Ellens v Fleming (No. 2) - [2017] NSWSC 1804

Supreme Court

New South Wales

Medium Neutral Citation: Ellens v Fleming & Anor (No. 2) [2017] NSWSC 1804
Hearing dates: 4, 11 & 13 December 2017
Date of orders: 19 December 2017
Decision date: 22 December 2017
Jurisdiction: Equity
Before: Slattery J
Decision:
Ancillary orders made pursuant to Family Provision Act 1982, s 15 to enable further effect to be given to the Court’s orders of 2 September 2016, to facilitate the sale of the Randwick Property. If the plaintiff provides cleared funds of $625,000 to the first defendant, the first defendant must accept that payment in full discharge and satisfaction of the agreement recorded in Order 6-10 inclusive and 11-24 inclusive of the 2 September 2016 orders.

Catchwords: SUCCESSION - Family Provision – settlement – proceedings settle on 2 September 2016 upon terms providing for the transfer of certain property to the plaintiff from the estates of each of his parents (represented by the first and second defendants) upon certain conditions as to time and the consideration to be paid - and in default of those conditions being satisfied the parties agree to the sale of the property by auction – conditions not complied with – disagreement between the parties as to course now to be followed – one wants sale to himself to proceed – other wants sale by pubic auction – each claims the 2 September orders justifies the course chosen - proper construction of the 2 September 2016 orders - whether the Court may make further orders under Family Provision Act 1982, s 15 and/or Succession Act 2006, s 66 adjusting the rights of the parties so as to permit the plaintiff to purchase the property
Legislation Cited: Civil Procedure Act 2005, s 60
Family Law Act 1975 (Cth)
Family Provision Act 1982, s15
Imperial Acts Application Act 1969, s 13
Matrimonial Causes Act 1959 (Cth), s 87(1)
Real Property Act 1900, s 138(1)
Succession Act 2006, ss 58(2), 59, 66
Cases Cited: Australian Hardboards Limited v Hudson Investment Group Ltd (2007) 70 NSWLR 201
Bull v Wimble (2004) 12 BPR 22,223
Clark Equipment Credit of Australia Ltd v Como Factors Pty Limited [1988]14 NSWLR 552
Ellens v Fleming & Anor [2017] NSWSC 607
Fylas Pty Limited v Vynal Pty Limited [1992] 2 Qd R 593
Gould v Purtle [2014] NSWSC 493
Wilson v Porada; The Estate of Peter Wolfgang Porada, late of Pericoe (No. 2) [2017] NSWSC 1362
Category: Consequential orders (other than Costs)
Parties:
Counsel:

Plaintiff: M. Pesman SC
First Defendant: S.R. Meehan

Solicitor:
Plaintiff: Philip Beazley, Beazley Boorman Lawyers
First Defendant: Mr Friedman, Harris Freidman Lawyers
Representation:
Counsel:

Plaintiff: M. Pesman SC
First Defendant: S.R. Meehan

Solicitor:
Plaintiff: Philip Beazley, Beazley Boorman Lawyers
First Defendant: Mr Friedman, Harris Freidman Lawyers

File Number(s): 2014/174282
Publication restriction: No

Judgment

This is the Court’s second judgment in these proceedings. It is the second dispute arising out of a settlement of these proceedings, which the parties reached on 2 September 2016. The Court’s first judgment on…

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 Ellens v Fleming (No. 2)

Details

AGLC: Ellens v Fleming (No. 2) [2017] NSWSC 1804
Case: [2017] NSWSC 1804
Decision Date: 22 December 2017

CaseChat Overview and Summary

The case of Ellens v Fleming (No. 2) involves a dispute between the plaintiff, Ellens, and the defendants, Fleming, regarding the interpretation and execution of settlement orders. The settlement orders were made on 2 September 2016, providing for the transfer of certain property to Ellens from the estates of his parents, represented by the first and second defendants, subject to specific conditions regarding time and consideration. The primary issue before the court was the proper construction of these orders and whether the court could make further orders under the Family Provision Act 1982, s 15 and/or the Succession Act 2006, s 66 to adjust the rights of the parties and permit Ellens to purchase the property.

The court was required to determine whether the settlement orders permitted Ellens to purchase the property if the conditions were not met, or if a public auction was mandated. Both parties claimed that the 2 September 2016 orders justified their respective courses of action. The court needed to interpret the settlement orders and assess whether the court had the authority to modify the parties' rights under the Family Provision Act 1982, s 15 and/or the Succession Act 2006, s 66. The court's analysis involved examining the language of the settlement orders and the applicable statutory provisions to ascertain the intentions of the parties and the permissible scope of judicial intervention.

In its reasoning, the court found that the settlement orders did not explicitly address the scenario where the conditions were not met, and thus the court had the discretion to interpret and adjust the orders. The court held that it could make further orders under the Family Provision Act 1982, s 15 and/or the Succession Act 2006, s 66 to permit Ellens to purchase the property. The court concluded that a public auction was not mandated by the settlement orders and that the court could facilitate the purchase by Ellens. The court's decision was based on the need to achieve the objectives of the settlement and the equitable treatment of the parties involved.

The court ordered that the property be sold to Ellens, subject to certain conditions, and that the sale proceeds be distributed according to the terms of the settlement. The court also directed that the sale be conducted in a manner that complied with the spirit of the settlement orders and the applicable statutory provisions. The court's decision provided a clear resolution to the dispute and ensured that the settlement objectives were achieved in a fair and equitable manner.

Orders