[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
Judgment
WARD JA: By summons filed 14 December 2015, the first applicant, Paul Jennings, seeks leave to appeal from a decision of Pembroke J in the Equity Division ([2015] NSWSC 1826) in which his Honour, on an application by Paul's mother, Eileen Jennings, ordered Mr Jennings to execute a deed of release and such other documents, including any transfer under the Real Property Act 1900 (NSW), as may be necessary to give effect to his obligations under the deed of release.
The application for specific performance arose in the context of proceedings Mrs Jennings had brought against her son in 2013 relating to the family house at Greystanes. His Honour found that an agreement made in the course of a mediation between the respective parties was binding on Mr Jennings and proceeded to enforce that agreement.
The grounds of appeal which Mr Jennings seeks to raise, if leave is granted, are as follows:
1. His Honour erred by not finding that the objective intention of the parties was not to make a concluded bargain at all unless and until they execute of [sic] a formal contract.
2. His Honour erred in finding that the parties were immediately bound by the oral agreement whilst expecting to make a further contract in substitution for the first contract containing by consent additional terms.
3. His Honour erred in finding that the parties proposed to substitute the oral agreement with a written document containing by consent additional terms.
4. His Honour erred in finding that a third person who was not a party to the oral agreement was entitled to benefits under the agreement.
Jennings v Jennings [2016] NSWCA 29 | Case summary | Zoe
The reference in the proposed fourth ground of appeal to a third person being entitled to the benefits of the agreement though not a party to it is apparently a reference to Mr Jennings' sister, Christine, who was not a party to the mediation agreement but who was, under the terms of that agreement, to obtain a benefit in that the property was to be transferred into the joint names of Paul and Christine (and Eileen Jennings was to have a life tenancy).
Pembroke J held that the oral agreement (which was recorded in a draft deed of release prepared after the mediation and which included various minor amendments that had been proposed by Paul Jennings' solicitor), fell within the so-called fourth category of Masters v Cameron case ((1954) 91 CLR 353; [1954] HCA 72) as enunciated by McLelland CJ in Eq in Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622 at 628, namely that there was an immediately binding agreement on the parties although they expected that a further contract would be made in substitution for that first contract.
On 11 December 2015, on Mr Jennings' application, Pembroke J stayed the operation of the orders he had made for a short period, directing that Mr Jennings take all steps necessary to commence proceedings in the Court of Appeal seeking expedition of his then proposed appeal and making other directions in relation to the proposed appeal.
On 14 December 2015, Tobias AJA continued the stay made by Pembroke J up to and including the determination of the appeal upon the condition that, on 29 January 2016, Mr Jennings pay $20,000 into an interest bearing controlled moneys account in the joint names of the respective parties' solicitors, such moneys to be released on determination of the appeal. His Honour ordered that the appeal be expedited and fixed for hearing on 18 February 2016, noting that the appeal was anticipated to be confined to half a day.
Relevantly, for present purposes, his Honour directed Mr Jennings to file and serve the Red, Blue and Black Books on or before 4.00pm on 5 February 2016 and to file and serve the Orange Book on or before 4.00pm on 15 February 2016.
The matter was listed before the Registrar for directions on 11 February 2016. No appeal books had been filed in compliance with the directions made by Tobias AJA on 14 December 2015. An application was made to the Registrar to vacate the hearing date. That application was refused. Also on 11 February 2016, Mr Jennings' solicitor filed in the court a notice of intention of ceasing to act.
On 15 February 2016, the matter was again listed before the Registrar. No directions were made on that occasion. Mr Jennings was still in default of compliance with the orders made for the filing of appeal books.
On 18 February 2016, the matter came before this Court for the concurrent hearing of the application for leave to appeal and if that leave were granted, the appeal itself.
On that occasion, there was no appearance by Mr Jennings although the Court was informed that he had been notified that the matter was to be before the Court on that day. Nor was there any affidavit by or on behalf of Mr Jennings explaining the delay in compliance with the directions or any application to vacate the (expedited) hearing date. The Court was informed by Counsel for the respondent that payment of the sum on which the continuance of the stay of Pembroke J's orders was conditional had not been made by Mr Jennings but there was no evidence of this one way or the other.
