made more difficult because of the somewhat stressed state in which the Plaintiff appeared to be. Although I endeavoured to ascertain what the Plaintiff wished to do, he was unable to tell me what he was seeking from the Court. His responses, which could not be fully transcribed, appeared to me to be quite unintelligible. As far as I could glean it, however, it seemed that he wished to continue with the substantive proceedings upon the basis that he did not understand what had transpired and that the agreement that counsel agreed had been reached had been procured by duress. Importantly, at no time did the Plaintiff suggest that his counsel lacked actual authority to bind him to the terms of the Short Minutes of Order that had been prepared.

38. Whilst he made comments critical of counsel for the Defendants, there was no specific conduct, by either, identified, which would suggest any reason to invalidate the agreement that was said to have been reached at a time when the Plaintiff was legally represented. (In this regard, there was no criticism made by Mr Hogg of opposing counsel.)

39. After a short adjournment, I indicated that I proposed to adjourn the matter until 10:00 a.m. today, in order to consider the best way forward, and that, subject to any further argument, I would determine the matter today. I suggested that, perhaps, the Plaintiff should attempt to obtain legal representation so that if there were to be any argument about how the court should proceed, that argument could take place. He stated that he “may ask my lawyer to come here” (T38.31).

40. In fact, there has been no appearance by a legal representative for the Plaintiff today and, again, he has appeared in person.

41. There were some brief submissions made by senior counsel for the first Defendant, which were adopted by counsel for the second Defendant. In addition, Ms Culkoff made submissions opposing any orders that would result in the further delay in the administration of the estate. This submission was made following the Plaintiff’s request for a period longer than 28 days (in fact, until February 2016) for the production of documents identified in Paragraph 23 of the Short Minutes of Order. No submissions were made by the Plaintiff other than seeking an extended period of time to comply.

Determination

42. Section 73 of the Civil Procedure Act provides:

“(1) In any proceedings, the court:

(a) has, and may, exercise jurisdiction to determine any question in dispute between the parties to the proceedings as to whether, and on what terms, the proceedings have been compromised or settled between them, and

(b) may make such orders as it considers appropriate to give effect to any such determination.

(2) This section does not limit the jurisdiction that the court may otherwise have in relation to the determination of any such question.”

43. The Civil Procedure Act defines “judgment” to include “any order for the payment of money, including any order for the payment of costs”: s 3.

44. Section 133(1) of the Civil Procedure Act provides that a judgment or order of the court may not be enforced until it has been entered in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (“the UCPR”).

45. UCPR rule 36.1 provides that at any stage of proceedings, “the court may give such judgment, or make such order, as the nature of the case requires...”

46. UCPR rule 36.1A provides that the court may give judgment, or order that judgment be entered, in the terms of an agreement between parties in relation to proceedings between them.

47. UCPR rule 36.4(1) provides that a judgment or order takes effect (a) as of the date on which it is given or made, or (b) if the court orders that it not take effect until it is entered, as of the date on which it is entered. UCPR rule 36.4(3) provides that the court may order that a judgment or order is to take effect as of a date earlier or later than the date fixed by the earlier sub-rule.

48. UCPR rule 36.11 provides that any judgment or order of the court is to be entered and that unless the court orders otherwise, a judgment or order is taken to be entered when it is recorded in the court’s computerised court record system.

49. UCPR rule 36.15 provides that a judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith. Otherwise, a judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent.

50. UCPR rule 36.16(1) relevantly provides that the court may set aside or vary a judgment or order if a notice of motion for the setting aside or variation is filed before entry of the judgment or order. The court may set aside or vary an order after it has been entered only in limited circumstances: UCPR rule 36.16(2). However, if a notice of motion for setting aside or variation of an order is made within 14 days after it is entered, the court may determine the matter as if the order had not been entered: UCPR rule 36.16(3A).

51. Having regard to the overriding purpose in s 56(1) of the Civil Procedure Act “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”, the court’s duty, under s 56(2) to give effect to that purpose when exercising any power under the Act, and having regard to the nature of the claim in these proceedings and the statements made to the court by counsel, I am satisfied that there is, in fact, no question in dispute between the parties as to whether, and on what terms, the proceedings have been settled between them.

52. It is important to remember what was written by Young J (as his Honour then was) in Howe v Connell [1997] NSWSC 432:

“…it seems to me that, generally speaking, settlements in litigation are intended to be final as soon as the barristers or solicitors involved shake hands - whether they do that physically or notionally over the telephone. The reasonable litigator on the Bondi bus would think that as soon as the legal representatives have reached an agreement as to the principle on which the matter is to be settled then the cause of action has been converted into the new contractual right.”

53. That appears to be precisely the position that was reached here. Counsel for the Plaintiff acknowledged that, whilst he had instructions from the Plaintiff, he had reached a binding agreement with counsel for the Defendants in accordance with those instructions, and also that the Short Minutes of Order which were prepared, recorded the terms of that settlement in each matter.

