RICHARDSON v PEDLER

• 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

4950/97 ROBYN ANNE RICHARDSON v GLENN ANTHONY PEDLER (ESTATE OF THE LATE ROGER KEVIN PEDLER) JUDGMENT 1 MASTER: This is an application under the Family Provision Act in respect of the late Roger Kevin Pedler who died on 25 August 1994 aged 60 years. He was survived by his only son, the defendant, in proceedings No 4950 of 1997 and his de facto wife who is the plaintiff in the same proceedings. He was also survived by his former wife who has been notified of the proceedings and makes no claim. There has also been heard with this proceedings matter No 3283 of 2000 which I will describe shortly. 2 The deceased left a will under which substantially the whole of his estate passed to his son, the defendant, who was appointed executor. The estate at the date of death included a property which is central to the present application being premises at 2 Woodward Road, Hunters Hill. It also included a property at Ashfield valued at $170,000 and some land at Bundaberg valued at $125,000. There was furniture and personal effects together with cash in the order of $65,000. There were debts at that stage of $185,000 which included a mortgage secured on the Hunters Hill property of $150,000. 3 At present the estate's main asset is the property at Hunters Hill which the parties are agreed has a value of $1,250,000. There are liabilities of $187,825 of which the most substantial is the amount due to the Colonial State Bank of $134,997.41. This is the balance of the original loan on the property which has apparently been refinanced and which, throughout the course of the last seven years, the defendant has been repaying. The other amounts due are mainly amounts which the defendant has advanced to the estate for loan repayments and legal fees. There is another asset which the estate has which is a claim against the Royal & Sun Alliance Insurance Company which arises out of matters with which I will deal shortly. That has been crystallised in the hearing of proceedings No. 3283 of 2000 and is an amount of $150,000. There are also costs orders against the plaintiff amounting to $13,724. There is also a contingent liability for possible land tax on the property at Hunters Hill. 4 Both parties have incurred costs in the present matter the plaintiff's being $124,620 on an indemnity basis and the defendant's being $82,075 on a similar basis. 5 In order to understand the matter it is necessary that I deal with some of the history in a reasonable amount of detail. 6 The deceased was born on 25 July 1934 and the plaintiff on 13 March 1953. The deceased's first marriage occurred on 4 November 1965 and his son, the defendant, was born on 18 October 1967. The deceased and his wife were divorced on 19 March 1974 and his wife remarried in 1978. It was in early 1991 that the plaintiff and the deceased commenced living together. The plaintiff and the deceased attempted to have children but that was unsuccessful. On 25 August 1994 the deceased died in a car accident when returning to Sydney from Queensland. At that stage the property at Hunters Hill was partly completed and was covered with builder's rubbish and other debris. There were only two or three rooms in the house that were habitable in which the plaintiff and the deceased were living. Apparently the deceased had been involved in litigation with the Hunters Hill Council from at least 1964 and the evidence indicated that he was a prolific litigant in this area and in other matters concerning his dismissal from positions of employment. 7 After the death of the deceased the plaintiff made an application for Letters of Administration. That was referred by the Registrar to the Court for a decision. The defendant also apparently made an application under the Family Provision Act.. Both those matters were settled on 5 July 1996 by a Deed of Arrangement pursuant to which the plaintiff was to apply for Letters of Administration in respect of the estate of the deceased. Under the deed the deceased's property was to be listed for sale and the proceeds of the estate were to be distributed. The first $10,000 was set aside for the care of two dogs and a cat, the next $5,000 passed to the defendant in these proceedings, the next $200,000 realised passed to the plaintiff in these proceedings and the next $200,000 passed to the defendant in these proceedings. Any balance was to be split evenly between the parties. Following the Deed of Settlement the Registrar granted Letters of Administration of the deceased's estate to the plaintiff in these proceedings. 8 In August 1996 the plaintiff first met David Edward Gill who was a person who suggested to her that he had building skills. They married on 23 December 1996. Pursuant to the Deed of Arrangement and, indeed prior to it, there were a number of payments by the plaintiff to herself in the course of her administration of the estate. There was a payment of $5,000 on 18 June 1996, $10,000 on 18 October 1996 and $200,000 on 11 November 1996. In respect of this latter amount on 24 January 1997 the plaintiff gave $100,000 to her new husband, Mr Gill, she says, on the understanding that he would invest it prior to it being used for renovations of the Hunters Hill property. The marriage between the plaintiff and Mr Gill only lasted three months. The plaintiff made an application to the Family Court seeking repayment from Mr Gill of $165,000 