Supreme Court New South Wales Medium Neutral Citation: Buckman v Rose-Rapmund [2015] NSWSC 311 Hearing dates: 20 March 2015 Decision date: 20 March 2015 Jurisdiction: Equity Division Before: Stevenson J Decision: Summons dismissed Catchwords: PROCEDURE – judgments and orders – amending, varying and setting aside – application to set aside order granting letters of administration and order that administrator be at liberty to administer estate on basis of draft short minutes of order – whether solicitor for the applicant knowingly failed to inform court that a submitting party did not consent to those orders – whether application should be made in fresh proceedings Legislation Cited: Uniform Civil Procedure Rules 2005 Cases Cited: Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 Category: Principal judgment Parties: Walter James Buckman (Plaintiff) Jean Evaline Rose-Rapmund (First Defendant) Dorothy Isabel Carmody (Second Defendant) John Hamilton Maxwell (Third Defendant) Representation: Counsel: K Ryan (Plaintiff) P Smart (Defendants) Solicitors: Parker & Kissane Solicitors (Plaintiff) Jensens Solicitors & Attorney (Defendants) File Number(s): SC 2015/88264 EX TEMPORE Judgment (revised) 1. These proceedings relate to the estate of the late Eric Buckman, who died on 19 January 2010. 2. Mr Buckman died intestate. Pursuant to the rules of intestacy his estate is to be divided equally between his three siblings. Those siblings are his sister Jean Rose-Rapmund, his brother Walter Buckman, and his sister Dorothy Carmody. 3. For convenience and without intending any disrespect to the parties, I will refer to them by their first names. 4. At the time of Eric's death, he and Walter were tenants in common of two adjoining rural properties near Kyogle. Eric lived in one property, in a house built by the siblings' parents. Walter and his wife built a house on the other property and have lived there for many years. 5. Since Eric's death, the farming business on both properties has been continued by Walter. 6. In the years following Eric's death, the siblings could not agree on who should administer Eric's estate. 7. Ultimately, Jean, on 4 November 2013, filed a statement of claim seeking an order that the NSW Trustee and Guardian be appointed administrator of Eric's estate. On 14 and 20 January 2014, respectively, Walter and Dorothy filed submitting appearances in those proceedings, which I will call "the Administration Proceedings". 8. On 7 July 2014, Lindsay J made orders in the Administration Proceedings appointing Mr John Maxwell, a solicitor, as administrator of Eric's estate and that Mr Maxwell: "…as administrator of the estate, be at liberty to administer, and to distribute, the estate in accordance with the agreement between [Jean], [Walter] and [Dorothy] recorded in paragraphs 4 - 17 inclusive of the draft short minutes of order enclosed with an email dated 4 July 2014, addressed by [Jean's] solicitor (Paul Pellandine) to the Court, and admitted into evidence as Exhibit P1". 1. By notice of motion filed in the Administration Proceedings on 18 September 2014, Walter sought the following order: "That the Orders made on 7.7.2014 be set aside as of no effect on the grounds that [Walter] did not consent to the Orders and that Mr Paul Pellandine, the solicitor for [Jean], was aware of this absence of consent". 1. On 10 November 2014, Lindsay J referred this notice of motion to the Registrar for allocation of a hearing date. On 20 November 2014, the Registrar set the notice of motion down for hearing in the Applications List today. As Applications Judge, the matter has come before me. 2. At the outset, I drew to the attention of Mr Ryan, who appears for Walter, the decision of the Court of Appeal in Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 that jurisdiction to set aside an order for fraud should be invoked by a new action brought for that purpose, and not by a notice of motion in the proceedings in which the order was made. 3. Accordingly, I invited Mr Ryan to bring in a summons, seeking the same relief as sought in the 18 September 2014 notice of motion. Mr Ryan did so, and with the consent of Mr Smart, who appears for Jean, I made that summons returnable instanter and ordered that the relevant evidence in the Administration Proceedings be evidence in the proceedings commenced by that summons. The matter proceeded on that basis. I took that course as both Mr Ryan and Mr Smart informed me the parties were anxious to have the matter resolved today on its merits. 