HER HONOUR: On 7 March 2019, I published my reasons (Murray v McOnie [2019] NSWSC 189) for orders made and judicial advice given on 25 February 2019 in these proceedings.
The application for judicial advice was brought by Ms Palmela Ann Murray, the executor of the estate of the late Agnese McOnie, seeking advice as to whether she would be justified in dealing with the contents of a unit in Ben Boyd Road, Cremorne (the Unit) by disposing of them in a particular way (namely, by causing the goods, which the plaintiff believes to have been abandoned, to be delivered to a waste disposal facility). I do not here repeat the background to that application which is set out in my earlier reasons.
The executor has sought orders out of the estate in respect of her costs of the application on an indemnity basis, as is usual, but submits that in effect the burden of those orders should fall on the defendants (out of their respective share of the proceeds of sale of the main asset of the estate of the late Agnese McOnie) either on an ordinary basis (in the case of the McOnie brothers, Mr Paul McOnie and Mr David McOnie) or an indemnity basis (in the case of Ms Megan McOnie, the first defendant).
[2]
The executor's submissions as to costs
As to the McOnie brothers, the plaintiff notes that both have failed to provide: an address for service; an address to which the items the subject of specific bequests might be delivered; and an address at which the jointly owned contents might be delivered (or, in the alternative, their consent to the disposal of the remaining jointly owned items, especially when called upon to do so in Court on 9 August 2018).
Murray v McOnie [2019] NSWSC 392 | Case summary | Zoe
It is submitted that the delay on their behalf in removing the items specifically bequeathed to them (and their continuing failure to consent to the disposal with the balance of the contents) has caused the estate to incur costs and thereby be diminished. The plaintiff notes that this reduction in the value of the estate, without the making of a costs order, directly and adversely affects the amount to be received by the children of the late Sandra Elizabeth Foskett who are jointly entitled to a fifth of the residuary estate.
It is further submitted that the McOnie brothers have stood silent whilst the case has been unduly prolonged by Ms McOnie and whilst she has made baseless allegations against the plaintiff.
Thus the plaintiff seeks an order that the McOnie brothers pay a one-third share each of the costs of the plaintiff, on the ordinary basis.
As to Ms McOnie, the plaintiff says that she too has failed: to provide an address for service; to provide an address to which items specifically bequeathed to her might be delivered; and to provide an address at which the jointly owned contents might be delivered (or, in the alternative, confirmation that the remaining jointly owned items might be disposed of).
The basis on which indemnity costs orders are sought against Ms McOnie is that such an order is appropriate where the case involves "some relevant delinquency on the part of the unsuccessful party" (referring to Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [89]-[90] per Gaudron and Gummow JJ). It is noted that recognised bases for the making of an indemnity costs order are where there is: evidence of particular misconduct that causes loss of time to the Court and the other parties; and the making of allegations that ought never to have been made or the undue prolongation of a case by groundless contentions (referring to North Sydney Leagues Club Ltd v Synergy Protection Agency Pty Ltd [2011] NSWSC 804 at [11] per Einstein J).
The plaintiff points to the fact that Ms McOnie has not complied with various orders relating to the service of her evidence in this application. In particular, the plaintiff recounts the following chronology of events: that on 12 June 2018, Ms McOnie was directed to file and serve any affidavits upon which she sought to rely by 3 July 2018 and failed, without explanation, so to do; that on 9 August 2018, the matter was stood over to 9.15am on 4 September 2018 before the Applications List Judge; that on 4 September 2018 (when the plaintiff was represented by Counsel and ready to proceed upon her application), Ms McOnie sought and obtained an adjournment in order to put on evidence and the hearing was vacated; that on that occasion (4 September 2018) Ms McOnie was directed to file and serve her outline of submissions by 25 September 2018 and to file any evidence upon which she intended to rely by 25 September 2018, which she again failed, without explanation, to do; that on 16 October 2018, Rees J directed Ms McOnie to file and serve any evidence or submissions by 13 November 2018 and the matter was listed for hearing at 2.00pm on 29 November 2018 before me; that on 20 November 2018 the matter was listed before me (at the request of Ms McOnie, who had advised the Registry on 16 November 2018 that she wished to have the hearing date of 29 November 2018 vacated, without communicating the basis for that request); and that on 20 November 2018 Ms McOnie was directed by 20 December 2018 to file and serve any affidavit evidence and submissions on which she wished to rely on (with which direction there was no compliance).
