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Ybanez v Love[2021] QCA 224

SUPREME COURT OF QUEENSLAND

CITATION:

Ybanez v Love & Ors [2021] QCA 224

PARTIES:

TERESITA DELA PENA YBANEZ

(applicant)

v

MATTHEW JAMES LOVE (as executor of the will of John Alexander Crawford deceased)

(first respondent)

GILLIAN ALEXIS

(second respondent)

SCOTT ANDREW CRAWFORD

(third respondent)

FILE NO/S:

Appeal No 10746 of 2020

DC No 4751 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time/General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane – [2020] QDC 222 (Rinaudo DCJ)

DELIVERED ON:

15 October 2021

DELIVERED AT:

Brisbane

HEARING DATE:

26 July 2021 and 24 September 2021

JUDGES:

McMurdo and Bond JJA and Ryan J

ORDERS:

  1. Application for leave to appeal refused.
  2. Applicant to pay the respondent’s costs of the application for leave to appeal.

CATCHWORDS:

PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – OTHER MATTERS – procedural fairness – discretion to set aside order made in absence of a party – where the parties participated in a court-ordered mediation of a claim for provision out of the deceased’s estate – where the parties signed a settlement agreement at mediation – where the appellant asserted that no settlement agreement had been reached – where the respondent executor applied for orders to give effect to the settlement agreement – where the primary judge held that the settlement agreement was enforceable and made orders accordingly – where the primary judge’s orders were made in the absence of the appellant – whether the appellant afforded sufficient opportunity to be heard – whether the primary judge’s orders ought to be set aside

CONTRACT – GENERAL CONTRACTUAL PRINCIPLES – FORMATION OF CONTRACTUAL RELATIONS – whether the parties to a settlement agreement reached at mediation ought to be held to it – where the appellant denied that the parties had reached agreement at mediation – where the appellant alleged that her signature had been forged on the settlement agreement – where the respondent brought an application for orders to enforce the agreement, under section 50 of the Civil Proceedings Act 2011 – whether the primary judge erred in making orders to enforce agreement

Civil Proceedings Act 2011 (Qld), s 50

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40, cited

Grimshaw v Dunbar [1953] 1 QB 408, cited

O'Neill v Schlatter [1998] QCA 175, cited

Owen v ANZ Banking Group Limited [1996] QCA 25, cited

Taylor v Taylor (1979) 143 CLR 1; [1979] HCA 38, cited

WR Carpenter Aust Ltd v Ogle & Anor [1999] 2 Qd R 327; [1997] QCA 383, cited

COUNSEL:

The applicant appeared on her own behalf

R Cameron for the first respondent

No appearance for the second and third respondents

SOLICITORS:

The applicant appeared on her own behalf

Becker Watt Lawyers for the first respondent

No appearance for the second and third respondents

  1. [1]
    McMURDO JA:  I agree with Ryan J.
  2. [2]
    BOND JA:  I agree with the reasons for judgment of Ryan J and with the orders proposed by her Honour.
  3. [3]
    RYAN J:  John Alexander Crawford died in April 2017, aged 92.  The applicant, Teresita Ybanez, lived with him from 1990 until 2012, when he was transferred to residential aged care.  She considered herself his de facto wife.  He left her nothing in his will.
  4. [4]
    In November 2018, Ms Ybanez applied for an order for provision out of Mr Crawford’s estate including an order that she be allowed to reside in the home she shared with him before he was transferred to aged care.
  5. [5]
    On 20 February 2019, she participated in a court-ordered mediation of her application for provision and other claims made upon the estate.  The mediation was conducted by Tim Whitney, of the firm McCullough Robertson.
  6. [6]
    The parties reached an agreement at mediation which was reduced to writing (handwriting) by Mr Whitney.  It is convenient to refer to that document as “the settlement agreement”.  Ms Ybanez’s signature appears on the settlement agreement.  The settlement agreement provided for the payment to her of $50,000 out of the estate but included no provision for her residence.
  7. [7]
    After the mediation, Ms Ybanez asserted that she had reached no agreement with the executor.  She said her signature on the handwritten agreement had been forged.  She refused to accept the money the executor attempted to pay her in accordance with the agreement and she wished to have the matter mediated again.
  8. [8]
    On 30 June 2020, the executor applied to the District Court (Rinaudo DCJ) for orders to give effect to the settlement agreement under s 50 of the Civil Proceedings Act 2011 (CPA).  The executor’s application was heard over 3 days: 14 July 2020; 31 July 2020 and 21 August 2020.  Ms Ybanez, who was self-represented, was present for the first and second days of the hearing.  She was not present on the third day, on which, after receiving further evidence from the executor, his Honour made orders in the executor’s favour and delivered reasons ex tempore.
  9. [9]
    Ms Ybanez applied for leave to appeal (out of time) against his Honour’s orders.  Her grounds of appeal reflect confusion on her part about what an appeal might achieve.  She appears to have wrongly assumed that this Court is able to consider her application for provision of a residence out of the estate.  It cannot.  However, this Court may consider whether Rinaudo DCJ’s orders ought to be set aside for error.
  10. [10]
    The respondent executor acknowledged that Ms Ybanez was not long out of time in bringing her application for leave to appeal but submitted that this Court ought to refuse to grant leave because there was no merit in her appeal.  The respondent submitted that the primary judge’s reasons were adequate and that his Honour’s findings were the only ones reasonably open on the evidence.
  11. [11]
    Ms Ybanez’s application was first listed for hearing before a Court comprising Fraser, McMurdo and Bond JJA on 26 July 2021.
  12. [12]
    At that hearing, Ms Ybanez complained that she had not been present on 21 August 2020 when the primary judge eventually heard the matter at a little after 2.00 pm.  The Court was prepared to regard her complaint as a submission, albeit without supporting evidence, that the primary judge’s decision should be set aside because, based on her statements from the bar table, the primary judge had proceeded ex parte notwithstanding that Ms Ybanez was at the Court in the morning, waited for a time, went home and found it was too late for her to get back by 2.00 pm.  The respondent objected to the reception of statements from the bar table, but the respondent’s own material did not sufficiently explain the procedure which had been adopted to serve material on Ms Ybanez and notify her of the hearing.
  13. [13]
    The Court adjourned the application.  It directed the respondent to file and serve affidavit material as to the service on Ms Ybanez of the material relied on at the hearing on 21 August 2020 and in relation to notice given to her of that hearing.  The Court directed Ms Ybanez to provide an affidavit in response, after explaining to her that she should set out in full detail her response to what was in the respondent’s affidavit and included any evidence that she wished to adduce explaining how she thought that the hearing was unfair to her.
  14. [14]
    The respondent obtained relevant evidence which was delivered to Ms Ybanez on 26 August 2021.  Ms Ybanez swore an affidavit, filed on 7 September 2021.  Her affidavit did not deal with her absence from the hearing on 21 August 2020, although it exhibited some email correspondence from and to the primary judge’s associate that day.
  15. [15]
    Ms Ybanez’s application was re-listed for hearing before a Court comprising of McMurdo JA, Bond JA and Ryan J.  During the course of oral argument on 24 September 2021, McMurdo JA explained to Ms Ybanez, that, although the Court appreciated the long history of the matter, all the Court could consider was whether Rinaudo DCJ was correct to make the orders he made to enforce the settlement agreement.  Ms Ybanez was invited to identify any error or mistake in his Honour’s decision.  Ms Ybanez was unable to do so.
  16. [16]
    I could detect no error of fact or law in his Honour’s approach to the s 50 CPA application or in his Honour’s determination of it.  Nor, having considered the evidence about the hearing on 21 August 2020, was I concerned that Ms Ybanez had been denied procedural fairness.  Accordingly, I would refuse Ms Ybanez’s application for leave to appeal because such an appeal has no merit; and order her to pay the executor’s costs of the application.  My reasons, in detail, follow.

