Oxley v Oxley

Supreme Court of NSW|2014-11-04|Before: Hallen J, Yong J

The Claim 1HIS HONOUR: In these proceedings, the Plaintiff, June Lois Oxley, seeks the court's approval, pursuant to s 95 of the Succession Act 2006 (NSW) ("the Act"), of a release by her son, John Oxley, the first Defendant, of his rights to apply for a family provision order out of her estate, or notional estate, on the basis that her estate, or notional estate, may be the subject of a claim for such an order upon her death. 2Section 95(5) defines "release of rights to apply for a family provision order" as "a release of such rights, if any, as a person has to apply for a family provision order, and includes a reference to (a) an instrument executed by the person that would be effective as a release of those rights if approved by the court under this section, and (b) an agreement to execute such an instrument". As will be read, the court, in this matter, is concerned with an executed instrument rather than with an agreement to execute such an instrument. 3The proceedings would not, normally, require reasons for judgment but, in this case, the first Defendant has not appeared on any occasion that the matter has been listed before the court on this application and did not appear at the hearing. (The matter was called outside the court prior to the hearing commencing and was called again, subsequently, a short time later, when the court returned to deal with it.) The matter then proceeded. 4The first Defendant, also, has not filed any affidavit dealing with the matters referred to in s 95(4) of the Act, to which sub-section I shall return. 5I shall also return to the evidence of service, and attempted service, upon the first Defendant when I detail the history of the proceedings. 6Although the matter proceeded with counsel for the Plaintiff reading the affidavits upon which it was intended to rely and speaking to her written submissions, I was not satisfied of one matter. Counsel submitted that the court should infer that the Plaintiff had no intention to revoke her Will made on 17 August 2008, a copy of which was annexed to the Deed of Settlement and Release, in which Deed, the release by the first Defendant is given, and to which I shall return. I directed, if that was the Plaintiff's intention, it should not be the subject of inference, but of evidence. I granted leave to the Plaintiff to file an affidavit on the topic within 7 days following the conclusion of the hearing. I then reserved my decision. 7I considered, if an affidavit confirming the Plaintiff's intention not to revoke her Will were filed, the first Defendant would not be prejudiced, since there would be actual evidence of the intention not to revoke that Will. This would be a relevant fact to be considered in determining whether the relief sought by the Plaintiff ought to be granted. 8On 10 November 2014, in accordance with the direction, the solicitor acting for the Plaintiff filed an affidavit of the Plaintiff, sworn on 6 November 2014, which affidavit is in the following terms: "1. I am the Plaintiff in these proceedings. 2. On 17 August 2008 I executed my Last Will and Testament (hereafter known as 'my will')... 3. I do not intend to revoke my will. 4. I intend to distribute my estate upon my death to my three children, being my son Grahame Roy Edward Oxley, my daughter, Gaye Lorraine Lovell and my son John Alexander Oxley equally." 9At the same time, there was also filed an affidavit, sworn on 10 November 2014, of Mr Michaelangelo Kimberley Twemlow, the solicitor acting for the Plaintiff, to which was annexed two documents from the Plaintiff's treating General Practitioner, Dr Anthony Joseph. In the first document, which was dated 27 November 2013, Dr Joseph wrote the following in relation to the Plaintiff's capacity: "...she can understand what is being spoken to her but she is unable to answer back in proper speech. She communicates by nodding or point[ing] and saying some words but not in proper sequence. Most of the time she can communicate what she wants... She is generally mentally alert and knows what is going on with her life... In our general discussions she seems fully aware of her home situation and seems to be able to understand communications relating to her personal property and financial affairs. I also feel she is able to express her will freely in relation to these matters." 10The second copy document, which was dated 4 November 2014, is in the following terms: "...Her condition remains much the same in that she is still quite alert re her thought processes and decision-making. She still understands what is said to her and in her mind she knows what reply she wants to give but unfortunately [she] has great difficulty in expressing her thought processes and so you have to rely on her hand actions, her expressions and what words she can say." 11Finally, there is some evidence that the affidavits and the letter to the court regarding the filing of those affidavits was posted, by pre-paid post, to the first Defendant to the address xx/xx O'Riordan Street, Mascot, NSW, 2020, which is understood to be his last known address.

