Barratt v Rees
[2014] VSCA 327
•11 December 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2013 0171
| JOANNE MAREE BARRATT | Appellant |
| V | |
| EVAN MORRIS REES and CERIDWEN MARY FORAN | Respondents |
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| JUDGES: | NEAVE and KYROU JJA and GINNANE AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 21 October 2014 |
| DATE OF JUDGMENT: | 11 December 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 327 |
| JUDGMENT APPEALED FROM: | Barratt v Foran [2013] VSC 420 (McMillan J) |
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WILLS AND ESTATES – Probate dispute – Terms of Settlement – Allegations that defendants had misappropriated estate assets – Summary procedure to enforce Terms of Settlement – Whether trial judge erred in ordering that terms be enforced by use of summary procedure.
PRACTICE AND PROCEDURE – Enforcement of Terms of Settlement – Whether summary procedure appropriate.
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| APPEARANCES: | Counsel | Solicitors |
For the Appellant | Mr A T Schlicht | Dunemann Sutherland Pty |
| For the Respondents | Mr S P Newton | Wills and Probate Victoria Lawyers |
NEAVE JA:
KYROU JA:
GINNANE AJA:
This appeal is from the judgment of a trial division judge by which it was ordered that the appellant pay the sum of $710,000.00 plus the sum of $31,162.19 interest, by 4 November 2013, to the respondents’ solicitors, to be held in an interest-bearing account pending the determination of any appeal.[1] The sum of $710,000.00 was found to be payable by the appellant to the respondents pursuant to terms of settlement that they had signed.
[1]Barratt v Foran [2013] VSC 420 (‘Reasons’).
The background to the respondents’ summons, on which the orders were made, is described in her Honour’s judgment as follows:
This proceeding was commenced because the plaintiff and the defendants disagreed as to whether the will of Paul Mason Hodges (‘the deceased’) made in 1980 (‘the penultimate will’) or an informal will purported to be made in 2007 (‘the informal will’), should be admitted to probate and thus govern the distribution of the estate of the deceased.
On 14 September 2012, the plaintiff and the defendants executed Terms of Settlement (‘the Terms of Settlement’) whereby the parties agreed, among other things, that Letters of Administration with the informal will annexed would be granted to the plaintiff and that the plaintiff would pay the defendants the sum of $710,000 out of the estate within six months of the grant.
Letters of Administration with the informal will annexed were granted to the plaintiff on 15 November 2012. Under the Terms of Settlement, the payment of $710,000 was due to be paid by the plaintiff on 16 May 2013. The plaintiff has failed to pay this amount.
The plaintiff’s reason for her failure to pay the amount is that the defendants have misappropriated a number of valuable items which belonged to the deceased. She alleges that the defendants took these items from the home of the deceased in Brighton East.
By summons, the defendants seek orders that the plaintiff comply with the Terms of Settlement.[2]
[2]Reasons [1]–[5].
The appellant, Joanne Maree Barratt, was the sole beneficiary under the will of Paul Mason Hodges (‘the deceased’) dated 13 August 2007. She was a friend of the deceased and had a son with him as a result of their relationship.
The respondents had sought to propound a will of the deceased made in 1980. The second respondent, Ceridwen Mary Foran, was the second cousin of the deceased. The respondents were joined as defendants to the proceeding by order of the Court.
The respondents’ summons was supported by two affidavits of Ms Foran. The appellant swore three affidavits in opposition to the summons and relied on an affidavit of Jesse Barratt, who is the son of her relationship with the deceased, and an affidavit of Anthony Rickards, who was a friend of the deceased. Mr Jeffrey Dunemann, who is the solicitor for the appellant and who, on 21 December 2012, was appointed the administrator ad colligendum bona of the estate of the deceased, also swore two affidavits.
