O'Leary v Bryant [2004] NSWSC 1098

New South Wales Supreme Court

CITATION : O'Leary v Bryant [2004] NSWSC 1098 HEARING DATE(S) : 15 November 2004 JUDGMENT DATE : 15 November 2004

JURISDICTION: Equity Probate List JUDGMENT OF : Campbell J DECISION : Notice of Motion dismissed with costs

CATCHWORDS : PRACTICE - whether question of whether proceedings compromised should be decided on Notice of Motion in those proceedings - CONTRACT - formation of contract - whether contract arises from particular course of correspondence (no question of principle) LEGISLATION CITED : Family Provision Act 1982 Supreme Court Act 1970 CASES CITED : Re Jay-O-Bees; Rosseau v Jay-O-Bees [2004] NSWSC 818 B Seppelt & Sons Ltd v Commissioner for Main Roads (1975) 1 BPR 9,147 PARTIES : Tracey-Lee O'Leary - Plaintiff Sandra Elizabeth Bryant - Defendant FILE NUMBER(S) : SC 115660/03 COUNSEL : M K Meek - Plaintiff J Robson SC; A Harding - Defendant SOLICITORS : Kym Flehr Legal Solutions - Plaintiff Clark Rideaux - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST

CAMPBELL J

MONDAY 15 NOVEMBER 2004

115660/03 TRACEY-LEE O'LEARY v SANDRA ELIZABETH BRYANT JUDGMENT – Ex Tempore HIS HONOUR: Nature of the Proceedings 1 The proceedings in which this Notice of Motion is brought are proceedings which are brought seeking the proving of a Will of the late Martin Kenneth Denford deceased in solemn form, alternatively, seeking revocation of a grant of representation in Mr Denford's estate made on 25 August 2003 of a Will which he executed in February 2003, an order that letters of administration CTA of an earlier Will of Mr Denford made 7 December 1999 be granted to the plaintiff, and certain consequential orders. 2 Mr Denford died on 25 July 2003. The plaintiff in the proceedings is a granddaughter of Mr Denford. The defendant in the proceedings is a grandniece of the deceased. The defendant was closely involved in the care of the deceased in the period immediately before his death. He died aged 88 years. 3 The proceedings are ones in which the plaintiff alleges that there was doubt or suspicion as to whether at the time the deceased signed his February 2003 Will he had the testamentary capacity, about whether he had sound mind, memory and understanding, and about whether he knew and approved of the Will. The Will in question, of February 2003, is one which left the plaintiff a legacy of $100,000, and left the balance of the net residue of the estate to the defendant. The previous Will, of 7 December 1999, was one which left the estate equally between the plaintiff and the defendant. The statement of claim alleges that, from mid 2002 onwards, the deceased was infirm in various ways, including in ways which affected his mental capacity. The Present Application 4 The application I am now hearing is a Notice of Motion which has been filed by the plaintiff, seeking a declaration pursuant to section 63 of the Supreme Court Act 1970 that the proceedings have been compromised on the terms set out in a letter from the defendant's solicitor to the plaintiff's solicitor dated 27 January 2004, and a letter from the plaintiff's solicitor to the defendant's solicitor dated 5 February 2004. Whether this Question Should be Determined by Motion at all 5 I should say at the outset that both parties consented to this question being determined on a Notice of Motion in the present proceedings. There is considerable reluctance on the part of the Court, usually, to decide on Notice of Motion a question about whether proceedings have been compromised, if that question involves matters which are outside the scope of the proceedings themselves, or involve complicated questions unsuited for summary determination. I have collected some of the authorities concerning this matter in Re Jay-O-Bees; Rosseau v Jay-O-Bees [2004] NSWSC 818, at paras [63] to [72]. Usually the appropriate procedural vehicle is a suit in equity seeking specific performance of the alleged agreement to settle. In the present case, all the evidence is documentary. Both parties have briefed counsel, and are ready to argue the matter today. When that is the case, and when the parties consent, I am prepared to determine the question on Notice of Motion. The Course of Correspondence 6 The defendant's solicitors wrote to the plaintiff's solicitors on 12 January 2004 making an offer of settlement, whereby the plaintiff would receive a further payment of $50,000, each party would pay their own costs, and the proceedings would be withdrawn. 7 The plaintiff's solicitors responded on 13 January 2004, by a letter which made serious allegations about the frankness and openness of the defendant, and about the way in which the defendant had conducted the affairs of the deceased pursuant to an enduring Power of Attorney. The letter foreshadowed the issuing of extensive subpoenas to investigate the conduct of the defendant in managing the affairs of the deceased. 8 After setting the scene in that way, the letter then went on to discuss a possible compromise. The letter set out some contentions to the effect that the distributable estate of the deceased might be larger than had been stated by the defendant in the affidavit as to assets which had been filed with the probate application relating to the 2002 Will. It did some rough calculations, which suggested that the distributable estate might have been of the order of $675,000 if one gave a value to a cause of action which the deceased might have had concerning the circumstances in which a contract for the sale of his house did not proceed. The letter asserted that a 50 percent distribution would be fair and reasonable. Even if no value was attributed to the cause of action relating to sale of the house, the distributable estate, if divided 50/50, would have given the plaintiff $272,500. Given that she had received $100,000 under the later Will, this left her $172,500 short of a 50/50 distribution. After making these assertions, the letter continued: "In all of the circumstances, I am instructed to offer to discontinue the present proceedings on the following basis: 1. Your client provide to our client a proper accounting in respect of her grandmother's jewellery and provide to our client her grandmother's rings and silver locket; 2. Your client provide to our client the framed photos of Tracey's grandparents from the shelf in her grandfather's former bedroom; 3. Your client provide to our client all photos of Tracey, her father and mother; 4. Your client provide to our client all photos of our client's brother Guy; 5. Your client provide to our client the silver teapot which her grandfather always took with him on all of his travelling trips with our client and which he had promised to leave her; 6. Your client pay to our client an additional $150,000; 7. Your client otherwise retain all other proceeds of the estate of any nature whatsoever; 8. Each party pay their own costs; 9. We discontinue the present action. Could you please advise your client's position at your earliest convenience as it would obviously be desirable to avoid the cost of actually serving all of our subpoenas if they became unnecessary".