The Background to the Proceedings 12The facts giving rise to the matter arise out of a dispute which gave rise to the Plaintiff commencing proceedings, by Statement of Claim filed in the Common Law Division of this court, on 16 December 2013, in which she sought possession of a property situated in Pagewood, New South Wales ("the Property"), of which she is the sole registered proprietor. She also sought consequential relief including damages, interest and costs. 13The second Defendant named in the proceedings, Justine Harrison, who, at one time, was living in a de facto relationship with the first Defendant, filed a Defence to the proceedings on 26 February 2014. The evidence reveals that she and her daughter, in fact, had vacated the Property on, or about, 6 December 2013. By consent of the Plaintiff and the second Defendant, on 10 April 2014, the proceedings against the second Defendant were dismissed, upon the undertaking given by her that she would never return to the Property. 14The first Defendant filed a Defence on 10 February 2014. He was ordered to file an amended Defence on, or before, 23 April 2014, but did not do so until 28 April 2014. 15Following the filing of the amended Defence, the Plaintiff, on 15 May 2014, filed a notice of motion to strike out the amended Defence. 16The parties, then, entered into negotiations to resolve the proceedings. Initially, there were some informal settlement negotiations. These negotiations included the solicitors for the Plaintiff providing to the first Defendant a "proposed Deed of Settlement", under cover of a letter dated 11 June 2014, in which letter it was suggested that he should seek legal advice. 17The informal settlement negotiations, which proved unsuccessful, were followed by a court-annexed mediation, before Registrar Flaskas, which was held on 18 July 2014. At that mediation, the Plaintiff appeared by counsel, whilst the first Defendant appeared in person. The parties reached an agreement, the terms of which were incorporated in a document headed "Deed of Settlement and Release". That Deed was signed on behalf of the Plaintiff, by her daughter and Attorney, Gaye Lorraine Lovell, and by the first Defendant himself. 18Relevantly, the Deed of Settlement provided: "2.1 Definitions In this document: ... Disputes - means the disputes between June and John set out in the Statement of Claim (insofar as the Statement of Claim contains Claims against John) and disputed by John in the Defence and Amended Defence and the Notice of Motion for Strike Out dated 15 May 2014 brought in the proceedings. Effective Date - the date upon which executed counterparts of this document are exchanged by June and John. ... Will - means the Will and Last Testament of June dated 17 August 2008, a copy of which is in Schedule 2 to this document. ... 4 Terms of Agreement 4.1 John and June have agreed to compromise the Disputes and any further disputes on the following terms: (a) John has agreed to vacate the property permanently in 12 weeks from the date of execution of this Deed, will refrain from re-entering the Property and will consent to the Orders sought by June in the Statement of Claim. (b) John agrees to leave the Property in a clean and tidy condition. (c) June has agreed to pay John the agreed sum of no more than $5,000.00 to be used by John to pay two months' rent at a market rate for accommodation alternative to the Property. June will pay the relevant landlord directly at John's discretion in one lump sum figure upon production by John of a written residential lease to the Attorneys. (d) June will draw a bank cheque pursuant to clause 4.1 (c) above. 4.2 June agrees not to enforce against John any monetary judgment arising out of these Proceedings, including a monetary judgment for: i) damages for trespass calculated to be the sum of $49,000.00, being the estimated sum for 50 weeks of forfeited rental income at the estimated market rate of $875.00 per week, for 50 weeks, from 21 June 2013, being the date of the termination of John and Justine's licence pursuant to the letter sent to John and Justine as referred to at paragraph 3.12 herein, to the date of execution this Deed; ii) interest on damages quantified at the date of signing this Deed calculated on the weekly increasing principal damages sum (as calculated at paragraph 4.2(i) above) from 21 June 2013 to the date of the execution of this deed on the prescribed the NSW Civil Procedure harmonised pre-judgment interest rates; iii) costs (quantified at the date of signing this Deed as $59,763.95 on a solicitor client basis) itemised as below Craddock Murray Neumann Professional Costs from 14 October 2010 to 18 July 2014 $48,187.70 CMN Disbursements $ 700.00 ...Counsel invoice dated 21 November 2013 $ 2,200.00 ...Counsel invoice dated 8 May 2014 $ 3,712.50 ...Counsel invoice dated 11 June 2014 $ 1,650.00 ...Counsel invoice dated 26 June 2014 $ 1,856.25 ...Counsel - estimated Counsel fees from 26 June 2014 to 19 July 2014 $ 1,457.50 Total $59,763.95

