Hunt v Hunt [2023] NSWSC 1578 (14 December 2023)

Last Updated: 14 December 2023

Supreme Court New South Wales

Case Name:	Hunt v Hunt
Medium Neutral Citation:	[2023] NSWSC 1578
Hearing Date(s):	21 June, 4 July and 3 August 2023
Decision Date:	14 December 2023
Jurisdiction:	Equity
Before:	Lindsay J
Decision:	(1) The defendant’s motion to enforce an alleged settlement is to be dismissed on the basis that there was no concluded agreement. (2) The plaintiff’s motion for a judgment on admissions is to be granted. (3) The parties are to be allowed an opportunity to bring in draft orders, including, if they see fit, orders for a sale of land in co-ownership.
Catchwords:	COMPROMISE – Settlement of proceedings – Competing views on whether proceedings settled – No binding settlement agreement JUDGMENT ON ADMISSIONS – Admissions in pleadings and written submissions – judgment granted
Legislation Cited:	Civil Procedure Act 2005 NSW
Category:	Principal judgment
Parties:	Plaintiff: Brian William Hunt Defendant: Alan Peter Hunt
Representation:	Counsel: Plaintiff: D Neggo Defendant: Self represented Solicitors: Plaintiff: Macpherson Kelley Defendant: Alan Hunt Solicitors
File Number(s):	2020/00359023

JUDGMENT

INTRODUCTION

1. Before the Court are competing notices of motion (both filed on 7 June 2023) designed to bring an end to an intractable dispute between two brothers (Brian and Alan Hunt) about the administration of their parents’ deceased estates.
2. They, with their deceased brother Robert Hunt, are the children of the marriage between Orlando Hunt and Nellie May Hunt.
3. The father Orlando died on 15 July 1979, leaving a will dated 16 June 1968, probate of which was granted on 12 September 1979 to Robert.
4. The mother Nellie May died on 7 August 1997, leaving a will dated 7 May 1996, probate of which was granted on 12 August 1999 to Robert.
5. Robert died on 23 August 2014, leaving a will dated 11 October 1992, probate of which was granted on 23 December 2014 to Alan.
6. Alan is thus the legal personal representative of each of the respective estates of his parents and Robert. He is the executor of Robert’s estate by a grant of probate. By virtue of that office, he is the executor of each of the estates of his parents by representation.
7. There has been a measure of co-operation between Brian and Alan concerning administration of the three estates but Alan has procrastinated in transferring to Brian two property interests to which, it is agreed, he is beneficially entitled.
8. The principal proceedings were commenced by a statement of claim filed by Brian on 18 December 2020 and amended on 10 May 2022. In short, Brian’s claims for relief are directed, by one means or another, to securing an entitlement to two properties and obtaining compensation, upon the taking of accounts, for Alan’s alleged mismanagement of the deceased estates.
9. By a statement of cross claim filed on 10 December 2021 Alan claims a money judgment for outgoings paid in respect of the property entitlements claimed by Brian and for renovation costs incurred in respect of one of the two properties concerned.
10. The proceedings came before me on a notice of motion filed by Alan on 5 December 2022 seeking a review of a decision made by a Registrar on a dispute about a subpoena for the production of documents and a claim of privilege. If orders are made on one or the other of the two notices of motion presently before the Court, that notice of motion will have become otiose. Its present significance is limited to having provided an occasion for the parties to reflect upon what it is they are really fighting about and the utility of interlocutory disputes about the production of documents and the provision of accounting information.
11. At the heart of disputation between Brian and Alan are two properties held by Alan in his representative capacity:

(a) Lot 16 in Strata Plan 5427 (“the Avoca Property”); and

(b) Lot 29 in Strata Plan 10238 (“the Turramurra Property”).

12. The title to the Avoca Property currently records Robert as the registered proprietor. As executor of Robert’s estate, Alan has it within his power to be registered as proprietor of the property and to transfer to Brian his share of the property.
13. The title to the Turramurra Property currently records Alan as the registered proprietor.
14. It is common ground that, subject to such (if any) adjustments that might be necessary arising from administration of the deceased estates in question, Brian is beneficially entitled to:

(a) the Turramurra Property; and

(b) a two-ninths share of the Avoca Property.

15. The parties became entrenched in a disagreement about how these properties were to be administered prior to a transfer to Brian of his interests in them. In broad terms, Brian accused Alan of waste in the administration of the estates and claimed damages against him. Alan, for his part, declined to transfer Brian’s entitlements to him unless and until indemnified for expenses incurred in administration of the estates.
16. Underlying the parties’ disputation is a principal point of contention. Alan wants to retain the Avoca Property for himself. He wants Brian to forego his interest in the property in return for a financial adjustment in his favour.
17. By his notice of motion Alan seeks orders (implicitly under section 73 of the Civil Procedure Act 2005 NSW) to enforce what he says is a settlement agreement designed to achieve the following:

(a) a transfer of the Turramurra Property to Brian;

(b) a release by Brian of his two-ninths share of the Avoca Property;

(c) a financial adjustment by Alan in favour of Brian in the sum of $203,000 for that release;

(d) financial adjustments by Brian in favour of Alan for renovations to the Turramurra Property, outgoings for the Turramurra Property, conveyancing costs associated with transfer of the Turramurra Property to Brian and outgoings for the Avoca Property; and

(e) a payment by Brian in favour of Alan, in a specified sum, for costs and disbursements incurred by Alan in these proceedings.

