M V & J M Petronaitis v D M Petronaitis [2016] NSWSC 765

Supreme Court New South Wales

Medium Neutral Citation: M V & J M Petronaitis v D M Petronaitis [2016] NSWSC 765 Hearing dates: 6 June 2016 Decision date: 07 June 2016 Jurisdiction: Equity - Probate List Before: Black J Decision: Court makes a declaration that the Plaintiffs and Defendant entered into an enforceable agreement on 19 May 2016. Court orders that the agreement be specifically performed; the Defendant execute a document in the form of the Consent Orders by 4pm 8 June 2016; in default of the Defendant's compliance with the order above, the Consent Orders be executed by the Registrar in Equity on Defendant's behalf; the Plaintiffs' reasonable costs of and incidental to the Notice of Motion be paid on an indemnity basis from a fund of the estate comprising the legacy in the sum of $775,000.00 payable to the Defendant; and the hearing dates listed before Stevenson J on 15–17 June 2016 be vacated. There be liberty to apply on 3 business days' notice. Catchwords: CONTRACTS — Existence of contract – where plaintiffs contended that they and the defendant entered into a binding settlement agreement – where defendant denied the existence of a binding contract on the basis that the effect of the mediation agreement between the parties was that any settlement agreement could only be reached in writing – where the defendant also contended that the parties' intention was not to make a concluded bargain unless and until a formal contract was executed – whether a binding agreement existed.

PROCEDURE — Costs – where there were legacies payable out of an estate to the plaintiffs and defendant – where plaintiffs were successful in application seeking a declaration that the plaintiffs and defendant entered into a binding settlement agreement – where plaintiffs contended that their costs of the application be paid on an indemnity basis from the fund of the estate comprising the legacy payable to the defendant – whether costs order sought by the plaintiffs should be made. Legislation Cited: - Civil Procedure Act 2005 (NSW), ss 73, 94 - Evidence Act 1995 (NSW), s 131 - Succession Act 2006 (NSW), s 95 Cases Cited: - Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 - Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622 - Geebung Investments Pty Ltd v Varga Group Investments (No 8) Pty Ltd (1995) 7 BPR 14,551 - Howe v Connell (Supreme Court of New South Wales, Young J, 25 September 1997, unrep) - Jennings v Jennings [2015] NSWSC 1826 Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353 - Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 325 ALR 188 - Pavlovic v Universal Music Australia Pty Ltd [2015] NSWCA 313 - Rilga Nominees Pty Ltd v BHA Holdings Pty Ltd [2014] VSC 632; (2014) 103 ACSR 370 - The Owners - Strata Plan No 58087 v Matthews [2015] NSWSC 1906 Category: Procedural and other rulings Parties: Michael Victor Petronaitis (First Plaintiff/Applicant) John Martin Petronaitis (Second Plaintiff/Applicant) Dalia Maria Petronaitis (Defendant/Respondent) Representation: Counsel: J P Muir (Plaintiffs/Applicants) R D Marshall (Defendant/Respondent)