Brown-Sarre v Waddingham
[2012] VSC 116
•30 MARCH 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
PROBATE LIST
No. SCI 2011 6694
IN THE MATTER of Rule 54.02(2) of Chapter 1 of the Rules of the Supreme Court
| JEREMY BROWN-SARRE | Plaintiff |
| (as Administrator of the estate of Ivan Henry Waddingham, deceased) | |
| v | |
| ALICE WADDINGHAM | Defendant |
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JUDGE: | HABERSBERGER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 16 DECEMBER 2011 | |
DATE OF JUDGMENT: | 30 MARCH 2012 | |
CASE MAY BE CITED AS: | BROWN-SARRE v WADDINGHAM | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 116 | |
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Executors and Administrators – Approval of administrator’s decision to compromise litigation involving the deceased’s estate – Opposition by deceased’s widow, the sole beneficiary of the estate – Supreme Court (General Civil Procedure) Rules 2005, r 54.02(2)(c)(i).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr DG Robertson | Hicks Oakley Chessell Williams |
| For the Defendant | In person, with the assistance of Ivan Waddingham junior |
HIS HONOUR:
Introduction
By an originating motion and summons both filed on 9 December 2011, the plaintiff, Jeremy Brown-Sarre, sought an order pursuant to r 54.02(2) of the Supreme Court(General Civil Procedure) Rules 2005 for the approval of the plaintiff, as administrator of the estate of Ivan Henry Waddingham, deceased (“the deceased”), entering into:
(a)the Settlement Deed conditionally executed by him on 5 December 2011; and
(b)the amended Settlement Deed conditionally executed by him on 8 December 2011.
Alice Waddingham, the widow of the deceased, was named as the defendant to the application. She appeared without representation at the hearing of the application and opposed the making of the orders sought by the plaintiff. I was informed that all of the material had been personally served on Mrs Waddingham’s son and daughter. Ivan Waddingham junior appeared but the latter did not.
For the reasons given below, I have decided that there should be an order by the Court approving the plaintiff, as administrator of the estate of the deceased, entering into the Settlement Deed and the amended Settlement Deed. In reaching that conclusion I have carefully considered the points raised in opposition to the application by Mrs Waddingham and Mr Waddingham junior on her behalf.
Background
The application was supported by an affidavit sworn by Mr Brown-Sarre on 8 December 2011. This affidavit and the exhibits thereto gave the background to this application. Set out below are some of the more important events in that history, much of which has been derived from the decision of the Victorian Civil and Administrative Tribunal (“VCAT”) referred to below, which was exhibited to Mr Brown-Sarre’s affidavit.
On 30 November 2004, Mr Waddingham senior entered into a credit contract with Australian Securities Limited (“ASL”) to borrow $200,000 for a term of five years at an interest rate of 9.6% per annum. That loan was secured by a mortgage over Mr Waddingham senior’s family home at 26 Agnew Street, South Blackburn. Mr Waddingham senior was then a 93 year old pensioner with no other income. Most of the proceeds of the loan were used by Mr Waddingham junior to purchase a truck for use in the trucking business of his company Katana Transport Pty Ltd (“Katana”).
In early 2007, while operating the truck, Mr Waddingham junior suffered a serious injury and he was unable to work for at least two months. The monthly interest payments on the loan then ceased to be made. On 30 July 2007, ASL issued a default notice to Mr Waddingham senior. On 30 August 2007, it commenced a proceeding in this Court claiming possession of the Agnew Street property (“the enforcement proceeding”).
In August 2007, Mrs Waddingham applied for an administrator to be appointed for her husband under the Guardianship and Administration Act 1986. On 7 September 2007, VCAT appointed State Trustees Limited (“State Trustees”) as that administrator. On 12 October 2007, Mr Waddingham senior, by State Trustees, applied to VCAT to have the loan contract and mortgage between him and ASL set aside (“the VCAT proceeding”). In November 2007, the enforcement proceeding was effectively stayed by agreement between the parties.