4. In the course of giving the last few paragraphs of my judgment, Mr Ryan interrupted to say in fact he also relied upon Uniform Civil Procedure Rules r 36.15 and contended that I had jurisdiction within the Administration Proceedings to set aside Lindsay J's judgment on the basis it was made "irregularly" or against "good faith". Mr Ryan did not mention that rule earlier in the proceedings. However, I do not think this affects the matter either way. I am satisfied I have jurisdiction, and I will deal with the substance of the application. 5. The relief that Walter has claimed, whether it be in the summons filed in Court today, or the notice of motion filed on 18 September 2014 in the Administration Proceedings, is the same; namely, that Lindsay J's orders of 7 July 2014 in the Administration Proceedings should be set aside on the basis that Walter did not consent to orders being made in accordance with the draft short minutes of order specified in the order set out at [8] above, and that Jean's solicitor, Mr Pellandine, knew this. 6. In particular, Mr Ryan submitted that the email of 4 July 2014 that Mr Pellandine sent to Lindsay J's Associate, referred to in the order I have set out at [8], was false. 7. Although, in oral submissions, Mr Ryan ultimately eschewed making a submission that Mr Pellandine's 4 July 2014 email was knowingly false, the basis of Walter's application is that Mr Pellandine "was aware" (which I would read as meaning "actually aware") that Walter did not consent to the order made by Lindsay J. 8. That is a grave allegation to make. It is hard to think of a more serious allegation that could be made of a solicitor than that he or she made a statement to the Court that he or she knew to be false. 9. For the reasons that follow, I am comfortably satisfied there is no basis for the allegation in this case. 10. At all relevant times during the Administration Proceedings, Walter was represented by Mr John Gibson, a solicitor in Kyogle. 11. On 20 May 2014, Mr Gibson wrote a letter to Mr Paul Pellandine in the following terms: "I regret any confusion that may have been caused. It seems that whilst my client, Walter Buckman, had 'no instructions' for me in relation to your client's Application – more particularly, what appeared to be a choice between a) the NSW Public Trustee or b) Mr Rose and myself or c) Solicitor John Maxwell – to be the Court appointed Administrator of this Estate. Perhaps there was also a misunderstanding on my part but it now seems that he has not entirely withdrawn his instructions to me. Thus, I have not filed a Notice Ceasing to Act. The fact is, he simply didn't like the above choice that I put before him. He maintains his 'submitting appearance' otherwise. I further assume that whomever is appointed is to follow the proposed Deed of Arrangement, rather than proceeding as they may otherwise think fit. Despite having 'no instructions' as set out above, my client was very clear to me that he did not want Mr Rose, to be the Administrator under any circumstances. I regret that I did not make this more plain to you at the time but I did not contemplate (as it seems from the document that you have provided today) that it is your client's intention to have Mr Rose appointed on his own. Respectfully, this was never part of your client's original application to which Mr Buckman 'submitted'. I also suggest that it is inappropriate for your client's son to be the sole administrator even if he employs Mr Maxwell, no matter how honourable and honest both men may be. You can continue to serve any document upon me, rather than serve directly to my client. I would also think it appropriate that you provide a copy of this letter to the Court so that the Court is aware at least, prior to making any determination, what my client's instructions are relating to Mr Rose being appointed." 1. That letter indicates that Mr Gibson was having some difficulty getting instructions from Walter. However, Mr Gibson said that Walter maintained his "submitting appearance". Mr Gibson's letter focused on his instructions from Walter that Walter did not want Mr Rose to be appointed administrator. Mr Rose is a retired bank officer and is Jean's son. 2. As I have mentioned, when Jean commenced the Administration Proceedings, she sought an order that the NSW Trustee and Guardian be appointed administrator of Eric's estate. In circumstances not necessary to recount, it became clear by 20 May 2014 that the NSW Trustee and Guardian would not be appointed as administrator. At some point, it was proposed that Mr Rose be administrator. As it turns out, and as I have mentioned, Mr Maxwell was appointed administrator. 