Gao-Lumsden & Anor v Lumsden & Ors

[2008] NSWSC 436

CITATION:	Gao-Lumsden & Anor v Lumsden & Ors [2008] NSWSC 436
HEARING DATE(S):	5 May 2008
JUDGMENT DATE :	7 May 2008
JURISDICTION:	Equity Division
JUDGMENT OF:	Palmer J
DECISION:	First and Second Defendants entitled to specific performance of agreement.
CATCHWORDS:	CONTRACT – Whether parties made concluded oral agreement – whether parties intended to be bound before execution of formal document. - REPUDIATION – ACCEPTANCE – No evidence of acceptance of alleged repudiation.
LEGISLATION CITED:	Family Provision Act 1982 – s 7 UCPR – 28.2
CATEGORY:	Procedural and other rulings
CASES CITED:	- Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 - Heyman v Darwins Ltd [1942] AC 356 ([1942] 1 All ER 337) - Masters v Cameron (1954) 91 CLR 353 - Niesmann v Collingridge (1921) 29 CLR 177
PARTIES:	Amanda Ping Gao-Lumsden (First Plaintiff) Fei Fei Lumsden by her tutor Amanda Ping Gao-Lumsden (Second Plaintiff) Shaun Lumsden (First Defendant) Armin Peter Lumsden (Second Defendant) Pepimu Pty Ltd (Third Defendant)
FILE NUMBER(S):	SC 5884/07
COUNSEL:	C.M. Harris SC (First Plaintiff) P.J. Livingstone (Defendants)
SOLICITORS:	Atkinson Vinden Heazlewoods (Plaintiffs) Diamond Conway (Defendants)

5884/07 Gao-Lumsden & Anor v Lumsden & Ors

JUDGMENT
7 May, 2008

Introduction

1 The First Plaintiff is the widow of the late Henry Robert Lumsden (“the Deceased”). The Second Plaintiff is the First Plaintiff’s daughter; she is the child of the First Plaintiff’s previous relationship. 2 The Deceased’s will, made shortly before his death, made no provision for the Plaintiffs. The Plaintiffs have commenced proceedings against the First and Second Defendants, who are the Deceased’s sons and the executors of his will, seeking provision for themselves under s 7 of the Family Provision Act 1982 (NSW). The Third Defendant is a company which was controlled by the Deceased. 3 The actual estate of the Deceased has been sworn for probate at a little over $100,000. The Plaintiffs’ claim, however, that certain assets held by the Third Defendant pursuant to a discretionary trust should be treated as the Deceased’s notional estate. The principal asset of the discretionary trust is a residential property at Warrell Creek at which the Plaintiffs and the Deceased lived together from January 2006 until the Deceased’s death in June 2006 (“the Warrell Creek Property”). The Plaintiffs say that they wish to live in the Warrell Creek Property. 4 The Plaintiffs commenced these proceedings by Summons filed on 6 December 2007. By Notice of Motion filed on 23 April 2008 the Plaintiffs seek orders, pending final hearing of the Summons, restraining the Defendants from dealing with or disposing of the Warrell Creek Property and requiring the Defendants to put the Plaintiffs back into possession of the property. 5 The Defendants resist the Plaintiffs’ claim and, in particular, the Plaintiffs’ motion for interim relief, on a number of grounds, the most significant being the Defendants’ assertion that the First Plaintiff has compromised her claim against the estate in a binding agreement. 6 On 4 April 2008, the First and Second Defendants filed a Notice of Motion in which they seek a declaration that the First Plaintiff had entered into a binding agreement on 12 October 2007 whereby the First Plaintiff had settled her claim against the Deceased’s estate. They seek an order that the First Plaintiff specifically perform that agreement by executing a Deed in the form which had been sent, in draft, by the Defendants’ solicitors to the Plaintiffs’ solicitors but had not been executed by the First Plaintiff. 7 Both the Plaintiffs’ and the Defendants’ Notices of Motion came on for hearing together. As a result of some discussion between Counsel for the parties and myself, it was agreed that the Defendants’ Notice of Motion could, and should, be heard on a final basis immediately and that the issue as to whether there was a binding agreement between the First Plaintiff and the First and Second Defendants should be determined separately from other questions in the trial. By consent, I made an order to that effect pursuant to UCPR 28.2. 8 Both parties relied on a number of affidavits. No deponent was required for cross examination.