On 12 January 2009, Mr Waddingham senior died. Probate of his will dated 1 March 1960 was granted to Mrs Waddingham on 2 April 2009. She was the sole beneficiary of her late husband’s estate.
During the course of the interlocutory steps in the VCAT proceeding additional respondents were joined at various times. They were a solicitor, Barry Kenna; an accountant, Antonio Polzella and his employer JP Sear & Marsh Pty Ltd (formerly Varcoes Pty Ltd) (“Marsh”); and Mr Waddingham junior and his company Katana. Also, Mrs Waddingham, as the executrix of her late husband’s estate, became the applicant.
In August 2009, the VCAT proceeding was struck out for failure to comply with procedural directions. In October 2009, ASL applied for summary judgment in the enforcement proceeding. In December 2009, Mrs Waddingham, as the executrix of her late husband’s estate, was given leave to defend. In May 2010, Mrs Waddingham successfully applied to have the VCAT proceeding reinstated.
The VCAT proceeding was to be heard in December 2010, but that hearing did not take place because Mrs Waddingham’s counsel raised a question concerning her capacity to give instructions and to act as executrix. Subsequently, application was made to the Supreme Court by the estate’s solicitors for an order that Mrs Waddingham be removed as executrix of the estate of the deceased and that some other proper person or trustee company be appointed administrator. On 22 March 2011, Emerton J published her reasons for judgment,[1] in which she proposed an order that Mrs Waddingham be removed and State Trustees appointed as administrator. Because of a disagreement over State Trustees’ fees, her Honour subsequently directed that Mrs Waddingham nominate a person she would like to have appointed in her place. Accordingly, on 13 April 2011, an order was made removing Mrs Waddingham as the executrix and appointing the plaintiff administrator of the will and estate of the deceased. The plaintiff then became the applicant in the VCAT proceeding.
[1]Re Waddingham, unreported, 22 March 2011.
The hearing of the VCAT proceeding took place in May 2011 and Senior Member McKenzie gave her decision on 15 July 2011. In essence, the Senior Member found that the credit contract and mortgage were unjust and should be set aside subject to the applicant tendering or paying the sum of $46,500 (and no more) to ASL. This decision was not based on any lack of cognitive capacity on the part of Mr Waddingham senior in October or November 2004 “to enter into or understand the transaction”. The Senior Member also found that Mr Waddingham senior was properly advised from a legal perspective by Mr Kenna, but that he was not properly advised about the financial viability and soundness of the transaction by Mr Polzella, for reasons which it is not necessary to set out in this judgment.
Amongst the other orders made by the Senior Member was an order that Mr Waddingham junior pay the sum of $25,000 to ASL, and that Marsh and Mr Polzella (“the accountants”) jointly and severally pay the sum of $25,000 to ASL, for loss or damage caused to it. No order was made against Mr Kenna. Accordingly, he gave notice that he would be seeking his costs of the VCAT proceeding from the deceased’s estate, ASL and the accountants.
The sum of $46,500 was the net proceeds of the sale of the truck which had been purchased with the loan funds. Mr Waddingham junior had paid this amount to his mother. Although it was not completely clear it appeared that this amount was still available to be paid to ASL. The rationale for this requirement was that the deceased’s estate/Mrs Waddingham should not obtain “a windfall benefit”.
On 11 August 2011, ASL commenced a proceeding in this Court seeking leave to appeal against the whole of the orders in the VCAT proceeding (“the application for leave to appeal”). The operation of the orders made by the Senior Member were stayed by her on 30 August 2011 pending the determination of ASL’s application for leave to appeal and, if leave to appeal was granted, pending the determination of any appeal by ASL.
