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Queensland Judgments
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  • Unreported Judgment

Ybanez v Love

 

[2020] QDC 222

DISTRICT COURT OF QUEENSLAND

CITATION:

Ybanez v Love [2020] QDC 222

PARTIES:

TERESITA DELA PENA YBANEZ

(applicant respondent)

v

MATTHEW JAMES LOVE (as Executor of the Will of John Alexander Crawford Deceased)

(first respondent applicant)

AND

GILLIAN ALEXIS

(second respondent)

AND

SCOTT ANDREW CRAWFORD

(third respondent)

FILE NO/S:

BD 4751 of 2017

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

21 August 2020 ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

14 and 31 July and 21 August 2020

JUDGE:

Rinaudo DCJ

ORDER:

  1. Pursuant to s 50(3) of the Civil Proceedings Act 2011, the applicant, Teresita Dela Pena Ybanez, shall on or before 4.00 pm on Friday, 21 September 2020 give written notice to the first respondent, Mr Love, by notice to his solicitors, Becker Watt Lawyers, of a current bank account maintained in her name, including the name of the bank or financial institution, and details of the BSB and Account Number for the said account (‘the Bank Account’).
  2. The first respondent shall have his costs assessed upon the indemnity basis and paid out of the Estate.
  3. The applicant shall pay the Estate’s costs of this application upon the indemnity basis with such costs to be assessed and deducted from the amount of $40,000 being the balance of the amount of $50,000 payable to the applicant pursuant to the terms of the agreement made between the parties at the mediation on 20 February 2019.
  4. Within seven (7) days of the completion of any assessment of the Estate’s costs pursuant to paragraph 4 of this Order, the first respondent shall forthwith, by his solicitors, pay to the applicant the balance of the $40,000 (if any) by depositing such amount in the Bank Account.
  5. In default of the applicant complying with paragraph 1 of this Order or in the event the first respondent is prevented from depositing any amount payable to the applicant under this Order into the Bank Account, then the first respondent shall, by his solicitors, pay such amount to the Public Trustee of Queensland and give written notice to the applicant of such payment.
  6. The originating application filed by the applicant on 8 December 2017 is dismissed.
  7. The solicitors for the first respondent, Becker Watt Lawyers, shall provide to the Legal Services Commission a copy of these reasons herein, for consideration of what, if any, steps ought to be taken arising out of Mr Cross’ conduct.
  8. The solicitors for the first respondent, Becker Watt Lawyers, shall provide to the Queensland Bar Associate a copy of these reasons herein, for consideration of what, if any, steps ought to be taken arising out of Mr Edwards’ conduct as the applicant’s barrister.
  9. I propose to send a copy of these reasons herein, together with the transcript of the applicant’s evidence given before me on 14 July 2020, to the Attorney-General of Queensland with a view to consideration of what, if any, steps ought to be taken having regard to the applicant’s evidence. 

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – PARTIES – GENERAL PRINCIPLES – where the applicant claims her signature was forged on a mediation agreement and authority of payment – where the applicant gave sworn evidence to that effect – where the mediator and applicant’s barrister were subpoenaed – where the applicant’s barrister witnessed the applicant sign the mediation agreement – where the mediator did not witness the applicant sign the mediation agreement – where the applicant has not proved her signature was forged on the mediation agreement nor the authority of payment

Civil Proceedings Act 2011 (Qld) s 50(3)

Succession Act 1981 (Qld) s 41(1)

Creswick and Ors v Creswick [2010] QSC 339

COUNSEL:

R Cameron for the first respondent

The applicant appeared on her own behalf

SOLICITORS:

