The Court has before it an application to prevent, by injunction, the proposed execution tomorrow by the Defendant of a contract of sale of a property of which she, the Defendant, is the registered owner. The notice of motion is brought in connection with the proceedings commenced by Summons today. The Plaintiff is the son of the Defendant. The property is located in Glaisher Parade, Cronulla. I will refer to it as "the Property".
In support of the injunction, the Plaintiff relies on his affidavit of 14 October 2021. The affidavit is lengthy, and it sets out the Plaintiff's version of the history of relations between his mother and his father, Kenneth Williams, which includes, he asserts, a promise by his parents that they would leave the Property to him on their death. The Summons seeks a declaration that "the Defendant is bound by the terms of the agreement between her and Kenneth Williams on the one hand, and the Plaintiff on the other, made in October 2009 to leave the [Property] to the Plaintiff upon her death". Kenneth Williams died some years ago. Other declarations are sought, including that the Plaintiff has an equitable interest in the Property, a declaration that the Defendant is estopped from transferring the Property, and a setting aside of any last will and testament made by the Defendant which does not leave the property to the Plaintiff.
Mr C Palmer of Counsel appears for the Plaintiff. Mr R Marshall SC appears for the Defendant. Mr Palmer referred to the Plaintiff's claim in shorthand form, which I shall adopt, as the "will contract claim".
There is an alternative declaration sought that the Plaintiff has an equitable interest in the Property to the extent of the Plaintiff's financial and non-financial contributions in respect of the Property, and also, a declaration is sought that the Plaintiff is entitled to an equitable charge over the Property. All of these matters are linked to the will contract claim, other than the claim for a smaller amount, which relates to expenditure which the Plaintiff claims that he has made in respect of the Property over a number of years. There is no dispute that the Plaintiff, his wife and children lived in the property for a number of years.
Relations between the Plaintiff and his mother, the Defendant, have been strained for some time - indeed, earlier this year, proceedings were commenced by the Defendant to recover possession of the Property and have the Plaintiff and his family vacate the premises. I shall refer to those proceedings "the First Proceedings". Orders were made by Rees J on 16 February 2021 in that regard: see pages 358 and 359 of the Court Book, which I shall mark as Exhibit A, which includes the affidavit. Further, there were other proceedings which were brought by the Defendant against the Plaintiff, which related to the Plaintiff, Michelle, his wife, and the company known as Howglen Pty Ltd. I shall refer to those proceedings as "the Second Proceedings".
The Second Proceedings were brought to an end by virtue of a deed of settlement. The deed of settlement ("the Deed") is found at pages 431 to 438 of Exhibit A and that deed was executed as a deed on 11 May 2021. The Deed is of considerable significance, because not only were the Second Proceedings resolved by the Deed, but also, there was contained in the Deed a very wide release of all parties in it under the heading "Mutual Release": see cl 4.
There are two key provisions of the Deed on which the Defendant relies to maintain that there is no seriously arguable case to be advanced by the Plaintiff: cl 1.1, which is in the following terms:
"Winifred is acknowledged to have the full and unfettered legal and beneficial interest in Glaisher to the exclusion of all others, including Alex"
and cl 4.1, which is in these terms:
"Winifred (in her personal capacity and as representative of the late Kenneth Alexander Forbes Williams) on the one hand and Alex and Michelle on the other hand, mutually release each other from all claims, costs, debts and obligations of any kind howsoever arising but currently in existence at the date of this Deed, whether known or unknown, other than those provided for in this Deed".
Recital D is in the following terms:
"Alex lodged a caveat (Land and Registry Document Identification AQ874116 ("Caveat")) on the title of Winifred's land at [Glashier], claiming an interest in Glashier".
Mr Palmer sought to contest the applicability of the Deed in a number of respects. He submitted that:
1. cl 1.1 does not extend to cover the will contract claim;
2. whilst cl 4 is very widely drafted, it ought not to be read as extending to the will contract claim or the moneys alleged by the Plaintiff to have been spent on the Property; and
3. he refers to the decision of The Owners Corporation of Strata Plan 61390 v Multiplex Corporate Agency Pty Limited and Ors (No 2) [2012] NSWSC 322 per Pembroke J ("Multiplex"), and the discussion in that case of the High Court decision in Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112 ("Grant v Grant") and submits that the release should be read narrowly.
