In 1939 and 1940, Thomas Kearney served in the UK Merchant Navy on the Queen Mary performing convoy duty in the Battle of the Atlantic. He earned the Atlantic Star Medal for over 180 days of courageous service in those perilous seas. He later earned the Italy Star and the Pacific Star, for Merchant Navy service in other theatres of war. He was also awarded the War Service Medal and the War Service Star for all his service from 1939 to 1945.
When Thomas Kearney died in 1970 his widow gave his war medals to their youngest son, Joseph, who was then just a teenager. Joseph treasured them and kept them all his life. Thomas Kearney inspired Joseph to serve in the military. Joseph joined the Australian Regular Army in 1976 as an engineer and later in the Citizens Military Forces or CMF, (later the Army Reserve) for another 20 years.
Joseph Kearney died on 7 October 2022. His will of 30 May 2016 did not expressly dispose of his father's war medals but gave the residue of his estate to his only daughter, Loran Michelle Hogan (the applicant). A dispute has now arisen in the administration of his estate between Loran Hogan and Joseph Kearney's brother, Christopher Thomas Kearney, (the respondent) the executor of the estate. Loran Hogan claims that the war medals are part of the residue of her father's estate. Christopher Kearney claims that his brother gifted the war medals to him shortly before he died and that they no longer form a part of the estate. In the alternative, Christopher claims that Loran gifted the medals to him during Joseph's funeral ceremony.
All the members of the Kearney family who participated in these proceedings referred to one another by their first names. Without intending any disrespect to any party, this Court will do the same in these reasons. Christopher Kearney is also known as "Thomas". But he is called Christopher in these reasons to distinguish him from his father, Thomas. The war medals in issue are simply referred to as "the war medals" in these reasons.
This case was prepared for hearing and presented expeditiously. The Court was greatly assisted by the submissions of counsel and the work of the legal representatives on both sides in bringing this unfortunate family dispute to a rapid conclusion. Mr R Tregenza of counsel appeared for Loran instructed by Graeme John Hockley of Lamrocks, solicitors. And Mr F Maghami of counsel appeared for Christopher, instructed by Ken Neville of Branston Neville Lawyers.
The issue determined by this judgment arose as an incidental matter in the administration of Joseph's estate, which was being managed in the Probate List. Loran brought claims as applicant on a motion dated 13 May 2024 seeking orders that Christopher, as respondent to the motion, verify and file accounts in respect of the estate. In prayer for relief (5) on the motion she also claimed the following order:
"[t]hat the respondent [Christopher] delivered to the applicant [Loran] any part of the estate undelivered or otherwise unaccounted for including the war decorations listed in the schedule.
The Schedule
1939 - 1945 star
Atlantic Star
Pacific Star
Italy Star
War Medal 1939 - 1945"
When the issue first emerged, it was suggested that given that the war medals had little commercial value that proceedings for specific delivery should be commenced in the District Court. But doubts that the equitable jurisdiction conferred by the District Court Act, 1973, s 134 allowed the making of a decree for specific delivery of a chattel such as these war medals and the inconvenience of commencing separate proceedings inclined the Court to deal with the matter itself.
The Court directed that the matter should remain in this Court and be dealt with cost-effectively on the existing motion in the Probate List. Ordinarily, proceedings such as these for final relief in equity would need to be commenced by way of Summons or by Statement of Claim. But to save costs under Civil Procedure Act 2005, s 14, the Court will dispense with so much of the rules as will enable the prayer for specific delivery to be dealt with on the motion as though it were a claim for final relief.
The Court also decided to contain costs expenditure on this contest and to encourage lean preparation by the parties. The Court made a maximum costs order under Uniform Civil Procedure Rule 2005, r 42.4 ("UCPR") preventing either party from recovering from the other party upon success on this dispute in these proceedings any more than the relatively low sum of $2,500 in legal costs. Both parties accepted a maximum costs order of this kind at this amount was fair in the circumstances. This maximum costs order was made on 31 May 2024. The costs expended by the parties in preparing documents in support of the application for verification and filing of estate accounts prior to 31 May 2024 are not affected by the order. On the same date, the Court made consent orders relating to the verification and filing of accounts, which noted that remaining issues on the motion were the war medals issue and an issue regarding repayment of disbursements disallowed upon the taking of accounts by Christopher.
