The Estate of the Late Akos Balazs Melegh [2016] NSWSC 249

Supreme Court of NSW|2016-02-17|Before: Slattery J

Judgment

Akos Balazs Melegh was born in Hungary on 22 May 1975. He died suddenly on 9 September 2013 at the age of 38 in a motorcycle accident in the Sydney suburb of Bellevue Hill.
The deceased's pillion passenger, Ms Brigitta Plosz was also seriously injured and hospitalised as a result of the accident. Ms Plosz is now prosecuting a claim for personal injuries she sustained in the accident (on which action there is now an admission of liability) and a compensation to relatives claim arising from the deceased's death, based upon her contention that she and the deceased were in a de facto relationship at the time of his death.
The deceased was a Hospitality manager and operated a business called Fresh Catering. He left behind a relatively modest estate with a probable estimated value of $38,862.64. But there was some uncertainty about the extent of that estate. His death triggered the trustee of a Host-Plus Superannuation Fund to propose the distribution of $11,408.00 in superannuation entitlements and an additional death benefit of $230,644.00.
The present litigation has settled. The Court made orders finally resolving it on 17 February 2016. This judgment is now published to give reasons for those orders. But first an overview of the components of the litigation is required.

Overview of the Issues in the Proceedings

Relationships in the Bondi Apartment - mid 2011 to mid 2013

In the nine years prior to his death, the deceased resided in a shared living arrangement at the Bondi apartment. From around January 2011 Ms Plosz and the deceased lived together for periods. They occupied the main bedroom when Ms Katalin D'Arney (then Katalin Borberly) moved into the second bedroom of the apartment in about April 2011.
But Ms Plosz moved out about June 2011 and began living with other people, although she continued to use the Bondi flat as her mailing address. There is some evidence that the deceased formed a close personal relationship with another woman after Ms Plosz moved out. Following Ms Plosz's departure, Ms Papp moved into the second bedroom and Ms D'Arney moved into the space converted into a third bedroom.
Before the deceased's death Mr Major would come to the Bondi apartment from time to time, to visit the deceased or to pick up business documents from him. Mr Major assisted the deceased from time to time as an informal business adviser to make investments and to set up a self-managed superannuation fund.
On 22 June 2013 Ms D'Arney moved out of the Bondi flat to live elsewhere. Within a few days of her departure, the evidence suggest that Ms Plosz moved back into the apartment. The evidence is contradictory as to whether Ms Plosz moved back into the deceased's bedroom in the apartment in late June 2013. She says she did after a period. Other evidence suggests that Ms Plosz and the deceased slept in separate rooms but continued to have a casual sexual relationship.
But Ms Plosz claims in her evidence that the deceased proposed marriage to her on 13 July 2013, and that she accepted the proposal. She also claims that he gave her a bundle of documents, one of which turned out to include the July 2013 will.

