Taylor v Saal; Saal v Taylor

Legislation Cited: Succession Act 2006 (NSW), s 58

Category: Principal judgment

Parties: Sandra Rae Taylor (Plaintiff in 2024/00385197; Defendant in 2025/00015910)
Graeme John Saal (Defendant in 2024/00385197; Plaintiff in 2025/00015910)

Representation: Counsel:
K Doherty (Plaintiff in 2024/00385197; Defendant in 2025/00015910)
A Cornish (Defendant in 2024/00385197; Plaintiff in 2025/00015910)
Solicitors:
Hosie & Partners Solicitors (Plaintiff in 2024/00385197; Defendant in 2025/00015910)
David Hunter Law (Defendant in 2024/00385197; Plaintiff in 2025/00015910)

File Number(s): 2024/00385197; 2025/00015910

Publication restriction: Nil.

EX-TEMPORE JUDGMENT (REVISED)

1. I have listed before me today two matters arising out of a probate dispute.

2. The first matter is proceedings number 2024/385197, filed in the Common Law Division (the Common Law proceedings) by Mrs Taylor seeking possession of the real property which is the substantial asset in the estate of Mrs Taylor’s late mother of which she is the executrix.

3. The defendant, Mr Saal, who lives in the property, is her brother. He too was named as an executor and trustee in the will but, without making any judgment about the merits, it is the plaintiff’s case that he was a non-active executor and did not cooperate with her attempts to obtain probate and administer the estate with all due celerity as the circumstances called for. Moreover, he declined to move out of the premises, which is his home and his mother’s former home, to enable the estate to be properly administered after Mrs Taylor was able to obtain probate in her own right.

4. I should say that, without being judgmental, the estate is fairly modest. It seems that the valuation of the home at the time of the death of the parties’ mother was around $660,000. The home is in the Northern Rivers region of New South Wales and substantial fees have built up, including very substantial legal fees necessarily incurred as Mrs Taylor’s legal representative would say, in order to overcome what they would probably categorise as Mr Saal’s intransigence.

5. There is also a question of what is referred to as missing funds by Mrs Taylor and a loan by Mr Saal, although the differences between them as to the amount of money utilised from their mother’s assets by Mr Saal is vastly different.

6. Mrs Taylor’s calculations, or the calculations of those acting for her, puts the amount of “the loan” at $249,602.60. Mr Saal apparently at some time “conceded” $83,591.

7. On Mrs Taylor’s calculations, if the property was sold, by the time one adds back perhaps the costs of marketing the property and real estate agents’ commission, legal fees and the like in relation to the sale, nothing might be produced from the net proceeds of sale.

8. I may have misunderstood the figures but the amount to be produced from a sale would be modest having regard to what is said to be the shortfall on the figures I have been provided with by Ms Doherty of counsel, who appears for Mrs Taylor.

9. In any event, I am perhaps getting ahead of myself because in the proceedings in the Common Law Division, Mrs Taylor was able to obtain default judgment for possession and a writ of possession has lawfully been issued. The Sheriff has given notice to Mr Saal to vacate, fixing a date and time for the eviction of 4 April 2025 at 10 am and I have before me today in the Common Law Duty List an application for a stay of that writ of possession, which is opposed by Mrs Taylor.

10. This brings me to the second matter in today’s list which is for mention, which is proceedings number 2025/00015910 in the Equity Division (the Equity proceedings) being proceedings pursuant to s 58 of the Succession Act 2006 (NSW) for a family provision payment to Mr Saal. Mrs Taylor as executrix is the defendant.

11. A number of things should be said about that matter, the first of them being, as Ms Doherty has pointed out to me, that the family provision application filed in the Equity proceedings is well and truly out of time, which expired on 9 May 2023, nearly two years ago. In that matter, the Registrar in Probate has made what I understand to be standard directions including a direction for mediation. The parties are required to report back in relation to mediation and file additional evidence, if the mediation is unsuccessful, as I understand it by 27 May 2025. The matter is in for directions before the Registrar on 29 May 2025.

12. Ms Doherty has also made the pertinent point that Mrs Taylor, through her solicitors, has been attempting to arrange a mediation since at least 9 May 2023. I should interpolate that Mrs Taylor’s and Mr Saal’s mother passed away on 9 May 2022.