The mediation and the need for an application under s 50 of the Civil Proceedings Act 2011

  1. [17]
    The evidence before the primary judge proved the following.
  2. [18]
    Ms Ybanez attended the mediation with her barrister, David Edwards.  Wayne Cross, apparently a retired magistrate, was present as Ms Ybanez’s friend or “support” person.  The executor, Matthew Love, was present with his lawyer; and the deceased’s two adult children, who were beneficiaries under his will, were present with their lawyers.
  3. [19]
    According to the settlement agreement, signed by Ms Ybanez on 20 February 2019, Mr Love, as executor, was to pay her $50,000 out of the estate and she was to discontinue her claims against the estate.
  4. [20]
    On 25 February 2019, Mr Whitney issued a Mediator’s Certificate to be filed in the District Court.  On 27 February 2019, he filed the Mediator’s Certificate, along with the settlement agreement.
  5. [21]
    On 21 March 2019, Mr Love caused three cheques to be drawn in accordance with payment directions apparently signed by Ms Ybanez, in the amounts of $40,000 (to Ms Ybanez); $8,000 (to Mr Edwards); and $2,000 (to Mr Cross).  Mr Edwards attended at Mr Love’s office on 21 March 2020 to collect the cheques and to sign a notice of discontinuance on Ms Ybanez’s behalf.
  6. [22]
    Ms Ybanez refused to accept the money.  On 23 April 2019, she returned her cheque to the executor’s solicitors.  They sent it to her again, the same day.  She returned it again, with a note dated 3 May 2019, which read:

Thanks to bother to send $40,000.00 ($50,000.00).

To simplify the matter but I’m returning your money for I did not agree for anything.

T Ybanez

3 May 2019

  1. [23]
    On 7 May 2020, the cheque was sent again to Ms Ybanez by Express Post, under cover of a letter which informed her that if she were to return the cheque a “second time” (sic – it would have been the third time), the executor would lodge the funds with the Public Trustee as unclaimed inheritance.  The letter enclosing the cheque was delivered to her on 13 May 2020.
  2. [24]
    Ms Ybanez did not present the cheque for payment.
  3. [25]
    The executor’s solicitors wrote to her on 29 May 2020, informing her that they held instructions to make an application under section 50 CPA to enforce the settlement agreement, and suggesting she seek legal advice.
  4. [26]
    On 1 June 2020, Ms Ybanez wrote to the executor’s solicitors, advising them that she had “re-applied” to mediate the dispute.
  5. [27]
    On 16 June 2020, in email correspondence to the executor’s solicitors, Ms Ybanez claimed that her barrister caused her to sign the payment directions; then conveyed her “offer” – of $50,000 and a residence – to the “other side”, who did not reply.  She said she and her barrister went home and her barrister “terminated himself”.  An attachment to the email stated that Ms Ybanez wished to pursue her application for further provision from Mr Crawfords’s estate “notwithstanding the PURPORTED SETTLEMENT”.
  6. [28]
    On 30 June 2020, as foreshadowed, the executor applied for orders to give effect to the settlement agreement.  In his written submissions to the primary judge, the executor argued that there was no reason to doubt the validity of the agreement reached at the mediation.  The mediation was conducted by an experienced mediator, and Ms Ybanez was represented by counsel.  Also, after the mediation, in accordance with the agreement, Ms Ybanez’s counsel signed a notice of discontinuance on her behalf, and she gave directions about the payment of the $50,000.