18. Alan’s notice of motion does not, in terms, seek enforcement of a settlement agreement but is to be understood as doing so in substance as the sum of a series of particular orders sought to give effect to what Alan claims to have been a settlement agreement.
19. Upon the hearing of his notice of motion Brian (without admissions but in order, he said, to achieve a commercial resolution of the proceedings) abandoned his wastage claim, agreed to pay Alan everything he wants by way of financial adjustments on his cross claim and to pay Alan’s costs in an agreed sum, when Alan transfers to him the Turramurra Property and his two-ninths share of the Avoca Property. Having conceded all claims made by Alan as an impediment to the transfer to him of his property entitlements, Brian seeks a judgment on admissions on his claim for orders enforcing those entitlements. He has paid into his solicitor’s trust account, pending orders of the Court, sufficient funds to cover Alan’s financial adjustment claims.
20. Alan resists Brian’s motion because he wants to acquire Brian’s interest in the Avoca property and he contends that his alleged settlement agreement entitles him to achieve that.
21. The possibility that the parties should work towards a settlement of their principal proceedings rather than engaging in further interlocutory disputes was raised by me on 21 April 2023. Orders were made by me on 27 April and 15 May in aid of settlement negotiations.
22. On 24 May 2023 the parties informed me that “there are competing views as to whether these proceedings have been settled, or can be settled once there is a resolution of what is to happen to the Avoca Property”.
23. The notices of motion presently before the Court were filed on 7 June 2023 to provide an orderly framework for the parties’ competing views about whether the proceedings had been settled. The notices of motion were the subject of short argument on each of 21 June, 4 July and 3 August 2023 together with written submissions.
24. The parties attempted to negotiate an agreed outcome to the proceedings even after their respective motions were filed, and they appear to have come perilously close to doing so more than once, but ultimately (on 3 August 2023) they asked the Court to determine the proceedings on the motions, accepting the possibility that the principal proceedings might have to remain on foot if I came to the view that both motions should be dismissed.

ALAN’S CLAIM OF SETTLEMENT

25. Logically, the first question is whether, as Alan contends and Brian disputes, a settlement agreement was made between the parties. As argued by the parties, that question is to be determined by reference to whether an agreement can be found in a series of offers and counter-offers culminating in an acceptance of the terms of an agreement.
26. The case for the existence of an agreement is largely confined to the proper construction of correspondence bearing dates between 25 April and 6 June 2023 inclusive.
27. The correspondence was conducted between Brian’s solicitors on the one side and Alan (himself a solicitor) on the other side. It was conducted via email; sometimes via an email attaching a letter, sometimes by an email text. The parties’ submissions have focused principally upon communications between 25 April 2023 and 23 May 2023 inclusive, but the correspondence adduced in evidence continues beyond 23 May 2023 to 6 June 2023.
28. For the sake of completeness, I list the whole of the correspondence, identifying the sender by date and (if need be) the time an email was sent: plaintiff (Brian) 25 April 2023; defendant (Alan) 26 April 2023; plaintiff 27 April 2023; defendant 18 May 2023; plaintiff 22 May 2023 (3.36 pm); defendant 22 May 2023 (5.06 pm); defendant 23 May 2023 (11.21 am); plaintiff 23 May 2023 (4.02 pm); defendant 23 May 2023 (5.10 pm); plaintiff 23 May 2023 (5.27 pm); defendant 23 May 2023 (6.12 pm); plaintiff 24 May 2023; defendant 25 May 2023; plaintiff 6 June 2023 (12.58 pm); defendant 6 June 2023 (3.12 pm); and plaintiff 6 June 2023 (6.36 pm). References to the times an email was sent are approximate only. They vary depending upon whether one examines the email sent or the email received.
29. The correspondence between the parties commenced with a letter dated 25 April 2023 written by Brian’s solicitors in response to an invitation by me (at a directions hearing on the unrelated notice of motion in the principal proceedings for review of a Registrar’s decision) on 21 April 2023.
30. A formal notation made by me on that occasion was in the following terms:

“NOTE that, at the invitation of the Court, the parties propose to give consideration to the possibility that the principal proceedings might be settled or that an interlocutory agreement might be reached to permit the defendant’s claim [that is, the claim of Alan] to an entitlement to enforce a right of indemnity against the Turramurra and Avoca properties in which the plaintiff [Brian] claims a beneficial interest might be determined in a manner consistent with title to the interest claimed by the plaintiff in those properties being transferred to the plaintiff subject to a caveatable charge in favour of the defendant.”

31. Brian’s offer made in the letter dated 25 April 2023 is here extracted at length because subsequent correspondence proceeded by reference to numbered paragraphs of the offer.
32. Brian’s solicitor’s addressed his offer to Alan in the following terms:

“1. You are to transfer to the plaintiff [Brian], within 28 days of acceptance of this offer, title to the Turramurra property.

2. You are to pay to the plaintiff, within 28 days of acceptance of this offer, an amount representing the plaintiff’s 2/9ths share of the Avoca property being $203,000 upon which the plaintiff’s entitlement to a 2/9ths share of the Avoca property will be released to the Estate of Orlando William Hunt [effectively, that is, to Alan]. In that regard, we enclose an valuation of the Avoca property, which has previously been provided to you, which values the Avoca property at $1,250,000 in 2019, at which time, 2/9ths of that value was approximately $278,000.

