Ford v Simes - [2009] NSWCA 351 - NSWCA 2009 case summary — Zoe

NSWNSWCA

Ford v Simes

[2009] NSWCA 351

Court of Appeal (NSW)|2009-09-30|Before: Tobias JA, Bergin CJ, Macready J

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2009-09-30

Before

Tobias JA, Bergin CJ, Macready J

Source

Original judgment source is linked above.

Judgment (32 paragraphs)

[1]

The applicant, being entitled as Executrix of the will of the deceased registered proprietor (who died on 16 Mar 2004) pursuant to probate No 107291/04 granted on 25 May 2004 to NATALIE ANN VAISEY SIMES (a certified copy of which is lodged herewith) applies to be registered as proprietor of the estate or interest of the deceased registered proprietor in the above land. 34 The Transmission Application includes a section for the executor, administrator or trustee to consent to the application, which was not completed. The Transmission Application was made pursuant to s 93 of the Real Property Act 1900 (NSW) which provides:

[2]

93 (1) Upon the death of a registered proprietor, the executor, administrator or other person claiming consequent upon the death, will or intestacy of that deceased proprietor, or otherwise, to be entitled to be registered as proprietor may apply in the approved form to the Registrar-General to be registered as proprietor of all or part of the estate or interest of that deceased proprietor. (2) An application under subsection (1) shall be: (a) supported by such evidence as the Registrar-General may require, and (b) accompanied by the consent of the executor or administrator of the deceased proprietor where the applicant claims otherwise than as executor, administrator or trustee unless the Registrar-General thinks fit to dispense with that consent. (3) The Registrar-General on being satisfied that an applicant under subsection (1) is entitled to the estate or interest claimed in the application, shall record the applicant in the Register as proprietor of that estate or interest. (4) Where, pursuant to an application under subsection (1), a person is registered as proprietor with the consent of another person given under subsection (2)(b), the person who has given the consent shall, for the purposes of section 129(2)(f), be deemed to have become, immediately before registration of the applicant as proprietor, registered as proprietor of the land specified in the application and to have transferred that land to the applicant. 35 After the evidence had been completed before the Trial Judge and during the period in which the parties were supplementing their submissions in writing the appellant's solicitors wrote to the respondent's solicitors referring to the Transmission Application and inviting the respondent's consent to the appellant relying on it in its written submissions. The respondent's solicitor advised that the issue raised by the appellant was "merely a technicality" and had no substance. Reference was made to the publication of the Notice of Intended Distribution and the fact that the respondent had dealt with the properties since the transfer of title in the belief that she was their owner in her own right. The appellant did not make application to the Trial Judge to re-open his case for the purpose of tendering the Transmission Application. Both parties' submissions dealt with the case on the basis that the estate had been fully distributed.

[6]

In an article in the Weekly Notes Covers, vol, XI., No 39, (sic) the opinion was expressed that an executor-devisee should execute a conveyance or transfer to himself, or sign and register an acknowledgement to himself. A Victorian case, Hosken v Danaher (1911), V.L.R. 214, was referred to. But from a logical point of view it is difficult to understand why this should be so. The object of the acknowledgment or conveyance is to vest in the person entitled under the will, the legal estate which is in the executor by virtue of sec. 44 of the Wills, etc., Act. In the case of an executor-beneficiary the legal estate is already vested in him and on completion of the executorial functions he holds, by virtue of s. 47, on trust for himself, and one would imagine that the equitable estate would merge in the co-extensive legal estate. Upon examination it appears that Hosken v. Danaher was a case relating to land under the Victorian Land Transfer Act, 1890 (corresponding to our Real Property Act, 1900). An administrator, who was registered as proprietor of the land as such, obtained an assignment and release from the beneficiaries of their interests in favour of himself, and lodged it, together with a transfer from himself as administrator to himself in his personal capacity, with the Registrar of Titles. The Registrar refused to register the transfer. The Court ( Madden, C.J., and a'Beckett , J. - Hood , J., dissentiente ) held that the transfer should be registered; but from their judgments it appears clear that the judges were considering, not the passing of the legal estate, but merely the effect of the transfer as an appropriate means under the Land Transfer Act of giving the administrator, as beneficial owner, a clear certificate of title. See per Madden, C.J., at pp. 224, 225, per a'Beckett, J., at pp. 226, 227, and cf. per Hood , J., at p. 221. 40 Hodge v Griffiths [1940] Ch 260 was a case in which the deceased's husband, the plaintiff, was the sole beneficiary and joint executor and trustee of the deceased's Will with the defendant, Mr Griffiths. The gift to the plaintiff of the real property in the estate was conditional upon him paying to his sister-in-law £2 per week during her life. In the event that the plaintiff sold the properties he was required to invest £2,000 and pay the income from that investment to his sister-in-law for her life and after her death to her children. The applicable statute, Administration of Estates Act 1925 (UK), provided that a written assent to the vesting of a legal estate was required to be in writing and signed by the personal representative naming the person in whose favour it was given. The plaintiff had not signed an assent. The plaintiff brought proceedings to determine whether in the event of the acceptance of the gift, the Will imposed on him a personal liability to pay his sister-in-law the sums mentioned in the Will. 41 Farwell J concluded that there was a personal liability upon the plaintiff to pay his sister-in-law the sums mentioned in the Will if he chose to accept the gift but that it was open to the plaintiff to disclaim the gift and thereupon he would have ceased to have been under any personal liability. There was then a question as to whether the plaintiff was in a position to disclaim the devise. Farwell J said at 264-265:

