Noelle Elizabeth Hillman v Lynda Box, Debrah Box and Skye Box as Executors of the Will of Graeme William Box

• Jurisdiction: Australian Capital Territory
• Judge: Refshauge J
• Judgment Date: 08 December 2010
• Court: Supreme Court of ACT
• Docket Number: No. SC 564 of 2010
• Date: 08 December 2010

[2010] ACTSC 153

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judge:

Refshauge J

No. SC 564 of 2010

Between:

Noelle Elizabeth Hillman

Plaintiff

and

Lynda Box, Debrah Box and Skye Box as Executors of the Will of Graeme William Box

Defendants

Counsel for the plaintiff: Dr D Hassall

Counsel for the defendants: Dr C Ward

Bondelmonte v Blanckensee [1989] WAR 305

Hughes v National Trustees, Executors and Agency Company of Australasia Limited (1978-1979) 143 CLR 134

Singer v Berghouse (1994) 181 CLR 201

Re Jones; Noonan v Jones [1978] VR 272

Re Faulkner [1999] 2 Qd R 49

In Re Simson Deceased; Simson v National Provincial Bank Ltd [1950] Ch 38

Grove v Fisher and Anor [2002] WASC 247

Blunden v Blunden and Anor [2008] SASC 286

Ernst v Mowbray [2004] NSWSC 1140

Guardian Trust and Executors Company of New Zealand Ltd v Public Trustee of New Zealand [1942] AC 115

In the Estate of Gough, Deceased; Gough v Fletcher (1973) 5 SASR 559

Gonzales v Claridades (2003) 58 NSWLR 118

Young v Salkeld (1985) 4 NSWLR 375

Bydand Holdings Pty Ltd v Pineland Property Holdings Pty Ltd & Ors [2009] NSWSC 584

NCR Australia Pty Ltd v The Credit Connection Pty Ltd [2005] NSWSC 1118

Woolley v Woolley [2008] ACTSC 58 (20 June 2008)

Seymour-Smith & Ors v Electricity Trust of South Australia (1989) 17 NSWLR 648

David Syme & Co Ltd (Receiver and Manager appointed) v Grey (1992) 38 FCR 303

Bond Brewing Holdings Ltd v Crawford (1989) 1 WAR 517

Family Provision Act 1969 (ACT), ss 7, 8, 20

Family Provision Act 1982 (NSW), s 15

Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), s 4(3)

Real Property Act 1900 (NSW), ss 74B, 74C, 74I, 74J

Testators Family Maintenance and Guardianship of Infants Act 1916 (NSW)

Court Procedures Rules 2006 (ACT), rr 38, 50, 431, 502, 505, 1179, 6007, 6008, 6700, 6710, 6741, 6742, 6743

Practice Direction No 3 of 2009

SUCCESSION — family provision and maintenance — plaintiff seeking court orders to protect her interests and entitlements as domestic partner of the deceased

PRACTICE AND PROCEDURE — originating process — family provisions claim — whether by pleadings or originating application — originating application to be preferred

PRACTICE AND PROCEDURE — filing of unnecessary documents adds to costs — poor practice

ORDER

THE COURT ORDERS THAT:

1. Under rule 38 of the Court Procedures Rules 2006 (ACT):

• (a) the proceedings continue as if commenced by Originating Application; and,

• (b) within 14 days, the plaintiff file and serve an Originating Application marked ‘Amended Originating Application’ in the form of approved form 2.7 setting out the relief now sought and referring only to the affidavits now filed on behalf of the plaintiff on which she proposes to rely in the document filed.

2. The proceedings become a Major Matter for the purposes of Practice Direction No 3 of 2009.

3. I direct that:

• (a) the plaintiff file and serve any further affidavits on which she proposes to rely on or before 12 January 2011;

• (b) the defendants file and serve any affidavits on which they propose to rely on or before 28 February 2011;

• (c) the plaintiff file and serve any affidavits in reply on or before 13 March 2011; and,

• (d) the proceedings be listed for further directions on 15 March 2011 at 9:30am.

4. I direct, as to the properties at Spence ACT (the Spence property) and Queanbeyan (the Queanbeyan property), that:

• (a) before the defendants enter into any contract for the sale of those properties, or either of them, they give to the plaintiff by service on her solicitors seven clear days notice of their intention to enter into such a contract together with a copy of the proposed contract showing all terms including as to price and finance in them;

• (b) in the event that the plaintiff makes no application to the Court as a result of the notice of intention to enter into a contract for the sale of these properties, or either of the them, or no order is made on such an application, the defendants be at liberty to enter into such a contract or contracts subject to this order;

• (c) where the defendants have contracted to sell the Spence property they shall submit to the plaintiff a Transfer in registrable form no later than 14 days before the date of completion of the sale;

