Re Baldwin; Application for Judicial Advice [2023] NSWSC 1311 [2023] NSWSC 1311

Supreme Court New South Wales

Medium Neutral Citation: Re Baldwin; Application for Judicial Advice [2023] NSWSC 1311 [2023] NSWSC 1311 Hearing dates: 2 November 2023 Date of orders: 2 November 2023 Decision date: 02 November 2023 Jurisdiction: Equity Before: Elkaim AJ Decision: See [12] Catchwords: SUCCESSION – administration of estate – judicial advice – resolution of proceedings by executors including claim and cross claim – suppression of advice Legislation Cited: Trustee Act 1925 (NSW), s 63 Cases Cited: Application of Baldwin [2021] NSWSC 1438 Category: Principal judgment Parties: Peter Graeme Baldwin (First Plaintiff) Stephanie Anne van Hilten (Second Plaintiff) Representation: Counsel: Mr J Brown (Plaintiff) Ms J Thornton (Plaintiff)

Solicitors: P A Keith (Plaintiff) File Number(s): 2023/302374

JUDGMENT 1. These proceedings originally started with the filing of a summons seeking judicial advice in 2020. On 16 April 2021 Lindsay J ordered that the substantive proceedings were to continue on an adversarial basis. Accordingly, the plaintiffs filed a statement of claim in May 2021 and then an amended statement of claim on 30 September 2022. 2. The first defendant filed a cross-claim on 25 June 2021. The current status of that matter is that the defendants are defending the amended statement of claim and the plaintiffs are defending the cross-claim. 3. The background to the claims arise from the will of Ms Denise Melane dated 20 November 2018. Ms Melane died in early July 2019. A grant of probate was made on 13 November 2020. The plaintiffs are the executors of the will. The defendants were the recipient of monies paid to them by the deceased during her lifetime. The first defendant is also a beneficiary under the will. 4. The dispute between the parties has been comprehensively described in a decision concerning an application for judicial advice (Application of Baldwin [2021] NSWSC 1438). Parker J was asked to give advice on the appropriateness of the proceedings being continued by the plaintiffs. I gratefully adopt the history set out in the Advice. Suffice to say his Honour said the executors were justified "in taking all reasonable steps to pursue claims against" the defendants. 5. On 10 September 2023 the plaintiffs filed a further summons for judicial advice, again under s 63 of the Trustee Act 1925 (NSW). 6. The advice now sought by the plaintiffs is whether they are justified in resolving the whole of the proceedings in accordance with the Heads of Agreement signed by all of the parties in the substantive proceedings on 7 September 2023. 7. As a general statement, resolution of proceedings is a good outcome because of the finality it achieves. When the resolution occurs some four years after the proceedings commenced and still some time away from a final hearing (let alone the appeal process) then resolution is even more welcome. 8. The resolution however must be in the interests of the beneficiaries of the trust. I think that is the case here 9. I have read the Heads of Agreement. It is clear that the agreement amounts to a compromise on behalf of both sides to the litigation. The result of the compromise is to achieve a position which the plaintiffs may or may not have achieved after a final hearing. It is a certainty however that achieving a result, better or worse, would be expensive and would significantly wither the resources of the estate. 10. I am satisfied that the settlement is in the interests of the beneficiaries of the estate to the extent that it achieves a result which could be significantly better than might otherwise be the case. I particularly note that the beneficiaries have approved the settlement. It is worth noting that the first defendant is entitled to a 50% share of the estate so that any amount retrieved by the plaintiffs from him is effectively reduced by the same percentage in the hands of the plaintiffs. 11. The plaintiffs have requested that if my advice is as sought by them, that I then continue, by consent, to make the necessary orders in the substantive proceedings to give effect to the Heads of Agreement. I think this is an appropriate course to take as it quickly achieves the finality of the whole of the dispute between the parties. 12. I make the following orders: 1. Exhibit P1, being the opinion of JEF Brown 27 October 2023; 1. be placed in a sealed envelope marked "Suppressed – Not to be opened by anyone other than by a Judge of the Court" and order that the envelope, until further order, not be opened by anyone other than a Judge of the Court. 1. Note the contents of the opinion of JEF Brown dated 27 October 2023. 2. Order that pursuant to section 63 of the Trustee Act 1925 (NSW) the plaintiffs be advised and directed that it was and is justified, as executors of the Estate of the late Denise Melane, in entering into, and are justified in giving effect to, the terms of the Heads of Agreement dated 7 September 2023 between the first and second plaintiffs, Peter Graeme Baldwin and Stephanie Anne van Hilten and the first and second defendants, Julian Garry Field and Lokdown Pty Ltd. 3. Order that the first and second plaintiffs are entitled to pay their costs incurred in so conducting the claim in the proceedings bearing case number 2020/333933 out of the estate of the late Denise Melane on the indemnity basis. 4. Order the plaintiffs costs of these proceedings be paid out of the estate of the late Denise Melane on the indemnity basis. 5. Order, for the avoidance of doubt the plaintiffs are also justified in paying the costs of the proceedings 2021/256596 out of the estate of the late Denise Melane on the indemnity basis. 6. Order that these orders be entered forthwith. 7. Order that the transcript of the hearing of these proceedings be not accessed by any person other than the plaintiffs and their legal representatives other than by leave of a Judge of the Court. 8. The plaintiffs have leave to mention matter number 2020/333933 on behalf of all parties to this matter and to seek the making of orders resolving the matter.