Day 1 of the hearing before the primary judge

  1. [29]
    Tuesday 14 July 2020, was day 1 of the hearing of the executor’s application before Rinaudo DCJ.
  2. [30]
    On that day Ms Ybanez told his Honour (from the bar table) that she did not sign the agreement.  She said, in effect, that she needed a residence – rather than money – and that she told her barrister so.  She claimed she signed nothing on the day of the mediation.  When shown the settlement agreement bearing her signature she claimed, in effect, that her signature had been forged upon it.
  3. [31]
    Ms Ybanez was then sworn.  She said in evidence that she did not recognise the handwritten settlement agreement; she had never seen it before; and it was not her signature on it.
  4. [32]
    Because a critical issue before the primary judge was whether Ms Ybanez signed the settlement agreement or not, the application was adjourned to 31 July 2020 to enable the executor to obtain evidence from Mr Whitney, Mr Edwards and Mr Cross about that issue.
  5. [33]
    Ms Ybanez then suggested (from the bar table) that her barrister had forged her signature on the notice of discontinuance and on the payment directions.

Day 2 of the hearing before the primary judge

  1. [34]
    The hearing of the executor’s application resumed on 31 July 2020 at 10.06 am.
  2. [35]
    Ms Ybanez was not immediately present.  In her absence (whilst her name was being called), his Honour discussed with counsel for the executor the evidence about Ms Ybanez’s signing the settlement agreement which the executor had been able to obtain.  His Honour was informed that the solicitor acting for the executor, Leonard Watt, had been able to obtain relevant affidavit evidence from Mr Whitney only in time for the hearing.  He had been unable to obtain sworn evidence from Mr Edwards.  He had been unable to find Mr Cross.
  3. [36]
    Ms Ybanez appeared at 10.13 am.  She confirmed that she had seen Mr Whitney’s affidavit.  His Honour told her that there had been a delay in obtaining an affidavit from Mr Edwards.  His Honour adjourned the hearing until “next Friday” – 7 August 2021.

Adjourning from 7 August 2020 until 21 August 2020

  1. [37]
    On 5 August 2020, by email to the Associate to Rinaudo DCJ, Mr Watt applied for an “administrative adjournment” of the 7 August 2021 hearing to allow time for the finalisation of statements from Mr Edwards and Mr Cross.  Ms Ybanez was copied into that email.  The matter was adjourned until 21 August 2020.
  2. [38]
    On 18 August 2020, the Associate to Rinaudo DCJ informed the parties, by email, that the hearing on 21 August 2020 would commence at “not before 11:00 am” to allow for the swearing in of Chief Judge Devereaux SC.
  3. [39]
    Mr Watt acknowledged this email.  Ms Ybanez did not.

Day 3 of the hearing before the primary judge

  1. [40]
    At 10.35 am, on 21 August 2020, the Associate to Rinaudo DCJ emailed the parties and told them that the law list listed the matter as “not before 11 am” and that it would commence at 11.00 am.  At 10.44 am, Ms Ybanez emailed the Associate to Rinaudo DCJ, informing her that she was going to be late because transport was “unavailable”.
  2. [41]
    In an affidavit prepared at the request of this Court, Mr Watt recalled that the matter came on at about 11.30 am.  The executor’s legal representatives were present.  Ms Ybanez was not.  Rinaudo DCJ informed them that Ms Ybanez told the court that she would be late and directed his Associate to inform the parties that the matter would be heard at 2.00 pm.  There is no transcript of this part of the hearing.
  3. [42]
    The transcript of the hearing on 21 August 2020 commences at 2.01 pm.  The executor’s solicitor and counsel were present at that time.  Mr Ybanez was not.
  4. [43]
    Noting Ms Ybanez’s absence, Rinaudo DCJ said to the executor’s legal representatives–[1]

“Now, as you’re aware, and because you turned up at 11 when the matter was listed, the respondent emailed the court to say that she was running late because of public transport and my Associate has had some email correspondence with her about when she’s likely to get here and the fact that it’s been put over till 2 o’clock and other matters sufficient to – or designed to keep her informed of what was going on.”

  1. [44]
    Counsel for the executor informed his Honour that Mr Watt had seen Ms Ybanez in the city.  Mr Watt’s evidence (obtained later) explained that he saw her in the food court of Queen’s Plaza at about 1.40 pm.
  2. [45]
    Ms Ybanez did not appear when her name was called.  At his Honour’s direction, the bailiff attempted to telephone Ms Ybanez on her mobile phone.  The transcript suggests that the bailiff heard the mobile phone ring, but then the call went to MessageBank.[2]
  3. [46]
    At his Honour’s direction, Mr Watt sent Ms Ybanez a text message stating –[3]

“Mz Ybanez, we are currently in court 9 on level 4 awaiting your arrival.  Could you please confirm when you arrive.  Becker Watt Lawyers.”