[23]

56 In respect of the principles in House v The King (1936) 55 CLR 499 at 504-505, the appellant did not submit that his Honour fell into error in taking into account the abandonment of the relationship in concluding that there were no special circumstances, but rather submitted that no reasonable tribunal could reach such a conclusion. The appellant submitted that having found that: the deceased knew nothing about the criminality for which the appellant was incarcerated; there was no prejudice in extending the time pursuant to s 16 of the Act; inferentially that the appellant was a lame duck; the estate was large enough to make provision for the appellant; there was no actual prejudice to the respondent; and not having found that the appellant had no need, there were circumstances sufficient to justify a finding of special circumstances. 57 Counsel for the appellant accepted that the Trial Judge's finding that the appellant abandoned the relationship with the deceased was decisive in reaching the conclusion that the appellant failed to establish special circumstances under s 28(5)(d) of the Act. The appellant submitted that estrangement does not mean that an applicant automatically fails in an application for provision and accordingly it should not mean that an applicant fails to establish special circumstances. In this regard reliance was placed on a number of authorities in which the claimant and the deceased were estranged. 58 Acrimony or estrangement does not necessarily destroy the bonds of parental ties (see Diver v Neal [2009] NSWCA 54 at [27]). The nature of the estrangement and the underlying reason for it is relevant to an application under the Act: Palmer v Dolman; Dolman v Palmer at [88]-[94]. 59 In Wheatley v Wheatley [2006] NSWCA 262, the Court of Appeal increased the amount awarded to the claimant appellant from $78,000 to $168,000. Although the relationship between claimant and deceased was a very hostile one, Bryson JA (with whom Santow & McColl JJA agreed) found that this hostility by the testator went beyond that of the reasonable or hypothetical testator (In re Allardice, Allardice v Allardice (1910) 29 NZLR 959 at 972-973). 60 Bryson JA found that the testatrix was of "an extremely difficult personality" (at [32]) and that: "her disposition and state of mind were far from those of the wise and just testatrix who is brought into consideration for the purposes of family provision legislation." (at [18]). Despite the fact that the relationship between the claimant and deceased was a very rancorous one, and there had been no personal contact for 13 years, there had been continuing telephone communication between them, albeit infrequently.

[29]

70 In these proceedings, there was no claim or submission by the appellant that his Honour had failed to give sufficient reasons for his conclusions. As the passage from Campbell J's judgment in Cetojevic v Cetojevic makes clear, the appellant was obliged to establish circumstances beyond the ordinary circumstances. He was required to establish something "special". The Trial Judge accepted that his circumstances played at the heartstrings but clearly concluded that they did not amount to "special circumstances" because there had been a deliberate abandonment by the appellant of his relationship with the deceased. The present case is distinguishable from those cases relied upon by the appellant in that this was a unilateral abandonment of a father for 14 years from when he was aged 76 until he died at aged 90 with a single abusive encounter in that period. 71 It is one thing to make provision for a child, even an adult, where the Court is able to better balance the obligations of the testator with the adequacy of the provision made by the testator. However in my view it is very important for the maintenance of the integrity of the process in these types of applications that this Court acknowledge once again the entitlement of testators, in certain circumstances, to make no provision for children: The Pontifical Society for the Propagation of the Faith and Saint Charles Seminary, Perth v Scales (1961) 107 CLR 9. This is particularly so in respect of children who treat their parents callously, by withholding without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility. 72 It is obvious that if the estrangement from the testator is explicable, as was the case in the authorities referred to above, a claimant may still achieve an order for provision under the Act. However there will be cases in which the estrangement is such that a testator is entitled to make no provision for an estranged child. This is one of them. The deceased spent the last 14 years of his life without any assistance from the appellant; without any communication (except the abusive encounter) from the appellant; and without the benefit of the love from a child whom he had nurtured and financially assisted during his formative years. 73 These observations are made in the context of the exercise of a discretion as to whether provision "ought" be made. The Trial Judge was considering the abandonment of the relationship as a factor in determining whether the appellant had established "special circumstances". As I have said earlier it was not suggested that the consideration of this factor in this exercise was inappropriate, but rather that no tribunal could reasonably have reached the conclusion that special circumstances had not been established. The Trial Judge was entitled to conclude that the unilateral abandonment of the deceased, when weighed in the balance, meant that the appellant had failed to establish "other special circumstances" under s 28(5)(d) of the Act. Even if it had not been necessary for the appellant to establish special circumstances, his unilateral abandonment of the deceased would have been a factor to have been taken into account in deciding whether provision "ought" be made. In my view that abandonment would have been a decisive factor against the exercise of discretion in the appellant's favour. 74 This conclusion means that it is unnecessary for the other grounds of appeal to be considered. However I should say that as to Ground 2, I do not accept that the Trial Judge found that the appellant did not have a financial need, but rather that during the period of his incarceration he would not require access to funds for his day-to-day living.

