Gao-Lumsden & Anor v Lumsden & Ors [2008] NSWSC 436

New South Wales Supreme Court

CITATION : Gao-Lumsden & Anor v Lumsden & Ors [2008] NSWSC 436

HEARING DATE(S) : 5 May 2008

JUDGMENT DATE : 7 May 2008

JURISDICTION : Equity Division

JUDGMENT OF : Palmer J

DECISION : First and Second Defendants entitled to specific performance of agreement.

CATCHWORDS : CONTRACT – Whether parties made concluded oral agreement – whether parties intended to be bound before execution of formal document. - REPUDIATION – ACCEPTANCE – No evidence of acceptance of alleged repudiation.

LEGISLATION CITED : Family Provision Act 1982 – s 7 UCPR – 28.2

CATEGORY : Procedural and other rulings

- Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 CASES CITED : - Heyman v Darwins Ltd [1942] AC 356 ([1942] 1 All ER 337) - Masters v Cameron (1954) 91 CLR 353 - Niesmann v Collingridge (1921) 29 CLR 177

Amanda Ping Gao-Lumsden (First Plaintiff) Fei Fei Lumsden by her tutor Amanda Ping Gao-Lumsden (Second Plaintiff) PARTIES : Shaun Lumsden (First Defendant) Armin Peter Lumsden (Second Defendant) Pepimu Pty Ltd (Third Defendant)

FILE NUMBER(S) : SC 5884/07

COUNSEL : C.M. Harris SC (First Plaintiff) P.J. Livingstone (Defendants)

SOLICITORS : Atkinson Vinden Heazlewoods (Plaintiffs) Diamond Conway (Defendants)

5884/07 Gao-Lumsden & Anor v Lumsden & Ors

JUDGMENT 7 May, 2008

Introduction

1 The First Plaintiff is the widow of the late Henry Robert Lumsden ("the Deceased"). The Second Plaintiff is the First Plaintiff's daughter; she is the child of the First Plaintiff's previous relationship. 2 The Deceased's will, made shortly before his death, made no provision for the Plaintiffs. The Plaintiffs have commenced proceedings against the First and Second Defendants, who are the Deceased's sons and the executors of his will, seeking provision for themselves under s 7 of the Family Provision Act 1982 (NSW). The Third Defendant is a company which was controlled by the Deceased. 3 The actual estate of the Deceased has been sworn for probate at a little over $100,000. The Plaintiffs' claim, however, that certain assets held by the Third Defendant pursuant to a discretionary trust should be treated as the Deceased's notional estate. The principal asset of the discretionary trust is a residential property at Warrell Creek at which the Plaintiffs and the Deceased lived together from January 2006 until the Deceased's death in June 2006 ("the Warrell Creek Property"). The Plaintiffs say that they wish to live in the Warrell Creek Property. 4 The Plaintiffs commenced these proceedings by Summons filed on 6 December 2007. By Notice of Motion filed on 23 April 2008 the Plaintiffs seek orders, pending final hearing of the Summons, restraining the Defendants from dealing with or disposing of the Warrell Creek Property and requiring the Defendants to put the Plaintiffs back into possession of the property. 5 The Defendants resist the Plaintiffs' claim and, in particular, the Plaintiffs' motion for interim relief, on a number of grounds, the most significant being the Defendants' assertion that the First Plaintiff has compromised her claim against the estate in a binding agreement. 6 On 4 April 2008, the First and Second Defendants filed a Notice of Motion in which they seek a declaration that the First Plaintiff had entered into a binding agreement on 12 October 2007 whereby the First Plaintiff had settled her claim against the Deceased's estate. They seek an order that the First Plaintiff specifically perform that agreement by executing a Deed in the form which had been sent, in draft, by the Defendants' solicitors to the Plaintiffs' solicitors but had not been executed by the First Plaintiff. 7 Both the Plaintiffs' and the Defendants' Notices of Motion came on for hearing together. As a result of some discussion between Counsel for the parties and myself, it was agreed that the Defendants' Notice of Motion could, and should, be heard on a final basis immediately and that the issue as to whether there was a binding agreement between the First Plaintiff and the First and Second Defendants should be determined separately from other questions in the trial. By consent, I made an order to that effect pursuant to UCPR 28.2. 8 Both parties relied on a number of affidavits. No deponent was required for cross examination.