Justin Barker v Gordon Albert Salier

HIS HONOUR: By summons filed on 11 May 2018, Mr Gordon Salier, a solicitor, seeks the opinion, advice and directions of the Court under s 63 of the Trustee Act 1925 (NSW), that he would be justified in settling a claim brought by Justin James, also known as Justin Barker, in proceedings 2016/29717 (the Family Provision Order Proceedings), for a Family Provision Order under the Succession Act 2006 (NSW). The Family Provision Order Proceedings were fixed for hearing before me on 30 April and 1, 2 and 3 May of this year. By consent, the hearing was vacated on the basis that the parties wished to participate in a mediation. A mediation was conducted which resulted in a conditional compromise of the Family Provision Order Proceedings.

Mr Salier is the administrator of the Estate of the late Clair Elizabeth Christina James (the Deceased), who died on 15 March 2014. He was appointed as administrator to replace Ms Jennifer James (Jennifer). The last will of the Deceased was dated 22 April 2010 (the Will) and probate of the Will was granted to Jennifer on 1 December 2014. The Will provided for specific bequests in favour of the five grandchildren of the Deceased. The rest and residue of the Estate was left in equal portions in favour of her four children. The plaintiff in the Family Provision Order Proceedings is the son of Jennifer, one of the four children of the deceased, and is therefore her grandson.

I have had regard to the facts contained in the statement of facts that is part of the summons filed on behalf of Mr Salier in these proceedings. I have also had regard to the memorandum of Mr Brian J Skinner of counsel, dated 4 May 2018, together with an addendum to that memorandum, dated 24 May 2018. I have also had regard to a chronology of events, a settlement checklist and a letter dated 11 May 2018, from Jennifer’s trustee in bankruptcy to Mr Salier, all of which are evidence in these proceedings. Having regard to those matters, I consider that Mr Salier, as defendant in the Family Provision Proceedings, would be justified in compromising those proceedings in terms of the document dated 30 April 2018 and described as “Judgment Order”, which I have marked as Exhibit 4 in these proceedings. The terms of the document are as follows:

Accordingly, I propose to order that Mr Salier would be justified in settling the Family Provision Proceedings upon those terms and that his costs of this application be paid out of the assets of the Estate of the late Clair Elizabeth Christina James on the trustee basis. In proceedings 2016/29717, I propose to make orders in terms of the Judgment Order.