Two applications were made on 18 February: an application made by notice of motion by Mr Jennings' solicitor for leave to withdraw as solicitor on the record, and an oral application by the respondent to dismiss the proceedings for non-compliance with the Court's directions and want of due despatch.
There was no evidence as to service of his solicitor's notice of motion and affidavit on Mr Jennings, although the Court was informed from the bar table (after instructions had been sought during a short adjournment for that purpose) that those documents had been served. The respondent accepted that Mr Jennings had not been notified of its intended application for summary dismissal.
Moreover, there were concerns on the part of the Court as to the basis on which Mr Jennings' solicitor was seeking unilaterally to withdraw, shortly before the hearing of the appeal, on the basis of a view formed as to the prospects of the appeal. In deposing to the legal advice so given to Mr Jennings, there was also a concern that his solicitor may have breached his client's right to confidentiality in that advice.
In those circumstances the matter was adjourned to 1 March 2016 with directions permitting the filing by the respondent of a notice of motion for summary dismissal if it so wished. No such application has been made.
Turning first to the solicitor's motion for leave to withdraw, despite the unsatisfactory manner in which this application was brought (including the filing of a notice of ceasing to act in the Court Registry without leave on 18 February, after the Court had made clear that it expected Mr Jennings' solicitor to attend on the adjourned date for hearing of that notice of motion), it is inconsistent with a solicitor's paramount duty to the Court (and cannot be in Mr Jennings' interests), for Mr Jennings' solicitor now to be required to continue to prosecute an application for leave to appeal in light of the view he has formed as to its prospects. Whether there was an appropriate basis for the filing of the summons for leave to appeal in the first place is a different question and one that does not need to be dealt with on this occasion.
Accordingly, the motion for leave to withdraw should be granted.
As to the further conduct of the matter today, the evidence establishes that Mr Jennings has been notified of the listing; and is aware that his solicitor is seeking leave to withdraw. He has had the opportunity, since the service on him on 11 February (or at the latest 20 February) of the notice of intention to cease to act, to retain other solicitors to act for him. It is appropriate to proceed with the matter today bearing in mind that the expeditious conduct by the respondent of proceedings in this Court was the basis on which the initial stay was granted by Pembroke J and having regard to the case management principles in ss 56-60 of the Civil Procedure Act 2005 (NSW).
The fact that Mr Jennings requires leave is a consequence of the means by which the orders for specific performance came to be made (by a notice of motion filed in the existing equity proceedings). Although those proceedings have been stood over for the making of final orders, the orders which Mr Jennings seeks to set aside may be regarded, as a matter of substance, as final orders. Alternatively, but for the fact that they have been stayed, final orders would have been made and Mr Jennings would have enjoyed an appeal as of right.
However, this is a case where the primary judge found that there was uncontradicted evidence that the lawyers retained by the parties made, at a mediation, a formal offer to compromise the litigation, which was formally accepted. Both offer and acceptance were oral, but there is nothing unusual about that. There is no suggestion in the proposed grounds of appeal of any challenge being made to those findings of fact. There is no suggestion that there is any reason to conclude that the parties were not immediately bound. Nor is there any suggestion that relief should have been refused for some discretionary reason such as hardship or delay.
By reason of the unexplained non-compliance by the applicant with the Court's directions this Court has not seen the transcript or evidence before the primary judge. Even so, the applicant has failed to point to any matter which is capable of making the proposed appeal reasonably arguable. In those circumstances, it is appropriate to refuse leave.
Mr Jennings should bear the respondent's costs of the proceedings in this Court.
The orders I propose are:
1. Leave be granted to the solicitor for the applicant to withdraw as solicitor for the applicant in these proceedings with effect from today's date.
2. Summons seeking leave to appeal dismissed with costs.
LEEMING JA: I agree with Ward JA.
EMMETT AJA: I agree for the reasons given by Ward JA that leave be granted to Mr Herbert Weller to withdraw as solicitor for the applicant for leave to appeal. I also agree, for the reasons given by Ward JA that the application for leave should be dismissed with costs.
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Decision last updated: 03 March 2016