54. There is no suggestion, by any counsel, that the parties did not intend to be bound immediately on their reaching consensus as to the terms of the settlement, in each matter, and the outstanding matter regarding the methodology for account, which had been identified when the hearing commenced, appears to have been dealt with in the Short Minutes of Order.

55. I am also satisfied that the statements made to the court by counsel were inconsistent with the parties, or any of them, holding the view that the proceedings had not been settled. In this regard, I bear in mind what counsel for the Plaintiff stated during the course of the afternoon on the first day (at T14.42-T15.05):

“It seems that the issue is that there is agreement in relation to the orders but only on a condition which isn’t agreed by the other parties because of the nature of the agreement. It’s a little bit hard to articulate without your Honour seeing the proposed… orders but in effect there is a very large Westpac loan that my client asserts he has paid out of private funds and there should be a reckoning or an accounting of that back into the pool. My client is after a specific order that, assuming he does provide that documentation then, in effect, that can go back into the pool.

The difficulty is that the documents haven’t been produced and that my friends at the bar table would really find it difficult, in my submission, to be able to agree to an order without some knowledge as to exactly what that looks like. The timeframe, that will probably be the key element, as to when those funds, if indeed they were paid, were actually paid on behalf of the deceased.”

56. In this regard, it is useful to remember what was written by Hodgson JA in Bartlett v Coomber [2008] NSWCA 100, at [73]:

“If an agreement to compromise is made, and then one party to that agreement seeks to withdraw from it prior to the making of any orders, it is in my opinion still generally appropriate for the court to give effect to the agreement and to make the agreed orders without the investigation into the facts which would have occurred if no agreement had been made. Otherwise, the agreement would be set at naught. On the other hand, depending on the reasons advanced by the party seeking to withdraw from the agreement, it may be reasonable for the court to consider the underlying facts to a greater extent than would have been the case if both parties had maintained their support for the agreement, in order to determine whether there would be any injustice in giving effect to the agreement.”

57. The court should regard settlement of court proceedings as both a public, and a private, good, which the court should encourage and facilitate if, having regard to the interests of all the parties, it is right and just so to do. In this case, I am satisfied that it is right and just to do so, particularly in circumstances where the administration of an estate is being delayed because of legal proceedings. (I note that the deceased died almost 4 years ago.)

58. Where an agreement is reached with the actual as well as the apparent authority of counsel, the question of whether the agreement is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable, or entitle the party to equitable relief against it. Illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like, provide examples of such grounds.

59. In this regard, it seems to me that the decision of the High Court in Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235, is apt. In that case, the issue was whether the Court’s power to refuse to enter judgment was limited to those circumstances which would render a simple contract voidable, or subject to be set aside in equity, or whether there was a wider ground to refuse to do so in the broad interests of justice. The High Court held that the Court could only refuse to enter judgment on the former grounds.

60. At 243-244, the High Court wrote:

“… in the case of a compromise which is made within the actual as well as apparent authority of counsel a court does not appear to possess a discretion to rescind it or set it aside. The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like. The rule appears rather from positive statements of the grounds that suffice (cf Halsbury’s Laws of England, vol 26, 2nd ed, pp 84, 85); but there is a dictum of Lindley LJ which is distinct enough: ‘… nor have I the slightest doubt that a consent order can be impeached, not only on the ground of fraud but upon any grounds which invalidate the agreement it expresses in a more formal way than usual… To my mind the only question is whether the agreement on which the consent order was based can be invalidated or not. Of course if that agreement cannot be invalidated the consent order is good’: Huddersfield Banking Co Ltd v Henry Lister & Son Ltd (1895) 2 Ch 273, at p 280.”

61. In Mohtar v Mohtar (1988) 146 LSJS 377, at 392, Von Doussa J held:

“... Harvey v Phillips (supra) recognises that where a contract is on foot, the entitlement of a party to equitable relief on grounds such as duress, undue influence, abuse of confidence and the like, may provide the occasion for the exercise of a power to set aside a judgment which embodies the contract...”

62. A contract entered into under duress is voidable, not void: Dunwoodie v Teachers Mutual Bank Ltd [2014] NSWCA 24, per McColl JA, at [55]. It will be for the Plaintiff, as the party alleging duress, to prove it. Similarly, he will have to establish a lack of understanding of the proceedings. Neither task may be easy but, of course, he should be entitled to make such claims if he wishes to.

63. It is also established that the jurisdiction to set aside an order on such a ground should be invoked by a new action brought for that purpose and not by a motion in the original proceedings: see Ainsworth v Wilding [1896] 1 Ch 673 and Kinch v Walcott [1929] AC 482 at 494; compare Phillips v Walsh (1990) 20 NSWLR 206.

