Gould v Purtle

The Background 1HIS HONOUR: These proceedings concern a notice of motion filed by the Defendant on 3 March 2014, in substantive proceedings settled, at mediation, on 5 July 2013. 2In the substantive proceedings, the Plaintiff, Georgia Anne Gould, a child of Maxwell Henry Sanders ("the deceased") sought a family provision order out of his estate or notional estate pursuant to Chapter 3 of the Succession Act 2006 (NSW) ("the Act"). The Defendant named in the proceedings was Donna Lea Purtle, the sister of the Plaintiff, and the executrix of the Will of the deceased to whom Probate in common form had been granted. 3The deceased's estate, as disclosed in the Defendant's submissions on the present application, was said to include two adjoining properties, situated at 7 Charlton Avenue South Lismore ("the Property") and at 9 Charlton Avenue South Lismore ("the Adjoining Property"). 4At the time of the events the subject of the present claim, the Plaintiff was represented by Messrs Paul Dunmeade & Co, solicitors. The Defendant was represented, as she continues to be, by Clayton James, Solicitor & Conveyancer. 5The substantive matter initially came before me in the Family Provision List. On 19 April 2013, I ordered that the matter be referred to court-annexed mediation on 5 July 2013. The mediation proceeded on that date before Registrar Flaskas. The Plaintiff's claim for provision was resolved, with the Plaintiff and the Defendant, as well as the solicitor for each, signing a document reflecting the agreement that had been reached. 6The orders and notations reflecting the agreement of the parties were entered by recording them in the court's computerised court record system on 5 July 2013 ("the Final Orders"). Relevantly, the Final Orders were in the following terms: "1. In lieu of the provision made for the Plaintiff in the Will of the late Maxwell Sanders ('Deceased'). (a) Subject to Order 4, the Defendant transfer the Deceased's house and property at 7 Charlton Avenue, South Lismore, free of any encumbrances ('house') to the Plaintiff who shall have sole occupation of the home until transfer. (b) The Plaintiff pay the Defendant the sum of forty thousand dollars $40,000, payable within 28 days of the Defendant transferring the house to the Plaintiff. 2. No order as to the Plaintiff's costs with the intent she bear her own costs. 3. The Defendant is entitled to her costs on an indemnity basis with each party to pay their own costs. 4. The Defendant will transfer the house within 30 days of the earlier of settlement of the sale or refinance of the Deceased's property at 9 Charlton Avenue, South Lismore. 5. The Defendant will be responsible for paying insurance and rates on the house to the date that the Defendant transfers the house to the Plaintiff, and the Plaintiff will be responsible for all other outgoings on the house and keep the house in good repair until the Defendant transfers the house to the Plaintiff. 6. Each of the parties release the other party from any claim that they may have against the other, including any claim relating to the house; administration of the estate and any Power of Attorney. 7. The Defendant will use reasonable endeavours to refinance the Deceased's property at 9 Charlton Avenue, South Lismore so that the Westpac loan numbers xxxx and xxxx are discharged on the house and transferred to 9 Charlton Avenue South Lismore. 8. Each of the partners undertake not to contact each other except in writing." 7There is no dispute that the Final Orders disposed of the proceedings. 8It should be noted that under s 72(1) of the Act, a family provision order takes effect, unless the court otherwise orders, as if the provision was made in a codicil to the will of the deceased, if the deceased made a will (as he did in the present case). In this case, the court did not "otherwise order". 9After the Final Orders were made, the Defendant's solicitor and the Plaintiff's solicitor entered into correspondence about the transfer of the Property. The Plaintiff's solicitor notified the Defendant's solicitor that the Plaintiff wanted a right of way/easement for rear access to the Property through the Adjoining Property. The Defendant refused to grant a right of way/easement. Subsequently, the Plaintiff's solicitor also notified the Defendant's solicitor that the front and back steps of the Property had collapsed and needed to be repaired. The Defendant said that this was not covered by insurance, and that the Final Orders required the Plaintiff to keep the Property in good repair. 10The Defendant's solicitor provided an executed Transfer under cover of a letter dated 1 November 2013 addressed to the Plaintiff's solicitors. The letter stated that the Transfer was provided "for execution and stamping purposes only". The Plaintiff's solicitors were requested to send the transfer, once executed by the Plaintiff and stamped, to the Defendant's solicitors' law agents and that "they would attend to lodging all documents to transfer the house". The Defendant's solicitors also confirmed that "[O]nce the transfer has taken place payment under the orders will be due within 28 days". 11In a letter dated 14 November 2013, the Defendant's solicitors informed the Plaintiff's solicitors that they had "finally received the Certificate of Title from the Mortgagee and enclose[d] copy of the title and discharges of mortgage for your attention". 12In a letter dated 20 November 2013, the Defendant's solicitors enclosed another executed Transfer of the Property. Once again, a request was made to have the transfer executed and stamped, but this time, to be returned to the Defendant's solicitors "as soon as possible". The Defendant's solicitors also sought a cheque for $209 to enable the discharge of mortgage to be registered. An undertaking was given "to forward the title to you after registration when I receive it from the LPI". 13In a letter dated 26 November 2013, the Plaintiff's solicitors stated "[W]e are currently awaiting instructions from our client and shall advise in due course". Other than one letter to which I shall refer, the Plaintiff's solicitors do not appear to have corresponded further with the Defendant's solicitors. 14The Defendant's solicitors also made a further request for the return of the stamped transfer "to allow registration of the Title into your client's name as per the Court orders". 15The Plaintiff did not sign and return the Transfer as requested and there appears to have been no further correspondence between the parties' legal representatives until the Defendant's solicitors wrote a letter dated 31 January 2014 threatening an application to the court "if I do not receive the transfer signed and stamped within 7 days". The application that was to be made included orders that the Plaintiff had renounced the gift and that the Plaintiff be ordered to vacate possession, following which the Property be sold. 16On 14 February 2014, the Plaintiff's solicitors informed the Defendant's solicitors that they were unable to obtain instructions from the Plaintiff; that the front and back stairs of the Property needed to be repaired; and that the Plaintiff would not sign the Transfer unless a right of way to the rear of the Property through the Adjoining Property was granted. 17On 28 February 2014, the Plaintiff's solicitors served a Notice of Ceasing to Act on the Defendant's solicitors. They no longer act for the Plaintiff and, subject to one matter to which I shall refer, have played no further part in the continuation of the proceedings.