• (d) where the defendants have contracted to sell the Queanbeyan property, the plaintiff submit to the defendants no later than seven days prior to the date of completion a Withdrawal of Caveat Dealing Number [provided] in registrable form;

• (e) if the plaintiff does not sign the Transfer submitted to her within seven days after it is submitted to her (or such further time as the defendants may allow) the Registrar shall have power to execute the Transfer as Registrar and that shall be as effectual as if the plaintiff had executed the Transfer herself;

• (f) on completion of the sale of the properties, or either of them, the defendants shall deduct from the proceeds of sale:

  • (i) payment of all moneys necessary to discharge any encumbrances on the property or properties;

  • (ii) any agent's commission and disbursements payable;

  • (iii) the proper costs and disbursements payable to any solicitor acting for the estate in the sale; and,

  • (iv) the payment of any moneys necessary to enable an adjustment of rates to the date of settlement.

    The balance shall be paid to the defendants” solicitors” trust account to be held on an interest bearing deposit pending further order.

5. Notwithstanding order 4(f), the defendants may withdraw no more than $50,000 from the estate, including, if necessary, the balance of the proceeds of the sale of the Spence property and the Queanbeyan property, to pay legal fees and shall retain a copy of the tax invoice or invoices from their solicitors in respect of any such payment in the records of the estate.

6. On the plaintiff giving the usual undertaking as to damages, the defendants be restrained until further order from lodging for registration of the Transfer in respect of the Spence property signed by the plaintiff on or about 26 June 2009.

7. On the defendants giving the usual undertaking as to damages, the plaintiff be restrained until further order from lodging any caveat in respect of the Spence property or the Queanbeyan property.

8. The plaintiff's application in proceedings dated 11 November 2010 is dismissed.

9. The defendants” application in proceedings dated 3 November 2010 is dismissed.

10. The plaintiff shall pay:

• (a) the defendants” costs of the appearance on 12 November 2010; and,

• (b) the defendants” costs of the defendants” application in proceedings dated 3 November 2010 including one third of the costs of the hearing on 19 November 2010.

11. The defendants shall pay one third of the plaintiff's costs of the plaintiff's application in proceedings dated 11 November 2010, excluding:

• (a) any of the plaintiff's costs of the appearance on 12 November 2010; and,

• (b) one half of the plaintiff's costs of the hearing on 19 November 2010.

12. Liberty is reserved to the plaintiff to apply on short notice in respect of any matter arising out of the notice or notices to be given under order 4(a) above but otherwise liberty to apply on two days notice is reserved to each party.

1 On 19 November 2010, I heard argument about procedural matters relating to this action which is a claim by the plaintiff under the Family Provision Act 1969 (ACT) ( Family Provision Act).

2 The plaintiff commenced the proceedings by Originating Claim with a Statement of Claim annexed as provided for in r 50 of the Court Procedures Rules 2006 (ACT) (the Rules). The defendants have challenged that pleading and the plaintiff seeks various orders for the effective despatch of the proceedings and to protect her interests in the meantime.

Family Provisions Act claims and pleadings

3 The Family Provision Act is the successor to the legislation which enables certain persons who consider that a will has not made adequate provision for them out of an estate to seek redress from the courts. Such legislation was first enacted in the early part of the last century, first in New Zealand (1900) and then in Tasmania (1912), Queensland (1914) and New South Wales (1916).

4 The law of wills and succession was originally the province of the ecclesiastical courts in England. Australia had no such ecclesiastical courts. On the making of the Testators Family Maintenance and Guardianship of Infants Act 1916 (NSW) proceedings under it were conducted in the Equity Division of the Supreme Court. The practice in respect of such applications followed the practice of that Court. This approach has been adopted elsewhere.

5 The focus of the law is on whether the deceased has made adequate provision for the proper maintenance and support of the applicant: Bondelmonte v Blanckensee [1989] WAR 305 (at 307). This, of course, involves a wide-ranging consideration of all the circumstances of the estate and the relationship between the claimant and the deceased: Hughes v National Trustees, Executors and Agency Company of Australasia Limited (1978-1979) 143 CLR 134.

6 This remains the position in this Territory where s 8(1) of the Family Provision Act gives this Court power to order for ‘the provision as the court thinks fit be made for the applicant out of the [estate of a deceased person]’. The criteria for the Court's decision are set out in s 8(3) but as they include ‘the character and conduct of the applicant’ (s 8(3)(a)) and ‘any other matter the court considers relevant’ (s 8(3)(k)), there is, inevitably, likely to be a wide ranging inquiry into events and incidents great and small in the life of the applicant and his or her relationship with the deceased.

7 There are, of course, some formal criteria for an application, such as, the identities of the relevant people, the deceased (including date of...