Becker Watt Lawyers for the first respondent

The applicant appeared on her own behalf

DISTRICT COURT OF QUEENSLAND

CIVIL JURISDICTION

JUDGE RINAUDO

No 4751 of 2017

TERSITA DELA PENA YBANEZ  Applicant

and

MATTHEW JAMES LOVE  Respondent

BRISBANE

2.22 PM, FRIDAY, 21 AUGUST 2020

JUDGMENT

HIS HONOUR:   The respondent to this application is the applicant against the estate of John Alexander Crawford, deceased, for further and better provision out of the state of John Alexander Crawford. That application was brought in the District Court pursuant to s 41(1) of the Succession Act 1981 (Qld).  In the course of those proceedings, a mediation was proposed and agreed and held.  The mediation proceeded before an independent mediator, Mr Timothy Clifton Whitney, solicitor, and he has provided an affidavit in this application. He had previously filed the mediation certificate and copy of the mediation agreement, setting out the terms of the agreement, resolving the claim by the respondent in these proceedings for a payment of $50,000. 

That mediation agreement, as I said, is filed in the court.  It’s handwritten by Mr Whitney.  He says in his affidavit that he negotiated between the parties for a lengthy period of time.  The executors offered $5000.  The respondent counteroffered $50,000, together with – and I’m reading now from the affidavit of Mr Edwards, who was the barrister who appeared for Ms Ybanez – $50,000 and permitted to reside – this is paragraph 17 of his affidavit – in the deceased’s former home, which property was occupied by the deceased’s son, Mr Scott Crawford, for a period of years.  Ms Ybanez offered that Mr Scott Crawford could continue to live in the property with her.  Subsequently, Mr Whitney conveyed a counteroffer from the trustees, offering $50,000 and no residency in the property.  This was accepted by Ms Ybanez.  Mr Edwards says at paragraph 20:

I explained to Ms Ybanez the terms and effect of the executor’s counteroffer.  I have no reason to doubt that Ms Ybanez knew and understood the terms of the counteroffer.  I told Ms Ybanez that I would give her some time to consider whether she wanted to accept the executor’s offer.  I then left Ms Ybanez with Mr Cross.

I will come back to Mr Cross momentarily:

Ms Ybanez subsequently told me that she accepted the executor’s counteroffer, and I conveyed her acceptance to Mr Whitney.  Mr Whitney subsequently returned with a handwritten document setting out the terms of the concluded agreement.  Mr Whitney read out the terms of the concluded agreement to Ms Ybanez and then left the room, leaving the document for her to sign.  The essential terms read out to Ms Ybanez were the same as the executor’s counteroffer, the terms of which had been explained to Ms Ybanez earlier.  I have no doubt that Ms Ybanez knew and understood the terms of the agreement contained in the handwritten document prepared by Mr Whitney.  I saw Ms Ybanez sign the document prepared by Mr Whitney.

He goes on to talk about a further document that was signed by Ms Ybanez , being an authority for payment, which was payment for his fees of $8000, payment to Mr Cross of $2000 and $40,000 payable to herself.  She subsequently refused to accept the amount of $40,000 and returned it to the executor.  In court, herein lies the issue, she gave evidence on oath, after being warned, that she had never seen the written agreement prepared by Mr Whitney, that she had never signed that agreement or the authority for the disbursement of the moneys, had not given authority for a notice of discontinuance to be filed and, therefore, refused to accept that she was bound by the mediation agreement.

It was incumbent then to obtain affidavits from the persons who were present at the mediation, including Mr Whitney, the mediator, and Mr Edwards, the barrister who appeared for her.  And I have read the salient parts of Mr Edwards’ and Mr Whitney’s affidavits showing that Ms Ybanez was clearly represented and her position was explained to her.  She had counteroffered with a figure including a residency of the premises, which was rejected.  She then accepted the counteroffer and signed the agreement.

I’m satisfied on balance that the signatures shown on the documents are her signatures, and I accept, given the evidence of Mr Edwards in his affidavit, that she was fully aware of their contents and entered into that agreement freely knowing her rights in respect of it.  I also note the authority of Creswick which has been provided, [2010] QSC 339, and note that that is authority pursuant to paragraph 113 that the onus of establishing that the signature is a fraud is on Ms Ybanez on the balance of probabilities, and she has not done that solely by her evidence in the witness box, having regard to the evidence of her barrister.