  1. [47]
    Ms Ybanez did not reply to that text message.
  2. [48]
    His Honour decided to proceed in Ms Ybanez’s absence after describing the attempts made to get in touch with her as follows –[4]

“…She emailed to say that she was running late because of public transport.  My Associate emailed her to ask her what time she would arrive.  There was no response.  After waiting until midday, the matter was adjourned to 2 o’clock, and my Associate notified her by email that the application would be adjourned until 2 o’clock and that she should attend then.”

  1. [49]
    The emails between Ms Ybanez and the Associate, to which his Honour referred, were marked as exhibits at the hearing although they do not all appear in the appeal record book.
  2. [50]
    I note that, in reply to Ms Ybanez’s 10.44 am email that she was going to be late because her “transport” (rather than public transport) was “unavailable”, at 11.02 am, the Associate informed Ms Ybanez that she would pass the email onto his Honour.  At 11.04 am, the Associate emailed Ms Ybanez and asked her to estimate when she would arrive at court.  I infer that the Associate received no reply.  I also note that the email sent by his Honour’s Associate to the parties at midday, informing them that the matter would commence at 2 pm in a certain courtroom, did not explicitly inform them that they should attend court at that time although that was implicit.
  3. [51]
    His Honour confirmed that the text message had been sent to the mobile number noted as Ms Ybanez’s number on the court file and proceeded at about 2.13 pm.
  4. [52]
    His Honour noted that Ms Ybanez had delivered to the District Court a draft “order” seeking certain relief, although it had not been filed.  Nor was it accompanied by an application.
  5. [53]
    Ms Ybanez’s draft order proposed provision to Ms Ybanez of “LOT 5 MOFFATT ESPLANADE TOORBUL QLD and the Estate Funds in the Trust Account”.  The draft order also contained terms to the effect that Ms Ybanez did not “consent” to the outcome of the mediation.
  6. [54]
    His Honour noted also that Ms Ybanez sent to the District Court, by email, a 2-page unsworn/unsigned affidavit which dealt with the conduct of the mediation.

Disposition of the executor’s section 50 application

  1. [55]
    On the question whether Ms Ybanez’s signature had been forged on the settlement agreement, the executor submitted that the onus was on Ms Ybanez to prove it, referring to relevant authority.
  2. [56]
    To show that it had not been forged, the executor relied upon Mr Edwards’ affidavit evidence that he had seen Ms Ybanez sign the settlement agreement.  He invited his Honour to compare Ms Ybanez’s signature on the settlement agreement with her undisputed signature as it appeared on her affidavits on the court file to further support the conclusion that the signature on the settlement agreement was not a forgery.
  3. [57]
    In response to Ms Ybanez’s draft order, the executor relied upon an affidavit of Mr Watt, which explained that the Moffatt Esplanade property was not part of Mr Crawford’s estate.
  4. [58]
    His Honour observed that it was difficult for Ms Ybanez to argue that she did not sign the settlement agreement when Mr Edwards was there and said he saw her sign it.[5]
  5. [59]
    His Honour observed that the order sought by the executor was in terms “slightly different” from the application, but Ms Ybanez had seen the draft order and “the effect of the application was the same”.[6]
  6. [60]
    His Honour then made his findings of fact and gave reasons to explain the basis of those findings and his decision to make orders in favour of the executor.
  7. [61]
    With respect to the facts, his Honour found that Ms Ybanez had –
    1. (a)
      agreed at the mediation to resolve her claim for further provision by being paid $50,000;
    2. (b)
      signed the settlement agreement after receiving advice from Mr Edwards;
    3. (c)
      signed the payment directions;
    4. (d)
      given Mr Edwards instructions to sign the notice of discontinuance; and
    5. (e)
      refused to accept payment of the sum $40,000 being the balance payable to her.
  8. [62]
    In his reasons, Rinaudo DCJ said that he had read the “salient parts” of the affidavits of Mr Edwards and Mr Whitney which showed 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 [from the executor] and signed the agreement”.[7]
  9. [63]
    His Honour explained that he was satisfied on balance that Ms Ybanez’s signatures were on the settlement agreement and on the payment directions.  His Honour accepted the evidence of Mr Edwards that Ms Ybanez entered into the settlement agreement (as signified by her signing it) aware of its contents, freely, and knowing her rights in respect of it.  His Honour rejected Ms Ybanez’s evidence to the contrary, noting that she bore the onus.  His Honour said –

“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.”

  1. [64]
    Additionally, his Honour was satisfied that Ms Ybanez instructed Mr Edwards to sign the notice of discontinuance.  His Honour was satisfied that the executor drew funds in accordance with Ms Ybanez’s payment directions and that she refused to accept her cheque.
  2. [65]
    With respect to Ms Ybanez’s draft order, his Honour correctly observed that neither it, nor the unsworn/unsigned affidavit sent by email, amounted to an application to the court and he therefore did not have to deal with them.
  3. [66]
    His Honour was satisfied that it was appropriate to grant relief in terms of the draft order provided by the executor to give effect to the settlement agreement.  His Honour’s orders included an order that Ms Ybanez give details of her bank account to the executor, so that he could pay her $40,000 net of certain costs, and an order dismissing Ms Ybanez’s application for provision.  Counsel for the executor explained that the application for provision had not been discontinued because the deceased’s son did not return, signed, the notice of discontinuance.
  4. [67]
    At the end of the hearing, his Honour noted that, as at 2.39 pm, there had been no response by Ms Ybanez to the text message sent to her.

