June 21, 2022

Worthington v Hallissy [2022] NSWSC 753

6 minutes

“I submit to orders that I have to repay Dad. Or do I…?”

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Mum and dad - elderly and unwell - sued two of their kids, and their son-in-law.

First, the fascinating procedural issues.

One child and the son-in-law filed submitting appearances. Another child (who we won’t discuss further here) resisted Mum and Dad’s claim and made a cross claim: [1]

During the final hearing, the submitting daughter later sought to withdraw her submitting appearance and actively contest the proceedings: [12]

That daughter had been legally represented at the time of her submission, and had taken advice on the implications: [16]

She said she had not thought any orders would bite against them and their spouse at the time, despite a letter sent at the time suggesting otherwise: [17]

Her own evidence showed she had been aware money orders were being sought against her months before the hearing and she did not seek to contest Mum and Dad’s claim. She still wanted leave to appear at the hearing so a “mutually beneficial settlement” could be explored at hearing: [18]

The Court found the issues the daughter sought to agitate should have been raised earlier and been subject to an application to withdraw her submitting appearance earlier: [25]

The daughter had not fully responded to a notice to produce issued in the proceedings: [27]

The daughter had in the week before the hearing indicated being prepared to pay the amount sought and said she had the money to do so, raising no resistance to the relief: [28]

The daughter made a choice to submit with the benefit of legal advice and only sought to depart from that position at final hearing, implausibly claiming that was when she realised she had a right to be heard: [29]

The Court concluded justice could not allow the daughter to be relieved of her forensic decision to submit in order for her to bring a case she had previously given no notice of: [31]

And so, what were the facts the Court was considering?

In 2011, the daughter and son-in-law purchased a property for a little over $1m: [34]

In 2013, Dad entered into a deed with daughter and son-in-law by which it was agreed Dad would be 50% beneficial owner of the property. Daughter and son-in-law held Dad’s interest on trust. Dad paid $600K: [35]

Dad also paid for other improvements to the property: [35]

In 2016, daughter and son-in-law sold the property for $2.15m. That was not paid to Dad or kept separate from their other funds: [37]

In mid-2020 Dad began to ask for his share of the money. He was unsuccessful: [39]

Various steps were taken - mediations, family discussions and the like. Daughter’s offer to pay Dad some unspecified amounts if he signed a mediation agreement were not consistent with her duties as trustee: [40]

Two payments daughter purported to make were in the form of dishonoured cheques: [41]

The Court ordered half the sale proceeds had to be repaid to Dad: [45]

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By James d'Apice

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