Tyree v Ward & Ors

Judgment

1. HIS HONOUR: This is an application by the plaintiff, Mr Christopher Tyree, primarily seeking leave to amend a statement of claim. The defendants move on their notice of motion filed on 19 November 2015 that save in so far as the proceedings concern a claim by the plaintiff for further provision out of the estate of the late Sir William Tyree, the proceedings be dismissed.
2. Sir William Tyree died on 25 October 2013. He left three children, namely, the plaintiff, Christopher Tyree, the fourth defendant, Robyn Fennell, and the fifth defendant, Peter Tyree. Each of Christopher, Robyn and Peter has children. The first defendant, David William Ward, the second defendant, John Ramos, the third defendant, David McNeil, and the fourth defendant, Robyn Fennell, are the executors of Sir William's estate. Probate has been granted to them in respect of a will dated 15 May 2013 and a codicil dated 18 September 2013.
3. A statement of claim was filed on 24 October 2014 that named Christopher Tyree as the first plaintiff and five of his children as the second to sixth plaintiffs. Christopher Tyree sought a declaration that at the date of his death Sir William held the whole of his estate upon a constructive trust to ensure that the benefit which was to flow to Christopher Tyree and his children from the assets forming part of Sir William's personal estate as well as from the assets forming part of the "AW Tyree Family Trust" and the "Sutherland Park Trust" would be no less than the benefits which were to flow to Robyn Fennell and her children, and the benefits which were to flow to Peter Tyree and his children.
4. Christopher Tyree sought a declaration that the first to fourth defendants (the executors of Sir William's estate) both in their capacity as executors and in their capacities as shareholders and directors of various companies of which Sir William was during his life a shareholder, were estopped from denying that the benefit which was to flow to the plaintiffs from the assets forming Sir William's personal estate and the assets of his trusts was to be no less than the benefit to flow to Robyn Fennell and her children and to Peter Tyree and his children. He sought a declaration that Sir William made representations and promises to him in the nature of binding contract that he would make and leave unrevoked at the date of his death a valid will which made provision for Christopher Tyree and his children, and would treat them no less favourably than the deceased's other children and grandchildren under the terms of his will and the deceased's trusts, and that Robyn Fennell and Peter Tyree would enter an arrangement with Christopher Tyree to give a direction to the executors to the combined effect that Robyn Fennell, Peter Tyree and Christopher Tyree would receive the same amounts by way of distribution of assets pursuant to the deceased's will and his trusts. There was a claim for a declaration that Sir William breached a contractual promise to Christopher Tyree with the consequence that the executors held the whole of the deceased's estate on a constructive trust to ensure that the benefit flowing to Christopher Tyree and his five children under Sir William's will and his trusts was no less than the benefit flowing therefrom to Robyn Fennell and her children or the benefit flowing to Peter Tyree and his children. There was an alternative claim by all the plaintiffs for orders for provision under s 59 of the Succession Act 2006 (NSW).
5. On 10 December 2014 the defendants filed a notice of motion seeking the statement of claim be struck out and the proceedings be dismissed save for the claim made under the Succession Act for family provision orders.
6. In support of that notice of motion the defendants submitted that Christopher Tyree's case was that based upon two agreements and an alleged estoppel he had certain expectations as to how Sir William's estate would be administered and that the most fundamental issue of substance was that the plaintiffs did not plead that under the will those expectations either had not been or would not be met. The defendants submitted that they did not understand the case that the plaintiffs sought to bring, if indeed there were one.
7. The defendants' notice of motion came before Young AJ, initially in March 2015. The plaintiffs propounded an amended statement of claim that was subject of the hearing on that date. His Honour indicated that certain paragraphs of the proposed amended statement of claim should in any event be struck out with leave to replead and the matter was stood over to late May 2015. On 20 May 2015 the plaintiffs propounded a second version of an amended statement of claim that they hoped addressed the matters raised at the hearing before Young AJ in March. His Honour did not grant leave for the filing of the proposed amended statement of claim. His Honour ordered that the existing statement of claim be struck out, apart from the claim for a family provision order under s 59 of the Succession Act. His Honour did not make the order sought in the defendants' notice of motion of 10 December 2014 that the proceedings be dismissed except for that claim. But nor did he give leave to replead. The version of the proposed amended statement of claim the subject of the hearing on 20 May 2015 again sought a declaration that Sir William Tyree immediately before his death held all or part of his estate on a constructive trust for the benefit of Christopher Tyree's children, or a declaration that the executors held the deceased's estate on a constructive trust to ensure that Christopher Tyree and his children received no less a benefit than did Robyn Fennell and her children and Peter Tyree and his children. There was an alternative claim for equitable damages that was unsupported by any plausible pleading.
8. On 29 May 2015 the Court made orders by consent that the claims by the second and third plaintiffs (two of Christopher Tyree's children) be dismissed with the intention that each of them be prevented from bringing fresh proceedings or claiming the same relief in fresh proceedings. On 25 June 2015 the Court made orders by consent dismissing the family provision claims brought by the fourth, fifth and sixth plaintiffs (being the other three of Christopher Tyree's children who brought proceedings).
9. The Court of Appeal dismissed Christopher Tyree's application for leave to appeal from Young AJ's orders (Tyree v Ward [2015] NSWCA 296). Ward JA and Sackville AJA observed (at [14]-[15]): "[14] Not only does the applicant for leave to appeal present no issue of principle, but the applicant has not shown an arguable basis for concluding that the primary Judge erred in his approach. Insofar as the application for leave to appeal seeks relief on behalf of the applicant's adult children, it is misconceived as they are not parties to the application. [15] There is no injustice in refusing leave. As was pointed out in argument, the orders made by the primary Judge do not preclude the applicant attempting to replead his case. There is not an invitation for him to do so, since there is nothing to indicate that a sustainable case (other than the claim under the Succession Act) can be formulated. But the orders made have not dismissed the proceedings or expressly foreclosed a further application to amend."
10. On 14 October 2015 Christopher Tyree filed a new notice of motion seeking, amongst other relief, an order that leave be granted to amend the statement of claim. At the same time he filed an affidavit dated 5 October 2015 that attached a proposed new statement of claim.