iv) costs yet to be quantified from the date of execution of this Deed until the resolution of the Proceedings. 4.3 In consideration of the release set out in paragraph 4.2 herein, John agrees not to make any claim against June's Estate pursuant to the Succession Act (2006) NSW. 4.4 The Parties agree to do all things necessary to obtain the approval of the court under section 95(3) of the Succession Act (2006) NSW of the release referred to in paragraph 4.3 herein. 4.5 The Parties acknowledge that the promises contained within this Deed constitute valuable consideration. 5 Release and discharge Immediately and simultaneously upon the Effective Date: 5.1 June forever releases and discharges John from any Claim which, except for this document, June would have had or, at any time in the future, might have had against John in relation to the Disputes or any other related claim. 5.2 John forever releases and discharges June and the Attorneys (jointly and severally) from any claim which, except for this document, John would have had or, at any time in the future, might have had against June and/or the Attorneys in relation to the Dispute or any other related claim, including any claim against June's Estate under the Succession Act (2006) NSW as referred to in paragraph 4.3 herein. 6 Proceedings Against John 6.1 Immediately upon or before the Effective Date, June will: (a) execute a copy of the Orders; and (b) provide one original executed copy of Orders to John. 6.2 Immediately upon or before the Effective Date, John will: (a) execute a copy of the Orders; and (b) provide one original executed copy of the Orders to June by her solicitor. 6.3 Upon satisfaction by John of clause 4.1(a) herein, June, by her solicitor, will do all things reasonably necessary to cause the Orders to be entered by the Court. 6.4 John will do all things reasonably necessary to cause the Orders to be entered by the Court. 7 Bar to actions 7.1 Except for proceedings to enforce the document, this document operates as an absolute bar to all Claims which, except for this document, June would or might at any time in the future have had against John arising out of the Disputes and/or the Proceedings. 7.2 Except for proceedings to enforce this document, this document operates as an absolute bar to all Claims which, except for this document, John would have or might at any time in the future have had against June and / or the Attorneys arising out of or in connection with the Disputes and/or the Proceedings. 8 Acknowledgment 8.1 The Parties acknowledge that they enter into this Deed fully and voluntarily on their information and investigation. Each party to this deed acknowledges that it is aware that they or their advisers, agents or lawyers may discover facts different from or in addition to the facts that they now know or believe to be true with respect to the subject matter of this Deed and that it is their intention to and they do fully, finally, absolutely and forever settle according to the provisions of this Deed. 8.2 The Parties have acknowledged that they have entered into this Deed upon taking and pursuant to independent legal advice. 8.3 The Parties acknowledge that they have all participated in formulating the terms of this Deed. ... 10.8 Anti-Avoidance (a) John acknowledges and agrees that in entering into this document: (i)he has had the benefit of competent independent legal advice; (ii)he has not relied on any representation, assertion, statement, promise or assurance, except as expressly contained or referred to in this document; and (iii)he has not been the subject of any duress, economic duress, undue influence or unconscionable conduct." 19The first Defendant and the solicitor for the Plaintiff also signed a document headed "Consent Judgment", the terms of which were: "2 Order for Possession of [the Property]... 3 Damages to be assessed against the First Defendant for trespass. 4 Interest on damages against the First Defendant for trespass. 5 The First Defendant pay the Plaintiff's costs of these proceedings. 6 Interest on costs. 7 An Order pursuant to section 95 of the Succession Act 2006 (NSW), being that the Court approves the release of the First Defendant's rights to apply for a Family Provision Order recorded in paragraph (a) of the Agreement noted between June Lois Oxley and John Oxley." 20On 25 July 2014, Davies J, in the presence of the first Defendant, made notations in accordance with Paragraphs 4 and 6 of the Consent Judgment and orders that gave effect to Paragraphs 2, 3 and 5 of the Consent Judgment. In relation to Paragraph 7, his Honour made an order in the following terms: "Liberty to apply to Hallen J's Associate in respect of Paragraph 7 of the consent judgment in the following terms: The First Defendant hereby forever releases the Plaintiff and her Estate from all further or other right or rights to make an application for a family provision order or otherwise to obtain further provision out of the Estate or notional Estate of the Plaintiff, and having obtained advice from his solicitors concerning the effect of the release, the First Defendant seeks court approval of this release under section 95 of the Succession Act 2006." 21(It is clear that, in making this order, his Honour extracted the terms recorded from the Schedule attached to the Consent Judgment, in which Schedule "paragraph (a)", to which reference was made, in the form set out, appeared.) 22The orders made by his Honour were entered in in the court's computerised record system on 25 July 2014.