13. Ms Doherty says that the evidence that she wishes to read and rely upon in opposition to the stay of the Common Law proceedings indicates there have been at least three attempts by solicitors acting on behalf of Mrs Taylor to arrange a mediation, none of which have been responded to by Mr Saal or the solicitors previously acting on his behalf from time to time. At this stage, the prospect of any meaningful mediation taking place, she is instructed, is bleak.

14. I should interpolate, as the transcript will show, Mr Cornish of counsel applied for an adjournment of the hearing of this application to 3 April 2025 because Ms Taylor’s affidavit in opposition was only filed yesterday and it contains an exhibit of some 300 pages which Mr Cornish’s instructing solicitor has not received according to what he has told me from the bar table (which I have no reason to question). I declined the application for an adjournment mainly because, looking at the amount of legal costs already generated in respect of this relatively small estate, I am reluctant to generate more costs.

15. It does seem to me on the whole of the evidence that Mrs Taylor has been attempting to finalise this matter, as I have said, with due celerity, and that is only appropriate. It also seems, although I accept Mr Cornish has not had the opportunity to review all the material, there is cause for concern about - I will simply put it this way for the time being - Mr Saal’s access to his mother’s funds during the period that he resided with her prior to her death.

16. None of those issues can be resolved today, nor could they be resolved on 3 April 2025 should the matter go over to hear the motion for a stay at that time. An application for a stay is not the time to hear and determine any claim that the estate might have against Mr Saal for the recoupment of funds loaned or otherwise used by him. I note that there are no proceedings on foot in respect of those matters.

17. It seems to me that mediation still has something to offer. I accept, as Ms Doherty points out, that Mr Saal is a man in his 60s. Although apparently professionally qualified as a civil engineer, he has not worked for some years in excess of a decade, and it seems very unlikely that he would have any prospect of raising the funds to payout Mrs Taylor’s interest as a beneficiary under her mother’s will, leaving aside the resolution of the other financial questions to which I have referred. However, there may well be other matters that can be resolved at mediation which may smooth the path of Mrs Taylor, wearing her executrix hat, towards the finalisation of the administration of the estate.

18. While all of this is late in the piece and the plaintiff cannot be criticised, I am of the view that the interests of justice favour an attempt at mediation rather more than the strict enforcement of legal rights at this time. Taking this into account, I acknowledge there is a judgment of the Court which should, in the public interest, be enforced. On the other hand, we are talking about a delay of about two months in a matter which has taken about three years to get to its present position, and I am of the view as I have said that I should make an order for a stay.

19. There is a dispute about costs of the motion which I have determined in favour of Mr Saal, the moving party.

20. Ms Doherty applies for costs invoking, as I understand it, by necessary implication, the indulgence rule. Mr Cornish opposes an order for costs. He points out that costs normally follow the event, his client has been successful and, in any event, costs can be worked through with the other issues at the mediation when held.

21. I am rather of the view that the plaintiff in the Common Law proceedings is entitled to an order for costs. Although in accordance with the rules, it will not be enforceable until the completion of the matter.

22. I have come to that conclusion because there is a very substantial indulgence involved in granting this stay at this very late period, bearing in mind that the stay is virtually sought in aid of the family provision claim in the Equity proceedings which itself, as I have indicated, is well out of time.

23. To my mind, the interests of justice do favour an order for costs in the plaintiff’s favour.

24. In matter number 2024/385197, I make the following orders:

25. The writ of possession issued herein for execution on 4 April 2025 at 10 am is stayed until further order of the court.

26. List the matter with proceedings number 2025/15910 before the Registrar in Probate on 29 May 2025 to the intent that the plaintiff in the Common Law proceedings, being the defendant in the Equity proceedings, may, if appropriate, apply to have the matter referred to a Judge to apply for the dissolution of the stay in the Common Law matter.

27. Direct the plaintiff’s solicitor to inform the NSW Sheriff’s Office Enforcement Operations Centre of these orders by close of business today.

28. The defendant is to pay the plaintiff’s costs of the motion filed in court on 27 March 2025.

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