3. The payment under paragraph 2 above is to be adjusted as follows:

(a) The plaintiff to allow to you the alleged costs of the Turramurra property renovations, being $41,571.40.
(b) The plaintiff to allow to you the alleged costs of the outgoings in relation to the 2/9ths share of the Avoca property, being $15,268.02.
(c) The plaintiff to allow to you the alleged costs of the outgoings in relation to the Turramurra property, in the sum of $48,143.64.
(d) The plaintiff to allow to you the reasonable conveyancing costs incurred in transferring the Turramurra property.

4. The plaintiff will release you from all claims, the subject of the present proceedings, including:

(a) The wastage claim in respect of the Turramurra property; and
(b) Any claim he has in respect of the Avoca property.

5. The proceedings, including your cross-claim, be dismissed.

6. Each party bear its own costs of the proceedings and the cross claim.

In relation to the above offer, we note the following:

(a) The amounts our client has allowed in paragraphs 3(a), (b) and (c) above are the amounts claimed by you in your cross-claim (at paragraph 1(a)-(c) of the Relief section).

(b) To date, those amounts have not been substantiated by evidence in the proceedings. In paragraph 19 of your affidavit sworn 1 June 2022, you have stated that the invoices are ‘is available for inspection’. On 17 June 2022 we served on you a notice to produce for inspection. No documents have been made available for inspection. On 6 September 2022 we served on you a notice to produce to court seeking production of those same documents. No documents have been produced in answer that notice. Also, on 17 June 2022 we served on you a notice to produce to court seeking additional documents regarding the claimed renovation costs. No documents were produced in answer to that notice.

(c) Solely for the purposes of seeking to resolve these proceedings without the need for the parties to incur further costs, our client is willing to meet the costs claimed in your cross-claim without any further evidence of those payments. However, if you do not accept this offer our client will object to any claimed costs which are not properly supported by evidence.

The offer in this letter is made on a without admission basis and remains open until 5.00pm Friday, 5 May 2023, at which time it will lapse.”

33. Alan responded to this offer via an email dated 26 April 2023 in which he recorded the following:

“I refer to your letter dated 25 April 2023.

In regard to paragraphs 1 to 6:

1. You have not included that you want me to make an application for nominal duty for the Turramurra property, which will endeavour to save your client the $30,685 assessed by NSW Revenue. As we know, that assessment was based on a false valuation. Based on the fact that the property did not have an extra bedroom and ensuite and that GST should not have been included, the assessment should have been for approximately $9,000 less as I refer to in paragraph 14 of my affidavit of 11 October 2022. I will need to have L Rundle and Co assist me with the request for nominal duty. 28 days is a guesstimate.

2. The payment for the 2/9ths share of the Avoca property will occur at the same time as the transfer of the Turramurra property along with other adjustments.

3. (b) and (c). The amounts stated are to be adjusted at the date of settlement in the normal way. Currently, they are approximately $10,000 short.

(d). Reasonable conveyancing costs should include the cost of preparing the request for nominal duty on the Turramurra property.

4. Agreed.

5. Agreed.

6. I will require the payment of my disbursements only, being fees for filing documents and transcript fees. ...”

34. The email concluded with observations about the provision of, or access to, primary and related documentation. It is sufficient to note that those observations included the following:

“The schedule of and copies of the invoices for the costs of the renovations have been provided. Schedules of the invoices for the outgoings were also provided but are constantly being updated. The invoices are available for inspection but the totals will need to be adjusted at the date of settlement in the normal way of conveyancing. ...”

35. Brian’s solicitors responded to Alan’s email via an email dated 27 April 2023 in the following terms (with emphasis added):

“We refer to your email ... Adopting your numbering, we are instructed to respond as follows:

1. Our client does not want you to make an application for nominal April 2023. Any stamp April 2023 will be payable by our client and our client is content to pay whatever April 2023 is assessed.
2. Agreed, subject to what is said below regarding the adjustments.
3. (b) and (c). It is agreed that the amounts are to be adjusted on the date of settlement. As for the quantum, our client is, solely for the purposes of the present settlement discussions and without any admission, agreeable to adjust all outgoings paid by you in respect of the share in Avoca and the Turramurra property, provided you are able to provide evidence of the same, which our client has been requesting for a considerable period. Please bring the box of documents to our office as per your email ... and as agreed at the directions hearing on 27 April 2023 2023. We do not consider that request, or anything in our client’s position, to be at odds with what his Honour Justice Kunc stated on 29 April 2023 2022. The fact that you have not made the documents available to date does, however, appear inconsistent with his honour’s comments.
4. Noted.
5. Noted.
6. Our client’s costs are far in excess of costs incurred by you in these proceedings and our client’s offer that the parties bear their own costs was made in the spirit of compromise. As you have represented yourself in the proceedings, your disbursements are your only costs, at least from the perspective of what our client could be ordered to pay in the proceedings. Nevertheless, our client is, solely for the purposes of obtaining a finalisation of this dispute, and without admission, willing to meet those costs in principle, provided they are reasonable. Please provide details of these costs. It may be simplest if that information is also delivered to our office at the time of delivering the invoices.

Subject to being able to identify the amount to be adjusted on settlement of the properties in respect of 3(a) and (b) and 6 above, it appears the parties are in agreement as to how the dispute should now be resolved.

We look forward to the delivery of the invoices to our office.”