Following negotiations, the plaintiff, ASL, and the accountants settled the dispute between them in principle. Relevantly, the plaintiff and ASL agreed that, subject to the plaintiff obtaining approval of the compromise:
(a)they would execute consent orders dismissing the enforcement proceeding and the application for leave to appeal as against the plaintiff;
(b) the mortgage would be varied so as to reset the principal at $178,000;
(c)ASL would advance the sum of $63,000 to the plaintiff “for the costs and expenses of the administration of the estate, including legal costs” and that amount of $63,000 would form part of the principal sum of $178,000;
(d)ASL would conduct all negotiations with Mr Kenna’s representatives in respect of his costs application in the VCAT proceeding and that one third of the first $51,000 of any costs liability to Mr Kenna would be borne by the plaintiff and that the plaintiff would be indemnified by ASL and the accountants in respect of any further costs liability to Mr Kenna;
(e)ASL would pay the plaintiff’s share of any costs liability to Mr Kenna and that amount would be added to the principal sum of $178,000 owing under the mortgage; and
(f)they would each bear their own costs of the enforcement proceeding, the VCAT proceeding and the application for leave to appeal.
Relevantly, the accountants agreed that they would pay ASL the sum of $70,000 and that they would pay one third of the first $51,000 of any costs liability to Mr Kenna and one half of the balance, leaving ASL to pay one third of the first $51,000 and one half of the balance. ASL and the accountants also agreed to bear their own costs of the VCAT proceeding, the application for leave to appeal and the accountants’ application for leave to appeal from the VCAT decision.
The varied mortgage to be entered into by ASL and the plaintiff provides that interest is payable on the principal sum of $178,000 at the reduced lower rate of 7% per annum commencing from the variation, although the plaintiff can postpone any monthly interest payment in which case it will be compounded. The due date for repayment of the principal is three months after the last day Mrs Waddingham resides in the Agnew Street property. The reduced higher rate of interest of 11% applies to any amount not paid on that due date. Upon giving ASL thirty days’ notice, the plaintiff can at any time repay the whole or any part of the indebtedness.
Part of the $178,000, namely $115,000, is $68,500 more than the plaintiff was already obliged to pay to ASL pursuant to the decision in the VCAT proceeding. The other part of the $178,000, namely $63,000, was to enable the estate to pay existing or future liabilities. Apart from the Agnew Street property, the estate had no assets to meet such liabilities. In his affidavit in support of the application, Mr Brown-Sarre deposed that he estimated, on the advice of his solicitors, that the break up of the amount owed for legal costs was as follows:
VCAT proceeding $7,863.90 Application to appoint administrator $6,517.62 ASL’s application for leave to appeal $25,426.50 Approval of compromise $11,270.00 $51,078.02
In addition, Mr Brown-Sarre said that because of the time he had spent as administrator in attending conferences, the VCAT proceeding and the settlement negotiations, he intended to apply to this Court for administrator’s commission pursuant to s 65 of the Administration and Probate Act 1958. He included an amount of $20,000 for his potential commission. However, as this meant that the estimated amount of the liabilities and potential liabilities of the estate totalled $71,078.02, which was more than the amount of $63,000 agreed to be advanced by ASL, Mr Brown-Sarre said that he did not:
intend to require payment of my commission (if any is allowed by this Honourable Court) beyond the moneys raised by the settlement until such time as the land is sold or Alice Waddingham ceases to reside there.
Mr Brown-Sarre was provided with a Memorandum of Advice from Mr Robertson of counsel dated 27 September 2011 in which he discussed the many issues raised by the settlement negotiations to date. He analysed in detail ASL’s prospects of success of obtaining leave to appeal and of any appeal itself. It is neither necessary nor appropriate to say anything about this analysis other than to note that Mr Robertson pointed out that there was a risk that the appeal might succeed. Suffice it to say that Mr Robertson recommended acceptance of ASL’s then offer of settlement, which was less favourable to the estate than the terms eventually agreed in principle. By a Further Memorandum of Advice dated 5 December 2011 Mr Robertson advised that Mr Brown-Sarre should execute the Settlement Deed which set out the terms of the compromise summarised above.
