Blessed v Byrne

Procedural history

1. There was an initial listing of the summons on 20 June 2024 before Registrar Gerritsen. Mr Flaherty of counsel appeared on that occasion for the defendant, and there was no appearance for the plaintiff. The Registrar made orders for the defendant to file and serve any notice of motion to strike out the claim by 4pm on 27 June 2024 and stood the matter over to 4 July 2024.
2. On 4 July 2024, Mr Flaherty appeared again before the Registrar. At that time, there was no apparent appearance by the plaintiff. Mr Flaherty requested that the matter be referred to me, sitting as the Family Provision List Judge, to make orders on the then current form of notice of motion filed on 26 June 2024 (which sought an order that the proceedings be dismissed pursuant to r 13.4 of the UCPR). That referral was made and Mr Flaherty subsequently appeared before me that morning.
3. Initially, there was no appearance by the plaintiff. However, she did subsequently attend following an adjournment of just over an hour. I am satisfied from what the plaintiff told me on that occasion that there were reasons why she did not appear at the initial listing of the summons, and why she was not in court at the time that the Registrar dealt with the matter on that morning.
4. I sought to understand from the plaintiff what the nature of her claim was. In particular, I sought to understand whether it was purely a form of family provision claim or whether there was some other aspect of the claim by which she contended that she had a right of residence.
5. It seemed to me that, in the circumstances, the plaintiff should be given an opportunity to reconsider her claim and be provided with some opportunity to obtain legal advice.
6. For that reason, I made the following orders: THE COURT: 1. Notes that as matters presently stand it declines to dismiss the proceedings pursuant to rule 13.4 Uniform Civil Procedure Rules 2005 (NSW) (UCPR) as sought in the defendant's notice of motion filed on 26 June 2024. 2. Grants leave to the defendant to file and serve on the plaintiff an amended notice of motion to seek an order from the Court to remove the defendant from the proceedings by 4pm on 11 July 2024, such amended notice of motion to be returnable before Meek J as the Family Provision List Judge at 9am on Friday, 2 August 2024. 3. Stands the matter over to before Meek J as the Family Provision List Judge at 9am on Friday, 2 August 2024. 4. Order pursuant to rule 7.36 UCPR that the plaintiff be immediately referred to the Prothonotary (or other appropriate Registrar) for referral to a solicitor or barrister on the Pro Bono Panel for the purposes of advising the plaintiff in connection with her claim in these proceedings and the motion and amended notice of motion to be filed of the defendant and such other kind of assistance that is permissible under rule 7.37 of the UCPR.

Service and evidence

1. Mr Flaherty appeared this morning (2 August 2024) for the defendant and pressed for the relief sought in the amended notice of motion. The matter had been called inside and outside the court and there has been no appearance by or on behalf of the plaintiff.
2. On the application, Mr Flaherty relied upon an affidavit of service of the defendant's solicitor, John Stanbridge Boyd, sworn 30 July 2024. In that affidavit, Mr Boyd deposed to service of the amended notice of motion and a covering letter by email to the plaintiff's email address.
3. I am satisfied that at least one of the email addresses specified and to which the documents were sent, namely robynb4321@gmail.com, is the appropriate email address by which to effect service on the plaintiff. That email address was noted by the plaintiff as her contact email in the summons and her affidavit and confirmed by her on the listing before me on 4 July 2024.
4. I note that the affidavit of the plaintiff, whilst presenting formally as an affidavit, contains no substantive evidence other than the assertion that she is the plaintiff.
5. Mr Flaherty also made reference to an earlier affidavit of Mr Boyd filed on 3 July 2024. Although he does not rely upon that affidavit to prove service of the amended notice of motion, it does prove that service of the original notice of motion and supporting affidavit of the defendant was effected at an earlier point of time, being 26 June 2024.
6. No explanation has been given as to why the plaintiff has not appeared this morning. That is despite the letter from Mr Boyd, served on the plaintiff on 11 July 2024, expressly drawing her attention to the fact that the proceedings were listed before me today at 9am.

Factual background and nature of the claim

1. The plaintiff and the defendant have, it appears, at least six other siblings.
2. The Will of the deceased appoints two of the deceased's children, Denise Margaret Taylor and Jason Stuart Byrne, as executors. The Will directs the executors to sell, call in or convert the estate into money and, after payment of amounts referable to funeral and testamentary expenses, debts and duty or administration expenses, to hold the balance of the estate for each of the deceased's eight children as tenants in common in equal shares.
3. So far as the defendant is aware, no application for any grant of probate of the deceased's Will has been made by the nominated executors or anyone else. The defendant asserts that this is because, as at the time of the deceased's death, the deceased had few assets apart from some personal items and a small amount of money in a bank account.
4. The right to reside which is the subject of the plaintiff's claim relates to a property, in which she is currently living, at Rosedale Avenue, Hazelbrook (Hazelbrook Property).
5. In her "particulars", the plaintiff asserts that she has been living in the Hazelbrook Property for over eleven years and it is her father's property, albeit she acknowledges that it was "signed over" to the defendant when, she says, the defendant "took over" a loan on the property. She asserts the loan was only "one tenth the value of the house" (I infer the property).
6. After the deceased's death, the plaintiff claims that she asked the defendant if he wanted to move into the Hazelbrook Property. Apparently he declined to do so as it was too far from his work. The plaintiff claims that she continued to live in the property for a further two years, although the defendant did subsequently move back into the house and wanted the plaintiff to leave. She claims that she has "inheritance rights" to stay in the Hazelbrook Property.
7. The defendant gives evidence that the Hazelbrook Property was transferred to him in or about 2013 for a consideration of $110,000.
8. There is a current title search of the Hazelbrook Property in evidence, which reveals that the last change to the register occurred on 15 September 2018. The most recent addition to the second schedule of the title search reveals that the property was mortgaged to Bendigo and Adelaide Bank.
9. In his affidavit, the defendant gives some context to the circumstances in which the property was transferred to him. He indicates that, in 2013, the deceased needed money in order to repay one of his children, Andrew, moneys that had been lent to the deceased in about 2006. It appears that the deceased had borrowed the funds from his son in order to make a payment to his second wife, pursuant to a financial agreement between the deceased and the second wife in or about 2006. In those circumstances, the defendant says that the deceased decided to sell the property to the defendant.
10. The defendant says that after he purchased the Hazelbrook Property, and as part of the agreement he had made with his father, he allowed the deceased to continue to live in the property until his death.
11. The defendant further says that he was not aware that the plaintiff had commenced to live in the Hazelbrook Property from about 2013 or 2014, but subsequently became aware of that fact. He moved back into the property in or about May 2023 and indicated that he wanted her to leave, as they "do not get on".
12. There is a hint in the "particulars" and what the plaintiff indicated to me in court on 4 July 2024 that one aspect of her claim contends that the Hazelbrook Property had been transferred at an undervalue.
13. Other than the formal parts of the summons, in some respects, the "particulars" also give an indication that the plaintiff's claim is a type of family provision claim. That much is apparent from the terminology that she uses, including that the Will "does not give adequate provision as it stands" and that it does not provide for her "maintenance and housing needs". The final part of the "particulars" asserts that the Will "did not provide for [her] future maintenance and housing needs" and she seeks "the legal Right to Reside as [her] share of [her] inheritance".