36. At 3.36 pm on 22 May 2023 Brian’s solicitors wrote to Alan in the following terms:

“We refer to our letter of offer dated 25 April 2023 and the parties’ subsequent correspondence and counter offers.

After a review of the invoices provided by you on 2 May 2023, our client is prepared to make the below offer on a without admission basis and solely in the interests of resolving this matter commercially and expeditiously and to avoid further costs of litigation. Please note, this offer is made by our client on an open basis and our client reserves the right to provide this letter to the Court at any future listing of the matter. All previous offers made by our client are withdrawn.

The terms of our client’s offer are as follows:

1. You are to transfer to the plaintiff, within 28 days of acceptance of this offer, title to the Turramurra property.
2. You are to transfer to the plaintiff, within 28 days of acceptance of this offer, a 2/9th share of the Avoca property.
3. The plaintiff, on settlement of the property transfers in (1) and (2) above, is to pay to you:

(a) the alleged costs of the Turramurra property renovations, being $41,571.40.
(b) the alleged costs of the outgoings in relation to the Turramurra property and the 2/9th share of the Avoca property, being $77,865.18 (being the total amount of the invoices provided by you on 2 May 2023);
(c) the reasonable conveyancing costs incurred in transferring the Turramurra property and 2/9th share of the Avoca property.

4. The plaintiff will release you from all claims, the subject of the present proceedings, including:

(a) the wastage claim in respect of the Turramurra property;
(b) any claim he has in respect of the Avoca property.

5. The proceedings, including your cross-claim, be dismissed.
6. Our client’s costs are far in excess of costs incurred by you in these proceedings and our client’s offer that the parties bear their own costs was made in the spirit of compromise. As you have represented yourself in the proceedings your disbursements are your only costs, at least from the perspective of what our client could be ordered to pay in the proceedings. Nevertheless, our client is, solely for the purposes of obtaining a finalisation of this dispute, and without admission, willing to meet your disbursements in the sum of $3,127.66.

In relation to previous correspondence in the above offer, we note the following:

1. Our client does not want you to make an application for nominal duty. Any stamp duty will be payable by our client and our client is content to pay whatever duty is assessed.
2. In respect of the invoices provided by you, the total of the costs is $119,436.58. However we note many of the invoices have added late fees which we do not consider our client should be required to meet as they appear to arise solely due to a failure by you to pay the invoices by the due date. Also, many are not addressed to you as executor, but rather to other entities and individuals, including:

(a) Blaxland Finance Pty Ltd;
(b) Hunter Corp Developments Pty Ltd; and
(c) Lizzy Wicks.

3. In respect of the invoices in (a) to (c) above, you have failed to provide any documents evidencing that you made payment of those amounts either personally or as executor and, accordingly, our client is concerned that those invoices were not paid by you as executor. Nevertheless, our client is, solely for the purpose of obtaining a finalisation of this dispute, and without admission, willing to meet those costs.
Any further invoices in respect of the Turramurra or Avoca outgoings between acceptance of the offer and the date of settlement can be forwarded to our office for payment by our client.
The offer in this letter is made on a without admissions basis and remains open until 5pm Friday, 26 May 2023 at which time it will lapse.”

37. Via an email timed at 5.06pm on 22 May 2023 Alan responded to Brian’s solicitors in the following terms:

“I refer to your email and letter of today’s date.

The penultimate paragraph of your email of 27 April 2023 says:

‘Subject to being able to identify the amount to be adjusted on settlement of the properties in respect of 3(a) and (b) and 6 above, it appears the parties are in agreement as to how the dispute should now be resolved.

The matter has been settled and the outgoings are to be adjusted on settlement. The adjustment of the outgoings is an accounting exercise.”

38. Alan sent an email to Brian’s solicitors timed at 11.21 am on 23 May 2023 in the following terms:

“I attach the spreadsheets (9 pages) which list and total the invoices for the outgoings for the Turramurra and Avoca properties, being the invoices that I brought to your office on 2 May 2023 for inspection and subsequent photocopying for over two hours by [a solicitor in the office of Brian’s solicitors].

The spreadsheets show that the total of those invoices payable by the plaintiff is $87,228.73. You say, after two weeks and six days, the total is $77,865.18.

As you provide no details, would you please advise where you disagree with the spreadsheets and itemise the difference of $9,363.55.

Obviously, these invoices are being added to as time progresses. Adjustments will need to be made at settlement.”

39. Brian’s solicitors responded in the following terms via an email timed at 4.02 pm on 23 May 2023:

“We note that the parties are, without admission, in agreement as to the amounts to be paid for the renovations and disbursements. We have reviewed the invoices provided by you to our office on 2 May 2023 and cross reference the amounts in the invoices against the amounts claimed by you in your open ‘schedules’. In addition to the issues with the invoices as set out in our letter of 22 May 2023, we note the parties calculations in respect of the outgoings differ by an amount of $9,363.55. Our client does not wish for a dispute over an amount of $9,363.55 to delay the transfers of the properties and, accordingly, we are instructed to, without admission, agree to payment of the following amounts on settlement of the transfer of the properties:

1. Turramurra renovations - $41,571.40
2 Outgoings for Turramurra and Avoca - $87,228.73
3. Disbursements - $3,127.66.
Total = $131,927.79

We note the amounts in 1 to 3 above are the amounts claimed by you in your email [of 23 May 2023]. Accordingly, it appears there is no longer any dispute in respect to the payment of the renovation costs, outgoings or disbursements. We note there is no dispute between the parties that you are to transfer to our client the Turramurra property and his 2/9ths share of the Avoca property. Accordingly, it appears the parties have now reached a resolution on the terms contained in our offer of 22 May 2023, with the amendment that the amount payable to you for the outgoings is $87,228.73. Noting the matter is listed for hearing at 9.30am tomorrow and the parties are required to provide orders to his Honour’s Tipstaff this afternoon, could you please confirm that you agree to our client’s offer. We will then prepare consent orders for your review before providing orders to the Court.