11. On 19 November 2015 the defendants filed a new notice of motion that again sought an order that the proceedings be dismissed save for the claim made under the Succession Act.
12. On 24 November 2015 Christopher Tyree filed an amended notice of motion that sought a variety of relief, including leave to amend. On 23 December 2015 he filed a further amended notice of motion that sought leave to amend the statement of claim in the form of a document dated 18 December 2015 as well as other relief.
13. The amended statement of claim that Christopher Tyree seeks leave to file does not include any claim for a declaration that either Sir William or the executors hold any property on a constructive trust for the benefit of Christopher or his children. He seeks an order that the executors pay amounts which he contends Sir William intended should be paid when he signed a deed of settlement dated 16 May 2013 with Christopher and he seeks orders that the executors use whatever powers might be available to them to pay the plaintiff an amount equivalent to the value of Peter Tyree's 33 per cent interest in a partnership that is the owner of a property known as Sutherland Park. He seeks other orders to enforce agreements made on 16 May 2013 between him and Sir William, and between him and his siblings, and to give effect to certain representations alleged to have been made orally by Robyn Fennell to him in the course of negotiations leading to entry into the two agreements.
14. The substance of the claim that relies upon a Deed of Settlement made between Christopher Tyree and Sir William dated 16 May 2013, an agreement made between Christopher Tyree and his siblings also dated 16 May 2013 and oral representations said to have been made by Robyn Fennell in the course of negotiations for those agreements, was raised in each of the earlier pleadings. The complexities of this matter lie in the plaintiff's attempts to identify a cause of action from those agreements and alleged representations. The complexities arise because the plaintiff says that Sir William controlled substantially more assets than those that form part of his estate and claims that the agreements of 16 May 2013 applied not only to Sir William's actual estate, but to the assets of partnerships or trusts established by him.
15. The defendants submit that the present application should be dismissed as an abuse of process. They submit that it appears from the transcript of the hearing before Young AJ on 20 May 2015 and the orders his Honour made that his Honour was intending to dispose of all of the claims in the proceedings other than the claim for further provision. The application for leave to appeal from his Honour's orders was dismissed. The defendants submit that it is an abuse of process to endeavour to advance before a different judge substantially the same interlocutory application where there has been no material change of circumstances (Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46; Bajramovic v Calubaquib [2015] NSWCA 139 at [40]-[41]). In the hearing before Young AJ counsel then appearing for Christopher Tyree accepted that the version of the statement of claim then being propounded could not be substantially improved. Young AJ refused leave to file the pleading then propounded. The defendants submit that the present application is thus an abuse of process.
16. I do not accept the defendants' submission that the present application is an abuse of process. The proposed statement of claim with which Young AJ dealt sought relief by way of a constructive trust over property of the deceased and was sought to be maintained on principles of proprietary estoppel. Young AJ noted that: "The earlier documents [viz. the earlier versions of the statement of claim] had some flavour of contract that now seems, and I use that word advisedly, to have been abandoned yet there are still flavours of contract in the third version of the document which … pleads that the failure of Sir William to leave in existence a will which [conforms] with the settlement amounted to a departure by him of his promise. Ms Needham says that that is part of the primary estoppel case but, with respect, that is not clear."
17. His Honour then dealt with the claims of proprietary estoppel which he found were not adequately pleaded so as to give rise to a sufficiently clear cause of action. His Honour concluded that: "Accordingly, it seems to me that although it is a very difficult case to frame, that the statement of claim in its final version is in the old terms multifarious because of different claims by and against different parties, but principally it is bad because it is not sufficiently clear what are the causes of action. It contains inconsistencies. … There is no suggestion that it can be improved by further amendment and accordingly it should be struck out …"
18. It is clear from the reasons of the Court of Appeal referred to above that the Court of Appeal did not consider that Young AJ had decided the case on the basis that the plaintiff could not have leave to file a further statement of claim if an arguable claim could be formulated. In the course of argument in the Court of Appeal the possibility of raising a cause of action simply to enforce the terms of the agreement between Christopher Tyree and his siblings was raised as being a potential cause of action.
19. It is not necessary for the plaintiff to show any material change of circumstances. But it is necessary for him to demonstrate an arguable cause of action. That is a difficult task. In the course of the hearing before Young AJ on 20 May 2015 his Honour suggested that a former view was that if the pleading was sufficiently bad the whole would be struck out and it was not the function of a judge to have to spend a lot of time to analyse a pleading clause by clause, but noted that might not be the current philosophy (Transcript 20 May 2015 T5).
20. Christopher Tyree was represented up to the hearing before Young AJ. However, he did not have legal representation before the Court of Appeal, nor on the hearing before me, and he did not have legal representation in formulating the version of the statement of claim for which leave is now sought. On any view the statement of claim for which leave is now sought is deficient. The questions are whether the matters alleged by the plaintiff give rise to an arguable cause of action, even if not yet properly pleaded, and if so, whether in the light of the repeated attempts to formulate an arguable cause of action, leave should in any event be refused. It is more than a year since the defendants sought to have the plaintiff's claims, other than a claim for provision under the Succession Act, dismissed and no adequate pleading has yet been formulated.
21. To address these questions it is necessary to go to some matters of primary fact. A difficulty is that the relevant background as to how the assets in respect of which Christopher Tyree makes a claim are held are not pleaded. They appear only from some references in the deceased's will and otherwise from a chart prepared by the plaintiff.
22. Probate was granted on 16 December 2013 of Sir William Tyree's will dated 15 May 2013 and a codicil to that will dated 18 September 2013. The inventory of property filed on the probate application disclosed that Sir William's estate was estimated to be at a value of approximately $26 million, primarily consisting of the proceeds of a sale of his residence in Darling Point. Other assets forming part of the actual estate of Sir William Tyree included shares in private companies and debts owed by private companies. Also included in his estate was an interest in a partnership called The Tyree Pastoral Partnership. There were other assets listed in the inventory including debts owed by individuals which are not relevant to the present application.