Events Shortly after the Death of the Deceased - September 2013 to November

Immediately following the death of the deceased on 9 September 2013, as the plaintiffs were still in Hungary, Ms D'Arney and Ms Papp took responsibility for liaising with the Coroner's office and the deceased's family in relation to his funeral, the disposal of some of his personal possessions, and his remaining personal affairs. But Mr Major claims to have paid for the funeral. And Messrs Boskovitz actually authorised the sale of the deceased's possessions, for which they have now accounted.
In the course of this work Ms D'Arney proposed contacting Mr Major, as she understood that he had knowledge of the deceased's financial affairs. Ms Papp contacted Mr Major and a meeting with him was organised. Exactly what happened at these meetings has not been fully tested but in part based upon Ms Plosz and Mr Major's evidence and contemporaneous documents is alleged to be the following.
Their first meeting was held at the Bondi flat. Ms D'Arney, Ms D'Arney's fiancé, Mr Major, Mr Major's wife and Ms Papp were all present. Mr Major allegedly asked the others at this meeting whether the deceased had made a will, and stated to them (wrongly representing the legal position) that "if there was no will the Australian Government would get everything".
Following this meeting, Mr Major contacted Ms D'Arney, claiming he represented the deceased. On 17 September 2013 Ms D'Arney and Mr Major had a second meeting, this time at her apartment. During this meeting they telephoned the deceased's sister, Csilla Melegh. To Ms D'Arney's surprise, in the course of this second meeting Mr Major claimed that he had located a will of the deceased: this was the May 2013 will.
On 18 September 2013 Mr Major emailed Ms D'Arney to arrange a meeting at Boskovitz & Associates later that day, to discuss the May 2013 will. At the meeting Ms D'Arney says that she first saw the purported May 2013 will. She immediately contested its legitimacy. She disputed that it was in the deceased's handwriting. Mr Major became annoyed at this allegation.
The May 2013 will was a printed will form completed allegedly in the deceased's handwriting. It named Gabor Boskovitz and Anthony Boskovitz as executors of the estate and gave 75 per cent of the residue to Csilla Melegh and the other 25 per cent to Mr Major. The May 2013 will recorded that it had been witnessed by Mr Major and a Mr Elfriede Lamprom.
On 25 November 2013 Mr Major produced the July 2013 will to the solicitors, Messrs Stacks Goudkamp. The July 2013 will was also handwritten on a printed will form, allegedly in the deceased's handwriting. The July 2013 will also appointed Messrs Boskovitz as the executors of the estate. But this will, which recorded that it was witnessed by Mr Major and a neighbour of Mr Major, a Mr Ashley Rake, named Ms Plosz as the deceased's sole beneficiary. Thus, both the May 2013 will and the July 2013 will emerged from Mr Major's possession, although he and Ms Plosz have given an explanation as to how they came by them.

Early Administration of the Estate - November 2013 to August 2014

As earlier indicated in these reasons Messrs Boskovitz began taking steps to administer the deceased's estate about 4 November 2013. This mostly involved collecting and selling the deceased's personal property.
Ms Plosz's evidence filed in 2015 raises questions about the extent of this personal property. She alleges that the deceased had a collection of gold bars, cash, jewellery and exotic liquors. But the existence of these assets has not been confirmed by anyone else. Whether any further steps should be taken to pursue these assets will be a matter for the estate's administrators.
On 12 November 2013 Messrs Boskovitz filed their Summons for probate of the May 2013 will. On 20 November 2013 the Supreme Court required an affidavit of the attesting witnesses to the May 2013 will. On 25 November 2013 Ms Plosz said she found the July 2013 will. The same day Mr Boskovitz informed Mr Kristofferson of the existence of the May 2013 will.
After discussing its finding with Mr Major, the July 2013 will was taken to Mr Chipchase at Messrs Stacks Goudkamp. On 26 November 2013 Messrs Stacks Goudkamp sent the July 2013 will to Messrs Boskovitz.
On 12 December 2013 the first and second defendants filed a Summons for probate of the July 2013 will. Mr Kristofferson wrote to Messrs Stacks Goudkamp and Messrs Boskovitz on 24 December 2013, suggesting that a forensic handwriting report be obtained in light of the recent finding of the July 2013 will. On 20 December 2013 the plaintiffs lodged their first caveat against any grant of probate of a will to the first and second defendants. Under the rules of Court this caveat was effective for a period of only 6 months.
On 30 June 2014 Mr Kristofferson, acting on behalf of the plaintiffs, lodged a further caveat against the grant of probate claimed by Messrs Boskovitz pending a court determination as to the validity of the July 2013 will.

