Hall by her tutor NSW Trustee and Guardian v Hall

[2021] NSWSC 862

Supreme Court

New South Wales

Medium Neutral Citation:

Hall by her tutor NSW Trustee & Guardian v Hall [2021] NSWSC 862

Hearing dates:

16 July 2021

Date of orders:

16 July 2021

Decision date:

16 July 2021

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Order that settlement of the claim by the plaintiff and the cross-claim by the defendant be approved pursuant to s 76(4) of the Civil Procedure Act 2005 (NSW).

2. Order that the Defendant vacate the property known as 17 The Citadel, Manyana NSW (‘the property’) by 1 September 2021.

3. Judgment for the plaintiff for possession of the land comprised in Folio Identifier 573/545798 being the property situated at and known as 17 The Citadel Manyana NSW 2539.

4. Grant leave for a writ of possession for the property, 17 The Citadel, Manyana NSW to issue forthwith.

5. Order that paragraphs 3 and 4 herein be stayed until 2 September 2021.

6. Order that the sum of $100,000.00 be paid to the Defendant from the proceeds of sale of 17 The Citadel, Manyana NSW, within fourteen (14) days of the settlement of the sale.

7. Order that for every week or part thereof in which the Defendant is in occupation of the property after 1 September 2020, he is to pay an occupation fee of $200.00 per week; such amount to be deducted from the lump sum referred to in paragraph 6.

8. Order the Plaintiff to keep the Defendant informed about the sale of the property, including when and by whom the home is listed, the proposed auction date, any exchange of contracts and the proposed settlement date.

9. Order that on and from the date 1 month and 1 day after the making of Orders, the Defendant will allow the Plaintiff, or any real estate agent engaged by the Plaintiff, access to the property for the purpose of marketing the property for sale. The Plaintiff will provide the Defendant with 48 hours’ notice for any access. The Plaintiff reserves Saturday for access to the property between 9:00am - 4:00pm.

10. Order that the Amended Statement of Claim otherwise dismissed.

11. Order that the Cross-Claim is otherwise dismissed.

12. Order that future listing dates be vacated.

Catchwords:

JUDGMENTS AND ORDERS - amending, varying and setting aside - consent orders - set aside - parties attended court-annexed mediation – both parties legally represented - parties signed consent orders requiring court approval - defendant alleged he was pressured to sign orders - where nothing in affidavit of defendant evidencing undue pressure to settle proceedings - no basis for setting aside agreement reached at mediation

REAL PROPERTY - possession of land - defendant’s mother owner of premises with NSW Trustee & Guardian as her financial managers - where plaintiff the registered proprietor of the land and defendant in occupation of the land - where defendant alleged constructive trust from agreement with plaintiff to look after her and maintain the property - resolution at mediation - parties signed consent orders requiring court approval due to legal incapacity of plaintiff - settlement approved pursuant to s 76(4) Civil Procedure Act

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 73, 76

Cases Cited:

Harvey v Phillips (1956) 95 CLR 235

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Joan Valma Hall by her tutor NSW Trustee & Guardian (Plaintiff)
Daniel Hall (Defendant)

Representation:

Counsel:
R W Tregenza (Plaintiff)
In person (Defendant)

Solicitors:
Lamrocks (Plaintiff)
Self-represented (Defendant)

File Number(s):

2020/296256

Publication restriction:

Nil

Judgment

1. These proceedings commenced on 15 October 2020 seeking possession of land at 17 The Citadel, Manyana. The premises were owned by Joan Valma Hall. The defendant is the son of Mrs Hall.

2. The basis of the claim was simply that the plaintiff was the registered proprietor of the land, that the defendant was in occupation of the land, and that the plaintiff required the defendant to vacate the land.

3. In a defence filed on 7 April 2021, when the defendant had solicitors acting for him, the defendant admitted the matters pleaded by the plaintiff, but said in response to the whole of the statement of claim that the plaintiff had historically permitted him to possess the land, and had expressed the intention that he was entitled to possession of the land during her lifetime and to possession of the land after her death.

4. In a cross-claim, the defendant sought a declaration that the plaintiff held the property on constructive trust:

To enable the defendant/cross-claimant to occupy the property for the balance of his life or as long as he so chooses:

(a)   In accordance with an agreement reached between [the] plaintiff/cross-defendant and the defendant/cross-claimant; or

(b)   In the alternative, on the basis of promissory estoppel.

5. The defendant also sought an order that the NSW Trustee & Guardian, as the tutor and financial manager for the plaintiff, be restrained from selling or otherwise dealing with the property in any way that undermined the said trust.

