The questions for determination arise in proceedings commenced on 22 February 2013 by Gianna (Jenny) Angius for family provision orders under s 59 of the Succession Act 2006 (NSW).
The defendant is Mr Gordon Albert Salier, who is the administrator of the estate of the deceased, Laura Angius. Laura Angius was the mother of the plaintiff, and died on 4 January 2012.
As has become customary, with no disrespect to the members of the Angius family, I will for convenience refer to them by their first names.
The matter that is before the Court arises under a notice of motion filed by Jenny's brother, Robert Angius, on 3 April 2018. Robert is not a party to these proceedings, and he seeks the following orders:
1. An order that Robert Angius be joined as Second Defendant to the proceedings under Part 6 rule 24 of the Uniform Civil Procedure Rules 2005 (NSW), on condition that:
he would be at risk as to his own costs in that he would pay his own cost of the proceedings unless the Court otherwise ordered; and
unless leave of the Court is granted, the cross examination by his Counsel would be limited to areas not otherwise covered by Senior Counsel for the Defendant, Mr Salier.
2. An order that an interim distribution of $1,000,000 be paid from the cash amount held by the administrator to the Applicant, or such other amount as the Court determines in its discretion, pursuant to Part 54 rule 3(3)(d) or (4)(b) of the Uniform Civil Procedure Rules 2005 (NSW) and/or s 84 of the Wills Probate and Administration Act 1898 [in fact the Probate and Administration Act 1898 (NSW)].
3. That the costs of this Motion be otherwise costs in the cause.
Robert has already made an application to be joined as a defendant to these proceedings. An application to that effect was dismissed by Hallen J on 15 June 2016. The Court was advised that his Honour did not publish reasons for judgment in connection with the dismissal of the application.
Robert's application to be joined as a second defendant was opposed by Mr Salier, primarily on the basis that the joinder was unnecessary and was likely to complicate and prolong the proceedings, and increase the amount of the legal costs that would be incurred. Mr Salier noted that Robert's earlier application had been dismissed, and submitted that it had not been demonstrated by Robert that circumstances had changed sufficiently for the Court to entertain a further joinder application by Robert. Mr Salier accepted, however, that decisions of the Court as to the joinder of additional parties were interlocutory in nature and did not give rise to any form of estoppel. Mr Salier did not stand in the way of the Court making the joinder order sought by Robert, if in the exercise of the Court's discretion it took the view that the joinder was warranted.
Robert's joinder application was opposed by Jenny, who submitted that the Court should not entertain the application, given that it had already dismissed the earlier application. She also submitted that the joinder of Robert would very likely be counter-productive, given the extreme level of animosity felt by the members of the Angius family towards each other.
It is to be hoped that the disputes that have arisen between members of the Angius family are exceptional in nature, and it will be necessary for the purpose of dealing with both of Robert's applications to say something briefly about the history of the family, the present proceedings, and related proceedings involving members of the family and Mr Salier.
The appropriate place to begin is to note that Laura, and her husband John, amassed between them during their marriage a relatively substantial fortune. Their property primarily consisted of various real properties, sometimes held through a number of companies.
The marriage between Laura and John broke down, and they entered into a separation agreement under which they divided up their property. Laura died before the terms of the separation agreement were fully implemented. The Court was told that Laura was found dead at the bottom of a staircase. An inquest into her death ended in an inconclusive result.
It appears that, largely as a result of the split between Laura and John, the Angius family divided down the middle. Robert took Laura's part, while Jenny allied herself with John.
It appears that one consequence of the division within the family is that Laura made a will under which she made Robert her sole beneficiary, except for a gift of a home unit in favour of Sean, who is Jenny's son. It may be noted that Jenny's daughter, Gabrielle, also received a home unit, but that was not as a beneficiary under Laura's will. The gift was a provision in the separation agreement between Laura and John, and ultimately the gift was enforced as a result of proceedings taken by Mr Angius against John. It is sufficient to note that Sean and Gabrielle have been treated equally, but by different legal arrangements.
