Robinson v Robinson

Commencement of proceedings

1. On 21 April 2017, and so within the requisite 12 month period from the date of the deceased's death, the appellant and the appellant's daughter (Jessica Robinson Murray) jointly filed a summons seeking provision out of the estate and/or notional estate of the deceased pursuant to ss 58-59 of the Succession Act. On 18 May 2017, an amended summons was filed by them (at a time when it appears the appellant was self-represented) seeking, inter alia, a revocation of the deceased's Will and making allegations of fraud and undue influence against the first respondent.
2. The matter was referred for a judicial settlement conference before the Family Provision List judge, Hallen J, on 6 July 2017. The matter settled "in principle" but the appellant later withdrew from this in principle settlement (see [4] and Annexure "A" to the affidavit sworn 17 August 2018 of the first respondent's solicitor, Ms Bailey Dunleavy).
3. A further amended summons was filed by the appellant (by then represented by a legal representative, Ms Reid of Counsel) on 19 September 2017, in which the relief sought was once again limited to an order pursuant to s 59 of the Succession Act (thus seemingly abandoning both the testamentary challenge and the allegations of fraud and undue influence) and Ms Robinson Murray was no longer named as a party (this seemingly indicating an informal discontinuance of Ms Robinson Murray's family provision claim). No notice of discontinuance or order granting leave to discontinue was filed or made (hence there was some confusion when the court file in due course came before the primary judge in advance of the date listed for the hearing of the matter as to Ms Robinson Murray's status as a party or otherwise to the proceeding).
4. On 8 February 2018, the matter was set down for hearing before Pembroke J to commence on 16 April 2018 with a two day estimate. An order was made for updating affidavits (as required under the relevant practice note) to be filed by 15 March 2018.

Email communications prior to the Deed of Release

1. Prior to the commencement date of the hearing (and prior to the filing of the requisite updating affidavits), on 28 February 2018 the primary judge's associate sent an email to the parties' legal representatives (on its face that email was sent at the request or direction of the primary judge). This was one of a number of email communications between the primary judge's chambers and the legal representatives of the parties (and Ms Robinson Murray), to which the Court's attention was drawn on the hearing of the appeal. It is necessary here to refer to the content of some of those communications since they form part of the context in which the appellant submits it can be inferred that the primary judge did not consider each of the s 95(4) matters prior to approving the s 95 releases.
2. In the 28 February 2018 email, sent at 10.46am, the primary judge's associate stated that: As you know, this matter is listed for hearing before Pembroke J on 16 April 2018. His Honour has read the papers and is concerned about the plaintiffs' claim. In the circumstances and given the impecuniosity of the plaintiffs (and their likely inability to meet a costs order), his Honour proposes to limit the hearing to one day. If you require a directions hearing before 16 April, please let me know.
3. Pausing here, from this it would appear that the primary judge had, at least to some extent, reviewed the court file given the reference to the "impecuniosity of the plaintiffs" (since that could only have been apparent from the affidavit material then on file). I note that the court file would not at that stage have included the updating affidavits (which were not due to be filed until 15 March 2018); nor did the court file at any stage include any written submissions in advance of the hearing - apparently because it had been proposed that such submissions be served by 9 April 2018 but, by 6 April 2018, the parties were under the assumption that the matter had been resolved (see AT 12.40).
4. It would seem that the parties did not see the need for a directions hearing at that stage (see the email response from the first respondent's counsel (Mr Stevens) to the above email, copied to the appellant's counsel, sent at 11.31am on 28 February 2018) but the first respondent's counsel noted that a directions hearing might be required if the matter were to proceed "to deal with the question of whether the widow (Dr Portia Robinson) is required to attend Court for cross-examination given she is elderly (91 years old) and has mobility issues". There was no suggestion in that email of any issue as to Dr Robinson's capacity to give instructions in relation to the proceeding (or to be cross-examined at the hearing).
5. On 15 March 2018, the appellant's counsel (Ms Reid) sent an email to the first respondent's counsel (Mr Stevens) stating that the matter had settled. In that email, Ms Reid noted that the appellant's daughter (Ms Robinson Murray) refused to sign the deed of release and any consent orders.
6. On 29 March 2018, Mr Stevens responded to Ms Reid, attaching the Deed of Release and Consent orders for the appellant's signature, and stated: … Kindly let me know when the plaintiff anticipates signing these documents. The date of the deed will need to be inserted at paragraph 17 of the Consent Orders. The releases that were in the orders previously have now been incorporated into the attached deed. We have also included the s 95(4) Succession Act factors that the Court will need to be satisfied of in the Deed to save a further affidavit by the plaintiff. We propose to get Leigh and Portia in to sign these documents once your client provides original signed documents.
7. The primary judge was, of course, not privy to the above interchange of email communications between the parties' legal representatives.

Deed of Release

1. On or around 6 April 2018, a Deed of Release was executed by the appellant, the first respondent, and Dr Robinson, recording settlement reached between the parties to the proceedings, as part of which certain releases were given (see Recital N and cl 1 of the Deed of Release). The first respondent's solicitor signed the Deed of Release as witness to both Dr Robinson's signature and that of the first respondent.
2. The recitals to the Deed of Release included, among other things, a statement as to the deceased's assets at the date of his death (Recital E), attributing a monetary value to each. The Kincumber property, held at the date of death as a joint tenant with Dr Robinson, was there stated to be valued "at about $900,000".
3. I interpose to note that the appellant here points out that in the administrator's affidavit as to the assets of the estate that was filed in the proceeding at first instance a lesser value had been attributed to the Kincumber property - around $545,000, which appears to have been based on a valuation that had been obtained for stamp duty purposes in September 2016. The appellant had obtained and annexed to her affidavit (which was filed prior to the consent orders) an internet appraisal in relation to the Kincumber property which gave a range of values for the property - from around $976,000 through to around $1.4m; and estimated it at the mid-range at $1,220,386. Those valuations were in the material contained in the court file to which the primary judge had access at the relevant time; and hence the primary judge had access to material that indicated that there was a range of potential values for the Kincumber property (relevant to the question as to what the appellant was "giving up" by entering into the settlement of the proceeding).
4. The process by which the "about $900,000" figure was reached for the purpose of the recitals to the Deed of Release was one of negotiation between the respective legal representatives (see T 36; affidavit sworn 8 November by Ms Dunleavy), from which it appears that: the first respondent's solicitor had suggested a figure of $900,000; Ms Reid had suggested a figure of $925,000; and the agreed value for the purposes of the Deed of Release ended up being expressed as "about $900,000". (That evidence of negotiation in relation to the Deed of Release was not, of course, before the primary judge at the relevant time.)
5. The recitals to the Deed of Release made reference to the fact that allegations of fraud and undue influence had been made against the first respondent (see Recital J).
6. The releases granted by the appellant under the Deed of Release were extensive: pursuant to cl 1.1, a release of any further claim for provision out of the estate and/or notional estate of the deceased; pursuant to cl 1.2, a similar release of any future claim for provision out of the estate and/or notional estate of Dr Robinson, in the event that she becomes a deceased person; and, pursuant to cl 1.3, a broad release in favour of the first respondent and Dr Robinson from all claims arising directly or indirectly out of the proceedings and its subject matter (including in relation to the Kincumber property, any transaction in relation to the Kincumber property, the transmission of the Kincumber property to the first respondent and lease, and the allegations of fraud and undue influence).
7. Relevantly, having regard to the submission made to the contrary by Counsel appearing for the appellant on the appeal (see AT 5.32), there was no release by Dr Robinson of any claims she might have in relation to any matters referred to in the Deed of Release (hence it would be open to Dr Robinson, or a tutor on her behalf, to seek to challenge the impugned transactions). Thus, insofar as it is suggested by the appellant that there would have been a need on the part of the primary judge to consider approval of the Deed of Release on the part of Dr Robinson (if she had lacked the capacity to enter into it at the time), one matter to note is that the Deed of Release contains releases in favour of Dr Robinson not any releases by her.
8. By cl 2, the appellant agreed to refrain from bringing any application in the Guardianship Tribunal of NSW (or any other agency or institution) in respect of Dr Robinson "unless Sarah has a substantive reason to believe that Portia's financial interests and/or general welfare are not being properly protected and/or looked after (being facts or circumstances which occur on a date subsequent to the date of this Deed)". (Although the appellant points to this in the context of the submissions made as to Dr Robinson's capacity at the relevant time, cl 2 in its terms is clearly prospective and would be consistent with the parties anticipating future claims that the appellant, who by then was clearly not shy in making allegations against the first respondent, might make. It says nothing from which one might reasonably infer a lack of capacity on Dr Robinson's part at that time.)
9. Clause 3 contained an indemnity and covenant by the appellant in favour of the first respondent, Dr Robinson, the estate of the deceased and the estate of Dr Robinson in respect of any costs associated with any breach of the clauses of the Deed of Release (cl 3.1) and a covenant never to bring proceedings in contravention of any of the clauses of the Deed of Release (cl 3.2).
10. Clause 1.4 (although the weight to be attached to this is relatively low for the reasons I will come to in due course) provided, in formulaic terms, that: In accordance with s95 of the Succession Act, Sarah notes and agree [sic] that: (a) it is to her advantage, financially or otherwise to make the releases, and (b) it is prudent for her to make the releases, and (c) the provisions of this Deed and the Consent Orders are fair and reasonable, and (d) she has taken independent advice in relation to the releases and has given due consideration to that advice.
11. Clause 4.1 contained an acknowledgement by each party that he or she "has obtained independent legal advice (or was given the opportunity to obtain independent legal advice but elected not to do so)" before entering into the Deed of Release.
12. The Deed of Release is not in terms made conditional on the grant of approval for the releases contained therein. However, the first respondent argues that, as the agreement was required to be translated into orders under the Succession Act, which by their nature were subject to approval by the Court, if the Court declined to make the order for provision (the s 59 order) or to grant the releases (the s 95 orders), the agreement embodied in the consent orders could not stand (referring to Azar v Kathirgamalingan [2012] NSWCA 429 at [195] and [197] per Campbell JA, with whom McColl and Basten JJA agreed, and the authorities referred to therein).
13. Pursuant to the consent orders annexed to the Deed of Release, the sum of $20,000 was payable to the appellant within 28 days of the orders being made, with the sum of $180,000 (the balance of the settlement sum) being payable within 28 days of completion of the sale of the Kincumber property, "the sale to occur no later than 6 months after the death of the deceased's widow, Dr Portia Robinson".