most of which was no doubt the estate funds. These proceedings were then transferred to this Court and were dealt with by His Honour Mr Justice Young when he gave a judgment in her favour. He also heard proceedings which were brought in matter 1860 of 1997 by the defendant in the present proceedings against the plaintiff in these proceedings. Those proceedings sought to set aside the grant of Letters of Administration to the plaintiff in these proceedings on the basis that the grant was obtained by her fraud she having destroyed a duly executed will which left the whole of the estate to the defendant in the present proceedings. His Honour's judgment in that matter was given on 16 October 1997 and in that judgment at pages 3 and 4 he describes the conversation in which the plaintiff in these proceedings was alleged to have confessed to shredding the executed will. That conversation was with Mr Gill who no doubt passed on the relevant information after the break up of his marriage which allowed the proceedings to be commenced. At page 19 of the judgment His Honour had the following to say:- "Applying the Briginshaw test to the evidence in the present case, I am comfortably satisfied, despite the criminality of the act, that there was a will left by the deceased which the defendant destroyed after his death. What were the terms of that will I will come to presently. It is easier to make this finding in the present case than perhaps some other cases because the conduct of both the defendant and of Mr Gill show almost a complete lack of commercial morality. The objection that ordinary citizens would not contemplate destroying a will has a much weakened force when applied to this defendant." 9 So far as the Deed of Arrangement between the parties was concerned His Honour found that there was fraud on the present plaintiff's part which had an operative effect on the present defendant's mind when he executed the deed. Accordingly, His Honour set aside the Deed as well as the Grant of Letters of Administration. 10 The plaintiff in the present proceedings appealed against His Honour, Mr Justice Young's decision. Ultimately, however, when the appeal came on for hearing she filed a notice of discontinuance. There are a number of other proceedings concerning the matter. One of them was matter No 111752 of 1999 in which the plaintiff sought to propound a will dated 5 December 1993 alleged to have been signed but not witnessed by the deceased. These proceedings resulted in a judgment by His Honour Mr Justice Windeyer in which he dismissed the plaintiff's proceedings. 11 In the original proceedings for the Grant of Administration to the plaintiff as a result of the Deed of Arrangement she was required to give an Administration Bond. That Administration Bond was given by the Sun Alliance Royal Insurance Australia Limited on 6 March 1995. The defendant in the present proceedings as a result of the plaintiff's administration of the estate brought proceedings against Royal Sun Alliance Insurance Australia Ltd which are proceedings No 3283 of 2000. I have heard these proceedings at the same time as the Family Provision Act application of the plaintiff. 12 In the proceedings on the bond the defendant, Royal Sun Alliance Insurance Australia Ltd, filed a cross claim against the plaintiff, Mrs Richardson, seeking to recover any amount which was recovered against them by the defendant in the present proceedings. The action between the defendant in the present proceedings and Royal Sun Alliance Insurance Australia Ltd was settled at the commencement of the hearing before me. I made the following orders as a result of the settlement. "1.Verdict for the plaintiff in the sum of $160,000.00. 2. Order the defendant to pay the plaintiff's party/party costs agreed in the sum of $25,000.00 3. Judgment for the plaintiff in the sum of $185,000.00" 13 There was then an application for summary judgment on the cross claim brought by the insurance company against Mrs Richardson. Eventually that summary judgment application, which was based upon the indemnity which she had given the insurance company, was not resisted and I gave judgment against the plaintiff for $185,000 together with costs of some $38,912.50. 14 In proceedings 4950 of 1997 the plaintiff relies upon an amended Summons which was filed before me on 19 March 2001. That included a claim for provision, a claim for an extension of time and sought an order designating the Hunters Hill property as notional estate. The latter application was unnecessary because the evidence before me showed that the property had been transmitted into the defendant's name merely as administrator and not as a beneficiary. In these circumstances there has been no distribution. The defendant has in my view correctly conducted the case on the basis that the Hunters Hill property is part of the estate of the deceased and that there is no need, if an order is to be made, for the court to be concerned with questions of notional estate. 