The facts

9    In 2002 the First Plaintiff, then a resident of China, became acquainted with the Deceased, a resident of New South Wales, by exchange of e-mails. In July 2004, the Deceased travelled to China and he and the First Plaintiff were married there on 27 July 2004. The Deceased then returned to Australia. 10    On 18 June 2005, the Plaintiffs came to Australia and commenced to live with the Deceased. They moved into the Warrell Creek Property in January 2006. 11    In December 2005, the Deceased was diagnosed with cancer and he died on 8 June 2006. The Plaintiffs continued to live in the Warrell Creek Property after his death. 12    Probate of the Deceased’s will was granted to the First and Second Defendants on 3 October 2006. As I have noted, the will made no provision for the Plaintiffs. 13    The Plaintiffs sought legal advice concerning a claim against the estate under the Family Provision Act . The First Plaintiff also made a claim for a benefit from the trustees of the Deceased’s superannuation fund. In May 2007 the trustees of the fund paid a benefit of just over $45,000 to the First Plaintiff. 14    On 27 July 2007, the First Plaintiff’s former solicitor, Mr Maloney, wrote to the Defendants’ solicitor, Ms Cassimaty, advising that he had been instructed to commence proceedings under the Family Provision Act but saying that the Plaintiffs were happy to try to resolve the claim amicably. In that regard, he sought further information about the estate, which Ms Cassimaty provided. 15    According to Ms Cassimaty’s evidence, on 12 October 2007 she had a telephone conversation with Mr Maloney in which he said:
“[Maloney] ‘My client will settle this matter on the following basis:­­–
1. She will retain all monies paid to her from [the superannuation trustees]
2. She wants all her furniture and belongings in the house on lot 5 [i.e. the Warrell Creek Property]
3. She wants all her personal items which are in the shed in lot 7 which include some furniture, books and clothing
4. She wants payment of $10,000.00
5. She will move out 28 days after she receives payment

Ms Cassimaty made a file note of the conversation, which is in evidence.

16    Ms Cassimaty obtained instructions and rang Mr Maloney the same day. The following conversation occurred:
“[Cassimaty] ‘That offer is accepted. I will provide you with a list of items of furniture and furnishings that belong to my client. Can you obtain a list of your client’s belongings.’
[Maloney] ‘That is not a problem. I will provide a list to you.’”
17    In her affidavit, the First Plaintiff says that she had a meeting with Mr Maloney and a barrister on 12 October 2007 concerning her claim against the Deceased’s estate. She says that later that day she rang Mr Maloney and said:
“Shane, I have a few questions which I want clarified after our conference today. I will write to you and ask you my questions which I want to discuss with Mr Giagios. Please don’t contact the other solicitors about a settlement until I have talked to Mr Giagios again.”
18    The First Plaintiff says that on 15 October 2007 she rang Mr Maloney and said:
“I have sent you a letter with all my questions. Please don’t put any settlement offers until you get my letter and discuss it with me.”
19    On 15 October 2007 Ms Cassimaty wrote by facsimile to Mr Maloney as follows:
“Further to our recent conversation relating to settlement of the matter, please find below those items which our client requires to be made available to remain in the home when your client vacates. The list below are items that have been purchased by [the First Defendant] (and not the deceased):
1. Large rear projection television and stereo;
2. Barbeque;
3. Red lounge;
4. Washing machine;
5. Stainless steel Sunbeam fry pan;
6. Skillet;
7. Popcorn maker;
8. Hot dog maker;
9. Royal Doulton dinner set;
10. Gold glass set;
11. Photos that were removed from computer;
12. Framed photos of Armin, Shaun and Henry
13. Bread maker;
14. Bed side tables (x 2);
15. Stainless steel microwave.

It is our view that the following take place:–
1. Deeds of Agreement are signed and exchanged;
2. Your client vacate the premises;
3. Simultaneously with your client vacating the premises, she receives her goods that are in storage;
4. Simultaneously with your client vacating the premises, our client inspect the premises to ascertain that their personal items remain in the premises; and
5. Your client is paid the agreed amount of $10,000.00.

Prior to signing of the Deeds, it would be appreciated if you could confirm that those items set out above will remain in the premises when your client vacates.”
20    The First Plaintiff says that on 1 November 2007 she had a meeting with Mr Maloney in which he showed her some correspondence with Ms Cassimaty relating to settlement. She says that the following was said:

“Mr Maloney: ‘I have already spoken to the solicitors by telephone but nothing is determined until you sign an agreement.’