23. Clause 4.5 of the will records that the Tyree Pastoral Partnership owns two assets called Wirrilah and Sutherland Park and that the members of the partnership and their respective partnership interests were "the Sutherland Park trust [sic] 60 per cent, Peter Tyree 33 per cent, Myself four per cent, and Robyn Fennell three per cent". The property known as Sutherland Park is land at Bowral that is being subdivided into residential lots. The Tyree Pastoral Partnership was established by a deed made on 29 September 1972. The deed provided that the initial capital of the partnership consisting of an amount of $50,000 would be credited to the partners' capital account in accordance with classes of units being Alfred William Tyree holding one "A" unit, Christopher Tyree holding 33 "B" units, Peter Tyree holding 33 "B" units and Robyn Tyree holding 33 "B" units. The partnership deed provided that: "Whilst the 'A' unit is held by the said Alfred William Tyree or a transferee from him or a person to whom the 'A' unit is specifically bequeathed by him the 'A' unit shall confer on the holder or holders thereof for the time being the following rights: 1. a right to exercise except on any question which would or might (without the consent of the partner concerned) affect any partner's real and effective control and disposal of his share of the partnership income - at every general meeting of partners … as many votes as shall be equal to fifty-one per cent of the total number of votes which can be cast by all members present in person or by proxy or attorney."
24. There was no clear evidence as to how the "A" class unit is presently held. If it was not transferred by Sir William in his lifetime, the voting right attached to the "A" unit may have lapsed because it does not appear that there was any specific bequest by Sir William of the "A" unit under his will. But Christopher Tyree asserted that the executors could be ordered to use the powers of Sir William in respect of his "A" unit in the partnership. He did not explain how that power continued so that it could be exercised by the executors.
25. Mr Christopher Tyree asserted that the "A" class unit is held by Tyree Australia Pty Ltd. If that is so it is presumably pursuant to a transfer in Sir William's lifetime and the voting rights persist. As I understood a diagram produced by Christopher Tyree, Tyree Australia Pty Ltd holds the shares in Tyree Family Holdings Pty Ltd of which the directors are Robyn Fennell and David Ward (the first and fourth defendants). Tyree Family Holdings Pty Ltd is also said by him to be the trustee of the trust known as the Sutherland Park trust which holds 60 per cent of the "B" class units in the Tyree Pastoral Partnership. The terms of the trust deed of the Sutherland Park trust were not in evidence, but it appeared to be common ground that all children and grandchildren of Sir William Tyree were discretionary objects to whom income or capital of the Sutherland Park trust could be distributed. The grant of probate recorded that the deceased owned 10 shares in Tyree Family Holdings Pty Ltd. There was no evidence as to whether these were the only shares or were the majority shares of the company, but the argument proceeded on the basis that Sir William in his lifetime controlled the trustee of the Sutherland Park trust and controlled Tyree Australia Pty Ltd. The latter company is said by Christopher Tyree to have been the trustee of another discretionary trust called the AW Tyree Family Trust.
26. By clause 4.1(a) of his will Sir William gave all his shares in Tyree Australia Pty Ltd to "My Executive Group". The initial members of the "Executive Group" were named as Peter Tyree, Robyn Fennell, Ms Heather Ridout and Mr Ralph Waters. He appointed Tyree Australia Pty Ltd the trustee of a testamentary trust established under the will.
27. The principal assets, so far as the plaintiff is concerned, are the actual estate of Sir William, and the properties known as Sutherland Park and Wirrilah, particularly the former which, according to the plaintiff, can be expected, when subdivided and sold, to realise some hundreds of millions of dollars.
28. It is convenient to start with what has been called the siblings deed. It was made on 16 May 2013 between Robyn Fennell, Peter Tyree and Christopher Tyree. It recited that Christopher had commenced proceedings in 2010 and 2011 against Sir William and that Christopher and Sir William had agreed to settle the proceedings on the terms contained in a deed of settlement dated on or about the same date. It further recited: "D. To facilitate the settlement of the Proceedings, Robyn and Peter have agreed to share any entitlement they may eventually receive in respect of the estate of Sir William and the distribution of the net sale proceeds arising from the sale of both Sutherland Park and Wirrilah, subject to the provisions of this Deed."
29. It may be noted that the agreement of Robyn and Peter was to share both any entitlement they might receive in respect of Sir William's estate and to share net proceeds arising from the sale of both properties. The deed did not proceed on the mistaken premise that the Sutherland Park and Wirrilah properties were part of Sir William's estate.
30. "Sutherland Park" was defined as follows: "Sutherland Park means the land comprised in [Lots xxx DP yyy] (subject to any subdivision of the land subsequent to 7 May 2013) located at … Burradoo NSW and any buildings and/or improvements located on that land."
31. There was a similar definition of "Wirrilah", that is, as being land comprised in a particular lot and deposited plan "(subject to any subdivision of the land subsequent to 7 May 2013)".
32. Clauses 2 and 3.1-3.3 provided as follows: "2. DIRECTION TO EXECUTORS 2.1 Direction for distribution Subject to Clause 3, Robyn and Peter agree to provide a direction to the Executors to distribute their entitlement between the parties to this Deed. 2.2 Method of direction Upon satisfaction of the conditions in Clause 3.1 and Clause 3.2, the form of direction set out in Schedule 1 shall be signed and delivered by Robyn and Peter to the Executors within 7 days of receipt of each further notice of intended distribution from the Executors. 3. CREDIT FOR PAYMENTS 3.1 Acknowledgment Christopher acknowledges and agrees that the following credits must be determined and allowed before any direction is given under Clause 2.2: (a) Receipt by Christopher of the total amount paid by Sir William in accordance with the Deed of Settlement, being the sum of $150,000 per annum (payable monthly and adjusted in accordance with Clause 2.3 of the Deed of Settlement) up to the month preceding the date of Sir William's death. (b) Receipt by the children of Christopher of all amounts that Sir William has requested that the Trustee of the Sutherland Park Trust distribute to Christopher's children arising from the disposal of Sutherland Park and Wirrilah. (c) The sum of $50,000, representing a notional contribution towards the legal costs expended by Sir William in the Proceedings. The total of the above sums is referred to as 'the Total Credit'. 3.2 Direction conditional on determination and payment of total credits Christopher acknowledges and agrees that Robyn and Peter shall not be obliged to give any direction in accordance with Clause 2.1, until the later of: (a) the distribution of the respective entitlements of Robyn and Peter from the net sale proceeds of Sutherland Park and Wirrilah from the Sutherland Park Trust by the Executors, and (b) the satisfaction of the following conditions: (i) The final determination by the Executors of the amount of the Total Credit. (ii) The distribution of a sum not less than the Total Credit by the Executors to each of Robyn and Peter; Provided that Christopher shall be living at the time the direction is carried out. 3.3 No distribution to Christopher's estate (a) In the event of Christopher's death, Robyn and Peter shall not be obliged to make any further direction to pay a share of their entitlements to Christopher's estate or to his children, and Robyn and Peter's obligations under this deed shall be at an end. (b) Any direction given by Robyn and Peter prior to Christopher's death, but not fulfilled by the Executors at the time of Christopher's death, shall be void and of no effect."