6. The pleading alleged that the property was bought by the defendant in 1984 for $20,000, and that he constructed the home on it. He pleaded that he sold the property to the plaintiff on or about 14 October 1999 for $200,000, although it was valued at approximately $250,000.

7. He pleaded that the plaintiff invited him to move into the home in 2013 to assist with her care and to attend to the maintenance, upkeep and repair of the property. He pleaded that there was an oral agreement at that time, whereby the plaintiff would enable the defendant to occupy the property without paying rent or an occupation fee during her lifetime for the balance of his life or as long as he so chose, and that she would leave a will which would enable him to occupy the property on the same terms after her death. The consideration for that arrangement was that the defendant would look after her during her lifetime and assist with her care, and would attend to the maintenance, upkeep and repair of the property.

8. The defendant pleaded that, acting on the plaintiff’s representations, he has attended to the maintenance, upkeep and repair of the property since 2013 by paying rates, utilities and insurance, and carrying out various work in and around the property, including painting, gardening, fencing, as well as renovating the kitchen. He also assisted the plaintiff with her care.

9. The defendant also pleaded that the plaintiff executed a will on 9 February 2018 appointing him as executor, and appointing him and one of his sons as the trustees of the plaintiff’s residuary estate. The will provided for the residuary estate, not including the house property, to be converted into cash and invested, with the income to be distributed at the trustee’s discretion amongst identified beneficiaries including the defendant. He pleaded that the will also granted a right of occupation to him in respect of the property so long as he wished, provided he paid outgoings, insurance premiums and rates.

10. In those circumstances, the defendant pleaded that the property is impressed with a constructive trust, because it would be unconscionable for the NSW Trustee & Guardian as financial manager for the plaintiff to resile from the agreement or act in any way contrary to it.

11. On 5 December 2018 the NSW Trustee & Guardian was appointed the financial manager of the plaintiff, and on 2 October 2019, the plaintiff moved into an aged care facility.

12. The parties served all of their evidence in the matter, and on 9 April 2021 I listed the matter for a final hearing on 15 September 2021. In the meantime, the parties agreed to attend a court-annexed mediation, which took place on 22 June 2021. The report from the Registrar of the Court, who was the mediator, indicated that the matter was settled with consent orders to be submitted to the Common Law Registrar. The parties forwarded consent orders to the Court. However, I considered that the settlement required the Court’s approval because of the legal incapacity of the plaintiff. Accordingly, I directed that affidavits be filed by those acting for the plaintiff to explain why the matter was settled on the terms agreed.

13. The affidavits were duly filed. The matter was listed for approval before me on 9 July 2021. In the meantime, the solicitors for the defendant filed a Notice of Intention of Ceasing to Act.

14. My Associate was contacted by the defendant himself saying that he wished to ask the Court to dismiss the consent orders and have the matter heard in Court. He said that he asked for some time to consider the consent orders, and he was pressured to sign. He said he had received conflicting advice “about such”. It is not entirely clear what he meant by that.

15. When the proceedings came before me on 9 July 2021, the defendant’s solicitor appeared as a matter of courtesy to the Court, because sufficient time had not elapsed for the filing of a Notice of Ceasing to Act. The defendant himself also appeared. The defendant reiterated what had been said in a message to my Associate. He said the matter was a complex one which he wanted to be able to explain to the Court. He said he wished he had been able to have a cooling off period.

16. I said to the defendant that if he wanted to assert that the settlement was achieved by some unfair or pressured means, he was going to have to put on evidence about that. I directed that any such affidavit be served by close of business on 14 July 2021, and stood the proceedings over to today to determine if the settlement should first be enforced and, secondly, if it should be approved.

17. My Associate was forwarded a copy of an affidavit of the defendant on 14 July. The affidavit in its entirety reads as follows:

1.   I am the defendant.

2.   I ask the Court to consider my equatorial estoppall (sic) interest in mother Joan Hall’s estate (the plaintiff) as I am executor of her will.

3.   I was encouraged to accept the consent orders as all I will get from my mum’s home. It is obvious mum wants me to have her home. I seek to renegotiate the terms.

4.   The trustee’s barrister Mr Tregenza acted for me trying to save my multi-million dollar headland home, previously, some years ago.

5.   I seek the matter be adjourned to allow me time for legal help.

6.   I ask the Court allow me to plead my case that my mum feels cheated by my sisters and she trusts me, as said in her July 2018 letter.