[First Plaintiff]: ‘I did not tell you to put any offer to the other solicitors. You will remember that I telephoned you that day and told you not to do anything until my questions were answered.’

Mr Maloney: ‘Never mind, you didn’t sign any deed or paperwork. I just talked with them. You should reply about the furniture though.’”
21    By letter dated 6 November 2007 Mr Maloney responded to Ms Cassimaty’s facsimile of 15 October 2007 as follows:

“We refer to your facsimile of 15th October.

We confirm that our client is in general agreement subject to her specifically checking some of the items listed from 1 to 10 and 13 through to 15. As far as she is aware the photos at 11 and 12 were actually taken by Armin? She has no objection however to the boys having any photos of themselves with their father.

Once she has had a chance to go through the house and specifically check the items mentioned, we will let you know. Otherwise would you please forward to us any Deed of Agreement which you would like signed so we can peruse the contents. We have also asked our client to prepare her own list of items which she believes are currently in the storage in Lot 7. We will forward that to you along with our specific instructions in relation to the items numbered in your letter.”

The First Plaintiff says that she gave no instructions to Mr Maloney to send this letter.

22    On 9 November 2007, Ms Cassimaty wrote to Mr Maloney as follows:

“Please find enclosed draft Deed of Agreement. We have listed the items which your client is to ensure remain in the home in Schedule 1. Kindly list your client’s items in Schedule 2.

Please advise when you [sic] client will be in a position to vacate the premises so that this settlement can proceed.”

The enclosed draft Deed was in the following terms:

“ WHEREAS:

A. Amanda claims that she is entitled to provision to be made to her out of the Estate of the late Henry Robert Lumsden who died on 8 June 2006.

B. Shaun and Armin have denied that Amanda is entitled to any provision to be made to her.

C. The parties have agreed to settle the dispute between them on terms specified in this Deed.

NOW THIS DEED WITNESSES THAT:

1. In consideration of Shaun and Armin paying to Amanda the sum of $10,000.00, such payment being made with admission of liability, the receipt of which Amanda hereby acknowledges. The parties hereby agree to mutually release each other from all claims, actions, causes of action, proceedings, accounts, demands, costs and expenses whatsoever they now have or may in the future have in any way arising out of the Estate of the late Henry Robert Lumsden.
2. Simultaneously with order 1 above, Amanda will ensure that those items set out in Schedule 1 attached hereto remain in property lot 5, Amanda Close, Warrell Creek.
3. Simultaneously with order 1 above, Shaun and Armin will make available to Amanda those items set out in Schedule 2 hereto.
4. Simultaneously with order 1 above, Amanda will vacate the premises being lot 5 Amanda Close, Warrell Creek (“the premises”).
5. The parties agree that each will pay their own costs.”

Schedule 1 listed property which was said not to be the Plaintiffs’ property. Schedule 2 was left blank for the First Plaintiff to insert details of her property.

23    By letter dated 23 November 2007, Mr Maloney advised that the First Plaintiff agreed that some items in Schedule 1 of the draft Deed were not her property, denied any knowledge of other items, and asserted that certain items were her property. She supported that claim with a shipping schedule. She listed the items that she claimed were her property. The letter concluded:

“Our client also instructed [sic] a friend of hers approximately the equivalent of AUS $1,000.00 for chinese medicines for Henry. We enclose a copy of the receipt (from China). We will try and clarify the rate of return and the correct name for the friend. Our client instructs us that $1,000.00 ought to be a debt of the estate.

Our client also asks that she be given two months after receipt of money and personal belongings to vacate the premises to allow her to find accommodation. Our client would be happy to leave earlier if accommodation could be found.”

The First Plaintiff says that she gave no instructions to Mr Maloney to send this letter.

24    By letter dated 7 December 2007, the Plaintiffs’ new solicitors advised Ms Cassimaty that they had commenced proceedings under the Family Provision Act . They concluded:
“We note that there was some recent correspondence between the solicitors in relation to settlement negotiations. Our client instructs us that she did not instruct her previous solicitors to make the offer as set out in their letter dated 17 October 2007. In any event, it would appear that there was no concluded agreement. The offer set out in our predecessor’s letter dated 17 October 2007 is withdrawn.”

They sought an undertaking that the Defendants would not deal with the Warrell Creek Property. It was clear that the First Plaintiff intended to continue residing there.