The Terms of Settlement
The Terms of Settlement were dated 14 September 2012 and recited that the deceased died on 2 September 2011, that his last will was dated 13 August 2007 and that the appellant had sought probate of that will. They also recited that the respondents had sought to propound a will of the deceased dated 20 February 1980. They then recited and stated:
With the consent of the beneficiaries under the penultimate will (‘the other beneficiaries’), the Defendants and the Plaintiff have agreed to settle the said claims upon the terms and conditions hereinafter set forth.
It is agreed as follows
1.Letters of Administration with Will annexed with the deceased’s will dated 13 August 2007 will be granted to the plaintiff, Joanne Maree Barratt.
2.In the course of administering the deceased’s estate as provided in the will it is agreed that the plaintiff will administer the estate as follows:
(a)she will pay the sum of $710,000 to the solicitors for the defendants to be divided amongst the defendants and the other beneficiaries as they have agreed;
(ai)the estate shall pay to McKean & Park the sum of $6,813.20 referred to in their letter dated 25 July 2011 attached hereto;
(b)the said sum shall be so paid at the expiration of 6 months from the date of the granting of letters of administration (‘the date of distribution’);
(c)the estate shall otherwise be distributed in accordance with the will.
Clauses 5, 6 and 7 of the Terms of Settlement contained releases in the following terms:
5.The plaintiff and the defendants and the other beneficiaries each agree to accept the distributions set out in Paragraph 2 hereof:
(a)in the case of the defendants and the other beneficiaries in full settlement of any future claim pursuant to the provisions of Part IV of the Administration and Probate Act 1958 for provision to be made for their maintenance and support out of the estate of the deceased; and
(b)in the case of all parties and the other beneficiaries, except as provided herein in full satisfaction of all other claims or rights which they or any of them had, now have, or may hereafter have against the estate of the deceased or to participate in the distribution of the estate of the deceased, or in any other way whatsoever.
6.(a) The plaintiff agrees that upon the distribution referred to in paragraph 2 being made she will thereupon release and forever discharge the defendants from all actions claims and demands which she had, now have, or may hereafter have, and which are described in Paragraph 5 hereof; and
(b)the defendants and the other beneficiaries agree that upon the distribution referred to in paragraph 2 being made they will thereupon release and forever discharge the plaintiff (and the estate) from all actions claims and demands which they had, now have, or may hereafter have, arising out of or in connexion with the estate of the deceased.
7.The defendants and the other beneficiaries will rely upon their rights under these Terms of Settlement in substitution for and in satisfaction of any cause of action they may have against the estate of the deceased.
The Terms of Settlement contained a handwritten schedule of two paragraphs. The first dealt with the disposition of the ashes of the deceased. The second dealt with the chattels and other belongings of the deceased held by the appellant’s solicitors and their distribution, including a gramophone, a porcelain pot and a painting. The second paragraph stated:
The chattels and other belongings of the deceased held by the plaintiff’s solicitor shall be distributed:
(a)the gramophone and porcelain pot and painting of Buffalo River (if there) shall be made available for collection by the defendants;
(b)the plaintiff and then the defendants may select such items as they shall desire after which the balance will be disposed of.
The Terms of Settlement were signed following a mediation at which the parties were represented by legal practitioners. The Terms were signed by the appellant and the respondents for or on behalf of other beneficiaries under the 1980 will as well as by other beneficiaries.[3]
[3]The Terms of Settlement were signed by the second respondent on behalf of a number of beneficiaries including the children of Christine Hardy and the children of Roberta and Trevor Rees. They were also signed by Peter Graham on his own behalf and on behalf of Susan Graham.
The use of the summary procedure
The respondents’ application was brought by summons in the existing probate proceeding. Although there were some initial suggestions in the submissions advanced on appeal that the respondents may have been seeking summary judgment in the manner now permitted by s 63 of the Civil Procedure Act 2010 and r 23 of the Supreme Court (General Civil Procedure) Rules 2005, it is clear enough, as the parties accepted, that the respondents’ summons invoked the Court’s summary procedure to enforce terms of settlement.
