Cugley v Tara Renee MacPherson by her Guardian ad litem Debra Ann MacPherson
[2015] WASC 156
•20 MAY 2015
CUGLEY -v- TARA RENEE MACPHERSON by her Guardian ad litem DEBRA ANN MACPHERSON [2015] WASC 156
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 156 | |
| 20/05/2015 | |||
| Case No: | CIV:1983/2012 | 24 MARCH 2015 | |
| Coram: | PRITCHARD J | 24/03/15 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Agreement to settle the proceedings is approved | ||
| B | |||
| PDF Version |
| Parties: | JOSHUA DEAN CUGLEY TARA RENEE MACPHERSON by her Guardian ad litem DEBRA ANN MACPHERSON THE REGISTRAR OF TITLES |
Catchwords: | Application for approval of an agreement pursuant to O 70 r 10 of the Rules of the Supreme Court 1971(WA) Person under a disability Whether the terms of the proposed agreement are for the benefit of the person under a disability |
Legislation: | Rules of the Supreme Court 1971 (WA), O 70 r 10 |
Case References: | Dion Giuseppe Sergi by his next friend Aileen Solowiej v Sergi [2012] WASC 18 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
TARA RENEE MACPHERSON by her Guardian ad litem DEBRA ANN MACPHERSON
First Defendant
THE REGISTRAR OF TITLES
Second Defendant
Catchwords:
Application for approval of an agreement pursuant to O 70 r 10 of the Rules of the Supreme Court 1971(WA) - Person under a disability - Whether the terms of the proposed agreement are for the benefit of the person under a disability
Legislation:
Rules of the Supreme Court 1971 (WA), O 70 r 10
Result:
Agreement to settle the proceedings is approved
Category: B
Representation:
Counsel:
Plaintiff : Mr M G Hales
First Defendant : Mr C S Williams
Second Defendant : No appearance
Solicitors:
Plaintiff : Minter Ellison
First Defendant : Solomon Brothers
Second Defendant : No appearance
Case referred to in judgment:
Dion Giuseppe Sergi by his next friend Aileen Solowiej v Sergi [2012] WASC 18
- PRITCHARD J:
(This judgment was delivered extemporaneously on 24 March 2015 and has been edited from the transcript.)
1 This application is brought by Ms Debra MacPherson, the mother of Tara MacPherson. For convenience I will refer to Tara by her first name in these reasons. No disrespect is intended. Ms MacPherson is Tara's guardian ad litem and limited administrator pursuant to the Guardianship and Administration Act1990 (WA). She seeks approval of a settlement of this action - which was commenced by the plaintiff in 2012 against Tara and against the Registrar of Titles - pursuant to O 70 r 10 of the Rules of the Supreme Court 1971 (WA) (RSC). By letter dated 19 April 2013, the Registrar of Titles advised the plaintiff's solicitors and the Court that the Registrar did not intend to enter an appearance, and agreed to abide by any orders made by the Court (on the assumption that no cost orders were made against the Registrar, and that no difficulty would arise in respect of any orders that might be made by the Court as against the Registrar).
2 For the reasons which follow, I am satisfied that the settlement should be approved by the Court. In these reasons I will deal with the following matters:
1. The history of the matter;
2. The procedural basis for the application;
3. The principles in relation to O 70 r 10 RSC;
4. The factual bases of the application for approval; and
5. Why approval should be granted in this case.
1. The history of the matter
3 The plaintiff commenced this action by writ of summons seeking an order that the Registrar of Titles amend the Certificate of Title in respect of land in Beckenham in the State of Western Australia (the property), so as to record the plaintiff as the sole registered proprietor of the property. The plaintiff alleged that in or about May 2007, he and Tara acquired the property as joint tenants, that they resided at the property together from that point but, by late 2007, Tara had ceased to reside at the property.
4 The property was subject to a mortgage given as security for a bank loan for the majority of the purchase price. The plaintiff claimed that since May 2007 he had made all of the repayments in respect of the loan. The plaintiff also claimed he had paid all of the outgoings in respect of the property, and that Tara had not contributed in that respect.
