Hunt v Hunt

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.

They, with their deceased brother Robert Hunt, are the children of the marriage between Orlando Hunt and Nellie May Hunt.

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.

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.

Robert died on 23 August 2014, leaving a will dated 11 October 1992, probate of which was granted on 23 December 2014 to Alan.

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.

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.

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.

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.

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.

At the heart of disputation between Brian and Alan are two properties held by Alan in his representative capacity:

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.

The title to the Turramurra Property currently records Alan as the registered proprietor.

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:

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.

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.

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:

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.

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.

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.

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.

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”.

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.

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.

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.

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.

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.

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.

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.

A formal notation made by me on that occasion was in the following terms:

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.

Brian’s solicitor’s addressed his offer to Alan in the following terms:

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

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:

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

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

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

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

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

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

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

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

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

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

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

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

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.

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.

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”.

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.

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.

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.

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.

Accordingly, I propose to dismiss Alan’s notice of motion filed 7 June 2023.

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.

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.

In his defence Alan made statements to the following effect:

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

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.

Specifically, Brian’s notice of motion seeks the following orders:

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:

Brian contemplates that any balance left in the funds in court after payment out of funds to Alan be returned to him.

The nature of Brian’s case, in narrative form, is conveniently set out in his written submissions dated 8 June 2023, here extracted:

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.

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.

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.