Cody v Cody - [2013] VSC 274

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
PROBATE LIST

No. 5489 of 2012

IN THE MATTER of the Will and Estate of PIERCE THOMAS CODY, deceased

IN THE MATTER of an application pursuant to O 54 of the Supreme Court (General Civil Procedure) Rules 2005

PATRICIA ADRIENNE CODY and PATRICK FRANCIS CODY (who sue as executors of the estate of PIERCE THOMAS CODY, deceased)	Plaintiffs
v
PIERCE PATRICK CODY (who is sued as the executor of the estate of PIERCE THOMAS CODY, deceased)	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 April 2013
DATE OF JUDGMENT:	5 June 2013
CASE MAY BE CITED AS:	Cody v Cody
MEDIUM NEUTRAL CITATION:	[2013] VSC 274

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EXECUTORS AND ADMINISTRATORS – Application by the plaintiffs as executors for orders that the defendant as executor take all steps to sell real estate of the deceased – Supreme Court (General Civil Procedure) Rules 2005 r 54.02(2)(b)(iii) – Whether agreement concluded between the parties following mediation is a binding and enforceable agreement that governs the parties’ relationship – Osborn v McDermott [1998] 3 VR 1 – Agreement not binding – Specific performance not available as a remedy to the defendant – Application by the plaintiffs properly brought in accordance with Supreme Court (General Civil Procedure) Rules 2005 r 54.02 – Relief sought by the plaintiffs to be granted

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Newton	Wisewould Mahony
For the Defendant	Mr C Shaw	Norton Rose Australia

HER HONOUR:

Introduction

Mrs Patricia Cody (the widow of the deceased) and Mr Patrick Cody (a son of the deceased) (‘the plaintiffs’) are two of the executors of the estate of Pierce Thomas Cody, deceased.

By originating motion and summons filed 27 September 2012, pursuant to O 54 of the Supreme Court (General Civil Procedure) Rules 2005 (‘the Rules’), the plaintiffs sought orders against the third executor of the estate, Mr Pierce Patrick Cody (‘the defendant’), that the executors of the estate take all steps to effect the sale of Apartment 1, Spion Kopje Corner, Sitzmark and Falls Creek Road, Falls Creek (‘the Falls Creek Apartment’).

Background

The deceased died on 21 November 2001. On 16 October 2002, the plaintiffs and defendant, as executors of the estate of the deceased, obtained a grant of probate of the will and two codicils of the deceased. For the purposes of this application, the relevant beneficiaries under the will and codicils are Mrs Cody and the five children of the deceased, namely, Pierce, Patrick, Anna, Caroline and Joanna Cody.[1] Under the will and codicils, discretionary trusts were set up for the benefit of each of the families of the five children.
[1]Affidavit of Patricia Adrienne Cody sworn 28 September 2012, [4].

The Falls Creek Apartment is one of the remaining assets of the deceased’s residuary estate, with an approximate value of $650 000.[2] This is held via shares in Eismeer Pty Ltd, a company controlled by the estate.[3]…

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 Cody v Cody

Details

AGLC: Cody v Cody [2013] VSC 274
Case: [2013] VSC 274
Decision Date: 5 June 2013

CaseChat Overview and Summary

In the case of Cody v Cody, the plaintiffs, as executors of the estate of the deceased, sought orders for the defendant, also an executor, to undertake all necessary steps to sell the real estate of the deceased. The dispute arose in the Supreme Court of Victoria. The plaintiffs argued that an agreement concluded between the parties following mediation should govern their relationship and compel the defendant to sell the property. The defendant, however, contested the enforceability of the agreement and argued against the availability of specific performance as a remedy.

The court had to decide whether the agreement concluded between the parties was binding and enforceable. The plaintiffs relied on the precedent set in Osborn v McDermott, which suggested that agreements reached during mediation could be binding. The court also had to consider whether specific performance was an appropriate remedy in this context. The defendant contended that the agreement was not binding and that specific performance was not available as a remedy.

The court found that the agreement was not binding and therefore did not govern the parties' relationship. The court held that specific performance was not an available remedy in this case. The plaintiffs' application was properly brought under Supreme Court (General Civil Procedure) Rules 2005 r 54.02. Consequently, the court granted the relief sought by the plaintiffs. The court's decision underscored the necessity for clear and binding agreements in executor relationships and the limited availability of specific performance in such contexts.

Orders