Neither set of legal representatives was constrained from charging their own client more than the sum of $2500. But that is the limit of what could be recovered upon success. Both sides accepted that they would have to partly fund the contest themselves and that neither side would face a massive burden of cost from the other side if they were unsuccessful, thereby further damaging family relationships. In the end, the proceedings were determined within the space of two hours among the Probate List motions on the afternoon of Friday, 21 June 2024.
The following is a narrative of the relevant history. This narrative represents the Court's findings on the matters covered, except to the extent that the context indicates that only the parties' allegations are being recorded in these reasons. For reasons of economy this narrative does not include reference to versions of the facts that have been rejected.
[2]
Thomas Kearney's War Medals and the Kearney Family
Thomas served in the United Kingdom Merchant Navy from 1937 until 1964. During his time with the Merchant Navy, he was awarded the war medals for his service.
Following his decision to leave the Merchant Navy in March 1964, Thomas migrated to Australia with his wife and their four children: Margaret, Pauline, Christopher (the respondent) and Joseph (the deceased). At this time, Margaret was married and accompanied Thomas and the others with her husband.
Thomas passed away in 1970 after which his wife had the war medals. Prior to her passing, she gave the war medals to Joseph.
Margaret died in 2013 and Pauline died shortly thereafter in 2015. Margaret was survived by her three children and Pauline by her two children.
Joseph Kearney. Joseph joined the Australian Regular Army in 1976 and served in the engineer's regiment as a sapper until 1978. He joined the Citizen Military Forces following this and served for an additional 20 years, eventually retiring from the Army Reserve. Joseph was lyrically referred to by his fellow servicemen as the "Ginger Beer Engineer".
In 1978, he married his wife, Steff Vicki Kearney (referred to by family members as Vicki), and the mother of their only child, Loran. In his civilian life Joseph was a sales representative. He purchased a black briefcase for use in this sales representative job.
From 1978 up until the dissolution of his marriage in 2002, the war medals were kept in a small wooden case which sat on a dressing table in Joseph's and Vicki's bedroom with other precious items. Both during his marriage and afterwards, Joseph was a keen attender of Anzac Day and other military ceremonies celebrating his war service. Joseph would put on the war medals taken from the wooden case and then participate in these commemorative events.
Joseph and Vicki separated in 2002 and were divorced in 2004. Joseph's May 2016 will made no provision for Vicki as they had made a family law property settlement. But they remained on good terms and were mutually supportive about Loran's upbringing and interests. Vicki was not cross-examined but she swore an affidavit which was read in Loran's case. The Court accepts that Joseph said to Vicki, as she deposes, "I want the medals and rosary beads to be given to Loz when I pass". Joseph used the nickname "Loz" for Loran. The Court accepts this not only because she was not cross-examined but because it is inherently probable based upon the other evidence and consistent with Joseph's personal notebook and the terms of his 2016 will.
Following his and Vicki's separation, Joseph kept his own military medals with the war medals in a plastic zip lock bag which was placed inside his black briefcase. By then this brief case also contained an assortment of Joseph's precious items and documents of sentimental value, together with his important personal documents including his personal notebook.
The personal notebook contained Joseph's handwritten notes about many matters including his testamentary intentions. The timing of Joseph's making of many of these entries is unclear. One page of the personal notebook links certain "medals" to Loran.
The relevant part of the page of the personal notebook says the following:
"Tools Fiona Hayden*
Slouch hat John Hogan
Medals Loz/John/Avalon"
"Loz" was Joseph's nickname for Loran. The mention of "Avalon", Loran's youngest child on this page is important. Avalon was born and named after the date of Joseph's will on 30 May 2016. The Court infers therefore that the note must have been made after the will. The will was never changed so it is reasonable to assume that the note was intended to be generally consistent with the will. And indeed, it is in most respects. The gift of "the medals" to Loran and her children is quite consistent with them being part of the residue of his estate at the time he made this entry in his personal notebook. This of course does not exclude the possibility of him changing his mind after that. Mr Maghami correctly points out on behalf of Joseph that "the medals" begs the question of which medals were intended by the note, the war medals that probably belonged to Thomas, or Joseph's own medals. But the description is sufficient to embrace both.
Christopher Kearney. Christopher is Joseph's older brother and the second youngest and sole surviving child of Thomas. Under Joseph's will, Christopher was named executor and trustee and was to receive gifts of items inconsequential to this application being a lawnmower, a car, and some tools.