Acting on the advice of Mr Robertson and on the advice of his solicitors, Hicks Oakley Chessell Williams (“HOCW”), Mr Brown-Sarre conditionally executed the Settlement Deed on 5 December 2011. He also conditionally executed the amended Settlement Deed on 8 December 2011, which included a provision for the disposition of the accountants’ application for leave to appeal which had been inadvertently omitted from the Settlement Deed.
Mr Brown-Sarre explained in his affidavit his particular reasons for agreeing to the compromise:
Although my desire to achieve a settlement is influenced by commercial considerations of the cost, risk and potential benefits of the various litigation to the financial position of the Estate, I am also mindful of the personal position of Alice Waddingham, who is the sole beneficiary of the Estate and 80 years old. Subject to the discharge of the Estate’s liabilities, I consider it my duty as Administrator to ensure that Alice Waddingham’s best interests as sole beneficiary are served for the remainder of her life. I have given consideration to the reality that Alice Waddingham will require accommodation and support for the rest of her lifetime, and accordingly, I am of the view that her ongoing financial security is of paramount importance. I know that it has long been her wish to live at 26 Agnew Street, South Blackburn for as long as her health allows. It has been her home since she married the deceased on 23 January 1960. In my view, avoiding and managing the risks of litigation are more important in these circumstances than if the dispute were purely commercial in nature. These considerations would make me inclined to settle, if necessary, on less favourable terms than a simple risk-benefit analysis would dictate. As it is, however, I think that the Terms executed by me are advantageous even if no weight were given to the desirability (as I see it) of avoiding risking Alice Waddingham’s security in the last years of her life. I am also aware, from the medical evidence given in the Tribunal, that Mrs Waddingham’s health has been impaired by the stress and worry of the litigation. This is a further reason, to my mind, for settling on reasonable terms rather than prolonging the dispute and the uncertainty for her.
The Court’s Role in Approving a Compromise
As previously stated, the plaintiff seeks an order, pursuant to r 54.02(2) of the Supreme Court Rules, that the Court approve him entering into the Settlement Deed and the amended Settlement Deed. Rule 54.02 relevantly provides as follows:
54.02 Relief without general administration
(1)A proceeding may be brought for any relief which could be granted in an administration proceeding and a claim need not be made for the administration or execution under the direction of the Court of the estate or trust in respect of which the relief is sought.
(2) Without limiting paragraph (1), a proceeding may be brought for—
…
(c) an order—
(i)approving any sale, purchase, compromise or other transaction by an executor, administrator or trustee; or
(ii)directing any act to be done in the administration of an estate or in the execution of a trust which the Court could order to be done if the estate or trust were being administered or executed under the direction of the Court.
Thus, under r 54.02(2)(c)(i) the Court has the power to make an order “approving any … compromise … by an … administrator”.
Counsel for the plaintiff referred to my judgment in Exxon Mobil Superannuation Plan Pty Ltd v Esso Australia Pty Ltd[2] where I said that the authorities demonstrated that the Court’s role was not to consider the wisdom of a trustee’s (here administrator’s) exercise of discretion but to grant the trustee’s application for an order approving the trustee’s agreement to a compromise, if the Court was satisfied of the propriety of the application. In this case, that approach involves the Court considering whether:
(a)the administrator’s decision to agree to the compromise was within power;
(b) there was any impropriety in the administrator’s decision;
(c) the administrator exercised his discretion in good faith; and(d) the administrator gave fair consideration to the relevant issues.[3]
[2][2010] VSC 357, [87].