The first ground of appeal is that the learned judge erred in entertaining the respondents’ application in the probate application commenced by the appellant, rather than requiring that it be commenced in a separate proceeding. A related ground of appeal is ground 5(a) that the orders made should not have been made because it was not known to the Court who the beneficiaries under the will propounded by the respondents were, who was entitled to receive the $710,000.00 and in what proportions, and whether any were minors and incapable of giving a receipt. That argument was not pressed on appeal.
The summary procedure to enforce terms of settlement was described in detail by Smith J in Roberts v Gippsland Agricultural & Earth Moving Contracting Co Pty Ltd.[4] His Honour identified ‘certain rather vaguely defined rules of practice’, including:
(a)The Court would ordinarily leave a party to proceed by separate bill if the agreement involved matters extraneous to the suit compromised. And it regarded an agreement as falling within this general category, (i) if it dealt with property as to which no question was raised in the suit, or (ii) if it provided for things to be done which went beyond the ordinary range of what the Court would order in such a suit, or (iii) if its enforcement involved giving effect to equities of a different nature from those involved in the suit, or (iv) if there were parties to the agreement who were not parties to the suit.
(b)On the other hand in cases not falling within this first general category the Court would ordinarily enforce the agreement in the suit compromised. In particular this was so if the agreement related solely to the conduct or prosecution of that suit, or to the staying or dismissal thereof, or to the granting of the whole or part of the relief claimed therein or to the doing of that which the suit was brought to enforce.
(c)For the purpose of deciding which of these two general categories a case fell within, the Court did not look merely at the particular obligations sought to be enforced. It looked also at the obligations of the applicant, so far as justice required that the application should not be granted without ensuring that they too would be performed. But it would disregard altogether obligations already fully performed. It may be observed that in order to ensure the performance of obligations by the applicant the Court could make an order conditional upon such performance.
(d)If there was a substantial question to be determined as to what were the terms of the agreement, or as to whether it was valid or specifically enforceable, as for example where a substantial case was put forward of material mistake or of other circumstances such as would afford a defence to a suit for specific performance, a party would ordinarily be left to proceed by separate bill so that the matters raised might be fully investigated.
(e)The fact that the only outstanding obligation under the agreement of compromise was one for the payment of an ascertained sum of money did not preclude the Court from enforcing the agreement in the suit. …[5]
[4][1956] VLR 555 (‘Roberts’); see also O’Brien v O’Brien & Nicholls Pty Ltd [2001] VSC 411, [25] (Warren J).
[5]Roberts [1956] VLR 555, 562–3 (citations omitted).
His Honour also stated:
In deciding whether justice can be done under the summary procedure the Court, of course, needs to consider a variety of matters involving questions of degree. These, I think, must include the extent to which extraneous matters are involved, how substantial are the questions to be determined, to what extent questions of credibility are likely to arise, and whether pleadings and discovery may be desirable.[6]
[6]Roberts [1956] VLR 555, 564.
The authorities were also considered in Seachange Management Pty Ltd v Pital Business Pty Ltd,[7] where Maxwell P and Nettle JA stated:
In summary, therefore, the net effect of the authorities to this point seems to be that, although the power summarily to enforce a compromise is discretionary and is wider now than once was the case, it is not to be invoked unless the court is ‘clearly satisfied that justice can be done’; and whether justice can be done is a question of degree. Consistently with the equitable origins of the power, one must weigh among other competing considerations the extent to which enforcement would involve extraneous matters, how substantial the questions to be determined as a precursor to enforcement may be, and procedural considerations like the desirability of pleadings and discovery and substantial cross-examination.[8]
[7](2009) 23 VR 396 (‘Seachange’).
[8]Seachange (2009) 23 VR 396, 408 [40].