We look forward to hearing from you shortly.”

40. At 5.10 pm on 23 May 2023 Alan wrote to Brian’s solicitors in the following terms:

“I refer to your email below.

The agreement encapsulated in point 2 of the correspondence between the parties, being those dated 25, 26 and 27 April 2023, is for the plaintiff to release to the estate of Orlando William Hunt, his 2/9 share of the Avoca property and for the defendant to pay to the plaintiff $203,000 in consideration of the release.

I refer you to my email of 22 May 2023 in which I quoted your words from your email of 27 April 2023:

‘Subject to being able to identify the amount to be adjusted on settlement of the properties in respect of 3(a) and (b) and 6 above, it appears the parties are in agreement as to how the dispute should now be resolved.’
You have now identified ‘the amount to be adjusted on settlement of the properties in respect of 3(a) and (b) and 6, as set out in your email of 23 May 2023.
Accordingly, the matter was settled on 27 April 2023, the plaintiff is now attempting to renege on the settlement. The defendant will hold the plaintiff to the settlement.”

41. Brian’s solicitor’s responded to this via an email timed at 5.27pm on 23 May 2023 in the following terms:

“For clarity, the parties are yet to reach an agreement, no offer has been accepted and, accordingly, the matter has not yet settled.

Our offer of 25 April 2023 lapsed on 5 May 2023. You had not indicated any agreement to the offer of 25 April 2023 by that date. Further, as per our letter of 22 May 2023, any previous offers made by our client were withdrawn. We note in our latest correspondence that there no longer appears to be any dispute as to the amount of renovation costs, outgoings and disbursements. As per evidence filed in these proceedings, and as stated by you on the last occasion before Lindsay J, there is no dispute between the parties that you are to transfer to our client the Turramurra property and a 2/9ths share of the Avoca property.

So we can provide orders to Lindsay J’s Tipstaff as soon as possible, could you please confirm that you accept our offer as contained in our letter of 22 May 2023, with the amendment that the amount payable to you for the outgoings is $87,228.73.

We look forward to hearing from you shortly.”

42. Alan responded via an email timed at 6.12pm on 23 May 2023 in the following terms:

“I refer to your email below.

1. Your client made an offer by letter of 25 April 2023.
2. I made a counter offer my email of 26 April 2023. The only matter of substance was a payment of the defendant’s disbursements.
3. Your client accepted the counter offer by email of 27 April 2023.”

The acceptance is clear from the words of your email, being: ‘the parties are in agreement as to how the dispute should now be resolved’.

Contrary to that, you now wish to substantially change the agreement.”

43. On 24 May 2023 Brian’s solicitors sent to Alan an email in the following terms:

“We refer to the listing of these proceedings before Lindsay J today and to the orders made by his Honour. ...

We understand that the only impediment to you accepting the offer made by our client on 22 May 2023 (and revised on 23 May 2023 to include your increased claim for outgoings) is that you assert an agreement was previously reached on the terms of the offer made by our client on 25 April 2023. We understand that you intend to file a motion in accordance with the liberty granted by Lindsay J in order to seeking orders to the effect that the parties have reached a legally binding settlement on the terms contained in our letter dated 25 April 2023. If the matter cannot be resolved by 7 June 2023, we will have no choice but to also file a motion seeking that you transfer the properties to our client on the amounts claimed by you as trustee being paid.

Those motions will both be productive of costs. That appears particularly wasteful in circumstances where the only practical difference between the parties is whether you are to acquire our client’s 2/9ths share of the Avoca property, or whether you are to transfer it to our client. It is beyond question that, absent the agreement you argue has already been reached, you have no ability at law to compel our client to sell his 2/9ths share in the Avoca property to you and that, provided your costs as trustee are met, you are obliged to transfer the properties to our client.

The terms of the offer made by our client on 22 May 2023 meet all of your costs incurred as trustee. In those circumstances, it seems curious to us that you, as trustee, seek to press for the alleged agreement at all.

In that regard, we remind you that the estates in question have no residual beneficiaries and that our client is the only remaining beneficiary in respect of the Turramurra property and a 2/9ths share of the Avoca property. It is not at all in the interests of the beneficiary for you, as trustee, to incur the cost of further interlocutory disputes in these proceedings. You indicated in Court today that you wished to keep the Avoca property[.] You stated that as a solicitor appearing for Alan Hunt in his capacity as trustee of the estates, although we infer that you are actually stating your personal desire, and not the views of the trustee [sic].

It follows that any application brought by you pursuant to the liberty granted by Lindsay J in order 2 of the [orders made today], that seeks orders to the effect that a previous settlement has been reached, will be an application brought for the benefit of you in your personal capacity, and not for the benefit of the sole beneficiary of the estates. For that reason, any view you hold as trustee that a previous agreement was reached on the terms of the offer made on 25 April 2023 ought to be abandoned and the offer of 22 May 2023 accepted.