64. In relation to the allegation of duress, no facts or circumstances in support thereof were advanced. Moreover, when counsel initially announced that the Plaintiff wished to withdraw his claims in this case, it was the culmination of a long and, no doubt, expensive process. The Plaintiff had clearly spent some time with his solicitors, and had conferred with both senior and junior counsel, giving instructions for the resolution of the proceedings. The Plaintiff, undoubtedly, would have been given legal advice in the weeks prior to the hearing. Without deciding the issue, the circumstances seem to militate against the parties’ agreement being made without an understanding of the proceedings by the Plaintiff or having been procured by duress.

65. The question which I have distilled from the Plaintiff’s comments really goes to whether an asserted lack of understanding of the proceedings, or an assertion of duress, by the Plaintiff, without any evidence, should be seen as a ground for not making the orders that had been agreed upon. Alternatively, either, or both, matters may go to whether the orders intended to carry out the agreement between the parties should be made, but not entered for a period of time, with the Plaintiff to take such steps as he is advised to set aside the agreement upon which the orders have been made.

66. Having considered the matters to which I have referred, and bearing in mind that the Plaintiff, currently, is not legally represented, I am of the view that the court should make orders, in each case, in accordance with the Short Minutes of Order identified as having been agreed. However, those orders should not be entered by the first Defendant, before 10:00 a.m. on 4 November 2015, which period of time (about 35 days), should give the Plaintiff sufficient opportunity to consider what steps he should take, and if so advised, to commence proceedings. In this way, the current proceedings will be essentially concluded, rather than them being continued, and the issues relating to the complaints made by the Plaintiff regarding the settlement of the proceedings and the orders can be agitated separately.

67. If the Plaintiff seeks a further stay of the entry of the orders, the Duty Judge hearing any application, will have an opportunity to consider the strength of the claim that the Plaintiff then makes, based upon precise evidence of the circumstances that he alleges, as well as upon a consideration of any proceedings that the Plaintiff, by then, has commenced, rather than simple assertions from the bar table unsupported by the facts and circumstances relied upon.

68. If the Plaintiff does not seek a further stay of the entry or the enforcement of the orders, the orders that I make may be entered, and enforced, by the first Defendant.

69. I make clear that I have reached no conclusions about the truthfulness of what the Plaintiff has alleged in relation to a lack of understanding or the agreement being procured by duress. Indeed, nothing in these reasons should be taken to mean I am expressing any view on the truth, or otherwise, of his assertions. Nor am I expressing any view about whether the Plaintiff should bring any proceedings and/or, if those proceedings are brought, whether they would be successful.

70. In proceedings, 2012/396544, the Court:

1.   Makes a declaration in terms of Paragraph 1 of Short Minutes of Order dated 28 September 2015 signed by the legal representative of each of the Defendants.

2.   Notes the agreement of the Cross-Claimant in Paragraph 12 of the Short Minutes of Order.

3.   Notes the agreement of the Cross-Defendant set out in Paragraphs 2, 18, 22 and 23 of the Short Minutes of Order.

4.   Orders in terms of Paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 13, 15, 19, 24, 25 and 26 of the Short Minutes of Order.

5.   Notes the agreement of the parties in Paragraphs 11, 14, 16, 17 and 21 of the Short Minutes of Order.

6.   Makes no order as to costs of the Plaintiff/Cross-Defendant of the proceedings to the intent that he will bear his own costs.

7.   Makes no order as to the costs of the second Defendant, to the intent that he will bear his own costs of the proceedings.

8.   Orders that the orders shall not be entered before 10:00 a.m. on 4 November 2015.

9.   Orders that to the extent that any order refers to “a number of days from the date hereof”, it is to be taken to read “[that number] of days of the date from the entry of the orders”.

10.   Orders that the time for the provision of the evidence identified in paragraph 23 of the Short Minutes of Order be extended until 29 January 2016.

71. In proceedings, 2011/290751, the Court:

1. Orders, pursuant to UCPR rule 7.10(2)(b), that Gordon A Salier as administrator of the estate of the Plaintiff be appointed to represent the Plaintiff’s estate in these proceedings.

2.   Orders that service of an amended Summons be dispensed with.

3.   Orders in terms of Paragraph 1 (excluding order 2.1.7) and Paragraph 2 of Short Minutes of Order dated 28 September 2015 signed by the legal representative of each of the parties.

4.   Orders that the orders shall not be entered before 10:00 a.m. on 4 November 2015.

5.   Orders that the costs of the administrator calculated on the indemnity basis be paid out of the estate of Laura Angius.

6.   Makes no order as to the costs of the second Defendant to the intent that he will bear his own costs of the proceedings.

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Amendments

21 October 2015 - Solicitor acting for Plaintiff/Cross-Defendant corrected on Coversheet

Decision last updated: 21 October 2015