3. On 27 May 2014, Mr Pellandine wrote to Mr Gibson as follows: "In light of the above Mr Buckman needs to, via yourselves, confirm or otherwise address the proposed sale and distribution of the estate as set out in the proposed Order / Deed. To date your client has submitted to that being so in the Court yet your recent May 2014 correspondence clearly shows he does not want that to be the outcome. If your client wants a different outcome he needs to put that on record rather than delay and change his position after the event of an Order being made because the appointed administrators will, as required, proceed as ordered." 1. As Mr Ryan pointed out, that passage bespeaks an understanding by Mr Pellandine that Walter "does not want" the outcome evidenced by the then "proposed Order/Deed". However, Mr Pellandine went on to say that if Walter wanted a "different outcome" he would have to "put that on record". 2. On 3 June 2014, Mr Gibson wrote to Mr Pellandine in the following terms: "Following a conference with Mr Wal Buckman today I advise that my client is not altering his 'Submitting Appearance' in this matter. Thus, with reference to the last paragraph of Jensens' letter of the 27th ultimo, he accepts that the implementation of the proposed Deed may well be the order of the Court. I am instructed, however, to write to the Registrar of the Court (and/or the Judge to whom it is referred) expressing that my client does not agree or consent to the appointment of Mr Rose as the Administrator. I am not instructed as to the nomination of any alternative but my client's preference is for the NSW Trustee. Copy attached. Otherwise my client simply awaits the orders of the Court." 1. It is clear from that letter that Mr Gibson had conferred with Walter that day. Mr Gibson stated that Walter accepted that "the implementation of the proposed Deed may well be the order of the Court." Mr Gibson concluded that "otherwise, my client simply awaits the order of the Court." Mr Gibson also attached a copy of the letter he had sent that day to the Principal Registrar of the Court which is in the following terms: "I am the solicitor on the record for the First Defendant. The First Defendant has made a 'Submitting Appearance' to the Application by the Plaintiff. I am not instructed to withdrawn such Appearance however I am instructed to ensure that the Registrar and/or Judge determining this matter on the 23rd instant is aware that the First Defendant does not agree with the particular appointment of Donald John Rose to be the Administrator of this Estate. The First Defendant is aware that the said Donald John Rose may be nominated by the Plaintiff to be the Administrator. The First Defendant objects as he is the Plaintiff's son and would not be impartial toward the First Defendant." 1. In that letter, Mr Gibson confirmed that he had no instructions to withdraw Walter's submitting appearance but asked that the judge determining the matter be aware that Walter did not agree to Mr Rose's appointment as administrator. However, no other concern of Walter in the proceedings was expressed. 2. The following day, Mr Pellandine responded including: "The reference in your letter to your client not withdrawing his submitting appearance is referred to in both letters that we will rely upon that indication and the filed documents for the deed to be an order of the court. Notwithstanding your latest interpretation of your client's instructions to you, which given the recent history, is open to reinterpretation, we advise as follows. On the morning of 3 June 2014 your client and his wife phoned our client at her home. They advised that they wanted to take the extra 50 acres by boundary adjustment, they advised that your client is diagnosed with a terminal illness, that it was primarily caused by our client's involvement in this matter and they stated that he wanted to take 'the extra 50 acres with him to his grave.' After a few minutes of abusive and accusatory language our client terminated the phone call." 1. Thus Mr Pellandine inquired of Mr Gibson whether Mr Gibson's "latest interpretation" of his instructions from Walter could be "open to reinterpretation" by reason of the telephone call that evidently Walter and his wife had made to Jean the previous day. 2. As Mr Ryan submitted, the account of that telephone call does suggest that Walter was still seeking to agitate the basis upon which the matter should be finally resolved. However that may be, there is no evidence that Mr Gibson responded to Mr Pellandine's letter to make any comment about that aspect of the matter. Mr Pellandine was not cross-examined about this matter, or at all. 3. On 23 June 2014, Lindsay J made an order that Jean, by her solicitors, circulate to the other parties to the proceedings the "draft short minutes of the orders to be sought on 7 July 2014". 