Both Christopher and Joseph greatly admired their father, Thomas. When Christopher was himself drafted for national service in 1972, he turned to his father for guidance about military life, which encouraged Christopher's own later military service.
In 2016, some years after his separation from Vicki, Joseph moved in with Christopher. Christopher was by then engaged to his fiancée, Wenju Jia Kearney (Julia), who was living in China at the time. Julia later migrated from China to Australia and married Christopher in 2017. Both Christopher and Julia were generous in caring for Joseph in his declining years. Following their marriage, Christopher and Julia constructed a granny flat on their property to provide Joseph with inexpensive accommodation close to his nearest surviving relatives. And Joseph trusted Christopher greatly and confided in him. Julia says and the Court accepts that they invited Joseph into the main house for meals at least once a week, although he otherwise generally kept to himself.
Joseph and Julia got along well and had close friendly relationship with Joseph. For example, Joseph helped Julia to learn to speak English following her migration to Australia. A video of Joseph's funeral includes a heartwarming story in Christopher's speech about Joseph teaching Julia the Australian idiom, "no worries", an expression that Julia readily adopted.
Loran Hogan. Loran is the daughter and only child of Joseph. She was born on 27 October 1984 and lived with Joseph and Vicki until their separation in 2002. Loran is the primary beneficiary of Joseph's will which provides in relation to her:
6. My trustees hold my estate on trust:
…
(b) TO GIVE the residue of my estate of whatsoever nature and whatsoever situate to my daughter LORAN MICHELLE HOGAN of [redacted address] upon attaining the age of 21 years. PROVIDED ALWAYS that should she not survive me to take under this my will leaving children who survive me and attain the age of 25 years of then such children shall take by substitution and if more than one equally share in my estate which their parent would otherwise have taken
Joseph and Loran shared a close, supportive, and loving father-daughter relationship. Joseph was a doting father to Loran and maintained a deep interest in her wellbeing after his separation from her mother. Loran's own evidence affirms this conclusion strongly, as does her speech and actions at Joseph's funeral, the content of the will itself and her evidence before this Court. Joseph's strong and loving relationship with Loran was such that it would not be surprising that he would give the things which were most precious to him to her. Indeed, the Court accepts her evidence that Joseph said to Loran that his mother had given the medals to her shortly after his father (Thomas) died and that Joseph said to her, "when I die, these are to go to you and then to your children".
Julia says that Joseph was somewhat disappointed in Loran for not visiting him more often. Christopher's evidence hinted at Joseph being disappointed in Loran. But whatever that alleged disappointment was, it was not necessary to explore it in evidence. If Joseph was disappointed about Loran's later visiting of him, the other side should be recognised: Loran was a busy young mother of two young children.
[3]
Anzac Day and the War Medals
From 2016 after Joseph moved into Christopher's property, they used to attend Anzac Day ceremonies. From that time on they would attend together the St Mary's RSL Anzac Day Dawn Service. Each Anzac Day, the brothers would proudly wear their own medals. For Joseph this meant putting on his father's war medals, the war medals, as well as his own.
Towards the end of his life Joseph became less mobile and could not always attend Anzac Day. In addition, Anzac Day became a much more restricted event during the Covid-19 pandemic commencing in 2020 epidemic. Joseph did not attend his last three Anzac Days, in 2020, 2021 and 2022.
On Anzac Day in 2020, Covid-19 lockdown restrictions prevented St Mary's RSL from holding their annual Dawn Service. The brothers, like many others during this time, opted to hold their own Dawn Service with candles in their driveway. Joseph wore his own medals and the war medals on this occasion, whilst Christopher wore his own medals.
On Anzac Day in 2021, Covid-19 restrictions had eased and St Mary's RSL was able to hold a limited capacity Dawn Service. But Joseph and Christopher nevertheless decided to hold their own service in their driveway, as they had done the previous year. However, when the time came for Joseph and Christopher to stand at their post at 5:30 in the morning, Christopher says that Joseph said to him:
"You go, I'm not up to it, I don't feel well, you wear [the war medals]."
Following this exchange, Christopher says that he put on the war medals next to his own medals and went outside by himself where he stood vigil for 30 minutes as planned.
After Christopher returned, he went to take off the war medals and return them to Joseph. Christopher says that when Joseph saw him doing this, Joseph put his hand up and said:
"No, you keep them, they are yours now to keep."