The Court was told, and there is some evidence to the effect, that John has made a will under which he has left his estate substantially to Jenny, with no provision for Robert. No party at the hearing of Robert's notice of motion took issue with that proposition. It was said that John may own additional property, so that the probability is that upon his death Jenny will receive more under John's will than Robert has received under Laura's will.
Notwithstanding that Laura died on 4 January 2012, over six years ago, Mr Salier has not yet been able to make any substantial distribution of Laura's estate. That does not result from any lack of diligence on Mr Salier's part.
Mr Salier has been required to respond to a number of substantial pieces of litigation. The evidence on the notice of motion did not go into this question in detail, but I understand that proceedings were required to enforce the settlement agreement between Laura and John. There were proceedings to determine the proper construction of Laura's will. John has instituted proceedings against Mr Salier in his capacity as administrator of Laura's estate, in which he makes a money claim for reimbursement of expenses that he says he paid on behalf of a number of companies through which he and Laura held various properties. Recently, I have been case managing those proceedings. They have had, so to speak, a chequered history. It is sufficient for present purposes to note, for reasons that I will not elaborate, that it would be appropriate to adopt a figure of about $4 million, as the extreme outside of the result that John could hope to achieve upon complete success in his proceedings. It would not be appropriate for me to make any comment upon John's prospects of success in those proceedings.
Then, there are the present proceedings for family provision relief by Jenny. I have not been involved in the case management of these proceedings, and do not understand the issues in any detail. I note that the proceedings appear to have come before Hallen J on 34 occasions, before the hearing of the present notice of motion before me on 20 June 2018.
On 23 April 2018, Hallen J ordered Jenny to file and serve affidavit evidence setting out her financial needs both present and future, by 28 May 2018. Jenny has not yet filed that evidence. That factor complicated Robert's application for an interim distribution, because it inhibited the ability of Robert, and the Court, to make an assessment of the upper end of the range of results that Jenny could hope to achieve through her application, for the purpose of making an assessment of the possible total liabilities of the estate. Plainly, Robert can only realistically hope for an interim distribution of the estate's assets in circumstances where the Court can be completely confident that the balance remaining in the estate will be sufficient to meet all possible claims against it.
When the Court raised this issue with counsel for Jenny, he informed the Court that Jenny did not propose to avail herself of the opportunity given by Hallen J by his 23 April 2018 order. Instead, Jenny would be content to rely upon the evidence given in her 3 April 2014 affidavit concerning her present and future financial needs. That reliance would be subject to the standard obligation to file an updating affidavit shortly before the hearing of Jenny's family provision application.
Pressed for a more definite indication of the ambit of Jenny's claim in these proceedings, counsel provisionally indicated that it would be appropriate for the Court to proceed for the purposes of determining Robert's notice of motion on the basis that Jenny would be seeking a family provision order as to 20% of the net estate of Laura. I recorded at the time that counsel made this estimate that it was given solely for the purposes of determining the notice of motion, and was not binding and should not be held against Jenny in these proceedings generally.
This brings me to the evidence concerning the assets and liabilities of Laura's estate.
Mr Salier provided evidence on these subjects in his affidavit sworn on 9 April 2018. Mr Salier was not cross-examined. Given Mr Salier's obligation to assist the Court in matters of this nature, I have no hesitation in accepting his evidence.
Quite properly, Mr Salier provided details of the estate's affairs, but it is sufficient for me to focus on the conclusions reached by Mr Salier in par 45 of his affidavit. He concluded that the assets of the estate had a value in the range $14,580,312.08 to $14,780,312.08. Of that, $2,486,921.12 in a controlled moneys account held by Mr Salier, and $2,386.30 in a trust account, represented liquid funds held by the administrator.
Mr Salier gave actual and estimated liabilities of the estate as being $1,395,545.45 to $1,663,045.45. On that basis, Mr Salier estimated the net distributable estate as being between $13,184,766.63 and $13,117,266.63.