I should also note, as I said, that Ms Ybanez apparently had with her a gentleman called Mr Wayne Cross during the course of the mediation.  Mr Cross is not known to the court.  He has not been able to be contacted to give any evidence.  But it is disturbing that Ms Ybanez provided an email from him to her in which he talks about – and I might just read it:

Four months ago, with no lawyer or barrister to act for you, I changed all of that after fielding inquiries every work day, taking a full two weeks of calls every day to find a suitable barrister to act for you on a pro bono basis, thus taking away the doubtless fees for a law firm brief upfront, then to a barrister again and fees upfront.

He talks about:

Then I had to personally meet the two barristers, one of whom finally accepted the challenge, then bring you in.  Bui (sic) ordinary standards, at least $10,000 upfront and no guarantee of any settlement.  As it was put correctly yesterday by the chair to me, you were wise to accept the settlement, as you would have ordinarily failed under the two year qualifying rule and been bankrupted in a few months.  What you get as some reward rather than nothing was under that particular law, and we can’t change that law you are claiming under.

He then goes on to talk about his success fee of 10 per cent, and he says that:

At one stage, I said I worked on a success fee of 10 per cent, and bearing in mind all of the effort to get you something, I was not consulted by you yesterday when payment directions were made, but rather I was told that I was getting 10 per cent of 50,000 is 5000, so at 2000, I am ways short of the mark.  As you know, I had more meetings with you than anyone else.

He then goes on to talk about him taking a station wagon car in exchange for the balance of his “success fee”.  The email was disturbing.  I don't know what his role was.  It does appear he was giving her some advice and assisting her and acting on her behalf for a “success fee”, which clearly he would not be entitled to, unless he was a qualified lawyer.  It’s a matter which may need further consideration.  I’m also concerned that the payment to Mr Edwards appears to be $8000.  He says that he was a direct brief in his affidavit, although Mr Cross talks about a pro bono brief.  I don't know if Mr Edwards has the usual documents required for direct briefing, and also, if he appeared only for her in the mediation. The $8000 seems like an exceptionally large fee.

I note that Ms Ybanez has “filed” an “order” seeking certain things, including a claim over a property, and in that regard, I note the affidavit of Mr Watt, the solicitor for the executor, saying that that property never formed part of the deceased’s estate.  There are records exhibited to that affidavit which show the property and the ownership of the property, and it does appear from those that the property is owned by somebody other than the deceased testator and has never been owned by him.

Ms Ybanez has also sent in to the court an “affidavit”, which is not signed or sworn. The unsworn affidavit and the order do not constitute an application to this court and I do not have to deal with them. In the circumstances, I am satisfied that Ms Ybanez made a claim against the estate for further and better provision out of the estate.  It appears from what I’ve been told that her claim was, at best, tenuous.  At mediation, when she was represented, she agreed to resolve her claim for the sum of $50,000 and an agreement was prepared by the mediator in writing.  I’m satisfied that Ms Ybanez signed that agreement after getting advice from Mr Edwards.  I’m also satisfied she signed the authority to disburse the funds, the cheques were drawn by the trustees in accordance with that authority, and I'm satisfied that she refused her cheque and returned it.  I’m also satisfied that she gave Mr Edwards instructions to file a notice of discontinuance of her proceedings.

In those circumstances, it seems to me that the relief sought by the trustee, who has an obligation to conclude the estate and pay the estate moneys out, in terms of the draft order that has been provided to me and a copy to Ms Ybanez on 14 July 2020, is appropriate, and I propose to make those orders.  For the record, I note that Ms Ybanez is to provide a bank account by close of business – now, we’ll have to change that to – we’ll give her a week?

MR CAMERON:   Perhaps give 14 days, your Honour.

HIS HONOUR:   Thirty days?

MR CAMERON:   I’d give – yeah.

HIS HONOUR:   Thirty days?  All right.  So 21 September; is that right?