The Court doubts that this conversation took place. Christopher's recollection of it was limited. He could not give any context to the conversation in circumstances where it would be highly likely that if this was said and intended as a gift to Christopher of the medals, that Christopher would have wanted to be sure that this is what Joseph really meant. Christopher now says that there were Kearney family traditions about how the medals were to be passed on. It is to be expected that if this conversation had taken place some of those traditions might have been discussed between the brothers at the time. But there was no other discussion between the pair about this subject that Christopher could remember.
But what happened on Anzac Day 2022, a year later, is an indicator of what may have occurred on Anzac Day 2021. On Anzac Day in 2022, Covid-19 restrictions were a thing of the past and Christopher had planned to go to the St Mary's RSL Dawn Service as he had done previously. He put on the war medals and his own medals before going to see if Joseph would like to accompany him to which he says Joseph allegedly replied:
"No, I am not up to it, I see you are wearing [the war medals] they look smart, well done, they are yours now, keep them safe."
Christopher says that he then left and attended the St Mary's RSL Dawn Service without Joseph. Once again, the Court is not persuaded that Joseph said this to Christopher on Anzac Day 2022. The Court is of this view for the same reasons that the Court is doubtful that Joseph said anything like this in 2021.
Moreover, Julia's written evidence was that she was present for the conversations on Anzac Day 2021 and 2022. However, Christopher's evidence makes no mention of her being present or participating in the conversations on these key days.
But even if something like this was said, the statement "keep them safe" even with the statement "they are yours now" was more likely said by Joseph to convey nothing more than Christopher was to have temporary custodianship of the war medals for the limited period before Joseph's death. The Court did not find Christopher's evidence on this subject compelling. He had strong convictions about what he believed he was told but the Court is doubtful he had actual recollection of any quality about this conversation. Moreover, Joseph requesting Christopher to take temporary custodianship of the war medals is a far more likely explanation of Joseph raising this subject at this very late stage in his life. If Joseph was going to give the medals to Christopher as part of a family tradition it might be expected that he would mention the family tradition.
[4]
Preparations for Joseph's Funeral
Joseph died on 7 October 2022. On 10 October 2023, Christopher, his daughter, Loran, and Loran's mother Vicki, met with a funeral director to discuss the arrangements for Joseph's funeral. In this discussion, Christopher suggested that they should place Joseph's slouch hat, his medals, and the war medals on the coffin as well to commemorate and honour Joseph's military service. Loran agreed.
During the discussion with the funeral director, there was debate as to whether they should dress Joseph's body for a viewing. Christopher was against this and described to Loran the upsetting process which would need to be undertaken to dress Joseph's body. This was an attempt to dissuade her from this course. Despite his protest, Loran wanted to have a viewing at the funeral and Christopher accepted her wishes. However, he refused to be involved.
Shortly after concluding discussions with the funeral director, Christopher asked Loran to go to Joseph's granny flat on his property and collect and remove Joseph's possessions.
On 11 October 2022 and 13 October 2022, Loran attended Christopher's residence and collected the suit of clothes for dressing Joseph and commenced removing Joseph's belongings from the granny flat. Christopher was not present at his property when Loran attended to collect Joseph's suit, medals (including the war medals), slouch hat and photographs for use in the funeral ceremony. He instead left a key out for Loran and laid out the clothing items. During the removal process the Court accepts that Loran found Joseph's black briefcase and in it, among other sentimental items, the zip lock bag with the war medals and Joseph's medals. Clearly visible on the zip lock bag, in Joseph's handwriting are the words: "DADS & MINE MEDALS". When she returned to her residence, Loran enlisted the help of her two children to clean the war medals and Joseph's medals for the funeral. Christopher gives a different account of where the war medals were being kept at this time, but he was unable to give the kind of detail in his account that persuaded the Court that he had genuine recollection contradicting Loran's account of how she found the war medals and Joseph's medals in the black briefcase.
Following Loran's discovery of Joseph's medals and the war medals in the black briefcase, further discussions took place between her and Christopher as to what should happen with the war medals following the funeral. Loran was aware of Christopher's interest in them. The Court accepts Loran's account that during these discussions Christopher said to her about the war medals words to the effect:
"I just want to wear them for a few ANZAC Days then you can have them back."