The notice of appeal

  1. [68]
    On 23 November 2020, Ms Ybanez filed a notice of appeal, seeking the following orders –
  1. That the Appellant be granted leave to appeal;
  2. That the Order of Judge Rinaudo DCJ be set aside;
  3. That [she] be granted one half of the Estate of John Alexander Crawford; and
  4. That the estate pays all legal costs associated with this Appeal and earlier Application for further and better provision.
  1. [69]
    Ms Ybanez’s written appeal submissions inter alia
    1. (a)
      asserted her right to the Moffatt Esplanade property;
    2. (b)
      asserted that the “mediation procedure” was not followed and that the court could not accept the Mediator’s Certificate;
    3. (c)
      asserted that the “scribbled” settlement agreement was unlawful;
    4. (d)
      asserted that the mediation “deal” to which she agreed was “No property no $50K” and that her signature on the agreement was forged; and
    5. (e)
      asserted that she did not sign the payment direction.
  2. [70]
    The content of the grounds stated in the Notice of Appeal suggested that Ms Ybanez’s principal concern was about the way in which his Honour “dealt” with her draft order, seeking the Moffatt Esplanade property.  Ms Ybanez did not appear to understand that her draft order did not amount to an application which his Honour was required to consider.  Ms Ybanez did not appear to understand that the application properly before his Honour concerned the settlement agreement and did not require (or indeed permit) his Honour to decide anything about the Moffatt Esplanade property.  Nor did she appear to understand that this Court could only deal with an appeal from the orders which had the effect of enforcing the settlement agreement.

The first hearing before this Court

  1. [71]
    In her opening submissions on 26 July 2021, Ms Ybanez complained that she had not been present when the primary judge made his decision on 21 August 2020.  She said she attended the District Court at 9.00 am that day but left at around 10.00 am because nobody was there.  She had lunch and returned to the courthouse at 11.00 am.  Still no one was there, so she went home to Caboolture.  She accepted that the Court had contacted her to tell her that the matter had been adjourned until 2.00 pm but said, in effect, that by the time she was so informed, she was at home and unable to make it back to court by 2.00 pm.  The next thing she heard was that her originating application had been dismissed.
  2. [72]
    As I have recorded, the Court was prepared to regard her complaint as a submission, albeit without supporting evidence, that the primary judge’s decision should be set aside because the primary judge had proceeded ex parte unfairly.  The respondent objected to the reception of Ms Ybanez’ statements from the bar table, but the respondent’s own material was insufficient in some respects.  The Court intimated that it was inclined to adjourn the hearing to permit both sides to prepare further evidence and explained to Ms Ybanez that her affidavit would need to set out in full detail her response to what was in the respondent’s affidavit and including any evidence that she wished to adduce explaining how she thought that the hearing was unfair to her.
  3. [73]
    After discussion of timetabling matters with the parties, the Court adjourned the hearing and made the following orders –
    1. (a)
      by 23 August 2021, the respondents file and serve upon Ms Ybanez an affidavit or affidavits as to service upon Ms Ybanez of the affidavits relied upon by the respondents at the hearing on 21 August 2020 and in relation to notice given to the Ms Ybanez of that hearing;
    2. (b)
      by 4.00 pm on 30 August 2021, Ms Ybanez file and serve upon the respondents an affidavit in response to the affidavit filed by the respondents;
    3. (c)
      the further hearing of appeal is adjourned to a date to be fixed by the registrar; and
    4. (d)
      the costs of that hearing be reserved.
  4. [74]
    On 24 August 2021, Mr Watt filed an affidavit in accordance with order (a) above.  His affidavit included: evidence about the email correspondence between his Honour’s Associate and the parties about the start time for the hearing on 21 August 2020 (already incorporated into the chronology above); evidence to the effect that Ms Ybanez had been served with relevant affidavit material from Mr Whitney and Mr Edwards for the hearing on 21 August 2020; and evidence that Mr Whitney and Mr Edwards were available for cross-examination on 21 August 2020.
  5. [75]
    Mr Watt affirmed that he saw Ms Ybanez in the basement food court area of the Queens Plaza building at about 1.40 pm on 21 August 2020.  He confirmed that he sent a text message to her at about 2.00 pm, as directed by his Honour, and that he received no answer to his text.
  6. [76]
    Ms Ybanez filed (late) an affidavit.[8]  It and its attachments dealt primarily with her claim upon Mr Crawford’s estate and her status as his de facto partner.
  7. [77]
    Notwithstanding what Ms Ybanez had been told by Fraser JA about the need for sworn evidence about her absence from court on 21 August 2020, her affidavit did not deal with that matter.  Also, the only paragraph of it dealing with the settlement agreement is paragraph 12 which states –

“The Appellant would like to request the decision based on legality of the “Hand Written Agreement” by the chosen Mediator Tim Whitney by the respondent dated 06 Dec 2018 The Appellant’s consent signature was left unsigned and went proceeded appointing Tim Whitney as the Mediator.”

  1. [78]
    That seemed to be a complaint about the original appointment of Mr Whitney as mediator.  Obviously, it says nothing about Ms Ybanez’s signature on the settlement agreement.