33. The form of direction contained in schedule 1 was addressed to "The Executors of the Estate of Sir Alfred William Tyree". The form of direction to be given by Robyn Fennell and Peter Tyree stated: "We direct that the payment of the intended distribution to be made to us be made as follows: 1. As to a one-third share, to Robyn Joy Fennell; 2. As to a one-third share, to Peter Lyndon Tyree; 3. As to a one-third share, to Christopher William Tyree; Subject to clause 3 of the Deed of Agreement between Robyn, Peter and Christopher."
34. Clause 3.2(a) contemplates that a distribution of the net sale proceeds of Sutherland Park and Wirrilah from the Sutherland Park Trust would be made by the executors. The trustee of the Sutherland Park Trust is entitled to 60 per cent of the units of the Tyree Pastoral Partnership that carry rights to income and capital of the partnership. The clause contemplates that the executors will be in a position to exercise the rights of the trustee of the Sutherland Park partnership or to control the exercise of those rights. On its face the direction to be given to the executors would relate only to intended distributions of the estate. Sir William was not a party to this deed. It is arguable that the agreement between Robyn, Peter and Christopher that a direction be given to the executors was that the direction should extend not only to the intended distribution of the estate, but to distributions that the executors would be in a position to control from the Sutherland Park trust. But given that Sir William was not a party to the deed, and that Robyn is only one of four executors, it is difficult to see how the executors as a group could be subject to such a direction.
35. There is a question whether Christopher could in any event enforce the agreement referred to in recital D to require Robyn and Peter to share equally any net sale proceeds they receive from the sale of Sutherland Park or Wirrilah, but no such proceeds have yet been received. Indeed the direction to be given to the executors under schedule 1 is only to be given after at least some distributions have been made to Robyn and/or Peter from the net sale proceeds of Sutherland Park and Wirrilah and not until at least a sum equalling the Total Credit has been distributed to each of Robyn and Peter. The defendants say that there has not yet been any sale of the Sutherland Park and Wirrilah properties so that the precondition in clause 3.2 for the giving of a notice to the executors has not been met.
36. Christopher Tyree contends (although he has not pleaded this and there is no evidence of it) that sales to date of the Sutherland Park and Wirrilah properties exceed $10 million. He does not say that there has been any distribution by the Sutherland Park trust of any net sale proceeds. He contends that it is unlikely that the precondition in clause 3.2 will ever be met. The obligation to give a direction continues only for so long as Christopher Tyree is alive. Christopher Tyree says that he suffers a disease that will inevitably result in his comparatively early death.
37. On his death Robyn and Peter's obligations under the sibling deed cease (last line of clause 3.2 and clause 3.3).
38. The deed of settlement between the deceased and Christopher Tyree was also made on 16 May 2013. It recited that a dispute had arisen between Sir William and Christopher Tyree regarding the latter's involvement with a particular company in the 1980s and alleged subsequent settlement agreements between the parties. The recitals broadly stated allegations that Christopher had made against his father, including his having been tricked or defrauded into transferring his interest in a company to entities controlled by Sir William. The recitals refer to the commencement of proceedings in 2010 and 2011 by Christopher Tyree against Sir William. Recital F to the deed of settlement stated: "F Chris has two siblings Robyn Joy Fennell ('Robyn') and Peter Lyndon Tyree ('Peter'). To facilitate this settlement, Robyn and Peter have agreed to enter into their own arrangements with Chris whereby each of them will give a direction to the executors of Sir William's Estate such that Robyn, Peter and Chris will receive the same entitlement, provided that Chris shall give credit for: receipt by him of all amounts pursuant to clause 2 of this Deed; and receipt by the children of Chris of all amounts to which they are entitled from Sir William's estate pursuant to clause 4.6(d)(iii) his Will; and a sum of $50,000.00 representing a notional contribution towards the legal costs of Sir William expended by virtue of the Proceedings."
39. That recital did not fully state the conditions of the agreement between Christopher, Robyn and Peter. The latter were not parties to the deed of settlement.
40. The disputes between Sir William and Christopher were resolved by the terms of settlement. Christopher gave releases in respect of all claims he had against Sir William, against any of the companies in the Tyree Group of Companies and against Robyn, Peter and others. Clause 2 of the deed of settlement provided for the making of monthly payments by Sir William to Christopher until Sir William's death. Clause 4 of the deed of settlement contained a warranty by Christopher expressed to be given to both Sir William and Robyn and Peter that he would not bring any claim against Sir William's estate under the Succession Act, and would indemnify Sir William's estate for any amount including costs that the estate might be ordered by a court to provide or pay in any claim that Christopher might bring pursuant to the Succession Act despite the release and warranty. The deed contemplated that an application for approval of that provision would be made under s 95 of the Succession Act, but no such application for approval was made.
