Fraser v Moxham [2006] NSWSC 346

New South Wales Supreme Court

CITATION : Fraser v Moxham [2006] NSWSC 346

HEARING DATE(S) : 20/4/06 JURISDICTION : Equity Division

JUDGMENT OF : Young CJ in Eq

EX TEMPORE JUDGMENT DATE : 04/20/2006

DECISION : The defendant is bound by the deed executed after mediation to settle proceedings. Defendant to pay costs of proceedings.

CATCHWORDS : DEEDS [13][14] Deed in settlement of proceedings after mediation- Deed executed by defendant- Defendant claimed misapprehension and misrepresentation as to plaintiffs' claims on the estate- Defendant sought to withdraw consent before final party signed- Final party signed within reasonable time- Deed binding at law- Insufficient material to set it aside in equity.

CASES CITED : Naas (Lady) v Westminster Bank [1940] AC 366 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165

John Stirling Fraser (P1) Mary Augusta Cooper (P2) PARTIES : Francesca Anne Cooper (P3) Frances Stoschek (P4) Carolyn Pettit (P5) Anne Moxham (D)

FILE NUMBER(S) : SC 6467/05

COUNSEL : M S Willmott SC (P) Defendant in person

SOLICITORS : Colin Daley Quinn (P)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG CJ in EQ

Thursday 20 April 2006

6467/05 - FRASER v MOXHAM JUDGMENT 1 HIS HONOUR: The plaintiffs are the executor of the estate of the late York Cooper and persons who made claims against his estate. The claims were made in various suits in this Court and appeared to be resolved after a mediation before Mr Mediator Grahame Berecry on 18 October 2005. 2 On that occasion a deed was produced, of which the five plaintiffs and the defendant were parties. The deed recited the estate and the claims, and each of the claims was dealt with. There was also a claim by the present defendant that there was a secret trust and that matter was also dealt with in the deed. The deed provided that no interest would be running on any of the lump sums if paid before 18 January 2006 and thereafter, in the events which have happened, interest at 6 percent. 3 The fourth plaintiff, Ms Stoschek, was to pay $500,000 to the estate and she also had to do that before 18 February 2006, which, as things have turned out, she has not done, but it would appear that she will do so in the near future. Ms Stoschek was not present at the mediation, but all the other parties were present and each of them appeared to be represented by a lawyer, including the defendant. 4 There is no doubt that the defendant signed the deed on that day and that everybody else, other than Ms Stoschek, signed the deed on that day. The defendant was to provide the first plaintiff's solicitor with certain details, and she did this both on 18 October and 21 October 2005. However, on 2 November 2005 she wrote to the first plaintiff's solicitor a letter which contained the following: "At the mediation meeting on 18 October, both my barrister and solicitor gave the impression that the deed drawn up was typed that day by Mr Greg McNally. My solicitor made some comment in respect to a laptop and the font used. I was extremely tired, frustrated and angry at what had happened and took their word that the deed was as agreed that day." 5 On 8 November the defendant wrote to the first plaintiff's solicitor: "I would like to confirm I do not intend to proceed with the draft deed signed on 18 October, 2005. I was not given the chance to present the documents forwarded to you on 2nd inst., and have still not been given the opportunity to refute the claims made by the plaintiffs." 6 This was replied to by the first plaintiff's solicitor the next day, noting that the deed that was signed on 18 October 2005 was not a draft deed, and on the day after that they wrote again saying: "We are of the view the Deed is binding.