NOWELL v PALMER

Court of Appeal (NSW)|1993-08-30|Before: Brownie J, Kirby P, Mahoney JA, Until Brownie J

The application for a stay is ancillary to the appeal. It was before the Court on 16 August 1993. On that day Mahoney JA extended the temporary stay granted by Brownie J until this day. He also extended until 27 August 1993 the period within which the claimant could comply with orders made by Brownie J. The motion was stood over until today. It is now before me. I am exercising the powers of the Court of Appeal, pursuant to the provisions of s46 of the Supreme Court Act 1970.

When the proceedings were returned before Mahoney JA, a short affidavit of the claimant was read which set out certain information concerning the disposal of assets of the estate. It seems that the property in Petersham, which prior to his

According to a further affidavit, which was more recently sworn and read before me today, the claimant has spent approximately $70,000 on furnishings and other improvements to the Smithfield property. However, the same affidavit states that a recent valuation of the property suggests that, in the current market, it would fetch only $139 000. Notably missing from the affidavits of the claimant is a full explanation of the way in which the substantial deposits of cash in the investment and other bank accounts, standing to the credit of Mr McGrath at the time of his death, have been expended. I would infer that some of the cash has been expended on the improvements to the Smithfield property. I use the word "improvements" loosely, because it appears that, despite such expenditure of nearly $70 000 in all, the property has actually diminished significantly in value since its purchase.

The opponent objects to a stay. She does so upon the basis that she has succeeded in the Court below, and, despite two attempts, the claimant has not explained to the Court the way in which she has expended the liquid assets of the estate which are the subject of this litigation.

For the claimant it is said that she had the legal interest in the property of the testator's estate. Until Brownie J's orders she was entitled to dispose of her property as she saw fit. However, it seems, from the affidavits which have been read before me, that even since the orders made by Brownie J, the claimant has continued to expend the property of the estate as if it were her own, unencumbered and unaffected by the constructive trust found by his Honour, which is the subject of the challenge of the appeal.

Clearly, this situation is an unsatisfactory to both the opponent and the Court. The Court has made orders which are intended to be enforced for the benefit of the opponent. At the moment those orders are unaffected by any relevant order modifying the interest which Brownie J has found in favour of the opponent.

It seems to me that the proceedings should be brought on for an urgent hearing. Tam conscious of the fact that the claimant lives in the property in Smithfield. It is her home. If she succeeds in her appeal she will be entitled to continue to live there and have the benefit of it.

On the other hand, I am not convinced that a case has been made out for a stay of execution of the orders of Brownie J on the evidence before me. I find it curious, to say the least, that the claimant has to date failed to offer an adequate account of how the liquid assets of the estate have been expended. Clearly, whilst litigation was hanging over her, it would have been more prudent for the claimant to have ensured that the estate was not dissipated. She seems to have taken the view that she could deal with the property as if it were completely unaffected by the proceedings.

Order the expedition of the hearing of the appeal, category A, with the intent that the appeal will be heard on 23 September 1993 if the case presently standing in the list for that day is vacated. Otherwise, it will be listed on a day to be notified to the parties by the Registrar after consultation with the parties;

. Dispense with the Rules of Court relating to appeal books, with the

intent that a compilation of relevant papers with an index, reasonably satisfactory to the Registrar, will be prepared by the claimant (as appellant) and filed within fourteen days of this date and served, within such time, on the solicitors for the opponent (respondent);

. Costs of the proceedings before the Court today, the motion for a stay

having failed, to be the opponent's costs in the appeal; and

. Dismiss the motion for a stay but grant leave to the claimant, upon one

day's notice to the opponent, to move the Court again for a stay upon a further affidavit of Noela Nowell, which affidavit shall explain in precise detail the expenditure of all of the assets of the late Ross Alfred McGrath which are the subject of these proceedings.

I want to make it plain that the orders of Brownie J, which control the

expenditure by the claimant of the assets of the estate of the late Ross Alfred McGrath, remain in force. They will remain in force until the hearing of this

appeal, or until any further or other order of the Court.

Solicitors for the Opponent: John R De Mattia and Co

KIRBY P 30 August 1993, 30 August 1993 [1993] NSWCA 199

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