41. Clause 5.1 provided as follows: "5.1 Sir William warrants that at the date of his death there will be in existence a valid Will by him having the following general provisions: (a) that Robyn will be an executor and trustee of his Will; (b) that a Testamentary Trust be established of which the Trustee shall be a corporate trustee directed by an Executive Group including as members Robyn and Peter and shall hold a Trust Fund constituted by the terms of the Will; (c) that the Darling Point property be sold and the proceeds of sale be paid into the Trust Fund of the Testamentary Trust after payment of specific bequests and legacies including payments of $2 million to each of Robyn and Peter; (d) that Elaaj Investments Pty Ltd ('Elaaj'), Robyn and Peter are Capital Beneficiaries of the said Trust Fund of the Testamentary Trust; (e) that the 'Wirrilah' and 'Sutherland Park' properties be sold and that 33% of the net sale proceeds be distributed to Peter, 3% to Robyn, 60% to the Sutherland Park Trust, and 4% to the Trustee of the Testamentary Trust. (f) that the intent of Sir William is that the children of Chris shall be treated no less favourably than the children of Robyn as a group, and the children of Peter as a group."
42. The warranty in clause 5.1(e) was that Sir William's will would provide that the Wirrilah and Sutherland Park properties be sold and the proceeds distributed. Sir William made a will on 15 May 2013, that is, on the previous day. Christopher deposes that the contents of that will were not disclosed to him at the time. It does not form part of the matrix of facts against which to construe the deed of settlement (or the siblings deed) as it was not known to Christopher. Clause 4.5 and 4.6 of the will relevantly provided: "4.5 [Tyree Pastoral Partnership] (a) The Tyree Pastoral Partnership (TPP) is a partnership incorporated under a Deed of Partnership dated 29 September 1972. The TPP owns two assets referred to below as Wirrilah and Sutherland Park. The members of the TPP and their respective partnership interests are: (i) The Sutherland Park Trust 60% (ii) Peter Lyndon Tyree 33% (iii) Myself 4% (iv) Robyn Joy Fennell 3% (b) I give all of my right title and interest in the Tyree Pastoral Partnership to the Trustee of the Testamentary Trust to form part of the Trust Fund of and be dealt with under the terms of the Testamentary Trust to the extent that I am able to do so. (c) It is my wish that my Executive Group are elected by the partners of the TPP to succeed me as Manager of the TPP to administer the assets owned by the TPP which are known as Wirrilah and Sutherland Park. (d) It is my wish that my Executive Group oversee and provide direction to the trustee of the Sutherland Park Trust if at any time said trustee is an entity that is not the Trustee of the Testamentary Trust. 4.6 [Wirrilah and Sutherland Park] (a) I give all of my right title and interest in my properties known as 'Wirrilah' (being Lot [x] - DP [yyyyyy], Lot [aa] - DP [bbbbbb] and Lot [cc] - DP [dddddd], located at Erridge Park Road, Burradoo, NSW), to the Trustee of the Testamentary Trust to be sold by my Executors at such time and in such a manner as the Executors deem appropriate in their absolute discretion, I would however request that prior to appointing a selling agent due consideration is given the costs and/or benefits that are likely to accrue as a result of any development plans or applications as may be in progress as at the date of my death. (b) It is my wish that the Net Sale Proceeds arising from the sale of either or both of Wirrilah and Sutherland Park, whether sold in whole or in part, are distributed in the following proportions: (i) Peter Lyndon Tyree (ii) Robyn Joy Fennell (iii) Tyree Australia Pty Ltd in its capacity as Trustee of the AW Tyree Testamentary Trust 4.00% (iv) The balance to remain as capital of the Sutherland Park Trust under the control of my Trustees to be distributed at any time in the future in accordance with the Trust Deed and in their absolute discretion subject to the wishes contained in the following clause 4.6(c). (c) It is my wish that the Net Sale Proceeds received by the Sutherland Park Trust are distributed by Trustees in the following manner: (i) The following payments to the Children of Christopher William Tyree on the proviso that Christopher William Tyree and I have reached agreement on and executed the terms of a Financial Settlement: Jonathan Christopher Tyree 15% subject to a maximum distribution of $1.5m Andrew William Tyree 15% subject to a maximum distribution of $1.5m Emma Katherine Tyree 5% subject to a maximum distribution of $0.5m Amy Claire Tyree 5% subject to a maximum distribution of $0.5m Lisa Anne Tyree 5% subject to a maximum distribution of $0.5m (ii) Robyn Joy Fennell 50% subject to the sum of this distribution plus the distribution arising from clause 4.6 (b) being no more or less than the amount received by Peter Lyndon Tyree as a distribution arising from clause 4.6 (b) (i) (iii) the balance to remain as capital of the Sutherland Park Trust under the control of my Trustees to be distributed at any time in the future in accordance with the Trust Deed and in their absolute discretion. (d) It is my wish that once all property owned by the Tyree Pastoral Partnership has been disposed of the minimum amounts that are received by the recipients of the distributions in clauses 4.6 (b) & 4.6 (c) should be as follows (i) Peter Lyndon Tyree [clause 4.6(b)(i)] $2.0m (ii) Robyn Joy Fennell [clause 4.6 (b) (ii)/(c) (ii)] $2.0m (iii) The Children of Christopher William Tyree; the following amounts on the proviso that Christopher William Tyree and I have reached agreement on and executed the terms of a Financial Settlement: Jonathan Christopher Tyree $650,000 Andrew William Tyree $650,000 Emma Katherine Tyree $225,000 Amy Claire Tyree $225,000 Lisa Anne Tyree $225,000 In the event that these minimum distributions are not achieved from the Net Sale Proceeds from the disposal of all property owned by the Tyree Pastoral Partnership it is my wish that my Trustees distribute sufficient funds from the capital of the AW Tyree Testamentary Trust as to provide each recipient with the requisite minimum distribution stated in this clause 4.6(d)."
43. Whereas the warranty in clause 5.1(e) was that the will would contain a provision that the Wirrilah and Sutherland Park properties be sold, clause 4.6(a) conferred a discretion on the executors to postpone sale.
44. Christopher Tyree does not complain that those now in control of the Tyree Pastoral Partnership have embarked on a course of developing the Sutherland Park land and selling it in lots. He accepts that this is likely to maximise the returns. His complaint is that his children are unlikely to benefit from that process in the same way as Peter's children and Robyn's children are likely to benefit through distributions, either directly to Peter in accordance with his share of the partnership, or through the Sutherland Park Trust as a result of the exercise of discretions by the trustee of that Trust.