5 The plaintiff claimed that prior to September 2008 he and Tara reached an oral agreement that he would pay her $15,000, that in consideration of this payment Tara would transfer her interest in the property to him, that the plaintiff would then arrange to become the sole borrower in respect of the loan, and that he would release Tara from liability in respect of the mortgage and the loan. (There was also a suggestion at one point that the agreement had been evidenced in writing by two documents signed by the parties.) The plaintiff claimed part-performance of that agreement by virtue of his payment of money to Tara, that he had fulfilled his obligations under this agreement, but that Tara had refused to transfer her interest in the property to him, in breach of the agreement.
6 In the defence, the first defendant did not dispute any of the facts in respect of the acquisition of the property, the existence of the loan or of the mortgage. The first defendant's case was that the property was purchased for $324,000, of which Tara contributed $12,000, and that the loan was for a large proportion of the purchase price. The first defendant denied that the plaintiff had paid all of the mortgage repayments and outgoings in respect of the property. The first defendant's case was that, in addition to providing a contribution to the deposit, Tara had contributed to the property by providing household items, and made payments for maintenance and repairs at the property. The first defendant also contended that the repayments of the loan during the period in which Tara resided at the property came from a joint bank account into which she contributed her salary. However, she accepted that the plaintiff made all repayments of the loan after Tara stopped living at the property. The first defendant also claimed that since March 2008, the plaintiff had been living at the property in sole possession of it and had not paid Tara any rent.
7 The first defendant denied the existence of the agreement pleaded by Mr Cugley but claimed that even if there was an agreement, it was voidable and not enforceable because it was not evidenced in writing.1 The first defendant also pleaded that, if any agreement had been reached, it was the result of the plaintiff's unconscionable conduct. That unconscionable conduct was said to have arisen because Tara was in a vulnerable position vis-à-vis the plaintiff by virtue of various difficulties relating to her intellectual capacity and mental health, that the plaintiff knew of these difficulties, and that, despite this knowledge, the plaintiff did not suggest or ensure that Tara obtained independent legal advice or other advice in respect of the agreement.
8 Consequently, the first defendant denied that the plaintiff was entitled to any relief, or that the Court had power to make the orders sought by the plaintiff.
9 The first defendant also pleaded a counter-claim against the plaintiff. She alleged that the joint tenancy of the property had been severed, that Tara and the plaintiff thereafter held the property as tenants in common, and she sought an order that the Court direct a sale of the property pursuant to s 126 of the Property Law Act 1969 (WA).
10 Following mediation, the plaintiff and the first defendant reached an agreement to settle the action (the proposed settlement).
2. The procedural basis for the application
11 Order 70 r 10(1) RSC provides:
No settlement or compromise, and no acceptance of money paid into court, whenever entered into or made, in any cause or matter… in which there is a claim by or on behalf of or against a person under disability, shall be valid unless it is approved by the Court.
12 Order 70 r 10(2) RSC requires that an application for approval under r 10(1):
if made before a hearing of the cause or matter, shall be by summons in chambers… and shall be supported by affidavit and by the opinion of an independent counsel; but the Court or judge may dispense with the necessity of obtaining counsel's opinion.
13 The first defendant's solicitors have made an application in writing for approval of the proposed settlement. The proposed settlement is set out in a document entitled 'Deed of Settlement and Release',2 a copy of which was provided to the Court. The application for approval of the proposed settlement was not supported by an affidavit. The first defendant's solicitors sought the Court's indulgence to refrain from filing an affidavit having regard to the very modest sum of money involved, and to the limited means of the first defendant, and on the basis that the Court would be able to proceed on the basis of information already before it. I formed the view that it was appropriate to proceed on that basis, having regard to the limited sum of money involved, and in view of the fact that this is a rather exceptional case in which I was able to be satisfied that the Court's approval ought be given, on the basis of the information already before the Court, relevant aspects of which were not in dispute.
14 For the same reason, I also formed the view that it was appropriate to dispense with the necessity of obtaining the opinion of an independent counsel, as is ordinarily required by O 70 r 10(1) RSC. I did, however, hear from the first defendant's solicitor, Mr Williams, who confirmed that he provided advice to the first defendant, the tenor of which was that the proposed settlement is for Tara's benefit, that the first defendant has considered and understood that advice and that she has approved the proposed settlement.