The plaintiff points to an email sent on 21 December 2018 by Ms McOnie in which she stated:
This is my response to the Supreme Court in this matter.
To date I am still dealing with the matter regarding my home and contents I previously advised the Supreme Court. This has taken all my time and I respectfully request I be provided another opportunity to provide evidence as it becomes available before the Supreme Court date in February 2019.
The plaintiff submits that the above response is "contemptuous" of the Court and fails to take into account the "significant indulgence" granted to Ms McOnie in being allowed to file evidence notwithstanding that she had failed to comply with orders in relation to the service of evidence made on 12 June 2018, 4 September 2018 and 16 October 2018 respectively.
The plaintiff says that she has been ready to take a hearing date since June 2018 (when it was envisaged that the matter would, on the next occasion, be referred to the Applications List Judge) and that the failure of Ms McOnie to put on evidence or otherwise to prosecute her case is significant in circumstances where that has caused Ms McOnie to ask for hearing dates to be vacated and has resulted in delays in these proceedings.
The plaintiff says that, on 20 November 2018, when the matter was before me, Ms McOnie stated that possession proceedings were being undertaken against her home and contents and indicated that she wished to put on evidence; and thus relied on her failure to have evidence available before the Court as supporting her application to have the hearing date of 29 November 2018 vacated. The plaintiff says that the unavailability of her evidence was also the reason that the matter was not heard on 4 September 2018 before Parker J.
It is submitted that Ms McOnie has not exercised due diligence "in prosecuting her case" and has arranged to have hearing dates vacated without a proper basis with the result that the hearing has been unduly prolonged.
Reference is made to other procedural steps in the proceedings (see [36]-[49] of the costs submissions), on the basis of which it is submitted that it may be inferred that Ms McOnie was attempting to "drag out the proceedings". Further, it is said that Ms McOnie has made statements that were untrue and made to mislead the Court for her benefit (the plaintiff there referring to an email sent by Ms McOnie on 7 October 2018 to a number of judges and their associates who had had some involvement in this matter, in which Ms McOnie stated that she was not provided with the "procedural information" that the plaintiff's solicitor had been requested by "the magistrate" [sic] to provide and that she had not been made aware of certain hearing dates offered in the matter) (see the response of the plaintiff's solicitor in the letter dated 8 October 2018).
As adverted to above (at [9]), it is submitted that Ms McOnie has made allegations that "ought never to have been made and has unduly prolonged the case by a series of groundless contentions" (there referring to allegations made in a document addressed to the Supreme Court of New South Wales headed "In the interests of Full Disclosure" provided on 7 October 2018). It is submitted that several of the matters raised by Ms McOnie in that document are scandalous, have no basis in fact, and are irrelevant to these proceedings (which involve how the estate should deal with items of property said now to have effectively been abandoned by the defendants).
The plaintiff says that the Court's time has been wasted (noting that at one stage one day was set aside for the matter, notwithstanding that the plaintiff had estimated that its application would take two hours, in circumstances where Ms McOnie had indicated she might be putting on evidence and making other applications, foreshadowing the provision of material on 21 December 2018).
The plaintiff further says that, although a litigant in person, Ms McOnie has referred to her experience in other Courts and Tribunals.
The plaintiff thus submits that Ms McOnie should pay the costs of the plaintiff's proceedings on the indemnity basis as: her conduct involves "some relevant delinquency" in failing to comply with directions and using her failure to comply to have hearings vacated; there is evidence of particular misconduct that has caused loss of time to the Court and the other parties; and, she has made allegations that ought never to have been made and has caused the undue prolongation of the case by groundless contentions.
[3]
Ms McOnie's submissions as to costs
As I explained in my principal judgment on this judicial advice application, the costs orders now sought by the executor differ from the orders sought in the amended summons seeking judicial advice. Accordingly, I considered it appropriate to allow Ms McOnie (and the remaining defendants) an opportunity to make written submissions as to the costs orders now sought. I allowed a period up to 3 April 2019 for those submissions to be made, bearing in mind that on the judicial advice application I had put in place a regime for the inspection and collection or removal of any items stored in the garage of the Unit which the McOnie children wished to retain. Thus I allowed an extended time for the provision of costs submissions.
Ms McOnie, however, commenced with very little delay after the publication of my principal judgment to send a succession of emails in which, as I understand it, she sets out the submissions on which she relies to resist the costs orders sought by the plaintiff (and to seek opposing costs orders - in effect that the costs of this application be borne by the plaintiff out of her share of the estate(s) in question). I have extracted verbatim parts of Ms McOnie's correspondence below in this judgment, including all typographical errors and formatting irregularities.