25    On 15 December 2007, the Plaintiffs were denied entry to the Warrell Creek Property. It is not clear precisely by whom this action was instigated as the registered proprietor of the property is the Third Defendant, not the First and Second Defendants. However, it is a fair inference that the First and Second Defendants were instrumental in the Third Defendant regaining possession.


Was a binding contract made?

26    Mr Harris SC, who appears for the First Plaintiff, made no submissions as to Mr Maloney’s authority, or lack of authority, to make a binding offer of settlement on behalf of the First Plaintiff. 27    However, the affidavit of the First Plaintiff asserted that she had expressly forbidden Mr Maloney to make any of the offers which are referred to in the evidence. It is, therefore, necessary to deal with that factual assertion. 28    I conclude that Mr Maloney had both the actual and the apparent authority of the First Plaintiff to make the communications to Ms Cassimaty which he did between 12 October and 23 November 2007. I am not able to accept the evidence of the First Plaintiff in her affidavit that she instructed him to make no such offers, for the following reasons. 29    It is clear that it was Mr Maloney who invited settlement discussions with the Defendants by his letter of 27 July 2007. Ms Cassimaty made a contemporaneous file note of her conversation with Mr Maloney on 12 October 2007. If the First Plaintiff had expressly instructed Mr Maloney earlier on 12 October to make no settlement offer, it is difficult to accept that Mr Maloney deliberately disobeyed those instructions later that day. If he had received instructions to make no offer after he had already spoken to Ms Cassimaty, it is hard to accept that he would not immediately have spoken to her to advise that the offer had been withdrawn or that the First Plaintiff did not wish to proceed with the proposed settlement. 30    The First Plaintiff asks the Court to accept not only that Mr Maloney disobeyed her express instructions given on 12 October, but that he again disobeyed further instructions given on 15 October and on 1 November by sending his letter dated 6 November 2007, saying that the First Plaintiff agreed to the terms of settlement put in Ms Cassimaty’s facsimile of 15 October. The terms of Mr Maloney’s letter of 6 November strongly suggest that Mr Maloney had discussed the 15 October letter with the First Plaintiff after its receipt. 31    If the First Plaintiff’s evidence is to be accepted, Mr Maloney disobeyed the First Plaintiff’s instructions yet again by sending the letter dated 23 November. Its terms also suggest very strongly that Mr Maloney had discussed with the First Plaintiff the terms of Ms Cassimaty’s letter of 9 November, and the enclosed draft Deed of Agreement, after he had received them. 32    If the First Plaintiff’s evidence is accepted, Mr Maloney has been guilty of serious professional misconduct in disobeying express instructions given to him by his client. 33    I note that Mr Maloney was not called by the First Plaintiff to give evidence nor was his file tendered. In the light of the evidence of Ms Cassimaty and the terms of the contemporaneous correspondence, I am very far from making a finding that Mr Maloney repeatedly disobeyed the First Plaintiff’s instructions. I conclude that the First Plaintiff’s evidence is improbable and that I should not accept it. I find that Mr Maloney had express as well as apparent authority to make binding offers for settlement in the terms which he did. 34    Mr Harris submitted that:


– there has been no concluded agreement between the parties because there were matters still to be negotiated and agreed, namely, the identity of items of property to be retained by the parties respectively;

– even if there was a concluded agreement, it was not legally binding because the parties did not intend to be bound unless and until a formal Deed had been executed and delivered.

35    I am unable to accept the submission that there were still contractual terms to be agreed between the parties. The offer put by Mr Maloney on 12 October 2007 and accepted in terms by Ms Cassimaty was that the First Plaintiff would “settle the matter” , i.e. surrender her claim against the estate, on condition that:


– the First Plaintiff would retain the money paid to her by the Deceased’s superannuation trustee;

– she would retain all her furniture and belongings in the Warrell Creek Property and in the shed on Lot 7;

– she would be paid $10,000;

– she would vacate the Warrell Creek Property twenty-eight days after receiving payment of $10,000.

