Roy v Roy [2004] NSWSC 463

New South Wales Supreme Court

CITATION : Roy v Roy [2004] NSWSC 463 HEARING DATE(S) : 20 May 2004 JUDGMENT DATE : 20 May 2004 JURISDICTION: Equity JUDGMENT OF : Campbell J DECISION : Costs of both executors of dispute concerning who should represent estate to be paid from estate. Order for compulsory mediation not made at this stage of proceedings.

CATCHWORDS : SUCCESSION - FAMILY PROVISION AND MAINTENANCE - practice - two executors with different views about approach to take to plaintiff's claim - who should represent estate for purpose of dealing with plaintiff's claim - whether costs of that dispute should be paid from estate - order for compulsory mediation of dispute sought - case at early stage of preparation - whether appropriate for order to be made Family Provisions Act 1982 LEGISLATION CITED : Supreme Court Act 1970 Supreme Court Rules 1970 CASES CITED : Singer v Berghouse (1994) 181 CLR 201 Christina Leonie Roy - Plaintiff PARTIES : Travis Roy - Estate of Roderick Gordon Roy - First Defendant Ian Frederick Stanwell - Second Defendant FILE NUMBER(S) : SC 3989/03 J Needham - Plaintiff COUNSEL : M A Bradford - First Defendant J Wilson SC - Second Defendant Teece Hodgson & Ward - Plaintiff SOLICITORS : Musgrave Peach - First Defendant Leonard S Hattersley - Second Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY JUDGE LIST

CAMPBELL J

THURSDAY 20 MAY 2004

3989/03 CHRISTINA LEONIE ROY v TRAVIS ROY – ESTATE OF RODERICK GORDON ROY & ANOR JUDGMENT – Ex Tempore 1 HIS HONOUR: Today there were two notices of motion before the Court relating to the affairs of the estate of the late Roderick Gordon Roy. He died in June of 2002. A Family Provision Act 1982 claim has been brought by his widow, by proceedings which she began on 25 July 2003. The marriage between the plaintiff and the deceased was a second one for both of them. Each had children from a prior marriage. As well, the deceased had two children from a de facto relationship. In his will, the deceased endeavoured to make provision for the various people associated with different segments of his life, including, as well as the plaintiff and some of his children, children which the plaintiff had from her earlier marriage. 2 The deceased appointed three executors. He appointed his widow, his son Travis, and an old friend, Mr Stanwell. One of the disputes which was before me today was a dispute between Mr Stanwell and Travis about which of them should have the conduct of the defence of the plaintiff's claim. That dispute was compromised this morning, by an agreement that orders be made which will give the conduct of the defence to Travis, on certain conditions which I will go into in a little more detail later. 3 There has been an agreement between the parties that Mr Stanwell should have his costs of that notice of motion on an indemnity basis from the estate. There remains a question for decision about whether Travis should also have his costs of that motion from the estate, and if so on what basis. 4 The second matter which is before me today is a notice of motion brought by Travis, wherein he seeks an order under section 110K of the Supreme Court Act 1970 that the proceedings be referred to mediation. 5 Notwithstanding that the proceedings were begun on 25 July 2003, they are little advanced in preparation. The plaintiff has filed an extensive affidavit in chief. Notwithstanding orders that an affidavit in accordance with Part 77, rule 59 Supreme Court Rules 1970 should have been filed, the defendants to the proceedings have not yet filed one. The defendants have filed no affidavits which go to the merits of the plaintiff's claim. Nor have they filed any affidavits which set out the financial position of various of the beneficiaries under the will. There has, it seems, been a service of notices in accordance with Form 89B Supreme Court Rules on the various children and stepchildren of the deceased, on his first wife, and on his previous de facto partner. I gather that those notices have produced a nil return. 6 The basis upon which Mr Bradford, for Travis Roy, submits that the matter should be referred to mediation is that the applicant has, through the correspondence which has passed between the solicitors so far, demonstrated that he takes the plaintiff's claim seriously, that offers have been made to settle it, and that his three brothers support mediation. He suggests there would be a significant saving in costs if mediation were to be ordered. He accepts that before mediation could actually occur it will be necessary for there to be some further preparation, so that an appropriate factual base for the mediation is available. He accepts that it would be necessary for a Rule 59 affidavit to be served, and that it would be necessary for there to be affidavits setting out the financial position of the other beneficiaries under the will, so that the exercise involved in carrying out the second stage of the tests laid down in Singer v Berghouse (1994) 181 CLR 201 can be carried through, to work out the quantum of any entitlement which the plaintiff might establish that she has.