2009/00287160 Carol DINGELDEI v Robert LEEDHAM and Another; Estate of the late Lambert Henry LEEDHAM deceased.
JUDGMENT
1 HIS HONOUR: These proceedings relate to entitlements in the estate of the late Lambert Henry Leedham, late of Mortdale who died on 27 August 2007. He is usually referred to in the evidence as Harry or Uncle Harry. He was little over ninety years of age when he died in 2007 and the most significant events, for present purposes, happened in 2003.
2 The plaintiff is one of his nieces. The testator appointed the defendants, who are a nephew and a niece, as his executors. They obtained Probate in this court on 29 November 2007.
3 Late in the testator's life his affairs were the subject of a guardianship order and another nephew, Mr Ross Leedham, was appointed guardian with significant responsibilities including responsibilities relating to finances.
4 However there is no indication in the evidence that at the time of making the agreements which gave rise to these proceedings in 2003 Mr Harry Leedham was suffering from dementia or any diminished capacity to consider and decide on his own affairs. There is no element in the pleadings or in the facts of any claim or evidence supporting a claim to have rights otherwise than according to the meaning and effect of the documents. There is no claim for equitable relief or suggestion that Mr Harry Leedham was overborne or treated unfairly or otherwise could have applied to set aside the arrangements or have them rectified.
5 The testator's will gave his part-ownership interest in a property in Weeks Road Riverwood to his sister, Mrs Emily Mary Wright, who is mentioned elsewhere in these reasons, and then provided for the rest of his estate after payment of debts and other expenses to be equally divided among eight people.
6 The executors proceeded to realise his assets, and in the steps they took towards winding up his estate they deducted $155,000 from a distribution made to the plaintiff, Carol Dingeldei, on the footing that that sum was a debt owed by her to the testator and his estate. The result was that she received $5,000 in a distribution which otherwise would have been $160,000. This was not a final distribution of assets.
7 Mr Harry Leedham left a significant estate and the questions in issue are of real value. The conventional or traditional way to decide entitlements on distribution was to require all the accounts of the estate to be presented to the court and then go through them item by item and decide on the correctness of each item. That is not necessary in this case as only one item has given rise to dispute and it can be readily identified.
8 In the Summons and Statement of Claim the plaintiff claimed an order that the distribution should take place on the basis that she is entitled to a further $155,000.00. The Defence set up the loan agreement document under which her obligation to repay a loan of that sum is recorded, and the Reply set out at some length arrangements which, according to the plaintiff's claim, surrounded and preceded the making of the loan agreement and produced a different effect.
9 The evidence went far beyond material on which the court may act in deciding the meaning and effect of the relevant documents. Each side offered evidence of a number of events in the testator's life and in his dealings and relationships with relatives, including some unfortunate events or conflicts about which there was evidence from one side and the other which would give different pictures of how he was treated late in his life. I do not doubt that these events are important to the parties, and in the long history of a family such matters are treated as important and long remembered, but I am not engaged in making a decision about the overall merits of the arrangements made with respect to the loan of $155,000.00 or about whether, except in legal terms, anyone is deserving or undeserving in the situation. My duty is to identify rights of the parties and give effect to them, not to come to some personal view about what is just and fair, which I will not attempt to do. I will decide on the meaning and effect of the two documents, which I will deal with in detail further. Their meaning and effect is to be decided on an objective view of what is stated in the documents, not according to what evidence shows the parties intended, or believed that they had achieved, or later wished to happen. Evidence of previous exchanges between the parties is admissible to show the subject matter which the parties dealt with. It is also admissible in some circumstances to resolve ambiguities. In my view there is no significant ambiguity in the language of the documents and none is revealed by the factual context.
10 Nor in my opinion is there any occasion to resort to legal doctrine relating to reading ambiguities in documents against the profferor; that is, the person by whom or on whose behalf the document was produced and laid before the other contracting party. As it happens, the evidence seems to indicate that although Mr Kelly, solicitor, acted in the interests according to his and their concept of all four parties of the deed of agreement and the loan agreement, he regarded Mr and Mrs Dingeldei as his clients; this would identify them as profferors. In my view this has no effect on the correct construction of the document.
11 There are some matters of context not open to debate to which I will refer. Mr and Mrs Dingeldei owned the house then standing at Roberts Avenue Mortdale and lived there with their family including children and grandchildren. They still live there. Mrs Emily Mary Wright is the mother of Mrs Dingeldei. When events opened she lived in a villa at Picnic Point and Mr Harry Leedham lived in a house which he had owned and long occupied at Kingsgrove. After he was hospitalised for an operation in about 2001, he ceased to live in the house at Kingsgrove although he continued to own it, and for a time he lived in the villa at Picnic Point with his sister, Mrs Wright. Then after some further time that arrangement did not seem to work well, and consideration was given to a further arrangement in which he and his sister would live with the Dingeldeis in their home at Mortdale, or perhaps in another home which they were to acquire. The Dingeldeis considered possibly buying another house but did not find any suitable property, and then gave attention to a plan to demolish their existing house and rebuild at Roberts Avenue Mortdale. What emerged from this was that they contracted with a builder to remove their existing house, demolish it, and build a further house with larger accommodation suitable for Mrs Wright and Mr Harry Leedham, each to occupy space on the lower floor while the Dingeldeis and their family lived on the upper floor.
12 Informal arrangements to proceed in this way were made and began to be acted on early in January 2003. A builder was engaged in about April 2003 and with Mr Harry Leedham's agreement the Dingeldeis moved into Mr Harry Leedham's house at Kingsgrove and occupied it for some months while building operations at Mortdale took place.
13 All four parties entered into the deed of agreement dated 8 July 2003 which was prepared by Mr Kelly, Solicitor, after consulting with all four; this is, as it is referred to, a deed, and should be treated as such. It contains recitals to the effect that the Dingeldeis are the registered proprietors and that Mrs Wright owned the villa at Picnic Point and lived there with Mr Leedham, her brother.
14 Recital C was "George and Carol, Mrs Wright and Mr Leedham have agreed to reside together in a new home to be built at the property" and the recitals went on to establish that the construction, fit-out and landscaping were to be funded by Mrs Wright and Mr Leedham, and the parties wished to record their agreement in writing. Then in eighteen clauses an agreement generally covering the future arrangements is set out. However, not everything that was to take place is recorded there, and the earlier agreement that they were to reside together in the new home is evidenced by the recital. The clauses of the agreement refer to the arrangement or agreement that a new home would be constructed, the existing home demolished, that the contract price of $310,000 with the builder had been agreed on, that Mrs Wright was to pay fifty percent of the construction, fit-out and landscaping costs and Mr Leedham to pay fifty percent. They were to do so by instalments, and to make progress payments as they fell due. Mr Leedham agreed that the Dingeldeis were to occupy his house at Kingsgrove and that he was to continue to reside at Picnic Point until the new home was ready for occupation.
15 Clauses 8 to 13 are in these words:
8. The parties agree that Loan Agreements will be entered into between Mrs Wright and George and Carol in the first instance and Mr Leedham and George and Carol in the second instance so that their respective contributions to the costs associated with the new home will be payable pursuant to each loan agreement.