Loran agreed that Christopher could use them for the purpose that he had requested. She was then content to leave the war medals in Christopher's possession even though she believes her father had bequeathed them to her. Based upon Christopher's representation to her, Loran thought Christopher would return them to her if she left them with him temporarily.
[5]
Joseph's Funeral
At Joseph's funeral his coffin was decorated with an Australian flag and a bouquet of Australian wildflowers. His pallbearers included Margarita (the daughter of Joseph's eldest sister Margaret), Christopher, and Loran.
Once the coffin was in place, some of Joseph's more precious possessions were put on top of the flag and to the left of the flowers. From left to right, as viewed in a video of the funeral, these were the war medals, his slouch hat, his own medals, and his beret. These items remained on the coffin for the duration of the funeral ceremony.
Christopher was seated in the aisle seat of the front left row and Loran was on the right aisle seat. It is unclear where, Margarita was seated. She may have been behind Christopher or to his left in the front row. She was not clear in her evidence either way where she was sitting.
As part of the funeral ceremony, Loran removed the war medals from the coffin and presented them to Christopher who was then seated. After that she wrapped her arms around Christopher, who was still seated, placed her head on his right shoulder, he put his right arm around her and the two shared a 12-second embrace. At this point the Court accepts that Christopher whispered to Loran, "he was a heartbreaker" to which she replied, "he sure was". Joseph says that Loran expressed words of gift of the medals to him at this moment. But the Court does not accept that anything else was said by Loran about the medals either then or later at the funeral to indicate that she was giving the medals to Christopher on a permanent basis rather than for the limited purposes of him using them for some Anzac Day ceremonies as he had said to her. A statement of permanent gift by Loran to Christopher was unlikely at such a time and the Court prefers Loran's evidence that nothing of that kind was said at or after the funeral.
[6]
Post Funeral
Upon his appointment as executor Christopher began to administer Joseph's estate and retained solicitors to obtain probate of the will. During the administration, Loran raised issues with the solicitors for the estate involving several matters including the return of the war medals to her.
On 26 April 2023, Loran wrote to Tracey Arnold, the solicitor for the estate in the following terms:
"… As stated in my dad's Will all his medals, which included his fathers WW2 medals were to be given to me. As they were in my dad's possession for decades and he frequently told me they were to go to me and my family when he passed I feel that they belong with me as per his wishes.
It has been something that has weighed heavily on my mind since I presented them to Christopher at my dad's funeral. I am happy to pay the full amount of what he is asking for on the condition that my grandfather's medals are returned to me. I'm not sure how to word it or exactly what to say in regards to this request as I know it will upset him and I am concerned about his reaction. He did state when organising my dad's funeral that he would return them to me, however in further discussion regarding the medals he stated that he would be giving the medals to his son Benjamin. I'm not sure how to negotiate this with him. Some ideas I have is that we agree on a legally binding date that they are to be returned to me, or I pay half of what he is asking now and half when they are returned? I'm not sure, it kind of feels like a ransom! Would you have any suggestions from your experience that you might be able to suggest? This all makes me feel very uncomfortable. Thank you so much for your support and time Warm Regards…"
On 4 May 2023, Loran also forwarded her 26 April 2023 email to Ms Arnold to Ms Arnold's firm's general administrative email. On 8 May 2023, Loran called the offices of Tracey Arnold and received a response to her call and emails. Relevantly, Ms Arnold stated:
"… 2. I am happy to request the medals be returned to our office so that we can get them to you. Upon this we can provide him with a cheque for the amount owing if this is the way you wish to go…"
On 9 May 2023, Loran emailed a response to Ms Arnold and formally requested that she ask Christopher for the medals to be returned. Loran summarised the points she wanted to make as follows:
"…
- the Will states the medals are to be in my possession
- the Will did not state that the medals where [sic] to be given to Thomas (Christopher), understanding my Dad had the knowledge that they would have been sort after by Thomas
-Thomas stated that 'all he wanted was the WW2 medals and that he would give them back to me'. However when he requested this, we were sitting in the funeral director offices planning my dad's funeral and I was under extreme stress. He had mentioned at the same meeting that it wouldn't be a good idea of me to view and dress dad for the funeral, as I had stated that I felt it was something that I wanted to do, he told me that they would break dads jaw and sew his mouth shut and break his arms and legs to put the clothing on. So I was obviously under extreme grief and shook at the conversations that were taking place
- I have previously asked Thomas about the prospect of having the medals returned to me, at which point he replied 'no, they are going to Ben and that Joe was never meant to have them'. The medals were in my dads possession for at least 40-50years, which the whole family knew
- Dad had stated my whole life I was to have the medals when he died and they are to go to my children.
