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District Court 2 June 2023

Woodhead v Woodhead & Anor

[2023] NSWDC 275

Other
CIVIL NOTICE OF MOTION APPLICATION TO DISCONTINUE PROCEEDINGS BREACH OF DEED WHETHER TERMS OF DEED VALID.

Citation: Woodhead v Woodhead & Anor [2023] NSWDC 275
Court: District Court of New South Wales
Date: 2 June 2023
Judge: Neilson DCJ

Background

The plaintiff, a property owner, leased agricultural land in Euston, NSW to her daughter and the daughter's partner (the defendants) under an agreement commencing in 2018. The lease included an option for the defendants to purchase the property. Following a series of alleged breaches, the plaintiff commenced proceedings seeking termination of the lease, vacant possession, and substantial damages.

The parties settled those proceedings on 1 September 2022 by executing a deed of settlement. Under that deed, the property was to be sold by public auction, with 40% of net proceeds payable to the defendants and 60% to the plaintiff. The court formally recorded the discontinuance of proceedings on 2 September 2022, noting that the plaintiff retained the right to apply to revive the proceedings.

In March 2023, the plaintiff filed a Notice of Motion seeking to set aside the discontinuance, reinstate the proceedings, and obtain judgment against the defendants, including damages of $145,000 and an order for vacant possession. She alleged the defendants had breached the deed of settlement in several respects.

  • Whether the discontinuance of the original proceedings should be set aside on the basis that the defendants had breached the deed of settlement
  • Whether a clause in the deed prohibiting any recording of the plaintiff was validly breached, noting the recording was made in response to an alleged assault
  • Whether communications sent by the defendants to the plaintiff's real estate agent constituted a breach of the deed's confidentiality provisions
  • Whether evidence from related criminal proceedings could be received in the District Court proceedings

Decision

The plaintiff's primary allegation concerned clause 7 of the deed, which prohibited the defendants from surveilling or recording the plaintiff, her guests, agents, or nominees. The plaintiff alleged the defendants breached this clause. However, the court noted the recording was made in response to an assault, a context that bore directly on the validity or enforceability of that term.

Regarding the communications with the real estate agent, the defendants had directed the agent to pay their share of the sale proceeds to their solicitor to be held on trust. The court found this was squarely within the deed's exceptions to its confidentiality clause, which permitted disclosure to legal and financial advisers and as reasonably required to give effect to the deed's terms. The agent's own response indicated he was unsurprised and was simply waiting on the plaintiff's solicitor's instructions before proceeding.

Neilson DCJ characterised the alleged breaches as frivolous and without merit. The court found no proper basis for disturbing the settlement or reinstating the proceedings, and described the motion as a whole as frivolous, vexatious, and without any proper justification. The motion was accordingly dismissed.

Orders Made

  • The Notice of Motion was dismissed
  • The plaintiff was ordered to pay the defendants' costs of the motion

Key Takeaways

  • The District Court confirmed that directing a real estate agent to pay proceeds to a solicitor held on trust falls within standard deed exceptions permitting disclosure to advisers and communications reasonably required to give effect to the deed's terms.
  • A contractual term prohibiting recording of a party may face validity questions where the recording was made in direct response to an assault on the person who made it.
  • In dismissing the motion, the court applied the principle that allegations of deed breach must be substantiated; characterising conduct as a breach without proper foundation will not be sufficient to warrant setting aside a consent discontinuance.
  • Proceedings that have been compromised by deed and formally discontinued sit on stable ground: a party seeking to revive them bears the burden of demonstrating genuine, substantiated breach of the settlement terms.
  • Procedural observations in the judgment also noted, without comment on its merits, that Victorian solicitors practising in NSW courts need not specify that a New South Wales statute is a New South Wales statute when citing it.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW)
- Inclosed Lands Protection Act 1901 (NSW)
- Surveillance Devices Act 2007 (NSW)
- Agricultural Tenancies Act 1990 (NSW), ss 19A(1), 21(1)(f), 21(1)(i)
- Civil and Administrative Tribunal Act 2013 (NSW), Part 3A
- District Court Act 1973 (NSW), s 44(1)(d2)
- Civil Procedure Act 2005 (NSW), ss 100, 101

Cases:
- Briginshaw v Briginshaw (1938) 60 CLR 336