[3]Re Beloved Wilke’s Charity (1851) 42 ER 330, 333; Gisborne v Gisborne (1877) 2 App Cas 300, 307; Re Allen-Meyrick’s Will Trusts; Mangnall v Allen-Meyrick [1966] 1 WLR 499, 503; Re Green, deceased [1972] VR 848, 850 (Crockett J); IOOF Australia Trustees Ltd v The Trustee Act 1936 [1999] SASC 461 (Debelle J); McKinnon v Samuels [2000] VSC 393, [14] (Eames J); Ansett Australia Ground Staff Superannuation Plan Pty Ltd v Ansett Australia Ltd (2004) 49 ACLR 1, [50]-[53] and [71] (Goldberg J).
It is not for the Court to tell the administrator “how to exercise that discretion or whether a proposed exercise of discretion is necessarily correct”.[4]
[4]IOOF Australia Trustees Ltd v The Trustee Act 1936 [1999] SASC 461.
Consideration of the Application
Pursuant to s 19(1)(f) of the Trustee Act 1958, the plaintiff has the power to enter into the compromise. He also has the power to borrow on the security of the mortgage the $63,000 for the costs of administration pursuant to s 44(1) of the Administration and Probate Act 1958,[5] s 20 of the Trustee Act 1958 or s 35(1) of the Property Law Act 1958 and s 71(1) of the Settled Land Act 1958.
[5]This sub-section re-enacted s 39(1) of the Administration and Probate Act 1928, which is based on s 10 of the Administration and Probate Act 1915, which re-enacted s 7 of the Administration and Probate Act 1890, which re-enacted s 10 of the Administration Act 1872 which commenced on 1 January 1873. At common law, the executor could raise money for the purposes of the administration on the security of the personalty: M’Leod v Drummond (1810) 17 Ves 152, 154.
Before considering the other three matters listed above, it is appropriate to refer to the points raised in opposition to the application by Mrs Waddingham and Mr Waddingham junior on her behalf. He told the Court that because his mother was “quite hard of hearing” she had prepared something and had asked him to read it to the Court. He read from, and handed up, that document which he had written out but which both Mr Waddingham junior, and later Mrs Waddingham, said had been signed by her. With some difficulty, because of her deafness, I subsequently asked some questions of Mrs Waddingham.
Mrs Waddingham’s first point in her document in opposition to approval of the compromise was that in addition to the debt of $178,000, the estate would be liable for one third of Mr Kenna’s costs “which could blow out” and significantly add to the amount of the debt. Apart from the fact that it is not for the Court to tell the plaintiff what the terms of the compromise should be, this point overlooked the fact that the original settlement proposal was amended to include a capping of the estate’s liability at $17,000 or one third of the actual amount should the amount awarded be less than $51,000. Moreover, it was agreed that the $17,000, or a lesser amount, was to be added to the varied principal of $178,000, which is not payable for as long as Mrs Waddingham wanted to, and was able to, continue living in the Agnew Street property.
Secondly, in the document Mrs Waddingham “pleaded” with the Court to “direct” ASL to accept the VCAT decision. In my opinion, this statement showed, unfortunately, that Mrs Waddingham completely misunderstood the nature of the application and the Court’s role in deciding the application. The Court has no power to “direct” ASL to accept the VCAT decision. ASL has the right to seek leave to appeal. If the dispute is not settled, the Court will decide whether or not to grant ASL leave to appeal from the VCAT decision. If leave is refused and that ruling is not overturned on appeal, then the VCAT decision stands. If leave is granted, then the appeal will proceed to a hearing where the VCAT decision will either be upheld or set aside. If a ruling that the appeal be dismissed is not overturned on appeal, then again the VCAT decision will stand. But if the ruling, either at first instance or on appeal, is that the VCAT decision is set aside, then Mrs Waddingham is significantly worse off as she would run the risk that ASL would then be entitled to a judgment for possession of the property. It was said in Mr Robertson’s first Memorandum of Advice that he had been informed that ASL claimed that the total of its principal, interest and costs at that time approximately equalled the value of the Agnew Street property. The rated value of that property on a capital improved basis was then $610,000. Whether or not ASL’s estimate was correct, it was stated in the VCAT decision that as at 6 May 2011, the balance of the loan amount, including interest at the higher rate of 18.5%, was $336,643. If ASL was eventually successful, Mrs Waddingham had no capability to pay whatever amount was found to be owing to ASL without selling the Agnew Street property. No doubt it was because of the risks inherent in litigating this dispute further that it was thought to be in the best interests of Mrs Waddingham to enter into the compromise.
