Bramwell v Bramwell (No 2) - [2022] SASC 76

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
BRAMWELL v BRAMWELL & ORS (No 2)
[2022] SASC 76
Judgment of the Honourable Auxiliary Justice Bochner
SUCCESSION - FAMILY PROVISION - REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE - DUTY OF TESTATOR - DUTY TO SPOUSE OR PARTNER
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL RULE: COSTS FOLLOW EVENT - GENERAL PRINCIPLES AND EXERCISE OF DISCRETION
Inheritance (Family Provision) Act 1972 (SA); Income Tax Assessment Act 1997 (Cth); Administration and Probate Act 1919 (SA); Evidence Act 1929 (SA); Supreme Court Act 1935 (SA), referred to.
Whitington v Whitington (No 2) [2009] SASC 178; Parker v Australian Executor Trustees Ltd (No 2) [2016] SASC 115; Pizimolas v Pizimolas (No 2) [2010] SASC 209; Doedens v Owen (No 2) [2018] SASC 23; Bibbo v Nikou & Delatex Pty Ltd (No 2) [2011] SADC 140; Cutts v Head [1984] Ch 290; Unilever Plc v Procter & Gamble Company [2000] 1 WLR 2436, considered.

BRAMWELL v BRAMWELL & ORS (No 2)
[2022] SASC 76
CIVIL

On 11 February 2022 I delivered judgment in respect of the applicant’s claim for further provision, pursuant to the Inheritance (Family Provision) Act 1972 (“the Act”), from the estate of her late husband. At the time of his death, the applicant and the deceased owned their home in equal shares as tenants in common; the deceased’s estate, including his share in their home amounted to approximately $1,405,000. He also had significant superannuation. The deceased dealt with his superannuation by way of binding death benefit nomination. He divided his benefit in half and directed that half go to the applicant by way of a pension to be paid at the minimum pension rate. The balance was paid into his estate. By his will, the deceased left the applicant a legacy of $60,000, the right to reside in his share of their home on the basis that she meet all of the outgoings, and the use of his household furniture and effects. The balance of his estate he left to his daughter, the respondent.
After hearing the evidence in this matter, I found that the applicant had been left without adequate provision for her proper maintenance, education or advancement in life. I ordered that she receive the deceased’s interest in their home so as to give her complete security as to her residence. I also ordered that she receive a legacy of $200,000 in lieu of the legacy provided for her in the will but in addition to interim payments already made to her. In addition, the applicant would remain entitled to the pension provided to her by way of the binding death benefit nomination.
I have now heard from the parties on the form of the orders and on the question of costs. These reasons deal with those issues.
The form of the orders
Save for the question of costs, there are three issues in relation to the form that the final…

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 Bramwell v Bramwell (No 2)

Details

AGLC: Bramwell v Bramwell (No 2) [2022] SASC 76
Case: [2022] SASC 76
Decision Date: 27 July 2022

CaseChat Overview and Summary

In Bramwell v Bramwell (No 2), the court considered the application of the Evidence Act 1929 in the context of mediation offers. The case involved a dispute over succession and family provision, where the requirement for adequate and proper maintenance of a spouse or partner was in question. The court had to determine whether offers made during mediation could be admitted as evidence in a subsequent proceeding for costs. The primary legal issue was whether communications made in connection with an attempt to negotiate the settlement of a civil dispute, specifically during mediation, were inadmissible under s 67C of the Evidence Act 1929.

The court examined the exceptions to s 67C and concluded that none applied to the circumstances of this case. The offers made during mediation were not admissible as they did not fall under any of the exceptions listed in s 67C(2). The court held that the subsequent letter from the plaintiff, which referred to the mediation offers, was also inadmissible. The court relied on the principles established in Pizimolas and Bibbo v Nikou & Delatex Pty Ltd (No 2), which held that the admissibility of such evidence was strictly limited by the Act. The court emphasised that the consent of the parties must be contemporaneous, and none of the other exceptions were satisfied.

