Atchison v Holloway; Holloway v Atchison

[2024] NSWSC 1523

Supreme Court

New South Wales

Medium Neutral Citation:	Atchison v Holloway & Anor; Holloway & Anor v Atchison [2024] NSWSC 1523
Hearing dates:	20 November 2024
Date of orders:	20 November 2024
Decision date:	20 November 2024
Jurisdiction:	Common Law
Before:	Faulkner J
Decision:	See [31] – [32]
Catchwords:	CONTRACTS – possession of land – family provision – settlement of all issues agreed to at mediation – one party subsequently refused to consent to agreed orders – s 73 of the Civil Procedure Act 2005 – no point of principle
Legislation Cited:	Civil Procedure Act2005 (NSW), ss 56, 73
Cases Cited:	Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 567
Category:	Principal judgment
Parties:	Lorraine Ann Atchison (First Plaintiff in Possession Proceedings; First Defendant in Family Provision Proceedings) Jennifer Ada Richards (Second Plaintiff in Possession Proceedings; Second Defendant in Family Provision Proceedings) Noelene Joan Holloway (Defendant in Possession Proceedings; Plaintiff in Family Provision Proceedings)
Representation:	Counsel: T Catanzariti (Defendant in Possession Proceedings; Plaintiff in Family Provision Proceedings) Solicitors: Self-represented (Plaintiffs in Possession Proceedings; Defendants in Family Provision Proceedings) Reid Lawyers (Defendant in Possession Proceedings; Plaintiff in Family Provision Proceedings)
File Number(s):	2024/00035678; 2023/00440607

EX TEMPORE JUDGMENT (REVISED)

1. HIS HONOUR: Two sets of proceedings are before the Court today, the first of which are proceedings brought by Noelene Joan Holloway against Lorraine Ann Atchison and Jennifer Ada Richards. Ms Atchison and Ms Richards are the executors of the estate of Joan Singline who passed away on 15 May 2023. The three parties are sisters and the daughters of Ms Singline.

2. The first set of proceedings is a family provision proceeding in which Ms Holloway seeks orders in relation to Ms Singline's estate.

3. The second set of proceedings is a proceeding brought by the executors of Ms Singline's estate in which they seek an order for possession of property located at Hamlyn Terrace (the Deceased’s Property). The Deceased’s Property is currently occupied by Ms Holloway. Ms Singline was, until she passed away, the registered proprietor of the property and the executors are now the registered proprietors.

4. On 27 May 2024 a Court annexed mediation occurred in relation to both sets of proceedings. On that occasion an agreement was allegedly reached by which both sets of proceedings were to be entirely resolved. The performance of that agreement has not occurred and as a result there are two Notices of Motion before the Court.

5. The first Notice of Motion was filed by the executors on 31 July 2024 and amended on 19 August 2024 seeking orders to enforce the settlement agreement.

6. The second Notice of Motion dated 26 July 2024 and filed in Court on 31 July 2024 is brought by Ms Holloway in which she contends that the Possession Proceedings are an abuse of process and ought be stayed pending the determination of the Family Provision Proceedings. The only issues of substance to be decided today are:

1. whether an agreement was reached at the mediation on 27 May 2024;

2. whether in any way that agreement is vitiated; and

3. if not, what orders ought to be made to give effect to the agreement.

7. If these issues are decided in favour of the executors, Ms Holloway’s Notice of Motion falls away.

Background

8. In 2009 Ms Holloway moved in with her parents at the Deceased’s Property whereafter she lived and provided care for her ageing parents. Her father died in January 2018.

9. On 19 August 2022, Ms Singline made a Will in respect of which the executors subsequently made an application for probate. It is not necessary to address the details of the Will other than to say that, in accordance with good practice, it is simple and divides the estate into five equal shares as between Ms Holloway and her four sisters, two of which are the executors.

10. Joan Singline passed away on 15 May 2023.

11. On 6 September 2023 there was a grant of probate to the executors in relation to the Will dated 19 August 2022. On 5 December 2023, Ms Holloway commenced the Family Provision Proceedings in which the executors are the defendants. On 11 December 2023 the executors formally appeared as defendants in those proceedings.

12. On 29 January 2024, the executors commenced the Possession Proceedings. On 27 February 2024 Ms Holloway filed a Defence to the Possession Proceedings. It is not necessary to deal with the minutiae of the Defence other than to note that it contains a number of allegations from which it is not entirely clear the basis upon which Ms Holloway contends she is entitled to resist giving possession of the Deceased’s Property to the registered proprietors. Nonetheless, the Defence refers to the extant Family Provision Proceedings. There are also references to a licence to live at the Deceased’s Property, to propriety estoppel and to the undeniable hardship to which Ms Holloway will be exposed if required to give possession of the property especially because of the 29 greyhounds which Ms Holloway owns and houses at the property.