Their Honours accepted that the decision whether to allow the use of the summary procedure involved the exercise of a discretion. The mere fact that the appeal court might take a different view from that of the judge below is not a ground of appellate intervention.[9]
[9]Seachange (2009) 23 VR 396, 413 [56], citing House v The King (1936) 55 CLR 499, 504–5 and Norbis v Norbis (1986) 161 CLR 513, 518.
The authorities, such as Roberts[10] and Seachange,[11] discuss the case where the party seeking to enforce a compromise still has to perform an executory obligation that it agreed to perform under the compromise. In contrast, in this case, the respondents who seek to enforce the Terms of Settlement claim that they have performed their obligations under the Terms and have thereby benefited the appellant and seek to enforce the Terms by requiring the appellant to perform obligations that she agreed to perform under the Terms that will benefit them.
[10][1956] VLR 555.
[11](2009) 23 VR 396.
The Terms of Settlement have been implemented in a number of respects. Letters of administration of the 2007 will were granted to the appellant on 15 November 2012. She has sold the deceased’s real estate, which includes a country shop, a house in East Brighton and a block of six units in Kew, for substantial sums of money. The assets of the estate realised $3,740,929.89.
The respondents and other beneficiaries under the 1980 will have also acted on the basis that the Terms of Settlement would be observed. They have not made claims for provision out of the estate of the deceased under s 91 of the Administration and Probate Act 1958.
The appellant’s opposition to the use of the summary procedure
The question of whether the summary procedure should have been used involves, as the Court of Appeal stated in Seachange,[12] questions of degree including procedural considerations like the desirability of pleadings and discovery and substantial cross-examination.
[12](2009) 23 VR 396.
Counsel for the appellant argued before her Honour that the respondents’ application for summary judgment should be dismissed, the parties should be ordered to attend another mediation and, if that failed, the matter should be set down for trial.[13] There was no clause in the Terms of Settlement entitling the parties to move for judgment upon default by a party of the performance of their obligations under the Terms. Counsel submitted that the case was appropriate for pleadings and that the appellant would be able to rely on a defence of unilateral mistake.
[13]Reasons [6] and Transcript of Proceedings, Barratt v Foran (Supreme Court of Victoria, S PRB 2011 13287, McMillan J, 26 July 2013) 3.
Grounds 2 to 4 of the Notice of Appeal dealt with the judge’s finding that the appellant did not believe that various valuable items formed part of the estate of the deceased when the Terms of Settlement were executed.
We turn next to these issues because they have an impact on whether this was an appropriate case for the use of the summary procedure. This in turn involves consideration of the evidence that was before her Honour.
The appellant’s case was that at the time she entered into the Terms of Settlement she believed that the deceased’s estate included various valuable items of personal property, including sums of cash, whereas in fact those items had disappeared and she suspected the respondents of taking them. She swore that she purchased large plastic tubs and during the last year or so of the life of the deceased they went through the chattels and belongings contained at his home and packed them into the tubs. They were held in safe storage until after the mediation and she later found that they did not contain what she thought they contained.
The appellant gave evidence that she last saw the deceased in August 2011, about 10 days before his death, and was aware that the valuable items had not been disposed of. She spoke to the deceased thereafter nearly every day until his death. He never told her that anything had been removed or stolen. She gave evidence that the valuable items he had in the Brighton home included jewellery that had belonged to his mother and a 1930 penny. In correspondence, she identified the valuable items as including memorabilia items collected from world trips; a 1930 penny, which was estimated to be worth $750,000 minimum; a ring; a stamp collection; a wine collection; a pearl necklace and earrings; wedding, engagement, eternity rings and other pieces; a coin collection; a watch; items of furniture; and the deceased’s mother’s ashes. She did not say how long before the deceased’s death she had seen those items.
The appellant stated that in October or November 2011, she went to the deceased’s Brighton home and noticed that a large sign had been placed on the front door stating ‘KEEP OUT’. She discovered by looking through the windows that everything had been removed other than a few pieces of heavy furniture and rubbish. She noticed that the outside garden was overgrown and untidy and that the grille and front bumper bar of the deceased’s motorcar had been ripped off, apparently when someone had tried to move it.