Mr Salier added the following caveat:
These calculations are estimates only. The estate's interest in the companies will be difficult to realise if the estate's shares are required to be sold. If properties are required to be sold there will be capital gains tax and there may be GST payable.
Mr Salier allowed an estimate of $1 million as the amount potentially payable to John, if he succeeds in the proceedings that he has instituted against Mr Salier that I have mentioned above. That allowance was made on the basis of Mr Salier's understanding at the time he swore his affidavit. The Court was informed during the hearing by senior counsel for Mr Salier that John had filed a notice of motion seeking leave to amend his statement of claim in which he wished to add to the amount that he wishes to claim against Laura's estate. It is that circumstance that generated the figure of $4 million referred to above. That was not in any way intended to be an actual estimate of the estate's liability to John. Rather, it was an outside allowance made only for the purpose of an assessment of the amount of any interim distribution that could safely be made to Robert.
As Mr Salier had already made a $1 million allowance for John's claim, it will be appropriate for the Court to allow an additional $3 million.
As Jenny has suggested that an allowance of 20% of the net estate should be made in respect of her claim, the appropriate amount to be allowed will be $2,600,000. (I appreciate that, in making this estimate, I have not first deducted the estimate allowed for John's claim before calculating the 20% figure. It would be illusory to think that these matters are capable of mathematical certainty, and the most conservative course is to allow for both John's and Jenny's claims in the full amount individually allowed for each, even though strictly on the basis of the logic adopted by the Court, both claims should not ultimately be liabilities of the estate in the full amounts allowed for them).
If an additional $3 million provision is made for John's claim, and a provision of $2,600,000 is made for Jenny's claim, the total is $5,600,000.
The result is, if the calculation is rounded, after all estimated and possible liabilities of the estate are allowed for, the net amount of approximately $7,400,000 should remain.
Robert initially at the hearing attempted to persuade the Court that in fact the assets of the estate should be taken to be substantially more valuable than the estimate made by Mr Salier. Robert contended for an estimated value of between $22 million and $23 million. This estimate was based upon slightly higher estimates of the values of the various properties than Mr Salier had adopted, and also, primarily, a claim that the estate was entitled to an additional $5 million, being half of the rent generated by the various properties that had been applied for the benefit, it is alleged, of John, and not paid to the companies who owned the properties.
It is sufficient to record that I did not permit Robert to go into detailed evidence to support his claim that the assets of the estate had the higher value contended for by him. It would have been necessary for the Court to make a judgment about the outcome of contentious and relatively opaque claims, before it could allow an additional amount as the value of the estate compared to the value adopted by Mr Salier. Not only would that have been an impractical course, but it would ultimately have been futile given the legal principles, to which I will come below, as to the approach the Court should adopt in deciding whether an interim distribution should be made.
It should be recorded, however, that there are reasonable grounds for believing that Mr Salier may ultimately be able to recover on behalf of the estate a greater amount than the assets that he has allowed for. That consideration increases the level of confidence that the Court can reasonably have that the value of the assets of the estate justify the making of an interim distribution. On the other hand, the availability of a potential 'upside' should be balanced against the cautionary observation made by Mr Salier that the value of the estate may be reduced if it becomes necessary to realise any of its assets to increase the amount of the liquid funds available.
It should be added that Mr Salier expressed the view that, if the interim distribution of $1 million sought by Robert was made to him, the available liquid funds may be reduced to an amount that required Mr Salier selectively to realise other assets of the estate. This prompted Robert to make a submission to the effect that the making of an interim distribution to him of $1 million out of the presently available liquid funds could be done without any requirement for Mr Salier to realise any other assets of the estate. I take the view that, given that the only application before the Court is that made by Robert's notice of motion, Robert has no standing to seek any order from the Court that would interfere with the free exercise by Mr Salier of his powers as administrator of the estate, to decide whether and in what circumstances the estate's assets should be realised. There is also no reason for the Court to interfere in Mr Salier's performance of his duties, and no reason for the Court to doubt that he is fully capable of properly performing those duties.
