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Boardman v Boardman

Boardman v Boardman

Case [2012] NSWSC 1257 18 October 2012

Family Provision

Maintenance

Enforcement of Settlement Agreement

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Boardman v Boardman [2012] NSWSC 1257
Hearing dates: 08.10.2012
Decision date: 18 October 2012
Jurisdiction: Equity Division
Before: Lindsay J
Decision:
Motion allowed with costs

Catchwords: SUCCESSION - family provision and maintenance - practice - mediation - enforcement of settlement agreement - agreement executed with alleged mental reservation or subjective intention not disclosed at mediation - whether court approval should be given.
Legislation Cited: Civil Procedure Act 2005 (NSW),
Uniform Civil Procedure Rules 2005 (NSW)
Succession Act 2006 (NSW).
Cases Cited: Secured Income Real Estate (Australia) Limited v St Martins Investments Pty Limited (1979) 144 CLR 596 at 610 and 615
Masters v Cameron (1954) 91 CLR 353 at 360
Texts Cited: Practice Note SC Eq 7 - Family Provision
Category: Interlocutory applications
Parties: KR Boardman
SV Boardman
Representation: Plaintiff: KR Boardman (in person)
Defendant: CF Hodgson
Defendant: Donovan Oates Hannaford

File Number(s): 2010 / 250542

Judgment

By a notice of motion filed on 19 July 2012 the defendant has invoked the jurisdiction of the court, under s 73 of the Civil Procedure Act 2005 (NSW), to enforce Heads of Agreement signed by the plaintiff, the defendant and lawyers acting for them respectively at the conclusion of a court appointed mediation (on 12 December 2011) in proceedings instituted by the plaintiff for Family Provision relief under the Succession Act, 2006 (NSW).

On the hearing of the motion, the plaintiff appeared in person. The defendant was represented by Mr Hodgson of counsel, instructed by Mr SH Williams.

The late Jim Boardman ("the Deceased") died on 2 August 2009 leaving a will dated 2 November 2006, probate of which was granted by this court to his widow (the defendant) on 23 December 2009.

The Deceased was twice married. By his first marriage he had three sons: Kevin (the plaintiff), Stanley and Allan. His second marriage, to the defendant, brought to his family her children by a previous relationship: Vicki and Daniel. In his will, he acknowledged all five as "my children".

The Deceased left his estate to the defendant and the five (adult) children. There were no other beneficiaries named in the will.

The Deceased left a substantial estate. His principal asset was "The Jim Boardman Centre", a seven level retail, commercial and residential building situated within the central business district of Port Macquarie. For probate purposes, it was valued at $4.25 million or thereabouts. Other assets worthy of particular notice comprised a bank account with approximately $170,000.00 standing to its credit, and an interest in a mortgage over property at Tugan, in Queensland, with an estimated value of $90,000.00.

At the time of his death, the Deceased and the defendant owned their matrimonial home (a rural property known as "Tara" at Sancrox in New South Wales) as joint tenants. It passed to the defendant as the surviving joint tenant.

The present proceedings were commenced by way of a statement of claim filed on 28 July 2010. The plaintiff sought against the defendant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Boardman v Boardman

Details

AGLC: Boardman v Boardman [2012] NSWSC 1257
Case: [2012] NSWSC 1257
Decision Date: 18 October 2012

CaseChat Overview and Summary

In the case of Boardman v Boardman, the matter before the court involved a dispute over family provision and maintenance. The case was heard in a relevant Australian court, where the central issue was whether the court should approve a settlement agreement that was executed with an alleged mental reservation or subjective intention that was not disclosed during the mediation process.

The legal issues that the court had to decide included the enforceability of the settlement agreement and whether the court should give its approval in light of the undisclosed subjective intention. The court had to consider the principles of family provision and maintenance under Australian law, the role of mediation in the settlement process, and the circumstances under which a court should intervene in a settlement agreement.

The court, after considering the evidence and arguments presented, concluded that the settlement agreement should be approved despite the undisclosed subjective intention. The court reasoned that the primary purpose of mediation is to facilitate an agreement between the parties, and the court should respect the parties' autonomy in reaching a settlement. The court also found that the undisclosed subjective intention did not affect the validity of the agreement, as it was executed in good faith by both parties. Therefore, the court gave its approval to the settlement agreement, and the case was resolved in favour of the defendant.

Orders