Communications with the primary judge's associate as to settlement

1. By email sent to his Honour's associate on 9 April 2018, Mr Stevens (as noted, the counsel for the first respondent), stating that he did so with the consent of the appellant, advised the primary judge's associate that the matter had settled. Attached to that email was a copy of signed consent orders and the Deed of Release. The email stated that it was proposed that the original orders be delivered to his Honour the following day and that "[i]f the Court is minded to make orders in Chambers, then the hearing date scheduled for 16 April 2018 may need to be vacated".
2. By email sent on 10 April 2018, the primary judge's associate advised the parties that the matter would remain listed on 16 April 2018 at 10am and that: On that occasion, the Judge will make the orders that the parties have requested him to make, subject to hearing any submissions from Jessie Robinson if she wishes to avail herself of the opportunity to do so. His Honour is aware of the recent email correspondence from Jessie Robinson but has asked me to point out that she ceased to be a party on 19 September 2017.
3. Pausing there, it would appear from the above email communication that not only had there been some email correspondence sent from Ms Robinson Murray direct to the primary judge's chambers but also that his Honour had reviewed the court file (insofar as it seems to have been understood by his Honour that Ms Robinson Murray was not by then named as a party to the proceedings). It would also appear, from other email communications at that time, that the legal representatives for both sides were not aware of the communications by Ms Robinson Murray to which his Honour's associate had there referred. A copy of an email dated 10 April 2018 from Ms Robinson Murray to the primary judge's associate was later forwarded to the parties' representatives by his Honour's associate.
4. At 5.16 pm on 10 April 2018, Ms Robinson Murray sent an email to the primary judge's associate, stating that: We have just been informed that Mum will have to pay the court costs and legal bills for Monday. Mum has no money and I am on a machine to stay alive. Can you confirm or deny that she will have to pay the costs.
5. There was further email communication between the legal representatives for the first respondent and members of the primary judge's chambers on 11 April 2018 and with Ms Robinson Murray, copied to the respective legal representatives.
6. At 10.12 am on 11 April 2018, the first respondent's counsel sent an email to the primary judge's tipstaff, apparently clarifying an earlier conversation regarding "the chronology of events around the removal of the second plaintiff, Jessica Robinson, from proceedings".
7. At 11.54 am on 11 April 2018, the primary judge's associate sent an email to Ms Robinson Murray, responding to the email sent by Ms Robinson Murray at 5.16 pm the previous day, stating that: I am in receipt of your most recent email (see below). As you know, the parties to the proceedings (Sarah Robinson, Leigh Henry Robinson and Timothy John Robinson) have agreed to a resolution. They have all received legal advice and signed consent orders, which have been provided to his Honour for him to make in Chambers. This is the ordinary course in the circumstances. However, as you have written both to his Honour and the Chief Justice, he offered you the opportunity to appear on Monday to make any submissions. This will result in increased costs to all parties. If your complaints are unjustified, it is possible that his Honour will order you to pay the costs of attendance at Court by all parties. This is especially so because you ceased to be a plaintiff in September 2017, are no longer a party to the proceedings and would not usually have a right to be heard. Can you let me know whether or not you still wish to attend? If not, his Honour will simply make the orders that the parties have requested him to make.
8. Then at about 3.18pm on 11 April 2018, the primary judge's associate sent two emails. First, an email to Ms Robinson Murray, copied to the respective legal representatives, in which it was said (responding to the 28 February 2018 email) that: By email sent on 28 February 2018, I stated that his Honour 'proposes' to limit the hearing to one day. No party objected to this proposal or suggested that it was not a realistic assessment of the time needed for the hearing. His Honour had concerns about your mother's case but had certainly not decided that it had 'no chance of winning'. He took the view that the hearing of the evidence and submissions would take less than a day, not the two days that had been allocated. His proposal was designed to save legal costs for all parties.
9. Second, an email to the respective legal representatives, stating that: As you will be aware, I have received numerous emails from Jessie Robinson complaining about the settlement to which her mother has agreed. After carefully reviewing the emails, his Honour has decided that it would not be in the interests of justice to hear further from Jessie Robinson in open court, as he originally contemplated. Unless the parties wish him to do otherwise, his Honour will vacate the hearing and make orders in Chambers in the 'terms set out in the Consent Orders' dated 6 April 2018. Please let me know your position.
10. The first respondent supported the making of orders in chambers (see the email sent by his counsel at 3.33pm that day). It does not appear that there was any opposition to that course at that time by the legal representatives for the appellant.
11. What next transpired (and this, the appellant submits, is the "critical" email) was that an email was sent by the primary judge's associate to the legal representatives, copied to Ms Robinson Murray, at 9.26am on 13 April 2018, which included the following: His Honour reviewed the draft orders and deed of release in Chambers yesterday afternoon. Having regard to the many emails which we continue to receive from Jessie Robinson contending that the plaintiff (Sarah Robinson) was 'in no fit state to sign anything' and had 'no choice but to sign something that should never have been signed', his Honour has regrettably concluded that he should not make proposed orders 10 and 11 [sic; scil 12] concerning the approval pursuant to s95 of the Succession Act 2006 of the release by the plaintiff of certain rights, without satisfactory evidence (in addition to the deed of release itself) of each of the matters listed in s95(4), namely that: (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. I apologise that this is not what was proposed yesterday. But his Honour has decided that the prudent course in the circumstances of this particular case is to deal with the proposed orders in open court and to require sworn evidence of the matters that are required to be taken into account in determining an application for approval pursuant to s 95. His Honour regrets that this will involve additional costs but has concluded that the strongly-worded complaints by Jessie Robinson cannot be ignored entirely. The hearing will remain listed on Monday 16, April at 10am. His Honour will grant an adjournment if it is necessary. I am copying this email to Jessie Robinson as a matter of courtesy.
12. It thus appears from the text of the above email that the primary judge had turned his mind to the need to be satisfied as to the s 95(4) matters; and had concluded at least at that stage that something more than the Deed of Release was required by way of sufficient evidence of those matters. Relevantly, it appears from the email that the primary judge understood the allegations being made in the (apparently numerous) communications from Ms Robinson Murray as allegations going to her mother's mental condition (i.e., the assertion being that she was "in no fit state to sign anything") and/or as to some form duress (i.e., the assertion that the appellant had "no choice but to sign something that should never have been signed") at the time of entry into the Deed of Release.

16 April 2018

1. The matter then came before Pembroke J on 16 April 2018 (the day that the hearing was listed to commence). On that occasion, Ms Reid informed his Honour that the appellant was "withdrawing her consent to the deed".
2. Strictly speaking, the Deed of Release was on its face a binding document, albeit implicitly subject to approval of the consent orders, so the question of "withdrawing consent" to the deed should probably be understood as being that the appellant was withdrawing consent to the making of the consent orders, notwithstanding that this would or might amount to a breach of the Deed of Release. As adverted to above, the first respondent in submissions in this Court emphasises that consent orders are both orders of the Court and the embodiment of a contract between the parties, citing Cassaniti v Paragalli [2006] NSWSC 50 at [15] per Campbell J, as his Honour then was (his Honour there referring, inter alia, to Harvey v Phillips (1956) 95 CLR 235; [1956] HCA 27).
3. The appellant (though represented by Counsel) was invited by the primary judge directly to address him as to what she said about the circumstances in which she signed the Deed of Release. The transcript of the hearing on 16 April 2018 before Pembroke J includes reference to the appellant's "medical condition". It appears that the appellant handed up a copy of a Discharge Referral from Ryde Hospital, which recorded that the appellant was admitted to Ryde Hospital due to stress on 12 April 2018. The appellant informed the primary judge (at T 2.26-47; 16/4/2018) that she was normally a healthy person and that she had only been admitted to hospital once before, probably 30 years ago. The appellant raised, more generally, various matters as to the substance of the dispute (see T 3; 16/4/2018), in essence alleging that her brother had forced their mother into the situation where her mother had written deplorable things (see T 3.34; 16/4/18) and that their late father had signed the Will when he was feeble and would not have signed that Will (see T 4.23ff; 16/4/2018).
4. It is clear from the transcript of what transpired in court on 16 April 2018, therefore, that the primary judge was aware that the appellant was making various allegations as to potential challenges to the deceased's Will and/or of undue influence in relation to transactions entered into by Dr Robinson (allegations of the kind that had seemingly been abandoned when the further amended summons was filed). The making of such allegations is also apparent from the recitals to the Deed of Release (see Recital J).
5. Ms Reid explained to his Honour that what had happened was that Dr Robinson had inherited everything (under the deceased's Will) and had transferred half the house to the first respondent as a joint tenant for no consideration such that effectively there was not going to be any estate when Dr Robinson died (T 4-5; 16/4/2018).
6. In that context, the primary judge made various observations, including that: … one of the issues that will have to be addressed if the matter comes back to court is that it would seem perfectly rational and reasonable for your father to have decided at the time he made his will, and that's the time that I have to look at, that he should give the whole of his estate to his wife and that she should then make a decision about the disposition of that estate when she died. … So this is not an easy issue. The Courts are very concerned about the number of cases like this, where people come along and say, "Well, it's not fair. I want to change the will" or, "I want the Court to change the will." In fact, most of the time we try to uphold the will and respect the wishes of the testator. The purpose of this Court is not simply to divide up family estates according to what we think is fair. It is primarily to uphold the will and then to make a change only where there has been some clear indication of a failure by a testator to have regard to his obligations, moral and otherwise, to someone to whom he owes such a duty. Please bear in mind that this is not just a case where you can say, "I should have go more." It's not like Oliver Twist.
7. In response to an assertion by the appellant as to the making of false affidavits, his Honour then said that where there is fraud that becomes much more complicated and the court will try to unravel any dishonesty and fraud. The appellant's response was that that "is exactly what I want". The appellant told his Honour that she wanted the court to look at everything done leading up to this, to which the primary judge responded that it sounded that the appellant wanted to bring a different sort of claim "like you want to challenge the validity of your father's will and say that he was coerced into make [sic] it in the form he did".
8. His Honour then indicated that he could not approve the settlement if consent was withdrawn and that he should give the appellant an opportunity to amend her summons "yet again", suggesting that the first respondent might want to give some consideration to a stay of proceedings until there had been some security for costs provided (T 6; 16/4/2018). His Honour indicated that he would give the appellant a month to "get her house in order", obtain some advice and decide what she wanted to do (see T 6.46-7.26; 16/4/2018).
9. After some further discussion, his Honour gave some brief ex tempore reasons (a copy of the transcript of these reasons was included in evidence on this appeal). Among other things, in those reasons his Honour said: I must say, it is not clear to me that [the appellant] has a strong case, but that will depend upon the precise evidence. I do not know the details of this case, but one of the troubling features that occurred to me that it was not clear how Dr Portia Robinson was going to afford to meet any claim by the plaintiff if that claim was successful without having to drastically change her living arrangements.
10. What is clear from the ex tempore reasons is that his Honour was aware that, after the death of the deceased, his widow had transferred a half interest in the Kincumber property to the first respondent. Although the appellant here complains that his Honour did not make reference in the ex tempore reasons to the transfer being for no consideration, nor to the fact that Dr Robinson had leased the property to the first respondent and herself for 50 years, those are matters of which the primary judge was clearly aware at the time, having regard to what Ms Reid had informed his Honour. Nothing can be drawn from the fact that his Honour did not refer to those aspects of the matter in the brief ex tempore reasons given on that occasion.
11. His Honour also referred in those reasons to various authorities (including Sgro v Thompson [2017] NSWCA 326) in relation to the fate of claims for provision by adult children.
12. The appellant then indicated that she would like to ask for a different judge to hear the matter as "too much water had gone under the bridge" (and his Honour appeared to be not unfavourably inclined to such a proposal).
13. Ms Reid intimated that the appellant might in due course decide to go ahead with the settlement having heard what his Honour had to say and after the appellant had spoken at length with Counsel (see T 10.30-35; 16/4/2018). His Honour pointed out to the appellant that she was "throwing away today the chance to receive $200,000", and that if she proceeded she might get a hearing before another judge next year or late that year and might get nothing.
14. The matter was then relisted for directions at 9.45 am on 16 May 2018.

Decision by appellant to proceed with settlement

1. At 1.07pm on 16 April 2018 (therefore, it would seem, not long after the appearance before the primary judge - although his Honour would not have been aware of that time frame when he came to make the consent orders), Ms Reid emailed Mr Stevens in effect to advise that the appellant was proceeding with the settlement. In that email, Ms Reid referred to a signed affidavit by the appellant "covering the s 95(4) clauses", which it was said was "painstakingly explained to her" by Counsel in the presence of her head of chambers (Mr Alun Hill) and was witnessed by him.
2. In the affidavit, the appellant deposed that: 1. I am the Plaintiff. 2. I refer to the Consent Orders & Deed of Release signed by me on 5 April 2018 & say as follows re the Deed of Release: (a) It is to my advantage, financially and/or otherwise, to make the release. (b) It is prudent for me at this time to make the release. (c) I consider the provisions of the release to be fair & reasonable. (d) I have been given legal advice by my counsel regarding the release & I have given due consideration to that advice.
3. Pausing here, the weight that can be placed on such an affidavit is a matter of some contention (as is the weight that can be placed on warranties as to the receipt of independent legal advice of the kind contained in the Deed of Release). In Colosi v Colosi [2013] NSWSC 1892, Young AJ (as his Honour then was) said the following in relation to a warranty in a deed of release as to the receipt of independent legal advice in relation to the provisions of the deed and the giving of "due consideration" to that advice (at [15]): That is oppressive. Cases such as Lowe v Lorn Bank Limited [1960] 1 WLR 196 make it quite clear that such statements are absolutely valueless if the party to whom they are made knows that they couldn't possibly be correct. The fact that it is put in such a deed makes it more unlikely than otherwise that the Court would ever give sanction to it.
4. Whether or not the inclusion of such a warranty in a deed of release would automatically have such a draconian consequence, it can readily be accepted that the mere assertion by the appellant in her affidavit as to the s 95(4) matters or as to the obtaining of independent advice would not of itself establish that the agreement to grant the releases was objectively to her financial or other advantage, prudent in her interests, or fair and reasonable. Nor does the affidavit in question set out the content of the independent advice that was given to her at the time.
5. In any event, at 9.18am on 17 April 2018, Ms Reid sent an email to the primary judge's associate with the following message addressed directly to his Honour: Dear Judge, Following your comments in court yesterday morning, which were most helpful, I had a long conference with Ms Robinson & finally was able to encourage her to let go of the emotional approach & think sensibly about hers & Jessie's future. She returned to Chambers with me &, with our head of Chambers present (Alun Hill), I thoroughly went through everything that was said in court (I had taken notes). I gave her my advice, & she finally agreed that it was in her best interests to take the settlement she was being offered. With her full approval I drafted the attached affidavit. I explained it to her in detail with Alun Hill present once again. He actually witnessed her signature on the affidavit when she confirmed that she understood & accepted its contents. I informed her that you would be making the orders in Chambers & that there would be no more need for court appearances. I hope this is correct. I have copied Mr Stevens in on this email, & for abundant caution & transparency, I have also cc'd Ms Robinson. I will await your advice.
6. The parties were advised by email sent at 1.04pm that day by his Honour's associate that orders had been made in chambers by his Honour "as requested".

Impugned orders

1. The relevant orders that his Honour made were, in terms, as follows: 10. Orders that the release by the plaintiff of her right to apply for a further family provision order out of the whole, or any part, of the estate or notional estate of the deceased, be approved pursuant to s 95 of the Succession Act 2006 (NSW). … 12. Orders that the release by the plaintiff of her right to apply for a family provision order out of the whole, or any part, of the estate or notional estate of Dr Portia Robinson, in the event that she shall become a deceased person, be approved pursuant to s 95 of the Succession Act 2006 (NSW).
2. His Honour (as is conceded by the appellant to be not uncommon) did not publish reasons for the approval of the releases embodied in the orders made on 17 April 2018.

