Aon Risk Services Australia Ltd v Australian National University

Supreme Court of NSW|2024-08-28|Before: Pike J

ex tempore JUDGMENT (revised)

These proceedings concern the estate of the late Giovanna Toppi (the Deceased) who passed away on 3 November 2021.
The central protagonists in the proceedings are two of her children, Paola and Walter. Without intending any disrespect or informality, I will refer in these reasons to the key players by their given names.
The final hearing of these proceedings was due to run before me for nine days, commencing on 26 August 2024. For reasons I explain below, the start date was moved to yesterday, Wednesday 28 August 2024.
On 28 August 2024, senior counsel for Paola and senior counsel for Walter requested that I determine, as the first issue, whether Paola be permitted to rely on certain affidavits from Paola (sworn 16 August 2024), her husband Neil Cunningham (sworn 16 and 21 August 2024) and her instructing solicitor Mr Philip Beazley (sworn 20 August 2024) (the Further Evidence) This Further Evidence of Paola and her husband, in broad terms, goes to their current financial position and needs, whereas the evidence of Mr Beazley includes evidence to the effect that a share left by the Deceased to Paola in her will was of no value.
It was agreed between senior counsel that if the evidence was admitted, Walter would not be able to meet it in the time allotted for the hearing and as such the hearing would need to be adjourned. Likewise, if leave was refused, Paola would seek an adjournment of the hearing to allow the evidence to be relied on in circumstances where if no adjournment was granted, her claim for provision under the Succession Act 2006 (NSW) (the Act) out of the Deceased's estate would be dismissed by reason of the absence of any evidence of Paola's financial needs or position. In these circumstances, the decision was effectively between an adjournment of the hearing or dismissal of Paola's claim.
In support of the application, Paola relied upon, inter alia, an affidavit of Mr Beazley together with the totality of the court book that had been prepared for the final hearing. This was tendered to prove the evidence available in support of the claim under the Act. Mr Beazley was cross-examined.

