The Plaintiff did not give evidence. However, having regard to the evidence given by the others, I do not think that any adverse inferences should be drawn from that fact.
13 Colin Daley Quinn prepared the probate application on 3 August 2006. After some correspondence, the affidavit of the executors was sworn by the Defendant on 12 February 2007 and by the Plaintiff on 8 March 2007. The Inventory of Property made no reference to the $100,000. Mr Daley gave evidence that it was his practice not to include cash on an Inventory of Property until the cash had been paid into Colin Daley Quinn's trust account.
14 Probate was granted on 23 March 2007.
15 At the time the Defendant signed the probate application she expressed an interest in purchasing the Peakhurst property from the estate. There was then considerable correspondence from Colin Daley Quinn to her concerning that proposal. Mrs Webber also spoke to her on several occasions about it. It appears that the Defendant was trying to raise finance to purchase the property, but was having difficulties doing so. In addition, she was ill in August 2007 with pneumonia and pleurisy and, at about that time, her and her husband's business experienced serious financial difficulties. Ultimately, it went into administration on 17 October 2008.
16 While the Defendant was trying to raise finance, she resisted putting the property on the market. Eventually, on 5 September 2007, the Defendant made an offer to buy the Plaintiff's interest for $180,000. That offer was rejected by a letter dated 25 September 2007 from Colin Daley Quinn. In that letter Colin Daley Quinn suggested that an offer should be put (for the whole property) in the range of $430,000 to $460,000. The letter said that, if the Plaintiff did not receive a response within 14 days, he would make an application to have the Defendant removed as an executor.
17 The Defendant met with Ms Webber and Ms Narelle Alexander of Colin Daly Quinn on 12 October 2007. At that meeting, she put a further offer of $215,000 for the Plaintiff's half share. There was also a discussion at that meeting about the $100,000. According to the evidence of Ms Webber, the Defendant said "The $100,000 in cash was expended on our late father during his lifetime". According to the Defendant, she said that she thought that that was the case. Following the meeting she says that she went to the St George bank to see whether it held a safety deposit box in the name of the Deceased, her own name or her husband's name - to no avail.
18 The Defendant's offer of $215,000 was rejected by Colin Daley Quinn in a letter dated 16 October 2007. That letter said that the offer was unacceptable because it assumed a transfer to the Defendant in specie, leaving no funds to pay any adjustments arising from the fact that the Defendant had $100,000 cash belonging to the estate. The letter went on to say that the Plaintiff would only consider the offer once the $100,000 had been produced. It said that the explanation that the Defendant had given in relation to the $100,000 was inconsistent with the Defendant's original statement that she had that amount of cash. The letter also sought an explanation of deductions from the Deceased's account during the time that he was in a nursing home. The Defendant did not respond to that letter.
19 On 2 November 2007, Ms Webber had a further conversation with the Defendant in which she asked, among other things, for an accounting for the $100,000 cash and for details of moneys spent by the Defendant on behalf of the Deceased over the last few years of his life. The Defendant accepts that she responded in the following terms:
"I feel like Old Mother Hubbard, I went to the cupboard and the cupboard was bare - there is no money".
20 In response to a question from Ms Webber, the Defendant went on to say that she thought she had the money, but that the Deceased had given it away. When asked to whom he had given it, the Defendant said and admitted in cross-examination that she said:
"I don't know, I don't want to say anything at this time."
21 During the telephone conversation on 2 November 2007, Ms Webber also says, in the context of the discussion about the $100,000, that the Defendant said:
"I'm still trying to find two folders of my father's which had bank statements in them. I have also lost my 2004 diary. There was a note from my father, which gave me all his money. This should have been in the Will."
22 The Defendant also confirmed in cross-examination that she said words to that effect. The note she says she was referring to was a note dated 23 January 2000 written by the Deceased which said:
"I, Henry James Stubberfield, do hereby authorise my daughter Robyn Brown to use at her distretion [sic] all of my pension and disability alance [sic] to look after me."
23 Ms Webber had a number of other conversations with the Defendant. In one the Defendant told Ms Webber that she suggested Ms Webber tell the Plaintiff that the Deceased gave the money to his grandchildren. In another, she said that she was still trying to reconcile the bank statements in order to account for money spent on the Deceased's behalf during the last few years of his life. When giving evidence, the Defendant said that she was half way through that process.