4. Accordingly, on 24 June 2014, Mr Pellandine wrote to Mr Gibson attaching a copy of Lindsay J's orders. 5. On 30 June 2014 Mr Gibson's legal assistant sent an email to Walter as follows: "Attached please find a letter from Jensons. John [Gibson] says you need not do anything about this - this is simply a notice to you". 1. In an affidavit sworn in the Administration Proceedings on 3 October 2014, Mr Pellandine gave this evidence which was received without objection and unchallenged: "The response to the serving of the draft short minutes of orders to be sought on 7 July 2014 was that [Dorothy] agreed and the solicitor for [Walter] [i.e. Mr Gibson] contacted me and requested minor changes to the document relating to the payment of legal costs for his client. By agreement those changes were made. There was no request nor notice by the solicitor for [Walter] to change or withdraw or contest the proposed draft short minutes of order." 1. On 4 July 2014, at 12.22pm, Mr Pellandine sent an email to Mr Gibson's legal assistant: "Please see amended Minutes of Orders following discussions with the proposed administrator [Mr Maxwell] and Mr Gibson." 1. Thus, consistently with Mr Pellandine's unchallenged evidence, he stated that the proposed short minutes had been amended "following discussions" with Mr Gibson. 2. Some five hours later, at 5.34pm, Mr Pellandine sent to Lindsay J's Associate the email referred to in Lindsay J's orders, being the email that Walter contends to be false: "We refer to recent documents and emails forwarded in this matter. Following negotiations with the other parties an Amended Short Minute of Orders has been agreed that differs in terms of providing certainty and wording of some parts. Copies have been forwarded to the solicitors for the other parties. The outcome remains the same. Proposed Order 1 is written to meet the requirements of the LPI and to be more accurate." 1. I see nothing in that email which was false to Mr Pellandine's knowledge. 2. There had been negotiations with other parties concerning the short minutes, including negotiations with Mr Gibson, on behalf of Walter. 3. There is no evidence to suggest that, as at 4 July 2014, Mr Pellandine had any reason to think that Mr Gibson was not acting on Walter's instructions. Whatever doubts Mr Pellandine may have had on 4 June 2014 (see [29] above) must have been put to rest by his communications with Mr Gibson on or around 4 July 2014. 4. Mr Ryan contended before me that, in fact, Mr Gibson did not have Walter's instructions to agree to the short minutes. I make no comment and no finding about that. 5. What is clear from the correspondence and communications to which I have referred is that, so far as Mr Pellandine is concerned, he was dealing at arm's length with a solicitor acting for Walter. I see no basis in the evidence to conclude that Mr Pellandine should have known, let alone actually did know, that Mr Gibson did not have Walter's instructions to agree to the short minutes (if, in fact, that is the case). 6. I see no basis at all to set aside the 7 July 2014 orders and I refuse to do so. 7. I order that the notice of motion of 18 September 2014 in the Administration Proceedings, being proceedings numbered 2010/410710, be dismissed. 8. I order that the summons in these proceedings be dismissed. 9. In the Administration Proceedings I order that Walter pay Jean's costs of the notice of motion of 18 September 2014. In these proceedings I order that Walter pay Jean's costs. 10. I stand the Administration Proceedings, and also proceedings numbered 2014/259106 over for directions in the Probate List before Lindsay J on 13 April 2015 or such other date as his Honour nominates. 11. I note that Mr Pellandine will notify Mr Maxwell of that adjourned date. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 March 2015