MR CAMERON:   I’ll let you know in one    

HIS HONOUR:   Yes.

MR CAMERON:   In one moment.  Thirty days.

HIS HONOUR:   Yes.  Twenty-one exactly.

MR CAMERON:   Yes.

HIS HONOUR:   Yes.  Okay.  Twenty-one-nine-twenty.  So that $20,000 can be paid into the account of the $40,000 that’s owing.  The other 40,000 will be retained against costs.  I will order that the first respondent shall – costs shall be paid out of the estate.  That’s the applicant’s costs shall be paid out the estate.  The applicant’s costs shall be paid out of the state upon an indemnity basis.  I’m satisfied in this case that this application by Ms Ybanez and particularly given the evidence which I have now found to be false that her resistance to the application is spurious, and I consider that costs on an indemnity basis should be paid.  I will order that the estate costs of the application on the indemnity basis be paid by her out of the 20,000, any balance be forwarded to her.  If she refuses to give a bank account by 21 September, the moneys are to be paid to the Public Trustee as per the draft order.  And then the originating application filed, that has been discontinued, hasn’t it?

MR CAMERON:   No.

HIS HONOUR:   What, was the notice of discontinuance not filed?

MR CAMERON:   It was sent to Mr Scott Crawford and has never been returned by him.  So hence why we simply seek the order for dismissal, because he filed a cross-application in these proceedings, but, of course, that’s all been dealt with.

HIS HONOUR:   Resolved.

MR CAMERON:   Yeah.

HIS HONOUR:   All right.  So there’s no impediment to me making the order to dismiss the application.

MR CAMERON:   No.  No.

HIS HONOUR:   All right.  Well, I’ll make that order.  Is that everything?

MR CAMERON:   That’s everything.  Yeah.

HIS HONOUR:   All right.  Okay.  In those circumstances, I note it’s now 2.39.  There’s still no response from    

MR CAMERON:   And we’ve received no response to the text message.  Does your Honour require the executor to forward the papers to – in light of your Honour’s remarks?

HIS HONOUR:   To forward?

MR CAMERON:   To forward in light of    

HIS HONOUR:   Yes.

MR CAMERON:   Because your Honour has raised    

HIS HONOUR:   Yes.

MR CAMERON:      the concern that we formed    

HIS HONOUR:   Yes.

MR CAMERON:      particularly about Mr Cross.

HIS HONOUR:   Yes.

MR CAMERON:   And I suspect that he doesn’t hold a practising certificate.

HIS HONOUR:   No.  Well, just for the record, I’ve checked the Queensland Law Society, and he doesn’t hold a practising certificate.

MR CAMERON:   Yes.  So I note your Honour has made the remarks about Mr Edwards.  We’d refer the papers as well to the Bar Association.

HIS HONOUR:   I think so.

MR CAMERON:   Yeah.

HIS HONOUR:   Yes.  Okay.  That would be good, if you’d do that, and the false evidence, you’re going to refer that, are you?

MR CAMERON:   If your Honour    

HIS HONOUR:   Or, well, I’ll do that.

MR CAMERON:   It probably is a matter for your Honour to refer.

HIS HONOUR:   Yes.  It’s a matter for me.

MR CAMERON:   Yes.

HIS HONOUR:   Okay.

MR CAMERON:   But, otherwise, we will – once your Honour’s reasons are published, we’ll forward that to the relevant    

HIS HONOUR:   Okay.

MR CAMERON:      authorities.

HIS HONOUR:   All right.  That’s excellent.

MR CAMERON:   Thank you.

HIS HONOUR:   Okay.  That’s it.  We can close the court.  And thank you very much.

MR CAMERON:   Thank you, your Honour.

Close

Editorial Notes

  • Published Case Name:

    Ybanez v Love

  • Shortened Case Name:

    Ybanez v Love

  • MNC:

    [2020] QDC 222

  • Court:

    QDC

  • Judge(s):

    Rinaudo DCJ

  • Date:

    21 Aug 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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