Determination

1. There are a number of difficulties with the plaintiff's claim as it presently stands.
2. Based on the evidence before the Court, the claim is out of time and the defendant is not a proper party to proceedings for a family provision claim. If the plaintiff wished to pursue a family provision claim, she would ordinarily need to take steps to join appropriate defendants as representatives of the deceased's estate, whether that be Denise and Jason as the nominated executors or such other person who may have taken steps to prove the Will or otherwise obtain administration of the deceased's estate.
3. If an aspect of the plaintiff's claim contends that the sale of the Hazelbrook Property to the defendant in 2013 was at an undervalue, the existing form of summons is not the appropriate way in which such a claim should be brought.
4. In the circumstances, I am not prepared to find that the proceedings are frivolous or vexatious, or an abuse of process. However, to the extent that the plaintiff claims family provision relief, the defendant, at least as the claim is currently formulated, is self-evidently not the appropriate defendant to that claim.
5. As I have already said, to the extent that the plaintiff contemplates some other claim in relation to the Hazelbrook Property, the claim does not adequately address a basis for her to remain in the property under cover of an assertion that it was sold at an undervalue.
6. The relief sought in the amended notice of motion is that the proceedings be dismissed pursuant to r 13.4 of the UCPR and further or alternatively that the defendant be removed as a party to the proceedings.
7. As the summons is presently formulated, I am satisfied that the defendant is not the appropriate party to a family provision claim.
8. In the circumstances, having given the plaintiff an opportunity to seek legal advice and with no explanation as to why there is no appearance this morning, I propose to dismiss the summons on the basis that no reasonable cause of action is disclosed against the defendant.
9. The effect of the dismissal of the summons is addressed in s 91 of the Civil Procedure Act 2005 (NSW). There may be a question as to whether the hearing of the application constitutes a "determination on the merits" of the proceedings. If there has not been a "determination on the merits", the dismissal does not prevent the plaintiff from bringing fresh proceedings or claiming the same relief in fresh proceedings: see the discussion of what may constitute a "determination on the merits" in Stanizzo v Badarne [2014] NSWSC 1334 at [33]-[52] per Rein J.

Costs

1. Mr Flaherty has asked for an order for costs.
2. Costs are in the discretion of the Court. However, ordinarily if the Court makes any order as to costs, the Court is to order that the costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs: r 42.1 UCPR.
3. In the circumstances of this case, it is not apparent to me that some other order ought to be made. I will order that the plaintiff pay the defendant's costs.

Orders

1. The orders of the Court are as follows: 1. Notes the defendant moves on the amended notice of motion filed 10 July 2024. 2. Notes the plaintiff did not appear when the matter was called both inside and outside the court. 3. Orders the summons be dismissed. 4. Orders the plaintiff to pay the defendant's costs.

SCHEDULE PARTICULARS I have lived at this address for over 11 years. This is my father's property. It was signed over to Mr D Byrne when he took over the loan. The loan was only one tenth the value of the house. My father left more than 1/4 to me in his will. (5/16) After his death I asked my brother if he wanted to move in. He declined as it was too far from his work. I continued to live there for a further 2 years. Then my brother moved back into the house and wanted me out. I said I have inheritance rights to stay. We have been in dispute ever since. He has saught [sic] legal help but I believe its not applicable. He has lost his temper and assaulted me on 2 occasions. The police were called. I seek the legal right to reside established to remove further disputes. The will does not give adequate provision as it stands. It does not provide for my maintenance and housing needs. While I lived there, I helped my father in many ways. With clearing out and sorting out his accumulated papers and possessions. Reading and sorting his notes and papers collected over 50 years. Writing emails for him and reading the ones he received. Helping him with the internet and mobile phone. Sorting the mess in his loungeroom Sorting the mess in his garage. Helping around the yard. Driving him to Church Community help days. Driving him to other destinations further away as needed. Fixing tiles on the roof that led to leaks on a number of occasions. The will did not provide for me future maintenance and housing needs. I seek the legal Right to Reside as my share of my inheritance.

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: 05 August 2024