15 In these proceedings the defendant also brought a cross claim against the plaintiff seeking possession of the Hunters Hill property and mesne profits. Initially there was a dispute between the parties about many items of personalty which were alleged to have been misappropriated by the plaintiff. Apparently in the interests of speedy finalisation of the matter those matters were not pursued and do not concern me. 16 I turn to the application for extension of time. The date of death of the deceased was 25 August 1994 and time for the making of the application expired on 24 February 1996. These proceedings were commenced in December 1997. The court under section 16 of the Family Provision Act may allow an application to be made notwithstanding it is out of time. There are a number of cases which refer to the principles to be applied in an application for an extension of time. In Re Guskett (deceased) (1947) VLR 211 the following was said: "It is necessary for the applicant to make out a case that will justify the grant of the indulgence sought. He is to show reasons why his failure to apply within the time allowed should be excused. Every case will have to be dealt with on its own facts but it would seem necessary for the applicant to satisfy the court that the circumstances are such as to make it unjust for him to be penalised for being out of time. As moreover he is seeking an indulgence he should apply promptly for an extension of time." 17 His Honour Young J has in several cases dealt with the principles governing application to extend time under this Act. In Massie v Laundy (unreported 7 February 1986) he indicated that the factors which one looks at include the following:- (a) is the reason for making a late claim sufficient? (b) will the beneficiaries under the will be unacceptably prejudiced if the time were extended? (c) has there been any unconscionable conduct on either side which would enter into the equation? 18 He also accepts a view which was expressed by his Honour Needham J in Fancett v Ware (3 June 1986) that there is no purpose in extending the time with respect to a claim which must fail. In Phillips v Quinton (unreported 31 March 1988) Powell J when considering the matter at the substantive hearing leant to the view that a plaintiff seeking an extension of time under the Testators Family Maintenance Act must now demonstrate not merely a reasonable prospect but at least a strong probability of obtaining substantive relief. That view was not accepted by his Honour Hodgson J in Basto v Basto (unreported 8 September 1989). 19 In De Winter v Johnston, a decision of the Court of Appeal on 23 August 1995 his Honour Powell J referred to this matter and in particular the fact that nowadays the application for extension of time is invariably dealt with at the time of the application for substantive relief. He said at page 23: "In such a case, so it seems to me no extension of time ought to be granted unless it be established (inter alia) that the application for an extension of time would, in the event of that extension being granted, be entitled to an order for substantive relief." 20 It is also useful to note in the context of this case the comments of Sheller JA in that case when he said at page 11 of the judgment the following:- "In the present case the Master found that there was no prejudice to the other beneficiaries on account of delay and that finding is not seriously challenged. The Master referred to unconscionable conduct and said: 'Unconscionable conduct in this context, of course, relates to such matters as where the plaintiff has made an informed decision not to make a claim against the estate, and has then decided after the limitation period has expired to make such a claim on account of some change in her financial and material circumstances which has occurred after the expiry of the limitation period. With all respect, I would not have thought this to have been unconscionable conduct. No doubt it depends on the circumstances. However, the concept of unconscionable conduct is there directed towards a deliberate holding off designed to lull the beneficiaries into a false sense of security. There is nothing to suggest anything of that sort in the present case." 21 The plaintiff dealt with her application for extension of time in her affidavit of 27 November 1997. She refers to discussions with her solicitor which she had at the time of making an application for Letters of Administration which ultimately was compromised. She says that she discussed the possibility with Mr Carver of making a Family Provision Act application should the application for administration not be successful. 22 In paragraph 6 of her affidavit she submitted that there was sufficient cause to grant the present application. She said she was under the impression that the matter had been settled by negotiation with the defendant and his advisers. The negotiations to which she was referring were the ones which resulted in the Deed of Arrangement. However, that deed was procured by her own fraud in suppressing the destruction of the executed will of the deceased. That conduct was extremely reprehensible. Under 135 of the Crimes Act it carries a penalty of seven years imprisonment. Clearly it was because of her deliberate fraud that there has been a delay in bringing these proceedings. She had the option when she knew of the prior existence of the executed will of allowing it to be proved and bringing proceedings under the Act within time. She knew of the availability of those proceedings well within time. Instead she chose to persist with her fraud until found out. This was the reason for the delay. 