SHEPHARD -v- GALEA and BYRNE as Executors and Trustees of the Estate of the late Joseph Galea [2019] WASC 164 (17 May 2019)

Supreme Court of WA|2019-08-12|Before: Martin J

This matter has been the subject of a fully argued summary judgment application and two attempts at mediation.
In the course of the summary judgment application our clients filed numerous affidavits setting out the evidence on which they rely to demonstrate that their deceased father was not reliant on them in the manner you have pleaded, had not located any substantial amount of cash in the house at Second Avenue, Bassendean, and in which the proceeds from the sale of Moat Street during their father's lifetime were accounted for.
Your client filed various affidavits in the summary judgment application all of which demonstrated that she and her immediate family had no contact with her father for a number of years being the period in which you allege the deceased's will was overborne. It appears therefore your client had no actual evidence to support her case and will instead have to rely on inferences and cross-examination.
You will also have received the defence filed by our clients which pleads the matters which we relied on in the summary judgment application and the evidence filed to support that. Nothing in that defence should have come as a surprise to you or your client.
Our clients are now preparing to get the matter up for trial and will be incurring substantial legal fees in doing so.
As you are aware we have requested that the matter be entered into the CMC List as we seek to have it closely managed to a trial, hopefully in the second half of 2018.

(a) The sum of $50,000 be paid out of the estate to the plaintiff in settlement of all claims by your client against ours, and against the estate, to be paid within 7 days of settlement.

(b) All of the parties bear their own costs in relation to the various claims and any other litigation arising out of or in relation to the administration of the estate and all extant cost orders be discharged.

(c) All parties release and discharge each other and the executors of the estate from all of the claims that the parties made or may make in relation to or arising out of the death of their late father and the administration of his estate: that is, a mutual discharge and release.

(d) For the avoidance of doubt, your client expressly acknowledges that this settlement is in settlement of any potential claim your client might have had under the Family Provision Act.

(e) The parties sign all necessary consent orders and a deed to give effect to the settlement.

Please respond to this offer by 12 noon on Friday 2 March 2018.

This offer is made in accordance with the principles in Calderbank v Calderbank and our clients will produce this offer of settlement in the event that this litigation continues to trial and the claim by the plaintiff is unsuccessful, in which event our clients will seek an indemnity cost order against her.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

Research Associate to the Honourable Justice Martin

Profession Conduct Rules 2010

Johnson v Buttress [1936] HCA 41; (1936) 56 CLR 113

Kakavas v Crown Melbourne Ltd [2013] HCA 25; (2013) 250 CLR 392

Lemon v Mead [2017] WASCA 215

West v Smith [2018] WASC 12

Woodley v Woodley [2018] WASC 333

CITATION : SHEPHARD -v- TUANIE PAUL GALEA and CARMEN BYRNE as Executors and Trustees of the Estate of the late Joseph Galea [2019] WASC 164 (S)

Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115; (2009) 41 WAR 1

Lo Presti v Ford Motor Company of Australia Ltd [No 2] [2008] WASC 12 (S)

Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96

University of Western Australia v Grey [No 21] [2008] FCA 1056; (2008) 249 ALR 360

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