Mrs Waddingham’s next point was as follows:
I plead to the Court that this Settlement Deed is ammended [sic] where it will state that the same courtesy given to me to stay in the house for my natural period of life is extended to my daughter Gail and my son Ivan Jnr. I couldn’t have managed my husband[‘s] illness and him staying at home for so long without their assistance. This ammendment [sic] will give me great peace of mind in my dying days knowing that Gail and Ivan Jnr have security and a future.
In my opinion, this plea is indicative of the lack of understanding of the realities of the situation facing Mrs Waddingham. The only way in which she could be confident that her son and daughter could continue to live in her house after her death is if her husband’s estate had no liabilities. However, this is not the case. Apart from the $46,500 owed to ASL under the VCAT decision, there are legal fees owed by the deceased’s estate and there is a distinct possibility, therefore, that the house would have to be sold in order to raise the funds to pay those debts. I will say something later about the quantum of these fees.
The second comment I would make is that it is completely unrealistic to think that ASL would have agreed to delay the payment of the new negotiated principal and interest not only until Mrs Waddingham had either died or been forced by age or ill health to move out of the house but also until both her son and daughter had ceased residing there. Certainly, the Court has no power to require that the Settlement Deed be amended to incorporate such a term.
Fourthly, Mrs Waddingham said in her document that, if the Court thought that a reverse mortgage was warranted, Mr Brown-Sarre should arrange the reverse mortgage with one of the major banks. Mrs Waddingham stated:
The thought of having anything to do with ASL in the future makes me ill!
However, when it was put to Mrs Waddingham that the compromise allowed her to borrow the funds to pay out ASL at any time, she replied that this could not be done and continued:
I mean, they won’t take on debt like that and I’m a pensioner.
Mr Waddingham junior added that they had already unsuccessfully tried to go down that route.
Finally, Mrs Waddingham sought in the document to debate the merits of the dispute in a way which seemed to me to refer to parts of the reasons of the Senior Member with which she agreed but ignored findings which were contrary to her husband’s or her son’s case. There was nothing in this part of the document which was relevant to the issues before me.
In response to my questions, Mrs Waddingham said that she opposed the settlement because “it’s all unjust. I don’t think it’s right”. She went on to say that she had lived in that home for 55 years, that she wanted the title to the house her husband had left her and that her husband had been 93 at the time he entered into the loan. She also referred to the stress this dispute had caused her to suffer.
Mr Waddingham junior also referred to his affidavit sworn on 8 November 2011 and filed in the application for leave to appeal. I have read that affidavit. It is not relevant to the issues before me as in it Mr Waddingham junior canvassed some of the evidence before the Senior Member and sought to attack the credibility of one of ASL’s witnesses. Interestingly, however, Mr Waddingham did express gratitude to Mr Brown-Sarre for taking on the duty of administrator and “for having my Mum’s welfare in his mind all of the time …” He also thanked Mr Robertson and Mr Kontoudis, the employee solicitor at HOCW, for their roles in defending the estate against ASL’s claim.
After reserving my decision to consider the objections raised by Mrs Waddingham, I have received a number of handwritten facsimiles from Mrs Waddingham and from her son on her behalf. In normal circumstances I would have ignored these unauthorised communications (copies of which were apparently not sent to the plaintiff’s solicitors) but in the special circumstances of this case and as Mrs Waddingham was unrepresented I have decided to address the points raised in them. Obviously, if I had considered that there was any merit in any of the points, I would have given the plaintiff the opportunity to respond. However, that step was not necessary.