The Two Wills are Challenged in Expert Evidence

The plaintiffs engaged expert handwriting evidence, in order to test the authenticity of the May 2013 will and the July 2013 will. The evidence was obtained from a well-known Australian forensic document examiner, Ms Michelle Novotny of Forensic Document Services Proprietary Limited. Her report dated 16 July 2015 contains findings that justify the Court in disregarding either of these purported testamentary instruments as potential wills of the deceased. This evidence justifies the Court granting letters of administration to the plaintiffs on the basis that the deceased died intestate.
Ms Novotny made the following relevant findings. She had available to her not only the two purported signatures of the deceased on the May and July 2013 wills but about 20 other specimen signatures of the deceased. She was able to use most of the specimen signatures to compare and contrast them with the questioned signatures on the wills. As a result of her professional work, and subject to various limitations that she identified, she concluded: (1) that her observations were supportive of the proposition that the signatures on the wills were written by a person other than the deceased and were written in an attempt to simulate the style of the deceased's signatures, and although the possibility that the deceased was responsible for the signatures that appear in his name could not be excluded, that conclusion was unlikely; (2) that no conclusion could be expressed as to whether either of the signatures on the wills were written by Ms Plosz on the basis of the specimen signatures provided by her; (3) that her observations provide evidence supportive of a proposition that the questioned signatures in the deceased's name on the wills were written by another person, whose specimen signatures were provided to Ms Novotny; and that (4) as to the other handwriting on the wills, apart from the signatures in the deceased name, it is highly unlikely that this handwriting was written by the deceased or Ms Plosz but it is likely that it was written by other persons.
Ms Novotny's evidence raises the probability that the deceased's signatures on the May 2013 will and the July 2013 will were forgeries. Further investigation would need to take place before that conclusion could be reached with greater certainty. But her evidence is quite sufficient, in my view, for these two wills to be dismissed as testamentary instruments of deceased. No one has discharged the onus of removing the suspicion that attends these two documents by proving affirmatively by clear and satisfactory proof that the deceased knew and approved their contents: Nock v Austin (1918) 25 CLR 519; [1918] HCA 73 per Isaacs J at 528. Indeed no one now seeks to propound either will to the Court.
Ms Novotny's evidence also raises the possibility that a criminal offence may been committed in relation to the creation and subsequent use of the May 2013 will and the July 2013 will. That it is not a matter that this Court is charged with investigating. But it is a matter which potentially involves the breach of the criminal law. It is a criminal offence to make a false document with the intention that the person who so made it or another person will use it to induce someone to accept the document as genuine, and because of the document being accepted as genuine, to obtain any property or financial advantage: Crimes Act 1900, s 253.
The Court has decided that this part of the Court's judgment should be referred to the Attorney General for New South Wales as the first law officer of the Crown in this State, so that she can take such course in relation to the matter as she sees fit, including referring it on to criminal investigation authorities. These reasons have not named the person or persons who Ms Novotny has identified as possibly being responsible for the handwriting purporting to be the handwriting of the deceased. If and when further investigations take place, any person allegedly involved may have an adequate explanation for the way the May and July 2013 wills appear. So, all these reasons have done is to identify the persons who appear to be excluded from responsibility for the production of the deceased's signature.

Appointing an Administrator

The proceedings settled. Evidence to support the appointment of an administrator and that the estate should be administered on the basis of an intestacy was adduced on 15 and 17 February 2016. Neither the May 2013 will nor the July 2013 will were ultimately proposed by Messrs Boskovitz as valid testamentary instruments of the deceased. The estate can be administered, subject to the terms of the settlement, for the benefit of the plaintiffs, who are entitled to the whole of the estate on an intestacy.
The Court appointed an administrator within the jurisdiction and not the plaintiffs who are resident in Hungary. The Court always prefers the appointment of an administrator within the jurisdiction who is accountable to the Court: In the Goods of Cholwill (1866) LR1P&D 192 and In the Estate of Kruttschmitt (Deceased) (1942) 42 SR (NSW) 79.
Mr Kristofferson informed the Court in his oral evidence that the second plaintiff, Csilla Melegh had made contact in the jurisdiction with Katalin D'Arney, the friend who had lived for a period in the deceased's household and requested Ms D'Arney to act as administrator and ascertained that Ms D'Arney was prepared to do so. Mr Kristofferson was able to vouch for her suitability as an administrator, saying in his evidence, which I accept, that: he had had a number of conversations with her over several years in a professional context; that she conducts an accounting practice in Alexandria; and would from his dealing with her in his opinion be a fit and proper person to be an administrator of the estate, were the Court to appoint her. She has consented in writing to her appointment as administrator.
On the basis of that evidence the Court is satisfied that she is a fit and proper person to be appointed and that she can be appointed. The Court joined her as the third plaintiff and will appoint her as administrator of the deceased's estate, subject to proof of one matter.
The evidence at the hearing that the plaintiffs are related to the deceased was deficient. There was no birth certificate filed in the proceedings, showing the first plaintiff's relationship with the deceased as his father. The Court took a view that orders granting letters of administration to Katalin D'Arney should therefore be stayed, until the deceased's birth certificate was supplied. The stay was in place until the birth certificate was provided.
Mr Kristofferson provided an affidavit to the Court dated 24 February 2015 annexing the deceased's birth certificate, which shows the first plaintiff as his father. I am satisfied on this evidence of the relationship. The Court will lift the stay. The orders below record the orders as made on 22 February 2016. But the order lifting the stay provided for by Order 14 of the 22 February orders, was made today, 17 March 2016.