The first such email is a lengthy email dated 1 March 2019, which begins with the following remarks (from which I infer that it was not intended as a final submission):
This is not my full & final response to costs or any other matter. It's an attempt to resolve a circumstance that has the potential to cause great harm to many people due entirely to their own actions. Any deficiency in this document is due to cognitive impairment.
Before leaving Australia in fear for my life I was approached & interview for an expose of CBA was not included 4 corners advised i did not fit any of the 3 categories chosen by 4 corners. I sustained well documented brain injuries resulting in cognitive impairment. 4 corners chosen category was for mental illness.
Ms McOnie also commenced with an apology to the Court (as I understand it, for her constant interruptions during the hearing of the plaintiff's judicial advice application).
My apologise to the magistrate & the court. I meant no disrespect. I am aware of court protocol. My actions were motivated to exclude information that was not factual to be entered into court records as has ready occurred in this court case & in affidavit including.
Ms McOnie then goes into a history of events in relation to: her late mother and step-father's wills; her complaint that mediation would have solved the matter; her complaint that full financial disclosure to date has never been provided; allegations as to an "unaccounted" sum of $300,000 in financial investment accounts listed on her late step-father's DVA pension; a St George Bank account in his name "discovered" in 2018; allegations of misappropriation by the plaintiff; and allegations that the plaintiff has already received more than her full inheritance and has diminished the estates by "unnecessary legal spending".
Ms McOnie says that :
I requested in multiple emails David Paul Courtenay [the solicitor for the plaintiff] provide account for the $300k in investment funds listed On Charles Eness Murray's DVA pension.
David Paul Courtenay stated previously he have requested this information from the DVA but to date david Paul Courtenay has not Provided the DVA response to me.
I am seeking the details of an account of the late Charles Eness Murray with all account details of transactions from 2010 to date.
PAM [the plaintiff] from 2010 to 2011 used the POA & EG Obtained from the office of David Paul Courtenay in 2009 & was in full control of Charles Eness Murray's finances from 2010 until his death in 2011.
At 3 meetings in 2011 PAM stated she provided full financial disclosure when she only provided
partial financial disclosure of Charles Eness Murray assets.
From 2010 all mail for Charles Eness Murray was sent to Pamela Anne Murray address.
Ms McOnie asserts that the Will of the late Charles McOnie did not give his wife a life interest:
When the will reads
1.2 I give my half share interest as tenant in common in the home unit known as 4/224 Ben Boyd re neutral bay in NSW to my wife Agnese McOnie upon trust to reside their [sic] Free of charge during her life.
2.2 I empower My wife to sell the unit & employ the proceeds etc
Ms McOnie maintains that cl 1.2 of the Will clearly leaves 50% of the apartment to the deceased (Agnese McOnie) and "does not state it was a life interest". Pausing here, the terms of cl 1.2 of this Will do not support the construction Ms McOnie places on them, but nothing turns on this for the purposes of the present application.
Ms McOnie again makes complaint about a plastic box that she says was in the Unit:
If the plastic box with the pink glass antique lantern & orginal oil
Painting of a man sitting on a bench etc are not in the garage I will
be reporting them stolen & including Charles Eness Murray's leather jacket
& other memorabilia.
Ms McOnie also makes complaint about the treatment of the deceased before the deceased's death; says she has made complaints to the police; and alleges that serious offences have been or are being committed. She also makes complaints as to the auction process by which the Unit was sold (asserting that it has been sold at an undervalue) and makes a series of complaints as to the conduct of the matter by the executor's solicitor.
Little of the diatribe contained in this lengthy email specifically addresses the issue of costs of the judicial advice application.
As to costs, Ms McOnie states:
David Paul Courtenay has changed who he was seeking costs from 3 times in this Supreme Court Matter.
First only from me Megan Ann McOnie when I was the only one named in this action
Then only from my mothers Agnese McOnie estate when he added my 2 siblings Paul Pryde Mconie & David John Mconie in this matter .
Not from Charles eness Murray's estate which remains entirely separate from the estates of Agnese Mconie if costs are awarded from the estates 50% from each estate.
Now he is seeking costs from my two siblings & myself after the auction result of $1.11 million.
The consequences of David Paul Courteney actions & his client Pamela Anne Murray are their responsibility.
The legal cost of a Supreme Court case for contents david Paul Courtenay valued at $20k when we were willing to negotiate before during & after this case.