- I just feel like I've let him down and not fulfilled his final wishes, knowing how much the medals meant to him"
By 24 May 2023, Loran had instructed Lamrocks Solicitors to act for her and they issued a formal letter requesting delivery of the war medals within 7 days.
Christopher did not respond to these requests until 4 August 2023. A copy of this correspondence was not included in the court book prepared for this application. But it does not appear that Christopher ever sought before the hearing on 21 June 2024 to dispute in writing Loran's account of the conversations that took place prior the funeral.
[7]
Applicable Legal Principles
Prayer (5) of Loran's motion - now treated as a claim for final relief - is a claim for specific delivery of a chattel. Equity has long exercised jurisdiction to order the specific delivery of items of rare and unique value to individuals: JD Heydon, MJ Leeming and PG Turner, Meagher Gummow and Lehane's: Equity Doctrines and Remedies, Fifth Edition, 2015, LexisNexis Butterworths, Australia [22-010]. Lord Loughborough LC explained the basis of this jurisdiction in Fells v Read (1796) 3 Ves 70; 30 ER 899: that although a thing may be precious to an individual, a jury at common law "might not give two-pence beyond the weight" of it and that equity would not cast the determination of an entitlement to such objects "to the estimation of people who have not those feelings".
Loran's motion also raises a question that arises in the administration of Joseph's estate. That question is whether the war medals form part of the residue of Joseph's estate. The Court is empowered under UCPR, r 54.3 to determine proceedings on any question arising in the administration of an estate. This is another aspect of the court's jurisdiction being exercised here.
[8]
Analysis
On behalf of Christopher, Mr Maghami advanced written submissions that Joseph never had proprietary ownership of the war medals and held them on trust. It was further submitted that Christopher therefore had no right or interest in the war medals that he could gift in his will to Loran. This issue ultimately fell away. Joseph had possession of the medals for over 30 years prior to his death. There was no other claimant to the war medals with a demonstrated superior title to Joseph's lengthy possession of them.
In his written and oral evidence, Christopher led evidence that it was a "family tradition" that the oldest surviving sibling of each generation was the rightful owner of the war medals and that they were to be handed down in accordance with this tradition. But Joseph's own statements to Loran that he wished to give her the war medals are inconsistent with this tradition, so is Joseph's own possession of the medals instead of his older sister Margaret. Moreover Christopher himself at one point had no intention of following the tradition and gave evidence that he was going to give the war medals to his son instead of Margarita, who based on the claimed tradition, would take next in line. It is very doubtful that such a tradition ever existed in the Kearney family.
The war medals are not specifically gifted under Joseph's will. They will therefore pass to Lauren as part of Joseph's residuary estate unless Joseph gifted them to someone during his lifetime. Christopher asserted in his evidence that Joseph had gifted him the war medals on Anzac Day in 2021 and 2022. Christopher also said in his evidence that Loran had gifted the war medals to him during the funeral ceremony. But the Court has not accepted Christopher's evidence of what Joseph or Loran said to him about the war medals on any of these occasions.
To establish an effective gift a donee must establish, an intention to make a gift on the part of the donor, acceptance of the gift and delivery of the gift: Maxwell v Maxwell [2022] NSWSC 1028 [179]-[213] (Ward P). The onus of establishing the effective gift lies with the donee: Thomas v The Times Book Co Ltd [1966] 2 All ER 241 at 244 per Plowman J). That onus is on the ordinary civil standard on the balance of probabilities: Polistena v Mitton; Agnew v Mitton [2011] NSWSC 931 [80] citing Plunkett v Bull (1915) 19 CLR 544.
Christopher's primary claim of ownership of the war medals is through the conversations he alleges on Anzac Day in 2021 and 2022, Joseph had gifted them to him. On the facts set out above, the Court is not satisfied that the first elements of the gift are established, of an intention to make a gift or of any acceptance or delivery of the war medals. This is true of both versions of the gift asserted by Christopher: a gift to him by Joseph and a gift to him by Loran. These will each be considered in turn.