36    That each item of property owned by the parties respectively is not separately identified in the agreement between them does not mean that no agreement has been concluded or that it is too vague to be enforceable. What was the First Plaintiff’s property amongst those items within the Warrell Creek Property and on lot 7 was a question of fact which could, in the event of dispute, be ascertained by enquiry. The parties later discussed providing each other with a list only to assist in ascertaining the fact of ownership or the existence of a dispute which would then have to be resolved for the purpose of carrying the concluded agreement into effect. 37    The acceptance by Ms Cassimaty of the terms offered by Mr Maloney on 12 October resulted in a concluded agreement. There was no reference in that discussion to execution of a Deed or to the parties’ agreement being conditional upon any circumstance. If matters had remained as they were on 12 October, the First and Second Defendants would have been able to enforce the oral agreement made on their behalf between their solicitors as a simple contract. 38    However, by her facsimile of 15 October 2007, Ms Cassimaty proposed a variation to the concluded oral agreement. She proposed that Deeds of Agreement be signed and exchanged and that the First Plaintiff receive payment of $10,000 upon vacating the premises, rather than that the First Plaintiff vacate twenty-eight days after receiving the payment. 39    The First Plaintiff could have rejected that offer of variation, if she had wished, and she could have insisted on performance of the agreement concluded on 12 October. However, Mr Maloney’s letter of 6 November 2007 advised that the First Plaintiff was “in general agreement” . The letter did not go on to make any comment or qualification about the terms which had been agreed: Mr Maloney’s comments were to do only with checking the ownership of some items of property. In short, there was an acceptance by Mr Maloney of the variation which was proposed by Ms Cassimaty’s facsimile of 15 October. 40    I conclude that the concluded oral agreement for settlement made between the parties on 12 October 2007 was varied by a further agreement made on 6 November 2007. The terms of the variation were as contained in Ms Cassimaty’s facsimile of 15 October, accepted by Mr Maloney’s letter of 6 November. The variation added an obligation on both parties to execute and exchange a Deed embodying the terms of their oral agreement and, further, imposed an obligation on the First and Second Defendants to pay $10,000 to the First Plaintiff upon her giving possession of the Warrell Creek Property. Nothing further was left to be agreed between the parties although some items of property owned by the First Plaintiff still had to be identified. 41    I am unable to accept Mr Harris’ submission that the agreement, concluded on 12 October and varied on 6 November 2007, was not intended to be binding unless and until the parties exchanged a formal Deed embodying its terms. My reasons are as follows. 42    This was not a complicated commercial transaction, documentation of which by solicitors would be likely to expose unresolved questions to be negotiated further. It was not a contract for the sale of real property, which is conventionally regarded in New South Wales as binding the parties only upon exchange of counterparts, unless there is a clear indication otherwise. This was a very straightforward settlement of a claim against a very small estate. There was no mention of Deeds in the original discussion between Mr Maloney and Ms Cassimaty on 12 October and there was no mention in subsequent correspondence of execution of a Deed being a condition precedent to the agreement becoming binding. 43    It would be no more than common sense on the part of Ms Cassimaty to require the First Plaintiff to execute a Deed of Agreement as convenient and irrefutable evidence that her claim against the estate was barred. It would be the natural sequence of events that the Deed be exchanged before the other steps in the agreement were performed. However, the fact that the Deed was to be executed first by way of performance of the agreement does not give rise to the inference that the parties therefore intended that they were free to resile from their agreement at any time before the Deed was exchanged. 44    Mr Harris submitted that the facts of the case fall into what is commonly referred to as the third category in Masters v Cameron (1954) 91 CLR 353, at 360. I am unable to agree. 45 The relevant passage from the judgment in Masters v Cameron so succinctly illustrates the principle which, in my opinion, should be applied in the present case, that I set it out in full:

“Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract, the case may belong to any of three cases. It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. Or, secondly, it may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document. Or, thirdly, the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract.