45. The Executive Group that Sir William wished to be elected by the partners to manage the partnership were the directors of Tyree Australia Pty Ltd that was appointed as the initial trustee of a testamentary trust established under the will. As noted above, the members of the Executive Group named in the will were Robyn Fennell, Peter Tyree and a Mr Ralph Waters and a Ms Heather Ridout.
46. Sir William's will does not include any bequest to Sir William's grandchildren. A testamentary trust was established. Its purpose does not appear, at least primarily, to have been to provide benefits to family members. The children of Christopher Tyree are dealt with no less favourably than the other grandchildren of the deceased. Christopher's complaint is not that greater benefits are provided under the will for the children of Robyn or Peter, but that Robyn and Peter's children will benefit because Peter has retained a share in the Tyrell Pastoral Partnership and Robyn is an executor, a director of the trustee companies, and a member of the Executive Group. But these matters do not establish a breach of the warranty in clause 5.1(f). Nor would the position be improved if Sir William's will had included a clause to the effect that "my intention is that the children of Christopher be treated no less favourably than the children of Robyn as a group and the children of Peter as a group". Such a clause would have been in conformity with the "warranty" (that is, the promise) in clause 5.1(f) that Sir William's will contain such a provision. But such a provision would not compel the directors of any corporate trustee or holder of "A" class units to exercise their powers in any particular way.
47. It seems to me that as a matter of principle Christopher has standing to seek specific performance of his agreement with Sir William for the provision of benefits to his children (Beswick v Beswick [1968] AC 58; Coulls v Bagot's Executor and Trustee Co Ltd (1967) 119 CLR 460 at 478, 499). But the deed of settlement did not contain a term to the effect that Sir William would do all in his power to ensure that after his death Christopher's children should receive as much benefit from his estate and the assets of the partnership and trusts he had established in his lifetime as might be obtained by the children of Robyn and Peter. Clause 5.1(f) simply does not so provide.
48. In his proposed amended statement of claim Christopher Tyree alleges that during the course of settlement negotiations for the agreements of 16 May 2013 Robyn Fennell represented that "the obvious flaws in the deed of agreement would be rectified by Sir William's will, which was at the time a work in progress." The representation was said to have been made on 7 and 15 May 2013. The plaintiff also alleged that Robyn Fennell represented to him that the will to be entered into would ensure that there would be equality of benefit between the children of the plaintiff as a group on the one hand, and children of the fourth and fifth defendants as groups on the other, and that the combined effect of the deed of settlement, deed of agreement and the will to be entered into by Sir William was that after the giving of credit by the plaintiff for particular payments and entitlements, there would ultimately be equality between the amounts to receive by the plaintiff and by Robyn and Peter. He also alleged that Robyn as chief executor and a trustee (sic) of the Sutherland Park Trust promised him that the payment of $150,000 per annum would continue after Sir William's death. He did not say when that promise was allegedly made.
49. The first of the alleged oral representations could not give rise to an enforceable contract. It could not be enforced as a collateral contract as it is inconsistent with the agreement made on 16 May 2013. In any event the representation was too uncertain to be enforced as a contract. What, it might be asked, were the "obvious flaws" and how was it promised that they would be rectified?
50. The second representation referred to above (para 18 of the proposed statement of claim) was not consistent with the terms of the deed of settlement that did not contain a promise that Sir William would "ensure" that there would be equality of benefit between Christopher's children and the children of Robyn and Peter, but rather that the will would contain a provision stating that it was his intent that the children of Christopher be treated no less favourably than the children of Robyn and the children of Peter. The other representation alleged to have been made orally by Robyn on behalf of Sir William that there would ultimately be equality between the amounts to be received by Christopher and by Robyn and Peter is not consistent with the terms of the two deeds. It is true that recital F to the deed of settlement recited that Robyn and Peter had agreed to enter into their own arrangements with Christopher whereby each of them would give a direction to the executors such that Robyn, Peter and Christopher would receive the same entitlement, provided that Christopher gave certain credits. But that was not the term of the agreement in fact entered into between Robyn, Peter and Christopher. The agreement contained conditions as to when equalising payments to Christopher would be required to be paid. A representation made in the course of negotiations could not obviate the effect of those conditions. It may be observed that Christopher had legal advice in entering into the agreements. Clause 4.4 of the siblings deed provided that it contained the entire agreement between the parties about its subject matter and replaced any previous understanding, agreement, representation or warranty relating to that subject matter.
51. As to the last of the representations referred to above, I do not think it could be enforceable as a matter of contract. If relied on as a representation, Christopher does not plead that at the time of making the alleged representation Robyn did not intend to honour it. The evidence is that Christopher continued to receive monthly instalments after Sir William's death until proceedings were commenced.
