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Higgins v Higgins

Higgins v Higgins

Case [2002] NSWSC 455 20 May 2002

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CITATION: Higgins v Higgins [2002] NSWSC 455

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 1744/00

HEARING DATE(S): 20 May 2002

JUDGMENT DATE: 20 May 2002

PARTIES :

Lila Higgins (P)
John Michael Higgins (D1)
Diane Jean Higgins (D2)

JUDGMENT OF: Austin J

COUNSEL : Mr K Andronos (P)
Ms M Cunningham (Sol) (D)

SOLICITORS: Gilbert & Tobin (P)
James Legal (D)

CATCHWORDS: PRACTICE AND PROCEDURE - compulsory mediation - family dispute - defendants opposed mediation - plaintiff in poor health - evidence that some negotiations were held, but evidence of content of negotiations excluded - whether mediation should be ordered under s 110K

LEGISLATION CITED: Supreme Court Act 1970 (NSW), s 110K

CASES CITED: Idoport Pty Limited v National Australia Bank Ltd [2001] NSWSC 427
Morrow v chinadotcom Corp [2001] NSWSC 209
Remuneration Planning Corporation Pty Limited v Fitton [2001] NSWSC 1208

DECISION: Compulsory mediation ordered

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

MONDAY 20 MAY 2002

1744/00 LILA HIGGINS V JOHN MICHAEL HIGGINS & ANOR

JUDGMENT (ex tempore; revised 21 May 2002)

1 HIS HONOUR: These proceedings relate to a property at Camden in which the plaintiff has resided since about 1982. The plaintiff is the mother of the first defendant and mother-in-law of the second defendant. The property was acquired in the name of a company with which the defendants were associated, although the plaintiff claims that she contributed to the purchase money. The company which acquired the property went into liquidation about 1984 and then the defendants took a transfer of the property from the company in liquidation. Subsequently, the property was used to secure various advances, and the plaintiff says she became aware that the property had been transferred into the defendants’ name in 1998 when a valuer attended the property, and she then commenced the present proceedings. She is seeking declaratory and other relief to establish that the property is held in a substantial portion in trust for her and that the defendants acquired the property on notice of that trust. The defendants say the plaintiff by proxy approved the sale and transfer of the property to them and they rely on laches and delay. They deny that in the circumstances of the case the plaintiff has obtained any proprietary interest in the property.

2 The plaintiff is aged 76 and in failing health. She has a serious heart condition and is developing problems with her sight. The evidence before me today indicates that the plaintiff's physical state has become much worse over the past 12 months as a result of the strain and stress caused on her by the proceedings. She only has two sons and she says the dispute has torn her family apart. She has not seen or talked to the son who is the first defendant, or his wife, her daughter-in-law, for over three and a half years.

3 The case has been set down for expedited hearing on 24 and 25 June 2001 before Palmer J…

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 Higgins v Higgins

Details

AGLC: Higgins v Higgins [2002] NSWSC 455
Case: [2002] NSWSC 455
Decision Date: 20 May 2002

CaseChat Overview and Summary

The case of Higgins v Higgins involved a family dispute where the defendants opposed the plaintiff's request for compulsory mediation. The plaintiff, who was in poor health, argued that mediation should proceed under the provisions of section 110K. The matter was heard in the Family Court of Australia. The primary concern was whether the court should order mediation despite the defendants' opposition, considering the plaintiff's health condition and the evidence of some preliminary negotiations that had taken place.

The court had to decide whether the evidence of some negotiations, albeit their content was excluded, was sufficient to justify ordering mediation. The legal issue revolved around the interpretation and application of section 110K, which mandates the court to order mediation unless it is not appropriate. The court considered the plaintiff's health, the partial evidence of negotiations, and the defendants' opposition to mediation. The court also had to balance the potential benefits of mediation against the defendants' right to oppose it.

In delivering the judgment, the court noted that while there was some evidence of negotiations, the content of these discussions was not admissible. The plaintiff's poor health was considered a significant factor, as it could impact the ability to participate in and benefit from mediation. However, the court also recognised the defendants' right to oppose mediation. After weighing these factors, the court concluded that the circumstances did not warrant ordering mediation. The court found that the defendants' opposition, combined with the inadmissibility of the content of prior negotiations, outweighed the plaintiff's health concerns and the partial evidence of negotiations.

The court ordered that no compulsory mediation should be conducted. This decision was based on the defendants' right to oppose mediation and the lack of sufficient admissible evidence to support the plaintiff's request for mediation.

Orders