Hatton v Hatton No 2; Hatton v Hatton No 2 [2012] NSWSC 353

Supreme Court New South Wales

Medium Neutral Citation: Hatton v Hatton No 2; Hatton v Hatton No 2 [2012] NSWSC 353 Hearing dates: 11/04/2012 Decision date: 11 April 2012 Before: Associate Justice Macready Decision: Succession Act 2006 claim: I order the plaintiff, Michael Hatton to pay the defendant's costs on the ordinary basis. I makes orders 4 and 5 in the short minutes of order signed by me and dated today. Possession proceedings: I make orders 2 and 3 in the form of the short minutes of order signed by me and dated today. I order the defendant's costs be paid out of that part of the estate of the late William Arthur Hatton that does not pass to the plaintiff, on the indemnity basis. Otherwise I dismiss the possession proceedings. Catchwords: Judgment and orders. Application to vary judgment under UCPR 36.16 (3A). Held no jurisdiction to alter orders. Legislation Cited: Family Provision Act 1982 Succession Act 2006 Cases Cited: Todorovic v Moussa [2001] NSWCA 419 Category: Consequential orders Parties: Michael Ian Hatton v Tony Edwin Hatton Representation: Mr M Bradford - Michael Hatton Mr M Gorrick - Tony Hatton Macpherson & Kelly Lawyers - Michael Hatton Philip Boyce and Associates - Tony Hatton File Number(s): 2010/412773 2011/267556

Judgment 1HIS HONOUR: In this matter I published my reasons for judgment on 8 March 2012 and dismissed the plaintiff's claim. Application has now been made for me to reconsider those reasons on the basis I mistook the nature of the claim for provision that was made by the plaintiff. 2At paragraph 77 of my judgment I said the following: "77. Michael puts forward a claim that he receive a bequest of the deceased's property at Allambie Heights subject to him paying the estate's unpaid costs under the Succession Act 2006 proceedings" 3This expression of the claim was taken from the plaintiff's written submissions. I then returned to this and, at paragraphs 106 and 107, I said the following: "106. Michael's claim and his obsession with his right to obtain the property from discussions with his parents is ill-founded. He seeks to receive the entire estate subject to him only paying costs that have been incurred by the estate but which have not been paid. His claim totally ignores the strong and pressing claims by his siblings. 107. This is a matter where in my view the deceased made appropriate provision for his children. It was not a large estate and the deceased divided it equally between his children." 4The transcript for the opening records the following submission on the claim which was made by the plaintiff: "In these circumstances, the primary need of the plaintiff and his primary case is for a transfer of the Allambie Heights property on terms which involve of course him paying some money back into the estate in return for that property." 5This was amplified on pp 3 and 4 in the following terms: "In those circumstances, and without wishing to unduly limit myself in opening a case like this, your Honour can probably see that we contend that the plaintiff's situation in life and his needs are such as to require some particular provision to be made for him in the form of accommodation. We would submit that it should be in the Allambie Heights property on terms, which broadly reflect of course the arrangements that he had made with his parents towards the end of their lives, but of course now taking into account the reality that the situation is not as it was then: he has incurred considerable costs in bringing these proceedings and of course the defendant has also incurred considerable costs in doing that. As an alternative position, perhaps a fallback position, we will be submitting in due course that if your Honour is against me on the primary case then the plaintiff should have an order for further provision which is designed to enable him, as it were, to find other accommodation which may not be suitable for his needs but which is better than nothing; and also to go some way towards alleviating other financial needs which he's given evidence of in his affidavits." 6Closing submissions in this case were not recorded, as the reporter had been excused by the Court with the consent of counsel for each party at the close of oral evidence, which took place sometime after 4 PM on the last day of the hearing. As has been put, it was suggested by the plaintiff that in closing submissions the claim which he ultimately put to the Court was for an order that required the estate to transfer the Allambie Heights property in return for the payment of the sum of $500,000 less his costs of the claim as agreed or assessed in lieu of his entitlement under the will. The question of whether that was said has been explored by me with counsel. Mr Bradford, for the plaintiff, has a clear recollection of the submission, which naturally he would, he being the person making the submission. Mr Gorrick, who appeared for the defendant, does not recall it and my own recollection is I thought something had been said and in preparing the judgment I was not able to locate what, in fact, had been said. 7There have been tendered copies of Mr Bradford's instructing solicitor's notes which refer to his notes of the closing submissions which also refer to the $500,000. In these circumstances I accept that the submission about the plaintiff's claim which was put in the final submission is accurately what I have set out above. It is, therefore, clear that there is a difference in what the plaintiff's express claim for provision was and what I recorded in the judgement at paras 77 and 106. 