Consideration

Did Rinaudo DCJ afford Ms Ybanez sufficient opportunity to be heard on 21 August 2020?

  1. [79]
    This Court was concerned to ensure that Ms Ybanez had an opportunity to be heard on 21 August 2020.
  2. [80]
    In Taylor v Taylor (1979) 143 CLR 1, Gibbs J (as his Honour then was) (with whom Stephen J agreed) referred to authority which explained that it was a fundamental principle of natural justice, or a deep-rooted principle of law applicable to all courts, that a person against whom a claim or charge is made be given a reasonable opportunity to appear and present their case.  A litigant who is unintentionally absent should be allowed to later come to court and present their case, on suitable terms as to costs.  As a corollary of the requirement to provide all parties with an adequate opportunity to be heard, the court had a discretion to set aside an order made in their absence.
  3. [81]
    Taylor v Taylor was applied in this Court in WR Carpenter Aust Ltd v Ogle & Anor [1999] 2 Qd R 327.  In that case, Williams J (as his Honour then was) held that, if the appellant mortgagor satisfied the court that his non-appearance when a foreclosure order was made was not due to any fault on his part, then the Supreme Court had an inherent jurisdiction to set aside that order in the exercise of its discretion.  The primary Justice wrongly concluded that he had no such jurisdiction and therefore had not turned his mind to the reason for the appellant’s failing to appear.  The matter was remitted for further consideration by a chamber (applications) judge.
  4. [82]
    In O'Neill v Schlatter [1998] QCA 175, this Court held that the decision in Taylor v Taylor compelled the conclusion that there was in inherent power in the District Court to set aside orders made ex parte.  The Court accepted that the applicant for appeal had a right to apply to the District Court to have the matter re-heard and considered an appeal unnecessary.  The Court made the same point in Owen v ANZ Banking Group Limited [1996] QCA 25 but decided to nevertheless determine the appeal on its merits.
  5. [83]
    In Allesch v Maunz (2000) 203 CLR 172 Gaudron, McHugh, Gummow and Hayne JJ at [27] and [28] considered Taylor v Taylor and explained that a Court will ordinarily be satisfied that there has been a miscarriage of justice if a person has suffered an adverse order made in his or her absence in circumstances where his or her failure to appear is adequately explained, unless it also appears that no different result would be reached on a rehearing or that a rehearing would work an irremediable injustice to the other side.  Kirby J considered in detail the principle “to afford a hearing”, which, as his Honour explained, lay deep in the common law as a rule of procedural fairness.  As his Honour explained, all that the law and the principle required was the affording of the opportunity to be heard.  A court is not obliged to adjourn proceedings indefinitely until a party is ready to appear.  His Honour said (footnotes omitted) –

“[38] … it is worth emphasising that the principle just described does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected.  Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided.  Affording the opportunity is all that the law and principle require.

[39] Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their best interests …

[40] Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment.  The rights of other parties are commonly involved.  In the Family Court, the rights of non-parties (especially children) may be affected.  Additionally (as this Court has itself accepted), the rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in conducting litigation.”