The Part of the Proceedings for Approval of the Release 23By letter dated 4 August 2014, addressed to my Associate, a copy of which was also sent by email, the Plaintiff's solicitors requested that the matter referred to by Davies J be listed in the Family Provision List "so that directions can be made in respect of the proposed order". A copy of the letter was said to have been sent to the first Defendant. 24By email in response, sent at my request, by my tipstaff, on 4 August 2014, the Plaintiff's solicitor was informed that the court required an affidavit dealing with the matters in s 95(4) of the Act. He was informed that, upon receipt of an original affidavit from each party, the matter may be able to be dealt with in Chambers. A request was made that the email be forwarded to the first Defendant as his email address was not identified in any correspondence available on the court file. 25By email of 5 August 2014, the Plaintiff's solicitor requested that the matter be listed in court "as we anticipate having difficulty obtaining an affidavit from the First Defendant". Following this request, the matter was listed at 2:00 p.m. on 15 August 2014, on which date directions were made for the filing of affidavits. Only the legal representative of the Plaintiff appeared on this occasion, but he informed the court that the matter was being mentioned by consent. 26Apparently, this followed a telephone conversation between the first Defendant and the secretary of the Plaintiff's solicitor, on 13 August 2014, in which conversation the first Defendant said that he was unable to appear in court on 15 August 2014 because he was working. 27This conversation was confirmed in a telephone conversation between the Plaintiff's solicitor and the first Defendant, on 14 August 2014 and, then, in writing, in a letter dated 14 August 2014 to the first Defendant from the Plaintiff's solicitor. 28In a letter dated 27 August 2014, addressed to the first Defendant, the Plaintiff's solicitor stated the directions made on 15 August 2014 and the date to which the matter had been adjourned, namely 26 September 2014. 29There is no evidence of any response from the first Defendant to the letter dated 27 August 2014. It appears, however, that the Plaintiff's solicitor telephoned the first Defendant on 24 September 2014 (to ascertain whether the first Defendant intended to appear on 26 September 2014), but the telephone call was unanswered. 30There is other evidence that, on 18 September 2014, the first Defendant telephoned the Plaintiff's solicitor's office and requested the payment of $3,770, which amount he said he required to be paid under the Deed (to ensure that his alternative accommodation would be secure). 31Grahame Oxley, a son of the Plaintiff, gives evidence, which I accept, that, following the conversation between the Plaintiff's solicitor and the first Defendant, he drew a cheque for that amount out of the Plaintiff's bank account and delivered it, personally, to the first Defendant on 19 September 2014. 32On 26 September 2014, there was, once again, no appearance by the first Defendant. On this date, the matter was again adjourned, this time with a direction that the parties provide submissions on the way the matter should be determined. The matter was listed, for hearing, on 20 October 2014. However, on 7 October 2014, at the request of the Plaintiff, the hearing date was vacated and the matter was relisted for hearing on 4 November 2014. 33On 8 October 2014, the Plaintiff's solicitor telephoned the first Defendant and informed him that the matter had been adjourned and that he was "required to appear in Court on 4 November 2014, at 10:00 a.m., as the Court is required to approve the release [of] your rights to sue your mother's estate under the Succession Act". The first Defendant said that he would attend. 34For reasons unexplained in the evidence, but I infer for abundant caution, on 14 October 2014, the Plaintiff issued a subpoena to attend and give evidence, addressed to the first Defendant. The evidence reveals that the subpoena has not been able to be served. 35On 22 October 2014, the Plaintiff's solicitor is said to have sent a letter to the first Defendant, at an address that the solicitor had been informed was the first Defendant's new address. There is insufficient evidence of the service of this letter by post (see, for example, Northumbrian Ice Cream Co Ltd v Breakaway Vending Pty Ltd [2006] NSWSC 1216) and I cannot be satisfied that the letter came to the attention of the first Defendant. 36On 29 October 2014, Grahame Oxley telephoned the first Defendant. He states, in an affidavit made on 31 October 2014, that he confirmed the hearing date was 4 November 2014 and stated that the first Defendant was required to be in attendance. The first Defendant said "I will have to ask my boss for time off work." 37In addition to this evidence, which satisfies me that the first Defendant was aware of the hearing, I have read an affidavit of attempted service of Andrew Khee Tuan Ng Saad, a licensed process server, sworn on 30 October 2014, deposing to attempts to serve the first Defendant, with various documents, including the subpoena to give evidence. Some of this evidence, particularly that relating to the attempted service of the subpoena, suggests that the first Defendant may have been trying to avoid service. 38There is no correspondence addressed to the Plaintiff's solicitor, or to the court, from the first Defendant, providing any basis for his non-appearance at the hearing on 4 November 2014, or in which he has made any request for an adjournment of the proceedings. 