Supreme Court New South Wales Medium Neutral Citation: Justin Barker v Gordon Albert Salier [2018] NSWSC 798 Hearing dates: 30 April 2018; 24 May 2018 Decision date: 24 May 2018 Jurisdiction: Equity Before: Emmett AJA Decision: See paragraph [4]. Catchwords: EQUITY – trusts and trustees – judicial advice – whether executor justified in settling claim for family provision order under Succession Act 2006 (NSW) SUCCESSION - family provision and maintenance Legislation Cited: Trustee Act 1925 (NSW) Succession Act 2006 (NSW) Category: Principal judgment Parties: Gordon Albert Salier (Applicant) Representation: Counsel: Mr B Skinner (Applicant) Solicitor: Gordon Albert Salier (Applicant) File Number(s): 2018/148680 EX TEMPORE Judgment 1. HIS HONOUR: By summons filed on 11 May 2018, Mr Gordon Salier, a solicitor, seeks the opinion, advice and directions of the Court under s 63 of the Trustee Act 1925 (NSW), that he would be justified in settling a claim brought by Justin James, also known as Justin Barker, in proceedings 2016/29717 (the Family Provision Order Proceedings), for a Family Provision Order under the Succession Act 2006 (NSW). The Family Provision Order Proceedings were fixed for hearing before me on 30 April and 1, 2 and 3 May of this year. By consent, the hearing was vacated on the basis that the parties wished to participate in a mediation. A mediation was conducted which resulted in a conditional compromise of the Family Provision Order Proceedings. 2. Mr Salier is the administrator of the Estate of the late Clair Elizabeth Christina James (the Deceased), who died on 15 March 2014. He was appointed as administrator to replace Ms Jennifer James (Jennifer). The last will of the Deceased was dated 22 April 2010 (the Will) and probate of the Will was granted to Jennifer on 1 December 2014. The Will provided for specific bequests in favour of the five grandchildren of the Deceased. The rest and residue of the Estate was left in equal portions in favour of her four children. The plaintiff in the Family Provision Order Proceedings is the son of Jennifer, one of the four children of the deceased, and is therefore her grandson. 3. I have had regard to the facts contained in the statement of facts that is part of the summons filed on behalf of Mr Salier in these proceedings. I have also had regard to the memorandum of Mr Brian J Skinner of counsel, dated 4 May 2018, together with an addendum to that memorandum, dated 24 May 2018. I have also had regard to a chronology of events, a settlement checklist and a letter dated 11 May 2018, from Jennifer's trustee in bankruptcy to Mr Salier, all of which are evidence in these proceedings. Having regard to those matters, I consider that Mr Salier, as defendant in the Family Provision Proceedings, would be justified in compromising those proceedings in terms of the document dated 30 April 2018 and described as "Judgment Order", which I have marked as Exhibit 4 in these proceedings. The terms of the document are as follows: (1) Time be extended for the filing of the summons to 29 January 2016. (2) In lieu of his entitlement under the will of the late Clair Elizabeth Christina James the Plaintiff receive by way of provision out of the estate of the deceased a lump sum of $100,000. (3) The Plaintiff's costs in the sum of $40,000 be paid out of the estate. (4) The Defendant's costs be paid out of the estate on the indemnity basis. (5) The Court notes the agreement of the parties that: (a) The Plaintiff is an eligible person. (b) The Plaintiff has served a notice identifying all other eligible persons on the Administrator at the time of serving the Summons. (c) The Administrator has filed Administrator's affidavits of the assets in the estate and an affidavit of service of the notice of the Plaintiff's claim on each eligible person on 10 April 2016. (d) The Administrator has filed an Appearance. (6) The entry of the orders herein is subject to the receipt of Judicial Advice from the Court as to the appropriateness of the settlement recorded herein. (7) Interest is not payable on the lump sum before the receipt of Judicial Advice or 24 May 2018 whichever event is the latest. (8) The Plaintiff and Defendant note that a sequestration order was made against the estate of Jennifer Elizabeth James on 29 November 2017 and that her interest under the will of the deceased is vested in Shabdam Amirbeaggi pursuant to the provisions of the Bankruptcy Act 1966. (9) The defendant in his capacity as Administrator will not object to the Plaintiff asserting an additional interest in the amount of $35,000 in any property owned by Jennifer Elizabeth James and/or Howard Barker or both. (10) Each of the said sums of $100,000; $40,000 and $35,000 are to be regarded as separate and distinct sums to be satisfied pursuant to these orders. 1. Accordingly, I propose to order that Mr Salier would be justified in settling the Family Provision Proceedings upon those terms and that his costs of this application be paid out of the assets of the Estate of the late Clair Elizabeth Christina James on the trustee basis. In proceedings 2016/29717, I propose to make orders in terms of the Judgment Order. ********** 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: 30 May 2018