The court's reasoning was based on the strict interpretation of s 67C, which aims to protect the confidentiality of settlement negotiations. The court ruled that the mediation offers and the subsequent letter were inadmissible because they did not meet any of the exceptions outlined in the Act. Consequently, the court refused to admit the letter as evidence. This decision underscores the importance of maintaining the confidentiality of mediation offers and the limitations on using such communications in subsequent legal proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In respect of the offers made by the parties, Mr Ower submits that I am unable to take into consideration the offers made in the course of the mediation, as they are inadmissible as a result of s 67C of the Evidence Act 1929. He says that, while offers marked “without prejudice save as to costs” are an exception to s 67C, this does not apply to offers made in the course of mediation. In this regard, he relies on two cases, Pizimolas and Bibbo v Nikou & Delatex Pty Ltd (No 2)[8] (“Bibbo”). Section 67C provides:[8] [2011] SADC 140.67C—Exclusion of evidence of settlement negotiations(1)Subject to this section, evidence of a communication made in connection with an attempt to negotiate the settlement of a civil dispute, or of a document prepared in connection with such an attempt, is not admissible in any civil or criminal proceedings.(2) Such evidence is, however, admissible if—(a) the parties to the dispute consent; or(b) the substance of the evidence has been disclosed with the express or implied consent of the parties to the dispute; or(c) the substance of the evidence has been partly disclosed with the express or implied consent of the parties to the dispute, and full disclosure of the evidence is reasonably necessary to—(i)enable a proper understanding of the other evidence that has already been adduced; or(ii) avoid unfairness to any of the parties to the dispute; or(d) the communication or document included a statement to the effect that it was not to be treated as confidential; or(e) the proceeding in which the evidence is to be adduced is a proceeding to enforce an agreement for the settlement of the dispute or a proceeding in which the making of such an agreement is in issue; or(f) the evidence tends to contradict or to qualify evidence that has already been admitted about the course of an attempt to settle the dispute; or(g) the making of the communication, or the preparation of the document, affects the rights of a party to the dispute; or(h) the communication was made, or the document was prepared, in furtherance of—(i) the commission of a fraud or an offence; or(ii) the doing of an act that renders a person liable to a civil penalty; or(iii) the abuse of a statutory power.(3)Subsection (1) does not apply to parts of a document that do not concern attempts to negotiate a settlement of a dispute, if it would not be misleading to adduce evidence of only those parts of the document. In Pizimolas, Kourakis J (as he then was) said:The defendants also rely on what they contend was the plaintiff’s unreasonable failure to settle. They tendered a letter dated 31 December 2009 in which the plaintiff, by his solicitor, made an open offer to settle for about 55 per cent of the value of the estate. In the letter, the plaintiff informed the defendants of his intention to tender the letter in the event that he bettered that offer. Now, however, the plaintiff objects to the tender of the letter. I received the letter de bene esse to determine the objection to its admissibility.The letter refers to offers made in an earlier mediation conference including an offer made by the defendants to settle on the basis that the parties withdraw their respective claims and carry their own costs. The defendants have bettered that offer and now wish to tender the plaintiff’s letter to show that they made the offer. The plaintiff objects on the ground that, even though the offer was set out in his letter of 31 December 2009, it evidences communications made in a settlement conference and is therefore rendered inadmissible by s 67C of the Evidence Act 1929, which provides:…It should be noted that s 67C of the Evidence Act 1929 prohibits the admission of evidence in “proceedings”. It is not limited to the trial of the substantive controversy. An application for costs is a proceeding or, at the very least, a step in a proceeding.In my view, none of the exceptions in s 67C(2) apply. Whatever the plaintiff may have intended when the letter was sent, he does not now consent to admission of the letter for the purposes of s 67C(2)(a). Generally, the consent of the parties to the tender of confidential information pursuant to s 67C(2)(a) must be contemporaneous. Nor has the substance of the evidence been disclosed to the Court, or indeed any third party, so as to fall within s 67C(2)(b). Section 67C(2)(d) of the Evidence Act 1929 is inapplicable because the “communication” to which it refers is the communication made in the course of the settlement conference. Section 67C(2)(d) does not operate on the statement made in the plaintiff’s subsequent letter that he did not intend to treat the contents of his letter confidential. Moreover, the defendants have at no time stated that they would not treat the offer made by them in the mediation as confidential. The other exceptions even more obviously do not apply. I refuse to receive the letter.[9](citations omitted)[9] Supra, [10]-[13].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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