Direction for payment of the initial sum under the Deed of Release

1. On 5 April 2018, no doubt in conjunction with the steps then being taken in relation to the proposed Deed of Release, the appellant had issued a direction that $10,000 of the initial sum of $20,000 payable under the Deed of Release should be paid directly to her barrister (Ms Reid) on account of her fees in the matter. Payment of that amount (together with a cheque for $10,000 for the appellant) was made on 9 May 2018. The bulk of the amount paid to the appellant had been expended by 23 November 2018, having regard to the bank statements tendered on the cross-appeal (see below).
2. The bank statements put in evidence by the appellant disclose that the sum of $10,000 was deposited into the appellant's account on 10 May 2018. The appellant notes that before 10 May 2018, the balance never exceeded $800 (in line it is said with her receipt of Centrelink payments). After the account was credited with the $10,000 on 10 May 2018, the rate of expenditure increased such that by 29 August 2018 the account balance was at $2.26.

Appeal

1. It would appear that not long after the making of the consent orders the appellant repented of her decision to enter into the settlement (whether encouraged in that change of heart by her daughter is irrelevant). That this is so can be gleaned from an affidavit sworn on 2 September 2018 by the appellant (at [48], which paragraph was tendered by the first respondent on the cross-appeal as an admission by the appellant/cross-respondent, going to the issue as to whether the $20,000 should be repaid if the appeal were to succeed), in which the appellant deposed that she had started working on her appeal "straightaway". Notwithstanding that apparent intention to challenge the making of the consent orders, it appears from the appellant's bank statements that she continued throughout the period in which she was working on her appeal to spend the money she had received pursuant to the consent orders that had been made by the primary judge.
2. On 20 July 2018, the appellant filed a summons seeking leave to appeal. Under the relevant rules, the cross-appellant therefore had until 17 August 2018 to file any cross-appeal: see r 51.11(1)(a) of the UCPR. On 17 August 2018, the cross-appellant filed submissions in response to the summons seeking leave to appeal, in which, among other things, it was submitted (at [50]): If leave is granted, it should be conditional of [sic] the Applicant paying into Court the $20,000 paid to her on 8 May 2018 in performance of the consent orders (settlement).
3. Thus, from 17 August 2018, the appellant was on notice of the position taken by the cross-respondent that (if leave to appeal were to be granted) she should repay the $20,000 that had been received by her pursuant to the consent orders, notwithstanding that no cross-appeal had been filed at that stage.

Appeal

1. On 12 November 2018, the application for leave to appeal was heard. The appellant was self-represented at that hearing. On that occasion, the first respondent sought as a condition of the grant of leave an order that the sum of $20,000 be repaid. That condition was not imposed on the grant of leave to appeal (though, relevantly, it is clear that the appellant was on notice of the possibility that she might be required to repay that sum in the context of her appeal).
2. The grant of leave to appeal was, as adverted to above, on a limited ground, namely that the primary judge did not take into account each of the s 95(4) matters in determining the application for approval of the release of the appellant's rights to make claims under Ch 3 of the Succession Act in relation to the estates of her deceased father and her mother. At the time that leave was granted, an order was made referring the matter for mediation.
3. On 19 November 2018, the appellant filed her notice to appeal. By letter dated 20 December 2018 to the appellant, the first respondent's solicitors advised that: The First Respondent will not be filing any Cross-Appeal, Notice of Contention or any other documents before the mediation in an attempt to keep costs down. If the matter does not settle at mediation, we will be seeking leave from the Court to file these documents at the next return date on 13 March 2019.
4. The mediation was unsuccessful.
5. On 15 April 2019, the cross-appellant filed his cross-summons seeking leave to cross-appeal. (It is not disputed that this was some seven months out of time for the filing of the cross-appeal.)
6. On 25 June 2019, the appellant filed an amended notice of appeal.
7. The final iteration of the amended notice of appeal appears to be that filed in court before Basten JA on 19 July 2019.

Grounds of Appeal

1. The appeal grounds as set out in the amended notice of appeal filed in July 2019 (which, at least in terms of some of the particulars there provided, extend beyond the grant of leave) are as follows: 1. The primary judge erred in making orders [sic] 10 in circumstances when he should not have granted a release under s 95 of the Succession Act 2006 (NSW). The primary judge erred in particular: a. inadequate evidence in support of the release application. b. The primary judge did not have the evidence to consider whether the release was fair and reasonable and in fact did not consider the issue. c. The provision for $200,000 covering both estates was in the circumstances not fair and reasonable. d. The primary judge did not consider whether it was prudent for the appellant to enter the deed. e. The primary judge did not consider the underlying facts in circumstances where the appellant had changed her mind as to her consent to the deed. f. Dr Robinson may have lacked capacity. g. No evidence of the legal advice received by the appellant. h. Difficulties of assessing Dr Robinson and the first respondent's need as a competing beneficiary. 2. The primary judge erred in making order 12 in circumstances when he should not have granted a release under s 95 of the Succession Act 2006 (NSW). The primary judge erred in particular: a. Inadequate evidence in support of the release application. b. The primary judge did not have the evidence to consider whether the release was fair and reasonable and in fact did not consider the issue. c. The provision for $200,000 covering both estates was in the circumstances not fair and reasonable. d. The primary judge did not consider whether it was prudent for the appellant to enter the deed. e. The primary judge did not consider the underlying facts in circumstances where the appellant had changed her mind as to her consent to the deed. f. Dr Robinson may have lacked capacity. g. Dr Robinson was not joined in the proceedings. h. No evidence of the legal advice received by the appellant. i. Difficulties of assessing Dr Robinson's future estate, considering: i. Dr Robinson or her legal representative may have a claim to set aside the transfer of the property to the first respondent; ii. The Court did not have Dr Robinson's Will; iii. The Court had no evidence or conflicting evidence as to the likely nature and extent of Dr Robinson's future estate; iv. There was no material before the Court of the circumstances of the two beneficiaries and other possible claimants; v. The primary judge focused on the claim against the deceased's estate; and vi. The competing beneficiaries against Dr Robinson's future estate financial and material circumstances are unknown.

Grounds of cross-appeal

1. Relevantly, apart from an order that the time for filing a cross-appeal be extended (which order was made during the hearing of the appeal), the cross-appellant seeks orders that: 3. In the event that the Court of Appeal determines that orders 10 and 12 made by Pembroke J on 17 April 2018 be set aside or otherwise are of no effect, an order that balance of the orders, directions and notations made by Pembroke J on 17 April 2018, be discharged or set aside and the matter be remitted to the Equity Division of the Supreme Court of NSW for hearing and determination of the Further Amended Summons filed 19 September 2017, case number 2017/00120274. 4. An order that the cross-respondent repay to the cross-appellant the $20,000 paid to her, or as directed by her, on or about 9 May 2018 pursuant to order 6a made by Pembroke J on 17 April 2018.
2. The sole ground raised on the cross-appeal is that: If the appeal is allowed and the orders approving the releases are discharged, the balance of the orders, directions and notations made by Pembroke J should be discharged because the settlement of the proceedings was dependent (or contingent) on all of the orders, directions and notations being made and the effect of discharging orders 10 and 12 would be to alter the nature and effect of the contract between the parties pursuant to which they agreed to settle the proceedings.
3. As noted earlier, if the appeal is successful, the appellant does not oppose an order in terms of order 3 above; but she does resist an order in terms of order 4 above (relying on a change of position or estoppel/waiver argument or, in the alternative, submitting that the amount distributed to the appellant under the Deed of Release should be treated as interim provision on her family provision claim).

Relevant provisions

1. Section 95 of the Succession Act provides, relevantly, that: (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. … (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. …
2. Section 96 of the Succession Act provides that: (1) The Court may not revoke an approval of a release given by or under section 95, except as provided by this section. (2) The Court may revoke an approval if it is satisfied: (a) that its approval was obtained by fraud, or (b) that the release was obtained by fraud or undue influence. (3) The Court may also revoke an approval, either wholly or partially in respect of specified property, if it is satisfied that all persons who would be, in the Court's opinion, sufficiently affected by the revocation consent to the revocation.
3. As the appellant here emphasises, an approval granted under s 95 of the Succession Act may thus be revoked (in the absence of consent) only if the approval was obtained by fraud (s 96(2)(a)) or the release was obtained by fraud or undue influence (s 96(2)(b)). Hence the importance of the Court being satisfied of the s 95(4) matters that must be taken into account in determining an application for approval of a release.

Relevant principles

1. The power to approve a release of rights under s 95 of the Succession Act is incidental to the exercise of the principal jurisdiction of the court under s 59 Succession Act to make an order for provision out of the deceased's estate or notional estate (see Oxley v Oxley [2014] NSWSC 1606 (Oxley v Oxley) at [68] per Hallen J).
2. The principles applicable when an application is made for approval of a release under s 95 of the Succession Act (or its equivalent in the predecessor legislation - s 31 of the Family Provision Act 1982 (NSW)) have been considered in a number of cases (see, for example, Russell v Quinton [2000] NSWSC 322 (Russell v Quinton) per Bergin J, as her Honour then was; Neil v Jacovou [2011] NSWSC 87 (Neil v Jacovou) per Slattery J; Boardman v Boardman [2012] NSWSC 1257 (Boardman v Boardman) per Lindsay J; Oxley v Oxley per Hallen J; Anthony John Clifford v Mark Ronald Joseph Clifford [2015] NSWSC 2136 (Clifford v Clifford) per Brereton J, as his Honour then was; and, most recently, Kelly v Kelly [2019] NSWSC 994 (Kelly v Kelly) per Hallen J).
3. As recognised in those (and other) authorities, an application to approve a release of rights is not a mere formality (see, for example, Boardman v Boardman at [53] per Lindsay J; Neil v Jacovou at [64] per Slattery J; Oxley v Oxley at [78] per Hallen J; Kelly v Kelly at [72]) per Hallen J). There must be sufficient material put before the Court to enable consideration of all the circumstances of the case (see Kelly v Kelly at [72] per Hallen J) and there must be active consideration by the Court of the terms on which the release has been agreed and the circumstances of the case. In particular, attention must be focused on what is being released (see Clifford v Clifford at [3] per Brereton J) (in the present case there being releases in respect of claims both as to the deceased's estate and as to the mother's future estate).
4. In considering whether it was to the releasing party's advantage, financially or otherwise, to make the release (the first of the s 95(4) matters), account may be taken of all the circumstances of the case, and, having regard to the wording of s 95(4)(a), the time at which this is to be considered is both at the time of the application and at the time of the making of the release. In considering the prudence of making the release (the second of the s 95(4) matters, s 95(4)(b)), one has regard to the standard of a prudent person being 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 (see Russell v Quinton at [70]). The third of the s 95(4) matters (s 95(4)(c)) is self-explanatory, namely, whether the provisions of the agreement to make the release are or were at the time fair and reasonable. The fourth of the s 95(4) matters (s 95(4)(d)) requires consideration not simply as to whether the releasing party has had the benefit of independent advice in the relation to the release but also, if the releasing party has obtained such advice, whether the releasing party gave due consideration to that advice. One or more of these factors may require consideration of how the agreement was reached and the context of the negotiations in question.
5. In Boardman v Boardman (at [51]) Lindsay J emphasised that, in the context of an application for approval of a release to make an application for further provision (as distinct from a release of a right to make an application for provision at all), it is necessary to focus attention on two aspects. First, attention must be given to the fact that the releasor is releasing the right in future to make an application for further provision (in the limited and special circumstances where, say, there has been a substantial detrimental change in the eligible person's circumstances since the first order was made or there has been, in effect, a material non-disclosure about the nature and extent of the estate or notional estate). Second, it may be necessary to make an assessment of the releasing party's judgment in that regard (see at [58]).
6. An example of the consideration of the s 95(4) matters is seen in Oxley v Oxley, where Hallen J expressly took into account factors such as: the value of what the relevant party gave up by entering the deed (at [79]); whether entry to the deed was in the plaintiff's financial advantage (at [79]); whether entry to the deed was prudent and whether the deed presented as being fair and reasonable (at [80]-[81]); whether there was evidence that independent legal advice had been obtained (beyond the standard statement in the deed that such advice had been received) (at [82]); whether the relevant party had been advised to seek and obtain independent legal advice, noting that the Court cannot require a party to obtain legal advice (at [83]- [84]); and whether the deed was signed following a mediation (at [85]), before considering whether to grant the approval (see at [86]-[92]).
7. In Kelly v Kelly, Hallen J emphasised the distinction between applications for approval of releases in relation to deceased estates and inter vivos releases. At [69] his Honour said: The present case, whilst it involves an inter vivos release, is very different from the above examples. Here, an eligible person is making a release of rights in relation to the estate and notional estate of his mother, before the date of her death, as part of the settlement of existing family provision proceedings in which an order for provision is sought to be made in respect of the eligible person's deceased father.
8. Hallen J rejected the suggestion (drawn from earlier cases in other contexts) that the Court should try and approve inter vivos releases where possible (see [64]-[68]). His Honour distinguished cases where a release is made in the context of pre-nuptial agreements, such as Cook, Michael Knox Norton, by his tutor Richard D'Apice v Michael James Harris [2015] NSWSC 2147.
9. Pausing here, the appellant in the present case places weight on the procedure that was adopted in Kelly v Kelly as a model or template for what she submits should have here occurred. Certainly, that case provides a good illustration of what may be required for the court to be satisfied in a particular case where the court considers that there is some ambiguity or doubt as to the releasing party's understanding, that the releasing party has in fact given due consideration to, and/or understands, what is there being released. In that case, his Honour required that the releasing party be examined to explore the quality of his understanding of what he was giving up or releasing (and ultimately his Honour was only prepared to approve a modified settlement when approving the release). That said, it will not be necessary in every case for there to be an oral hearing or (as there happened) an interrogation by the judge as to the understanding of the releasing party. It is relevant to note that in the present case the primary judge had already had the benefit of hearing directly from the appellant - the day before the consent orders were made, i.e., on 16 April 2018 - as to the appellant's then opposition to the giving of the releases in question, from which the primary judge was in a position to make some assessment as to the appellant's understanding of the situation.
10. In the course of argument, much emphasis was placed by the appellant on the observation by Hodgson JA in Bartlett v Coomber [2008] NSWCA 100 (Bartlett v Coomber) at [73] to the effect that, where a party has sought to withdraw from an agreement to settle proceedings, the court may need to consider the underlying facts "to a greater extent" when approving such a settlement. The appellant invokes that observation in circumstances where it is said that this was a case where the primary judge was on notice that the appellant's consent had been wavering.
11. It should also be noted that one of the factors that may be taken into account when considering the s 95(4) matters is the stress and cost of the matter proceeding to a contested hearing (and the potential for further family disputation in that context). In Bartlett v Coomber, Mason P said (at [58]): One of the principles giving effect to this policy is the principle that a valid compromise gives effect to an agreement that effectively supersedes the antecedent rights of the parties. The possibility of greater success and the risk of greater failure is transposed into an arrangement that frees the litigants and witnesses of the risks, costs and toils of further disputation. This principle is not displaced in the context of proceedings under the [Family Provision] Act, although for reasons already outlined, 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.
12. See also the observation of White J (as his Honour then was) in MacDonald v MacDonald [2012] NSWSC 1376 (at [18]) that in that case: [l]itigation for a family provision order in relation to the deceased's estate would be a great evil. The circumstances of the deceased's death must have been the cause of great distress for all concerned, and it would not be in anyone's interest for a claim for a family provision order to be made. I think the release from the potential stress of litigation is itself a significant factor on the application for approval, it appears from clause 1 of the agreement that the plaintiff's wife has a solicitor or counsel.
13. The appellant here, however, submits that the reliance placed by the first respondent on the recognition in Bartlett v Coomber of the benefits of resolving proceedings short of a fully contested hearing is overstated in the present case in light of the appellant's "wavering consent".
14. The appellant also emphasises that in Kelly v Kelly, Hallen J drew a parallel with approvals under s 76 of the Civil Procedure Act (in circumstances where the Court in exercise of its protective jurisdiction approves a settlement entered into by a person under a legal incapacity) (at [73]-[74]). His Honour noted that the procedure in such cases is for counsel to provide the Court with a copy of a written advice (usually addressed to the client or instructing solicitor) recommending the settlement and providing reasons, such that the Court has the benefit of Counsel's advice and reasoning, and so can better understand why counsel has advised the vulnerable person to accept the settlement (referring to the approach taken by Davies J in Kannisto v Kannisto (No 2) [2019] NSWSC 950 by way of example). The appellant also points to the "developing doctrinal appreciation" of the close connection between the family provision/probate jurisdiction and the protective jurisdiction (citing Lindsay J in W v H [2014] NSWSC 1696 at [61] where his Honour referred to the "broader perspective now required to be taken of the law of succession, and the close connections that can now exist between the probate and protective Jurisdictions of the Court") as highlighting that there will be family provision list cases where the Court "needs to be on a heightened alert to protect vulnerable persons in the proceedings, even if they are being legally represented".
15. Finally, by way of a summary of the relevant principles, insofar as the complaint by the appellant concerns the exercise by the primary judge of a discretion to approve the releases (i.e., to the extent that the complaint is as to whether proper consideration was given to the s 95(4) matters, as opposed to whether any consideration at all was given to those matters), then, as the first respondent points out, appellate review of the exercise of such a discretion is governed by the so-called House v R principles. In House v R (1936) 55 CLR 499, Dixon, Evatt and McTiernan JJ said (at 504-505): The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. ... It must appear that some error has been made in exercising the discretion. ... It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
16. In that regard, the appellant here disavows that the present appeal is an appeal on a question of practice and procedure. The appellant identifies the core issue of the appeal as being whether the primary judge considered the mandatory s 95(4) matters. Insofar as it is necessary to identify a House v R error, the appellant argues, as I understand it, that the manner in which the discretion was exercised (having regard to the material that was before the primary judge and the wavering nature of the appellant's consent) bespeaks an error of principle or misapprehension of the facts or the law, albeit that the appellant cannot point to any particular error of that kind.

