Vidler v Simpson [2013] NSWSC 1457

Supreme Court New South Wales

Medium Neutral Citation: Vidler v Simpson [2013] NSWSC 1457 Hearing dates: 27 September 2013 Decision date: 27 September 2013 Jurisdiction: Equity Division Before: Ball J Decision: See paragraphs 20 to 24 of this judgment Catchwords: PRACTICE AND PROCEDURE - dispute regarding sale of property held in co-ownership - performance of settlement agreement - abandonment of original settlement agreement - determination of the terms of the subsequent settlement agreement - contribution for outstanding fees - no issue of general principle Legislation Cited: Conveyancing Act 1919 (NSW) Category: Procedural and other rulings Parties: Jillian Diane Vidler (First Plaintiff) Wendy Elizabeth Simpson-Jones (Second Plaintiff) Peter Gordon Simpson (First Defendant) Margaret Joan Simpson (Second Defendant) Representation: Counsel: G A Moore (Plaintiffs) M Klooster (Defendants) Solicitors: John W Hogan (Plaintiffs) Sydney City Lawyers (Defendants) File Number(s): 2012/202740 Publication restriction: Nil

EX TEMPORE Judgment 1These proceedings were commenced on 28 June 2012 by the plaintiffs originally seeking an order under s 66G of the Conveyancing Act 1919 (NSW) for the appointment of trustees to sell a property at Marsden Park. The plaintiffs owned a one third share each of the property. The first defendant, their brother, owned a one sixth share and his wife, the second defendant, also owned a one sixth share. 2There was a mediation in the matter on 30 November 2012 at which time the parties agreed to settle the proceedings on the following terms: * The defendants agree to pay each of the plaintiffs $600,000 for their respective shares in the property; and * Each of the parties release all others from any claim or demand in relation to any issue arising from the proceedings or any issue arising from the co-ownership of the property. 3On 18 February 2013, the court made orders by consent to give effect to the agreement reached at the mediation. The orders made by the court do not reflect precisely the agreement that was reached and there are, in my opinion, difficulties with the orders because they include orders that the defendants pay the plaintiffs sums of money. In my opinion, orders in those terms are undesirable because they give rise to the possibility of contempt proceedings if the money is not paid in circumstances where I do not think that is what the parties could have contemplated. Although the orders do not reflect precisely the terms of settlement, I do not think the parties intended by the orders to amend those terms. It is clear that what the settlement contemplated was that the defendants would buy the plaintiffs' interest in the property for the amount specified. 4The evidence is that the defendants intended to borrow the amounts they needed to pay to the plaintiffs in order to acquire the plaintiffs' interest in the property. They were unable to do so. They say that part of the reason for that was that the plaintiffs would not consent to the property being tenanted and that made it difficult for them to raise finance. There is a dispute about that. However, the defendants have not filed a cross-claim alleging that the failure to raise finance was caused by a breach by the plaintiffs of an implied term in the settlement agreement and in those circumstances I think that that issue can be put to one side. 5On 1 March 2013, the solicitors for the plaintiffs wrote to the then solicitors for the defendants seeking performance of the settlement agreement and threatening to take steps to bring the matter back before the court if completion of the purchase of the property did not occur by 2 April 2013. In the meantime, on 23 February 2013, the defendants entered into an agency agreement with Hills Commercial Real Estate appointing Hills as the exclusive agent for the sale of the property. It is not clear precisely what happened after that, but at some stage it must have become apparent to the defendants that if they wished to sell the property they would require the plaintiffs' agreement. 6On 7 March 2013 the first defendant wrote to Mr Hull, the agent at Hills responsible for selling the property. In that letter he said the following: Thank you for your support and efforts with this matter. Now that you have secured a lease and sale for the property, I would like you to write to my sisters through Mr Hogan and offer them the benefits that arise from this situation. 1. Mrs Vis Vidler and Mrs Simpson Jones sign a rental and sales agreement with Hills Commercial. 2. We share 1/3 equally in all costs and proceeds from the lease and sale. 3. We agree to Hills commercial being the administrator for the property. 4. You outline very clearly the arrangements for lease and sale so they can understand the value of the proposal. 5. They understand that this situation will create finality to issues and dealings between the parties. 6. The stock will need to be sold/removed ASAP and I am meeting with an auctioneer to discuss possibilities for this to happen. 7It appears that after receiving those instructions, Mr Hull spoke to the plaintiffs' solicitors on 8 March 2013. It is not clear what occurred during that conversation. However, on 11 March 2013, Mr Hull sent the plaintiffs' solicitors an email which said: Further to the above matter and following our conversation late Friday afternoon, I confirm that the agency agreement forwarded to you for signature by your clients Mrs Vidler and Mrs Simpson-Jones, is a joint agency on behalf of all vendors. The fee is to be paid in equal portions by each party to the agreement, Mr & Mrs Peter Simpson to be one of those parties. The agency agreement is purely to allow me to legally handle the sale on behalf of the vendors. The agreement does not cover external issues to the sale such as the disposal of any items on site (namely pots) and nor does the agreement seek to address any disputes the vendors may have with each other in regards to claims they may have against each other for past alleged wrongs or expenses paid on behalf of others. Such discussions and subsequent arrangements and what impact they may have on the disbursement of monies on settlement are not within the scope of the agency agreement. In simple terms a sale is being instructed at $2,000,000 plus GST, if applicable. On settlement funds will be distributed as follows:- Sale amount $2,000,000 less fee $ 50,000 Net proceeds $1,950,000 Distribution to each party $ 650,000