This brings me to the evidence concerning Robert's circumstances.
The evidence justifies a conclusion that Robert has severe hearing impediments. I have witnessed his difficulties myself in Court, when Robert has attempted to use the apparatus that is provided to assist persons in Court to follow what is said by amplifying the words spoken. Robert was required to turn up the volume to a point where the apparatus became completely ineffective. The Court was informed by Robert's counsel that she frequently had to obtain instructions from Robert in chambers by communicating with him in writing. Robert's solicitor also gave evidence that there had been occasions when Robert was completely incapable of giving instructions because of his hearing impediments.
There was some evidence that Robert will probably need cochlear implants, although the evidence on this subject was not detailed, and did not go into the medical advice received by Robert or the potential costs of any procedures to improve Robert's hearing difficulties.
Mr Salier properly accepted that Robert's need for treatment of his hearing deficiencies justified the making of an interim distribution at least to the extent of funding that need.
Jenny's response to this aspect of Robert's application for an interim distribution was to oppose it. Jenny's counsel informed the Court that it was Jenny's position that no interim distribution should be made, although for his own part he would not make a positive submission that in principle no interim distribution should be made for this purpose. Counsel did submit, however, that there was insufficient positive evidence to justify the Court in concluding that an interim distribution for this purpose was warranted, or in determining the necessary amount.
There was also evidence before the Court, albeit on information and belief, that Robert has not enjoyed adequate housing since the death of his mother. Robert owns a property upon which a house had been demolished in anticipation of a new house being built. Because Robert has not received any significant distribution from Laura's estate for some six years, he has not been able to fund the construction of the new house. Consequently, he has not over that period had the benefit of a fixed or adequate residence. He has had to store much of his belongings, and had to move about from time to time sometimes relying upon the goodwill of friends and associates.
Robert's solicitor gave evidence that he owes legal costs that exceed $1.4 million that have been outstanding for 4 to 5 years. The fees owed to his counsel currently total $518,945, and the solicitor's firm is currently owed $850,000.
The solicitor gave evidence that, it is Robert's present intention, if he receives an interim distribution of $1 million from the estate, to pay $450,000 to each of his counsel and solicitor in reduction of the amount of fees that he currently owes them, and to use the final $100,000 to get cochlear implants, and to use the balance for other necessary expenses that he may have in his day-to-day living.
I now turn to Robert's application to be joined as a second defendant to the proceedings, subject to the restrictions set out in par 1 of his notice of motion.
Robert relied upon a number of statements of principle, including the following. In Vasiljev v Public Trustee (1974) 2 NSWLR 497 at 503 Hardie JA said:
In special cases where…very substantial benefits are conferred upon beneficiaries, it can be proper for beneficiaries to intervene and be separately represented…
A similar view was taken by the Court of Appeal of the Supreme Court of Victoria in the Estate of Peter Frangos: Frangos v Frangos (Victorian Court of Appeal, unreported, 7 July 1995) at 9.
In Boldi v Crozier [2015] NSWSC 2155, Brereton J, while noting that courts ordinarily discourage beneficiaries from being joined (at [3]), also noted that nonetheless, there are circumstances in which a beneficiary will be joined as a defendant, holding at [4]:
… a beneficiary will more readily be permitted to intervene where the beneficiary receives very substantial benefits under the will which are liable to be disturbed if a family provision order is made.
Consistency requires me to note that I have recently made an order that Robert be joined in the proceedings instituted by John against Mr Salier that I have mentioned above: see Angius v Salier [2018] NSWSC 808. That joinder was made subject to significant restrictions on Robert's entitlement to freely take part in the proceedings: see [64]. I noted the authorities relied upon by Robert at [36], [56] and [57].
I made the order for Robert's joinder as a defendant in John's proceedings substantially for the reason that in respect of one issue raised by John, a claim against the company, Togumi Pty Ltd, Robert was a necessary party because Robert owned the relevant property jointly with the company. Furthermore, John's proceedings substantially raised straightforward commercial questions that would depend upon the evidence, and should not be detrimentally affected by the emotional circumstances of the parties.