If you do not take that course, and proceed with an application for orders that an agreement has been reached on the terms of our letter dated 25 April 2023, we will oppose that application on, among other grounds, the issues raised above. We will also seek the costs of such an application against you personally on an indemnity basis on the grounds that the application was brought for your personal benefit and not in the interests of the trust and its sole beneficiary.

Our client also reserves all rights with respect to any breach of trust by you or breach of fiduciary duty as trustee by seeking to use your position as trustee for your personal benefit.

In all the circumstances we invite you to seriously consider our client’s offer made on 22 May 2023 (as revised on 23 May 2023 as to the quantum of the claimed outgoings), which remains open until Friday, 26 May 2023.”

44. Alan responded by email on 25 May 2023 in the following terms:

“Contrary to what you say or infer in your email of 24 May 2023:

1. Your client is releasing the 2/9ths of the Avoca property to the estate of Orlando William Hunt (paragraph 5).
2. Your client is not ‘the only remaining beneficiary’ (paragraph 5) or the ‘sole beneficiary of the estates’ (paragraphs 6 and 7).”

45. On 6 June 2023 Brian’s solicitors wrote to Alan via an email timed 12.58 pm in the following terms:

“We refer to the attached letter of 22 May 2023 containing our client’s offer to settle the proceedings.

We note this offer lapsed on 26 May 2023. We are instructed to reopen this offer, as amended by our attached email of 23 May 2023.”

46. At 6.36 pm on 6 June 2023 Brian’s solicitors sent another email to Alan, in the following terms:

“To reiterate, the proceedings have not settled, there has not yet been any acceptance of any offer and the parties have not entered into or executed any settlement agreement. We understand this is an issue of contention and we do not intend to engage further with you on this issue.

We disagree with your allegation that our client has for the last two years ‘consistently proposed that he receives a money payment for his 2/9ths share’. In fact, we note that throughout the course of these proceedings you have repeatedly stated, including in your pleadings, affidavits and written submissions, that you are ready to transfer to our client title of the Turramurra property and a 2/9ths share of the Avoca property upon payment of the outgoings and renovation costs.

In respect of your query as to the differentiation between our client’s offer of 25 April 2023, which lapsed on 5 May 2023, and the current offer, we note the following:

1. You are well aware from previous correspondence that it is our client’s view that his 2/9ths share of the Avoca property is worth in the vicinity of $280,000 Our client formed this view based on research of the sales history of other 2 bedroom, 1 bathroom units in the same block, which sold for $1,550,000 in 2020 and $1,200,000 in 2018. However, you did not agree with a $280,000 valuation of our client’s 2/9ths share and, to date, have refused to propose a reasonable value in respect of our client’s 2/9ths share.
2. On 2 May 2023, after 18 months of requesting provision of the invoices, including by way of notices to produce to court, you finally provided the invoices for the outgoings. After reviewing those invoices, as set out in previous correspondence to you, we became aware of various issues which we consider will inhibit your ability to recover the amounts claimed by you. We do not consider you are entitled to payment of those outgoings and the amount claimed, however our client was willing to accept the inflated amounts claimed by you for the outgoings on the condition that you transfer to him his 2/9ths share in Avoca so that he can seek to obtain full value for that share.

You stated at the last directions hearing before Justice Lindsay that you do not want to transfer to our client his 2/9ths share of Avoca as you are concerned that our client will force a sale of the Avoca property. We note you are at liberty to offer our client a reasonable amount for his 2/9ths share to settle the dispute, but have failed to do so, and you are now refusing to transfer our client his 2/9ths share which you have at all stages of the proceedings agreed to transfer up until May 2023.”