Parties

Applicant/Plaintiff:

Ford

Respondent/Defendant:

Simes

Legislation Cited (8)

Administration and Probate Act 1915(Vic)

(NZ) Family Provision Act 1982(NSW)

Probate Administration Act 1898(NSW)

Family Provision Act 1982(NSW)

Felons (Civil Proceedings) Act 1981(NSW)

Real Property Act 1900(NSW)

Trustee Act 1925(NSW)

Uniform Civil Procedure Rules 2005(NSW)

Cases Cited (18)

Barker & Anors v Magee [2001] NSWSC 563 Benney v Jones (1991) 23 NSWLR 559 Cetojevic v Cetojevic [2006] NSWSC 431 Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435 Diver v Neal [2009] NSWCA 54 Foley v Ellis [2008] NSWCA 288 Ford v Simes [2008] NSWSC 1120 Hamzy v Commissioner of Corrective Services [2007] NSWSC 1469 Hodge v Griffiths [1940] Ch 260 House v The King (1936) 55 CLR 499 CASES CITED: Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134 In Re Allardice, Allardice v Allardice (1910) 29 NZLR 959 In Re Thorne v Sherson's Contract [1920] V.L.R. 50 McIntosh v Williams [1976] 2 NSWLR 237 Mulcahy v Weldon [2002] NSWCA 206 Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 Potier v Ruddock [2008] NSWSC 153 Re Heberley (Deceased) [1971] NZLR 325 Singer v Berghouse (1994) 181 CLR 201 The Pontifical Society for the Propagation of the Faith and Saint Charles Seminary, Perth v Scales (1962) 107 CLR 9 Walker v Walker (unreported, NSWSC 17 May 1996) Wheatley v Wheatley [2006] NSWCA 262

LOWER COURT MEDIUM NEUTRAL CITATION: Ford v Simes [2008] NSWSC 1120

Accordingly, I reject the approach that all an applicant under this Act has to do is to prove that he or she is an eligible person and that he or she reasonably needs more financial assistance. The cases show that there must be a full investigation into all the facts and circumstances of the matter to see whether the community would expect that a person in the plight of this testator ought to have made provision or further provision for the applicant. 23 The Trial Judge also referred to the fact that Ipp JA had approved that passage in Walker v Walker in Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 at [112] with some qualification. The Trial Judge then referred to the lack of contact between the appellant and the deceased for the fourteen years prior to his death [70-72] and said:

Applications for leave 29 The appellant made two applications for leave. The first was for leave to institute the appeal proceedings pursuant to the Felons (Civil Proceedings) Act. The second was for leave for this Court to "receive additional evidence" pursuant to Part 51 Rule 51(1) of the Uniform Civil Procedure Rules 2005. Leave to commence proceedings 30 The parties accepted that the appellant needed leave to commence the appeal proceedings and that pursuant to s 5 of the Felons (Civil Proceedings) Act, such leave could not be granted unless the Court was satisfied that the proceedings were not an abuse of process and that there was a prime facie ground to the proceedings. Counsel for the respondent neither opposed nor consented to leave being granted. In those circumstances it is necessary to consider the two statutory pre-requisites to the exercise of the discretion to grant leave. 31 There is nothing to suggest that the appellant's application to this Court is an abuse. The appellant was an "eligible person" to bring an application under the Act for provision out of the deceased's estate: s 6. The appellant established "sufficient cause" for the extension of the time within which to bring the application at first instance: s 16(3)(b). The deceased made no provision for the appellant and his application for provision was dismissed. The expression "prima facie ground" in s 5 of the Felons (Civil Proceedings) Act as it applies to this application, means no more than a ground of appeal that is arguable or not totally hopeless. The grounds alleging that the Trial Judge erred in failing to find that there were other special circumstances and failing to order provision in favour of the appellant were arguable: Hamzy v Commissioner of Corrective Services [2007] NSWSC 1469 at [15]; Potier v Ruddock [2008] NSWSC 1469. 32 Leave under s 5 of the Felons (Civil Proceedings) Act to bring the appeal should be granted. Leave to receive additional evidence 33 The evidence in support of this application was an affidavit of Richard Arthur Murphy, the solicitor for the appellant, which referred to the property search that was in evidence before the Trial Judge that included a reference to a Transmission Application, registered number AA736875. The affidavit annexed a copy of the Transmission Application. The Transmission Application identifies the respondent as the "Applicant" and includes the following:

[2008] NSWSC 1469

(1991) 23 NSWLR 559

(1955) 93 CLR 435

(1936) 55 CLR 499

(1979) 143 CLR 134

(1994) 181 CLR 201

(1962) 107 CLR 9

(1961) 107 CLR 9