Forster v Jododex Australia Pty Ltd

Supreme Court of NSW|2024-07-08|Before: Pike J

Introduction

On 17 June 2024, I delivered judgment in these proceedings (see Re Estate of Legler [2024] NSWSC 726) (Principal Judgment) and directed the parties to confer as to the form of final orders and costs. These reasons assume familiarity with and maintain the same defined terms as the Principal Judgment.
The following issues remain for my determination: 1. the form of final orders including who is to be appointed administrator of the Deceased's estate; 2. the appropriate costs orders; and 3. whether there should be a stay of the orders pending an appeal by Nadja.

The Parties' contentions

Zhenya contended, in substance: 1. that a declaration should be made reflecting the Court's determination that Zhenya was in a de facto relationship with the Deceased at the time of his death within the meaning of s 104 of the Succession Act 2006 (NSW) (the Act); 2. an independent person should be appointed administrator and not Nadja's lawyer in these proceedings; and 3. Nadja should pay half of Zhenya's costs of the proceedings on the ordinary basis to reflect Zhenya's substantial success in the proceedings.
Nadja contended, in substance: 1. no declaration should be made to reflect Zhenya's de facto status - although this contention appears not to have been pressed in reply submissions; 2. Peter Jackson, Solicitor, be appointed administrator of the Deceased's estate; 3. Zhenya pay Nadja's costs of the proceedings as agreed or assessed; and 4. there be a stay of the final costs orders pending an appeal by Nadja as to my determination that Zhenya was the Deceased's de facto.

Form of final orders

The two principal disputes were: 1. whether a declaration should be made to reflect the Court's determination that Zhenya was the Deceased's de facto - assuming that is still a live debate; and 2. the identity of the administrator.
As to the first of these matters, as set out at [7] of the Principal Judgment, the two key issues litigated by the parties were whether Zhenya was in a de facto relationship with the Deceased at the time of his death and where was the Deceased domiciled at the time of his death. Whilst these issues were not the ultimate legal issues litigated - in the sense that they reflected the causes of action and relief sought - they were in substance the issues agitated. This is in the context of the Deceased having assets located in various jurisdictions around the world and where it was not clear, at this stage, how the Court's findings on de facto status and domicile would impact, if at all, in those various overseas jurisdictions, save perhaps for Portugal.
It was not in dispute that the Court's declaratory power provides a useful remedy that can be employed in a great variety of situations: see s 75 Supreme Court Act 1970 (NSW); Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421.
In circumstances where it is not clear what further litigation in relation to the Deceased's estate will occur, or where, but it seems inevitable that there will be, and there is at least a prospect that what has been decided by me in these proceedings will be relevant in overseas proceedings, there is utility in making declarations on the key issues litigated.
Accordingly, I propose to make declarations recording the outcome on these two issues. As set out at [357] of the Principal Judgment, the declaration that Zhenya was the Deceased's de facto at the time of death will make it clear that this is in the context of the statutory provisions - being s 104 of the Act.
I turn now to who should be appointed administrator. In the Principal Judgment, I determined at [355] that an independent person should be appointed administrator, because I had real concerns about Zhenya's fitness to be so appointed.
Zhenya contended that one of several solicitors should be appointed, on the basis that it was imperative that the administrator be both independent and an accredited expert in probate and succession law. There was, however, nothing to indicate that any of these solicitors had been approached by Zhenya's lawyers and were prepared to take the appointment. One of the candidates had indicated to Nadja's lawyers that she was not prepared to take the appointment given the estate is likely to be insolvent in New South Wales.
Nadja proposed that her solicitor, Mr Peter Jackson of FCW Lawyers should be appointed. An affidavit was filed from Mr Jackson deposing to the fact that he was admitted as a solicitor on 22 June 1973 and, since admission, has worked extensively in matters involving applications to the Supreme Court of New South Wales for grants of probate and letters of administration.
Apart from Zhenya's general contention that the administrator should be independent and an accredited expert, there was no suggestion that Mr Jackson would not be appropriate. In circumstances where there is a real issue as to the solvency of the estate of the Deceased in New South Wales and none of the solicitors suggested by Zhenya indicated they were willing to accept the appointment (and one said that she was not), Mr Jackson should be appointed.

