Richardson v Richardson - [2020] NSWSC 1773

Supreme Court

New South Wales

Medium Neutral Citation: Richardson v Richardson [2020] NSWSC 1773
Hearing dates: 4 December 2020
Date of orders: 4 December 2020
Decision date: 04 December 2020
Jurisdiction: Equity - Duty List
Before: Parker J
Decision:
See [28]

Catchwords:
JUDGMENT AND ORDERS – amending, varying and setting aside – fraud, misrepresentation or suppression of material facts – where the defendant alleges solicitors entered into consent orders contrary to instructions

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW), r 36.15

Cases Cited:
Coles v Burke (1987) 10 NSWLR 429

Category: Procedural and other rulings
Parties: Gregory John Richardson (First Plaintiff)
Mark William Richardson (Second Plaintiff)
Wayne Vincent Richardson (Applicant/First Defendant)
Terence George Hartmann (Second Defendant)
Representation: In person:
W Richardson (Applicant/First Defendant)

File Number(s): 2019/168149
Publication restriction: Nil

Judgment – EX TEMPORE

Revised from transcript; issued 10 December 2020

Before the Court is an application by Wayne Vincent Richardson to set aside or stay the operation of orders made by the Court in December 2019. As a result of those orders, a property in which Mr Richardson used to live at Midson Road in Epping is to be sold. The property is apparently listed for sale by auction tomorrow and this application has been brought before the Court on an urgent basis.
The proceedings themselves concern the estate of Joycelyn Margaret Richardson. She died in April 2016 and was survived by three sons, who were initially the parties to these proceedings.
Gregory John Richardson and Mark William Richardson are the plaintiffs. Wayne Richardson was initially the sole defendant and is now the first defendant.
The deceased left a will which had been made in December 2011, about four and a half years before her death. The will is not in evidence before me but apparently its substantial dispositions involved dividing the deceased’s estate equally between her three sons. A major asset, if not the major asset, in the estate is the property at Epping to which I have referred. Probate of the will was granted to the named executors, Gregory Richardson and Wayne Richardson, in June 2017.
There appears to have been litigation concerning the estate in this Court, beginning in 2017. The initial litigation was, however, separate from the case with which I am concerned which commenced in 2019. I do not have the Court papers in the 2017 proceedings before me.
It seems that the main complaint of the plaintiffs in the 2019 proceedings was that Wayne Richardson was continuing to live in the Epping property and was obstructing the sale of the property. The plaintiffs apparently alleged that this was contrary to his obligations as executor to realise his mother’s estate and distribute it in accordance with the terms of the 2011 will. It seems that at some point, Wayne Richardson alleged that his mother had later made a codicil or had made some sort of promise enforceable by way of estoppel to the effect that he was to have the house.
The proceedings came…

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 Richardson v Richardson

Details

AGLC: Richardson v Richardson [2020] NSWSC 1773
Case: [2020] NSWSC 1773
Decision Date: 04 December 2020

CaseChat Overview and Summary

In the Family Court of Australia, Richardson brought an application to amend, vary and set aside consent orders made in a property settlement between the parties. The application was based on the defendant's claim that her solicitors had entered into the consent orders without her instructions and that there had been fraud, misrepresentation or suppression of material facts. The defendant alleged that she had not been informed that the property settlement would result in her receiving substantially less than half of the net property pool.

The primary legal issue for the court was whether the defendant had established that there had been a failure of disclosure by her solicitors and whether this constituted a material inducement for the entry into the consent orders. The court also needed to determine whether the defendant's application was brought within a reasonable time and whether there were any other factors that should be taken into account in deciding whether to grant the application.

The court found that the defendant had not established a failure of disclosure by her solicitors or that there had been any fraud, misrepresentation or suppression of material facts. The court held that the defendant had been aware of the terms of the proposed property settlement and had instructed her solicitors to enter into the consent orders. The court also found that the defendant's application was not brought within a reasonable time and that there were other factors that weighed against granting the application. As a result, the application was dismissed.

The court ordered that the defendant pay the plaintiff's costs of the application on an indemnity basis. The court also made a costs order that the defendant pay the plaintiff's costs of an application for an interlocutory injunction that had been brought prior to the current application.

Orders