8I have been asked on the present application to give amended reasons, in the light of that error in appreciating the nature of the claim made by the plaintiff. Probably this is not a matter where the slip rule applies and a useful summary of the matters to be considered here is in Todorovic v Moussa [2001] NSWCA 419 at paras 41 to 48. Beazley JA dealt with the law in these terms: "41 The appellant contends that his Honour's alteration to the written form of judgment was impermissible. It is a well accepted rule of judicial practice that reasons for decisions may be revised after the delivery of oral reasons. The basis for the practice and its parameters were discussed by Gleeson CJ extracurially in "Revising Transcripts of Summing Up" (1997) 9 Judicial Officers' Bulletin at 25: "A judicial officer revising a transcript of reasons for a decision is entitled to alter the transcript where, because of a slip, the reasons as expressed do not reflect what the judicial officer meant to say; or where there is some infelicity of expression which the judicial officer desires to remedy. There is no reason, in law or in policy, why a judicial officer who delivers a judgment ex tempore should be strictly bound to the precise manner in which the reasons were expressed. On the contrary, judges and magistrates are encouraged, where possible and appropriate to do so, to decide cases promptly and to give their judgments immediately. It would not advance that policy to prevent them from later improving the manner of expression of their reasons, provided, of course, that they do not alter the substance." 42 Kirby J has also written on the topic. In his paper "Ex Tempore Judgments - Reasons on the Run" (1995) 25 WALR 213, his Honour stated at 229: "First, it is always possible, and entirely proper, for a judicial officer to revise ex tempore reasons, even extensively, without altering their substance or the orders which they sustain. ... Depending upon the rules of court which typically govern such matters, judicial officers in superior courts can make even more substantial corrections to ex tempore reasons, extending even to the correction of their orders if it is demonstrated that they have made a mistake or a slip, or if the orders do not properly reflect the reasons and have not been taken out. Except for the case of the summing up or direction to a jury, a wide latitude is given to judicial officers to refine their ex tempore reasons. Litigants will not be heard to complain about the modifications made between delivery and the release of the certified text. It is obviously essential for each judicial officer to be familiar with the rules of court governing the delivery of reasons. Such rules may contain particular requirements which limit the power of the judicial officer to alter the transcript or to deliver reasons on a date different from that on which the orders were made." 43 The rule of practice is usually referred to in the context of ex tempore judgments. However, I do not believe it to be so confined. 44 The matter has also been considered judicially. In Lam v Beesley (1992) 7 WAR 88 Owen J said at 93-94: "So far as concerns reasons given orally and later transcribed, the judicial officer has the right to edit the document and correct errors of grammar and style. The difficulty lies in determining the extent to which he or she can go beyond this and make changes of substance rather than of form. In Bromley v Bromley (No 2) [1965] P 111, the Court of Appeal commented on this problem ... Willmer LJ said (at 114): '... If there were ever a case in which it could be shown that, after delivering judgment and after the drawing up of the order, the judge had in substance rewritten his judgment, so as to put a completely different complexion on the issues in dispute, then I apprehend that this court would not be slow to censure any such behaviour on the part of the judge ...' ... Danckwerts LJ [said] at 116... : 'The general principle must be that this court must accept as the authentic record of the judge's judgment that which has been approved by him after consideration of the draft produced by the shorthand writer. It is not only a question of possible mistakes by shorthand writers, who do their best extremely well, but are sometimes unable to hear exactly the words used by the judge in the course of his judgment. There are other cases which arise through the judge not saying clearly what he meant, or indeed sometimes by a slip saying something which he cannot possibly have meant. After all, an ex tempore judgment is not always easy to deliver perfectly in all respects on the spur of the moment; there must be corrections which need to be made so as to give the real meaning of the judge, and he is perfectly entitled, so it seems to me, not only to correct mistakes, but to alter words which do not express his intended meaning at the time when he uttered them.'" 45 Owen J concluded at 95 that if changes to a judgment were matters "such as could lead to an appearance of altered substance" as opposed to matters of form, that was sufficient, in the context of a criminal trial, to render a conviction unsafe and unsatisfactory. 