Sheppard v Heathcote

[2022] VSC 795

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2021 00109 &
S ECI 2021 00946

SUZANNE LOUISE SHEPPARD	Plaintiff
v
BERNARD DAVID HEATHCOTE (who is sued in his capacity as the Executory and Trustee of the Will and estate of ROBERT DIGBY HALIBURTON SMITH SHEPPARD, deceased)	Defendant

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JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	5, 6 December 2022
DATE OF JUDGMENT:	20 December 2022
CASE MAY BE CITED AS:	Sheppard v Heathcote
MEDIUM NEUTRAL CITATION:	[2022] VSC 795

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WILLS & ESTATES – Plaintiff claims an accounting of the estate of her deceased father – Where plaintiff has released the right to an accounting in consideration of a settlement of a Part IV claim – Administration and Probate Act 1958 (Vic) s 28.

CONTRACT – Settlement agreement – Rescission – Misrepresentation – Where plaintiff has failed to demonstrate any material misrepresentation – Where plaintiff has failed to tender restitution.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Self-represented
For the Defendant	Mr R Wells of counsel	Ellinghaus Weill

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Background......................................................................................................................................... 2

What the plaintiff seeks.................................................................................................................... 5

2008 Settlement................................................................................................................................... 6

Events subsequent to the 2008 Settlement.................................................................................... 7

The 2010 Settlement........................................................................................................................... 8

Events since the 2010 Settlement.................................................................................................. 10

Conclusion......................................................................................................................................... 17

HIS HONOUR:

Introduction

1. Ms Sheppard initiated two proceedings by originating motion that now fall for determination. In each proceeding, relief is sought from Mr Heathcote in his capacity as executor of the Will and Estate of Robert Digby Haliburton Smith Sheppard, deceased. The deceased was the plaintiff’s father and the defendant’s father in law.

1. The first proceeding seeks an order for accounts relating to the administration of the estate pursuant to s 28 of the Administration and Probate Act 1958 (Vic). In the second proceeding a claim for that relief is repeated. The plaintiff also seeks orders:

(a)   That the plaintiff’s 2010 terms of settlement be set aside on the grounds of misleading conduct by the executor resulting in losses for the plaintiff when making the 2010 terms of settlement with the executor;

(b)  That if the defendant fails to file the account, the Registrar may apply by summons to the court and the court may remove the executor or make such order as it thinks fit.

1. The plaintiff gave comprehensive releases by the 2010 Settlement that preclude any entitlement against the executor for orders for accounts. The issues in the proceeding were cascading.

(a)   Was the plaintiff entitled to an order setting aside the 2010 Settlement? If not, the proceedings must be dismissed.

(b)  If yes, is the plaintiff entitled to an order for accounts.

1. I have determined, for the reasons that follow, that the plaintiff is not entitled to an order setting aside the 2010 Settlement. It is unnecessary to consider the remaining questions and the proceeding will be dismissed.

1. No point was taken that a proceeding to set aside a settlement agreement ought to be a writ proceeding and…