3. The principles in relation to O 70 r 10 RSC
15 The Court has an inherent power to approve an agreement to compromise an action brought on behalf of a person under a disability if it is satisfied that it is for the benefit of the person to do so. Order 70 r 10 RSC merely provides a framework for the Court to exercise its power. The Court must consider the proposed compromise from the perspective of the person under the disability, and determine, from that perspective, whether the terms of the compromise are fair and whether the compromise is for that person's benefit. The role of the Court is not to hear the application as if it were the substantive hearing and then to give or withhold its approval by comparing the offer with the judgment which it would have given.
16 The role of the Court in considering an application under O 70 r 10 RSC and the factors to be considered in doing so were discussed by his Honour EM Heenan J in Dion Giuseppe Sergi by his next friend Aileen Solowiej v Sergi.3 It is unnecessary to repeat his Honour's discussion of the principles here, but I gratefully rely upon that summary of the principles.
17 In summary, in order for the proposed settlement to be approved in this case, the Court must satisfy itself that:
(i) the proposed settlement will be for Tara's benefit;
(ii) all the facts relevant to the matter have been brought together and considered by the first defendant's legal advisers;
(iii) the proposed settlement is supported by the opinion of an independent counsel who has given proper consideration to all aspects of the case, and
(iv) the independent counsel's opinion has been considered, understood and approved by the first defendant.
4. The factual bases of the application for approval
18 I have been provided with a copy of the proposed Deed of Settlement which the parties intend to execute if the Court's approval is obtained.
19 Without revealing in detail the terms of the proposed settlement, it suffices to say that its key terms involve the payment by the plaintiff to Tara of a very modest sum of money in addition to that which she has already received. Following that payment, the first defendant will provide a transfer of Tara's undivided half share in the property to the plaintiff. Tara will then be released from any liability, past and future, in respect of the loan and the mortgage, and the parties will execute consent orders for the dismissal of the action with no order as to costs.
20 Counsel have advised that the property was purchased for approximately $324,000, that the present value of the property appears to be in the vicinity of approximately $400,000, but that there remains a very significant mortgage liability in respect of the property. As I have already mentioned, since late 2007 or early 2008, the repayments for the loan of about $2,000 per month have been made by the plaintiff.
5. Why approval should be granted in this case
21 Having regard to the information before the Court and to the terms of the proposed settlement, I am satisfied that the proposed settlement will be for Tara's benefit for the following four reasons.
22 First, the amount that Tara will receive, though modest, appears to be consistent with the modest change in the value of the property, the value of contributions she made to the property (through her financial and other contributions), the amount outstanding in respect of the loan, and the contributions claimed to have been made by the plaintiff to the property and to the repayment of the loan.
23 Secondly, it was never part of the first defendant's defence that she was entitled to the entirety of the property, but only to a share in it.
24 Thirdly, there may have been some difficult evidentiary questions for each of the parties to the action had the matter proceeded to trial. These would potentially have related to the financial contributions made by the parties, the proof of the extent of Tara's difficulties and the appreciation of those difficulties by the plaintiff (relevant to the question of unconscionability), the existence of any agreement as to the disposal of Tara's interest in the property, and evidence in relation to the valuation of the property.
25 Finally, had the proceedings continued, there was the potential that questions regarding this Court's jurisdiction to deal with the action may have arisen, such as whether the parties were in a de facto relationship at the time of their joint residence at the property, and in relation to the plaintiff's claim for relief as against the Registrar of Titles.
26 Having regard to the submissions I have heard from counsel, I am satisfied that the facts relevant to the first defendant's defence of the action, her counter-claim, and the implications of the settlement, have been brought together and considered by her solicitors. I am also satisfied that advice has been provided to, and properly considered and understood by, the first defendant, and that she approves of the proposed settlement.
27 For all of these reasons, pursuant to O 70 r 10 RSC, I approve the proposed settlement.
1Property Law Act 1969 (WA) s 34.
2 Although presently undated, the document is marked as at February 2015.
3Dion Giuseppe Sergi by his next friend Aileen Solowiej v Sergi [2012] WASC 18 [37] - [42].
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