(1) Gift of the war medals by Joseph. Christopher maintained that when he and Joseph lived together, his medals, Joseph's medals and the war medals were kept together in a drawer in his loungeroom of Christopher's residence. But the Court accepts Loran's evidence the war medals and Joseph's medals were found in Joseph's black briefcase in his granny flat. The explanation proffered by Christopher for this was that he himself had taken the war medals and Joseph's medals out of the drawer in the living room and put them in the black briefcase and placed the briefcase in the granny flat. Prior to this oral evidence, Christopher had provided no explanation of how any of the medals came to be in the briefcase.
That they were in the briefcase of all is hardly consistent with Christopher's account of Joseph gifting the war medals into Christopher's care on Anzac Day in 2021. Christopher's case has great difficulty in reconciling those claimed conversations with where the war medals were found, in the black briefcase in a zip lock bag labelled "DADS & MINE MEDALS". It is unlikely that they were ever kept, by Joseph or Christopher, in the drawer in the loungeroom where the Court accepts Christopher kept his own medals.
(2) Gift of the war medals by Loran. An important preliminary legal question is whether Lauren had any authority to deal with the medals at the funeral to give them to Christopher. She was merely the beneficiary of an unadministered state. She had no authority to deal with chattels within the estate. But it is not necessary to go into these legal questions because the factual basis for a gift is not present.
While Christopher's evidence that Loran had given him the war medals during the are in a little while it sits finish this funeral ceremony is strong evidence of delivery. The Court is not satisfied that the delivery was accompanied by any words showing an intention to make a gift. The Court accepts that Christopher told Loran prior to her giving him the war medals that he only wanted the war medals for a period after the funeral and that he would return them to her. In her correspondence with the solicitors set out above, she recounts these conversations and Christopher did not contradict or seek to correct Loran's recollection by correspondence through the solicitors. The Court is not satisfied that Loran intended to gift the war medals to Christopher at Joseph's funeral but rather that at the most she loaned them to him on the condition he would give them back because she understood that she would be entitled to them as a result the administration of Joseph's estate.
Christopher's case of a gift to him of the war medals therefore fails. The war medals will pass to Loran under Joseph's will as part of his residuary estate.
[9]
Conclusions and Orders
At the hearing, the Court said to the parties that the nature of the remedy being sought meant that the result of this proceeding would be that one party would be successful and would have an entitlement to the war medals and the other party would not. But the Court expressed the hope that the parties from within the Kearney family might yet be able to reconcile themselves in the future despite this contest. To achieve this the Court has will make a declaration as to the ownership of the war medals. This will enable Loran, the person entitled to them, to pass them around the family on occasions when others may wish to use them. But she will have a declaration of this Court of her title to the war medals which will mean that should she wish, she will be able to share the medals from time to time in the security of that declaration knowing that there can no longer be any dispute that the medals must be returned.
The Court has seen the thorough presentation of these proceedings on both sides each side and can conclude that each side has probably spent $2500 in legal fees in preparation of the proceedings. It is therefore appropriate for the Court to fix a gross sum of $2500 as the order for costs in these proceedings. If there is any issue about what costs are or are not covered by this maximum order it can be raised with the Court pursuant to direction (6) below.
For these reasons the Court makes the following orders:
1. DECLARE that the war decorations awarded to Thomas Kearney for service in World War II, namely the 1939 - 1945 star, the Atlantic Star, the Pacific Star, the Italy Star, and the War Medal 1939 - 1945 ("the war medals") form a part of the residue of the estate of the late Joseph Kearney to which the applicant, Loran Michelle Hogan, is entitled under the will of the late Joseph Kearney;
2. ORDER that the respondent, Christopher Thomas Kearney deliver the war medals to the applicant, Loran Michelle Hogan;
3. ORDER the respondent, Christopher Thomas Kearney pay the applicant's, Loran Michelle Hogan's, costs of these proceedings; and
4. ORDER pursuant to UCPR, r 42.4 that that the applicant may recover no more than $2,500 from the respondent in satisfaction of order (3);
5. ORDER pursuant to Civil Procedure Act, s 98(4)(c) that the respondent pay the applicant the sum of $2500;
6. DIRECT the parties to inform the Court as to whether all remaining issues raised on the applicant's motion have been resolved and the motion may be otherwise dismissed.
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: 04 July 2024