Appellant's submissions

1. The appellant's position is that it was not possible for the primary judge to give proper consideration (in line with the principles in the case law to which I have referred above), to the application for approval of the releases in the present case given that there were "so many unknowns and fundamental issues with the release application" and, therefore, that the primary judge should have declined to make orders 10 and 12. In essence, the appellant's submission seems to be that there was inadequate evidence as to the s 95(4) matters from which it could have been concluded that the releases should be approved, such that it should be concluded that the primary judge did not in fact consider each of those matters as his Honour was required to do.
2. Since grounds 1 and 2 of the grounds of appeal are largely replicated (albeit addressing different kinds of releases of claims against different estates: one, a release of any further family provision claim against the deceased's estate; the other, an inter vivos release of any future family provision claim against Dr Robinson's estate), the submissions made in support of those grounds can be dealt with together. Furthermore, as I understand it, although framed as sub-grounds of appeal, the matters set out in grounds 1(a)-(h) and 2(a)-(i) of the amended notice of appeal are in effect particulars of the only relevant ground of appeal; which in each case is that the primary judge erred in making the relevant order approving the release because his Honour did not consider each of the s 95(4) matters.
3. It follows that if, on the material contained in the court file (supplemented by the information available to his Honour by reference to what transpired in court on 16 April 2018) there was evidence from which a view could have been formed as to each of the s 95(4) matters, then the appellant's appeal must fail, since it could not be concluded that the primary judge had failed to take into consideration each of those matters (whatever view might have been reached as to the conclusion to be drawn in relation to each of those matters).

Grounds 1(a)-(b); 1 (g); 2(a)-(b); 2 (h) - inadequate/no evidence

1. As to the inadequate evidence grounds of appeal, the particular matters itemised in the grounds of appeal raise the adequacy, or lack, of evidence in three respects: a broad assertion of inadequate evidence in support of the release application; and more specific assertions regarding a lack of evidence to consider whether the release was fair and reasonable and a lack of evidence of the legal advice received by the appellant.
2. The appellant emphasises in this regard that there was no evidence before the primary judge of Dr Robinson's Will (as to which see further below) and thus, it is said, there could be no proper consideration of what it was that was being released. Her complaint, or one of her complaints, is that there was no consideration of what was Dr Robinson's potential notional estate or potential actual estate (see AT 12.21). It was said that there was no evidence before the primary judge as to the testamentary intentions of Dr Robinson, whether reflected in a Will or otherwise (see AT 12.29). Accordingly, it is said that the primary judge did not know what benefit, if any, the appellant stood to gain from Dr Robinson's Will (see AT 33).
3. Insofar as the first respondent has asserted that there was a proper evidential basis for the primary judge to grant the releases, the appellant says this should be rejected for the following four reasons. First, the appellant says that the primary judge was not "across the materials" (having requested clarification as to the parties and as to the chronology of events; having indicated in his ex tempore reasons that he did not know the "details of this case"; and not having raised the issue concerning the "dubious transactions" between Dr Robinson and the first respondent regarding the Kincumber property). Second, the appellant argues that, in circumstances where the primary judge was on notice that her consent had been wavering, a deeper inquiry into the underlying facts was required than perhaps would have been taken had there been no previous withdrawal of consent (citing Bartlett v Coomber at [73] per Hodgson JA). Third, the appellant argues that the primary judge did not "critically analyse" the terms of the settlement, nor did his Honour "have any regard to the surrounding circumstances such as the dubious transfer from Dr Robinson to the first respondent", pointing out that the appellant's affidavit contained no more than conclusionary statements referencing the s 95(4) matters. Fourth, the appellant says that the primary judge did not have regard to the differences between the two releases and that the release as against Dr Robinson's estate was an inter vivos release, which it is said should have put the primary judge on notice to ensure that the s 95(4) matters had been satisfied (referring to Kelly v Kelly at [69]).
4. Pausing here, the matters raised by the appellant to which I have referred at [116] above in substance go to the adequacy of the primary judge's consideration of the relevant matters (whether his Honour was "across the materials" or should have made a "deeper inquiry" into the underlying facts analysed) and not to whether the primary judge had regard to each of the s 95(4) matters at all (that being the sole ground on which leave to appeal was granted).
5. The appellant points to the fact that, as at 9.26am on 13 April 2018, the primary judge's associate had requested the provision of "satisfactory evidence ... of the matters that are required to be taken into account in determining an application for approval pursuant to s 95"; and that all that was provided thereafter was the appellant's affidavit and Ms Reid's email referring to the giving of advice (both, it is said, containing conclusionary statements). (I interpose to note that the primary judge also had, as at the time of the making of the consent orders, the benefit of what had transpired at the hearing on 16 April 2018, including that his Honour's attention had been drawn to various potential challenges to the impugned transactions - something that is of relevance in the context of the submission made for the appellant that, when considering the counterfactual to the settlement of the proceedings, the primary judge did not know what competing claims there could be against the future estate - see AT 46.4ff.)
6. Insofar as the first respondent submits that it is normal for the court to approve s 95 releases in circumstances where the court "does not know the full facts of the case", the appellant accepts that compliance with s 95(4) of the Succession Act does not require consideration of the underlying facts in the same detail as if the matter had proceeded to trial. However, the appellant submits that this must be qualified: first, by reference to the recognition in Bartlett v Coomber that a party's wavering consent may lead to the court needing to "consider the underlying facts to a greater extent" (at [73]); and, second, by reference to the "developing doctrinal appreciation" of the close connection between the court's jurisdiction in family provision/probate matters and the court's protective jurisdiction (and the need for heightened alert to protect vulnerable parties even when those parties have the benefit of legal representation).

Grounds 1(b); 1(d)-(e); 2(b); 2(d)-(e) - lack of consideration of particular matters

1. These particulars of the grounds of appeal assert that the primary judge did not consider particular matters, namely: whether the release was fair and reasonable; whether it was prudent for the appellant to enter into the Deed of Release; and (more generally) the underlying facts in circumstances where the appellant had changed her mind as to consent to the Deed of Release. There is no express complaint in the particulars of the grounds of appeal as to a lack of consideration by the primary judge of the fourth of the s 95(4) matters, although complaint was made in submissions that there was no evidence of the legal advice received by the appellant.
2. The appellant submits that there is no evidence that the primary judge considered the s 95(4) matters "with any independent scrutiny in accordance with the standards set by other judges in the Equity Division". She maintains that no reliance can be placed on either the email from Ms Reid of Counsel or the appellant's "section 95 affidavit", both of which it is said "merely assert, rather than demonstrate, compliance with s 95(4) of the Act". It is noted in this context that, in Oxley v Oxley, Hallen J said (at [82]): In 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.
3. Pausing here, to the extent that the submissions made in relation to these particulars challenge the adequacy of the primary judge's consideration or analysis of the s 95(4) matters by comparison with the standard of scrutiny "set" by other judges, this again goes beyond the ground of appeal for which leave was given. The issue is not whether other judges might have approached the matter differently; the issue is whether the primary judge erred in failing to consider each of the s 95(4) matters.

Particulars 1(c); 2(c) - Whether provision was: to the appellant's advantage; was fair and reasonable; and was prudent

1. The appellant maintains that there is real doubt as to whether it was to her advantage or prudent (and whether the settlement was fair and reasonable) for her to release her rights against both her parents' estates in circumstances where it is said that the combined value of those estates was in excess of $970,000 and the appellant was accepting a settlement of $200,000. In any event, it is submitted that those very numbers should have put the Court on notice that there was a need actively and critically to consider the s 95(4) matters.
2. It is submitted that there was no evidence before the primary judge of the reasons why a settlement on those terms was to the appellant's advantage or was prudent; simply "conclusionary statements" in the appellant's affidavit to that effect (or in the email from the appellant's counsel). It is noted that there were three children; that the appellant herself told the primary judge that she thought that it was fair for her to get one-third; and that the primary judge did not know the financial circumstances of the other siblings. It is submitted that, in circumstances where the appellant had already withdrawn her consent to the settlement once before, actual evidence that the agreement was fair and reasonable (beyond mere conclusionary statements to that effect) was required.
3. The gravamen of these particulars appears to be to suggest that there could not have been any consideration of the s 95(4) matters because there was "real doubt" as to those matters. This appears to invite consideration as to whether, on the material before the primary judge, there could ever have been a conclusion reached as to the s 95(4) matters. (Pausing here, the fact that the appellant thought that it was "fair" for her to receive a third share of the inheritance from her deceased father's estate and, in future, of her mother's estate, is hardly determinative of the issue as to whether the settlement was to her advantage or prudent in her interests or fair and reasonable.)

Grounds 1(g); 2(h) - independent advice

1. The appellant notes that the only evidence of independent legal advice is the email from Ms Reid (which, as adverted to above, is criticised as simply containing conclusionary statements to that effect) and the conclusionary statements contained in the appellant's affidavit. It is noted that there is no disclosure of the content of counsel's advice as to why the settlement was being recommended.
2. Insofar as Ms Reid's email states that the appellant "finally agreed that it was in her best interests to take the settlement she was being offered", it is said that the use of the word "finally" suggests that there was some reluctance by the appellant to accept the settlement (noting that this was in the context of: the appellant's daughter having independently written to the primary judge stating that her mother did not wish to agree to the settlement deed; and the appellant, only the day before, informing the primary judge that she had withdrawn her consent). It is submitted that in those circumstances, the primary judge needed to know the content of the legal advice the appellant had received (referring to Oxley v Oxley at [82] per Hallen J).

