Solicitors:
Plaintiff: Roberts and Partners
Defendants: Diamond Conway
File Number(s): 2017/00127105
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Judgment
In reasons for judgment published on 15 February 2018 as Estate Grundy; La Valette v Chambers-Grundy [2018] NSWSC 104, I outlined: (a) the nature of the principal proceedings before the Court; and (b) disputation between the parties about the nature and extent of, and compliance with, the first defendant's disclosure obligations as executrix of the estate of the late Reg Grundy in proceedings brought by the plaintiff (his daughter) for family provision relief under Chapter 3 of the Succession Act 2006 NSW. The first defendant is the widow of the deceased, the step-mother of the plaintiff.
On 15 February 2018, for reasons set out in that judgment, I made orders for disclosure of documents by the first defendant.
Skirmishing about the adequacy of the first defendant's disclosure of documentation has continued, in fits and starts, since that time.
An all-day mediation conducted by the Honourable PA Bergin SC on 31 July 2018 failed to resolve the proceedings; or to extinguish ongoing battles about disclosure, despite the preparedness of the first defendant to provide documentation beyond that earlier provided.
On 21 September 2018 the first defendant submitted to an order of the Court to the effect that she be examined regarding the sufficiency of her disclosure, in her administrator's affidavits, purportedly in compliance with paragraphs 9.1(b)-(f) and (h)(iv) of Practice Note SC Eq 7 pursuant to order 5 of the orders made on 15 February 2018, in light of the affidavits sworn by her on 17 May 2018 and 7 June 2018 and Exhibits CJCG2 and CJCG3 to those affidavits.
A date for that examination to take place has yet to be appointed. The parties' inquiries of the Registry indicate that it is likely to occur sometime early next year.
In anticipation of that event, the first defendant has agreed to provide additional documentation sought by the plaintiff; and the parties have joined in inviting the Court to make a summary determination of current disputation about whether the first defendant should be obliged to provide particular classes of documentation, defined by reference to the plaintiff's amended notice of motion filed 21 September 2018.
The parties have provided written submissions for and against the motion. The plaintiff's submissions have been marked for identification "MFI P7". The first defendant's submissions have been marked for identification "MFI D8". They remain on the court file.
The parties have co-operated in placing before the Court sufficient evidence (including evidence in the form of extracts from affidavits filed in the principal proceedings) to provide an evidentiary foundation for their respective submissions.
The plaintiff's ongoing demands for disclosure of documentation by the first defendant have given rise to concerns on the part of the first defendant that the plaintiff seeks, not to advance her claim for family provision relief, but to obtain an evidentiary foundation for a challenge to the validity of the will of the deceased (dated 21 January 2011) admitted to probate on 29 June 2018, by a grant made in common form to the first defendant, pursuant to the orders made by the Court on 15 February 2018.
The fact that the deceased experienced a decline in his health before 21 January 2011 provides the context in which such a challenge might be made. However, the deceased's will has been admitted to probate; there is no application before the Court for the grant of probate in respect of the will to be revoked; and, when given an opportunity to indicate whether an application might be made to revoke the grant, the plaintiff responded in terms indicative of the absence of any such intention.
An apprehension on the part of the first defendant that the plaintiff's ongoing demands for the disclosure of documents are advanced in aid of a prospective challenge to the deceased's will was fed by an application for "preliminary discovery" made by the plaintiff.
On 14 September 2018 I made a formal notation to the effect that "the plaintiff presently has under consideration whether she will, or will not, pursue an application for preliminary discovery in aid of a possible application to revoke the grant of probate hitherto made to the first defendant in respect of the estate of the deceased".
After allowing the plaintiff an adjournment for the purpose of enabling her to consider whether or not to apply for "preliminary discovery" of the nature recorded on 14 September 2018, I recorded (on 21 September 2018) a formal notation to the effect that the plaintiff had informed the Court that she did not seek to pursue an application for preliminary discovery of the nature recorded on 14 September 2018.
The hearing today of the plaintiff's amended notice of motion filed 21 September 2018 has been conducted on the basis that any entitlement the plaintiff may have to disclosure of further documentation by the first defendant must be determined in the context of her claim for family provision relief, not extending beyond the nature and scope of the present proceedings.
At the outset of the hearing I indicated to counsel that, subject to any submissions made by them, I was minded to test the plaintiff's claims for further disclosure against three criteria; namely:
1. Whether the plaintiff can identify a proper forensic purpose for seeking each category of documentation now sought.
2. Whether that proper forensic purpose can be justified by reference to the plaintiff's family provision proceedings as presently constituted.
3. Whether the disclosure of documentation presently sought falls within the limits of what is reasonable to require the first defendant to disclose.
In acquiescing in that statement of criteria, counsel for the first defendant emphasized his client's concern that documentation sought by the plaintiff as relevant to her family provision claim includes documentation earlier sought by reference to her claim for "preliminary discovery".
Counsel's expression of concern is understandable in light of the course taken by the plaintiff in proposing, and abandoning, a claim for "preliminary discovery" and persisting thereafter in claims for a form of discovery. However, it does not add to, or detract from, the stated criteria. They are focussed on identification of a proper forensic purpose confined to the plaintiff's family provision claim and limited by considerations of what is reasonable.
