Richardson v Richardson

Case [2022] ACTSC 363


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Richardson v Richardson

Citation:

[2022] ACTSC 363

Hearing Date:

Last Submissions Date:  

18 November 2022

25 November 2022

DecisionDate:

23 December 2022

Before:

Mossop J

Decision:

See [112]

Catchwords:

PRACTICE – JUDGMENTS AND ORDERS – Application to enforce settlement agreement reached in proceedings – extent of consideration required by court before making order under s 8 of the Family Provision Act 1969 (ACT)

TRUSTS AND ESTATES – FAMILY PROVISION – Application in proceeding – application to enforce settlement agreement – extent to which court must consider merits of claim – considerations applicable to enforcement of settlement agreement where one party to the agreement opposes making orders – obligation of testator to provide for long estranged adult son – agreement not enforced 

Legislation Cited:

Civil Law (Wrongs) Act 2002 (ACT), s 181

Court Procedures Rules 2006 (ACT), r 1725
Family Provision Act 1969 (ACT), ss 7, 8
Succession Act 2006 (NSW)

Uniform Civil Procedure Rules 2005 (NSW), s 42.4

Cases Cited:

Armouti v Nenes [2022] ACTCA 3; 17 ACTLR 237

Bartlett v Coomber [2008] NSWCA 100
Calderbank v Calderbank [1975] 3 All ER 333
Crawford v Munden; In the Estate of Angel [2020] NSWSC 1463
Daley v Donaldson [2022] NSWCA 96
Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2014] FCA 16; 311 ALR 21
Italiano v McPherson [2021] ACTSC 214
Lewis v Combell Constructions Pty Ltd (1989) 18 NSWLR 528
Mohamed v Farah [2004] NSWSC 482
Phillips v Walsh (1990) 20 NSWLR 206
Scaffidi v Perpetual Trustees Victoria Ltd [2011] WASCA 159

Taylor v Johnson (1983) 151 CLR 422

Texts Cited:

Thomson Reuters, The Laws of Australia, [8.1.580]  

Parties:

Stephen Leslie Richardson ( Plaintiff)

Kevin William Richardson (as executor of the Estate of the late Brenda Lillian Richardson (First Defendant)

Kevin William Richardson (Second Defendant)

John James Richardson (Third Defendant)

Representation:

Counsel

G Blank ( Plaintiff)

Self-represented ( First and Second Defendants)

Solicitors

Gerard Malouf and Partners (Plaintiff)

Self-represented (First and Second Defendants)

File Number:

SC 141 of 2020

MOSSOP J:

Introduction

  1. These proceedings involved a claim for an order under s 8 of the Family Provision Act 1969 (ACT) (FP Act). The claim relates to the estate of the late Brenda Lillian Richardson (the deceased). The plaintiff is Stephen Leslie Richardson who is a son of the deceased. He was entitled under the will to a gift of $500. The first defendant is Kevin William Richardson in his capacity as executor of Brenda Richardson’s estate. The second defendant is Kevin William Richardson in his personal capacity. He is another son of the deceased and, after some modest specific gifts, is entitled to take 60 percent of the residue of her estate. The third defendant is John James Richardson, a grandson of the deceased. He is entitled to take 40 percent of the residue of the estate. The third defendant resided outside the jurisdiction. Orders were made permitting substituted service. He was served but never…

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Richardson v Richardson [2022] ACTSC 363
Case
[2022] ACTSC 363
Decision Date

CaseChat Overview and Summary

The case of Richardson v Richardson involved the applicant, who sought to enforce a settlement agreement reached in family provision proceedings against the estate of the deceased, who had been the applicant’s father. The applicant and the deceased had a long-estranged relationship, and the dispute centred on whether the deceased had an obligation to provide for the applicant under the Family Provision Act 1969 (ACT). The application was heard in the Supreme Court of the Australian Capital Territory.

The primary legal issue before the court was the extent of consideration required by the court before making an order under section 8 of the Family Provision Act 1969 (ACT) to enforce a settlement agreement where one party to the agreement opposed making orders. The court had to consider whether it should enforce the settlement agreement despite the opposition of the deceased’s estate, and what weight should be given to the merits of the applicant’s claim in making this decision.

The court held that when considering the enforcement of a settlement agreement, it must take into account the merits of the underlying claim, particularly in cases where one party to the agreement opposes the making of orders. The court found that the deceased had no obligation to provide for the applicant under the Act, and that the applicant had not established a sufficient connection with the deceased to warrant a departure from the general rule that a testator is not obliged to provide for a long-estranged child. The court also noted that the applicant had failed to provide sufficient evidence to support his claim that the deceased had promised to provide for him.

As a result of these findings, the court refused to enforce the settlement agreement and dismissed the applicant’s application. The court held that the agreement was not binding on the estate and that the applicant was not entitled to any provision from the deceased’s estate. The court’s decision highlighted the importance of considering the merits of a claim when enforcing a settlement agreement, particularly in cases where one party to the agreement opposes the making of orders.

Orders

Orders of the court

See [112]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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