7.   My mum and I had no problems until the Trustee took unnecessary control of her life and finances.

8.   She still wishes to see Qld but is kept against her will in Ferndale Home. I ask she be allowed to see her own doctor and she is only allowed the nursing home doctors.

18. The settlement achieved at the mediation was contained in consent orders that were signed by the solicitors for the plaintiff and the defendant, by a representative of the NSW Trustee & Guardian, and by the defendant himself. The orders provided:

1. Orders that the Defendant vacate the property known as 17 The Citadel, Manyana NSW (‘the property’) by 01 September 2021.

2. Orders for possession of 17 The Citadel Manyana NSW to the Plaintiff.

3. Grants leave for a writ of possession for the property, 17 The Citadel, Manyana NSW to issue forthwith.

4. Orders that paragraphs 2 and 3 herein be stayed until 02 September 2021.

5. Orders that the sum of $100,000.00 be paid to the Defendant from the proceeds of sale of 17 The Citadel, Manyana NSW, within fourteen (14) days of the settlement of the sale.

6. Orders that for every week or part thereof in which the Defendant is in occupation of the property after 01 September 2020, he is to pay an occupation fee of $200.00 per week; such amount to be deducted from the lump sum referred to in paragraph 5.

7. Orders the Plaintiff to keep the Defendant informed about the sale of the property, including when and by whom the home is listed, the proposed auction date, any exchange of contracts and the proposed settlement date.

8. Orders that on and from the date 1 month and 1 day after the making of Orders, the Defendant will allow the Plaintiff, or any real estate agent engaged by the Plaintiff, access to the property for the purpose of marketing the property for sale. The Plaintiff will provide the Defendant with 48 hours’ notice for any access. The Plaintiff reserves Saturday for access to the property between 9;00am - 4:00pm.

9. Orders that the Amended Statement of Claim otherwise dismissed.

10. Orders that the Cross-Claim is otherwise dismissed.

11. Orders that future listing dates be vacated.

19. Under s 73 of the Civil Procedure Act 2005 (NSW) the Court has jurisdiction in proceedings to determine any question in dispute between the parties as to whether the proceedings have been compromised or settled between them.

20. An issue was raised by the defendant’s affidavit about whether there might have been a conflict of interest in the barrister for the plaintiff acting for the plaintiff in circumstances where he had acted some years previously for the defendant. In response to that, the solicitor for the plaintiff filed an affidavit annexing correspondence with the defendant’s solicitors prior to the mediation.

21. The letter from the solicitors for the plaintiff drew attention to the fact that counsel had acted for the defendant some seven years earlier, but that counsel had instructed he could see no conflict of interest in acting for the plaintiff. The defendant’s solicitors were asked to confirm if they had any objection to counsel acting for the plaintiff. The solicitors replied saying that they anticipated instructions that no objection would be made to counsel appearing, and subsequently, no objection was made.

22. Harvey v Phillips (1956) 95 CLR 235 was a case where the plaintiff settled a personal injury case after considerable pressure was exerted on her by her family, friends and her lawyers. Subsequently, she sought to set aside the settlement. In refusing to do so, the High Court said (at 242-244):

But the difficulty which confronts the plaintiff is that her counsel when he signed the terms of settlement acted in accordance with the authority which she gave…

[I]n the case of a compromise which is made within the actual as well as apparent authority of counsel a court does not appear to possess a discretion to rescind it or set it aside. The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like.

…

The difficulty in the present case lies in the very unwilling and ephemeral character of the consent which the plaintiff was led to give. But it is enough if she expressed a real intention to consent, even if experience might have suggested that it was an attitude she was not likely to maintain. In the circumstances one might have expected that she would be asked to sign a written authority. But that was not done. However the finding of the Supreme Court, supported as it is by evidence, suffices to establish that she definitely did give her authority, however reluctant it may have been. It is impossible to regard the authority she thus gave as insufficient to support the compromise. The issue is one which must be considered from the defendants' point of view as well as from hers. When the defendants accepted the compromise requiring them to pay £4000 they believed that thereby they were putting an end to the litigation. They acted upon the statement made by her counsel that the compromise was made with the authority of the plaintiff. Once it appears that the plaintiff did in fact give an assent which had not been withdrawn up to the moment when the terms of settlement were signed, it can be nothing to the point to say afterwards to the defendants that it was the result of her real desires or her judgment being overborne by her advisers, whatever may have been the degree of moral pressure that she felt.