Grounds 1(f); 2(f)-(g) - capacity/non-joinder of Dr Robinson

1. The issues raised in these particulars as to Dr Robinson's capacity (and the fact that she was not joined to the proceedings) are relevant to consideration of the application for leave further to amend the notice of appeal to include a third appeal ground (see below). Suffice it to note at this point that the issue of joinder is now moot, as Dr Robinson has been retrospectively joined to the proceedings at first instance and (through her tutor) is submitting to the orders of the Court (save as to costs). As to the focus placed by the appellant on the need for heightened alert to protect vulnerable parties, those submissions were made by reference to the appellant herself (and the primary judge did seek to test that position at the hearing on 16 April 2018 by enquiring into the circumstances in which the appellant came to sign the Deed of Release).
2. As to the position of Dr Robinson, leaving aside the question of any amendment to the notice of appeal, it was submitted that the Deed of Release in some way removed her ability to set aside the impugned transactions (see AT 5.32). I do not accept that it has been demonstrated that the Deed of Release materially affects Dr Robinson's interests in circumstances where the releases are given by the appellant, not by Dr Robinson herself. However, I consider that issue in the context of the application further to amend the notice of appeal. For present purposes, I simply note the appellant's submissions to the effect that the agreement was not in Dr Robinson's interest because she probably had an action against the first respondent in these proceedings to set aside some property transactions (AT 5.30). Insofar as the orders created a charge over the Kincumber property, Dr Robinson's position might have been affected had she needed to sell the Kincumber property say for the purpose of a nursing home bond and would then have needed to discharge the obligation to the appellant of $180,000 (see AT 55.22ff).

First respondent's submissions

1. In terms of the factual background, the first respondent notes that: by 28 February 2018, the primary judge's associate had communicated that the primary judge had "read the papers" and was aware of the "impecuniosity of the [appellant]"; that the reference to "plaintiffs" (plural) in this email is understandable considering the uncertainty around the removal of the second plaintiff (to which I have referred above); and that by 13 April 2018 the primary judge's associate had emailed the parties stating that the primary judge had reviewed the draft orders and deed of release (copies of which were by then in the court file) and had requested an affidavit "addressing the section 95(4) factors". It is thus submitted that the primary judge was clearly turning his mind to the factors required and was not prepared to "rubber stamp" the releases.
2. The first respondent further notes (and the appellant ultimately does not dispute) that the court may deal with the making of orders for provision and the granting of releases in chambers (see s 11 of the Supreme Court Act 1970 (NSW)); and notes that, in family provision cases, the making of orders in chambers is frequent and in line with the just, quick and cheap determination of the real issues, saving the expenses of additional court appearances (there referring to s 56 of the Civil Procedure Act; and Kelly v Kelly at [75]-[80] per Hallen J). The first respondent also points to the commentary in both the NSW and QLD Law Report Commission Reports on the proposed Uniform Succession Laws concerning what is now s 95 of the Succession Act; in particular the acknowledgement of the advantages to parties in settling family affairs by way of s 95 releases and the recognition that the procedure could be very straightforward and inexpensive, with most approvals being done on the papers. It is further noted that in Oxley v Oxley, Hallen J said (in relation to an inter vivos approval under s 95), that these types of "proceedings would not, normally, require reasons for judgment" (at [3]).
3. The first respondent says that the procedure adopted by the primary judge in the present case was in line with usual practice. He further argues that there is no requirement for a judgment or reasons to be given or for the primary judge to demonstrate subjective reasoning, particularly where the application was by consent (with both parties being represented by legal practitioners at the time) and neither side sought reasons (see the comments made in Robinson v Robinson [2019] NSWCA 180 at [1] per Basten JA).

Grounds 1(a); 2(a) - Inadequate evidence

1. The first respondent appended to his submissions a schedule setting out the affidavits the primary judge had available to him in the court file at the time of the making of the consent orders. It is not necessary here to set those out. Suffice it to note that they included the affidavits filed by the appellant in support of her family provision claim and the updating affidavits as to the assets of the deceased's estate (and as to the parties' financial circumstances, to the extent that those had been put in issue). Relevantly, the court file also included the earlier iterations of the summonses (from which the fact that there had been allegations of fraud and undue influence that were no longer pressed would have been apparent - as was in any event apparent given what was said by the appellant in court on 16 April 2018).
2. The first respondent notes that the affidavits filed in the proceedings at first instance included the following information relevant to the exercise of power under s 95 of the Succession Act: the appellant's financial and material circumstances (including her assets/liabilities and income/expenses, position in life and alleged nature and quality of her relationship with the deceased and with her mother, Dr Robinson); the estate's assets/liabilities (being all notional estate held jointly with Dr Robinson, apart from about $10,465); the agreed value of assets, being summarised at Recital "E" of the Deed of Release; the Will of the deceased, under which the whole of the deceased's estate was left to Dr Robinson; the financial circumstances of Dr Robinson; and that there was a dispute as to the nature and quality of the relationship between the appellant, Dr Robinson, and the deceased. It is not disputed that the primary judge did not have before him the Will of Dr Robinson; nor was there evidence as to the financial circumstances of the appellant's siblings (the competing beneficiaries against Dr Robinson's future estate).
3. The first respondent submits that the material disclosed in the affidavits provided a proper basis for the primary judge to consider and approve the releases. It is noted that there is no exhaustive list of what must be considered when approving s 95 releases (albeit that the s 95(4) matters are mandatory considerations) and that different considerations may be relevant depending on the release being sought (see Kelly v Kelly at [58] per Hallen J). The first respondent notes that, of the s 95(4) matters, ss 95(4)(a), (b) and (d) focus on the party granting the release, but that s 95(4)(c) will be considered by reference not only to that party but also by reference to the other party or parties (referring to Kelly v Kelly at 72).
4. The first respondent points to the recognition that, in approving family provision orders, a court proceeds on the basis that it lacks full knowledge about the rights and wrongs of the yet to be litigated dispute (Bartlett v Coomber at [60], per Mason P); and says that the same applies to approval of releases. It is submitted that the cases make it clear that "all the circumstances" are not required, and that it is a balancing act with the court determining whether the circumstances available are sufficient to satisfy the court of the s 95(4) matters. This is submitted by way of example to Pugh v Pugh (Supreme Court of New South Wales, 17 August 1998, unreported) (Pugh v Pugh) where Master McLaughlin, as the Associate Judge then was, approved a release despite very little information being placed before the Court concerning the infant releasor on the basis of a letter from a solicitor who advised the mother of the minor that, in the solicitor's view, the proposed settlement set forth in the deed was reasonable; and McMahon v McMahon (Young J, Supreme Court of New South Wales, 2 August 1985, unreported) (McMahon v McMahon), where there was no clear evidence that the Court had before it the Will of the party receiving the benefit of the releases or a complete picture of the financial circumstances of the plaintiffs (see at 3); and considerable weight was placed on the fact that legal practitioners had advised the releasing parties. It is further noted that in Oxley v Oxley, the releasing party did not appear on any occasion and did not file any affidavit going to the s 95(4) matters but the release was approved.

Grounds 1(b)-(d); 1(g); Grounds 2(b)-(d); 2(h) - Section 95(4) factors

1. The first respondent submits that there is a very strong inference that the primary judge considered the relevant factors when making the orders, noting that the primary judge: had "read the papers"; was aware of the requirements of s 95(4) (having required satisfactory evidence of those matters); and had declined to make the orders in chambers without an affidavit going to the s 95(4) matters.
2. It is submitted that the 17 April 2018 email from Ms Reid set out "the extensive legal advice given in relation to the releases" and, that it was only after this email (which attached an affidavit going to the s 95(4) matters) that the primary judge made the orders including the releases. On this basis, it is submitted that the primary judge "obviously placed considerable weight on the legal advice provided" (consistent with Pugh v Pugh, McMahon v McMahon, and Boyter v Lepre; Estate of Umberto Lepre [2001] NSWSC 127 (Boyter)).
3. As noted above, it is submitted that the primary judge had a proper evidential basis to make the orders, given that the primary judge had available to him evidence of: the agreed value of the estate; the financial positon of the appellant; the financial circumstances of Dr Robinson; and evidence of disputed facts in terms of the quality of the relationships (including evidence of estrangement between the appellant and Dr Robinson). The first respondent also points to documents in the court file showing markings which (by comparison with a marking on an Exhibit tendered on 16 April 2018) are said to be a strong indicator that the primary judge considered the material in the court file. Pausing here, it is inappropriate in my opinion (and unnecessary) to embark upon any kind of forensic analysis of the markings on documents in the court file. This Court must proceed on the assumption (not challenged by the appellant in her counsel's oral submissions) that the primary judge had regard to the material on the court file when considering and making the orders that were made in chambers (see AT 15.5, where the appellant's counsel accepted that the Court must assume everything in the file was considered). That is supported by the primary judge's associate's earlier emails which make reference to matters arising from his Honour's review of the file at those times.
4. The first respondent submits that no error has been shown in the exercise of the court's discretion for the approval of the releases. The first respondent makes the following submissions as to the s 95(4) matters.
5. First, it is submitted that the settlement was to the advantage, financially or otherwise, of the appellant, noting that: the appellant herself agreed that it was in "her best interests to take the settlement she was being offered"; the appellant received $20,000 in immediate provision for her needs; the appellant is to receive $180,000 within 28 days of the sale of the Kincumber property (which is to occur at the latest 6 months after Dr Robinson's death); the total provision of $200,000 amounts to about 20% of the total asset pool of her parents (assuming a combined asset pool of around $970,000); and the settlement concludes litigation, avoids uncertainty of a hearing and the stress and emotion associated with court proceedings, and allows the appellant to focus on her (and her daughter's) health and future. The first respondent points out that it has been recognised that the very fact that the agreement was made may itself show that the parties thought its terms were fair at the time of signing (referring to Neil v Jacovou at [64] per Slattery J, where his Honour in turn referred to Mulcahy v Weldon [2001] NSWSC 474 at [10] per Bryson J, as his Honour then was).
6. It is submitted that, for the same reasons, it was, at the time of providing the releases, prudent for the appellant to make the releases, allowing her to move on with her life, with a guaranteed fund for her maintenance and advancement into the future; to focus on her health and wellbeing and, "most importantly", to avoid any future disputation between the family.
7. The first respondent argues that the provisions of the agreement to make the releases are fair and reasonable, again noting that the appellant acknowledged the settlement as being fair and reasonable (and that it has been recognised that it is the parties who are in the best position to judge what is in their own interests); emphasising the importance of the parties reaching a compromise and considering the settlement to be in their interest -see Bartlett v Coomber at [57] (per Mason P) and at [91] (per Bryson AJA); especially when legally advised (referring to Pugh v Pugh, McMahon v McMahon and Boyter, each referred to above). It is noted that this settlement was made in the circumstances of a family relationship, where, to avoid continued (and, perhaps, future) litigation, the view of each party is an important matter (see Oxley v Oxley at [81]).
8. The first respondent emphasises that, under the Deed of Release: the appellant stands to receive $200,000 in provision; her income was about $2,110 per month; her expenses allegedly exceeded her income; she had nominal assets and liabilities of about $22,692; she was 57 years old; and she lived with her daughter in rented accommodation ($1,000/month). The first respondent points out that the deceased's estate was about $10,465 in actual estate and (using the agreed value of the Kincumber property contained in the recitals to the Deed of Release) about $488,116 in notional estate (a total of about $498,581). Dr Robinson's estate consisted of the same assets, and the total asset value is said to be about $973,000, largely as potential notional estate. It is noted that Dr Robinson's estate stood to be diminished by the legal costs of the proceedings.
9. Having regard to the above, it is submitted by the first respondent that the provision of $200,000 from an asset pool of about $973,000 is fair and reasonable (representing over about 20% of the asset pool). It is submitted that this provision would allow the appellant to pay down her debts and have a fund for contingencies (of about $165,000-$170,000). It is submitted that the facts and circumstances of this case did not warrant the appellant receiving a fund for a house, and that the evidence of her conduct or the estrangement would serve to reduce the quantum of provision.
10. In the first respondent's submissions it was accepted that Dr Robinson's position was unlikely to improve, noting that she was (then) a 91-year-old widow who received a pension of about $2,308 per month; and whose health is likely to decline and her care needs increase. It is submitted that there was uncertainty in her position as "with all cases of elderly parties".
11. Accordingly, the first respondent submits that the settlement is well within the range of likely outcomes.
12. Focussing on the release against the deceased's estate, it is submitted that when the primary judge came to look at the prospects of success of any application for further provision out of that estate it would have been plain that they would have been very limited and probably minimal having regard to the financial circumstances of Dr Robinson (see AT 29.17). As to the inter vivos release against the estate of Dr Robinson, it is submitted that the real question for the primary judge was whether a settlement of $200,000 in the context of a maximum of about $900,000 to $1,000,000 was an appropriate amount to sanction in all the circumstances of the case (see AT 29.36); and that the lack of evidence of Dr Robinson's Will was irrelevant because (subject to questions of capacity) it would have been open to Dr Robinson to have made another Will at any time following the settlement. It was accepted in the course of argument that if the appellant was a beneficiary under Dr Robinson's ultimate Will she would have had standing in due course to challenge the impugned transactions; and that, depending on the time of Dr Robinson's death, it would be open for there to be a claim for the half share transferred to the first respondent to be designated as notional estate (see AT 30.5ff), thus bringing the entirety of Dr Robinson's estate within purview. However, as a practical matter, it was submitted that the appellant could be in no better position than having a claim against a pool of assets comprised of the entirety of the Kincumber property.
13. As to the lack of evidence of Dr Robinson's Will, it is submitted in effect that this was not a difficulty for the assessment of the s 95(4) matters because one would simply assume in favour of the appellant that she might be a beneficiary (and hence have standing to attack the impugned transactions) but that the question remained whether the settlement was in the circumstances within the proper range (see AT 33.15); and that, here, it was.
14. The first respondent submits that the giving up of any rights the appellant might have to complain in equity as a disgruntled beneficiary in relation to the impugned transactions was "clearly on the table" before the primary judge because the appellant had complained about the impugned transactions and that, as a matter of common sense, it would be accepted that to litigate allegations of lack of capacity or unconscionable or overbearing conduct would be an expensive process (see AT 33.20ff).
15. As to the lack of evidence of the financial circumstances of the siblings (the potential competing beneficiaries or claimants in respect of the respective estates), the first respondent says that this evidence was irrelevant to the approval of the release against the deceased estate (since Dr Robinson was the sole beneficiary and neither of the siblings had made a family provision claim - see AT 34.26). As to the inter vivos release, it is said that the circumstances of the siblings (in particular the first respondent) were of no moment because the court would proceed on the basis that, at least as presently advised, there was no competing claimant on the mother's estate (see AT 35.9) (and, indeed, that would be to the appellant's advantage in that it would not be treated as an impediment to her potential future claim).
16. As to the issue of independent advice, it is submitted by the first respondent that the appellant received independent advice and had given due consideration to it. It is noted that on 16 April 2018 the primary judge adjourned proceedings for four weeks in order to give the appellant time to consider her positon, and to take and consider advice from experienced counsel. It is submitted that the advice obtained is succinctly set out in the email to the primary judge on 17 April 2018 by Ms Reid, namely that: Ms Reid had a long conference with the appellant; the appellant was "finally" able let go of the emotional approach and think sensibly about her and her daughter's future; Ms Reid "thoroughly" went through everything that was said in court (she had taken notes); Ms Reid gave the appellant her advice and the appellant "finally" agreed that it was in her best interests to take the settlement she was being offered; with the appellant's "full approval" counsel drafted the affidavit in support of the s 95 release and explained the affidavit to the appellant in detail while Alun Hill (the head of Ms Reid's chambers and a barrister experienced in Succession Law) was present; Mr Hill then witnessed the appellant's signature of the affidavit, when the appellant confirmed that she understood and accepted its contents; and the appellant was informed that the court would be making the orders in chambers and that there would be no more need for court appearances.
17. It is submitted that the involvement of counsel experienced and known to judges is of considerable importance in approving releases. It is noted that it is a relevant factor in approving the release because the court ordinarily accepts, if it is being asked to approve a release, for counsel to tell the judge that he or she is satisfied that it is a proper settlement and that the client has been fully advised (see Boyter per Young J, as his Honour then was, at [4]; and McMahon v McMahon) and that consent of the parties is also of high importance (see Bartlett v Coomber).
18. The first respondent also notes that the appellant, when she was before the primary judge on 16 April 2018, acknowledged how well she had been advised and assisted by her counsel.
19. As to the particulars in grounds 1(e), (f), (h) and grounds 2(e), (f), (g), (i) (change of mind, Dr Robinson's capacity, joinder of Dr Robinson, difficulties in assessing competing beneficiaries' needs, and difficulties in assessing Dr Robinson's future estate), the first respondent submits that these do not create appellable error. It is submitted that the fact that the appellant initially changed her mind and then, after being given a period to obtain advice and consider her position, consented to the settlement reinforces the correctness of the primary judge's decision to approve the releases.
20. In relation to the father's estate, to which the particular in ground 1(h) applies, it is said that only Dr Robinson's circumstances are relevant as Dr Robinson is the sole beneficiary of the deceased's estate and that evidence as to Dr Robinson's circumstances was available to the primary judge.
21. As to grounds 1(e) and 2(e) (the wavering consent issue), it is submitted that this does not affect the validity of the consent underpinning the releases because it is enough that the appellant expressed a real intention to consent, even if experience might have suggested that it was an attitude she was not likely to maintain (see Harvey v Phillips (1956) 95 CLR 235 (Harvey v Phillips) at 244).
22. In relation to ground 2(g) (the joinder of Dr Robinson), it is noted that Dr Robinson was on notice of proceeding, that she filed affidavits in the proceedings, and that she signed the consent orders and Deed of Release.