Approval of Ms Plosz's Release under Succession Act, s 95

The terms of settlement contain in paragraph 7 a release of Ms Plosz's rights against the estate. She seeks approval of the release under Succession Act, Part 3.2, s 95. That provision is as follows: "95 Release of rights under Chapter (1) A release by a person of the person's rights to apply for a family provision order has effect only if it has been approved by the Court and to the extent that the approval has not been revoked by the Court. (2) Proceedings for the approval by the Court of a release of a person's rights to apply for a family provision order may be commenced before or after the date of the death of the person whose estate may be the subject of the order. (3) The Court may approve of a release in relation to the whole or any part of the estate or notional estate of a person. (4) In determining an application for approval of a release, the Court is to take into account all the circumstances of the case, including whether: (a) it is or was, at the time any agreement to make the release was made, to the advantage, financially or otherwise, of the releasing party to make the release, and (b) it is or was, at that time, prudent for the releasing party to make the release, and (c) the provisions of any agreement to make the release are or were, at that time, fair and reasonable, and (d) the releasing party has taken independent advice in relation to the release and, if so, has given due consideration to that advice. (5) In this section: "release of rights to apply for a family provision order" means a release of such rights, if any, as a person has to apply for a family provision order, and includes a reference to: (a) an instrument executed by the person that would be effective as a release of those rights if approved by the Court under this section, and (b) an agreement to execute such an instrument."
Mr O'Sullivan advanced evidence and submissions to support the granting of its approval to the release under Succession Act, s 95. The agreement to be approved between the plaintiffs/first and second cross defendants and the third defendant/first cross claimant is set out in paragraph 7 of the orders and notations made below and includes the exchange of various promises, one of which is a release. In substance, those orders provide: that the third defendant/first cross claimant will discontinue the first cross claim; that within 28 days of the grant of letters of administration, the plaintiffs will pay $10,000 from the estate of the deceased to the third defendant; the third defendant will release the estate from further claims and mutual releases are given by the plaintiffs; no costs orders are made and no cross cost recovery will occur between the parties; but, the third defendant/first cross claimant does not release her personal injuries claims, or claims to compensation under Compensation of Relatives Act 1897.
The Court will approve the release. The Court is required to take into account all the circumstances of the case: s 95(4). The Court has accordingly allowed all the evidence to be read in the proceedings relevant to the release and has considered it. Section 95(4) identifies a number of more specific mandatory considerations, with which these reasons now deal. These were the subject of Mr O'Sullivan's submissions.
Ms Plosz clearly receives some benefit for the release. The $10,000 she receives in part exchange for her release is considerably less than her best possible outcome in the proceedings. But the evidence already before the Court shows that that her claim to be the deceased's de facto wife is highly contestable. Mr O'Sullivan gave Ms Plosz advice as counsel about the release. He has indicated to the Court that he has advised Ms Plosz that it is in her interest to sign the deed including the release. Mr O'Sullivan was acting on a direct access basis. The Court does not require him to file evidence about the advice that he gave to his client. His statements to that effect from the Bar table were sufficient.
I am satisfied that Ms Plosz has been adequately advised and that the release is prudent in the circumstances. The release is also fair and reasonable. Were Ms Plosz to lose these proceedings she would be exposed to a substantial claim for costs, a risk that the settlement will avoid. I am also satisfied that she has taken independent advice in relation to the release. Moreover, it is clear from what Mr O'Sullivan has said that she has given due consideration to that advice. In the circumstances the release is approved.