52. Christopher's complaint is in substance that the two agreements of 16 May 2013 do not bring about practical equality of outcome for him and his children with the likely practical outcome for Robyn and Peter and their children in relation to the distribution of assets in Sir William's estate and from the partnership and trusts which he established. Thus, the relief claimed in the latest version of the proposed amended statement of claim is as follows: "PART I (1) A declaration that settlement of a dispute between Sir William and the plaintiff was based upon unconditional equal estate entitlements for Sir William's three children. (2) An order that the executors pay the plaintiff what Sir William intended when he signed the Deed of Settlement. On 16 May 2013 the plaintiff settled a commercial dispute with Sir William on the proviso that he and his siblings (Peter and Robyn) would receive an equal amount from Sir William's estate. This settlement is encapsulated in a Deed of Settlement outlining Sir William's suggested method of achieving that equality. This involves Peter and Robyn providing directions to the executors to distribute what Peter and Robyn receive from Sir William's estate equally between the three siblings. However, because the amounts due to Peter and Robyn are not paid through Sir William's actual estate and his executors, Sir William's suggested method to achieve sibling equality initially appears to fail. However, if the executors employ the powers Sir William warranted, Sir William's legal commitments can arguably be fulfilled as intended. (3) In the alternative to the order sought at (2) above, an order that the executors utilise the powers available to them to pay the plaintiff an amount to which is equivalent to the value of Peter's 33% of Sutherland Park (SP), a property in Bowral 33% owned by Peter. (4) Subsequent to the orders sought at (2) and (3) above and permission from the plaintiff's children, the plaintiff be permitted to take responsibility for the personal warranty Sir William provided to the plaintiff's children in clause 5.1(f) of the Deed of Settlement, viz: That benefits flowing from his estate to the plaintiff's children as a group would be no less than the benefit flowing to the children of the fourth and fifth defendants as groups. This transfer of warranty overcomes the uncertainty of the amount to be paid to the plaintiff's children, because benefits provided to the children of Peter and Robyn during the lifetime of their parents cannot easily be predicted or measured, and thus the warranty is difficult to enforce. PART II (5) In the alternative to the order at (4) above, an order that my children be permitted to re-join these proceedings, as plaintiffs two to six, to prosecute the personal warranty Sir William provided in clause 5.1(f) of the Deed of Settlement. (6) An order which places the whole of Sir William's actual estate into trust. Only then will funds be available to the executors to pay the plaintiff's children amounts which match the greater of the long term dividends from Sutherland Park flowing to the children of Peter or Robyn, either directly or through their parents. (7) An order that the fourth and fifth defendants pay the plaintiff the sum of $1,220,833 (plus interest) within a period of time deemed reasonable by the court. On 16 May 2013 the fourth and fifth defendants (Peter and Robyn) entered into a Deed of Agreement with the plaintiff. This Deed provides that Peter and Robyn shall provide a direction to the executors to pay one third of the $4 million due to them from Sir William's estate to the plaintiff once Sir William died. Sir William died in October 2013. Soon after Sir William's death, the executors paid the $4 million directly to Peter and Robyn as per the 18 September 2013 codicil to Sir William's Will. No direction has been given to the executors, and the plaintiff has not been paid a one third share as the Deed of Agreement requires. A reasonable time has passed for a demand to be made for specific performance on the $1,220,833 payment. (8) An order that the executors of Sir William's estate reinstate the agreed $150,000 per annum paid to the plaintiff which ceased once these proceedings commenced. (9) A declaration that causes of action in this matter extend beyond executor jurisdiction. (10) In the alternative to the orders sought at (2), (3), (7) and (8) above, equitable damages. (11) In the alternative to (2), (3) and (6) above, an order permitting case number 2011/10623 to be reinstated with Sir William's estate as the defendant."
53. The declaration sought in paragraph 1 is not consistent with the terms of the deed of settlement and the siblings deed. Those documents do not provide that the plaintiff should have an unconditional "equal estate entitlement" with his siblings. The deed of settlement with Sir William makes no reference to it. The plaintiff's agreement with his siblings is conditional, not unconditional.
54. The order sought in paragraph 2 does not seek to enforce the terms of the deed of settlement, but to enforce what the plaintiff claims to have been Sir William's intention when he entered into the deed. In the absence of an order for rectification, and no claim for rectification has been made, no such order could be made. Sir William did not agree that Christopher should have an equal share of his estate. The dispute was settled on different terms, namely that Peter and Robyn made a conditional agreement that Christopher would be paid an equal amount that they received from Sir William's estate, and arguably, from the net proceeds of sale of the Sutherland Park and Wirrilah properties. The order sought in paragraph 2 asserts that Sir William's "suggested method" to achieve sibling equality initially appears to fail. That is an acceptance that the terms of the agreements entered into do not achieve the outcome that the plaintiff says was intended. The defendants cannot be required to employ their powers as executors in ways which go beyond giving effect to Sir William's contractual obligations.
55. The proposed order 3 faces the same problem. Christopher does not have an unconditional right to receive an amount equivalent to Peter's 33 per cent share of the Tyree Pastoral Partnership. His only right is to enforce the terms of the sibling deed which does not give him a right to the value of Peter's interest in Sutherland Park, but only to an equal distribution of the net proceeds of the sale of the Sutherland Park properties, and then, only on satisfaction of the conditions in the siblings deed.
56. The proposed order 4 is that the plaintiff be permitted to "take responsibility" for the personal warranty given by Sir William in clause 5.1(f) of the Deed of Settlement. It is not clear what this means. It seems that the plaintiff contends that he should be appointed as either executor, or director of a trustee company, or of the company controlling the voting units in the partnership, so as to exercise the powers of the trustee of the Sutherland Park Trust and the voting units of the partnership so as to make distributions to his children. It is not arguable that the terms of the deeds, coupled with the representations allegedly made on behalf of Sir William, could enable any such order to be made. Even if Sir William had the power to appoint directors to the relevant companies and even if the executors have acquired the power that Sir William formerly had, perhaps through acquiring the shares in the relevant companies (and there is no evidence nor any pleading about this) the warranty that was given could not support an order requiring the executors to use such powers to achieve such an equality of outcome. That was not the promise that Sir William made. In any event, even if the executors could be directed to exercise their powers in another capacity in order to fulfil a promise Sir William made, there would be no power for the court to appoint the plaintiff in their place to exercise such a power.
57. The order sought in paragraph 5 could not be made. Nor is it necessary to do so. Quite apart from the settlement that the plaintiff's children have reached with the defendants, they were not parties to the agreement with Sir William and the proper party to seek to enforce the warranty that Sir William gave is the plaintiff, not his children.
58. I am not sure what is meant by the proposed order 6 that the whole of Sir William's actual estate be placed into trust. Sir William's will contains complex provisions. When the executors have completed their tasks of administration they will hold the property on the trusts of the will. The will also provides for the establishment of a testamentary trust and specifies the terms of that trust. The plaintiff's object of securing payments to his children that match "the greater of the long term dividends from Sutherland Park flowing to the children of Peter or Robyn either directly or through their parents" would not in any event be achieved by somehow ordering different distributions from Sir William's actual estate. It could only be achieved by making distributions through the Sutherland Park Trust for moneys received from the sale of the partnership assets. For the reasons previously given the plaintiff's claims do not arguably justify any such order.