39I have earlier referred to his statement made to Mr Grahame Oxley that he would have to ask for time off work, but there is no evidence at all to suggest that he made such a request or that it was refused. 40Having read all of the evidence, I am satisfied that the first Defendant has been given every opportunity to participate in the hearing of the Plaintiff's application. 41Prior to the hearing commencing, the matter was called three times outside the court without response. It was called again, a short time later, when I returned to the hearing (as the hearing was interrupted by other matters in my list), again, without response. Accordingly, the first Defendant being absent when the trial had been called, it was necessary to consider whether to proceed with the trial so far as concerned the balance of the claim for relief in the proceedings: Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), rule 29.7. 42UCPR, rule 29.7, relevantly, provides: "(1) This rule applies when a trial is called on. (2) If any party is absent, the court: (a) may proceed with the trial generally or so far as concerns any claim for relief in the proceedings, or (b) may adjourn the trial...". 43In relation to UCPR, rule 29.7, I wrote, in NSW Trustee and Guardian as Executor of the Will of Michael Robert Walsh (Deceased) v Gregory [2012] NSWSC 681, at [18] - [20]: "The clear purpose of UCPR rule 29.7 is the efficient dispatch of court business. However, in dispatching court business, I cannot ignore the right of a defendant to be informed, or, at least, to be made aware, of a trial date. It is a fundamental principle that a party who may be adversely affected by the making of court orders has a right to be heard: Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, in which Rich J said (at 589): 'It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case. If this principle be not observed, the person affected is entitled, ex debito justitiae, to have any determination which affects him set aside, and a court which finds that it has been led to purport to determine a matter in which there has been a failure to observe the principle has inherent jurisdiction to set its determination aside. ...In such a case there has been no valid trial at all.' In the circumstances, the first issue to address is whether I am satisfied that it is appropriate to proceed in the absence of the Defendant or of anyone representing her. A party is 'absent' within the meaning of the rule, when the trial is called on, only if it can be shown that he, or she, has knowledge, or notice, of the date of the trial, and is not physically present, or not represented. In other words, before the rule can be relied upon, there should be proof that the absent party has been given reasonable notice of, or has knowledge of, the date of the trial." 44I had earlier written, in Smirski v Macander [2010] NSWSC 929, at [34]: "It is to be remembered that the primary considerations on whether to proceed ex parte concern whether there is urgency; whether irreparable damage would flow from making an ex parte order; whether hardship would flow to a party against whom an order is made and whether such an order can be set aside: Ndjamba v Toyota Finance Australia Ltd [2010] NTSC 23, per Blokland J at [8]." 45I referred to the principles stated in each of these cases, more recently, in Gould v Purtle [2014] NSWSC 493. 46There is no specific evidence by the Plaintiff of urgency but, bearing in mind the date on which the Orders were made and entered by Davies J and the delay in the completion of determining all of the claims of the parties that were settled, I was satisfied that I should proceed to hearing despite the failure of the first Defendant to appear. 47In this regard, to further delay the conclusion of the proceedings, when there was no explanation given for the first Defendant's non-appearance, would not have been in the interests of justice and would not be in accordance with the overriding purpose of the Civil Procedure Act 2005 (NSW) and the rules of court, in their application to civil proceedings, to facilitate the just, quick and cheap resolution of the real issues in dispute in the proceedings. 48Also, I was unable to see any utility in the further adjournment of the proceedings, in the absence of any explanation for the first Defendant's failure to appear, and where there was no reason to believe that he would be more likely to appear on the adjourned date than on 4 November 2014, when the matter was set down for the trial of the remaining issue. There was no ground on which, in my view, it would have been appropriate for the court to adjourn the hearing, of its own motion. 49If the court proceeded to a hearing, since it was the first Defendant who had failed to appear, the Plaintiff was entitled to prove her claim so far as the burden of proof lies upon her and, if she could establish that she was entitled to the relief claimed, and such other relief as is consistent with what was sought, the court could proceed to make final orders: Ritchie's Uniform Civil Procedure (NSW) [29.7.2], referring to Stone v Smith (1887) 35 Ch D 188 and Kingdon v Kirk (1887) 37 Ch D 141; see also Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365, at [64]. 50As stated, I am satisfied that the Plaintiff, by Mr Grahame Oxley, informed the first Defendant of the date of the hearing and that the first Defendant was not physically present or represented. I am satisfied that he has been provided with a copy of the principal documents to be relied upon and that every reasonable effort has been made to allow him to participate in the balance of the proceedings. 51In all the circumstances, I determined to proceed to hear the notice of motion in the absence of the first Defendant.