24 On 29 March 2008 Colin Daley Quinn wrote to the Defendant again. They said that no definite offer had been made to purchase the Plaintiff's share of the Peakhurst property and again asked about the $100,000. The letter enclosed a proposed Statement of Claim.
25 The Plaintiff finally commenced these proceedings on 28 October 2008. There was a mediation in September 2009. As a result of that mediation, the parties agreed to put the property up for auction. It was sold at auction on 28 November 2009 for $530,500. The net proceeds of sale are currently held in the estate's account. On 22 April 2010, Colin Daley Quinn wrote to Brydens, the solicitors acting for the Defendant, suggesting that there be an interim distribution from the estate. On 6 May 2010, Brydens asked for a formal proposal in relation to a partial distribution. On 7 May 2010, Colin Daley Quinn replied saying that, in view of the closeness of the hearing, they no longer pressed their request for agreement on an interim distribution.
Did the Defendant have $100,000 cash belonging to the Deceased?
26 It is clear that this question must be answered having regard to the principles in Briginshaw v Briginshaw (1938) 60 CLR 366. The Court must be satisfied (in the sense of feeling an actual persuasion) that the allegation is made out; and, in considering whether it is satisfied, it must bear in mind the gravity of the allegation. There can be no doubt that the allegation in this case is serious. It amounts to an allegation that the Defendant has misappropriated money belonging to the estate.
27 Applying that standard, I am satisfied that the Defendant did have $100,000 cash which belonged to the Deceased. That conclusion seems to me to be inescapable having regard to the conversations on 8 June 2005 and 10 April 2006 and the Defendant's later inconsistent and implausible attempts to explain away her earlier admissions.
28 The starting point is the conversation on 8 June 2005. I accept Mr Daley's and Mrs Webber's account of that conversation. Both were clear in their recollection. Neither has anything to gain from the evidence they gave. On the other hand, the Defendant gave inconsistent accounts not only of what happened at that meeting, but also inconsistent accounts about the existence of and what might have happened to the $100,000. I do not think any reliance can be placed on her denial that the Deceased referred to $100,000 cash at the meeting.
29 Mr Morahan, who appeared for the Defendant, suggested that little reliance could be placed on the Deceased's statements at the meeting on 8 June 2005. He pointed out that the Deceased was approximately 87 years old and had been very sick from at least 2000. The Deceased's only income was a pension of approximately $20,000 per year. It is unlikely that he had worked for a number of years and it was unlikely that he would have accumulated $100,000 in cash. Moreover, when the Deceased referred to $100,000 at the meeting he could have been intending to refer to the $100,000 that the Defendant had withdrawn from his account on his behalf during the 5 years after he left the Peakhurst property.
30 In my opinion, these points do not undermine the force of the evidence concerning the meeting on 8 June 2005. It is, of course, unusual for anyone to keep $100,000 cash at home. But it is not so unusual that I should not accept what he said at the meeting. It does not strike me as inconceivable that someone of that age and generation would, over a substantial number of years, accumulate that amount of cash and prefer to keep it at home rather than put it in a bank. Although the Deceased may have been physically frail, there is no evidence to suggest that he was not mentally alert at the meeting. His statements concerning the existence of the $100,000 as Mr Daley and Mrs Webber recalled them were clear. Even more importantly, the Defendant did not query the Deceased when he referred to the $100,000 cash in her presence. Rather, she said that she would see to her father's wish that the money be distributed equally between herself and the Plaintiff.
31 The conversation on 8 June 2005 also needs to be considered with the one that occurred at the meeting on 10 April 2006. It is not disputed that the Defendant referred to her having $100,000 in cash at that meeting. Everyone who gave evidence concerning that meeting, including the Defendant and her husband, can recall the Defendant referring to a substantial sum in cash. Everyone apart from the Defendant's husband, can recall that the amount referred to was $100,000. The only difference in the evidence given by the other three witnesses is that the Defendant says that she said that she thought that she had $100,000 in cash. She says that she did not actually say that she had it. If that was intended to be a qualification on the precise amount she had, I can understand it. However, if it was intended to be a qualification on whether she had any cash at all - as the Defendant now appears to suggest - I find it highly implausible. The Defendant would have known whether or not she was holding a substantial amount of cash belonging to her father at that time.