In the present case I am not satisfied that it would be appropriate at this stage to make an order joining Robert as a defendant, even on the basis of the limitations that he suggests.
First, Hallen J has already rejected an application by Robert to be joined to the proceedings. Although I am unaware of the basis for his Honour's decision, I would hesitate to disturb his Honour's ruling without having positive grounds for doing so.
The Court was told that Mr Salier, as the defendant in these proceedings, has already filed an affidavit made by Robert in opposition to Jenny's claim. There has been no suggestion that Mr Salier has declined to raise any issues that Robert has suggested are relevant to the proceedings. At this stage, no positive basis was put forward by Robert to justify a conclusion that the defence will not be conducted adequately by Mr Salier, or that, having regard to Mr Salier's duty to exercise his own judgment, matters that Robert reasonably seeks to put forward will be rejected by Mr Salier.
Robert relied on the suggestion that circumstances have changed since Hallen J rejected Robert's joinder application, although those circumstances were not explored in any detail. Robert also pointed to the fact that Jenny's claim had become very protracted, and that it did not appear to be nearing the setting of a hearing date. I observe that the pendency of John's proceedings, which if successful may reduce the net assets of the estate, has to some degree impeded the progress of the present proceedings. While it seems self-evident that the present proceedings are not advancing with any speed, there was no suggestion by Robert that any lack of diligence on Mr Salier's part was responsible for any delay.
It seemed to me that the real reason behind Robert's application is a desire to be heard personally, and to be able to put his own case in defence of his entitlement to substantially all of Laura's estate.
Robert's counsel put the argument that, in a family provision application such as the present, the Court's concern is not confined to the objective adequacy of the provision made in the will for the maintenance, education and advancement in life of the applicant, but is also concerned with the personal feelings of all affected parties (presumably referring to "the character and conduct of the applicant before and after the date of the death of the deceased person", as made relevant by s 60(2)(m) of the Succession Act 2006 (NSW).
I beg to differ. It has been my personal experience that the circumstance that most frequently undermines the efficient conduct of family provision applications is the introduction into the proceedings of evidence primarily relevant to extraneous emotional issues that seem to possess the protagonists, and these matters rarely have any, or any adequate, relevance to the true issues that should be the focus of the attention of the parties.
This problem can be exacerbated where the executor is not independent, but a primary beneficiary of the deceased's estate. The result is that, in practical terms, the Court can be deprived of the assistance of an independent executor or administrator in dealing with the application properly and efficiently.
In the present case, where it is plain that the level of antagonism between the protagonists is so high that they cannot act civilly towards each other, it would be counter-productive for an order to be made joining Robert as a defendant, even subject to the proposed restrictions, without the Court first having a very sound reason to do so.
I will not make the orders sought by Robert now, but I will not dismiss that aspect of his notice of motion.
I will give Robert leave to renew his application in the future, closer to the time when the proceedings are fixed for hearing. I will not prejudge the outcome of any such application, but I would suggest that it should be based on some objective ground that might satisfy the Court that Robert's joinder will add something positive to the conduct of the proceeding, in circumstances where the Court has a basis for understanding what Robert's involvement would entail, and possibly also some basis for the Court to be able to judge that Mr Salier had decided not to adopt some course suggested by Robert that it would be reasonable to allow Robert to pursue himself.
I turn now to the second question, being whether the Court should authorise an interim distribution to Robert of the $1 million sought by him, or some other amount.
Part 54 rule 3 of the Uniform Civil Procedure Rules 2005 (NSW) relevantly provides:
54.3 Relief without general administration
…
(3) Proceedings may be brought for an order directing any executor, administrator or trustee:
…
(d) to do or abstain from doing any act.
(4) Proceedings may be brought for:
…
(b) directing any act to be done in the administration of an estate that the Supreme Court could order to be done if the estate were being administered under the direction of the Court…
.