47. In viewing the correspondence between the parties (not limited to that extracted in this judgment) I note that the purpose of the correspondence was to address the possibility that the principal proceedings could be determined by or with the consent of the parties. The pendency of the principal proceedings provides context in which the correspondence is to be construed.
48. Alan contends, essentially, that a settlement agreement emerges from the letter dated 25 April 2023 of Brian’s solicitors, his response dated 26 April 2023 and the reply dated 27 April 2023 of Brian’s solicitors.
49. Battle lines were not drawn on the question of a settlement until Brian’s solicitors on 20 May 2023 communicated a fresh offer predicated upon an assumption that there was no subsisting settlement agreement and Alan responded by an email of the same date which (citing the email of 27 April 2023 sent by Brian’s solicitors) asserted that “[the] matter has been settled and the outgoings are to be adjusted on settlement. The adjustment of the outgoings is an accounting exercise”.
50. Brian’s solicitors responded to Alan on 23 May 2023 denying that there was any agreement, noting that Brian’s offer of 25 April 2023 had lapsed on 5 May 2023 without acceptance and relying upon the withdrawal of offers communicated in the letter dated 22 May 2023 without specifically addressing the effect of the email of 27 April 2023 which concluded with the words (of Brian’s solicitors) “the parties are in agreement as to how the dispute should now be resolved”. The significance of the email dated 27 April 2023 was drawn to the attention of Brian’s solicitors in each of Alan’s emails (respectively timed that 5.10 pm and 6.12 pm) on 23 May 2023.
51. On my reading of the correspondence up to and including the email of Brian’s solicitors dated 27 April 2023 the parties did not reach a concluded agreement for settlement of the proceedings. The critical penultimate paragraph of that email (relied upon by Alan) does not acknowledge a dispositive agreement but speaks of a pathway to agreement when it says that “it appears the parties are in agreement as to how the dispute should now be resolved” and it is subject to an agreement about further consideration of questions about “adjustments” and “costs”. Although the correspondence might be read as implicitly agreeing to a transfer to Brian of the Turramurra Property, it does not specifically deal with that topic, preoccupied with the mechanics of a stamp duty liability. Outstanding issues about “adjustments” cannot objectively be viewed as no more than an “accounting exercise” given that the parties’ disputation was heavily focused upon Brian’s concern that Alan verify his claims.
52. The fact that after 27 April 2023 Alan provided primary records in support of his claims for “adjustments” and “costs” and Brian decided, on a without admissions basis, to accept Alan’s claims at face value does not prove a settlement of the proceedings on Alan’s terms because Brian’s ultimate acceptance of Alan’s claims was predicated on a requirement that Alan transfer to him his property entitlements. He conceded Alan’s claims in order, without ongoing litigation, to obtain what he regards as the true value of his interest in the Avoca Property without being confined to Alan’s attribution to those entitlements of a notional value of $203,000.
53. In my opinion, the parties did not conclude an agreement on or about 27 April 2023 or at all. Brian’s offer of 25 April 2023 lapsed on 5 May 2023, if not taken to have been rejected by Alan’s counter offer of 26 April 2023. It was for good measure expressly withdrawn on 22 May 2023 when Brian, unable to obtain satisfaction from Alan on the basis of a release of his entitlements in the Avoca Property, presented a fresh offer predicated upon a transfer by Alan to him of his entitlements to the Avoca and Turramurra Properties. Ultimately, Alan’s insistence that he be able to retain the Avoca Property without agreeing with Brian upon a commercial value or submitting the property for a public sale, and Brian’s dissatisfaction with Alan’s administration of the deceased estates, destroyed any prospect of a concluded agreement.
54. Accordingly, I propose to dismiss Alan’s notice of motion filed 7 June 2023.

BRIAN’S CLAIM TO A JUDGMENT ON ADMISSIONS

55. Brian’s notice of motion filed 7 June 2023 is similar in form to that of Alan in that it does not, in terms, seek a judgment or admissions but a series of orders (in paragraphs 2-5 of the motion) sought, implicitly on admissions, after abandonment of his wastage claim.
56. Brian’s application for a judgment on admissions is predicated upon admissions made by Alan in his Defence (filed on 29 April 2021) by which he responded to the substance of Brian’s amended statement of claim (filed on 10 May 2022), particularly paragraphs 1, 3(a), 4-7, 8(a), 9-20, 23(b)(i) and 23(c). See, in particular, Defence paragraphs 1-2 and the passages here extracted.
57. In his defence Alan made statements to the following effect:

(a) “The plaintiff [Brian] is aware that the defendant [Alan] is ready to transfer to him title to the Turramurra Property and title to 2/9ths of the Avoca Property and the seeking of declarations and orders to that effect [in Brian’s statement of claim] when there is no dispute between the plaintiff and the defendant is unnecessary.” [defence paragraph 18]

(b) “If an order is made for transfer of the Properties, the defendant seeks an order that includes the adjustments in paragraph 19(d) of the defence”; that is, the outgoings and renovation costs in respect of the Turramurra Property and a 2/9ths share of the outgoings in respect of the Avoca Property.” [defence paragraph 20]

(c) “The only issue in dispute between the plaintiff and the defendant is the alleged wastage claim.” [defence paragraph 21]

58. Brian supports his application for judgment on admissions by reference to statements made by Alan in his written submissions to the following effect:

(a) “Of course, the main purpose of the litigation is to seek orders to effect the transfer of the plaintiff’s interest in the properties, which orders are unnecessary because I have always agreed to transfer those interests subject to the adjustments on settlement.” [written submissions dated 27 April 2022, paragraph 7]

(b) The Court proceedings involve three issues:

(i) The transfer to the plaintiff of a property at Turramurra and a 2/9 interest in a property at Avoca Beach;

(ii) The payment by the plaintiff of relevant outgoings in regard to the properties and renovation costs for the Turramurra Property; and

(iii) A ‘wastage claim’ in regard to the Turramurra property ... [written submissions dated 6 September 2022, paragraph 3]

(c) It would appear that the only outstanding issue is the ‘wastage claim’ which the defendant contends was manufactured to offset the outgoings and renovation costs ... [written submissions dated 6 September 2022, paragraph 4]”

59. Based upon the pleadings and Alan’s written submissions, and having abandoned his claim for damages against Alan for wastage, Brian seeks an order for specific performance of an agreement between the parties that involves elements specifically enumerated in his notice of motion.
60. Specifically, Brian’s notice of motion seeks the following orders:

“[2] An order that the defendant do all things as may be in reasonably necessary to effect the transfer of the title of the property located at 29/10 Kissing Point Road, Turramurra NSW 2074, folio 29/SP10238 (‘Turramurra property’) to the plaintiff.

[3] An order that the defendant do all things as may be reasonably necessary to be registered as proprietor of the property located at 16/127 Avoca Drive, Avoca Beach NSW 2251, folio identifier 16/SP 5427 (‘Avoca property’):

(a) As to two-thirds, as executor by representation of the will of Orlando William Hunt;

(b) As to one third, as executor of the will of Robert John Hunt.

