Kannisto v Kannisto (No. 2)

[2019] NSWSC 950

Supreme Court

New South Wales

Medium Neutral Citation:

Kannisto v Kannisto (No. 2) [2019] NSWSC 950

Hearing dates:

26 July 2019

Date of orders:

26 July 2019

Decision date:

26 July 2019

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. The Short Minutes of Order of 3 June 2019 and the settlement contained in the deed of settlement of 21 June 2019 is approved pursuant to s 76 of the Civil Procedure Act 2005 (NSW).

 

2. The release of the defendant's rights under s 95 of the Succession Act 2006 (NSW) is approved.

 3. Confidential Memorandum sealed and marked confidential. Not to be opened without leave from a judge of the Court.

Catchwords:

CIVIL PROCEDURE - parties - persons under legal incapacity – tutors – approval of settlement – release of rights under s 95 of the Succession Act 2006

Category:

Procedural and other rulings

Parties:

Veikko Kaino Kannisto (Plaintiff)
Jorma Kalevi Kannisto (Defendant)

Representation:

Counsel:
N Condylis (Plaintiff)
No appearance (Defendant)

  Solicitors:
Owen Hodge Lawyers (Plaintiff)
Self-represented (Defendant)

File Number(s):

2019/13401

Judgment

1. On 3 June 2019 orders were made to resolve the present proceedings in accordance with short minutes of order. At the time I made the orders, both the parties and I overlooked the fact that the present proceedings were brought by the plaintiff through a tutor because of the plaintiff's mental incapacity.

2. Subsequently, those acting for the plaintiff re-listed the matter on short notice so that approval could be given to the agreement reached pursuant to s 76 of the Civil Procedure Act 2005 (NSW). I was informed on that occasion that the Court would also be asked to approve a release of rights under s 95 of the Succession Act 2006 (NSW) in respect of the defendant.

3. I directed on that occasion that the defendant was to serve an affidavit in relation to the release application by 23 July. No such affidavit has been served. The proceedings were stood over to today. On that occasion there was an appearance by Mr Simons who has been acting for the defendant on a pro bono basis. This morning there is no appearance by Mr Simons or his client, although I am informed that the solicitor for the plaintiff had contact with Mr Simons yesterday.

4. The solicitor for the plaintiff has sworn an affidavit in support of the plaintiff's application to have the settlement approved under s 76. That affidavit has the incidental effect of informing the Court of matters that are relevant also for the release of rights under s 95 of the Succession Act.

5. The proceedings had sought possession of a property in Dapto. The plaintiff was the owner of that property and the defendant, his son, had resided in them for a lengthy period of time. The plaintiff had been admitted to a nursing home some years ago, but it had become apparent to those who held an enduring power of attorney from him that it would be necessary to sell the property in Dapto in order to meet the ongoing expenses of the plaintiff. It was in those circumstances that the present proceedings were brought.

6. The defendant appeared for himself for a period of time but ultimately, through a referral by me for pro bono assistance, he obtained assistance from Mr Simons on a pro bono basis. The defence raised the assertion that the defendant had a life interest to remain in the property. Ultimately, a deed was entered into following the agreement contained in the short minutes of order that led to the judgment and orders made by me on 3 June 2019.

7. Under the settlement set out in the deed it is apparent that the plaintiff has two children, one of whom is the defendant. Under the last Will that he made before he became mentally incapacitated, the plaintiff's property was to be divided equally between the children. In the circumstances of the house being needed to be sold for the plaintiff's ongoing care, it was agreed that the sum of $30,000 would be paid to the defendant as an advancement on his entitlement under the Will of the plaintiff. A sum of $7,000 of that was to be paid within seven days of the orders that were made, and the remaining $23,000 was to be paid from the proceeds of sale of the property. In addition, a further amount of $17,000 was to be advanced to the defendant out of his share of the estate for the payment of the plaintiff's legal costs. Those legal costs were agreed to be capped in that sum.

8. In return for the advancement to the defendant, the defendant has agreed to release any rights that he may have to make a claim under the Succession Act.

9. I have been provided with a confidential advice by counsel who has acted for the plaintiff throughout the course of the proceedings. That advice, amongst other things, provides estimates of the costs which might be incurred if the proceedings were to continue to a final contested hearing. The advice also makes clear what is the estimated value of the plaintiff's property which is to be sold and the amount outstanding under the mortgage on the property.

10. In the circumstances of the matter set out in that advice and by reason of the terms of the deed of settlement, I am satisfied in the first place that this settlement is in the best interests of the plaintiff and should be approved under s 76 of the Civil Procedure Act.

11. I am also satisfied that in the circumstances it is sufficiently to the benefit of the defendant that the court should approve the release of his rights contained in the deed of the 21 June 2019.

12. Accordingly, the orders I make are that the short minutes of order of 3 June 2019 and the settlement, more particularly contained in the deed of settlement of 21 June 2019, be approved pursuant to s 76 of the Civil Procedure Act. I approve the release of the defendant's rights under s 95 of the Succession Act.

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Decision last updated: 26 July 2019