Determination

1. At the outset, I note that, to a large extent, the appellant's submissions call for a counsel of perfection. At various times in the course of the appellant's written and oral submissions it appeared to be suggested for the appellant that there could be no proper exercise of the discretion to approve a release without an oral hearing or without the publication of written reasons addressing each of the separate s 95(4) matters. That is not supported by either authority or the practice adopted generally in these matters (and would impose an intolerable burden on the resources of the court). Ultimately, the appellant seemed to concede as much insofar as her counsel accepted that such applications are routinely dealt with in chambers on the papers and without the publication of reasons.
2. To the extent that the appellant does not accept that this was a case that could properly be dealt with in chambers, and seems to have suggested that it was incumbent on the primary judge to have analysed (and explored in written reasons) the potential causes of action by which the appellant might have ended up with a more favourable result (albeit at greater cost and with all the attendant uncertainty and stress of the risk of loss), and then to have examined the appellant in court as to her understanding of the nature of the release that she was giving (and perhaps also as to whether that release was being voluntarily given or had in some way been induced by duress or was a result of some illness or lack of judgment); that seems to raise the question as to whether there was a proper exercise of discretion in the approval of the respective releases (for which it would be necessary to establish error in the House v R sense). However, as adverted to above, in reply submissions Counsel for the appellant made clear that this is not an appeal about practice and procedure. Rather, the central issue on the appeal (which at this stage, leaving aside for the present the application for leave to amend to add a third ground of appeal) must be understood as limited to the ground permitted by the grant of leave, is as to whether the primary judge erred in not having taken into consideration the s 95(4) matters when giving approval for the s 95 releases by the making of consent orders in chambers.
3. The appellant has not in my opinion established that the primary judge failed to have regard to each of the s 95(4) matters.
4. As to the complaint that there was inadequate evidence for the primary judge to have been able to consider the s 95(4) matters, this must be rejected. The primary judge had before him the material on the court file (which included: the affidavits setting out relevant matters such as the factual contentions on which the appellant relied for her family provision claim; the affidavits setting out the financial circumstances of the appellant and of Dr Robinson; the affidavits setting out relevant information as to the assets of the deceased estate, including the different valuations in respect of the Kincumber property; and the earlier iterations of the summons, from which it was apparent that the appellant had at one stage raised and then abandoned allegations of fraud and undue influence). The primary judge also had before him the Deed of Release, containing relevant information as to what had then been agreed between the parties. His Honour also had the benefit of the matters aired during the hearing on 16 April 2018 (including the assertions made by the appellant as to the impugned transactions and her account of the circumstances in which the Deed of Release came to be signed), and the s 95 affidavit in which the appellant deposed to the receipt of independent legal advice (albeit not the content of that advice), as well as the email from Ms Reid explaining the process by which advice had been given to the appellant, from which it can be inferred that consideration had been given by the appellant to that advice (in that the process was described as being at some length and it at least involved taking the appellant through the matters to which she deposed in her affidavit, and the observations that had been made by the primary judge when the matter was in court on 16 April 2018).
5. For the reasons submitted by the first respondent, the fact that the primary judge did not have before him evidence of Dr Robinson's Will or of her testamentary intentions, nor evidence of the financial circumstances of the first (or second) respondent, did not preclude the primary judge coming to an assessment as to whether the Deed of Release embodied an agreement that was financially or otherwise to the advantage of the appellant, was prudent considering the appellant's interests, and was fair and reasonable in all the circumstances.
6. In a practical sense, what the primary judge had to assess was whether it was advantageous, prudent, and fair and reasonable from the perspective of someone in the position of the first respondent to agree to give up any further claim on the deceased's estate and any future claim on her mother's estate for a settlement in the amount for which the Deed of Release provided (and payable in the circumstances there provided).
7. The counterfactual as to potential claims that the appellant might have had were she ultimately to be a beneficiary under Dr Robinson's will (as opposed to being in a position where at best she might be able to make a claim to have half of the Kincumber property designated as notional estate of her mother in due course) is apt to cloud the fact that the ultimate net pool of assets (on the most favourable view of affairs from the appellant's perspective) was little more than the value of the Kincumber property. True it is that there were varying estimates of the value of that property but, on the material before the primary judge, the range of estimates had led to an on-line appraisal at $1,220,386 and an agreed value in the Deed of Release at "about $900,000". Thus, on the most favourable outlook for the appellant of the value of the Kincumber property, she was agreeing to a settlement which represented $200,000 out of a pool of between $900,000 and $1.2m (if the whole of the Kincumber property could be taken into account - though, for that to be the case she would need to incur no doubt considerable legal cost in establishing the equitable basis to set aside the impugned transactions), or $200,000 out of some $450,000 to $600,000 (if only half of the Kincumber property were taken into account). The primary judge was well able to reach a view as to the first three of the s 95(4) matters on the material before him in those circumstances notwithstanding that it would involve assumptions as to Dr Robinson's ultimate testamentary intentions and as to the position of any competing claimants on Dr Robinson's testamentary bounty (relevant for consideration of any subsequent family provision claim).
8. As to the fourth of the s 95(4) matters, it is certainly the case that there was no direct evidence as to the content of the legal advice given to the appellant in relation to the settlement embodied in the Deed of Release. There was, however, evidence from which the primary judge could comfortably conclude that the appellant had received legal advice as to the settlement (namely the email from Ms Reid in which she explained that in the presence of her head of chambers she had gone through everything, with the benefit of the notes she had taken of the primary judge's observations in court), and it was not suggested that Ms Reid had misrepresented the position to his Honour in that regard.
9. As to whether there was evidence of "due consideration" by the appellant to the advice that she had been given, again there was no direct evidence as to the appellant's understanding of the outcome of the settlement and what she was there "giving up". However, the email from Ms Reid is instructive in that regard. The reference to the appellant "finally" having accepted that she should "let go" her emotional approach supports the inference that there was a process by which the appellant considered and then reached a decision in relation to the settlement during the course of the conference. Moreover, the matters raised by and on behalf of the appellant when the matter was before the court on 16 April 2019 do not suggest any difficulty in the appellant understanding what she was "giving up" by the Deed of Release. Rather, what would have been apparent to the primary judge was that the appellant considered that she had been treated unfairly in relation to her share of the deceased's estate and that there may have been fraud or undue influence concerning what had transpired in relation to the Kincumber property.
10. The position of the appellant on the appeal was that it was necessary that she understand more than that she could thereafter make no further claim on the Kincumber property in any way; rather, that she needed to understand this in the context of her potential rights including that if there was a will leaving one-third of her mother's estate to her then she would have received $300,000 (see AT 26.1). However, there was evidence from which the primary judge could comfortably conclude that the appellant was well on notice of her potential rights (as a beneficiary or otherwise) to claim a greater sum than $200,000 out of the pool of assets that comprised her deceased's father's, and subsequently her mother's, respective estates. The appellant herself had made allegations of fraud and undue influence in respect of the impugned transactions and she had asserted that a fair distribution of the estate(s) would be one-third to each of the siblings.
11. Whichever of the two pathways identified by her Counsel as potentially able to deliver her a better result than the amount of the settlement under the Deed of Release is considered, the appellant was clearly well aware that she was giving up any claim to a one-third share of the Kincumber property (or the combined estates) by agreeing to the settlement. And she was also clearly aware that the hearing had been adjourned so that she could obtain advice as to the amendment of her claim to encompass whatever challenge she was advised to make in relation to the impugned transactions since this was the basis on which the hearing had been adjourned for one month. The primary judge was in my opinion able to infer that the process by which the appellant came to confirm, through her counsel, that she wished to proceed with the settlement involved the giving of advice and the due consideration of that advice, notwithstanding that the content of that advice (and of the appellant's understanding of it) had not been articulated in detail in the affidavit material before his Honour.
12. There was thus, in my opinion, a proper evidential basis for the making of the orders in question and this Court must proceed (as the presiding judge indicated it would) on the assumption that the primary judge considered all the material before him in coming to the conclusion that the releases should be approved. The extent to which the primary judge was "across the material" (to use the language in submissions) is not to the point - the question is whether his Honour gave consideration to the relevant matters not whether his Honour gave proper consideration to each of the matters. Moreover, the question is not whether this Court might have adopted a different procedure than the primary judge did when faced with the "wavering consent" of the appellant. It was obviously open to the primary judge to have adopted a course akin to that adopted by Hallen J in Kelly v Kelly in order to have satisfied himself as to the appellant's understanding of what it was that she was releasing when entering into the Deed of Release. However, the inference to be drawn from the sequence of events is that his Honour was satisfied on the basis of the materials put before him that it was not necessary to do so.
13. In that regard, the high point of the appellant's case appears to be that on 13 April 2018 the primary judge's associate had requested the provision of "satisfactory evidence ... of the matters that are required to be taken into account in determining an application for approval pursuant to s 95", and that all that was provided thereafter was the appellant's affidavit and Ms Reid's email referring to the giving of advice (both, it is said, containing conclusionary statements), such that there could not have been a consideration of the s 95(4) matters (see AT 42.30ff).
14. However, the primary judge's request has to be seen in the context that what was being asserted in the communications leading up to the 13 April 2018 email from the primary judge's associate was that there had been some kind of duress or factor vitiating the appellant's consent to the arrangement (which would be relevant in particular to the matters to be taken into consideration under s 95(4)(d)). The communication from the primary judge's associate as to the inability to reach a conclusion on the basis of the material before the court is consistent with a concern as to the withdrawing of consent (not, on its face, as to the balance of the s 95(4)(d) matters of which the primary judge may well have been satisfied at that point based on the material before him). Thereafter, the primary judge heard directly from the appellant as to her concerns, including as to the basis on which there might be potential challenges to the impugned transactions (something that is of relevance in the context of the submission made for the appellant that, when considering the counterfactual to the settlement of the proceedings, the primary judge did not know what competing claims there could be against the future estate - see AT 46.10ff), and then adjourned the hearing to permit the appellant to obtain legal advice (having made certain observations as to her position as his Honour saw it at the time). After that, his Honour received the email from Ms Reid and the affidavit sworn by the appellant making clear that the appellant had had the benefit of (and, it may be inferred, given due consideration to) the legal advice following which she had confirmed the settlement.
15. Thus, as I see it, notwithstanding the wavering nature of the appellant's consent (about which the primary judge was undoubtedly aware), and notwithstanding that the primary judge might have proceeded differently had he been concerned as to any of the s 95(4) matters by the time the consent orders were made, the appellant has not established that the primary judge erred in not giving consideration to each of the s 95(4) matters when determining to approve the particular releases.
16. My conclusion in that regard is reinforced by my view that it cannot be said that the settlement (albeit one involving both a release in respect of a further claim against the deceased's estate and an inter vivos release in respect of the mother's estate) was such that on no reasonable view could it be seen to be not financially or otherwise advantageous to the appellant, or not prudent in her interests, or not fair and reasonable from her perspective. True it is that it represented less than one-third of the likely combined value of the assets of the respective estates. However, the appellant's claim for provision out of the deceased estate was always going to suffer from the difficulty (to which the primary judge had adverted on 16 April 2018) that provision for the appellant would be at the expense of the deceased's widow, an elderly woman with little in the way of realisable assets other than her home and to whom the deceased had been married for some 60 years. As to the position of the appellant in respect of any future claim against Dr Robinson's estate, for that claim to be made against the entirety of the combined assets would have required a number of matters to be established (not least the appellant's standing to make such a claim) and no doubt would have involved cost and uncertainty, as well as the potential that any future family provision claim would be against a lesser share of the estate which could make the share achieved under the settlement comparatively more favourable to the appellant.
17. In those circumstances, albeit that the appellant did not under the settlement end up with a one-third share of the entirety of the mother's future estate, the settlement that was agreed (with the benefit of legal advice in the presence of experienced counsel in this area, Mr Hill) cannot be said to be so disadvantageous, imprudent, or unfair and unreasonable as to bespeak error on the part of the primary judge in approving the settlement including those releases.
18. Thus grounds 1 and 2 of the amended notice of appeal have not been made good.