Section 84 of the Probate and Administration Act 1898 (NSW) provides:
84 Application for legacy etc
If the executor or administrator, after requesting in writing, neglects or refuses to:
(a) sign such acknowledgment, or
(b) execute a conveyance of land devised to the devisee, or
(c) pay or hand over to the person entitled any legacy or residuary bequest,
the Court may, on the application of such devisee or person, make such order in the matter as it may think fit.
In Re Anderson (1953) 53 SR (NSW) 520 Myers AJ discussed at 522 the purpose and operation of section 84 in the following terms:
Before s 84 was passed, the only method of recovering a legacy was by an administration suit. In such a proceeding all interested persons are parties to the suit, and the court is able to exercise powers which are not available in an application under s 84. It can, for instance, determine questions of construction, take accounts, direct inquiries and make appropriations to free residue. Such powers are not available in an application under the section, for a variety of reasons. Questions of construction cannot be determined in a summons under s 84 because all the persons interested are not parties to the application, the only parties being the legatee as applicant and the executors as respondents.
The absence of all interested persons may also prevent the exercise of other powers or the powers such as taking accounts may be adjuncts of the equitable and not of the probate jurisdiction. Section 84, therefore, cannot be used as a substitute for an administration suit. It only provides a speedy and simple method of recovering a legacy where it is not necessary for the court to exercise any of the powers it would possess in an administration suit, and in a case where no persons are interested in the relief sought other than the beneficiary and the executors. The existence of a genuine difficulty in the construction of a trust instrument or a genuine dispute as to the accounts would, therefore, be fatal to an application under s 84; that is, if the right to receive the legacy depended to any extent on a question of construction or upon the ascertainment of the executor's balances. Accordingly, it seems to me that an application under s 84 cannot be used in any sense as a substitute for an administration suit, and that the court has no power under that section to make an order unless the evidence shows that the applicant is clearly entitled to the legacy sought and that there are liquid assets available for payment of it.
In Romano v Romano [2004] NSWSC 775, Barrett J (as his Honour then was) adopted the approach of Myers AJ in Re Anderson and held at [18]:
[18] But even allowing for these uncertainties, the moneys in hand may be accepted as more than sufficient to accommodate, at the least, the payment of the pecuniary legacy of $200,000. Acting with the greatest degree of conservation and prudence called for by the circumstances of the case, the executor could safely part with that sum, particularly since, at a pecuniary level, the rents and the share of residue (which will be substantially in cash form) will represent a sufficient buffer or safety valve. According to the tests laid down by Myers AJ in Re Anderson (1953) 53 SR (NSW) 520, this interim distribution is appropriate because there is a clear entitlement to the legacy and funds available to allow for the safe payment of it.
Further, in Steiner v Strang: Estate of Steiner [2012] NSWSC 919, White J (as his Honour then was), said at [25]-[27]:
[25] Both plaintiffs are entitled to a legacy of $2 million if there are sufficient funds in the estate with which to pay all pecuniary legacies. In Romano v Romano [2004] NSWSC 775 Barrett J (as his Honour then was) held that s 84 of the Probate and Administration Act or Pt 68 r 2(3)(d) or (4)(b) of the Supreme Court Rules (now r 54.3(3)(d) or r 54.3(4)(b) of the Uniform Civil Procedure Rules) provided a foundation for orders requiring the payment of interim distributions in the payment of pecuniary legacies if, acting with the greatest degree of conservation and prudence, the executors could safely part with the sums to be distributed (at [16], [18]).
[26] In Indyk v Wiernik [2006] NSWSC 868 Young CJ in Eq (as his Honour then was) said that he had never made an order for interim distribution because he had never had a clear case where, on looking at all the predictions that could be made, it could be seen that in the ultimate, even after paying the costs of litigation, there would still be the sort of surplus that would justify an interim distribution, bearing in mind that the executor is entitled to retain sufficient funds as a buffer against unexpected expenses (at [23]).