The appellant stated that about 10 days after the death of the deceased, some friends in Melbourne, whom she did not name, advised her that the respondents were removing items from the deceased’s home and had started doing this the morning following his death. She rang Mr W Jonas, the executor of the deceased’s 1980 will, who advised her that he had not been to the house and had not instructed anyone to go anywhere near it. She telephoned the police and requested that they attend the deceased’s Brighton home and tell anyone present that they had no right to be there or to remove anything from the property.
Mr Dunemann stated that on 21 December 2011, the day that he was appointed administrator ad colligendum bona, he visited the house, where he met Mr Christopher Hodges, Evan Rees (the first respondent), Trevor Rees and Roberta Rees. He described the interior and exterior of the house as very untidy and said that he did not see anything that he considered to be of great value, apart from some paintings which were removed on that day by Trevor Rees, who retained the house keys of the property.
On 8 February 2012, Mr Dunemann called at the home of Trevor and Roberta Rees and was given the house keys to the deceased’s Brighton property. Ms Rees showed him goods that had been removed from the Brighton property, which were plastic tubs, cartons, paintings and some suitcases. All the material appeared to be quite voluminous. At Ms Rees’ request, he removed the goods and placed them in a self-storage facility.
The day after the mediation, on 15 September 2012, Mr Dunemann visited the self-storage facility with the appellant and another person and comprehensively inspected the goods. The appellant described the goods as ‘a pile of junk’ and said that nothing of value was located there.
The appellant stated that after she was appointed administrator of the deceased’s estate, which occurred on 15 November 2012, she attended the security warehouse where Mr Dunemann had stored the items and boxes previously kept at the home of Trevor and Roberta Rees and which had been removed by them and the respondents from the Brighton home. She found that nearly everything of value had been removed and described the items as ‘basically a pile of rubbish’. None of the items that she had personally packed into the plastic tubs were there including the deceased’s mother’s and grandmother’s jewellery and two metal petty cash tins which had contained jewellery and coins. The coin and stamp collections maintained by the deceased’s father had been tampered with and not one valuable coin or stamp was remaining.
The appellant swore that she agreed to the compromise arrangement set out in the Terms of Settlement at the mediation unaware that the missing goods were not contained within the deceased’s belongings released by the respondents. She stated that had she known the truth of the situation she would not have agreed to the Terms of Settlement at the mediation.
Ms Foran disputed that she had removed anything of value from the deceased’s house. She said that Mr W Jonas asked her and the first respondent to secure the deceased’s house. She said that the deceased had been living in very squalid and unclean conditions and the respondents started to clean out the property and dispose of rubbish. Anything of value was appraised by Jack’s of Hampton at a total value of $2,000.00. Nothing was removed other than rubbish, save for the ashes of the deceased’s mother which were dealt with according to the mother’s wishes.
The appellant outlined these claims, concerning her allegations that valuable assets belonging to the deceased had disappeared from his home after his death, in letters that she sent to the respondents’ solicitors. The letters mainly repeat matters that are set out above, but we will refer to some parts of them.
The first letter in the exchange of correspondence, which was in evidence, was dated 14 December 2012, that is three months after the execution of the Terms of Settlement, and was from the respondents’ solicitors to the appellant. The letter alleged that the appellant was in breach of the Terms of Settlement and that if the breach continued the respondents would commence proceedings against her to force compliance with the Terms and to seek her removal as administrator of the estate. The first breach alleged was in respect of the disposal of the deceased’s ashes. The second breach alleged was that the appellant had taken all chattels and belongings sorted by Mr Dunemann and removed them to a storage facility, whereas under the Terms of Settlement the chattels and other belongings were to continue to be held by Mr Dunemann and then distributed amongst the respondents’ solicitors’ clients. The letter sought information as to the location of, and access to, the chattels and belongings and a list of them.
