Fraser v Moxham

[2006] NSWSC 346

CITATION:	Fraser v Moxham [2006] NSWSC 346
HEARING DATE(S):	20/4/06
JURISDICTION:	Equity Division
JUDGMENT OF:	Young CJ in Eq
EX TEMPORE JUDGMENT DATE:	04/20/2006
DECISION:	The defendant is bound by the deed executed after mediation to settle proceedings. Defendant to pay costs of proceedings.
CATCHWORDS:	DEEDS [13][14] Deed in settlement of proceedings after mediation- Deed executed by defendant- Defendant claimed misapprehension and misrepresentation as to plaintiffs' claims on the estate- Defendant sought to withdraw consent before final party signed- Final party signed within reasonable time- Deed binding at law- Insufficient material to set it aside in equity.
CASES CITED:	Naas (Lady) v Westminster Bank [1940] AC 366 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
PARTIES:	John Stirling Fraser (P1) Mary Augusta Cooper (P2) Francesca Anne Cooper (P3) Frances Stoschek (P4) Carolyn Pettit (P5) Anne Moxham (D)
FILE NUMBER(S):	SC 6467/05
COUNSEL:	M S Willmott SC (P) Defendant in person
SOLICITORS:	Colin Daley Quinn (P)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Thursday 20 April 2006

6467/05 - FRASER v MOXHAM

JUDGMENT

1 HIS HONOUR: The plaintiffs are the executor of the estate of the late York Cooper and persons who made claims against his estate. The claims were made in various suits in this Court and appeared to be resolved after a mediation before Mr Mediator Grahame Berecry on 18 October 2005.

2 On that occasion a deed was produced, of which the five plaintiffs and the defendant were parties. The deed recited the estate and the claims, and each of the claims was dealt with. There was also a claim by the present defendant that there was a secret trust and that matter was also dealt with in the deed. The deed provided that no interest would be running on any of the lump sums if paid before 18 January 2006 and thereafter, in the events which have happened, interest at 6 percent.

3 The fourth plaintiff, Ms Stoschek, was to pay $500,000 to the estate and she also had to do that before 18 February 2006, which, as things have turned out, she has not done, but it would appear that she will do so in the near future. Ms Stoschek was not present at the mediation, but all the other parties were present and each of them appeared to be represented by a lawyer, including the defendant.

4 There is no doubt that the defendant signed the deed on that day and that everybody else, other than Ms Stoschek, signed the deed on that day. The defendant was to provide the first plaintiff's solicitor with certain details, and she did this both on 18 October and 21 October 2005. However, on 2 November 2005 she wrote to the first plaintiff's solicitor a letter which contained the following:

“At the mediation meeting on 18 October, both my barrister and solicitor gave the impression that the deed drawn up was typed that day by Mr Greg McNally. My solicitor made some comment in respect to a laptop and the font used. I was extremely tired, frustrated and angry at what had happened and took their word that the deed was as agreed that day.”

5 On 8 November the defendant wrote to the first plaintiff's solicitor:

“I would like to confirm I do not intend to proceed with the draft deed signed on 18 October, 2005. I was not given the chance to present the documents forwarded to you on 2nd inst., and have still not been given the opportunity to refute the claims made by the plaintiffs."

6 This was replied to by the first plaintiff's solicitor the next day, noting that the deed that was signed on 18 October 2005 was not a draft deed, and on the day after that they wrote again saying:

“We are of the view the Deed is binding.

Accordingly we intend to seek orders from the Court in due course."

7 The present proceedings were commenced on 22 December 2005. They came into the expedition list. A statement of claim was filed on 1 March 2006, to which the defendant pleaded orally before me on 3 March 2006 setting out her defences. They were essentially that she did not understand the purport of the deed because of misapprehensions and misrepresentations. Further she said that the deed did not come into force as it was not signed by all parties, a precondition to its operation, prior to her withdrawing from the deed. The fact is that Ms Stoschek did not execute the deed until 10 November 2005, that is at least two days after the defendant withdrew her consent.

8 The rules as to how one deals with a deed which is intended to be signed by all parties, but is not initially so signed, is a trifle obscure, but was clarified by the House of Lords in Naas (Lady) v Westminster Bank [1940] AC 366. Ordinarily, once a party delivers a deed then the deed is binding. However, the court may infer in any particular case that a deed is delivered conditionally upon another person signing it within a reasonable time, and if that person does not sign within a reasonable time then the deed never comes into effect.

9 There is also another rule in Equity which is dealt with in the judgments by Viscount Maugham and Lords Russell and Wright in the Naas case, that if a person acts on the basis that a person who has not signed the deed will sign it, then Equity may treat the deed as being operative.

10 In the present case it was quite clear that Ms Stoschek was not present on 18 October 2005 and that she would have a reasonable time to sign it. She signed it approximately 22 days after the mediation. Now, were it not for the fact that she almost certainly was apprised of the defendant's attitude, a matter which I would be tempted to infer, one would have no doubt at all that signing a document within a month would be a reasonable time.

11 This was litigation that had gone on for some time. The deceased had died on 6 July 2003. The first piece of litigation commenced in 2004, and there had been a failed mediation earlier in 2005. I do not consider that the events of 2 and 8 November, that is, the defendant's attitude in writing, are sufficient to accelerate reasonable time for Ms Stoschek to make her election. Accordingly, if it were not for some matters of Equity, such as actionable misrepresentation, or unconscionable conduct, the deed would be enforced.

12 It may well be that the defendant was not able to comprehend fully what was in the deed, and that her eyesight was affected by a recent operation on her eyes. However, the law requires finality. Where a person has signed a deed, which on the authorities is the most solemn legal act they can perform, and a fortiori when that person has lawyers present, the court requires fairly convincing material to come to the view that either at law the deed should be treated as a nullity under the doctrine of non est factum, or in Equity if the other parties to the deed are sought to be restrained from acting on it, or the deed set aside.

13 The facts are that it may be that the defendant was under a misapprehension, but there is no material before me to suggest that the plaintiffs were the source of those misrepresentations and misapprehensions. The misrepresentations appear to be that various misstatements were made on oath by some of the plaintiffs as to the strengths of their claims and that in fact they had no claim at all. That was a matter which was a misrepresentation during the mediation, not a misrepresentation as to the effect of the deed, if of course there was any misrepresentation at all.

14 The mere fact that the defendant was under a misapprehension, even accepting that she was so, is not a reason for setting aside the deed, nor does it go to non est factum.

15 Accordingly, the defendant is bound by the terms of the deed in the absence of any acceptable evidence of fraud or other relevant vitiating fact: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165.

16 Accordingly, I will make a declaration in accordance with para 1 of the statement of claim that the deed is in force.

17 Mr Willmott SC for the plaintiff also asks for damages, but there is no cause of action at law or in Equity on which such a claim can be based and, accordingly, I decline to make any order for damages.

18 Mr Willmott also sought an order for indemnity costs. The court making a declaration does not increase the validity of the deed. The deed was operative from the day it was made. The proceedings were understandably brought because of the defendant's attitude, but I do not consider that there is any warrant or precedent for making an order for indemnity costs merely because a suit is for a declaration that something which would clearly appear to be the case is the case. Accordingly, all I do is to make order 1 in the statement of claim and order that the defendant pay the costs of the proceedings. The exhibits may be returned after 28 days.

*****************