13. On 27 May 2024 the Court annexed mediation occurred for both proceedings. Ms Holloway attended the mediation and was represented by counsel and the solicitor who was retained by her at that time. It is not necessary to address the detail of the events which occurred at the mediation. At the end of the mediation a four page handwritten document was signed by Ms Holloway and by each of the executors who also attended the mediation together with counsel and an instructing solicitor. This four page handwritten document is the document which the executors contend constituted an agreement to settle the entirety of the dispute between them and Ms Holloway.

14. The form of the handwritten four page document is two sets of orders, the first of which refer to and contemplate orders being made in the Family Provision Proceedings (three pages) and the second of which refer to and contemplate orders being made in the Possession Proceedings (one page).

15. On 29 May 2024 orders styled "Consent Orders" were prepared for each set of proceedings which faithfully set out the terms of the handwritten document signed by the parties at the conclusion of the mediation. On the same date both sets of consent orders were signed by solicitors acting for each of the parties including the solicitor still at that point retained by Ms Holloway. Both sets of proceedings were shortly thereafter listed before a Registrar of the Court at which counsel for Ms Holloway appeared, mentioned the appearance of the other parties and sought to have the Consent Orders made by the Court. Unfortunately, the Registrar was not willing to make the orders, taking the view that the order sought in relation to possession of the Deceased’s Property was technically deficient. It appears that a revised set of consent orders was subsequently prepared to address the technical matter raised by the Registrar but those orders have never been signed and they have not been made by the Court.

16. On 1 June 2024 Ms Holloway made a post on social media which contained the following text:

"So I've had to pay a Solicitor/Barrister to get mum's wishes. I've been here 12 months and I have agreed to now move in ten months' time. So I nearly got what mum wanted (less two months) of which I'm really thankful. It was just never mum's wishes that I would have to pay expensive legal fees for the two years but so be it (their legal fees are paid out of mum's estate of course).”

17. On 31 July 2024 both sets of proceedings came back before the Court on which occasion the two Notices of Motion currently before the Court were filed as indicated above. The Notice of Motion filed by the executors effectively sought orders specifically to enforce the settlement agreement, and the Notice of Motion filed on behalf of Ms Holloway sought to have the Possession Proceedings stayed as an abuse of process pending the resolution of the Family Provision Proceedings. Two weeks after that date the solicitor which had hitherto acted for Ms Holloway ceased acting for her in both proceedings.

18. On 19 August 2024 the executors filed an Amended Notice of Motion.

19. The executors in support of their Notice of Motion filed two Affidavits by Ms Atchison, one of the executors, which are confined. They deal directly with the entry into the settlement agreement on 27 May 2024.

20. In opposition to the executors' motion, Ms Holloway filed an Affidavit which sets out in some detail the history of her family since 2009. It is not necessary to address the detail of the material in that Affidavit, all of which I have read and taken into account. Some of the matters addressed in the Affidavit include Ms Holloway living with and caring for her ageing parents, the breeding and racing of greyhounds, and a number of hurtful incidents within her family over the last 15 years or so.

21. The Affidavit contains limited material about the mediation, but it makes clear that the mediation was attended by Ms Holloway with a barrister and a solicitor. Ms Holloway says that at the mediation she felt pressured to compromise, that she did agree to a compromise but only reluctantly, and that the question of payment of costs was not discussed but some other matters were discussed: Namely, a particular item of jewellery, items in a glass cabinet, photo albums, and the ashes of Joan Singline.

22. There is no dispute on Ms Holloway's evidence that a settlement agreement was produced and that she signed it at the end of the mediation. Ms Holloway says that having signed the settlement agreement, she thought it was "a done deal", from which I infer that, subjectively, she intended the agreement to be final and binding at the time she signed it. The fact that it is contained in a document and has been signed by all parties means that, objectively, that is so.

23. Ms Holloway in her Affidavit and in submissions to the Court explains that she subsequently came to consider that the terms of the agreement were unfair. Particularly, she is concerned that the agreement is not what her mother wanted, particularly in relation to the time that she would have in the property and in relation to bearing her own costs. She also states that she was under a lot of pressure at the mediation, and I certainly accept that was so. Although the evidence does not deal explicitly with the nature of the pressure, it is well known that mediations can be extremely stressful for participants and that they can feel under pressure to resolve a dispute. That this mediation was no different is apparent from the evidence of Ms Atchison who also attended the mediation and has also explained that she too was unhappy with the outcome achieved. Ms Holloway refers to the time and money and stress that she has had to expend dealing with this controversy since her mother died, and I certainly accept that it has been a very stressful time for Ms Holloway. Finally, Ms Holloway has expressed concern for the restoration of her family in circumstances where she is concerned that if she does not obtain justice in relation to the settlement agreement, then restoration will be problematic.

24. On the basis of the evidence and having regard to the objective theory of contract which applies in Australia there is no doubt that on 27 May 2024 the parties entered into an agreement finally to resolve all controversies between them as arising in the Family Provision Proceedings and the Possession Proceedings. The signatures on the page are decisive. An agreement was reached and it is enforceable in accordance with its terms.

