Richard Joseph Richards v Jessica Kathleen Fletcher

[2018] NSWSC 503

Supreme Court

New South Wales

Medium Neutral Citation:	Richard Joseph Richards v Jessica Kathleen Fletcher and Others [2018] NSWSC 503
Hearing dates:	17 April 2018
Date of orders:	17 April 2018
Decision date:	17 April 2018
Jurisdiction:	Equity - Expedition List
Before:	Sackar J
Decision:	Declarations and Orders Made
Catchwords:	EQUITY – Trusts and trustees – Judicial advice – Declarations and orders made in support of Deed
Cases Cited:	Painaway Australia Pty Ltd v JAKL Group Pty Ltd [2011] NSWSC 205 Corporate Affairs Commission of NSW v Transphere Pty Ltd (1988) 15 NSWLR 596 Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417
Category:	Principal judgment
Parties:	Richard Joseph Richards (Plaintiff) Jessica Kathleen Fletcher (nee Peoples) Courtney Tiekle (nee Fletcher) Maxwell Fletcher Darren Arthur Peisley Christina Madeleine Graham
Representation:	Counsel: D Barlin (Plaintiff)   Solicitors: Teece Hodgson & Ward (Plaintiff)
File Number(s):	2018/91530

Judgment

The Proceedings

1. The Plaintiff is the executor of the estate of the late Kevin John Fletcher who died on 10 April 2016.

2. By Summons filed on 22 March 2018 the Plaintiff seeks declaratory relief with the intent that all the interested parties are bound by that relief.

3. In particular the declaratory relief relates to whether the Plaintiff is justified in distributing the estate pursuant to a Deed dated 19 December 2017 signed by all relevant parties and/or their tutors. Having carefully considered the materials, I made orders on 17 April 2018 that the Plaintiff was justified in distributing the estate pursuant to the 19 December 2017 Deed. These are my reasons in support of those orders.

4. The Plaintiff moves principally on an affidavit of Richard Joseph Richards 15 March 2018.

5. Numerous other affidavits were also relied upon together with various consents to either act as tutor or trustee, as follows:

Affidavit of Asheetha Sara Jelliffe, 26 March 2018;

Affidavit of Stephen John Lennon, 7 March 2018;

Affidavit of Yvonne Le Bas, 7 March 2018;

Affidavit of Darren Arthur Peisley, 8 March 2018;

Affidavit of Douglas Burns Simpson, 15 March 2018;

Affidavit of Christina Madeleine Graham, 19 March 2018;

Affidavit of Paul John Gunson, 21 March 2018

Background Facts

6. The deceased did not leave a formal will. Probate was however granted on 4 January 2017 on informal documents being an email from the deceased to the Plaintiff on 1 January 2016 and an Excel spreadsheet.

7. Without rehearsing all of the details the parties and their various representatives in the light of the imprecision which emerges from a reading of the email and spreadsheet and in order to avoid costly proceedings, have compromised their respective claims. They have recorded that compromise in the Deed previously referred to.

8. The deceased was survived by his wife as at the date of his death being Jessica Fletcher who is the First Defendant in the proceedings. He had two adult children, Courtney (the Second Defendant) and Maxwell (the Third Defendant).

9. At the date of his death he also had two small children Eden and Leo.

10. The deceased had previously been married but divorced. The Second and Third Defendants are the children of the deceased with his first wife.

11. The Plaintiff and all of the First to Third Defendants are parties to the Deed. The Deed provides that the First Defendant has executed the Deed both in her personal capacity and also as legal guardian of Eden and Leo.

12. On 18 October 2012 the deceased had entered into a binding financial agreement pursuant to section 90D of the Family Law Act 1975 (Cth) with his first wife Anita. There has been no release by Anita of the deceased’s estate and she is not a party to these proceedings however no claims have been made by her with respect to the estate and it is not anticipated she will do so.

13. On 12 October 2012 the deceased and the First Defendant entered into a binding financial agreement pursuant to section 90B of the Family Law Act 1975 (Cth). No application has been made and is not being made in these proceedings for a release by the First Defendant of the estate.