By letter dated 13 February 2013, the appellant replied to the letter of 14 December 2012, alleging that items had been removed from the deceased’s house and not accounted for. She wrote that the letter of 14 December 2012 had not addressed ‘the matter of the many items which are missing from the [East Brighton] property … and removed by your clients’. The appellant stated:
When I signed the agreement I was of the understanding that all items which belonged to [the deceased] that were removed by your clients were to be handed over but this is not the case.
Also the catalogue of items compiled by your clients does not match the goods handed over and nearly all valuable items are not mentioned and are missing.
I require everything removed from the property … by your clients to be handed over within 14 days from the date of this letter.
The respondents’ solicitors responded to this letter and others that the appellant wrote denying her allegations. For instance, they stated, in a letter of 27 February 2013, that all valuable items of the deceased, which were removed from the deceased’s house, were handed over at the time to the then administrator, Mr Dunemann.
The appellant made other allegations in subsequent letters. On 12 March 2013, she wrote to the respondents’ solicitors alleging that at the mediation the respondents had tricked her into believing all items were present and accounted for, whereas that was not the case.
In a further letter of 8 April 2013, the appellant wrote to the respondents’ solicitors alleging that immediately after the deceased’s death, the respondents entered and removed all valuable items from the property being fully aware that they were not beneficiaries of the estate under the terms of the 2007 will, and that those valuable items had not been handed over. She alleged that when signing the agreement,[14] the respondents had agreed to hand over all items which they illegally removed. She attached a list of valuable items to which we have previously referred.
[14]The appellant referred to an agreement of 15 November 2012, which was the day she was appointed administrator, but she may have been intending to refer to 14 September 2012, the date of the Terms of Settlement.
In a letter of 26 April 2013 to the appellant, the respondents’ solicitors stated:
Our clients seriously question as to whether these items were ever in the possession of the deceased. If they were you did not raise this matter at the mediation nor did you include these items in the inventory of assets and liabilities that you filed at the Probate Office.
Mr Jesse Barratt, the son of the appellant and the deceased, who at the time of the hearing was aged 23 years, swore that the deceased had a large coin and stamp collection which his father told him he had inherited from his own father (Mr Jesse Barratt’s grandfather), who worked in a bank and which his father told him contained many valuable coins:
I turned 21 years of age on 9 July 2011 and at that time I visited my father in Melbourne and went to his home in East Brighton. We spoke of many things and he once again showed me his 1930 penny. At the time I was not much interested but I recall him saying to me ‘you could buy a house with this’.
I have searched through all of the items returned to my mother by my father’s distant relatives and I have found nothing that resembles the coins, stamps, ornaments and jewellery that I recall seeing there. In my opinion the goods returned are of very little value and that anything of true value is missing.
Mr Anthony Rickards, a friend of the deceased, swore an affidavit stating that he was aware that the deceased had a coin collection which included a very rare 1930 penny. He stated that approximately 12 months prior to his death, he assisted the deceased in obtaining finance to repair his units in Kew. He mentioned to the deceased that he could sell the coin collection to finance the project. The deceased answered ‘I will never sell the coins and I will obtain the money I require another way’. The deceased mortgaged his Kew property.
Mr Rickards also stated that the deceased had a large collection of football memorabilia which the respondents gave away to his friends at his funeral memorial service. The appellant stated that she discovered that all of the deceased’s football memorabilia had been given away by Mr Christopher Hodges, who was a cousin of the deceased.
The trial judge’s findings of fact
The respondents’ summons came before her Honour on two occasions. The matter was adjourned on the first occasion to provide the appellant with a further opportunity to put before the Court any sworn evidence that might support the allegations that she had made in her letters.