The Claims of the First and Second Defendants

Messrs Boskovitz appeared in the proceedings represented by the second defendant, Mr Anthony Boskovitz. He made clear at the hearing that in light of Ms Novotny's report, neither the first nor the second defendants wished to propound either the May 2013 or July 2013 wills. But the second defendant sought to file a short affidavit listing some of the work which the first and second defendants had undertaken on behalf of the estate, including collecting items of property and selling them, all apparently on behalf of the administrator Katalin D'Arney. The affidavit they filed gave a short account of the monies that the first and second defendants had collected for the estate and the estate liabilities that they met. The income from their sales of estate assets was all expended in meeting the estate's liabilities. The first and second defendants say they acted in the administration of the estate in good faith on the basis that the July 2013 will was the deceased's last will. The first and second defendants claimed that despite having incurred substantial legal costs acting on behalf of the estate that they would nevertheless only claim a small commission against the estate. They sought to resolve the estate's liability for that commission by negotiation on 17 February 2016.
But in the end Messrs Boskovitz's claim was not able to be resolved against the estate on 17 February, despite the discussions taking place outside the Court room during the hearing. This was in part because Ms D'Arney had not yet been appointed administrator and there was no one with authority to act on behalf of the estate to settle with Messrs Boskovitz.

Costs of the Administration of the Estate

The Court directed Mr Kristofferson to provide an estimate at this stage of the likely distribution from the estate to the deceased's father and sister in Hungary, after the deduction of legal costs already incurred. The figures show the practical wisdom in the executors and their legal advisors now quickly wrapping up the administration of this small estate.
In this estate, avoidable further litigation should be avoided. The gross sum of the estate now available for distribution is $214,000. Costs and disbursements arising from the disputed wills, including solicitors' costs, counsel's fees, handwriting experts' fees and other disbursements amount to $106,000. Other costs and disbursements in the estate's administration including solicitors cost and counsel's fees sum to a further $27,200. Thus, the amount available for distribution is presently $80,800, less the amount of $10,000 payable to Ms Plosz under the settlement agreement, leaving a net distributable amount of $70,800.
It may be that when the legal practitioner's fees are assessed they come out at a sum smaller than this. But if they do not, the deceased's father and sister may well end up with very little out of this estate, unless decisions to contain costs are made immediately.
Limiting legal costs considerations should be important to all parties to these proceedings. It is a matter of considerable concern to the Court in this case that costs do not increase. With good management it should be possible for the deceased's father and sister to receive not much less from the estate than these figures presently indicate they are likely to receive.
To this end of containing costs, if the parties wish to resolve any remaining disputes utilizing Court annexed mediation, especially any in relation to the outstanding claims of Messrs Boskovitz, then the Court is prepared to make such an order, provided those disputes are properly defined. Liberty to apply has been granted in the Court's orders, which will allow the parties to approach my Associate for a mediation order, if required.