23 As a result of her actions there have now been a multitude of proceedings in which there have been many costs orders made against her. She has only one asset of any substance and that is an amount of $175,000 to which she is entitled from the estate of her mother. Her solicitor has a charge over that to secure his costs and of other solicitors who have acted for the plaintiff over the years. The total costs secured appear to be some $235,270. She also owes a substantial sum to the defendant as a result of the previous litigation and her receipt of monies during the administration of the estate to which she was not entitled. So far as costs are concerned there are orders against her in favour of the defendant for $70,905.52. She has to refund the $215,000 being funds which she obtained during her administration of the estate. There is also interest on these amounts of $94,839.39. These amounts total $616,014.91 and offset against this is the $150,000 which will be received from the insurance company by the defendant. This leaves an amount of $466.014.91 owing by the plaintiff to the defendant. She will also have to pay the judgment obtained against her by the defendant of $185,000 plus $38,912.50. The plaintiff thus has debts of $689,927.41 and assets of some $175,000. Clearly it is very likely that she will be made bankrupt and the defendant will not be able to recover any significant amount from the plaintiff. Accordingly he will be substantially out of pocket as a result of the actions of the plaintiff. 24 However, the relevant prejudice is that which will result from the extension of time if granted. If the extension is granted there may be an order in the plaintiff's favour together with costs all of which would come out of the estate. The estate will thus be diminished. As will be demonstrated later on in this judgment the estate is of a sufficient size that it can accommodate both the plaintiff'' claim, any amounts that are due to the defendant for funds advanced by him to the estate and the defendant's costs of the proceedings. Thus the only effect on the defendant will be that the share which he is to receive from the estate will be reduced. There is nothing that the defendant has done since he obtained a Grant of Administration which was predicated upon the plaintiff not bringing these proceedings. Therefore there is no relevant prejudice. 25 I am satisfied, however, because of the unconscionable conduct of the plaintiff, that there is no adequate or proper explanation for the delay in bringing proceedings and thus I should refuse her application for an extension of time. 26 Although it is not necessary for me to do so I will deal with a number of other aspects in respect of the substantive application in case a different view might be taken on appeal. 27 In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two stage approach that a Court must take. At page 209 it said the following:- "The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."

28 I have already dealt with the assets of the plaintiff above. In her affidavit evidence before me she suggested that she was on unemployment benefits. That was true but it was also clear that she has over the last two years worked quite often on a part time basis as a temporary secretary. That income is a reasonable one and it is apparent from the documents that were subpoenaed by the defendant that her employers regard her as a desirable employee and frequently ask for her return from the agency for whom she works. For the year ended 30 June 2000 her income appears to have been in the order of $10,675. However the amount that she can earn as a temporary secretary is at least $500 per week. 29 The plaintiff worked on a part time basis for some years, according to her, as a result of a medical condition. This was referred to by two doctors who were called in her case. They were Dr Tahmindjis and Dr John Lawson. Both doctors referred to her long history of ulcerative colitis dating from childhood and numerous operations she had had in an attempt to reconstitute her bowel. These matters had left her in a difficult situation in that she suffers from disturbance of her bowel function needing to visit the toilet up to ten times a day. Notwithstanding this difficulty which must be very embarrassing at times for the plaintiff she has managed successfully, as I have indicated, in employment. As a result of this and perhaps other matters the plaintiff has suffered from depression from time to time. The evidence does not seem to indicate any continuing treatment for that condition although there has been treatment by counselling and cognitive behavioural therapy which has not been particularly successful. There is nothing in the evidence which would suggest that her problems with depression are a direct result of the death of the deceased. It was a pre-existing condition well before the death of the deceased and there have been a number of other factors such as the difficult times she has had since the death of the deceased particularly with Mr Gill which would play a causal role in her depression from time to time. Once this litigation, which has greatly occupied the plaintiff's energies, passes I would have thought the plaintiff would be able to adequately support herself from her secretarial work. 30 The plaintiff came into the relationship with some assets the main one being a block of land in Brisbane. She sold that land after she commenced living with the deceased for $37,000. From the proceeds she purchased a block of land at Esk in Queensland and a boat. Both of these assets were retained by her after the death of the deceased. 