23. By comparison with what occurred in Harvey v Phillips, the defendant actually signed the terms which had been agreed. Further, there is nothing in the affidavit of the defendant which provides evidence of any undue pressure to settle the proceedings in the way they were settled. The defendant says only that he was encouraged to accept the consent orders as being all he would get from his mother’s house.

24. The remainder of the affidavit suggests only a desire on the defendant’s part to reconsider the settlement he willingly entered into at the mediation. I have regard to the fact that the defendant was represented at the mediation by solicitors who had been acting for him since his first defence and cross-claim were filed in November 2020.

25. Although it is no part of my role to consider the worth of the settlement to the defendant, in the light of the evidence concerning the wills made by the plaintiff at various times, the evidence relating to the plaintiff’s capacity, and the defendant’s evidence in the proceedings, the settlement reached does not stand out as being inherently unfavourable to the defendant in any way that might suggest that no reasonable person in the defendant’s position would have agreed to it.

26. At the hearing this morning, the defendant informed me that he had spoken yesterday with representatives of the NSW Trustee & Guardian, and put a further proposal to them whereby he would rent the property rather than it being sold. He indicated that he also wanted to put yet a further proposal to them.

27. In response to that, I gave counsel for the plaintiff a short adjournment to obtain instructions from his client in relation to those further proposals. Counsel subsequently informed me that his instructions were that his client wished to seek to enforce the arrangement that had been reached at the mediation.

28. In my opinion, there is no basis for setting aside the agreement that was reached between the parties at the mediation.

29. As to the approval of the settlement, the plaintiff relied on affidavits of Glenn Kirk sworn 3 May 2021, Farnaz Maghami of 5 July 2021 and Marco Manna of 5 July 2021. Mr Manna is the plaintiff’s solicitor.

30. It is clear from the affidavit of Mr Kirk that unless the property in Manyana is sold, the plaintiff’s financial assets would be exhausted within a 21 month period. A report had been prepared on 27 April 2020 by Kinh Chau, an authorised representative of the NSW Trustee & Guardian. Based on daily nursing home fees, that report showed a cash flow shortfall of $52,000 per year if the plaintiff did not enter into an arrangement by the payment of a Refundable Accommodation Deposit of $448,000. The report of Mr Kirk, which was a review of Ms Chau’s statement of advice, similarly advised of the need to sell the property to meet the Refundable Accommodation Deposit.

31. That advice both provided the basis for the bringing of the proceedings in the first instance and for settling of the proceedings on the basis set out in the agreed short minutes of order, having regard, first, to the fact that the claim by the defendant was not without any value and, secondly, to issues concerning costs of the proceedings.

32. I am satisfied that the settlement should be approved pursuant to s 76(4) of the Civil Procedure Act.

33. Accordingly, I make the following orders:

1. Order that settlement of the claim by the plaintiff and the cross-claim by the defendant be approved pursuant to s 76(4) of the Civil Procedure Act 2005 (NSW).

2. Order that the Defendant vacate the property known as 17 The Citadel, Manyana NSW (‘the property’) by 1 September 2021.

3. Judgment for the plaintiff for possession of the land comprised in Folio Identifier 573/545798 being the property situated at and known as 17 The Citadel Manyana NSW 2539.

4. Grant leave for a writ of possession for the property, 17 The Citadel, Manyana NSW to issue forthwith.

5. Order that paragraphs 3 and 4 herein be stayed until 2 September 2021.

6. Order that the sum of $100,000.00 be paid to the Defendant from the proceeds of sale of 17 The Citadel, Manyana NSW, within fourteen (14) days of the settlement of the sale.

7. Order that for every week or part thereof in which the Defendant is in occupation of the property after 1 September 2020, he is to pay an occupation fee of $200.00 per week; such amount to be deducted from the lump sum referred to in paragraph 6.

8. Order the Plaintiff to keep the Defendant informed about the sale of the property, including when and by whom the home is listed, the proposed auction date, any exchange of contracts and the proposed settlement date.

9. Order that on and from the date 1 month and 1 day after the making of Orders, the Defendant will allow the Plaintiff, or any real estate agent engaged by the Plaintiff, access to the property for the purpose of marketing the property for sale. The Plaintiff will provide the Defendant with 48 hours’ notice for any access. The Plaintiff reserves Saturday for access to the property between 9;00am - 4:00pm.

10. Order that the Amended Statement of Claim otherwise dismissed.

11. Order that the Cross-Claim is otherwise dismissed.

12. Order that future listing dates be vacated.

**********

Decision last updated: 20 July 2021