Yoseph v Mammo & Ors

• 4 - IN THE SUPREME COURT REVISED OF NEW SOUTH WALES EQUITY DIVISION

3343/00 - RAMZIA SAWA YOSEPH v JOSEPH FRANCIS MAMMO & ORS

1 These proceedings involve a dispute as to entitlements to a house property which has been, for many years, the family home of the plaintiff, who was born in 1926. The property was acquired in 1971 in such a way that the plaintiff and her late husband, together with three of their five children (being the three who were then of age), became the registered proprietors as joint tenants. The plaintiff's husband has since died. 2 The plaintiff claims that she alone is beneficially entitled to the property. That position is, I think, accepted by one of the three co-owners (the first defendant), but not by the other two (the second and third defendants), who take different views of the matter. 3 The proceedings were listed for hearing today and tomorrow. On Friday last, new solicitors acting for the third defendant gave notice of an intention to seek an adjournment plus other orders, including an order joining the other two children of the plaintiff as defendants and an order for the filing of points of claim and points of defence and cross-claims, with consequential directions. The third defendant also gave notice of an intention to seek an order for compulsory mediation under s.110K of the Supreme Court Act 1970. The third defendant has this morning, by leave, filed in court a notice of motion seeking the orders I have just outlined. 4 The grounds on which the third defendant seeks this relief, apart from the order for compulsory mediation, are set out in an outline of submissions which I shall retain on the court file. Essentially it said that the third defendant is not ready to proceed for a variety of reasons and that the case generally is not in a proper state to go to trial. One particular matter is a perceived need for the third defendant to put on more evidence and cross-claims and to broaden the proceedings to include the two children of the plaintiff who are not currently parties. Another is the late filing of evidence by the second defendant and, while an affidavit has been filed by the second defendant's solicitor giving reasons for lateness, which are valid reasons, the fact remains that there was lateness. 5 The plaintiff and the first and second defendants oppose the application for adjournment saying that the case is, from their perspective, ready to go to trial and should be heard, added to which there is a concern not to prolong or increase the stress upon the plaintiff at her advanced age. 6 I am satisfied that an adjournment should be granted. There is, I consider, sufficient substance in what is said in the third defendant's outline of submissions to warrant the view that strict adherence to the timetable which was set should, in the interest of justice, yield to a grant of further time in which issues which one party now sees as pertinent and which may well be fairly arguable may be ventilated in the appropriate way, in accordance with the principles laid down by the High Court in J L Holdings v State of Queensland (1997) 189 CLR 146. 7 At the same time I am sympathetic to the desire of the other parties who wish, as it were, to get the whole matter over and done with and not to prolong the stress which litigation always involves and which, I accept, will be particularly acute for a mother aged 76 involved in a dispute with her children or some of them. But the greater need, as I see it, is for the competing claims to be fully and completely articulated so that all aspects of the controversy can be properly aired and everything relevant can be litigated. 8 That brings me to the question of mediation. Again it is said by the plaintiff and by the first and second defendants that mediation will just prolong the situation of stress and anxiety for the plaintiff and unduly extend the process. It is for that reason that the plaintiff and the first and second defendants oppose the making of any order under s.110K. 9 My view is that this is the very kind of case for which s.110K is designed. The parties to this litigation are members of a family, a mother and three of her children. They are apparently all still on speaking terms and possess a proper concern for one another's welfare. This is a not, as I perceive it at this point, the unfortunate kind of case which often comes before the court where family members no longer have respect for one another and are at loggerheads in an unseemly way. This family, as I see it, maintains its dignity and mutual respect. 10 Persons in that situation are, I think, best able to benefit from the opportunities that mediation presents. The flexibility of the process and its capacity to get around entrenched legal position taking is its beauty and a feature which can, I think, be particularly beneficial in a context such as the present. This case does not involve sophisticated commercial parties of the kind which made me think it futile to order mediation against a party's wishes in Morrow v chinadotcom Corp [2001] ANZ Conv R 341. It much more closely resembles Higgins v Higgins [2002] NSWSC 455 (20 May 2002), where an order for mediation was made by Austin J in a family situation against the wishes of certain family member parties to the litigation. His Honour reviewed a number of cases (Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 427 (23 May 2001) and Remuneration Planning Corp Pty Ltd v Fitton [2001] NSWSC 1208 (14 December 2001), in addition to Morrow v chinadotcom) and drew from them: "… the single conclusion that the Court's discretion under s.110K is very wide and the Court should approach an application for an order without any predisposition, so that all relevant circumstances going to the exercise of the discretion may properly be taken into account." 11 When the totality of the circumstances of this case is examined, it becomes clear, in my view, that the parties are likely to be assisted by a compulsion upon them to engage in mediation. The compulsion will break the ice which may well have caused them to desist from mediation to this point, even though its possibility was referred to in directions made by the registrar in October last year. Once that ice is broken, the relationships between the parties and the natural affection that they bear to one another may well take over in a beneficial way that causes a productive solution to emerge. It is always better for parties - particularly those closely related to one another - to live with a solution that they themselves have found, with or without outside assistance, than it is for them to come away from court with some having won and others having lost. The mediation opportunity is therefore one which should be grasped and in which the parties should make up their minds to engage constructively, now that the court has decided that that is where they should go. 12 I would urge all parties to take the mediation opportunity seriously, to do everything they possibly can, in a structured mediation environment, to find a solution with goodwill and to heal the difficulties with which they are confronted. We are, as I have said, talking about a group consisting of a mother and all of her children, brothers and sisters. 13 I propose to make orders and directions for adjournment and further conduct of the proceedings in terms of paragraphs 1 to 7 of the third defendant's notice of motion, subject to any matters of detail on which the parties may wish to address me regarding time-tabling and like matters. 14 As to paragraph 8 which concerns compulsory mediation, I will, as I have said, make an order under s.110K, but I do not think that paragraph 8 of the notice of motion reflects an appropriate order. I would urge the parties' representatives to look at the decision of Austin J in Higgins v Higgins and, in particular, at the aspects at the end where the parties came back to his Honour with specific proposals for the conduct of the mediation, including a choice of mediator. I would like to think that the parties here likewise could now agree upon a choice of mediator and that I could make an order or orders referring to a particular mediator and a particular time frame. It is appropriate that the mediation occur after the further procedural steps have been taken in accordance with the new timetable and that should be borne in mind in formulating the terms of the more detailed orders as to mediation. 15 I will stand the notice of motion over for a short time so that these matters may be explored by the parties. I shall also deal with the question of costs when the matter comes back before me. **********

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