Buckman v Rose-Rapmund

These proceedings relate to the estate of the late Eric Buckman, who died on 19 January 2010.

Mr Buckman died intestate. Pursuant to the rules of intestacy his estate is to be divided equally between his three siblings. Those siblings are his sister Jean Rose-Rapmund, his brother Walter Buckman, and his sister Dorothy Carmody.

For convenience and without intending any disrespect to the parties, I will refer to them by their first names.

At the time of Eric's death, he and Walter were tenants in common of two adjoining rural properties near Kyogle. Eric lived in one property, in a house built by the siblings’ parents. Walter and his wife built a house on the other property and have lived there for many years.

Since Eric's death, the farming business on both properties has been continued by Walter.

In the years following Eric's death, the siblings could not agree on who should administer Eric’s estate.

Ultimately, Jean, on 4 November 2013, filed a statement of claim seeking an order that the NSW Trustee and Guardian be appointed administrator of Eric’s estate. On 14 and 20 January 2014, respectively, Walter and Dorothy filed submitting appearances in those proceedings, which I will call “the Administration Proceedings”.

On 7 July 2014, Lindsay J made orders in the Administration Proceedings appointing Mr John Maxwell, a solicitor, as administrator of Eric’s estate and that Mr Maxwell:

By notice of motion filed in the Administration Proceedings on 18 September 2014, Walter sought the following order:

On 10 November 2014, Lindsay J referred this notice of motion to the Registrar for allocation of a hearing date. On 20 November 2014, the Registrar set the notice of motion down for hearing in the Applications List today. As Applications Judge, the matter has come before me.

At the outset, I drew to the attention of Mr Ryan, who appears for Walter, the decision of the Court of Appeal in Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 that jurisdiction to set aside an order for fraud should be invoked by a new action brought for that purpose, and not by a notice of motion in the proceedings in which the order was made.

Accordingly, I invited Mr Ryan to bring in a summons, seeking the same relief as sought in the 18 September 2014 notice of motion. Mr Ryan did so, and with the consent of Mr Smart, who appears for Jean, I made that summons returnable instanter and ordered that the relevant evidence in the Administration Proceedings be evidence in the proceedings commenced by that summons. The matter proceeded on that basis. I took that course as both Mr Ryan and Mr Smart informed me the parties were anxious to have the matter resolved today on its merits.

In the course of giving the last few paragraphs of my judgment, Mr Ryan interrupted to say in fact he also relied upon Uniform Civil Procedure Rules r 36.15 and contended that I had jurisdiction within the Administration Proceedings to set aside Lindsay J's judgment on the basis it was made “irregularly” or against "good faith". Mr Ryan did not mention that rule earlier in the proceedings. However, I do not think this affects the matter either way. I am satisfied I have jurisdiction, and I will deal with the substance of the application.

The relief that Walter has claimed, whether it be in the summons filed in Court today, or the notice of motion filed on 18 September 2014 in the Administration Proceedings, is the same; namely, that Lindsay J’s orders of 7 July 2014 in the Administration Proceedings should be set aside on the basis that Walter did not consent to orders being made in accordance with the draft short minutes of order specified in the order set out at [8] above, and that Jean’s solicitor, Mr Pellandine, knew this.

In particular, Mr Ryan submitted that the email of 4 July 2014 that Mr Pellandine sent to Lindsay J's Associate, referred to in the order I have set out at [8], was false.

Although, in oral submissions, Mr Ryan ultimately eschewed making a submission that Mr Pellandine’s 4 July 2014 email was knowingly false, the basis of Walter’s application is that Mr Pellandine "was aware" (which I would read as meaning "actually aware") that Walter did not consent to the order made by Lindsay J.

That is a grave allegation to make. It is hard to think of a more serious allegation that could be made of a solicitor than that he or she made a statement to the Court that he or she knew to be false.

For the reasons that follow, I am comfortably satisfied there is no basis for the allegation in this case.

At all relevant times during the Administration Proceedings, Walter was represented by Mr John Gibson, a solicitor in Kyogle.

On 20 May 2014, Mr Gibson wrote a letter to Mr Paul Pellandine in the following terms:

That letter indicates that Mr Gibson was having some difficulty getting instructions from Walter. However, Mr Gibson said that Walter maintained his "submitting appearance". Mr Gibson’s letter focused on his instructions from Walter that Walter did not want Mr Rose to be appointed administrator. Mr Rose is a retired bank officer and is Jean’s son.