31 So far as the relationship between the plaintiff and the deceased is concerned it seems to have been a happy one and mutually satisfying for them. Although they had no children they had at one stage planned to be married and discussed it from time to time. For various reasons this did not eventuate. The period of the relationship before the unfortunate death of the deceased was some 3-1/2 years. 32 Before dealing with what the plaintiff has suggested would be an appropriate order I will deal with the defendant's situation as he is the only other person having a claim on the bounty of the deceased. He owns a property at 208 Albion Street, Leichhardt worth approximately $420,000. He has a unit at 21/8 Doyalson Place, Helensvale, Queensland worth $120,000. He has a car worth $7,400, a small quantity of shares, personal effects and employer contributions to Superannuation Funds of about $28,000. He is also entitled to the costs orders against the plaintiff to which I have earlier referred. He has a loan secured against his home at Leichhardt and an overdraft facility amounting to $156,791. There is also a loan on the unit at Helensvale for $100,000. He and his wife have now made themselves liable for the loan which is the remainder of the deceased's loan presently standing at $134,997. He owes his mother $20,000. He is employed as an accountant and receives a gross salary of $78,500 per annum. There is income from the rental unit of $8,093 per annum. He has expenses which are substantial and as his wife is not working they are, to an extent, living on their overdraft. Before the birth of her child in November last year her salary was used for living expenses but this is no longer available to them. They are hoping to have another child in the future. 33 The defendant lived with his mother from almost immediately after his birth. The separation occurred soon after that event. Notwithstanding this the defendant did have contact throughout his upbringing with the deceased and the deceased showed an interest in him. There was nothing unusual given the circumstances of the separation which has to be taken into account in respect of the relationship between the defendant and deceased. 34 The plaintiff suggested in submissions that she ought to have a sum which was equivalent to the total amount of her debts which are $689,927.41 plus the sum of $250,000. The claim that the plaintiff had been left without adequate and proper provision for her maintenance, education and advancement in life was articulated in two ways.

1. The need for some advancement in order to meet her debts. 2. The need for some accommodation on the basis that she will be leaving the property at Hunters Hill. 35 There is a difficulty with the second of these approaches because no relevant evidence as to what would be the cost of alternate accommodation was advanced at the hearing before me. In this regard I am reminded by what was said by Sheller JA in the Court of Appeal in Singer v Berghouse on 23 July 1992. There his Honour had the following to say:- "Sheller JA (Cripps JA agreeing) said: 'I must say that I find it extraordinary that the appellant presented scant or no evidence as to her present income and outgoings or as to her intentions or needs for the future or as to what lump sum provision applying appropriate discount tables would be required to meet these claims or needs, if they existed. In my opinion, in the circumstances of this case, for the court, in the absence of any such evidence, to make an order for the payment to the appellant of a lump sum is to do no more than act on speculation and, contrary to the prohibition contained in s9(2) of the Act, to alter the deceased's disposition of his property in the absence of proof that he has inadequately provided for the appellant.'"

36 In any event, of course, the question of whether it is appropriate to provide a house has to be determined in accordance with the established principles and for this purpose those that apply to widow's are in the circumstances of this case applicable to the plaintiff. 37 Widow's claims are frequently the subject of applications in this Court. The Court of Appeal in Goloski v Goloski (unreported 5 October 1993) has referred to formulations of the standard to be expected in respect of a widow in terms which refer to the decision of Powell J in Luciano v Rosenblum (1985) 2 NSWLR 65 and Elliott v Elliott, which was approved by the Court of Appeal on 24 April 1986. There his Honour said, "Where the marriage of a deceased and his widow has been long and harmonious, where the widow has loyally supported her husband and assisted him to build up and maintain his estate, the duty which a deceased owes to his widow can be no less than to the extent to which his assets permit him to achieve that result; first to ensure that his widow be secure in her home for the rest of her life and that if either the need arises or the whim strikes her she have the capacity to change her home; secondly that she have available to her an income sufficient to enable her to live in a reasonable degree of comfort and free from any financial worry; and, third, that she have available to her a fund to which she might have resort in order to provide herself with such modest luxuries as she might choose and which would provide her with a hedge against any unforeseen contingency or disaster that life might bring".