14. Whilst Eden and Leo are parties to the proceedings Mr Darren Peisley and Ms Christina Graham have consented to act as their tutors and have filed consents pursuant to Rule 7.16 of the Uniform Civil Procedure Rules 2005 (NSW).

15. All of the Defendants including Darren and Christina in their capacity as tutors have executed the Consent Short Minutes of Order.

The nature of the Proceedings

16. These proceedings are somewhat unusual. It is in effect a joint application by all relevant parties that the Court make certain declarations. The declarations would entitle the Plaintiff to distribute the estate pursuant to the terms of the Deed. By the nature of the application made final relief is being sought.

17. The Court has a wide discretion to grant declaratory relief. In broad terms for a party to have sufficient standing to seek and obtain the grant of declaratory relief it must satisfy a number of tests. For example the proceedings must involve the determination of a question that is not abstract or hypothetical. In other words there must be a real question involved. Further the applicant for declaratory relief will not have sufficient status if relief is claimed in relation to circumstances that have not yet occurred or might never happen and the parties seeking declaratory relief must have a real interest to raise it. Generally but not always there must be a proper contradictor: Painaway Australia Pty Ltd v JAKL Group Pty Ltd [2011] NSWSC 205.

18. Whether the matter is one involving consent as here or not the Court must determine that it is appropriate to make declarations and should not make them unless it is of the view that it has been given all of the materials necessary to make the relevant findings of fact and law: Corporate Affairs Commission of NSW v Transphere Pty Ltd (1988) 15 NSWLR 596 at 606.

The issues

19. The particular documentation left by the deceased, namely the spreadsheet and the email give rise to a number of construction issues. The deceased refers to him showing various assets and he gives some indication of how he intended to allocate them. In addition the spreadsheet itself contains construction issues because there are references to definitive values or possible values. The spreadsheet also gives rise to questions about what assets of the estate the deceased intended to deal with.

20. Further and as an example, so far as the email is concerned, there are references to what may be thought to be a gift to the First Defendant to be held arguably on trust for the “boys” schooling and upbringing. That would appear clearly to be a reference to Eden and Leo.

21. It is contended that the documents are dispositive of the deceased’s estate. However the property gifted in the documents it is submitted creates a degree of uncertainty. I agree. Because of the ambiguity of some of the expressions used by the deceased being unclear, there are a number of possible outcomes as to what he was intending to give in what proportions. A similar situation arose in Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417 at 422 per Dixon J.

22. If I may say so, wisely the parties and their representatives have decided that it is in the best interests of all concerned if matters are compromised. In negotiating the compromise each relevant party has had independent legal advice.

23. In seeking to give effect to the deceased’s wishes the Deed has the effect of creating three trust estates for Eden and Leo being “an education fund” (clauses 4.2 and 6.1 of the Deed), “a living expenses fund” (clauses 4.3 and 6.2 of the Deed), and “an inheritance fund” (referred to in clauses 4.4.4 and 6.3 of the Deed).

24. The Plaintiff submits that the establishment of the Trusts more correctly reflects and gives effect to the intent of the deceased. Unsurprisingly the Plaintiff is seeking to protect himself from any claims that the minors may have but for the establishment of clearly defined trusts. In my view that is a prudent course to adopt.

25. Upon the approval of the Deed, Darren and Christina should appropriately be appointed as Trustees of those trusts. Section 70 of the Trustee Act1925 (NSW) in that event applies. In my view they are appropriate to be appointed as trustees and I agree again with the Plaintiff’s submissions that it is prudent and preferable to have two independent trustees appointed.

26. The effect of the Deed will lead to efficient administration of the estate. The parties have in effect agreed that all five of the Defendants of the deceased are to obtain one fifth each of the net estate. This has the effect of leading to some minor adjustments in the actual amounts itemised by the deceased. The Deed also provides for the parties’ agreement as to the value of assets of the estate, the various liabilities and the precise manner of distribution and also the releases.

27. In my view it was appropriate in the circumstances to make declarations and the orders in accordance with the short minutes.

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Decision last updated: 24 April 2018