As I have mentioned, when Jean commenced the Administration Proceedings, she sought an order that the NSW Trustee and Guardian be appointed administrator of Eric’s estate. In circumstances not necessary to recount, it became clear by 20 May 2014 that the NSW Trustee and Guardian would not be appointed as administrator. At some point, it was proposed that Mr Rose be administrator. As it turns out, and as I have mentioned, Mr Maxwell was appointed administrator.

On 27 May 2014, Mr Pellandine wrote to Mr Gibson as follows:

As Mr Ryan pointed out, that passage bespeaks an understanding by Mr Pellandine that Walter "does not want" the outcome evidenced by the then "proposed Order/Deed". However, Mr Pellandine went on to say that if Walter wanted a "different outcome" he would have to "put that on record".

On 3 June 2014, Mr Gibson wrote to Mr Pellandine in the following terms:

It is clear from that letter that Mr Gibson had conferred with Walter that day. Mr Gibson stated that Walter accepted that "the implementation of the proposed Deed may well be the order of the Court." Mr Gibson concluded that "otherwise, my client simply awaits the order of the Court." Mr Gibson also attached a copy of the letter he had sent that day to the Principal Registrar of the Court which is in the following terms:

In that letter, Mr Gibson confirmed that he had no instructions to withdraw Walter's submitting appearance but asked that the judge determining the matter be aware that Walter did not agree to Mr Rose's appointment as administrator. However, no other concern of Walter in the proceedings was expressed.

The following day, Mr Pellandine responded including:

Thus Mr Pellandine inquired of Mr Gibson whether Mr Gibson's "latest interpretation" of his instructions from Walter could be "open to reinterpretation" by reason of the telephone call that evidently Walter and his wife had made to Jean the previous day.

As Mr Ryan submitted, the account of that telephone call does suggest that Walter was still seeking to agitate the basis upon which the matter should be finally resolved. However that may be, there is no evidence that Mr Gibson responded to Mr Pellandine's letter to make any comment about that aspect of the matter. Mr Pellandine was not cross-examined about this matter, or at all.

On 23 June 2014, Lindsay J made an order that Jean, by her solicitors, circulate to the other parties to the proceedings the "draft short minutes of the orders to be sought on 7 July 2014".

Accordingly, on 24 June 2014, Mr Pellandine wrote to Mr Gibson attaching a copy of Lindsay J's orders.

On 30 June 2014 Mr Gibson's legal assistant sent an email to Walter as follows:

In an affidavit sworn in the Administration Proceedings on 3 October 2014, Mr Pellandine gave this evidence which was received without objection and unchallenged:

On 4 July 2014, at 12.22pm, Mr Pellandine sent an email to Mr Gibson's legal assistant:

Thus, consistently with Mr Pellandine’s unchallenged evidence, he stated that the proposed short minutes had been amended “following discussions” with Mr Gibson.

Some five hours later, at 5.34pm, Mr Pellandine sent to Lindsay J's Associate the email referred to in Lindsay J's orders, being the email that Walter contends to be false:

I see nothing in that email which was false to Mr Pellandine's knowledge.

There had been negotiations with other parties concerning the short minutes, including negotiations with Mr Gibson, on behalf of Walter.

There is no evidence to suggest that, as at 4 July 2014, Mr Pellandine had any reason to think that Mr Gibson was not acting on Walter’s instructions. Whatever doubts Mr Pellandine may have had on 4 June 2014 (see [29] above) must have been put to rest by his communications with Mr Gibson on or around 4 July 2014.

Mr Ryan contended before me that, in fact, Mr Gibson did not have Walter's instructions to agree to the short minutes. I make no comment and no finding about that.

What is clear from the correspondence and communications to which I have referred is that, so far as Mr Pellandine is concerned, he was dealing at arm's length with a solicitor acting for Walter. I see no basis in the evidence to conclude that Mr Pellandine should have known, let alone actually did know, that Mr Gibson did not have Walter’s instructions to agree to the short minutes (if, in fact, that is the case).

I see no basis at all to set aside the 7 July 2014 orders and I refuse to do so.

I order that the notice of motion of 18 September 2014 in the Administration Proceedings, being proceedings numbered 2010/410710, be dismissed.

I order that the summons in these proceedings be dismissed.

In the Administration Proceedings I order that Walter pay Jean’s costs of the notice of motion of 18 September 2014. In these proceedings I order that Walter pay Jean's costs.

I stand the Administration Proceedings, and also proceedings numbered 2014/259106 over for directions in the Probate List before Lindsay J on 13 April 2015 or such other date as his Honour nominates.

I note that Mr Pellandine will notify Mr Maxwell of that adjourned date.