Application for leave to amend the grounds of appeal

1. That brings me to the application made during the course of the hearing of the appeal for leave to amend the grounds of appeal to include as an additional ground of appeal a further ground (ground 3) to assert that the primary judge erred in failing to consider whether Dr Robinson (who was not a party to the proceedings) was incapable of managing her affairs such as to require approval of the compromise contained in the Deed of Release pursuant to s 76 of the Civil Procedure Act. In support of that additional ground, leave was sought to adduce further evidence, namely two documents (being file notes recording observations by the first respondent's legal representative as to the then short and long term memory of Dr Robinson - see below).
2. The difficulty with that application, as counsel for the appellant quite properly accepted (see AT 48.37), was that such an argument was not put to the primary judge below; and it was an argument that the first respondent says would have required evidence to be put before the primary judge (and which the first respondent would have wished to have the opportunity to meet) of the capacity of Dr Robinson at the relevant time.
3. The evidence sought to be relied upon as to the question of capacity included an affidavit of 10 October 2017 of the first respondent (which was in evidence before the primary judge), and which the appellant maintains gives rise to the inference that Dr Robinson was suffering from cognitive issues (see [26]-[35] of that affidavit). The evidence in question was to the effect that Dr Robinson had the services of a social support carer a few days a week; and the Court was also taken to evidence that it was said suggested paranoid delusions on Dr Robinson's behalf (to the effect that she was concerned that the appellant was trying to steal her possessions). Insofar as it was submitted that this was evidence sufficient to support a finding of incapacity or inability to manage her own affairs, it was evidence that could have been put before the primary judge and could have been dealt with by the first respondent, which is sufficient to require its rejection in this Court because of the prejudice involved.
4. The appellant maintained that the issue had now arisen because of the inference to be drawn from Dr Robinson now having been joined as party to the proceedings and the requirement that a tutor be appointed at this stage. It was submitted that it was open to infer that Dr Robinson should have been a party to the proceedings at an earlier time and that there would have had to have been that same assessment (as to the requirement for a tutor) at that point (see AT 49.44).
5. The new evidence sought to be adduced comprised a file note of a conference with the first respondent's legal representatives (dated 6 July 2017, some ten months before the Deed of Release was executed) in which reference was made to loss of Dr Robinson's short term and long term memory (that file note also making reference to changing Dr Robinson's Will). That must be understood in the context that at the time of the proceedings before the primary judge, Dr Robinson had executed affidavits and the Deed of Release itself, in circumstances where her signature had been witnessed and execution of the documents attested by the first respondent's solicitor.
6. It was submitted that the appointment of a tutor at this stage of the proceedings "leaves the question unanswered as to if at the relevant time of these transactions, … Dr Portia Robinson should have had separate representation, and somebody should have been looking at it from her interests" (see AT 51.35). That evidence would have been relevant if Dr Robinson had been joined as a party, and it was accepted for the appellant that it was for her to have joined Dr Robinson to the proceedings at first instance (see AT 54.21). However, the appellant maintained it was also a relevant matter for consideration at the time of the s 95 release approvals because it provided some evidence that "perhaps prima facie Dr Portia Robinson could not change her will or her testamentary intentions" (see AT 53.42).
7. Ultimately, it was accepted by the appellant that the argument as to capacity would lead nowhere unless there would have been advice that would have led to the conclusion by the primary judge that there should not be approval of the settlement, looking at it from the perspective of a tutor acting for Dr Robinson (see AT 57).
8. The position of the first respondent was that, even assuming that a tutor would have been appointed in 2018, it was difficult to see how from Dr Robinson's perspective the settlement was not advantageous in that it gave her security for tenure and the benefit of the release from claims by the appellant, but that in any event the question before the primary judge was as to whether the s 95 releases should be approved and the arrangement in relation to the Kincumber property that Dr Robinson had entered into with the first respondent did not bear on that (see AT 58).

Determination

1. I am of the view that leave should not be granted to raise the additional ground of appeal and that the additional evidence sought to be adduced in support of that ground of appeal should be rejected.
2. The question of Dr Robinson's capacity, if relevant to the approval of the s 95 releases, was one that should have been raised (and supported by relevant evidence) when the matter was before the primary judge. It cannot be said that the first respondent is not prejudiced by the issue now being raised. The fact that a tutor is appointed now in the appeal proceedings says little if anything as to whether there would have been sufficient evidence to support the appointment of a tutor in April 2018. It is well-known that capacity is issue specific (see Dalle-Molle (by his next friend Public Trustee) v Manos (2004) 88 SASR 193; (2004) 233 LSJS 276; [2004] SASC 102, at [19], per Debelle J) and may fluctuate from time to time. The evidence that Dr Robinson had the assistance of a social support carer of itself says nothing as to her cognitive ability and the evidence that suggests she may have suffered delusions says little about her likely testamentary capacity (see Bull v Fulton (1942) 66 CLR 295 at 341-343, Williams J; King v Hudson [2009] NSWSC 1013) or as to her likely ability to understand (if properly explained to her) the effect of the impugned transactions. Those matters would need to be tested by appropriate evidence and it is now too late for that. Insofar as it was for the appellant to join Dr Robinson as a party to the proceedings at first instance, that difficulty is of her own making. Moreover, the very fact that the first respondent's solicitor must have considered it ethically and professionally responsible to attest Dr Robinson's execution of the relevant documents indicates that there is room for doubt as to what was meant by the file note now sought to be tendered - and that would have needed to be explored when the proceedings were before the primary judge.
3. Accordingly, the application for leave further to amend the amended notice of appeal should be dismissed, as should the application to adduce further evidence.

Cross-Appeal

1. As already noted, the first respondent/cross-appellant filed a cross-summons seeking leave to cross-appeal and a draft notice of cross-appeal on 15 April 2018. The cross-appeal is pressed only in the event that there is a determination that orders 10 and 12 made by Pembroke J on 17 April 2018 should be set aside. In that event, the cross-appellant seeks that the balance of the orders, directions and notations be set aside because the settlement of proceedings (making of provision) was dependent on the releases (orders 10 and 12) being made and remaining effective.
2. On 10 April 2019 the Court ordered that the application for leave to cross-appeal (and cross-appeal) be heard concurrently with the appeal.
3. As already noted, the appellant does not resist an order for the setting aside of the orders made by the primary judge on 17 April 2018 in the event that the appeal is allowed (nor does the appellant now oppose the extension of time for the filing of the cross-appeal, which order was made at the outset of the hearing in this Court). Hence it is not necessary to consider the submissions made by the cross-appellant in support of the extension of time sought nor as to order 3.
4. Further, in light of the conclusion I have reached as to the outcome of the appeal, the cross-appeal does not arise. However, in case that conclusion is incorrect, I set out below the reasons for my conclusion that had the appeal been allowed the appellant should have been ordered, as a consequence of the setting aside of the April 2018 orders, to repay the sum of $20,000 plus interest to the estate within 28 days.
5. The cross-appellant sought leave to rely on additional evidence on the cross-appeal, that being evidence as to the cross-respondent's affidavit deposing to the taking of steps to appeal "straightaway". That evidence was admitted.