The first additional point raised by Mr Waddingham junior on behalf of his mother was that no commission was payable to Mr Brown-Sarre as he had not given any indication at the time he was appointed administrator that he would be seeking commission. However, as Mr Brown-Sarre recognised in his affidavit, he has to apply to this Court for an order allowing commission and an issue such as this could be raised at that hearing. It is not relevant to the question of approval of the compromise. Even if no commission is payable, the problem of how to pay outstanding legal fees remains.
The second additional point raised by Mr Waddingham junior on behalf of his mother was that allegedly counsel had been appearing pro bono and had only started charging after being told to do so by Mr Brown-Sarre. Even if this somehow meant that counsel’s fees were not payable by the plaintiff and therefore should not be taken into account when considering the term of the compromise under which ASL agreed to lend further funds to pay existing or future liabilities of the estate, there still remains the solicitor’s fees and other counsel’s fees totalling $29,463.02, which have to be met by the estate. Thus, the problem of how to pay that amount of outstanding legal fees remains.
The third additional point, raised by Mrs Waddingham herself, was a complaint about the fact that she was, and the way in which she was, removed as the executrix of her late husband’s estate. There was no appeal by Mrs Waddingham from the orders made by Emerton J. That means that I must proceed on the basis that the plaintiff was validly appointed as the administrator of the deceased’s estate. In any event, Mrs Waddingham’s complaint is not relevant to the question of approval of the compromise.
The remainder of this lengthy series of communications again debates the findings of the Senior Member and criticises the past conduct of ASL and the other parties in the VCAT proceeding, apart from Mr Waddingham junior and his insolvent company. As it is not relevant, I propose to say nothing further about it.
I return then to the remaining three of the four considerations which I had set out in my decision in Exxon Mobil and repeated in paragraph 24 above. Nothing that I have heard or read suggests any impropriety on the part of the plaintiff in making his decision to agree with the compromise. He acted on the advice of counsel and solicitors and, as his affidavit makes clear, exercised his own judgment in a proper way including considering the particular interests of the sole beneficiary. I further find that the plaintiff exercised his discretion in good faith and that his decision was made after giving fair consideration to the relevant issues. Accordingly, I am prepared to approve the plaintiff entering into the compromise.
Although I have rejected the points raised by or on behalf of Mrs Waddingham in opposition to the application, one can understand how she feels wronged by the events that have occurred. Nevertheless, it seems to me that unfortunately Mrs Waddingham does not appreciate that the outcome could have become a lot worse for her and that the compromise negotiated by the plaintiff and his lawyers has ensured that she will be able to remain in her home as long as she is physically and mentally capable of doing so.
Order
The order I propose to make is as follows:
1. The requirements of rules 5.03(1) and 8.02 be dispensed with.
2.The plaintiff be authorised to commence this proceeding by originating motion in Form 5C.
3.The Court approves the plaintiff, as administrator of the estate of Ivan Henry Waddingham, deceased, entering into the Settlement Deed conditionally executed by him on 5 December 2011, a copy of which is exhibit “JBS-9” to the plaintiff’s affidavit sworn on 8 December 2011, including (without limiting the generality of the foregoing):
(a) the compromise of various proceedings on the terms set out therein;
(b) raising the sum of $63,000.00 on the terms set out therein.
4.The Court approves the plaintiff, as administrator of the estate of Ivan Henry Waddingham, deceased, entering into the amended Settlement Deed conditionally executed by him on 8 December 2011, a copy of which is exhibit “JBS-12” to the plaintiff’s affidavit sworn on 8 December 2011, including (without limiting the generality of the foregoing):
(a) the compromise of various proceedings on the terms set out therein;
(b) raising the sum of $63,000.00 on the terms set out therein.
5.The plaintiff’s costs of and incidental to the proceeding, including the plaintiff’s costs of and incidental to the summons dated 9 December 2011, be paid out of the estate of Ivan Henry Waddingham, deceased.
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