  1. [84]
    His Honour considered the “special rule” provided for in Grimshaw v Dunbar [1953] 1 QB 408 at 414-415 (an authority referred to by Gibbs and Mason JJ in Taylor v Taylor) and other cases, to the effect that, if the absence of a party is adequately and promptly explained, then justice ordinarily demanded a re-hearing.  His Honour was not convinced that the special rule ought to govern every case.  If no reasonable explanation were given for a default, then it was not an injustice to deny the party in default an opportunity to be heard.  Also, the reasonableness of the explanation ought to take into account the legitimate interests of other affected parties and the general public.  The interests at stake included a general respect for the finality of judicial orders and the efficient management of judicial proceedings, consistent with their fundamental objectives, including the attainment of justice.
  2. [85]
    The respondent executor did not suggest that Ms Ybanez ought to have applied to the District Court, rather than to this Court, to set aside the orders made in her absence.  In my view, it would be appropriate for this Court to deal with the matter in all of the circumstances, including the undesirability of further delay.
  3. [86]
    Ms Ybanez presented no sworn or affirmed evidence to this Court to establish that her absence from the District Court on 21 August 2020 was unintentional, or that it was not due to her own fault.  Nor did she present sworn or affirmed evidence to otherwise reasonably explain it.  However, from the bar table she said, in effect, that 
    1. (a)
      she was “here” on 21 August 2020 (at 11), because she believed the hearing was scheduled for “something like 11”;
    2. (b)
      she was at court, “actually”, at 9.30 but no one was there.  She stayed for 30 minutes;
    3. (c)
      she “came back after eating” at 12 o’clock, but still no one was there;
    4. (d)
      she had seen in the affidavit material that “everyone” was calling her; and
    5. (e)
      she checked her email when she got home and saw that his Honour’s “office” had emailed to say that the matter was adjourned until 2 o’clock.
  4. [87]
    She also seemed to be expressing disbelief at the suggestion that an attempt had been made to call her because she had been holding her phone (and, implicitly, had not received a call).
  5. [88]
    McMurdo JA informed Ms Ybanez that the Court had seen her email to his Honour’s associate at 10.44 am on 21 August 2020 in which she stated that she would be late because she had difficulty getting transport.  That email was obviously inconsistent with her statements that she was at the court at 9.30 or 11 am.  She seemed to deny that she had sent such an email, stating, “No, sir.  I ring up [his Honour’s associate].  We – just I ring, sir, because how could you email when you don’t have any luck [indistinct] I’m just only – I’m relying on the phone …”  That assertion, that she telephoned his Honour’s associate, is obviously contradicted by evidence of the email.
  6. [89]
    I infer that, by 21 August 2020, Ms Ybanez was sufficiently familiar with court procedures to realize the importance of attending Court at the times nominated by the Court.  She had been present for days 1 and 2 of the hearing.  She was notified of, and aware of, the time of the hearing.  Indeed, I infer, from the timing of the emails, that her email of 10.44 am was sent in direct response to the email from his Honour’s Associate at 10.35 am, informing her (and the executor) that the matter would be heard at 11 am.
  7. [90]
    I infer that, as at 10.44 am, Ms Ybanez was able to send and receive email correspondence from the District Court.  Ms Ybanez has produced no evidence to explain how it might be then that she did not receive the emails from the court asking her when she might arrive (sent not long after 10.44 am) and informing her at midday that the matter would be heard at 2 pm.
  8. [91]
    Ms Ybanez has produced no evidence to contradict the evidence of Mr Watt that she was in the food court of Queens Plaza at 1.40 pm.  She has produced no evidence to explain where she was at relevant times.  She has produced no evidence to explain why she did not respond to the text message sent to her by Mr Watt; nor to explain why she did not contact the District Court soon after she received the email informing her that court would resume at 2 pm.
  9. [92]
    With respect to Ms Ybanez’s unsworn statements to the effect that she went home at 11 am, and that by the time she learnt that the hearing would resume at 2 pm it was too late for her to attend at the courthouse, I note that she did not contact the court, or his Honour’s Associate, within a reasonable time thereafter, explaining why she was not present at 2 pm.  Nor did she, at any reasonable time thereafter, seek another hearing by his Honour.  Further, as already observed, Ms Ybanez’s unsworn statements are not consistent with her 10.44 am email which conveyed that she was then on her way to court.  Even if they were available to me as evidence, Ms Ybanez’s unsworn statements would not have amounted to an adequate explanation for her failure to appear before Rinaudo DCJ at 2.00 pm.
  10. [93]
    I am satisfied that Ms Ybanez was afforded sufficient opportunity to appear before, and be heard by, Rinaudo DCJ when his Honour made his orders, but she did not avail herself of that opportunity.  Ms Ybanez was not denied procedural fairness on 21 August 2020 and I would not therefore set aside his Honour’s orders on that basis.

Did the primary judge err in making orders to give effect to the settlement agreement?

  1. [94]
    Apart from asserting that her signature had been forged, Ms Ybanez was unable to say why it was that Rinaudo DCJ was wrong to make orders enforcing the settlement agreement.
  2. [95]
    When pressed in this Court, she reverted to arguments about the merits of her application for provision.  When further pressed, she described some aspects of the mediation process (which involved the parties being in separate break out rooms) and claimed, in effect, that she had conveyed to Mr Cross and Mr Edwards her desire to go back to her “residence”.  She also repeated that she had not seen the agreement which bears her signature.
  3. [96]
    In my view, the factual conclusions which underpinned his Honour’s orders, including that Ms Ybanez had signed the settlement agreement, freely, on advice, were well open to his Honour on the evidence.
  4. [97]
    Mr Edwards’ affidavit evidence included the following about the circumstances in which Ms Ybanez came to sign the settlement agreement –

“[13] There was an initial opening session chaired by Mr Whitney at which the lawyers for the parties stated their respective client’s cases.

[14] At the end of the opening session I, along with Ms Ybanez, and Mr Cross were asked the leave the room while the other parties discussed between themselves Ms Ybanez’s claim against the Estate.

[15] Subsequently, the parties made offers and counter-offers aimed at reaching a compromise.  Mr Whitney conveyed the various offers and counter offers made between the parties during the day.

[16] During my time with her on the day of the mediation I give Ms Ybanez advice as regards her ultimate prospects of success.

[17] Late in the day, I recall conveying an offer to Mr Whitney for him to convey to the Executor to the effect that Mr (sic) Ybanez would settle her claim on the basis that she was be paid an amount of $50,000 and permitted to reside (sic) 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.

[18] After having conveyed to Mr Whitney the above offer, he returned and advised that the Executor had rejected Ms Ybanez’s offer but made a counter offer which as I explain below was accepted by Ms Ybanez after some reflection by her.

[19] The executor’s counter offer is reflected in the terms of the hand-written agreement prepared by Mr Whitney and signed by the parties.

[20] I explained to Ms Ybanez the terms and effect of the executor’s counter-offer.  I have no reason to doubt that Ms Ybanez knew and understood the terms of the counter-offer.

[21] I told Ms Ybanez that I would give her some time to consider whether she wanted to accept the executor’s counter-offer.  I then left Ms Ybanez with Mr Cross.

[22] Ms Ybanez subsequently told me that she accepted the executor’s counter-offer and I conveyed her acceptance to Mr Whitney.

[23] Mr Whitney subsequently returned with a hand-written document setting out the terms of the concluded agreement.  Mr Whitney read out the terms of the agreement to Ms Ybanex (sic) 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 counter offer, 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 hand-written document prepared by Mr Whitney.

[24] I saw Ms Ybanez sign the document prepared by Mr Whitney.”

