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 1. 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. 2. 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. 3. Gregory John Richardson and Mark William Richardson are the plaintiffs. Wayne Richardson was initially the sole defendant and is now the first defendant. 4. 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. 5. 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. 6. 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. 7. The proceedings came before Lindsay J on 9 December 2019. Both the plaintiffs, Gregory and Mark Richardson, and the defendant, Wayne Richardson, had retained solicitors and were represented by counsel. Lindsay J recorded by way of formal notation an agreement between the parties that: 1. the grant of probate made in June 2017 be revoked; 2. a grant of administration should be made to an independent administrator; and 3. by undertaking or order a time should be appointed as the time by which Wayne Richardson should vacate the Midson Road property. 1. The proceedings returned to court three days later and again the parties were represented by solicitors and counsel. Lindsay J made various orders consequential upon the agreement to which I have referred. In particular he ordered that the June 2017 grant of probate be revoked and that letters of administration with the will of December 2011 annexed be granted to Terence George Hartmann, an independent solicitor, to complete the administration of the deceased's estate. His Honour also ordered that Wayne Richardson deliver up to Mr Hartmann vacant possession of the Midson Road property no later than 23 January 2020. 2. These orders did not bring the proceedings to an end. Lindsay J noted that there remained at least one issue to be resolved, namely what allowance, if any, should be made by Wayne Richardson to the estate for his use and occupation of the Midson Road property after the deceased's death. 3. His Honour also reserved, for further consideration, the question whether either of the executors (Gregory Richardson and Wayne Richardson) might be entitled to indemnification out of the estate for expenses incurred in administering the estate pursuant to the probate granted in June 2017. His Honour also reserved the question of costs. 4. Subsequently the proceedings have been re-listed on a number of occasions. Since March 2020 they have been case managed by Hallen J. In the course of the directions hearings, Hallen J ordered that Mr Hartmann be joined as the second defendant. 5. Wayne Richardson has not participated in the directions hearings before Hallen J. As I have mentioned, at the time of the orders made by Lindsay J, he was represented by solicitors and counsel. He has since fallen out with them and since January this year has been self-represented. 6. Mr Richardson told me that he had been unaware of the hearings before, and directions made by, Hallen J since March. But it is his responsibility, as a party representing himself in proceedings before the Court, to maintain communication with the Court so as to be able to appear at hearings of the proceedings. 7. On 18 May, Hallen J granted Mr Hartmann leave to issue a writ of possession. It seems that Mr Hartmann has had possession of the property since mid-July pursuant to the Court's orders. When the matter was last before Hallen J on 30 November his Honour noted that the property had been listed for sale by auction tomorrow. The matter will return to his Honour's list on 11 December, that is next Friday. 8. The present application came before me in the Duty List as a result of an urgent approach made by Mr Wayne Richardson to the Court yesterday. Mr Richardson produced a notice of motion and supporting affidavit which were dated and appeared to have been prepared in July of this year but which had not previously been filed. 9. The notice of motion sought that the order of Lindsay J made on 12 December last year for possession of the property be set aside and that Mr Richardson be restored to possession of the property pending determination of claims foreshadowed against the estate. These claims were described in the proposed order as being recorded in a statement of claim which Mr Richardson has prepared but which has not yet been filed. The notice of motion also sought to have the other orders made by Lindsay J stayed. 10. When he came before me, Mr Richardson asked me either to make the orders in the notice of motion or at least to make orders in the nature of the stay. That stay would have the effect of preventing the sale scheduled for tomorrow. 11. The application was made to me ex parte, and it is not clear whether Mr Richardson made any attempt to contact the solicitors acting for his brothers or Mr Hartmann before approaching the Court. Ordinarily I would, in those circumstances, have made orders for short service designed to give the parties affected by Mr Richardson's motion an opportunity to be heard before the sale takes place tomorrow, but in view of the lack of time I thought it best to grant Mr Richardson leave to file the notice of motion and to consider his application so as to decide whether it had sufficient substance to warrant notice of it being given to the defendants and for an urgent hearing then to be held. 12. In his submissions, Mr Richardson asserted that, in agreeing on his behalf for him to give up possession of the property, his solicitors had acted contrary to his interests and (although this was not entirely clear), his instructions. Mr Richardson's affidavit did not come close to providing the sort of evidentiary detail which would be required to sustain such a serious allegation but in any event it does not matter. If his solicitors acted against his interests or contrary to his instructions that may give him a right to sue them but it does not, of itself, provide a basis for setting aside orders made by the Court. 13. In the course of his argument I referred Mr Richardson to Uniform Civil Procedure Rules 2005 (NSW), r 36.15. That Rule relevantly provides: 36.15 General power to set aside judgment or order (1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith. 1. I indicated to Mr Richardson that the rule might be engaged but that ordinarily it would be necessary to demonstrate that the representatives of the opposing parties had in some way been responsible for, or at least complicit in, irregularity, illegality or action against good faith: Coles v Burke (1987) 10 NSWLR 429 at 437. 2. Mr Richardson conceded that even if his solicitors had acted contrary to his interests and his instructions, he had no evidence that the solicitors for his brothers were aware of that. Accordingly, as I understood him, Mr Richardson accepted that he could not rely upon the rule in the circumstances of this case. 3. Mr Richardson strongly and passionately urged me at least to grant a stay in the interests of justice. But I explained to Mr Richardson that it is not open to me to grant a stay of orders made by another Judge merely because of sympathy for a litigant, based on the circumstances in which that litigant finds himself. A stay can only be granted if there is sufficient basis for thinking that the order in question can successfully be challenged. Even in such a case a stay does not follow automatically. Other relevant factors, such as the balance of convenience and delay, must be considered. 4. In the present case the delay is extreme. I am asked to stay the effect of an order made almost a year ago in circumstances where I have not had the opportunity to hear the parties affected, but where it is certain that the grant of such a stay will delay the administration, and will probably result in the incurring of additional costs. 5. There is no satisfactory explanation in the evidence for why this application was not made much earlier. Mr Richardson indicated to me that he has experienced personal difficulties over the past year or so, especially since the beginning of the Covid‑19 emergency. But none of that justifies the Court in riding roughshod over the rights of the other parties to this litigation, who have no doubt been conducting themselves in the assumption that events will proceed in accordance with the regular hearings held by the Court. 6. Furthermore, for the reasons I have given, I do not discern, in the material presented by Mr Richardson, sufficient prospects of obtaining an order setting aside Lindsay J's orders to justify the grant of a stay. 7. Mr Richardson has done his best to present his arguments. As I have mentioned, he has spoken passionately; but his arguments lack legal substance. In these circumstances there is no need for me to keep the notice of motion pending before the Court and give the other parties an opportunity to respond to it. It is self-evidently lacking in substance and must be dismissed. 8. The order of the Court on the notice of motion filed 4 December 2020 and dated 30 July 2020 is: 1. Order that the motion be dismissed.