Costs

It was not in dispute between the parties that the two principal issues - de facto and domicile - took up roughly equal hearing time.
Zhenya contended that she was substantially successful in her claim - establishing that she was the de facto spouse of the Deceased at his date of death and that she was entitled to the New South Wales estate of the Deceased. The matter on which Nadja succeeded - domicile - had no effect on the ultimate result. Accordingly, Zhenya contended that she is entitled to an order that she be paid half her costs of the proceedings on the ordinary basis.
Nadja, on the other hand, contended that Zhenya failed in seeking her primary relief, namely her appointment as administrator, because the Court concluded she was essentially unfit to hold such position. This conclusion was based on the facts relevant to both issues. Zhenya also did not succeed in establishing that she was entitled to the New South Wales estate. As such, the costs of the litigation should be borne by her. Nadja also contended that it could not be said that the success that each party had in relation to domicile and de facto have provided either party with a result in the main arena - being the overseas jurisdictions where there are substantial assets.
It is not in dispute that the Court has a broad discretion when dealing with costs: see s 98 Civil Procedure Act 2005 (NSW), Uniform Civil Procedure Rules 2005 (NSW) r 42.1.
In an appropriate case, this may include determining costs based on issues litigated. The exercise of discretion does not require any mathematical precision: see, for example, Tomanovic v Global Mortgage Equity Corp Pty Ltd (No 2) (2011) 288 ALR 385; [2011] NSWCA 256 at [84].
In circumstances where: 1. the substantive hearing lasted 5 days; 2. there were two principal issues litigated which roughly took up equal hearing time; 3. each party was successful on one of the principal issues and was unsuccessful on the other; 4. whilst it is almost certain that there will be litigation in several overseas jurisdictions in relation to the Deceased's estate and it is not clear at this stage what significance, if any, my determination on the two principal issues will have in those proceedings, the appropriate order is that there should be no order as to costs, to the intent that each party should pay their own costs of the proceedings. In short, on what I know now, each party has had a roughly equal measure of success.

Should there be a stay of the orders?

In reply submissions on final relief, Nadja sought "an order that this judgment be stayed pending determination of the appeal". A draft notice of grounds of appeal was attached. The stated basis for the stay is "to prevent possible mischief in other jurisdictions".
The submissions quite properly went on to recognise that "if the Court determines it to be inappropriate that the request for a stay be made in these submissions, the defendant will proceed to file a motion seeking such an order".
The appropriate course is for a motion to be filed seeking a stay to which Zhenya can respond, which can then, if need be, be determined by the Court.

Final Orders

The Court makes the following declarations and orders: 1. Declare that the Plaintiff was the spouse of Daniele Claudio Legler (the Deceased) at the date of his death, being 22 April 2022, within the meaning of s 104 of the Succession Act 2006 (NSW). 2. Declare that the Deceased was domiciled in Portugal at the date of his death. 3. Order that Letters of Administration in the estate of the late Daniele Claudio Legler be granted to Peter Jackson, solicitor, in solemn form. 4. Order that these proceedings be remitted to the Probate Registrar to complete the grant. 5. Order that the statement of claim filed 3 February 2023 is otherwise dismissed. 6. Order that the amended statement of cross-claim filed 6 May 2024 is otherwise dismissed. 7. Order that there be no order as to costs, to the intent that each party pay their own costs of the proceedings. 8. Order that there be liberty to apply on 3 days' notice.

Amendments 29 July 2024 - Typographical error in paragraph (1) of orders corrected 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: 29 July 2024

(NSW), Uniform Civil Procedure Rules 2005(NSW)r 42.1.

At a glance

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