Estate Sullivan [2016] NSWSC 524

Supreme Court New South Wales

Medium Neutral Citation: Estate Sullivan [2016] NSWSC 524 Hearing dates: 26 April 2016 Decision date: 06 June 2016 Jurisdiction: Equity - Probate List Before: Lindsay J Decision: Determination of the form of an order required to give effect to an agreement for settlement of proceedings. Catchwords: PROCEDURE - Settlement of proceedings – Compromise of proceedings on terms to be approved by Court – Dispute as to form of one term – Dispute submitted to Court for determination Legislation Cited: Civil Procedure Act 2005 NSW Corporations Act 2001 Cth Succession Act 2006 NSW Cases Cited: - Texts Cited: - Category: Principal judgment Parties: Plaintiff: Michael John Sullivan Defendant: Gregory Mark Sullivan as Executor of the Estate of the late Catherine Annette Sullivan Representation: Counsel: Plaintiff: M Painter SC Defendant: L Ellison SC

Solicitors: Plaintiff: Carroll & O'Dea Defendant: DLA Piper Australia File Number(s): 2014/00261642

Judgment

INTRODUCTION 1. For convenience, the active parties before the Court, Michael and Gregory Sullivan, are respectively described in these reasons for judgment as "the plaintiff" and "the defendant". During the course of preparation of the judgment, and for the purpose of minimising the risk of a multiplicity of further proceedings, other parties with an interest in the proceedings were joined as defendants. Through the defendant's solicitor, they each filed a submitting appearance. 2. Gregory Sullivan is now a defendant in his personal capacity, as well as in his capacity as executor of the estate of the late Catherine Annette Sullivan ("the deceased"). He contests the proceedings only in his representative capacity. 3. Other parties now joined as defendants are CA Sullivan Pty Limited ("CAS Pty Limited"), DW Sullivan Pty Limited ("DWS Pty Limited"), Gabrielle Poularas (sister of Michael and Gregory Sullivan) and the adult children of Michael Sullivan (Philip, Amy and Andrew Sullivan). 4. The formal participation in the proceedings of "submitting parties" is noted, as a matter of record, but in these reasons for judgment the character of the dispute the subject of determination is presented in the guise in which it was presented to the Court. The proceedings were conducted, in substance, as a dispute between the active participants: Michael Sullivan, as "plaintiff" and Gregory Sullivan, as "defendant". That is how they are described here, and in the documentation of the parties to which the judgment must refer. 5. The plaintiff (Michael Sullivan) and the defendant (Gregory Sullivan) are sons of the deceased, who died on 16 August 2014. With their sister (Gabrielle), they are the principal beneficiaries named in the deceased's Will dated 11 December 2010. 6. Before the Court is a motion calling for determination of a dispute within the family about how to implement an agreement for settlement of proceedings on a claim by the plaintiff for family provision relief (under Chapter 3 of the Succession Act 2006 NSW) against the estate of the deceased. 7. In an earlier phase of the proceedings, the Will was the subject of contest, culminating in a partial settlement of the proceedings on 16 February 2015, when orders were made leading to a grant of probate of the Will, in solemn form, made to the defendant on 6 July 2015. 8. With amendment of court process, the proceedings continued as the vehicle through which the plaintiff made his application for family provision relief. 9. Following a mediation ordered by the Court in this, the family provision phase of the proceedings, the plaintiff and the defendant agreed, on notice to their sister, to settle them. 10. They recorded their agreement, at the end of the mediation on 3 June 2015, in a document, styled " Heads of Agreement" and dated that day, which the plaintiff personally, his then solicitor and the solicitor for the defendant all executed. 11. Clause 1 of the Heads of Agreement was in the following terms: "It is the intention of the parties that these Heads of Agreement be binding in their own terms. The parties agree to use their best endeavours to produce Court orders and an agreement in more precise terms which reflect the Heads of Agreement herein and which are suitable for the making of orders. The parties agree that in the event that the Supreme Court declines to make orders and notations in the tenor of the proposed orders and notations presented to it, these Heads of Agreement will have no binding effect." 1. On both sides of the record, the parties adhere to their agreement of 3 June 2015 that the principal proceedings have been settled. However, there is one issue upon which they differ as to the form of a formal notation to be made by the Court designed to give effect to the settlement agreement. 2. That issue has been tendered to the Court for its determination upon the express basis that, however it may be determined, the parties jointly invite the Court to make orders and notations designed to give effect to the Heads of Agreement. 3. In formal terms, by a notice of motion filed on 24 July 2015, the defendant seeks orders, under section 73 of the Civil Procedure Act 2005 NSW, in the nature of an order for specific performance, for enforcement of the Heads of Agreement. 4. In the event, because of the parties' joinder of issue on the motion, and their confinement of their dispute to a single issue, the Court can dispense with a formal order for specific performance, proceeding instead to make orders and notations by reference to draft short minutes, or revised draft minutes provided at the Court's invitation, which include (for the Court to choose between them) the parties' competing versions of a single paragraph. 5. A resolution of the point at issue turns upon construction of one particular provision (clause 4) of the Heads of Agreement designed, principally, to adjust the rights of the plaintiff under clause 8 of the defendant's Will. 6. In compliance with directions given by the Family Provision List Judge (Hallen J), the parties prepared separate counterparts of what was intended, ultimately, to be a "Joint Memorandum" identifying the issues required to be determined on a hearing of the defendant's notice of motion. 7. The defendant's counterpart bears the date 9 October 2015. The plaintiff's counterpart is in evidence under cover of an email dated 12 October 2015. The two counterparts differ only in their identification, in paragraph 18, of the issue that presently divides the parties. 8. The draft short minutes as originally presented by the parties to the Court, and as subsequently revised, incorporate (in paragraph 5) competing versions of the formal notation proffered as a means of giving effect to clause 4 of the Heads of Agreement.