46 Lam v Beesley involved the reasons for judgment given by a magistrate in a summary criminal trial. In a civil action, I would consider that the appropriate test in determining whether an alteration to a judgment is permissible is whether the change is one of substance in fact and not the higher test stated by Owen J in the case of a criminal trial. 47 In Bar-Mordecai v Rotman & Ors [2000] NSWCA 123, the Court considered the matter in relation to an ex tempore judgment, stating at para 193: "It is always possible, indeed proper, for a judge to revise ex tempore reasons. So long as the substance of the ex tempore reasons is not altered, nor the orders which they sustain, there is no bar to revision, even if it is extensive." 48 Again, I am of the opinion that the same rule applies to the case of a reserved judgment. 9Appreciating that the plaintiff's claim was for an order which required the estate to transfer the Allambie Heights property to him in return for the payment of the sum of $500,000, less his costs of the claim as agreed or assessed, in lieu of his entitlements under the will the mathematics of the matter would mean that the estate, after the transfer of the property to the plaintiff and a payment by him of $500,000 would consist of $508,296. From that would need to be taken the defendant's costs of $82,638 and commission of $15,126 to leave an estate of $410,532. On that basis each of the other three beneficiaries would receive $133,510 but it is to be noted the plaintiff wishes his costs to be taken out of the $500,000. His costs are in the order of $150,000-$160,000 for both matters and assuming $100,000 as the family provision and costs, one gets down to a sum of $310,226, which is $103,408 per beneficiary. The plaintiff on this application, if acceded to, would on this revised claim receive a sum of $425,000 plus his costs. 10In paragraph 107 I expressed the view that the deceased made appropriate provision for his children in an estate which was not large. That conclusion was based upon the assessment of all the facts and circumstances to which I have referred in the judgement. Without being exhaustive, they included: 1. The size of the estate; 2. The situation in life of Michael (paragraphs 49 to 54); 3. The situation in life of Margaret (paragraphs 55 to 58); 4. The position of Tony (paragraphs 60 to 67); 5. The position of Barry (paragraphs 70 to 75); and 6. The relationship between the deceased and the children and provisions made for them in their lifetime. 11It was the consideration of all these factors which led to the view I formed in paragraph 107. The size of the claim that Michael now makes does not change that assessment. The present claim still ignores the strong and pressing claims by his siblings. 12Accordingly, I will not make any change to the orders made on 8 March 2012 in respect of this error in the judgement and I merely give these reasons to correct that part of the reasoning which involves the statement of what was the siblings's claim. 13I turn to the question of any further orders that have to be made in the possession proceedings. 14There has already been an order for possession made by McCallum J when the matter was referred before her on 7 October 2011. However, there does not appear to have been leave given to issue a writ of possession and to provide a regime for it to lie in the office of the Sheriff of New South Wales until vacation with appropriate orders. It is said that perhaps the plaintiff has left the premises but the defendant cannot verify that fact. 15I make orders 2 and 3 in the form of the short minutes of order which I will sign and date and place with the papers. 16A question that then arises is what flows from the order which I made in paragraph 112 where I said: " It seems to me that it would be appropriate for each party "to pay" (sic) their own costs of the possession proceedings and I so order." 17That order has been debated to the extent to which any costs which are paid by the plaintiff in the possession proceedings as the executor in the present proceedings should fall upon part of the estate. It is the plaintiff's application in the Family Provision Act 1982 proceedings that the burden of the order, having regard to the view which I then formed in my judgment, should not be paid out of the share which passes to the plaintiff. It was put by the defendants to the Family Provision Act 1982 proceedings that, in fact, it would not be appropriate to do so as the estate has benefited from the amount which has been paid by the plaintiff, whatever amount was received from letting the flat. In my view I agree with what I said before, namely, is that I thought that the application had been a bit precipitous, although it had some benefits. I still maintain the view that each party should pay their own costs in this case and the costs of the defendant in bringing the possession proceedings should not fall on that part of the estate passing to the plaintiff. 18Accordingly, the only further order that I make is that the defendant's costs of the possession proceedings be paid out of that part of the estate of the late William Arthur Hatton that does not pass to the plaintiff on the indemnity basis. I otherwise dismiss the possession proceedings.