Watt (by her tutor New South Wales Trustee and Guardian) v Watt

[2014] NSWSC 1916

Supreme Court

New South Wales

Medium Neutral Citation:	Watt (by her tutor New South Wales Trustee and Guardian) v Watt [2014] NSWSC 1916
Hearing dates:	14 November 2014
Date of orders:	14 November 2014
Decision date:	14 November 2014
Jurisdiction:	Equity Division
Before:	Brereton J
Decision:	Settlement agreement approved
Catchwords:	PROCEDURE – compromise and settlement – incapable person – relevance of familial relationship between parties
Legislation Cited:	(NSW) Civil Procedure Act 2005, s 76
Category:	Procedural and other rulings
Parties:	Annie Laurie Watt by her tutor New South Wales Trustee and Guardian (plaintiff) William Matthew Watt (defendant)
Representation:	Counsel: C Zucker (solicitor) (plaintiff) P Lane (defendant) Solicitors: Zucker Legal (plaintiff) Legal Aid NSW (defendant)
File Number(s):	2013/226394

Judgment (EX TEMPORE)

1. HIS HONOUR: By Statement of Claim filed on 25 July 2013, the plaintiff Annie Laurie Watt by her tutor NSW Trustee and Guardian sought an order setting aside a gift of $70,000 purportedly made by her to the defendant her son William Matthew Watt on or about 20 June 2007, and judgment against the defendant for that sum. The sum in question appears to have been the proceeds of sale of a properly formerly owned by the plaintiff, in respect of whom a guardianship order has since been made and who is in a nursing home near Cessnock.

2. The proceedings were settled consequent upon a mediation and the court is asked to approve, pursuant to (NSW) Civil Procedure Act 2005, s 76, the agreement of the parties that there be judgment for the plaintiff for $70,000 and costs, but that execution be stayed while the defendant pays to the plaintiff’s financial manager a lump sum of $10,000 (which amount has been paid), and instalments of $100 per fortnight.

3. It may be observed that instalments of $100 per fortnight approximate to $2,500 per year, which is less than the interest that will accrue under the rules of court on the unpaid balance of the judgment debt. It will, however, result in a modest supplementation of the plaintiff’s income, although there is no realistic prospect that the judgment will be anywhere near satisfied while the plaintiff lives.

4. The defendant is the plaintiff’s only child. The sum of $70,000 was apparently used by him to acquire a property in his name, together with a loan from Westpac which is secured on the property, and in which the court is informed the defendant’s equity is not likely to exceed $50,000.

5. The evidence on the application reveals that there is little evidence available of the plaintiff’s cognitive capacity at the time of the gift in 2007. There is a statutory declaration apparently signed by her in a very frail hand and apparently witnessed by a Justice of the Peace who cannot be located. While the plaintiff’s case appears a reasonably good one, it is therefore not assured of success if the matter were to go to trial.

6. 6 The agreement about enforcement is of some concern to me because it means in practice that the plaintiff will receive very little benefit from the judgment and, as I have said, the amounts paid on the fortnightly basis will not even meet the interest that accrues on the judgment. On the other hand, the NSW Trustee and Guardian is concerned that little more may be obtained by executing against the defendant’s property, and has also taken into account the familial relationship between the plaintiff and the defendant and the likelihood that the defendant would be the sole beneficiary of the plaintiff’s estate. In this type of litigation those are, I think, proper matters to be taken into account.    

7. Accordingly, the court orders that:

1. The agreement between the plaintiff and the defendant contained in a document entitled Short Minutes of Order signed by the solicitor for the plaintiff and the solicitor for the defendant, initialled by me, dated this day and placed with the papers be approved.

8. The court by consent:

1. Gives judgment that the defendant pay the plaintiff the sum of $70,000.

2. Orders that the defendant pay the plaintiff’s costs.

3. Orders that execution of the judgment be stayed so long as the defendant pays to the plaintiff’s financial manager a lump sum of $10,000, which amount is acknowledged to have been paid, and the instalments of $100 per fortnight by electronic transfer to a bank account nominated by the NSW Trustee and Guardian, the first payment to be made not later than 15 November 2014, and fortnightly thereafter.

9. The plaintiff by her tutor agrees, upon the request of the defendant, that it will withdraw its caveat in respect of the defendant’s Cessnock property.

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Decision last updated: 11 February 2015