38 In the case of the plaintiff there was a relationship of some three and a half years. Admittedly it was happy and there was assistance given by the plaintiff to the improvement and maintenance of the main asset in the estate. Due to, inter alia, the shortness of the relationship, it would not, in the ordinary course, unless there were no competing claims, be one which would be recognised by the grant of sufficient funds for the purchase of a house. In any event in the present case the son who is the beneficiary is in a difficult situation because of his liabilities partly due to his own borrowings but compounded because he took over the mortgage on the Hunters Hill property and made advances on account of estate liabilities. The plaintiff placed great store on the fact that there were draft wills made in 1994 by the deceased which were, although signed, not properly executed. These provided for the plaintiff to receive a substantial part of the estate. They certainly indicate a matter which I have accepted, namely, that there was a happy relationship between the deceased and the plaintiff. However, I would not think it appropriate that she receive some provision which would enable her to purchase a house. 39 The claims for advancement to repay her debts raise a number of matters that occurred after the date of death of the deceased which have to be taken into account pursuant to s 9 of the Act. On the plaintiff's part it is clear that she did a number of things to help in the administration of the estate. These included removing a substantial amount of rubbish from the property to make it more habitable in preparation for what was anticipated might be renovations to the property. The defendant raised two matters in submissions in this area which was said to be reasons for not making an order. The first was the fact that the plaintiff married after the death of the deceased. Clearly enough this marriage was unsuccessful. It lasted for some three months and the plaintiff was clearly deceived by her husband. The defendant submits that there should be no resurrection of the deceased's moral obligation to provide for her in these circumstances. This submission ignores the fact that in determining the matter I have to consider the circumstances at the present time, namely, at the date of the hearing. Accordingly this submission can be put to one side. 40 The next matter is whether the plaintiff's conduct in destroying the will ought now to be considered in determining whether any provision ought to be made in her favour. In the event that I am wrong on the view I have formed in respect of this conduct on the application for extension of time there would seem little point in me relying on this conduct for the present purposes. 41 The final point is the question of whether it would be futile for the court to make an order in circumstances where it would not be for the benefit of the plaintiff but only her creditors. 42 In Swain & Ors v McWhirter (Master McLaughlin 29 August 1996) the Master said:- "It is not in accordance with either the policy of the Act or the appropriate exercise of the Court's discretion to make an order in favour of an applicant under the Family Provision Act which would not, in any practical fashion, benefit the applicant, but would only put the totality of the provision up to a certain amount in the hands of a creditor." 43 It is perfectly apparent from the recounting of the plaintiff's financial situation that any legacy would only be for the benefit of her creditors. The only question that could arise is whether there could be some appropriate protective trust that could manage a modest sum for contingencies such as a temporary inability to work. In this respect the Court is in a difficult situation because the evidence does not really address what would be an appropriate amount. I would have thought that a protective legacy of $100,000 would be appropriate. However, for the reasons advanced the summons must be dismissed. 44 The defendant in a cross claim sought judgment for possession and also made a claim for mesne profits from the date of the death of the deceased. The evidence satisfies me that it is appropriate for there to be an order for possession and I propose to make one and give leave to issue a write of execution subject to an order that the writ will lie in the office of the Sheriff for a period sufficient to enable the plaintiff to vacate the premises. 