In each of the first two cases there is a binding contract: in the first case a contract binding the parties at once to perform the agreed terms whether the contemplated formal document comes into existence or not, and to join (if they have so agreed) in settling and executing the formal document; and in the second case a contract binding the parties to join in bringing the formal contract into existence and then to carry it into execution. Of these two cases the first is the more common. Throughout the decisions on this branch of the law the proposition is insisted upon which Lord Blackburn expressed in Rossiter v Miller ((1878) 3 App Cas 1124) when he said that the mere fact that the parties have expressly stipulated that there shall afterwards be a formal agreement prepared, embodying the terms, which shall be signed by the parties does not, by itself, show that they continue merely in negotiation. His Lordship proceeded: ‘… as soon as the fact is established of the final mutual assent of the parties so that those who draw up the formal agreement have not the power to vary the terms already settled, I think the contract is completed’ ((1878) 3 App Cas, at p 1151): see also Sinclair, Scott & Co Ltd v Naughton ((1929) 43 CLR 310, at p 317). A case of the second class came before this Court in Niesmann v Collingridge ((1921) 29 CLR 177) where all the essential terms of a contract had been agreed upon, and the only reference to the execution of a further document was in the term as to price, which stipulated that payment should be made ‘on the signing of the contract’. Rich and Starke JJ observed that this did not make the signing of a contract a condition of agreement, but made it a condition of the obligation to pay, and carried a necessary implication that each party would sign a contract in accordance with the terms of agreement. Their Honours, agreeing with Knox CJ, held that there was no difficulty in decreeing specific performance of the agreement, ‘and so compelling the performance of a stipulation of the agreement necessary to its carrying out and due completion’.”
46    In my view, the 15 October facsimile from Ms Cassimaty proposed only that the execution of the Deed of Agreement precede the performance of the other terms of the agreement in a temporal sense, as was the case in Niesmann v Collingridge . That proposal, assented to by the First Plaintiff, did not indicate that the parties were still at liberty to depart from the bargain which they had previously made. 47    I hold that the contract made between the parties on 12 October 2007, as varied on 6 November 2007, was intended to be immediately binding. It may be said to fall within the second category of Masters v Cameron or, arguably, in the first category – it does not much matter which category, as both result in enforceable contracts.


Repudiation

48    Mr Harris submits that if there was a binding and enforceable agreement between the parties, the First and Second Defendants have repudiated it by taking possession of the Warrell Creek Property on 15 December 2007. 49    However, Mr Harris did not follow through his submission of repudiation by pointing to any act of the First Plaintiff whereby she unequivocally elected to accept the alleged repudiation of the First and Second Defendants so that the agreement was terminated and the Court could not now make an order for specific performance. A contract is not terminated automatically by one party’s repudiation or breach: the other party must elect clearly and unequivocally whether to terminate or require performance. If the other party does not elect to terminate, the contract remains on foot: Heyman v Darwins Ltd [1942] AC 356, at 361-62 ([1942] 1 All ER 337); Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435, at 450. 50 The First Plaintiff’s commencement of these proceedings could not be an acceptance by her of the First and Second Defendants’ repudiation of the agreement because commencement of the proceedings preceded the alleged repudiation. In short, Mr Harris has pointed to no evidence upon which I could find that the contract between the parties has been terminated so that neither party has continuing obligations of which the Court can compel performance.


Specific performance

51    The First and Second Defendants offer to perform their agreement with the First Plaintiff so far as it still remains to be performed. The First Plaintiff is no longer in occupation of the Warrell Creek Property but that circumstance does not make the agreement incapable of performance. 52    The agreement requires that the parties execute a Deed of Agreement. A draft of such a Deed was submitted to the First Plaintiff’s solicitor and properly met with no objection as its terms accurately reflected the oral agreement which had been made. If the Schedules to the Deed, specifying the parties’ respective property, cannot be completed by further discussion and agreement, then the Deed can be amended to record the agreement in the form in which it was made orally, that is, the First Plaintiff is to have all of her furniture and belongings on the Warrell Creek Property and lot 7. If the First Plaintiff has, since 15 December 2007, regained possession of some of those items, the First and Second Defendants are, to that extent, discharged from their obligations to perform the Deed. If the First and Second Defendants fail to deliver to the First Plaintiff all of her property, she can sue them for breach of the Deed but, of course, she will have to prove that the First and Second Defendants retain property which was on the Warrell Creek Property and lot 7 and which is hers. 53    The promise of the First and Second Defendants to pay $10,000 was not conditioned upon the First Plaintiff voluntarily surrendering possession of the Warrell Creek Property so that if she did not do so the money was not payable. The giving of possession by the First Plaintiff only provided a time for payment of a sum to be given by the First and Second Defendants in consideration of all the promises of the First Plaintiff, the most important of which was to surrender her claim against the Deceased’s estate. 54    Accordingly, upon execution and delivery of the Deed by the First Plaintiff, the First Plaintiff will be entitled to payment of the sum of $10,000.


Orders

55    The parties have indicated that they wish to discuss the terms of the Short Minutes of Order which will be necessary to give effect to this judgment. If they can agree upon the form of orders, Short Minutes may be sent to me in Chambers and I will make orders without the necessity of any further appearance. 56    I have now made orders by consent dealing with the First Plaintiff’s Notice of Motion. 57    I will stand this matter over into the Registrar’s List at 9.30am on 26 May 2008 for directions as to the further conduct of the proceedings.
– oOo –