Additional Background Facts 52I take the additional facts from the evidence read in the proceedings. 53The Plaintiff was born in June 1929 and currently is 85 years of age. She is a widow. Her husband, Roy Edward Oxley, predeceased her, having died in October 2000. 54The Plaintiff and her husband had purchased the Property as joint tenants in about June 1995. It is a free standing single storey residential cottage with an additional "granny flat". The Property was, at the time of the Deed, acknowledged by the parties as "currently in a state of disrepair and in need of repair and improvements": Clause 3.14 55The Plaintiff has three children, Grahame Oxley, Gaye Lorraine Lovell, and the first Defendant. There is no evidence of any other eligible persons within the meaning of that term in s 57(1) of the Act. 56The Plaintiff's Will to which reference has been made, relevantly, and in summary, appointed Grahame Oxley as the executor or, if he is unable or unwilling to act, then, Gaye Lovell as the substituted executor and trustee. After the payment of debts, funeral, and testamentary expenses, the executor is "to divide the residue of [my] estate equally between my three children...". 57By instrument dated 6 July 2008 Grahame Oxley was appointed under a General Power of Attorney as the Attorney of the Plaintiff. It was an enduring Power of Attorney. 58The Plaintiff suffered a stroke in June 2008. The Plaintiff's treating General Practitioner, Dr Joseph, confirmed that the Plaintiff's stroke had left her "completely paralysed down her right side" and caused her to suffer "an expressive dysphasia". I have earlier referred to the other evidence of Dr Joseph. 59On 28 January 2010, the Plaintiff was admitted to an aged care facility in Marsfield, New South Wales. The Plaintiff subsidises the costs of her residential care. 60By instrument dated 15 May 2010, Grahame Oxley and Gaye Lovell were appointed as joint and several Attorneys of the Plaintiff under a General Power of Attorney. It was an enduring Power of Attorney. 61The first Defendant lived at the Property from about May 2008 until the determination of the possession proceedings.

Approval of Release of Rights 62The provisions of the Act relating to family provision, generally, operate only after the death of a person whose estate (actual or notional) is sought to be made liable for the maintenance, education or advancement in life of an "eligible person", an expression which includes a child of the deceased person (s 57(1)(c)). An exception relates to an application for approval of a release commenced before the date of the death of the person whose estate or notional estate may be the subject of the order. 63The Act is one to be regarded as a statute governing succession, or as one which relates to the administration of the estates of deceased's persons. It places restrictions upon the power of testamentary disposition which, at common law, was unfettered. To prevent evasion or avoidance of its objectives, it enables the court to have recourse to property which was not part of the deceased's actual estate at his, or her, death, but which has been disposed of in circumstances which, under the Act, cause it to be treated as the notional estate of the deceased. 64There is no definition of "estate" in the Act. However, in the Family Provision Act 1982 (NSW), s 6(1) defined "estate", in relation to a person dying leaving a will, as including property which would, on a grant of probate of the will, vest in the executor of the will or, on a grant of administration with the will annexed, vest in the administrator appointed under that grant. There is no reason to think that "estate" in the Act would mean anything different. 65In s 3 of the Act, "notional estate" of a deceased person "means property designated by a notional estate order as notional estate of the deceased person". 66I raise the difference because in the Deed, Clauses 4.3 and 5.2, there is a reference only to "June's estate", whilst in the Consent Judgment signed by the first Defendant, there is a reference to "the estate or notional estate of the Plaintiff". 67Section 95 of the Act, however, relevantly provides: "(1) A release by a person of the person's rights to apply for a family provision order has effect only if it has been approved by the Court and to the extent that the approval has not been revoked by the Court. (2) Proceedings for the approval by the Court of a release of a person's rights to apply for a family provision order may be commenced before or after the date of the death of the person whose estate may be the subject of the order. (3) The Court may approve of a release in relation to the whole or any part of the estate or notional estate of a person. (4) In determining an application for approval of a release, the Court is to take into account all the circumstances of the case, including whether: (a) it is or was, at the time any agreement to make the release was made, to the advantage, financially or otherwise, of the releasing party to make the release, and (b) it is or was, at that time, prudent for the releasing party to make the release, and (c) the provisions of any agreement to make the release are or were, at that time, fair and reasonable, and (d) the releasing party has taken independent advice in relation to the release and, if so, has given due consideration to that advice. (5) In this section: 'release of rights to apply for a family provision order' means a release of such rights, if any, as a person has to apply for a family provision order, and includes a reference to: (a) an instrument executed by the person that would be effective as a release of those rights if approved by the Court under this section, and (b) an agreement to execute such an instrument." 68The power of the court to approve a release under s 95 is incidental to the exercise of the principal jurisdiction of the court under s 59 to order provision out of the estate or notional estate of a deceased person. 