[27] In the present case I was satisfied that the executors could safely part with the sums of $500,000 and $300,000 by way of interim distribution to Robyn Webster and John Steiner respectively in accordance with these principles. Nor did counsel for the executors submit that the distributions could not safely be made.
See also Steiner v Strang [2017] NSWSC 132, at [44]-[47] per Kunc J.
Although Mr Salier only positively accepted the appropriateness of the Court making an interim distribution to fund the medical procedures required by Robert in relation to his hearing deficiencies, at the hearing Mr Salier did not oppose the authorisation of the full interim distribution sought by Robert.
Senior counsel for Mr Salier noted that as an arithmetical matter there was no impediment to Robert being paid $1 million of what certainly will be his own money out of a conservatively estimated net estate of $7,400,000.
Jenny opposed the authorisation of the interim distribution sought by Robert. When Jenny's counsel was asked directly whether, if the distribution were made, there could be any risk at all that the estate would not be able to pay any other conceivable liabilities it might have, including to Jenny if she succeeded completely in these proceedings, he was entirely unable to do so.
It turned out that Jenny's real point was that Robert had incurred legal costs that were (so she submitted) self-evidently excessive, and that the Court should not authorise any interim distribution if the practical effect would be to encourage Robert to incur further excessive legal fees.
In response to the proposition put to him by the Court, that Robert's legal fees had been incurred over a period of some six years, and that it was a matter for Robert as to how he should spend his own money, counsel put the argument that, if the Court pursued a course that encouraged Robert to continue to incur excessive legal fees, then at the ultimate hearing Jenny would have to face the argument that Robert's needs were substantially more than they would otherwise have been, because of his obligation to pay huge legal fees. Thus, submitted counsel, Jenny's claim was liable to be undermined if the Court encouraged Robert to engage in conduct which substantially weakened his financial position.
Furthermore, Jenny's counsel put the argument that Robert did not have a pressing need for funds to pay his lawyers, because his lawyers had accepted a retainer that had the effect that they would continue to provide legal services to Robert until such time, whenever in the future it might be, when he received his distribution from Laura's estate.
I did not permit Jenny to engage in any detailed factual examination of the reasonableness of the legal costs that Robert had incurred, or the terms upon which those costs were payable by Robert. That in my view would have been an entirely collateral and wasteful investigation.
It became clear that Jenny did not have any objective basis for any argument that, over the whole of the period, the amount of the legal fees incurred was unreasonable. Her position was entirely speculative.
Jenny's counsel cross-examined Robert's solicitor. He did not disturb the evidence given by the solicitor that the need imposed upon Robert's lawyers to bear such substantial outstanding fees for the time that they had done so had imposed substantial stress and inconvenience on the lawyers. Robert's solicitor reasonably said that, although Robert's lawyers had agreed to support him until he received his distribution, it had by no means been anticipated that the process would be delayed for as long as six years.
There is no basis for the Court to conclude that Robert has improvidently incurred legal costs, and there is no reason why the Court should resist any decision by Robert to make partial payments of the debts that he owes to his lawyers, out of money which after all is his own.
In the light of the exceptional circumstances of this estate, as set out above, in my view it is clearly appropriate for the Court to authorise Mr Salier to make an interim distribution of $1 million in favour of Robert. How Robert spends his own money is his own business. The decisions he makes may, however, be material if he finds it necessary to make any further application for an interim distribution.
I therefore make the following orders:
1. The Court declines at this time to make the orders sought in par 1 of the notice of motion filed by Robert Angius on 3 April 2018.
2. Grant leave to Robert Angius to renew his application for the relief sought in par 1 of his notice of motion filed on 3 April 2018.
3. Order that an interim distribution of $1 million be paid out of the estate of the late Laura Angius from the cash amount held by the administrator, Mr Gordon Albert Salier, to the applicant, Robert Angius.
The parties to the notice of motion may provide submissions concerning the costs order that should be made in relation to the notice of motion, limited to no more than three pages, within seven days of the publication of these reasons for judgment.
[3]
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Decision last updated: 02 July 2018