I have had regard to what Pembroke J said in Multiplex and to the terms of the releases in cls 1.1 and 4. In my view, the prospects that the Plaintiff would able to maintain a claim against the Defendant, notwithstanding the terms of the Deed, are slim indeed. I say that because, firstly, the recital refers to the Plaintiff's claim through the previously filed caveat - which is Exhibit 2 - and which must objectively be regarded as being part of the matters resolved by the parties and secondly, because I cannot see any substance in the proposition that cl 4 should not be given full effect. The parties were obviously endeavouring to completely end their relationship, and there are other matters in the Deed which point to this, to which Mr Marshall referred. It is clear that by this stage, there had been a significant breakdown in the relationship between the Defendant on the one hand and the Plaintiff and his family on the other.
As Pembroke J noted in [29] of his judgment, there will always be cases where, properly characterised, the parties should be taken to have intended that the general words of a release should operate to encompass all conceivable further disputes, whether disclosed, or not, and whether within the knowledge of a party, or both parties, or outside of it: see Grant v Grant at 129. At [30], Pembroke J said:
" In such a case there is no room for the application of equitable principle. The equitable principle only has a role to play when it appears from the terms or the context or other admissible evidence, that the enforcement of the legal right would, by a literal application of the general words of a release, be against conscience. It would not be against conscience if the court is satisfied that the parties intended "upon a particular and solemn composition for peace" to release uncertain demands and presently unknown claims: Salkeld v Vernon (1758) 1 Eden 64 at 67-68, cited in Grant v John Grant & Sons (supra) at 129."
The present is case is even stronger because cl 4.1 itself recognises that even unknown claims are excluded.
These matters lead me to conclude that the Plaintiff's claim is very weak.
There is another aspect, and that is the timing of the application; a very relevant matter in terms of seeking injunctive relief to stop the Defendant from tomorrow selling a property of which she is the registered owner. The Plaintiff has been on notice since February this year that things have changed as between his mother and himself. He became aware that he had been removed as a beneficiary of the will sometime in February. He knew, or he was told, by a solicitor acting for the Defendant in February that the Defendant wanted to sell the Property and that she wanted him out of the Property. Police were called to have the Plaintiff and his family removed. In his affidavit, the Plaintiff says that he did not believe that his mother really meant to deny him an entitlement to the Property but what is interesting is that on 16 March 2021, he lodged the caveat to which I have earlier referred. The caveat was not annexed to the Plaintiff's affidavit and he made no mention in his affidavit of having lodged the caveat - a striking omission in my view. The interest claimed in that caveat is in the following terms.
"Equitable estate in whole of the land pursuant to equitable estoppel arising from representations by caveatee and/or caveatee's late husband, relied upon by the caveator to his detriment, to the effect that caveator was, or upon death of caveatee and/or caveatee's late husband would become, owner."
I do not accept that the Plaintiff has not had sufficient notice since at least March that his claims to an interest in the Property were not accepted.
There is a further aspect which is that even if the Plaintiff had a strong case that his mother was obliged to leave him the Property under her will, it is not clear why it would be appropriate to prevent the sale from going ahead. If the sale proceeds, the Defendant will receive whatever the Property is worth and if the Plaintiff was successful in the proceedings, the net proceeds would represent his loss. The Plaintiff claims that the Property has sentimental value to him, and that the Property is unique. I have some doubt about the uniqueness and significance of the Property remaining in the Plaintiff's family but even accepting that it might have, I would be disinclined to regard it as sufficient to prevent a sale at such a late stage.
I have to weigh up all the factors, including what I perceive is the weakness in the Plaintiff's case, the imposition on the Defendant of injunctive relief and the delay which, in my view, is quite significant, given that he has been on notice for a very long time that the Property would not be going to him under his mother's will and that his mother maintained that the Property is hers, whether through the Deed, or otherwise, but particularly through the Deed. In these circumstances, he has taken no action since either before or after the Deed, until now, to seek to establish the claims that he makes in respect of the will contract claim.
Taking all these matters into account, I am of the view that the injunctive relief should not be granted.
[2]
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Decision last updated: 01 November 2021