69A release has effect only if it has been approved by the court and to the extent that the approval has not been revoked by the court. If the court approves the release, no application for provision out of the estate or notional estate of the person whose estate is released could be made upon the death of that person (other than in circumstances where the court, pursuant to s 96 of the Act, revokes an approval of a release given by it under s 95). If the court refuses to approve the release, the only consequence would be that a potential barrier to the making of an application for provision out of the estate or notional estate of the person, after his, or her, death, would be removed. 70As stated in the section, in determining whether to approve the release, the court is required to take into account all the circumstances of the case, including those matters referred to in s 95(4)(a) to (d). 71In Neil v Jacovou [2011] NSWSC 87, Slattery J, in dealing with s 31 of the Family Provision Act 1982 (NSW), noted, at [64] - [65]: "The Court may consider among the circumstances of the case, any factors as to whether the agreement was to that party's advantage, financial or otherwise: Russell v Quinton [2000] NSWSC 322 [67]-[69], [74]. However, the very fact that the agreement was made may itself show that the parties thought its terms were fair at the time of signing: Mulcahy v Weldon [2001] NSWSC 474 at [10]. When considering whether the release was 'prudent' within Family Provision Act s 31(5)(b), the Court should consider that a prudent person is someone who acts with care and thought for the future, in particular in exercising care and good judgment in relation to his or her own interests: Russell v Quinton [2000] NSWSC 322 [70]. Though the releasing party may have had independent legal advice, whether that party gave due consideration to that advice is a relevant factor: Russell v Quinton [2000] NSWSC 322. When are the circumstances to be examined: at the time the release is given or when the approval is sought or both? The issue is important in this case as the prenuptial agreement made in October 2001 was reviewed in a hearing held eight and a half years later in April 2010. Family Provision Act, s 31(5) itself answers this question. The Court is not limited to examining the circumstances at the time of making the agreement, as the widest range of circumstances may be examined. It commands in proceedings for approval of a release that the Court 'shall have regard to all the circumstances of the case'. The individual relevant considerations in Family Provision Act, s 31(5) expressly refer to the time of the release and to later times as relevant: s 31(5)(a), (b) and (c). The passage of approximately 5 years from the making of the pre-nuptial agreement... is of importance in assessing whether or not it should be approved." 72It seems to me that what was written by Slattery J is, with respect, undoubtedly correct so far as it relates to "having regard to" (as it was under the former Act) or, as in the Act, "tak[ing] into account" all of the circumstances of the case. After all, that is what is specifically stated in s 95(4). 73Yet, it is important to note that, in respect of s 95(4) of the Act, there are alternatives for the court to consider, one being the date of the hearing (the present) or one being the past (the time any agreement was made). 74Thus, in relation to the circumstances identified in s 95(4)(a), (b) and (c), it is certainly arguable that, where, as in this case, the court is considering a release made some time prior to the approval being sought, the court is required to consider those circumstances at the time the release was made. In this case, that would be in July 2014. 75It may be unnecessary to determine the question because of the requirement to "take into account all of the circumstances of the case" which would cover circumstances both before, and after, the date the release was made. 76In Bartlett v Coomber [2008] NSWCA 100, a case dealing with the former Act, Mason P considered that litigation under that Act took place in an adversarial context in which the active parties to the particular litigation were usually expected to be the best judges of what was in their own interests and that the principle that a valid compromise gives effect to an agreement that effectively supersedes the antecedent rights of the parties is one of the principles which gives effect to the policy of Australian law which is to encourage the settlement of disputes. That policy, his Honour said, at [58], "is not displaced in the context of proceedings under the Act although... the court may decline to give effect to a settlement if doing so failed to effectuate the specific policies of the Act, amounted to an abuse of process or otherwise offended public policy in a demonstrable way". 77In the same case, Bryson AJA, at [91], noted that: "The circumstances to which the Court may have regard [in making an order under s 7] are wide and an agreement to settle a claim is part of them. There may be exceptions, but in almost every case an agreement which an executor has made in exercise of the statutory power to make compromises, with an understanding of the assets in the estate and the interests of the persons otherwise entitled to them, and with legal advice will ordinarily have an extremely strong claim for attention among the relevant circumstances. It is not simply pacta sunt servanda, because such agreements are made subject to the necessity of obtaining the Court's approval. Nonetheless the importance of such agreements is high." 78Many years earlier, in McMahon v McMahon (Supreme Court (NSW), Young J, 2 August 1985, unrep), Young J wrote that an order of approval would not follow just because all the parties had agreed that such an order should be made, and that the court had to look into the facts and circumstances so far as relevant to a possible claim under the Family Provision Act. He then added: "Although I am not aware of any important reported decision on s 31, I am aware that on at