In Atchison v Holloway & Anor; Holloway & Anor v Atchison [2024] NSWSC 1523, Two sets of legal proceedings are currently before the Court. The first involves a claim by Noelene Joan Holloway (Defendant in Possession Proceedings; Plaintiff in Family Provision Proceedings) against Lorraine Ann Atchison and Jennifer Ada Richards, the executors of the estate of Joan Singline(the executors). The plaintiff and executors are sisters and daughters of Joan Singline (the deceased), who died on 15 May 2023.
Jennifer Richards (Second Plaintiff in Possession Proceedings; Second Defendant in Family Provision Proceedings) will also collect photographs and albums, including those belonging to Carole, for distribution. The property must be maintained in reasonable condition, with any abandoned items subject to disposal by the defendants.
Jennifer Ada Richards (Second Plaintiff in Possession Proceedings; Second Defendant in Family Provision Proceedings)
Noelene Joan Holloway (Defendant in Possession Proceedings; Plaintiff in Family Provision Proceedings)
The first proceeding is a family provision claim in which the plaintiff seeks orders concerning the deceased estate.
The second proceeding, initiated by Jennifer Ada Richards (Second Plaintiff in Possession Proceedings; Second Defendant in Family Provision Proceedings), seeks an order for possession of the property in Hamlyn Terrace (the Property). The plaintiff resides at the Property, which the deceased owned until her death and is now owned by the executors.
On 27 May 2024, a Court-annexed mediation took place concerning both proceedings. During the mediation, the parties reportedly agreed to resolve both matters. However, the agreement has not been implemented, leading to the current matters before the Court.
The executors filed the first Notice of Motion on 31 July 2024, later amended on 19 August 2024, seeking enforcement of the settlement agreement.
The plaintiff filed the second Notice of Motion on 26 July 2024 (lodged in Court on 31 July 2024); submitting the Possession Proceedings is an abuse of process and should be stayed until following the resolution of the Family Provision Proceedings. The critical issues for determination are:
- 1. Whether the parties reached an agreement at the mediation on 27 May 2024;
- 2. Whether the agreement is invalidated in any way; and
- 3. If valid, what orders should the Court make to enforce the agreement?
If the Court decides these issues favour the executors, it will dismiss the plaintiff’s Notice of Motion.
Background:
The plaintiff moved in with her parents in 2009 and cared for them until their deaths (her father in January 2018 and her mother, the deceased, in May 2023). The plaintiff lived at the Property and owned 29 greyhounds housed there.
The Will:
The deceased’s 2022 Will divides her estate equally among her five daughters, with two serving as executors.
The Court granted probate in September 2023, and the plaintiff initiated Family Provision Proceedings in December 2023, seeking further provision from the deceased estate.
Legal Disputes:
In January 2024, the executors initiated Possession Proceedings to reclaim the deceased’s property.
Mediation occurred in May 2024, resulting in a handwritten agreement signed by all parties. The terms included possession arrangements, and the plaintiff continued occupying the property until March 2025.
Settlement Agreement:
The agreement sought to resolve both the Family Provision and Possession Proceedings.
Draft consent orders based on the mediation agreement were prepared but faced technical objections from the Court. Despite this, the agreement was deemed enforceable under the objective theory of contract.
The Plaintiff’s Position:
The plaintiff expressed regret and feelings of unfairness over the settlement, claiming the executors placed pressure on her during mediation.
The plaintiff raised concerns about legal costs and the agreement’s divergence from the deceased’s alleged wishes.
Court’s Findings:
The Court upheld the settlement agreement, ruling it binding and enforceable.
The Court granted the executors’ application to enforce the agreement under the Civil Procedure Act 2005 (NSW) and dismissed the plaintiff’s application to stay the Possession Proceeding.
The plaintiff will retrieve items in the glass cabinet within 14 days; if there’s no consensus on distribution, they will be appraised and allocated using a die roll.
Decision
Possession Proceedings: Judgment in favour of the plaintiffs regarding the possession of the property at 546 Pacific Highway, Hamlyn Terrace, to take effect on 15 March 2025, following which the defendant must vacate the property. After this date, the plaintiffs can request a writ of possession; however, the execution of this writ can only occur seven days after the specified date.
Furthermore, the defendant will be responsible for indemnifying the plaintiffs for any expenses incurred while enforcing the writ, with these costs deducted from the plaintiff’s share of the deceased estate. The court has determined that there will be no order for the defendant’s legal costs, meaning the defendant will bear these expenses herself. In contrast, the plaintiffs will have their costs covered by the deceased’s estate on an indemnity basis.
Both parties are permitted to make applications with a three-day notice period. The Court dismissed the defendant’s notice of motion filed in July 2024.
Family Provision Proceedings: The plaintiff (Defendant in Possession Proceedings; Plaintiff in Family Provision Proceedings) has the right to reside at 546 Pacific Highway, Hamlyn Terrace, for 22 months following the deceased’s passing until 15 March 2025. The plaintiff is responsible for her legal costs. At the same time, the (Defendant in Possession Proceedings and the Plaintiff in Family Provision Proceedings) can claim costs from the deceased’s estate on an indemnity basis.
Acknowledgment of related court proceedings: Lorraine Ann Atchison and Jennifer Ada Richards (Second Plaintiff in Possession Proceedings; Second Defendant in Family Provision Proceedings)v Noelene Joan Holloway (Defendant in Possession Proceedings; Plaintiff in Family Provision Proceedings).
The plaintiff will arrange for the collection of the ashes by Jennifer Richards for interment. Additionally, within 14 days, Jennifer Richards will gather the items from the glass cabinet and distribute them to the beneficiaries. If the parties cannot agree on the distribution, the items will be valued, and distribution will follow the roll of a die. Jennifer will also collect the photographs and albums designated for the defendants, including those that belonged to Carole. It is important to note that the occupant of the deceased’s property must keep it in reasonable condition; any items that remain unremoved will be deemed abandoned and may be disposed of by the defendants.