Relevant Background

The proceedings have a long history. The following summary suffices for present purposes.
The Deceased died on 3 November 2021. In the years prior to her death, she made a number of wills, including: 1. 10 December 2013 (2013 Will); 2. 8 December 2017 (2017 Will); 3. 26 October 2018 (2018 Will); 4. 16 August 2019 with the Codicil dated 26 August 2019 (2019 Will); and 5. 2 September 2020 (2020 Will).
The 2018 Will left Walter a life estate in half the proceeds of sale of a property in Macleay Street, Potts Point with Paola to receive the balance of the estate. The 2020 Will effectively made no provision for Paola and left the Deceased's estate to Walter.
On 15 November 2021, Mr Beazley was instructed to lodge a notice of intention to apply for probate of the 2018 Will. On 24 November 2021, Walter lodged a caveat. On or about 6 December 2021 Mr Beazley was instructed to lodge a caveat in respect of the granting of probate of any other wills, which he did.
On 10 January 2022, Mr Beazley forwarded to the Registrar in Probate an application for administration of the estate of the late Giovanna Toppi in relation to the 2018 Will.
On 11 July 2022, the matter came before Hallen J. His Honour ordered that the matter proceed by way of pleadings and made orders for the filing of those pleadings. He also made orders that each party file and serve the lay evidence on which each party intend to rely by a particular date. On 27 July 2022 a statement of claim was filed which sought that Letters of Administration with the 2018 Will annexed be granted to Paola.
On 23 August 2022, Walter served his defence and cross-claim. By his cross-claim Walter sought a grant of probate in respect of the 2020 Will or in the alternative the 2019 Will and the Codicil.
On 12 September 2022, a reply was filed by Paola seeking in the alternative a grant of probate in respect of the 2013 Will.
On 12 October 2022, an amended statement of cross-claim was filed on behalf of Walter, including a prayer for relief pursuant to s 59 of the Act in favour of Walter. This was the first time on which a claim for provision under the Act had been made in the proceedings.
On 22 November 2022, a further amended statement of claim was filed on behalf of Paola in which paragraph 4 of the relief claimed included: "Further or in the alternative, an order making provision for the Plaintiff out of the estate of the Deceased pursuant to s 59 of the Succession Act 2006 (NSW)."
At paragraph 33 of his affidavit made 22 August 2024, Mr Beazley deposes to the fact that the claim under the Act on behalf of Paola was made in circumstances where there is a limitation period on the commencement of proceedings for family provision, and that in the circumstances the claim was flagged as an alternative. According to Mr Beazley, if the plaintiff (Paola) succeeded on her probate claim, she would receive half of the estate, and the defendant (Walter) would receive a benefit of the other half of the estate. In this situation the issue of a claim under the Act would not arise as neither party would have a need.
On 18 November 2022, Hallen J made orders, inter alia, for the filing of lay evidence by Paola and Walter. Those orders, like the earlier orders made by his Honour, did not distinguish between the probate claims and the claims under the Act.
On 20 February 2023, Hallen J made orders, inter alia, for further lay evidence to be filed. Again, the orders did not distinguish between the probate claims and claims under the Act.
Lay evidence was filed by Paola and Walter in response to these orders. It was not in dispute that while some of the evidence filed on behalf of Paola included evidence of her relationship with her mother, it did not include evidence of the kind required by paragraphs 10 to 13 and 15 to 22 of the relevant Practice Note (SC EQ 7 as then in force).
Walter's affidavit of 16 December 2022 briefly addressed his then financial standing and living conditions.
On 16 August 2023, the matter was relisted before Registrar Walton. On that occasion, the Registrar made directions for further expert evidence to be served and the matter was stood over to 18 October 2023. According to Mr Beazley, on that occasion, he raised with the Court the difficulty with having the probate claim determined at the same time as the claim under the Act. Walter's solicitors apparently insisted that the matters be listed together, and it seems relatively clear that Registrar Walton did not agree with the position advanced by Mr Beazley.
On 17 November 2023, the proceedings were listed for a nine-day hearing to commence on 26 August 2024.
On or about 24 July 2024, Paola's solicitors notified Walter's solicitors that Paola was no longer propounding the 2018 Will or 2013 Will. A day or two later it was apparently made clear that no reliance was placed on the 2019 Will.
The parties, at the instigation of Walter's solicitors, contacted my chambers to have the matter relisted for directions, essentially to inform me of the fact that the earlier wills were no longer being propounded by Paola, and as such the hearing would not take nine days.
The proceedings were listed before me on 7 August 2024. I adjourned the matter to 14 August 2024 to allow some further discussions to be conducted to clarify the issues being agitated at the forthcoming hearing. On 14 August 2024, senior counsel for Paola informed me that Paola's evidence in relation to her claim under the Act was not properly on, because there was no financial information. A direction was made for that evidence to be served by close of business on 16 August 2024.
As it transpired, the Further Evidence was served on 17 August 2024 and thereafter.
On 21 August 2024, the proceedings were stood over to 28 August 2024. Orders were made for a grant of probate in respect of the 2020 Will. Senior counsel for Paola handed up to the Court on 21 August 2024, a form of summons setting out the relief now propounded by Paola in the proceedings. That relief was to the following effect: 1. An order pursuant to s 59 of the Succession Act 2006 (the "Act"), that provision be made from the estate of the Late Giovanni Toppi who died on 3 November 2021, in favour of Paola Toppi, an eligible person under section 57(1)(c) of the Act. 2. An order that for the purposes of section 58 of the Act, the date of this summons be the date of the commencement of these proceedings or at the latest, the date of filing of the Defence of the Cross Claim being 14 December 2022 (paragraph 11) and that time for making this application be otherwise extended to that date. 3. A [sic] order that any provision under section 58 made in favour of Paola Toppi include a forgiveness and release of any debt owed by her to the Estate pursuant to the orders made in proceedings 2020/00267822.
The Further Evidence served on behalf of Paola is to the effect that the financial position of her and her husband is quite dire. I accept that an aspect of the late service of this evidence is that Walter has not yet had an opportunity to properly test the evidence that has recently been served, but it seems relatively clear on the basis of that evidence that the financial position of Paola and her husband is not healthy.
The principal asset of Paola is a restaurant, Bar Toppi. In February 2024, a decision was made to sell the restaurant. An agent was appointed in April 2024, a buyer found in June 2024, and a contract for the sale of the restaurant entered into in August 2024 to sell the restaurant for $725,000. I was informed from the Bar table yesterday that the sale fell over recently, although the parties are still negotiating. The evidence of Paola and her husband was that if the sale went through at the price set out in the contract, it would return to them a sum of less than $300,000 being a part refund to them of moneys which they had put into the restaurant out of their superannuation funds. Otherwise, the recent Further Evidence discloses that Paola and her husband are living in rented accommodation.
Walter also put on a further affidavit made 27 August 2024 setting out as best he could, the asset position of the estate. This estimated assets at approximately $3.8 million and liabilities of approximately $800,000, including nearly $500,000 in costs for these proceedings. Walter also deposed to having received approximately $800,000 from his mother's bank account in the period immediately prior to and after his mother's death.