In her judgment, her Honour set out and considered the appellant’s evidence. Her Honour gave the following reasons for not accepting that the appellant believed the deceased was in possession of the items:
First, there is no evidence that prior to the mediation, the plaintiff believed that the items listed in her 2013 letters were part of the estate of the deceased. Neither of the plaintiff’s inventories of assets and liabilities, filed on 20 September and 7 November 2011, mention any of those items. I do not accept the plaintiff’s explanation that this was because she thought she only had to list items that had to be subject to official or legal transfer. The plaintiff has not articulated the basis for this belief, or the reason that she considered the items that she did list as subject to official or legal transfer.
Secondly, the plaintiff’s actions prior to the execution of the Terms of Settlement are inconsistent with her current allegations that the deceased owned a number [of] items of substantial financial value. If the plaintiff believed that the deceased owned a coin worth $750,000 and other very valuable items, including any football memorabilia, or there were ‘chattels and belongings’ packed into plastic tubs by her and the deceased in the last year or so of his life, she failed to mention these particular items or matters at any point prior to the mediation.
Thirdly, the plaintiff failed to determine whether any valuable items were at the self-storage facility after Letters of Administration ad colligendum bona were granted to the plaintiff’s solicitor on 9 December 2011, some nine months prior to the mediation and she failed to complain to her solicitor that valuable items were missing from the self-storage facility upon her inspection, the day after the mediation.[15]
[15]Reasons [38]-[40].
On 9 December 2011, Habersberger J made orders in respect of a summons issued by the first respondent who had lodged a caveat against the grant of administration of the deceased’s 2007 will. His Honour ordered that the present respondents be added as defendants to the proceeding and gave directions for the conduct of the proceeding. Under the heading ‘Other Matters’, his Honour recorded that:
The allegation that the deceased’s personal chattels have been distributed has been denied by the beneficiaries under the deceased’s [penultimate] will.
Her Honour stated:
The plaintiff has known since at least 9 December 2011 that the defendants denied her allegations that items have been misappropriated from the deceased’s estate.[16]
[16]Reasons [43].
The parties’ submissions
As previously stated, the appellant opposed the use of the summary procedure and submitted that the matter should go to a further mediation and then to a trial if necessary.
The appellant submitted that she should not have to pay the sum of $710,000.00 to the respondents and that her allegations, that the respondents had removed valuable items belonging to the estate, should be allowed to go to trial. The summary procedure was inappropriate in view of her defence to the enforcement of the Terms of Settlement. If the Terms were enforced, the effect of the releases that she gave in them would prevent her pursuing her claims against the respondents.
The respondents’ case was that the appellant sought to avoid the compromise on the ground that it had been procured by fraud. Her Honour was entitled to conclude that the evidence that the appellant provided failed to provide any reasonable basis for her allegations. When she signed the Terms of Settlement, there was already an existing dispute recorded in the Court’s order about whether the respondents had distributed the deceased’s personal assets. The Terms of Settlement settled that dispute and the appellant gave up any entitlement to litigate the estate’s right to recover any chattels from the respondents.
Analysis
In the particular circumstances of this case, the appellant has not established that her Honour erred in the exercise of the discretion to allow the respondents to make use of the summary procedure to enforce the Terms of Settlement. Ultimately, the decision whether to apply the summary procedure involved a question of degree, engaging considerations of whether justice could be done in that process.
There was some evidence before her Honour that the deceased at some stage was in possession of valuable assets which could not be located after his death. This particularly included the evidence of Jesse Barratt that his father had shown him the 1930 penny in July 2011. There was other evidence that persons had removed items from the deceased’s home after his death. Taken on its own, that evidence would ordinarily require a trial of the issues and the opportunity for cross-examination of deponents of affidavits.
However, there were other relevant circumstances in this case that justified the course that her Honour followed.
Her Honour placed considerable weight on the fact that, before the mediation, the appellant had made allegations that the respondents had misappropriated items from the deceased’s estate. That such allegations were made is apparent from the matters recorded as ‘Other Matters’ in the order of 9 December 2011. It followed that the appellant was aware of those matters when she signed the Terms of Settlement, which were dated 14 September 2012.