The cost for preparing the apartment for sale to gain a higher price when
If nothing was done to the apartment the same price would have been realised.
After the condition of the apartment declined in one week after possession was obtained by Pamela Anne Murray, it Deteriorated from looking well kept to curtains Pulled down & left hanging & all window blinds damaged. The Neighbours asked what happened.
David Paul Courtenay's actions towards the McOnie siblings in seeking costs changed after the auction
Of the apartment when a price of only $1.11 million was achieved for large 3 bedroom 2 bathroom
Apartment in a prestigious block of units in cremorne. I advised for no money to be spent on the apartment In preparation for all sale.
With full knowledge from years of experience this made it more interesting to more buyers & would have achieve a higher price.
With more people at the auction.
information from the agent before during or after sale. I requested a this information.
I also questioned Pamela Anne Murray's capability at auction which is an art form when to bid & what to bid etc
A vender is allowed one bid
I have successfully assisted the buyers & purchaser at auctions drive the price up.
Funds were spent that were not required to be spent.
My expertise provided to david Paul Courtney was discounted by his client Pamela Anne Murray.
I worked for Meriton & realesate.com & did my own renovations.
Real estate agents like lawyers value add. They make money on convincing you to spend money you don't need to spend. Spending money does not always make money.
They profit from every additional service they provide.
Ms McOnie also seems to suggest a disparity in the signatures appearing on certain documents (the power of attorney and enduring guardianship documents) when compared with documents that she holds from 2010. She seeks a "final forensic financial investigation".
As adverted to above, Ms McOnie considers that the property sold at a low result at auction (for $1.1million at a stated undervalue from an earlier $1.8m estimate or valuation). She asserts that she will bring charges of fraud against the executor and will make a submission to the aged care submission.
Ms McOnie then makes various complaints, seemingly unrelated to this matter, concerning her own home (which I infer related to the proceedings in respect of which she sought an adjournment to put on evidence when the matter came before me last year). She concludes with the following:
All my valuable contents are gone from my home original art work furniture all my personal possessions etc
& I'm meant to believe this is all just a coincidence. After reporting systemic corruption in Anz, IAG, Allianz & CBA.
I don't believe in coincidence
2012 - 2016 FOS, ASIC & ICAC IAG Anz Allianz & CBA
2015 & 2019 the NSW police commissioner
2016 - 2019 the AFP
2017 - the UN commission human rights & ECHR
2017 - Swiss federal police
2017 - ECHR
2018 - the 3 HK financial regulars for banking, insurance & superannuation
2019 - met with the USA consular general HK
The list set out above appears to be a list of authorities to whom Ms McOnie says she has made complaints. The relevance of any of this to the sole issue now before me (of costs of the judicial advice application) is nowhere made clear.
Ms McOnie did not respond (nor did Mr Paul McOnie) to subsequent communications as to the amended proposed orders forwarded by the plaintiff's solicitor, though given an opportunity to do so. In that regard, the notation in order 4 below reflects what was indicated on the judicial advice application as being the executor's position. A further proposed notation does not arise in circumstances where I am not making an order for Mr Paul McOnie to pay the executor's costs.
[4]
Determination
The perceived need by the executor to seek judicial advice (understandable given the nature of the allegations that have been made by Ms McOnie as to theft and fraud) as to whether she would be justified in disposing of what she argues are abandoned goods was in my opinion a direct result of the apparent refusal or unwillingness of the McOnie children to co-operate (at least after the initial grant of access to the Unit for them to collect the goods) in a process by which such of the contents of the Unit as have been bequeathed to them, which they wished to retain, could be identified and either removed by them or delivered to a nominated address. The correspondence reveals that the executor, through her solicitor, had made a number of unsuccessful attempts to resolve this impasse; after which this application was brought.
The delay in the matter being heard was due (largely if not wholly) to Ms McOnie's successive requests for adjournments in order to put on evidence. The evidence that she envisaged putting before the Court (including as to unrelated possession proceedings in relation to her home) does not appear on any objective view of things to be relevant to the sole issue as to whether the executor would, in the circumstances, be justified in disposing of the uncollected contents of the Unit.
I am not persuaded that the conduct of the McOnie children in not collecting (expeditiously or at all) the contents of the Unit that at the time of the application remained stored in the garage (or in not providing an address for delivery of the goods) is conduct that warrants a cost order against them in relation to this judicial advice application. However, I have a different view as to the conduct of Ms McOnie in occasioning delay in the litigation.
