3887/09 COURTNEY MICHELLE GRAHAM AS EXECUTOR OF THE ESTATE OF JEFFREY JAMES GRAHAM v JANET ANN HULME AND BRONWYN ANN HULME-CRAIG
4332/09 JANET ANN HULME v COURTNEY MICHELLE GRAHAM AS EXECUTOR OF THE ESTATE OF JEFFREY JAMES GRAHAM
JUDGMENT
1 HIS HONOUR: These are two sets of proceedings between the executrix of the estate of the late Jeffrey James Graham, Courtney Michelle Graham, on the one hand, and Janet Ann Hulme on the other. Jeffrey Graham died on 25 March this year. Janet Hulme, claims that she was living in a de facto relationship with him at the time of his death. Courtney Graham is the daughter of a prior marriage of the deceased.
2 After Jeffrey Graham's death, Janet Hulme had access to certain of his bank accounts. She caused the transfer of the sum of $59,510.37 from those bank accounts, within two days of his death. She was personally active in transferring those funds. She readily concedes they were deposited into accounts either in the name of her daughter Bronwyn, or jointly in an account held by herself and Bronwyn.
3 Courtney Michelle Graham, on behalf of the estate of her late father, has commenced proceeding numbered 3887 of 2009 for recovery of these moneys from Janet Hulme and, Bronwyn Hulme-Craig ("Bronwyn"), as first and second defendants respectively ("recovery proceedings").
4 By separate proceedings numbered 4332 of 2009, Janet Hulme sues Courtney Graham, as executrix of the estate of the late Jeffrey James Graham, for relief under the Succession Act and for declaratory relief that she has an interest in certain land at Port Macquarie, under either a resulting or constructive trust ("the Succession Act proceedings"). In a cross-summons filed in the recovery proceedings, Janet Hulme has also sought relief claiming an interest in the land at Port Macquarie. She and Bronwyn also seek an order that, the moneys withdrawn from the deceased's bank accounts, be held on account of the claims Janet Hulme makes in that cross-summons.
5 The moneys in the sum of $59,510.37, the subject of the estate's primary claim in the recovery proceedings, were taken from the estate in circumstances raising a cause of action for moneys had and received against both, Janet Hulme and Bronwyn.
6 Counsel for Janet Hulme and Bronwyn has not disputed, on the evidence and properly so, that judgment should be entered for that amount. The real question is whether that judgment should be stayed pending the pursuit of the cross-claim in the recovery proceedings and pending the pursuit of the Succession Act proceedings. Janet Hulme's counsel submits that there should be a stay in respect of the whole of the sum of $59,510.37.
7 Janet Hulme has foreshadowed that she will be claiming interim relief in the Succession Act proceedings for an advance of moneys to her before the determination of the final hearing of the those proceedings and the parallel cross-claim in the recovery proceedings. That application for interim relief cannot be heard today because it would require a greater contest of evidence than is possible in the Duty List. A date will need to be fixed in the near future for that to be determined if it is to be pursued.
8 The $59,510.37 that Jane Hulme received remains undistributed but for two amounts. The first distributed amount is a sum of $10,608.08 which is set out in exhibit A. This amount covers a variety of expenses which were incurred from the transferred funds, the largest single item of which was to pay the funeral expenses of the late Jeffrey James Graham in the sum of $6,740.41.
9 The primary position put by the estate is that there should only be a stay for the amount of $6,740.41, which represents the indisputable expenditure on the funeral of the deceased. This would have been expenditure that would have had to be met by the estate. The estate concedes that there is no issue that those sums have been paid for funeral expenses and that a stay on judgment for that amount, to save double-handling of that sum, would be appropriate. If the full amount was paid to the estate, the $6,740.41 would presumably have to be repaid to Janet Hulme to reimburse her for the fact that she paid for the funeral with the funds from the estate.
10 Mr Rogers, on behalf of the estate, says that there should not be a stay beyond the sum of $6,740.41 for a number of reasons. Principally he submits it would make a virtue out of a vice if a stay beyond the $6,740.41 were granted. Ms Hulme should not have the benefit of any of the moneys which have been wrongfully or mistakenly obtained by her. Even worse, he says that a situation should not be allowed to subsist in which Janet Hulme can take advantage of that mistake or wrong by using those moneys to prosecute a claim against the estate, either in the cross-summons or in the Succession Act proceedings. Mr Rogers further points to the course of correspondence which at one level shows that Janet Hulme was reluctant, to come forth with information about either the Succession Act claim or the whereabouts of the funds, the subject of the transfer. However the correspondence on behalf of Janet Hulme can also be characterised as demonstrating her difficulties in dealing with the matter for the early months close to the death of Jeffrey Graham, with whom she claims to have had a de facto relationship.
11 On this application, I do not have to resolve this tension in the correspondence. I simply record the different ways that it may be able to be looked at, to a limited degree.
12 Mr O'Connor for Janet Hulme submits that there should at least be a stay for all the expenses that she incurred on behalf of the estate, or on account of the deceased's liabilities. He contends for a stay on not just the limited amount of $6,740.41 contended for by the estate, but upon the larger amount of $10,603.08.
13 The remaining moneys, that is the difference between the $59,510.37 and the amount of $10,603.08, leave a balance of $48,907.29. Of this balance an amount of $6,000 has been paid to Guardian Lawyers and used to satisfy Memoranda of Fees duly rendered by that firm to Janet Hulme. This is the second distributed amount. That leaves a balance of $42,907.29 that has not been used to pay legal fees or for expenses that Janet Hulme says are associated with the estate.