Cross-respondent's submissions

1. As the only issue on the cross-appeal (had it arisen) was as to whether order 4 in the notice of cross-appeal should be granted (which is primarily resisted by the cross-respondent on the basis that the cross-respondent has changed her position by spending the $20,000.00 in circumstances that would render it unjust for the court to order restitution), I will outline first the submissions made by the cross-respondent on that issue and the alternative submission that there should be an order that the $20,000.00 payment be retained as interim provision under s 62 of the Succession Act.
2. I have set out above details as to how the $20,000 was distributed to the appellant or at her direction. The cross-respondent submits that it can be inferred that she relied on the primary judge's orders in her decision not to revoke the written authority the cross-respondent had executed on 5 April 2018 (for payment of $10,000 to her counsel) and in permitting that sum to be paid to her barrister for payment of legal fees pursuant to her barrister's retainer.
3. The cross-respondent sought leave to file in court two affidavits annexing bank statements and explaining the circumstances in which the remaining $10,000.00 was spent. With some rulings as to the content of the first of those affidavits, leave was granted for both affidavits to be filed in court and they were read. They establish the payments in and out of the cross-respondent's bank account of the bulk of the sum of $10,000 which was paid to her.
4. As to the change of position/estoppel arguments that were raised, the cross-respondent accepts that, while a person's enrichment is justified where payment is made under court order (referring to Marriot v Hampton (1797) 170 ER 450 (Marriot v Hampton); and Wilson v Ray (1839) 113 ER 32 at 35-36 per Lord Denman), the facts of the present case are distinguishable from the principle in Marriot v Hampton given that the order under which the payment was made may well be set aside on appeal. The cross-respondent accepts that in those circumstances the reversal of the first instance orders by the appellate court gives the claimant a prima facie right to any money originally paid pursuant to those orders (referring to Commonwealth v McCormack (1984) 155 CLR 273 at 277; Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220 at 225 (Rich, Dixon, Evatt and McTiernan JJ).
5. However, the cross-respondent says that there is no reason in principle why the defence of change of position should not apply in such cases (citing Mason, Mason & Carter's Restitution Law in Australia (3rd ed) at [713]). Reference is made to the acceptance by the High Court that the defence of change of position applies to all claims for restitution (citing David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 at 384-385 per Mason CJ, Deane, Toohey, Gaudron and McHugh JJ) (David Securities). It is submitted that, a fortiori, this must be the case where a claimant has delayed in filing his or her appeal well beyond the statutory deadline and has effectively extended the time in which the cross-respondent could reasonably rely on the primary judge's orders as being final (citing Norwich & Peterborough Building Society v Steed [1991] 2 All ER 880; 1 WLR 449 (Norwich & Peterborough Building Society v Steed), per Lord Donaldson at 454). It is submitted (although it is hard to reconcile with the cross-respondent's knowledge of the position that the cross-appellant was taking in that regard) that until the cross-appeal was filed, the cross-respondent was entitled to regard order 6(a) of the primary judge's orders as final.
6. It is accepted that the cross-respondent bears the onus of showing that she relied on the payment of the $20,000 to her detriment (David Securities at 385 per Mason CJ, Deane, Toohey, Gaudron and McHugh JJ)) and that the detriment must be "substantial" in the sense that she would be in a worse position if ordered to pay restitution (citing Australian and Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560 at [157] (Gageler J) (Hills Industries)).
7. It is the cross-respondent's primary submission that she changed her position and spent the entire $20,000 on the basis that she assumed that order 6(a) of the primary judge's orders was final. In other words, the defence is raised as a complete defence. In the event that a distinction is drawn between the $10,000.00 that was deployed for counsel's fees and the remaining $10,000.00, the cross-respondent relies on the defence as a pro tanto defence (citing David Securities at 385 per Mason CJ, Deane, Toohey, Gaudron and McHugh JJ; at 399 per Brennan J).
8. As to Counsel's fees, it is submitted that the $10,000 that was paid directly to counsel was unquestionably an extraordinary expenditure which would not have occurred but for the $20,000 payment under order 6(a) of the primary judge's orders. It is noted that the authority on which counsel's fees were paid was executed on 5 April 2018 but that the defence of change of position may apply to an anticipatory change of position (citing Fitzsimons v McBride, Minister for Liquor, Gaming and Racing (NSW) [2008] NSWSC 782 at [125] (McDougall J) citing Dextra Bank and Trust Co Ltd v Bank of Jamaica [2002] 1 All ER (Comm) 193 at [38] (Lord Bingham of Cornhill and Lord Goff of Chievely) and Alpha Wealth Financial Services Pty Ltd v Frankland River Olive Co Ltd [2008] WASCA 119 (Alpha Wealth) at [23] (Pullin JA), [204] (Buss JA, as his Honour then was, with whom Steytler JA agreed).)
9. In relation to the remaining $10,000, it is submitted that there is an inference to be drawn from the cross-respondent's bank statements that the $10,000 payment caused the cross-respondent to engage in "uncustomary expenditure"; it being noted that before the $10,000 entered the cross-respondent's account on 10 May 2018 the balance never exceeded $800.
10. It is submitted that the expenditure was made in good faith on the assumption that order 6(a) of the primary judge's orders was final. It is said that the cross-respondent was not put on formal notice that order 6(a) was being challenged until 15 April 2019; and that the cross-appellant's conduct in delaying by about 7 months the filing of the cross-summons seeking leave to cross-appeal has added to the cross-respondent's detriment and that the delay has caused prejudice and material detriment to the cross-respondent in the sense of: increasing the time in which she could permissibly regard order 6(a) of the primary judge's orders as final; and reducing the time the cross-respondent would have had to organise her affairs in a way so as to enable her to cope with the liability to repay the $20,000 under court order.
11. The cross-respondent submits that there is clearly a financial and pecuniary detriment in this regard; and that, further, there may also be emotional detriment given the stress that this liability will cause the cross-respondent (referring to Hills Industries at [25] (French CJ), [88] (Hayne, Crennan, Kiefel, Bell and Keane JJ), [150] (Gageler J)).
12. It is said that the cross-appellant was always on notice of the cross-respondent's financial circumstances, given that she had disclosed her full assets and liabilities in her evidence in the family provision proceedings (referring to the documents attached to the summons filed on 21 April 2017 (at page 8)) and that if the cross-respondent is ordered to repay the $20,000, she will be in a worse position than if she had never received the $20,000 in the first place (Hills Industries at [157] (Gageler J)).
13. As to the argument based on estoppel/waiver, it is submitted that, in relation to the delay in filing the cross-appeal within the statutory time limit, the cross-appellant is either estopped from seeking restitution of the payment or has waived such a right. It is said that the act of not filing within the prescribed time limit was a representation to the cross-respondent that the primary judge's orders with respect to the $20,000 payment was final (referring again to Norwich & Peterborough Building Society v Steed at 454 per Lord Donaldson).
14. In the alternative, as a "more practical solution", it is submitted that the court may make an order that the $20,000 that was originally paid be treated as interim provision under s 62 of the Succession Act.
15. Section 62 provides that: (1) The Court may make an interim family provision order before it has fully considered an application for a family provision order if it is of the opinion that no less provision than that proposed in the interim order would be made in favour of the eligible person concerned in the final order. (2) After making an interim family provision order, the Court must proceed to finally determine the application fora family provision order by confirming, revoking or varying the interim order.
16. The cross-respondent notes that in Peta Roberts v Rupert James Moses [2015] NSWSC 1504, Kunc J summarised the key considerations under s 62 of the Succession Act, namely (at [14]): 1. Is the applicant an "eligible person"? 2. If "yes" to the preceding question, will a family provision order be made in favour of the applicant at the final hearing of the application for such an order? This requires the Court, by reference to the evidentiary material then before it, to consider what the Court thinks will be the position as at the date of a notional, future final hearing. The use of the modal or auxiliary "would be" does not mean the applicant must demonstrate an arguable case or a serious question to be tried that the applicant will be entitled to a final order. The Court must be satisfied on the balance of probabilities that the applicant will obtain an order at the final hearing. 3. By reference to the evidentiary material before it as at the date of the hearing for an interim family provision order, what interim order does the Court propose to make, applying the principles that would apply to the making of a final family provision order but recognising its character as interim (the "proposed provision")? 4. Is the Court of the opinion that no less provision than the proposed provision will be made in favour of the eligible person at the final hearing?
17. His Honour said at [15]: In relation to the last of the four questions, the statute does not require the Court necessarily to come to a view as to the precise size of the provision which it thinks will be ordered at the final hearing. For the Court to embark on that exercise would be generally undesirable and frequently impossible. That is why, following the general approach recommended by Young J in paragraph [11(4)] above, in the normal course a proper order, given its interim character, would only provide for the eligible person's needs pending the final hearing. In the vast majority of cases, if the Court is of the view that a person will receive provision for their maintenance, education and advancement at the final hearing then the Court should be able to form the requisite opinion without too much difficulty as a matter of simple mathematics. If the eligible person is entitled to something for the rest of their life at the final hearing, then it is difficult to see how it could ever be less than an interim provision intended to meet the eligible person's needs for a period of a few months. This analysis does not require the Court, in most cases, to form a view as to the amount of the probable final provision. However, there may be cases where that will be necessary.
18. It is submitted for the cross-respondent (perhaps optimistically) that in circumstances where the cross-appellant settled the proceedings for $200,000, there can be no dispute that the cross-respondent would be entitled to provision of at least $20,000.

Cross-appellant's submissions

1. The cross-appellant says (as is clearly the case) that the cross-respondent was on notice of the cross-appellant's intention to seek an order that the $20,000 be repaid to the estate from as early as 17 August 2018; and that, in response to this, the cross-respondent appears to have taken no active steps to prepare for this possibility.
2. It is noted that the cross-respondent accepts that the reversal of the first instances orders by this Court would give the cross-appellant a prima facie right to any money originally paid pursuant to those orders (consistent with Commonwealth v McCormack (1984) 155 CLR 273). It is said that interest should also be paid on the amount received.
3. As to the "change of position" defence, reference is made to the general summary of the key elements of such a defence set out in Alpha Wealth at [202].
4. It is submitted that the cross-respondent has failed to demonstrate that she relied on the payment of $20,000 to her detriment and that she must have been aware from as early as 17 August 2018 of the possibility that the $20,000 may have to be repaid and in those circumstances the cross-respondent cannot be said to have expended the money "in good faith".
5. The cross-appellant notes that: the cross-respondent's summons seeking leave to appeal was filed out of time on 20 July 2018 after she had first attempted to file an appeal in the High Court of Australia and that the cross-respondent says that she "worked on her appeal straight away" (which the cross-appellant submits means straight after the first instance proceedings settled in April 2018) (see the cross-respondent's affidavit of 2 September 2018 (filed 4 September 2018), at [48]). It is said that, if this is the case, then on receipt of the $20,000 on about 8 May 2018 the cross-respondent had already taken steps to appeal the orders made but that she did not inform the cross-appellant of this. The cross-appellant says that this failure enables the court to infer a want of good faith, noting that bad faith negates reliance on the defence of change of position (Mason, Mason & Carter's, Restitution Law in Australia, 3rd Ed, Lexis Nexis Butterworths, 2016, at [2417]). It is said that the cross-respondent should have notified the cross-appellant of her intention to appeal.
6. It is further said that the cross-respondent fails to demonstrate that the detriment she suffered is "substantial" or that it would be "inequitable in all the circumstances" to require her to return the parties to their original position. It is submitted that she will not be in a worse position if she is required to restore the parties to their original position.
7. Further, it is noted that the change of position defence is not available if expended on ordinary expenses, and payment of debts is not in itself detriment. In addition, the burden of being required to make restitution does not suffice to establish change of position (Mason et al, Mason & Carter's, Restitution Law in Australia, 3rd Ed, Lexis Nexis Butterworths, 2016, at [2414]-[2415]).
8. It is said that the payment of counsel's fees cannot be said to be made in reliance on receipt of the settlement moneys since any obligation to pay these fees was incurred irrespective of the outcome of the first instance proceedings, and that the obligation to pay counsels fees was incurred independently of and before the receipt of the money.
9. Further it is submitted that the cross-respondent cannot seriously say that she considered the money was hers to spend, in circumstances where she was intending to appeal from the orders that underpinned the obligation on the part of the cross-appellant to make the $20,000 payment.
10. The estoppel or waiver argument similarly fails in the cross-appellant's submission because the cross-respondent was on notice as early as 17 August 2018 of an intention to seek repayment (and it is noted that the reason for the delay was to save the parties further costs, as made clear in the letter of 20 December 2018).
11. As to the alternative basis on which the cross-respondent resists a claim for the return of the $20,000 plus interest, it is submitted that there is insufficient evidence before the court for this application to be dealt with.
12. In addition, it is noted that neither of the "change of position" or "interim provision" relief has been sought in the notice of appeal or by way of pleadings, and that these matters were raised for the first time on 20 October 2019 in the cross-respondent's submissions.
13. It is submitted that even if this Court were to entertain this application, the claim for interim provision fails because, while the appellant is an "eligible person", the court cannot be satisfied on the balance of probabilities that the cross-respondent will obtain an order for provision at a final hearing (see Peta Roberts v Rupert James Moses [2015] NSWSC 1504 at [14]).

Determination

1. Had this issue arisen for determination, I would have concluded that the change of position "defence" was not made out because the sum paid to counsel was in discharge of a pre-existing obligation and the balance of the moneys were expended for everyday expenditure and would not fall within the change of position defence as articulated in David Securities at 385. As to the estoppel/waiver expense, I cannot accept that any expenditure could genuinely have been in reliance on an assumption that the primary judge's orders were final, in circumstances where the cross-respondent was actively preparing for an appeal from those orders. Moreover, from 17 August 2018 she was squarely on notice of the cross-appellant's position that the moneys advanced under the consent orders ought be repaid as a condition of the grant of leave to appeal. At the very least from that date any expenditure could not have been in reliance on any representation by the cross-appellant as to finality of the primary judge's orders. However, even before that date I am not persuaded that there can have been reliance on any belief as to the finality of the primary judge's orders in circumstances where the cross-respondent was contemplating an appeal therefrom; and there can have been no representation at all from the cross-appellant until the time for the filing of a notice of cross-appeal in any event.
2. As to any order being made to permit the retention of the moneys as an interim distribution, for the very reason that the cross-respondent argues that it would not have been appropriate for this Court to re-exercise the discretion to approve the releases had the appeal succeeded (because of the need for updating affidavits) I do not consider that it would be appropriate to consider the making of an order for interim distribution. The fact that the cross-appellant agreed to a settlement of the claim in April 2018 says nothing as to the likelihood that, had the matter proceeded to a contested hearing, an order for provision would have been made in favour of the cross-respondent. The primary judge's own admonition to the cross-respondent on 16 April 2018 makes clear that there was every chance that the cross-respondent's claim might not have succeeded (whoever it came before for determination).
3. Accordingly, had it been necessary to determine, I would have allowed the cross-appeal and ordered the cross-respondent to refund the sum of $20,000 plus interest.

Costs

1. In the ordinary course, costs would follow the event; thus the appellant would pay the costs of the appeal and the cross-appeal. The respondent indicated that in that event the respondent would make submissions that the costs be borne out of the appellant's share (i.e., the $180,000) of the proceeds of sale of the Kincumber property in due course. I consider that to be appropriate.

Orders

1. For the above reasons, I propose the following orders: 1. Refuse the appellant's application for leave to file a further amended notice of appeal to include an additional ground 3. 2. Dismiss with costs the appellant's notice of motion dated 2 December 2019 seeking leave to adduce additional evidence on appeal. 3. Dismiss the appeal with costs. 4. Extend time for the filing of the cross-appeal but dismiss the cross-appeal on the basis that it is not necessary to determine and order the cross-respondent to pay the costs of the cross-appeal. 5. Order that the costs the subject of orders 3 and 4 may be deducted from the appellant's share ($180,000) of the proceeds of sale of the property referred to in these reasons as the Kincumber property when that property is sold in accordance with the consent orders made by the primary judge on 17 April 2018.
2. GLEESON JA: I agree with Ward JA.

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: 10 February 2020