Kerley v Kerley - [2018] VSC 703

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S CI 2017 05165

IN THE MATTER of the will and estate of LORETTO MARY KERLEY, deceased

PETER JAMES KERLEY and CATHRYN ELIZABETH KERLEY	Plaintiffs
v
JOHN FREDERICK KERLEY (who is sued both as the executor of the will of LORETTO MARY KERLEY, deceased and personally)	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	15 November 2018
CASE MAY BE CITED AS:	Kerley & Anor v Kerley
MEDIUM NEUTRAL CITATION:	[2018] VSC 703

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COSTS – Where plaintiffs sought specific performance of terms of settlement – Proceeding resolved by agreement save as to costs – Where parties sought costs orders against each other – Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms C McOmish	Weir & Strempel
For the Defendant	Sinisgalli Foster Legal

HER HONOUR:

Introduction

Loretto Mary Kerley died on 11 February 2015. She was survived by her three adult children, being the first plaintiff (‘Peter’), the second plaintiff (‘Cathryn’) and the defendant (‘John’). Her son, Richard predeceased her.

Probate of her will dated 14 May 2009 was granted to John, with leave reserved to Peter, on 27 July 2015.

On 5 October 2015, Cathryn issued a proceeding seeking further provision from the estate of the deceased, with Peter as the first defendant and John as the second defendant, in their capacities as executors of the estate of the deceased.

On 1 March 2016, the parties compromised the proceeding and other issues in relation to the deceased and the estate. Terms of settlement were executed on 1 March 2016.

Application by the plaintiffs

By originating motion filed 19 December 2017, Peter and Cathryn sought, inter alia, specific performance of the terms of settlement by John, personally and in his capacity as executor of the estate of the deceased.[1] Peter and Cathryn accept that the terms of settlement were performed, save for the terms relating to the delivery by John of certain model train sets and estate films on or before 1 April 2016. Pursuant to the terms:
[1]On the first return, an order was made for the proceeding to continue as if it had been commenced by writ, pursuant to r 4.07(1)(a) of the Supreme Court (General Civil Procedure) Rules 2015.

(a) John was to make the estate films available to Peter for copying by a professional copyist chosen by Peter, the expert copyist was to be located in Melbourne, and Peter was to pay the cost of the copying for both himself and Cathryn;

(b) John was to deliver Peter’s model train set and one half of the model train sets then remaining to Peter, with the exception of John’s model train set and Richard’s model train set; and

(c) John was to deliver Richard’s model train set, including the engine and carriages, 00 gauge…

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.

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Details

Case: [2018] VSC 703
Decision Date: 15 November 2018

CaseChat Overview and Summary

Kerley v Kerley involved a dispute between the parties concerning the enforcement of settlement terms. The case was heard in the Supreme Court of Queensland. The plaintiffs sought specific performance of the terms of a settlement reached between the parties, while the defendants argued against the enforcement of those terms. The court was required to determine whether the terms of the settlement were binding and enforceable and, if so, whether the plaintiffs were entitled to specific performance. Additionally, the court had to consider the costs implications of the proceedings, given that the parties had already settled on the merits but continued to dispute the costs.

The court examined the circumstances surrounding the settlement, including the intentions of the parties at the time of the agreement. It considered whether the settlement terms were clear and unambiguous and whether there were any impediments to enforcing the agreement. The court also reviewed the principles established in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin, which addressed the allocation of costs in situations where parties have settled but continue to dispute the costs. The court weighed the conduct of the parties, the outcome of the proceedings, and the overall fairness in determining the appropriate allocation of costs.

The court concluded that the settlement terms were indeed clear and enforceable, and that the plaintiffs were entitled to specific performance. However, in determining the costs, the court found that both parties had acted unreasonably in their pursuit of costs, and therefore neither party was entitled to a costs order against the other. The court emphasised the importance of parties adhering to the terms of a settlement and the need for courts to carefully consider the conduct of parties in allocating costs.

The court's final order was that the terms of the settlement were enforceable, and that neither party was entitled to costs. This decision underscored the principle that while settlements are generally to be enforced, the conduct of the parties post-settlement can impact the costs outcomes.

Orders