Conclusions and Orders

Accordingly the Court makes the following orders and directions: THE COURT ORDERS 1. That Katalin D'Arney of 20/57-63 Belmore Road Randwick New South Wales, accountant be joined as a plaintiff in these proceedings. 2. That letters of administration of the intestate estate of Akos Balazs Melegh late of Bondi, Hospitality Worker be granted to Katalin D'Arney of 20/57-63 Belmore Road Randwick New South Wales, accountant. 3. That Akos Geza Melegh, the father of the intestate is entitled to the whole of the intestate estate pursuant to Succession Act 2006 s128, there being only one surviving parent of the deceased. 4. That the proceedings be remitted to the Registrar to complete the grant. 5. The Plaintiffs'/First and Second Cross Defendants' costs of the proceedings (including costs in proceedings 2014/202344) be payable from the estate of Akos Balazs Melegh on an indemnity basis. THE COURT NOTES 1. That the Plaintiffs have proved the knowledge of First and Second Defendant of the order for administration being sought in these proceedings and that the First and Second Defendants do not seek to propound any document purporting to be a will of the deceased. 2. The agreement between the Plaintiffs/First and Second Cross Defendants and the Third Defendant / First Cross Claimant that: 1. With the consent of the Plaintiffs/First and Second Cross Defendants, the Third Defendant/First Cross Claimant may and shall, pursuant to Uniform Civil Procedure Rules, Pt 12 r 12.1 file a Notice of Discontinuance in respect of all claims for relief in the the First Cross Claim filed 17 February 2015 (as amended on 24 March 2015 and further amended on 21 December 2015), forthwith. 2. The Plaintiffs shall, within 28 days after the later of the: 1. date of the grant of letters of administration in respect of the intestate estate of Akos Balazs Melegh to the First Plaintiff; or, 2. date of payment by the Fourth Defendant of the superannuation and death benefit monies held by it in respect of the Estate of the late Akos Balazs Melegh (or part of such moneys exceeding Ten Thousand Dollars ($10,000.00) to the Plaintiffs (or any of them), pay to the Third Defendant (or as she may direct by notice in writing the Plaintiffs' solicitor) an amount of Ten Thousand Dollars ($10,000.00). 1. The Third Defendant/First Cross Claimant irrevocably consents to the Orders 1 to 5 above. 2. Subject to sub-pagragraph (g), the Third Defendant/First Cross Claimant hereby withdraws all previous claims and irrevokably agrees to make no further claim in respect of the estate of the late Akos Balazs Melegh and the superannuation and death benefit moneys in respect of Akos Balazs Melegh deceased held or payable by the Fourth Defendant or by Melegh Investment Holdings Pty Limited. The Third Defendant/First Cross Claimant hereby consents to and encourages the Fourth Defendant and Melegh Investment Holdings Pty Limited to pay all superannuation and death benefit moneys in respect of Akos Balazs Melegh to the First Plaintiff. 3. Subject to sub-paragraph (g), upon the making of the payment referred to in paragraph (b) above, the Plaintiffs and the Third Defendant are each released by the other from all claims they may have arising out of the subject matter of the Plaintiffs' claim and or the First Cross Claim. 4. There be no order as to costs as between the Plaintiffs/First and Second Cross Defendants and the Third Defendant/First Cross Claimant with the intent that: 1. the Plaintiffs/First and Second Cross Defendants and the Third Defendant/First Cross Claimant shall not seek to recover nor be entitled to recover costs of the Plaintiffs claim or the First Cross Claim from each other; and 2. Subject to (i) above, parties to the proceedings shall not be prevented from seeking such orders for costs as they consider fit. 1. The Third Defendant/Cross-Claimant's covenants in sub-paragraph (d) and (e) do not include the Third Defendant's/Cross Claimant's rights in the nature of those referred to in her claims for personal injuries and claim for compensation pursuant to Compensation to Relatives Act 1897 (NSW) in the District Court of New South Wales. THE COURT DIRECTS 1. The Court approves the release of the Third Defendant/First Cross Claimant's rights under Succession Act, Part 3.2 effected under sub-paragraph 7(d) and (e) above. 2. That notice of these orders be given by the Plaintiffs to the First, Second and Fourth Defendants. 3. That any party seeking any order for costs in relation to these proceedings is to give notice of the order or orders sought and together with a short statement of the grounds relied upon to any other party (by email) who would be affected by such an order or orders and to my associate (also by email) within 28 days after publication of the Court's reasons for the making of these orders. 4. The Plaintiffs, in consultation with any party having given notice under Direction 10 above may approach my associate for the listing of the proceedings for further mention on a date to be fixed. 5. Any party who does not seek or would not be affected by an order sought pursuant to Direction 10 above is excused from attending on the date fixed under Direction 11 above. 6. All parties have liberty to apply on 3 days' notice. 7. Stay Orders 2 and 4 until further order. 8. Order the Plaintiff to file in Court (by sending to my Associate) evidence of the Hungarian birth certificate of the deceased, together with an affidavit annexing an English translation by 5pm on Wednesday 24 February 2016. 9. The Court notes that the Third Defendant/First Cross-Claimant is excused from further attendance.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 March 2016

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