45 The claim for mesne profits is one which may be made by a person who is entitled to possession of the property. The defendant became entitled on 26 June 1998 when he was granted Letters of Administration of the estate of the deceased. Recently in Oliveri v Oliveri (unreported 5 March 1999) I dealt with the basis of the claim for mesne profits. There was an appeal from that decision and His Honour Mr Justice Bryson held that the principles to which I had referred were the undoubted law which is still in force in New South Wales. The basis of the claim for mesne profits received careful attention from the High Court in Minister of State for the Interior v R.T. Company Proprietary Limited & Ors (1962) 107 CLR 1. The matter was explained by Taylor J at pages 5 to 7 in these terms. "In support of the primary submission of the companies upon this branch of the case it was pointed out that a claim for mesne profits is a particular form of the action for trespass, that as such it is based upon an injury to the plaintiff's possession and that the plaintiff is enabled to recover only upon the doctrine of trespass by relation. That is to say, that upon entering into possession the plaintiff is deemed by a legal fiction to have been in possession ever since his right to possession arose. But, so the argument ran, a plaintiff is not entitled to assert a claim to mesne profits until entry or re-entry has taken place. The principle upon which the submissions are based are clearly established ( see Tharpe v. Stallwood (1843) 5 M & G 760, at pp 774, 775 (134 ER 766, at p 772) ; Barnett v. The Earl of Guildford (1855) 11 Ex 19 ; Dunlop v. Macedo (1891) 8 TLR 43 ; Ocean Accident and Guarantee Corporation v. Ilford Gas Company (1905) 2 KB 493, at pp 498, 499 ; Wynne v. Green (1901) 1 SR (NSW) 40 ; and Ebbels v. Rewell (1908) VLR 261 ; Salmond on Torts 13th ed. (1961) p. 179 and Fleming on Torts 2nd ed. (1961) p. 80) and it is too late in the day to deny that at common law a plaintiff suing for mesne profits could not, in general, succeed unless he proved that pursuant to a right to do so he had entered into possession. An exception seems to have been made in the case of a plaintiff whose title had expired before an entry had been made (Fleming on Torts (supra) p. 50) and for many years it has been permissible in a number of jurisdictions for a landlord, after a holding over without consent, to combine a claim for mesne profits with an action of ejectment. Indeed, in Dunlop v. Macedo ( 1891) 8 TLR 43 it was held that in view of the provisions of r. 2 of 0. 17 of the English Rules of 1875 this course might be followed in an action for possession against a trespasser notwithstanding the fact that such a case did not fall within the provisions of s. 214 of the Common Law Procedure Act, 1852 (cf.Supreme Court Act 1958 (Vict.), s. 119, and Supreme Court Rules, 0. XVIII, r.2). But the proceedings before me are not proceedings in ejectment or for possession and it is unnecessary to consider how far, if at all, a claim for mesne profits might be joined with proceedings of that character in this Court. (at p6)

None of the cases relating to mesne profits to which I have referred deals with a situation precisely the same as that which presents itself in this case. It is true, of course, that the cases consistently predicate that the plaintiff must establish that he has entered into possession of the subject premises. And they do so in language which suggests that the accrual to the plaintiff of a cause of action for mesne profits is dependant upon the occurrence of such an event. But none of the cases, as far as I can see, contemplated a situation such as the present where the writ was issued before entry and an entry, in turn, preceded the trial. This case is, perhaps, made even more unusual by the fact that the plaintiff had obtained a warrant of possession some years before the date when the suit was instituted. The immediate question, however, is whether a claim for mesne profits made independently of proceedings for possession must fail if it is made before the plaintiff obtains possession of the subject premises. The answer to this question must, I think, be in the affirmative unless the fiction upon which trespass by relation is erected can be made to do double duty. Upon entry the plaintiff's possession is said to relate back by virtue of the legal fiction to the time when his right to possession arose. Can the plaintiff, then, in these proceedings, having entered after the issue of the writ, assert by force of the fiction that he was in possession at the date of the writ and, therefore, that his cause of action had then accrued? Or, perhaps, to put it in another way, is a plaintiff, upon entering into possession, entitled to assert that, thereupon, he became entitled to mesne profits "at the time when they arose"? (Ocean Accident and Guarantee Corporation v. Ilford Gas Company ( 1905) 2 KB, at p 499 ). It is, however, the contention of the companies that they are entitled to judgment if it appears that if the matter had been investigated at the date of the commencement of the suit it would have been found that the plaintiff's cause of action had not then accrued. To my mind principle and authority admit of only one answer to the problem; it is incumbent upon the plaintiff to establish the existence of his cause of