least two occasions since the Family Provision Act came into force judges in this division have made an order under s 31 as an adjunct to approving a settlement of proceedings brought in a family property dispute. The view that has been taken is that [the members of] a family come to an all-up settlement and once and for all release each other from liabilities and wish to go their separate ways and they are all sui juris and advised by competent counsel and solicitor, then it is in the public interest that the disputes between them be put to an end forever by also releasing the rights under s 31 of the Family Provision Act. A prodigal son who takes his inheritance and also releases his rights under s 31 with the approval of the Court can thereafter not expect any fatted calf upon his return to the family property. In my view, the attitude previously taken is the correct one, although parties should not automatically assume when they have settled a family dispute that the Court will make an order under s 31...". 79In this case, when I consider the value of what the Plaintiff gave up, as set out in the Deed, taken with the terms of her Will, which she has confirmed she does not intend to revoke, I am led to the conclusion that, at the time the release was made, it was, and remains, now, to the first Defendant's advantage, financially, to make the release. 80Bearing in mind all the facts of the case, it was, and is, in my view, prudent for the first Defendant to have entered into the Deed and to make the release. After all, he could have been liable for substantial sums as set out in the Deed. He is no longer liable for those sums. In addition, the Plaintiff has provided for him in a Will which she has stated that she does not intend to revoke. 81Next, in my view, the Deed presents as fair and reasonable. Each party acknowledged that it was. Both parties wished to enter a Deed to reflect what each of them thought, at the time, was fair and reasonable. In circumstances of a family relationship, and to avoid continued, and, perhaps, future, litigation, the view of each party is important. It is also understandable. 82In relation to independent advice, Clause 10.8 of the Deed specifically provides that the first Defendant "had the benefit of competent independent legal advice" before the Deed was entered into. There is, however, no evidence of the person from whom that advice was obtained; nor about the content of the advice that was given; nor that the first Defendant gave, or did not give, as the case may be, due consideration to that advice. 83I note, in this regard, that the first Defendant was advised by the court, on at least one occasion, and by the legal representatives of the Plaintiff, on several occasions, prior to the matter being listed before me, to obtain legal assistance. I refer to a specific comment made by Davies J, to the first Defendant, on the occasion at which the matter was set down for mediation (25 June 2014), that he should attempt to attend the mediation with a legal representative who could provide advice in relation to the matter. 84The court cannot require a party to obtain legal advice. That it was suggested he do so, more than once, and that he acknowledged that he had done so, in the Deed, is a matter I shall take into account. 85I also take into account that the Deed appears to have been signed following a formal court-annexed mediation.

Determination 86Whilst I acknowledge that "[a]n application to the court to approve a release of rights is not a mere formality" to be taken lightly (Boardman v Boardman [2012] NSWSC 1257, at [53], per Lindsay J), and whilst I also acknowledge that the first Defendant has not provided any evidence in support of the application for the approval of the release, in the circumstances of this case, including the specific matters identified in the sub paragraphs of s 95(4), I am of the view that the release ought to be approved. 87It is difficult to know the reasons for the first Defendant's refusal to join in the application for approval of his release of rights. Importantly, he has not suggested any objection to the making of an order approving the release in any conversation to which reference has earlier been made. 88Even though there is a reference in the Deed only to "June's estate", I am satisfied that each party's intention was that there would be no litigation on the Plaintiff's death in regard to a claim for a family provision order by the first Defendant. That the Plaintiff's estate and notional estate were referred to in the Consent Judgment supports what seems to be her, and his, intention. 89Accordingly, I order, pursuant to s 95 of the Succession Act 2006 (NSW), that the release by the first Defendant, John Oxley, of his rights to apply for a family provision order in relation to the whole, or any part of, the estate, or notional estate, of the Plaintiff, June Lois Oxley, in the event that she shall become a deceased person, be approved. 90I shall make not make any order as to the costs of the application for approval of the release to the intent that each party shall bear her, and his, own costs, respectively, thereof. 91I also order that the entry of these orders in the court's computerised record system be stayed until after 4:00 p.m. on 28 November 2014, so that a copy of these reasons can be provided to the first Defendant. In the event that there is delivered, to my Chambers, for filing, an affidavit of personal service, which establishes that the first Defendant has been served with a copy of these reasons a reasonable time before that date, the orders will be entered after that date and time. 92Finally, I order that the Exhibits and the Court Book be returned to the solicitor acting for the Plaintiff.

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: 14 November 2014

Family Provision Act 1982(NSW)

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Judgment (8 paragraphs)

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Legislation Cited (4)

Cases Cited (13)