Atchison v Holloway & Anor; Holloway & Anor v Atchison [2024] NSWSC 1523

Supreme Court New South Wales

Medium Neutral Citation: Atchison v Holloway & Anor; Holloway & Anor v Atchison [2024] NSWSC 1523 Hearing dates: 20 November 2024 Date of orders: 20 November 2024 Decision date: 20 November 2024 Jurisdiction: Common Law Before: Faulkner J Decision: See [31] – [32] Catchwords: CONTRACTS – possession of land – family provision – settlement of all issues agreed to at mediation – one party subsequently refused to consent to agreed orders – s 73 of the Civil Procedure Act 2005 – no point of principle Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 73 Cases Cited: Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 567 Category: Principal judgment Parties: Lorraine Ann Atchison (First Plaintiff in Possession Proceedings; First Defendant in Family Provision Proceedings) Jennifer Ada Richards (Second Plaintiff in Possession Proceedings; Second Defendant in Family Provision Proceedings) Noelene Joan Holloway (Defendant in Possession Proceedings; Plaintiff in Family Provision Proceedings) Representation: Counsel: T Catanzariti (Defendant in Possession Proceedings; Plaintiff in Family Provision Proceedings)

Solicitors: Self-represented (Plaintiffs in Possession Proceedings; Defendants in Family Provision Proceedings) Reid Lawyers (Defendant in Possession Proceedings; Plaintiff in Family Provision Proceedings) File Number(s): 2024/00035678; 2023/00440607

EX TEMPORE JUDGMENT (REVISED) 1. HIS HONOUR: Two sets of proceedings are before the Court today, the first of which are proceedings brought by Noelene Joan Holloway against Lorraine Ann Atchison and Jennifer Ada Richards. Ms Atchison and Ms Richards are the executors of the estate of Joan Singline who passed away on 15 May 2023. The three parties are sisters and the daughters of Ms Singline. 2. The first set of proceedings is a family provision proceeding in which Ms Holloway seeks orders in relation to Ms Singline's estate. 3. The second set of proceedings is a proceeding brought by the executors of Ms Singline's estate in which they seek an order for possession of property located at Hamlyn Terrace (the Deceased's Property). The Deceased's Property is currently occupied by Ms Holloway. Ms Singline was, until she passed away, the registered proprietor of the property and the executors are now the registered proprietors. 4. On 27 May 2024 a Court annexed mediation occurred in relation to both sets of proceedings. On that occasion an agreement was allegedly reached by which both sets of proceedings were to be entirely resolved. The performance of that agreement has not occurred and as a result there are two Notices of Motion before the Court. 5. The first Notice of Motion was filed by the executors on 31 July 2024 and amended on 19 August 2024 seeking orders to enforce the settlement agreement. 6. The second Notice of Motion dated 26 July 2024 and filed in Court on 31 July 2024 is brought by Ms Holloway in which she contends that the Possession Proceedings are an abuse of process and ought be stayed pending the determination of the Family Provision Proceedings. The only issues of substance to be decided today are: 1. whether an agreement was reached at the mediation on 27 May 2024; 2. whether in any way that agreement is vitiated; and 3. if not, what orders ought to be made to give effect to the agreement. 1. If these issues are decided in favour of the executors, Ms Holloway's Notice of Motion falls away.