As to the first of those matters (the failure to collect the goods or otherwise provide an address for delivery of the seeds), the making of the judicial application was necessitated by a concern (understandable as it is) by the executor to be protected in the event that the contents in question are disposed of to a waste disposal facility. Such an application might have been considered necessary even had there been no failure of the McOnie children either to co-operate in the collection process or to nominate an address to which the goods could be delivered.
Nor, am I persuaded that the making of the (admittedly serious) allegations by Ms McOnie is conduct that of itself would warrant such an order. In that regard, I take into account the assertions made by Ms McOnie as to her cognitive impairment, which seem to me to be amply supported by the tone and tenor of her email correspondence. I therefore consider this to be a different case to that in which fraud allegations are made in a verified pleading without adequate particularisation and which are ultimately not able to be maintained (and which can, at that stage, be determined to be allegations that could not properly be, and should not ever have been, brought).
Nor do I consider that the communications received by Ms McOnie (misguided as they have been in a number of respects) can be characterised as "contemptuous" of the Court. I consider they are more likely a product of Ms McOnie's lack of legal qualifications and her obvious lack of objectivity as to the matter.
However, where I consider that there is a basis for a special costs order and where I see there is a difference in the position between Ms McOnie's conduct and that of the McOnie brothers, is as to the prolongation of the litigation. The McOnie brothers filed no appearance and appear to have taken no active part in the matter (beyond, it seems, an attendance in court at one stage; and the suggestion that a solicitor might act for them in the proceedings). Ms McOnie, on the other hand, has taken part in the proceedings; has sought successive adjournments of the hearing of the judicial advice application; and has done so on the basis that she required time to file evidence that ultimately was not forthcoming (and seems to have related to a variety of complaints not relevant to the application for judicial advice). In the course of so doing, Ms McOnie has, as already noted, made a number of serious allegations without adducing any evidence in support of those allegations. It may well be that this has been a product of Ms McOnie's acknowledged cognitive impairment but it has clearly led to unnecessary costs being incurred by the estate and has led to an unreasonable obstruction in the administration of the estate assets and the conduct of the present proceedings.
Balancing the above matters, I consider that the executor's costs of the judicial advice application (including the filing of the summons and evidence in support and the hearing of the application on 25 February 2019) should be borne out of the estate on an indemnity basis but that the executor's costs of the unnecessary Court appearances (effectively wasted by Ms McOnie's successive adjournment applications and failure to address the sole issue arising on the judicial advice application - namely, whether the executor would be justified in disposing of the remaining contents of the Unit (as abandoned)) should be borne by Ms McOnie on an indemnity basis. The estate of the late Agnese McOnie (of which the contents of the Unit is part) should not bear those unnecessary legal costs. Nor should Ms McOnie's conduct in these proceedings effectively be condoned, as would be the case if there was no costs order of the kind I propose now to make.
Accordingly, I consider that the executor's costs of the summons seeking judicial advice and hearing of that application filed 12 April 2018 should be borne out of the estate of the deceased on an indemnity basis, save that the executor's costs of the court attendances and communications in the period from 12 June 2018 up to but not including the hearing on 25 February 2019 should be borne by Ms McOnie on an indemnity basis (and, if not paid by the time of distribution of the estate, I note that the executor proposes to deduct these from her share of the estate).
I make the following orders:
1. Subject to order 2, order that the costs of the plaintiff, in her capacity as executor of the estate of the late Agnese McOnie, of the summons for judicial advice filed 12 April 2018 be borne out of the said estate on the indemnity basis.
2. The plaintiff's costs in her capacity as executor, of court attendances and communications with the first defendant (Megan McOnie) for the period from 12 June 2018 up to but not including the hearing of the judicial advice application on 25 February 2019 be payable by the first defendant on the indemnity basis.
3. Otherwise, make no order in relation to the defendants' costs of the judicial advice application.
4. Note that it is the intent of the plaintiff to reduce, in satisfaction of such costs orders, to the extent that the plaintiff is able to do, the share in the estate to be received by the first defendant (Megan McOnie).
With the making of these costs orders, this disposes of the judicial advice proceedings and the Court file will be closed. Any complaints Ms McOnie may have as to the administration of the estate or other matters (unrelated to this judicial advice application) are not appropriate here to be dealt with (and she would be well advised to seek legal advice about the pursuit of any such complaints).
[5]
Amendments
04 June 2019 - Date in O2 amended from 12 June 2019 to 12 June 2018
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Decision last updated: 04 June 2019