It was relevant for her Honour to take into account that the Terms of Settlement followed a mediation where each party had the opportunity to consider claims and possible claims and how they might be resolved. There is a strong public interest in enforcing agreements made at mediation in the absence of circumstances suggesting the occurrence of events that vitiated the mediation or the terms that resulted.
As we have stated, the appellant had acted on the provisions of the Terms of Settlement that were to her benefit. She had obtained substantial sums from the sale of the deceased’s real estate. On the other hand, the respondents and other potential beneficiaries under the 1980 will had given up the opportunity to seek to prove that will or to make a claim for provision out of the estate of the deceased.[17]
[17]Administration and Probate Act 1958, s 91.
There was no proper submission put to her Honour as to how the appellant could prevent one part of the Terms of Settlement being enforced in whole or in part when she had taken the benefit of those parts of the Terms that conferred rights on her. It was not explained whether the consequence of this would be that the Terms of Settlement would be set aside and the parties and the estate would return to their positions prior to the execution of the Terms of Settlement and if so, how that would be achieved.
Her Honour did not directly discuss the issues arising from the appellant seeking to prevent the enforcement of only part of the Terms of Settlement. However, the consequences that may follow if, as the appellant seeks, part of them are not to be enforced, provide substantial support for the decision that her Honour reached.
Her Honour was entitled to conclude that justice could be done by enforcing the Terms of Settlement by using the summary procedure. Equally, the judge did not err in considering that justice would not be done if the appellant, having obtained benefits from rights conferred on her by the Terms, now does not have to perform the obligations that they imposed on her.
Even if it be that her Honour did not apply the analysis that we have described, this Court may uphold the decision on additional or different grounds.
While in many instances it would be inappropriate for a court to use the summary procedure in circumstances where contested questions of fact arise, when the allegations being made are in effect fraud, concealment of assets or misappropriation of assets, then the court is entitled to expect evidence of some reasonable precision and not, as was the case here in many instances, allegations which were expressed in general terms. In this case the admissible evidence that the appellant produced that the respondents had taken valuable assets was insubstantial. It does not outweigh the other matters to which we have referred which justified her Honour’s decision.
Additional matters
Ground 5 of the Notice of Appeal was not the subject of any separate submissions.
Particular criticism was raised by the appellant about paras 47 and 48 of her Honour’s judgment where it is stated that the appellant had the onus of proof on the balance of probabilities, subject to the principles in Briginshaw v Briginshaw.[18] Her Honour also stated:
Because of the importance and gravity of the issue, it is impossible for the Court to be reasonably satisfied of the truth of the plaintiff’s allegations ‘without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not loose and inexact’.[19]
[18](1938) 60 CLR 336 (‘Briginshaw’).
[19]Reasons [47], quoting Briginshaw (1938) 60 CLR 336, 368–9, 343, 350.
Her Honour then stated:
In my view, the plaintiff has failed to satisfy the onus of proof to the reasonable satisfaction of the Court. I do not accept that the plaintiff believed the valuable items outlined in her 2013 letters formed part of the estate of the deceased when the Terms of Settlement were executed. In any case, I conclude that the plaintiff’s allegation that the defendants improperly took valuable items from the deceased’s estate to be without foundation and that there is no persuasive evidence that those valuable items formed part of the deceased’s estate.[20]
[20]Reasons [48].
Her Honour’s reasons suggest that she may have imposed an onus on the appellant to establish to the Briginshaw[21] standard a defence based on the respondents’ fraud or misappropriation of assets. That would not have been appropriate. Her Honour’s first task was to determine whether, after making findings, it was appropriate to permit the summary procedure to be used to enforce the Terms of Settlement.
[21](1938) 60 CLR 336.
Despite these observations of her Honour, we consider that no error has been shown in her decision to allow the summary procedure to be used and indeed, in the unusual circumstances of this case, we consider her Honour to be correct.
Conclusion
For those reasons, the appeal will be dismissed.
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