Boardman v Boardman [2012] NSWSC 1257

Boardman v Boardman [2012] NSWSC 1257

The plaintiff signed the Heads of Agreement freely and voluntarily after legal advice and a regular mediation process, and any undisclosed mental reservation or later refusal to sign Consent Orders did not defeat the objectively binding settlement. The Heads of Agreement were immediately binding, the post-mediation dealings extended the time for execution of Consent Orders, the plaintiff could not rely on his own failure to procure Stanley's agreement, and approval of the release under s 95 of the Succession Act 2006 (NSW) was appropriate because the settlement appeared fair and reasonable and was entered with legal advice. The defendant was therefore entitled to enforcement of the...

Jurisdiction
Australia
Judgment Date
18 October 2012
Procedural Posture
Family Provision Proceedings Under the Succession Act 2006 (nsw) and Notice of Motion to Enforce Settlement Agreement / Interlocutory Application After Court Appointed Mediation
Outcome
Motion allowed with costs
Legal Topics
['family Provision' 'mediation' 'enforcement of Settlement Agreement' 'court Approval of Release of Rights' 'costs']
['succession' 'civil Procedure' 'contract'] ['family Provision' 'mediation' 'enforcement of Settlement Agreement' 'court Approval of Release of Rights' 'costs']

Case Brief

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Procedural Posture

Family Provision Proceedings Under the Succession Act 2006 (nsw) and Notice of Motion to Enforce Settlement Agreement / Interlocutory Application After Court Appointed Mediation

Legal Issues

  1. 1 ['Whether Heads of Agreement signed at a court appointed mediation should be enforced under s 73 of the Civil Procedure Act 2005 (NSW).' "Whether the plaintiff's alleged undisclosed mental reservation or subjective intention not to sign Consent Orders prevented enforcement of the settlement." 'Whether the plaintiff could rely on non-occurrence of a condition requiring sibling agreement where he delayed signing as attorney for Stanley.' "Whether the Court should approve the plaintiff's release of rights to make any further family provision claim under s 95 of the Succession Act 2006 (NSW)." 'Whether costs of the motion should be ordered on the indemnity basis.']

Ratio Decidendi

The plaintiff signed the Heads of Agreement freely and voluntarily after legal advice and a regular mediation process, and any undisclosed mental reservation or later refusal to sign Consent Orders did not defeat the objectively binding settlement. The Heads of Agreement were immediately binding, the post-mediation dealings extended the time for execution of Consent Orders, the plaintiff could not rely on his own failure to procure Stanley's agreement, and approval of the release under s 95 of the Succession Act 2006 (NSW) was appropriate because the settlement appeared fair and reasonable and was entered with legal advice. The defendant was therefore entitled to enforcement of the...

Court Disposition

Motion allowed with costs

Orders

  • ['Pursuant to s 73 of the Civil Procedure Act 2005 (NSW), the Court makes orders in accordance with paragraphs 1-8 and 11 and notes the agreement between the parties set out in paragraphs 9, 10, 12, 13 and 14 of the Consent Orders prepared to give effect to the Heads of Agreement.' "The plaintiff is to pay the...