action as at the date of his writ and the failure or success of his action will not depend upon whether the trial takes place promptly or happens to be delayed until after he has entered into possession. It seems to me that the problem is analogous to that which has arisen in cases where a plaintiff has, before actual grant of administration, commenced proceedings as an administrator. Notwithstanding that upon grant the administrator's title relates back to the death of the deceased whom he represents it has been consistently held that this element of retroactivity is incapable of sustaining a writ issued before grant ( Chetty v. Chetty (1916) 1 AC 603, at p 608 ; Ingall v. Moran (1944) 1 KB 160 ; Hilton v. Sutton Steam Laundry (1946) 1 KB 65 ; and Finnegan v. Cementation Co. Ltd. (1953) 1 QB 688 ). (at p7)" 46 As His Honour indicates there is often a statutory basis to allow the combination of a claim for mesne profits with an action for ejectment. In New South Wales this is found in section 12 of the Landlord and Tenant Act 1899. The section only applies to the case of landlord and tenant which is not the present factual situation. 47 His Honour made reference to Dunlop v Macedo which was a case that on the facts did not cover a relationship of landlord and tenant. Section 214 of the Common Law Procedure Act was the equivalent of our s 12 of the 1899 Landlord and Tenant Act. Mr Justice Wells held that because of a later provision in the court rules which specifically allowed a claim for mesne profits to be combined with a claim in ejectment that there was no need to confine the exception to the relationship of landlord and tenant. The only close rule in our rules is Part 8 Rule 1 which in very general terms allows the combination of different causes of action in one set of proceedings. 48 I have not had the benefit of submissions on mesne profits from the plaintiff. Given the particularity of section 12 and the generality of the relevant Supreme Court rule, I would not have thought that the same result should follow. Normally the general rule making power does not authorise rules which would result in changes to substantive rules of law. See General Mediterranean Holdings (SA) v Patel (1999) 3 All ER 673, (2000) 1 WLR 272. In these circumstances there can be no claim for mesne profits as there was no pre-existing relationship of landlord and tenant. 49 I note that there could not be a claim for use and occupation as that is predicated upon there having been in the past a relationship of landlord and tenant. 50 Another alternative might be that there would be a right to damages in equity under s 68 of the Supreme Court Act on the basis that a court would have issued an injunction against the continuance of a wrongful act. However, an injunction to restrain a trespass or threatened trespass normally will not be granted unless there is likely to be irreparable injury. See the discussion in Equity Doctrines & Remedies, Meagher, Gummow & Lehane, Third Edition, at para 2122. 51 In the event that the defendant would have been entitled to mesne profits from 24 June 1998 until judgment the evidence demonstrates that the property could be let for $350 per week as at 16 June 2000 if a sum of $10,000 was spent on the property. The rental was also given including past years if the building was to be demolished and a house erected. The market increases over the period between 1998 and 2000 in that respect seem to be in the order of $100 per week. Accordingly I would have accepted that the appropriate rent during 1998 would be $250, 1999 $300 and in the year 2000 and subsequently $350 per week. From the sums calculated by reference to these amounts one would have to deduct $10,000 and also deduct the time taken for such repair of two months. However, given my conclusions on liability, this matter need not be pursued. 52 The remaining claim in the cross claim was a claim for repayment of the sum of $215,000 to which I have earlier referred in this judgment. That claim is made on the basis of money had and received by the plaintiff for the use of the defendant. It is also put on an alternative basis of unjust enrichment. It would seem clear that as there is no entitlement to the funds, her Letters of Administration having been revoked, the plaintiff is liable to repay this sum. The defendant has to give credit for the $150,000 which has been received by virtue of his settlement with the insurer who issued the insurance bond. No suggestion is made on the plaintiff's part that in some way this precluded the recovery of the difference between these two amounts from the plaintiff. 53 Accordingly, there should be judgment in favour of the defendant against the plaintiff for the sum of $65,000 on this claim. 54 I direct the parties to bring in short minutes when they can argue the question of costs. **************

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