25. I have considered carefully Ms Holloway's submissions and the evidence that she relies upon in support of them. There is no reason shown by Ms Holloway to depart from the promises which have been exchanged between her and the executors as set out in the agreement. I understand Ms Holloway's perception of unfairness but this is a Court of law and that perception alone does not provide a basis for departing from the settlement agreement. I also have observed from the Affidavit of Ms Atchison that she too is less than happy with the agreement which has been reached.

26. The agreement is in the form of orders to be sought from the Court in each of the proceedings. A question of construction arises as to exactly what the parties have agreed to. There are two things I need to say about that:

1. First, as a matter of commonsense the parties should be taken to have intended objectively to seek orders substantially in the form of those set out in the agreement, with the result that a change in the orders to address the technicality raised by the Registrar is within the terms of what the parties agreed in the settlement agreement; and

2. Secondly, in every agreement there is an implied term that the parties will do all things necessary to ensure that the other party gets the benefit of the bargain: see Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 567 at 609 (Mason J).

27. Having agreed to orders in accordance with the document which constituted the settlement agreement, all the parties are obliged to do anything necessary to ensure orders substantially in accordance with those terms are made by the Court including executing a document which addresses any technical deficiency subsequently identified by a Registrar of the Court.

28. In those circumstances, the application made by the executors for relief under s 73 of the Civil Procedure Act2005 (NSW) falls for consideration. Section 73 of the Civil Procedure Act provides:

73    Power of court to determine questions about compromises and settlements

(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.

29. The purpose of s 73 is clear: to permit the Court to take steps to enforce agreements to settle proceedings before the Court. The power of the Court in s 73 is to be exercised having regard to the overarching purpose of the Civil Procedure Act as set out in s 56(1): to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Subject to the precise terms of the orders to be made, in this case the power under s 73 is to be exercised by making orders today in accordance with the consent orders that were previously prepared and based on the terms of the agreement made on 27 May 2024. In view of the attitude taken by the Registrar on a previous occasion some amendment is required although not in a way which alters the substance of what was agreed upon by the parties.

30. In view of my finding and the orders I am about to make, the Notice of Motion brought by Ms Holloway seeking to have the Possession Proceedings stayed as an abuse of process pending the outcome of the Family Provision Proceedings falls away and that Notice of Motion is to be dismissed.

31. Therefore I make the following orders in the Possession Proceedings:

1. Judgment for possession of the property at 546 Pacific Highway, Hamlyn Terrace (Deceased’s Property) for the plaintiff on and from 15 March 2025.

2. Order that the defendant vacate the Deceased's Property and give vacant possession of the Deceased's Property on 15 March 2025.

3. Grant leave to the plaintiffs to apply for a writ of possession on terms that the writ of possession is to lie in the registry and not be exercised until seven days after 15 March 2025.

4. The Court notes the agreement of the parties that the defendant consents to indemnify the plaintiffs for any costs to enforce the writ of possession and for it to be deducted from the defendant's share of the estate of the late Joan Singline (Deceased) and paid from the proceeds of sale of the deceased's property.

5. No order as to the defendant's costs with the intent that she bear her own costs.

6. Order that the plaintiffs' costs are payable from the Deceased's estate on the indemnity basis.

7. Grant the parties liberty to apply on three days' notice.

8. The defendant's notice of motion dated 26 July 2024 and filed in Court on 31 July 2024 is dismissed.

32. In the Family Provision Proceedings, I will make the following orders:

1. In addition to the provision for the plaintiff in the Will of the late Joan Singline (Deceased) dated 19 August 2020, order pursuant to s 59 of the Succession Act that the plaintiff have a right to reside on the property at 546 Pacific Highway, Hamlyn Terrace (Deceased’s Property) for a period of 22 months from the date of the Deceased's death being until 15 March 2025.

2. No order as to the plaintiff's costs with the intent that she bear her own costs.

3. Order that the defendants are entitled to their costs from the Deceased's Estate on an indemnity basis.

4. The Court notes the associated proceedings of Lorraine Ann Atchison and Jennifer Ada Richards v Noelene Joan Holloway 2023/35678.

5. The Court notes the agreement of the parties that the plaintiff will make the ashes available to the defendants and which shall be collected by Jennifer Richards to facilitate the interment of the ashes.

6. The Court notes the agreement of the parties that the items in the glass cabinet as they are boxed to be collected by Jennifer Richards within 14 days of the date of these orders to be distributed by the defendants to the beneficiaries and if there is no agreement the items will be valued and distributed as part of the beneficiaries' share and selected on the roll of a dice.

7. The Court notes the agreement of the parties that Jennifer Richards will collect any photograph albums to be distributed by the defendants, and Jennifer Richards will collect Carole's photograph albums to be given to Carole.

8. The Court notes the agreement to keep the deceased's property in reasonable condition and any items that are not removed when she vacates the deceased's property are deemed abandoned and can be disposed of by the defendants at their discretion.

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Decision last updated: 28 November 2024