The evidence of Mr Beazley

Paola's solicitor, Mr Philip Beazley, swore an affidavit in support of the application to rely on the Further Evidence. He was cross‑examined.
The effect of his evidence‑in‑chief was that in April 2024, Paola entered into an agency agreement to sell the business of Bar Toppi. It was unclear to him how much the business would be sold for and what would be left after the sale and the price would determine whether Paola had a claim under the Act. He also gave evidence that Paola did not have the $30,000 to $50,000 that, in his estimation, would be required to prepare an expert report to value the business.
Since late June 2024 and the filing of the 16 August 2024 affidavit evidence he has, with the help of Paola and her accountant, tried to establish what is left once the sale settles. Once the sale price and the knowledge of the indebtedness became fully known to him, he sought further advice and as a result he was instructed to abandon the 2018 Will and 2013 Will claims and only run a claim under the Act.
In cross‑examination Mr Beazley admitted that he was aware of the provisions of Practice Note SC EQ 7 at the time with respect to evidence that should be filed by a plaintiff either with, or shortly after, the commencement of a claim under the Act. Mr Beazley was pressed as to why he did not file evidence from Paola as required by the Practice Note. He admitted that he could have filed evidence of Paola's financial circumstances at the relevant time. Although a little unclear at times, the effect of his evidence was that the probate claims were being propounded as the primary claim and as he saw it, the Court needed to first determine which will was admitted to probate as this would determine whether Paola had a claim under the Act. If the 2018 Will was admitted, she would not have a claim. This appears to have been the position taken up until 24 July 2024, notwithstanding that no application for separate determination was ever brought, and Registrar Walton did not accept his submissions on 16 August 2023, as I have set out above.
I am in no doubt that this was a conscious decision - namely to prosecute the probate claims as a priority and not the claim under the Act, although I would not conclude that there was a conscious decision not to run the claim under the Act. It was a question of priority.
It was not until 24 July 2024, in light of the position Paola found herself in, that the position changed, and it was determined to abandon the probate claims and prosecute the claim under the Act.

The Evidence of Ms Georgiou

Ms Georgiou referred to the costs incurred in relation to the now abandoned claims in relation to the 2018 Will and 2013 Will. She estimated that at least three quarters of the professional fees and disbursements incurred to date of nearly $500,000 had been thrown away.
She deposed to having no confidence that Paola would be able to pay any costs thrown away by reason of the adjournment of the proceedings.
She also deposed to tactical choices having been taken by Walter as to how to prepare for Paola's claim under the Act based on Paola's failure to adduce the evidence which might be expected to have been adduced. Finally, she deposed to the stress and anxiety being experienced by Walter and his desire to have these proceedings completed and not prolonged.
As set out above, Ms Georgiou was not cross‑examined, and I accept her evidence.

Relevant principles

The present application is, in substance, an application to rely on recently served evidence against the backdrop of the hearing date needing to be vacated or Paola's claim being dismissed.
In considering the application I am guided by the overarching purpose in s 56 of the Civil Procedure Act 2005 (NSW) (CPA) of facilitating the just, quick and cheap resolution of the real issues in the proceedings. Section 58(1) requires me to act in accordance with the dictates of justice, including by reference to the list of matters set out in s 58(2) of the CPA.
I am conscious of what the plurality of Gummow, Hayne, Crennan, Kiefel and Bell JJ said in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [111]‑[113] (Aon), which although said in the context of an application to amend pleadings, obviously has broader application. [111] An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in JL Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases. On the contrary, the statements are not consonant with this Court's earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future. [112] A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate. [113] In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.
The High Court recognised, however, that there is no one size fits all approach, and the Court must do what it thinks is best in the interests of justice. What I take from what the High Court said in Aon is that whatever had previously been thought prior to Aon to be a situation where a party had a right to, in effect, an adjournment on payment of costs thrown away, was no longer the situation and the Court must have regard to, inter alia, the stress and anxiety that the prolongation of litigation has on litigants, as well as the interests of other litigants in the Court in having cases determined in a timely fashion.

