Hunt v Hunt [2023] NSWSC 1578

Supreme Court New South Wales

Medium Neutral Citation: Hunt v Hunt [2023] NSWSC 1578 Hearing dates: 21 June, 4 July and 3 August 2023 Decision date: 14 December 2023 Jurisdiction: Equity Before: Lindsay J Decision: (1) The defendant's motion to enforce an alleged settlement is to be dismissed on the basis that there was no concluded agreement. (2) The plaintiff's motion for a judgment on admissions is to be granted. (3) The parties are to be allowed an opportunity to bring in draft orders, including, if they see fit, orders for a sale of land in co-ownership. Catchwords: COMPROMISE – Settlement of proceedings – Competing views on whether proceedings settled – No binding settlement agreement JUDGMENT ON ADMISSIONS – Admissions in pleadings and written submissions – judgment granted Legislation Cited: Civil Procedure Act 2005 NSW Category: Principal judgment Parties: Plaintiff: Brian William Hunt Defendant: Alan Peter Hunt Representation: Counsel: Plaintiff: D Neggo Defendant: Self represented

Solicitors: Plaintiff: Macpherson Kelley Defendant: Alan Hunt Solicitors File Number(s): 2020/00359023

JUDGMENT

INTRODUCTION 1. Before the Court are competing notices of motion (both filed on 7 June 2023) designed to bring an end to an intractable dispute between two brothers (Brian and Alan Hunt) about the administration of their parents' deceased estates. 2. They, with their deceased brother Robert Hunt, are the children of the marriage between Orlando Hunt and Nellie May Hunt. 3. The father Orlando died on 15 July 1979, leaving a will dated 16 June 1968, probate of which was granted on 12 September 1979 to Robert. 4. The mother Nellie May died on 7 August 1997, leaving a will dated 7 May 1996, probate of which was granted on 12 August 1999 to Robert. 5. Robert died on 23 August 2014, leaving a will dated 11 October 1992, probate of which was granted on 23 December 2014 to Alan. 6. Alan is thus the legal personal representative of each of the respective estates of his parents and Robert. He is the executor of Robert's estate by a grant of probate. By virtue of that office, he is the executor of each of the estates of his parents by representation. 7. There has been a measure of co-operation between Brian and Alan concerning administration of the three estates but Alan has procrastinated in transferring to Brian two property interests to which, it is agreed, he is beneficially entitled. 8. The principal proceedings were commenced by a statement of claim filed by Brian on 18 December 2020 and amended on 10 May 2022. In short, Brian's claims for relief are directed, by one means or another, to securing an entitlement to two properties and obtaining compensation, upon the taking of accounts, for Alan's alleged mismanagement of the deceased estates. 9. By a statement of cross claim filed on 10 December 2021 Alan claims a money judgment for outgoings paid in respect of the property entitlements claimed by Brian and for renovation costs incurred in respect of one of the two properties concerned. 10. The proceedings came before me on a notice of motion filed by Alan on 5 December 2022 seeking a review of a decision made by a Registrar on a dispute about a subpoena for the production of documents and a claim of privilege. If orders are made on one or the other of the two notices of motion presently before the Court, that notice of motion will have become otiose. Its present significance is limited to having provided an occasion for the parties to reflect upon what it is they are really fighting about and the utility of interlocutory disputes about the production of documents and the provision of accounting information. 11. At the heart of disputation between Brian and Alan are two properties held by Alan in his representative capacity: 1. Lot 16 in Strata Plan 5427 ("the Avoca Property"); and 2. Lot 29 in Strata Plan 10238 ("the Turramurra Property"). 1. The title to the Avoca Property currently records Robert as the registered proprietor. As executor of Robert's estate, Alan has it within his power to be registered as proprietor of the property and to transfer to Brian his share of the property. 2. The title to the Turramurra Property currently records Alan as the registered proprietor. 3. It is common ground that, subject to such (if any) adjustments that might be necessary arising from administration of the deceased estates in question, Brian is beneficially entitled to: 1. the Turramurra Property; and 2. a two-ninths share of the Avoca Property. 1. The parties became entrenched in a disagreement about how these properties were to be administered prior to a transfer to Brian of his interests in them. In broad terms, Brian accused Alan of waste in the administration of the estates and claimed damages against him. Alan, for his part, declined to transfer Brian's entitlements to him unless and until indemnified for expenses incurred in administration of the estates. 2. Underlying the parties' disputation is a principal point of contention. Alan wants to retain the Avoca Property for himself. He wants Brian to forego his interest in the property in return for a financial adjustment in his favour. 3. By his notice of motion Alan seeks orders (implicitly under section 73 of the Civil Procedure Act 2005 NSW) to enforce what he says is a settlement agreement designed to achieve the following: 1. a transfer of the Turramurra Property to Brian; 2. a release by Brian of his two-ninths share of the Avoca Property; 3. a financial adjustment by Alan in favour of Brian in the sum of $203,000 for that release; 4. financial adjustments by Brian in favour of Alan for renovations to the Turramurra Property, outgoings for the Turramurra Property, conveyancing costs associated with transfer of the Turramurra Property to Brian and outgoings for the Avoca Property; and 5. a payment by Brian in favour of Alan, in a specified sum, for costs and disbursements incurred by Alan in these proceedings. 1. Alan's notice of motion does not, in terms, seek enforcement of a settlement agreement but is to be understood as doing so in substance as the sum of a series of particular orders sought to give effect to what Alan claims to have been a settlement agreement. 2. Upon the hearing of his notice of motion Brian (without admissions but in order, he said, to achieve a commercial resolution of the proceedings) abandoned his wastage claim, agreed to pay Alan everything he wants by way of financial adjustments on his cross claim and to pay Alan's costs in an agreed sum, when Alan transfers to him the Turramurra Property and his two-ninths share of the Avoca Property. Having conceded all claims made by Alan as an impediment to the transfer to him of his property entitlements, Brian seeks a judgment on admissions on his claim for orders enforcing those entitlements. He has paid into his solicitor's trust account, pending orders of the Court, sufficient funds to cover Alan's financial adjustment claims. 3. Alan resists Brian's motion because he wants to acquire Brian's interest in the Avoca property and he contends that his alleged settlement agreement entitles him to achieve that. 4. The possibility that the parties should work towards a settlement of their principal proceedings rather than engaging in further interlocutory disputes was raised by me on 21 April 2023. Orders were made by me on 27 April and 15 May in aid of settlement negotiations. 5. On 24 May 2023 the parties informed me that "there are competing views as to whether these proceedings have been settled, or can be settled once there is a resolution of what is to happen to the Avoca Property". 6. The notices of motion presently before the Court were filed on 7 June 2023 to provide an orderly framework for the parties' competing views about whether the proceedings had been settled. The notices of motion were the subject of short argument on each of 21 June, 4 July and 3 August 2023 together with written submissions. 7. The parties attempted to negotiate an agreed outcome to the proceedings even after their respective motions were filed, and they appear to have come perilously close to doing so more than once, but ultimately (on 3 August 2023) they asked the Court to determine the proceedings on the motions, accepting the possibility that the principal proceedings might have to remain on foot if I came to the view that both motions should be dismissed.