In response to concerns about the nature and scope of the further disclosure sought by the plaintiff, and in order both to demonstrate the plaintiff's proper forensic purpose and to allay fears about her requests for documentation being characterised as an abuse of process, senior counsel for the plaintiff made submissions to the following effect (elaborating her written submissions) about the nature of the issues to be decided upon a final hearing of her family provision claim:
1. In the last decade or so of the life of the deceased, significant decisions were made by him, or on his behalf, affecting the provision made by the deceased for the plaintiff during his lifetime and, by way of estate planning, his testamentary provision for her.
2. Those decisions were made in the context of:
1. the deceased's declining mental health.
2. circumstances in which, as the first defendant contends in the principal proceedings, there was an estrangement between the deceased and the plaintiff leading to his reduction of provision made for her.
3. animus on the part of the first defendant against the plaintiff.
1. In the last years of the deceased's life, under the influence of the first defendant, the deceased reduced the provision he had made, and proposed to make, for the plaintiff.
2. At the same time, the first defendant restricted the plaintiff's access to the deceased.
3. The plaintiff submits that, if the first defendant contends (as she does) that the deceased made conscious decisions to limit the plaintiff's entitlements, the plaintiff should be able to test whether such decisions were in fact made and the factual context in which they were made.
Testing the plaintiff's application for further disclosure, by reference to particular categories of documents, against the criteria identified, and taking into account the parties' submissions generally, I make the following orders:
1. ORDER that the first defendant produce to the plaintiff no later than 30 October 2018 the following documentation so far as it is within her possession, custody or control (or within the possession, custody or control of any corporation or other entity controlled by her):
1. the deceased's treating doctors' records indicating the medical condition of the deceased from 2008 when he was first placed under the care of Dr Cummings through to 6 May 2016.
2. a copy of the deceased's death certificate.
3. a copy of any affidavit or documents filed in support of the probate application made by the first defendant in respect of the probate granted to her on 29 June 2018.
4. the accounts and financial statements for the Cantilever settlement for the years 2010 to date.
5. copies of any appointment of enduring guardian, or an equivalent document, executed by the deceased from 1 January 2012 to date.
6. copies of all bank statements of the Singapore bank accounts referred to in paragraph 34 of the affidavit of Susan Therese Mcintosh affirmed 29 September 2017 from which payments were made to the plaintiff for the period that payments were made to the plaintiff as requested by the deceased from 1 January 2009.
7. minutes of all meetings or notes or records taken at meetings, and documents produced at such meetings attended by the deceased and/or the defendant, so far as they may be material to the following classes of business:
1. where the meeting discussed annual payments to the plaintiff, including but not limited to the meetings referred to in paragraph 56 of the affidavit of Susan Therese Mcintosh affirmed 29 September 2017.
2. where the meeting resolved to reduce the annual payment to the plaintiff from US$250,000 to US$125,000 (including minutes of the meeting of RG Capital Holdings Ltd held in 2008/2009 referred to in paragraph 56 of the affidavit of Susan Thérèse Mcintosh, where it is said that the deceased decided to reduce the amount he was paying to the plaintiff).
3. where the meeting discussed the payment of "backpay" to the plaintiff, referred to in paragraph 136 of the first defendant's affidavit sworn 29 September 2017.
4. where the meeting discussed reducing expenses "across-the-board" as deposed to in paragraph 56 of the affidavit of Susan Therese Mcintosh.
1. Copies of all documents including bank statements evidencing the source of all annual payments made by the deceased, or on his behalf, to the plaintiff, which annual payments are referred to in the evidence filed on behalf of the defendants, excluding documents evidencing the source of funds for the acquisition of properties occupied by the plaintiff from 1 January 2009 to date.
2. Copies of all documents referred to in paragraph 11 of the affidavit of Kerry McGinley Wright sworn 22 September 2017 as "letters or other communications" retained by the Kerry McGinley Wright at the request of the deceased.
1. ORDER that the proceedings next be listed, for directions, on the date to be appointed for examination of the first defendant pursuant to orders 9 and 10 made on 21 September 2018.
2. RESERVE to the parties liberty to apply on three days' notice in the meantime.
I have limited the range of documentation sought in Order 1(g), in effect, to documentation material to the plaintiff's claim for family provision relief because, as it seems to me, that limitation is inherent in the topics specifically identified by the plaintiff as the subject matter of the documentation.
I have refined the category of documents sought in Order 1(i) so as to conform to the language used by Mr Wright in his affidavit.
I decline to make an order in the following terms, sought by the plaintiff; that is, an order for the production of "copies of written communications by the deceased in relation to any dispositions and/or gifts to the plaintiff made inter vivos and/or in his wills from 1 January 2009 to the date of the deceased's death".
In my assessment, an order in those terms, in light of the documentation already provided or to be provided by the first defendant, goes beyond what is reasonable, even if it be limited to communications addressed to the four particular named individuals identified by senior counsel for the plaintiff in argument as an alternative form of order. In terms, it seeks the production of an overly broad range of documentation created over a seven year period.
Subject to any fresh development arising from today's order for production of documents or the plaintiff's examination of the first defendant, the principal proceedings should be set down for a final hearing as soon as may be practicable.
The parties should work towards that end, although I do not, at this stage, propose that a hearing date be appointed.
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Decision last updated: 05 October 2018