59. By order 7 the plaintiff seeks to enforce the terms of the siblings deed. He claims that Peter and Robyn are required to pay him one-third of the $4 million apparently paid to them after Sir William's death in accordance with a codicil. But the siblings deed does not contain an unconditional promise by Peter and Robyn to share equally distributions made to them from the estate or to give a direction to the executors to achieve that outcome. The order sought ignores the conditions in the siblings deed that have not even arguably yet been met.
60. There is no arguable basis for the order sought in paragraph 8. The order sought is inconsistent with the promise made by Sir William in the Deed of Settlement. The plaintiff relies upon the representation allegedly made by Robyn Fennell apparently prior to entering into the Deed of Settlement. He said that he relied upon the promise made by Robyn Fennell in agreeing to accept the Deed of Settlement. But the representation by Robyn Fennell is not enforceable as a contract made on behalf of Sir William. The alleged representation, if made, was as to a future matter, but it was not made in trade or commerce and is not alleged to have been misleading or deceptive in contravention of s 42 of the Fair Trading Act 1987 (NSW). The representation, if made, may have been a statement of Robyn Fennell's then intention, but the plaintiff does not allege that she did not hold the intention.
61. Order 9 seeks a declaration that the causes of action alleged "extend beyond executor jurisdiction". This is meaningless.
62. No cause of action is alleged to support a claim for equitable damages sought in order 10. Order 11 seeks an order permitting the 2011 proceedings to be reinstated. But those proceedings were dismissed and Christopher released Sir William from all claims. Consideration was provided for the release.
63. In his pleading the plaintiff called the Deed of Settlement, the deed of agreement with his siblings, and the representations allegedly made by Robyn Fennell as "the Global Settlement". He alleged that he changed his position to his detriment by giving up his opportunity to pursue his legal rights against Sir William or against Sir William's estate upon Sir William's death in reliance upon the "Global Settlement". He alleged that Sir William and Robyn Fennell encouraged him to believe that he and his children would receive benefits equal to those received by Robyn Fennell and Peter Tyree "in accordance with the Global Settlement". He alleged that Robyn and Peter were estopped from departing from the terms of the "Global Settlement". In substance, therefore, he seeks to enforce the terms of the two agreements and the alleged representations. For the reasons I have given those agreements and representations do not arguably provide a basis for the relief sought. The plaintiff alleged that the executors were bound to give effect to the "Global Settlement" by exercising their duties and discretions as trustees to ensure that he received an equivalent amount to the distributions from Sutherland Park received by Robyn Fennell and Peter Tyree. But the Deed of Settlement and the Deed of Agreement (also called the siblings deed) do not so provide.
64. Counsel who appeared for Christopher Tyree before Young AJ disclaimed a case based solely on contract and sought to maintain a case based on principles of proprietary estoppel giving rise to a constructive trust. That attempt was rejected by Young AJ. On the present application Mr Tyree, appearing for himself, attempted to maintain a case in contract together with the alleged oral representations said to have been made by Robyn Fennell. But the terms of the two deeds and the alleged oral representations do not provide an arguable basis for the relief sought. It would only be if the deeds could be rectified to give effect to what the plaintiff claims to have been his and Sir William's intention that there might be an arguable basis for any such claim. No claim for rectification has been pleaded. The difficulties of maintaining such a claim are manifest. All parties had legal representation when the deeds were entered into. There is no occasion to give leave to the plaintiff to consider a claim that has never been advanced and would be purely speculative. The agreements that the plaintiff entered into do not give effect to what he claims to have been the intention of the parties arising from a mediation in respect of the proceedings he had brought against Sir William. It does not follow that he has any viable cause of action, save for a potential cause of action under the Succession Act for a family provision order.
65. The plaintiff's notice of motion sought other relief. No submissions were made in support of the other relief claimed in the notice of motion. Nor was there evidence to support the other relief claimed which also appears to have been based upon the plaintiff's assertion as to the effect of the agreements made. The appropriate order is that each of the plaintiff's notices of motion filed on 14 October 2015, 24 November 2015 and 23 December 2015 be dismissed with costs. Those notices of motion named not only Christopher Tyree as a plaintiff, but five of his children as plaintiffs. It does not appear however that they consented to being joined as plaintiffs. They played no part in the proceeding. I think the appropriate order is that Christopher Tyree pay the defendants' costs of the notices of motion.
66. The defendants' notice of motion filed on 19 November 2015 sought the order that had been sought in their notice of motion of 10 December 2014 that save in so far as they concern a claim by the plaintiff for further provision pursuant to the Succession Act, the proceedings be dismissed. Young AJ did not make an order in those terms, but he struck out the then existing statement of claim. He did not grant leave to the plaintiff to file a fresh statement of claim but the Court of Appeal was of the view that the order striking out the existing statement of claim did not preclude a further application for leave to amend.
67. These proceedings have been on foot for over a year whilst the plaintiff has attempted to formulate arguable claims. I do not think the estate should be put to further expense in meeting any further reformulations of the case the plaintiff attempts to make. The only statement of claim which the plaintiff has obtained leave to file has been struck out. For the sake of abundant caution and so as to make it clear that the plaintiff does not have leave to seek to file another claim going beyond the claim for a family provision order under the Succession Act, I think it appropriate to make the order sought by the defendants, namely that save in so far as they concern a claim by the plaintiff for further provision pursuant to the Succession Act 2006 the proceedings be dismissed.
68. For these reasons I make the following orders:
69. The notice of motion filed on 14 October 2015, the amended notice of motion filed on 24 November 2015, and the amended notice of motion filed on 23 December 2015 by the plaintiff Christopher Tyree be dismissed.
70. Save in so far as they concern a claim by the plaintiff for further provision pursuant to the Succession Act 2006, the proceedings be dismissed.
71. The plaintiff, Christopher Tyree, pay the defendants' costs of his notices of motion filed on 14 October, 24 November and 23 December 2015 and of the defendants' notice of motion filed on 19 November 2015.
72. The proceedings should be stood over to the Family Provision List on a convenient date.