32 The conclusion that the Defendant held $100,000 cash belonging to the Deceased is reinforced by her later conduct in which she seeks to explain why she never had the $100,000 cash. One explanation she gave was that she was confused and that her references to $100,000 were references to $100,000 payable to her in connection with her motor vehicle accident. In my opinion, that explanation cannot be accepted. I cannot see how the Defendant could confuse the two amounts of money, particularly in the context in which the $100,000 was discussed.
33 The Defendant's evidence concerning the meeting with Ms Webber and Ms Alexander on 12 October 2007 is equally odd. In that meeting the Defendant asserted that the $100,000 in cash was expended on the Deceased during his lifetime. Again, however, the Defendant sought to qualify the statement she made by saying that what she said was that she thought the money had been spent in that way. How that qualification helps her is not clear. The Defendant says that immediately after the meeting on 12 October 2007, she went to the Bank to see whether she could find a deposit box containing the $100,000 to no avail. Her evidence that she did that makes no sense.
34 In the conversation on 2 November 2007 with Ms Weber, the Defendant came up with yet another explanation. In that conversation her explanation was that the Deceased had given the money away although the Defendant admits that she said she did not know to whom and did not want to say anything more at that time. Later still, she suggests that it may have been her children. In support of that version, the Defendant sought to attach to one of her affidavits statements from her children to the effect that the Deceased had given them money. I rejected that evidence but gave the Defendant leave to call oral evidence from each of her children on that issue. Despite that, none of her children gave evidence. The only conclusion that can be drawn from this is that the Deceased did not give the grandchildren $100,000 cash during his lifetime, and that the Defendant's suggestion that he did so is nonsense.
35 There are two other matters which are relevant in this context.
36 First, it seems to be clear that it was the Defendant who wanted the Deceased to change his Will, not the Deceased. For whatever reason, she thought that it was appropriate that her father's estate should go to her children. The Defendant suggests that the Deceased ultimately did not change his Will because he was advised by Mr Daley that he could not do so. I do not accept that Mr Daley gave that advice. It is possible that the Deceased told the Defendant that Mr Daly gave him that advice. However, if the Deceased did so, I think that that was simply a means employed by the Deceased of appeasing the Defendant.
37 Secondly, I think it is relevant that the Defendant and her husband were facing serious financial difficulties at the time because of the difficulties with their business.
38 These two matters, of course, fall a long way short of establishing that the Defendant had $100,000 cash belonging to the Deceased for which she has not accounted. However, they help to explain why the Defendant might have kept the $100,000 for herself and why she thought she might have had some entitlement to do so. To that extent, I think they support the conclusion that the Defendant did have $100,000 in cash belonging to the Deceased.
39 There is one final point on this aspect of the case which I should mention. Mr Morahan submitted that it was not specifically put to the Defendant that she had used the $100,000 for her own purposes or that she now holds the $100,000 and that, in those circumstances, the Plaintiff was not entitled to make those assertions now: see Browne v Dunne (1893) 6 R 67. I do not think there is any merit in that submission. The Defendant was clearly on notice that it was the Plaintiff's case that she had in her possession $100,000 for which she must account to the estate. Whether she has it now or whether she has spent it does not matter for that case. Nor does the fact that she was not asked those specific questions.
40 The order sought by the Plaintiff in respect of the $100,000 was a declaration that the sum of $100,000 is owed by the Defendant to the estate of the Deceased. In the circumstances of this case, I think that that is an appropriate order to make. Normally, the Defendant would be liable to pay the estate $100,000 in an action for money had and received. However, in circumstances where the estate has not been distributed and where it is possible to make adjustments to the distributions to allow for the fact that the Defendant has $100,000 belonging to the estate, I think it is sensible simply to make the declarations sought by the Plaintiff.
Should the Defendant be removed as an executor of the estate?
41 This question is to be answered by asking whether:
"… the due and proper administration of [the] estate [has] either been put in jeopardy or [has] been prevented either by reasons of acts or omissions on the part of the executor or by virtue of matters personal to [her], for example, mental infirmity, ill health, or by virtue of the proof of other matters which established that the executor [is] not a fit and proper person to carry out the duties [she has] sworn to perform": see Mavrideros v Mack (1998) 45 NSWLR 80 at 108 per Sheller JA.