Overview of the contentions

Paola contended that the Further Evidence should be permitted, otherwise she would be shut out from running what would otherwise be a viable claim under the Act. Without any provision out of the Deceased's estate, both Paola and her husband would have virtually nothing. Reliance is placed on the need for the Court to have up to date evidence of Paola and her husband's financial position and needs. The position in relation to Bar Toppi has only recently emerged and been clarified. Senior counsel for Paola also made clear that, in light of the claim under the Act that are made by Paola and the likely value of the estate, she would not stand in the way of some money, the figure of $1,000,000 was referred to, being released to Walter now.
Walter contended that this was one of those cases, like Aon, where a party should be shut out from running an otherwise viable cause of action because of the deliberate choices made by Paola in how the case was to be conducted in the context of prejudice to Walter by reason of an adjournment in terms of continued stress and anxiety, coupled with an inability of Paola to pay any costs thrown away. It was contended that there was no reason why Paola could not have put on evidence as to her financial position in accordance with the Practice Note and then sought to update it prior to the hearing as is usually the case. Further, the decision to abandon the probate case could and should have been made much earlier than July 2024 which would have brought the claim under the Act into focus much earlier. Nothing was pointed to as providing a reason for abandoning the claims in July 2024, it being agreed that the evidence in relation to the probate claims was completed in September 2023.
To ameliorate the impact of a refusal of leave on Paola, leading to a dismissal of her claim under the Act, senior counsel for Walter stated that, on a without admission basis, if leave was refused leading to a dismissal, the estate would not pursue Paola for the indemnity claim arising from the WFM debt and also would not seek costs of the proceedings against Paola on the assumption that costs are not sought against the Deceased's estate.

Determination

In the circumstances of the present case, as summarised above, the dictates of justice, in my view, favour Paola having leave to rely on the Further Evidence notwithstanding that this will necessitate an adjournment of the hearing which will necessarily prolong the litigation, and the stress and anxiety occasioned to Walter by reason of that prolongation.
In permitting this to occur, I should not be taken to condone the manner in which the case has been prepared to date. As set out above, the case appears to have been conducted, prior to July 2024, essentially on the basis that the probate case needed to be determined first. A formal application for separate determination should have been made. It was not.
In the absence of any formal separation, evidence in support of the claim under the Act should have been filed in accordance with the directions of the Court and then updated prior to the hearing. Had this been done, the prospect of the hearing date being kept would likely have been substantially increased. I cannot be certain, in this regard, that having regard to the recent events in relation to the attempted sale of Bar Toppi, that the hearing date would necessarily have been able to be kept had evidence been filed earlier and then updated, but the prospects of that occurring would certainly have been increased.
Further, attention to whether the probate claims were to be pursued should have been given earlier than July 2024. I conclude that the decision to abandon the probate claims was made, having considered, as part of the preparation for hearing, the likelihood of those claims succeeding. In circumstances where all of the relevant evidence in relation to these claims was completed by September 2023, this could and should have been done earlier.
I am not satisfied that the conduct of the case to date is such that, in all of the circumstances, Paola should be shut out from running what would otherwise be a viable claim, leaving her and her husband in what would otherwise be an extremely unhealthy financial state (accepting, of course, that Walter has not yet had the opportunity to fully test the evidence that has been recently served).
I have not lost sight of the position stated by Walter as to not claiming on the indemnity and the like, but this would be little comfort to Paola, given what now appears to be her financial position. I am also conscious that Paola and her husband still have earning capacity, but this is obviously finite.
The present circumstances are, in my view, quite different to those at play in Aon or in Tamaya Resources Ltd (ACN 071 349 249) (in liq) v Deloitte Touche Tohmatsu [2016] FCAFC 2; (2016) 323 ALR 199, one of the other authorities relied on by Walter.
Notwithstanding the impact that an adjournment will necessarily have on Walter, I am particularly conscious of the impact on Paola and the fact that it is only relatively recently that the harsh reality of her financial position has been exposed. I am also particularly conscious of the need, in claims such as this, for the Court to have up‑to‑date information as to the financial position of a claimant and competing claimants. There are numerous authorities where this has recently been mentioned, including Rodny v Weisbord [2024] NSWCA 183 per Ward P at [2], [3] and [5], Stern JA at [13], and Basten AJA at [57], [67]‑[68], and Baker v Baker [2024] NSWSC 559 per Hammerschlag CJ in Eq at [22].
The price for the indulgence of being able to rely on the Further Evidence with the consequent adjournment of the hearing date is for Paola to pay the costs thrown away by reason of the adjournment, which was not opposed. The reality is that this liability will operate as a debt to Paola to the estate to be considered as part of her claim under the Act. It is possible that if Bar Toppi is able to be sold at or near the price that the previous contract was made, there may be some moneys coming to Paola and her husband to be able to meet this liability.
I will also reserve to Walter whether he wishes to seek a payment now of some part of the estate as I have foreshadowed above.
I will hear the parties as to any further orders I should now make, but this should at least include granting leave to the plaintiff to rely on the Further Evidence, vacating the hearing dates that remain of 2 to 6 September 2024, and ordering the plaintiff to pay the defendant's costs thrown away by reason of the adjournment.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 September 2024

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