  1. [98]
    Mr Edwards denied that Ms Ybanez did not agree to the settlement achieved at the mediation; and he denied that she did not sign the agreement.  He also denied that he did not receive signed payment directions or instructions to sign the notice of discontinuance on her behalf.
  2. [99]
    Mr Whitney did not see Ms Ybanez sign the settlement agreement.  He recalled taking the document into the break out room containing Ms Ybanez, Mr Edwards and Mr Cross.  He said his usual practice was to read out the terms of the settlement agreement and then leave it with a party and their lawyer to consider.  He recalled receiving the signed agreement from either Mr Edwards or Mr Cross, as follows –

“[19] After I had left the terms of the agreement with David Edwards for some time, I recall waking towards the break-out room containing Ms Ybanez, her support person and barrister, to find Ms Ybanez sitting outside in a chair looking tired, as she was slumped in the chair, but was not tearful or showing other signs of distress.  I stopped and asked her, to the effect of, how she was going.  I recall her smiling at me and waving me inside the room to her barrister and support person.  I remember her thanking me for my wok and offering to shake my hand, which we did.  I then went into the room and either David Edwards or Wayne Cross handed me the terms of agreement.  I noticed it bore a signature of Ms Ybanez, not a signature of her lawyer on her behalf.  I did not check the signature at that stage against the signature I had on the mediation agreement [which bore Ms Ybanez’ original, undisputed signature on its execution page].”[9]

  1. [100]
    Mr Whitney said, in effect, that he did not forge Ms Ybanez’s signature on the handwritten settlement agreement nor (for what it was worth) did he suspect that someone other than Ms Ybanez signed it.
  2. [101]
    I note that his Honour did not advert to the fact that, on the face of their affidavits, Mr Whitney’s and Mr Edwards’ evidence about the progress of negotiations at the mediation was not consistent.  Mr Whitney’s affidavit proper made no mention of the response of the executor to Ms Ybanez’s counteroffer, which was, according to Mr Edwards, accepted by Ms Ybanez and reflected in the terms of the handwritten agreement.  However, Mr Whitney’s contemporaneous notes of the mediation, exhibited to his affidavit, are consistent with Mr Edward’s evidence.  They record Ms Ybanez’s acceptance of the executor’s offer of $50,000.  Mr Whitney’s notes may be interpreted as follows –
    1. (a)
      at 11.45 am, the executor offered Ms Ybanez $20,000, inclusive of costs;
    2. (b)
      at 11.55 am, Ms Ybanez rejected that offer and considered making a counter offer;
    3. (c)
      at 12.15 pm, Ms Ybanez agreed to exonerate a certain legacy of $5,000;
    4. (d)
      at 12.55 pm, Ms Ybanez countered with $50,000; a right to reside in the house at Toorbul until March 2021 (her paying half of the rates and insurance) and permitting ‘Scott” to stay;
    5. (e)
      at 1 pm, the executor countered back with “$50,000”;
    6. (f)
      between 1 pm and 2.15 pm, the executor (“ML” – Matthew Love) was awaiting a response to the offer;
    7. (g)
      at 2.15 pm, Mr Whitney wrote out the terms of the proposed agreement with Ms Ybanez – essentially as per (e); and
    8. (h)
      at 3.00 pm, it was signed.
  3. [102]
    His Honour’s factual findings were consistent with the evidence which he accepted and which was before him.  His Honour was entitled to conclude that Ms Ybanez’s evidence could not stand with the evidence of Mr Edwards, which was confirmed in significant respects by the contemporaneous notes of Mr Whitney.  Further, his Honour was well placed to evaluate Ms Ybanez’s demeanour and to form an impression of her credibility.  His Honour’s findings were, in my view, reasonable and inherently probable.  Whilst his Honour could have elaborated a little more upon his reasons for rejecting Ms Ybanez’s brief testimony, his Honour’s reasons were, in my view, adequate.

Conclusion

  1. [103]
    Ms Ybanez’s appeal has no prospect of success.  She was not denied procedural fairness.  His Honour made no error or law or fact in considering the executor’s application and his Honour adequately stated his reasons for making the orders he made.  Accordingly, I would refuse her application for leave to appeal and order her to pay the respondent’s costs of her application.

Footnotes

[1]  Transcript 21 August 2020, 1 – 2 lines 14 – 20.

[2]  Transcript 21 August 2020 1-3 lines 2 – 24.

[3]  Transcript 21 August 2020, lines 36 – 38.

[4]  Transcript 21 August 2020, lines 15 – 20.

[5]  Transcript 21 August 2020 1-6.

[6]  Transcript 21 August 2020 1-7.

[7]  His Honour does not appear to have compared Ms Ybanez’s signature on the mediation agreement or the payment directions with her “genuine” signature (as permitted by s 59 of the Evidence Act 1977) although I am not suggesting that his Honour was obliged to do so.

[8]  On 7 September 2021.

[9]  Although he made such a comparison later, after receiving correspondence from solicitors for Ms Ybanez which asserted that her signature had been forged on the mediation agreement.

Close

Editorial Notes

  • Published Case Name:

    Ybanez v Love & Ors

  • Shortened Case Name:

    Ybanez v Love

  • MNC:

    [2021] QCA 224

  • Court:

    QCA

  • Judge(s):

    McMurdo JA, Bond JA, Ryan J

  • Date:

    15 Oct 2021

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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