[4] An order that, following compliance with order 3, the defendant (in his capacity as executor by representation of the will of Orlando William Hunt) do all things reasonably necessary to transfer a two-ninths share of the title to the Avoca property to the plaintiff as tenant-in-common.

[5] Upon the transfers in orders 2 and 4 above occurring, the following amounts are to be released to the defendant from the funds [which the plaintiff has offered in paragraph 1 of his motion to pay into court]:

(a) the amount of $41,571.40 representing the renovation costs in respect of the Turramurra Property;

(b) an amount of $67,224.27 representing the outgoing costs for the Turramurra Property;

(c) an amount of $20,004.46 representing a 2/9ths share of the outgoing costs for the Avoca Property; and

(d) an amount of $3,127.66 representing the costs of the defendant’s disbursements in the proceedings.”

61. In paragraphs 1, 6 and 7 of his notice of motion, Brian contemplates that these orders may be given practical effect by his payment into court of a sum of $141,927.79 to cover the specific payments contemplated in paragraph 5 of the motion (totalling $131,927.79) and $10,000 extra to allow to Alan:

(a) the reasonable legal costs and disbursements incurred by Alan in complying with orders 2 and 4 as sought in Brian’s notice of motion; and

(b) two thirds of the reasonable legal costs and disbursements incurred by Alan in complying with order 3 of the orders sought in Brian’s motion.

62. Brian contemplates that any balance left in the funds in court after payment out of funds to Alan be returned to him.
63. The nature of Brian’s case, in narrative form, is conveniently set out in his written submissions dated 8 June 2023, here extracted:

“(1) The plaintiff (Brian) and the defendant (Alan) are brothers. Alan is the executor of the deceased estates of their parents.

(2) These proceedings principally concern real property at Turramurra and Avoca. Brian says that Alan, as executor, is obliged to transfer to Brian:

(i) title to the Turramurra property; and

(ii) a 2/9ths share in the Avoca property.

(3) Until recently, Alan has said that he ‘is ready to transfer to [Brian] title to the Turramurra Property and title to 2/9ths of the Avoca Property’, but that he is entitled to be paid an amount preferable to ‘adjustments’ for ‘outgoings on the Turramurra Property and a proportion of outgoings on the Avoca Property together with the renovation costs for the Turramurra Property, all of which were and are to be adjusted on settlement of the transfers’.

(4) Brian originally resisted any liability to pay anything to Alan, and also advanced a wastage claim against Alan which, in short, related to Alan’s alleged failure to lease the Turramurra Property. There was also a dispute concerning the quantum of the outgoings and the renovation costs.

(5) However, without any admission and solely to achieve a commercial resolution of this litigation, Brian is now prepared to (1) abandon the wastage claim; (2) pay Alan everything he wants; and (3) pay Alan’s costs, when Alan transfers the properties to him. The specific amounts are:

(a) $41,571.40 referable to renovation costs for the Turramurra property.

(b) $67,224.27 referable to outgoings in respect of the Turramurra property.

(c) $20,004.46 referable to a 2/9th share of outgoings in respect of the Avoca property.

(d) $3,127.66 referable to Alan’s costs.

(6) These are the amounts which Alan has claimed are payable. Brian does not accept the figures are accurate but, as has been said, Brian is prepared to pay the full amounts claimed, in order to finalise this dispute. The total of the above amounts is $131,927.29 [sic]. Brian is ready to pay that amount [from funds held in his solicitor’s trust account] into court, plus an additional $10,000. The additional $10,000 is to reimburse Alan for part of the (future) costs of transferring the property interests.

(7) Brian therefore says that he is prepared to give Alan everything Alan seeks in the proceedings, and seeks orders to bring the litigation to an end (including by a dismissal of the claim and cross-claim).

(8) However, Alan now says that the parties have recently agreed that, rather than transferring the 2/9th interest in Avoca to Brian, Alan will pay Brian $203,000 for that interest. ... [That contention has been rejected earlier in this judgment by a determination that Alan’s notice of motion filed on 7 June 2023 be dismissed] ...

(9) Brian has now acquiesced to Alan’s alleged outgoings figures, but on the basis that the 2/9ths share in Avoca be transferred to Brian rather than Alan paying Brian $203,000 for that 2/9th share. It is anticipated that the value of the 2/9th interest is higher than $203,000. Since Brian has agreed to pay the full amounts claimed by Alan ..., Brian wants to receive the full value of the 2/9ths share in the Avoca property.”

64. In my opinion, the case for which Brian contends on his notice of motion has been made out and the justice of the case requires that orders be made in disposition of the proceedings substantially in the form claimed by him.

CONCLUSION

65. That involves: (a) an order that Alan transfer to Brian title to the Turramurra Property; (b) an order that Alan transfer to Brian a 2/9ths share of the Avoca Property; (c) an order that, upon those properties being transferred to Brian, Brian pay to Alan the sum of $131,927.79, with conventional adjustments of outgoings at the time of transfer of the properties; (d) an order that Alan’s notice of motion be dismissed; and (e) an order that Brian’s amended statement of claim and Alan’s cross-claim otherwise be dismissed. Given that Brian has agreed to pay Alan’s costs of the proceedings in a specified sum, there is no occasion to make a separate order as to costs.
66. I will allow the parties an opportunity to bring in short minutes of order to give effect to this judgment and, if they be so minded, to incorporate orders for a sale of the Avoca Property so as to bring their financial relationship to an end.

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