Ahmad v Ahmad

[2002] NSWSC 579

CITATION:	Ahmad v Ahmad [2002] NSWSC 579
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 1854/01
HEARING DATE(S):	27, 28 May 2002
JUDGMENT DATE:	28 June 2002
PARTIES :	Samia Ahmad (Plaintiff) Hamide Mohamad Ali Ahmad (also known as Hamide Dik) (First Defendant) Salima Mohamad Ali Ahmad (Second Defendant) Badrieh Mohamad Ali Ahmad (Third Defendant)
JUDGMENT OF:	Master McLaughlin

COUNSEL :	J.R. Wilson (for Plaintiff) A.K. Ottesen (for Defendant)
SOLICITORS:	Walker Taylor Edwards & Smith, Solicitors (Plaintiff) Champion Legal, Solicitors (First, Second Defendants) Sid Hawach & Associates, Solicitors (Third Defendant)
CATCHWORDS:	Succession - Family Provision - Claim by adult niece - Proceedings out of time - Applicant must place before the Court as fully and as frankly as possible details of her financial and material circumstances - Applicant swore an affidavit containing false information concerning those circumstances with deliberate intention of misleading the Court and the Defendants - Applicant sought and obtained by consent interlocutory injunctive relief upon the basis of that deliberately false and misleading evidence - That false and misleading evidence is not determinative of the applicant's claim - Whether applicant has been left without adequate provision for her proper maintenance - Competing claims of beneficiaries.
LEGISLATION CITED:	Family Provision Act 1982
CASES CITED:	Re Will of Gilbert (1946) 46 SR (NSW) 318 Singer v Berghouse (1994) 181 CLR 201
DECISION:	(1). I order that the summons be dismissed; (2). I order that the Plaintiff pay the costs of the Defendants, such costs to be on the indemnity basis; (3). I order that the injunctions set forth in paragraphs 1, 2 and 3 in Short Minutes of Order dated 21 August 2001 be dissolved; (4). I direct that the Registrar refer the papers in this matter to the Director of Public Prosecutions; (5). I direct that the exhibits remain in Court.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Friday, 28 June 2002

1854/01 SAMIA AHMAD -V- HAMIDE MOHAMAD ALI AHMAD (also knows as HAMIDE DIK) AND ORS

JUDGMENT

1 MASTER: These are proceedings under the Family Provision Act 1982.

2 By summons filed on 20 March 2001 the Plaintiff, Samia Ahmad, claims substantively an order for provision for her education, maintenance and advancement in life out of the estate and/or notional estate of the late Khodr Mohamad Ali Ahmad (to whom I shall refer as “the Deceased”).

3 Subsequently, on 24 May 2001, the Plaintiff filed an amended summons, by which, in addition to the relief sought in the summons, the Plaintiff sought an order pursuant to section 24 of the Family Provision Act relating to notional estate of the Deceased.

4 The Deceased died on 21 February 1998, aged about seventy-two. He left a will dated 3 December 1992, probate whereof was on 28 April 1998 granted to Hamide Mohamad Ali Ahmad (also known as Hamide Dik), who is the First Defendant to the present proceedings.

5 The Deceased, who had been married and divorced, had no children. He was survived by three sisters. He had also had one other sister and a brother, each of whom is now deceased.

6 By his will the Deceased appointed his sister Hamide Mohamad Ali Ahmad (also known as Hamide Dik), as executor, and gave his entire estate equally between his other two sisters, Salima Mohamad Ali Ahmad and Badrieh Mohamad Ali Ahmad (who are respectively the Second and Third Defendants to the present proceedings).

7 The Plaintiff is the daughter of the First Defendant, and in consequence is the niece of the Deceased (and also is the niece of each of the Second and Third Defendants).

8 The inventory of property discloses that the estate had an estimated value of almost $740,000. The substantial assets in the estate were a house property situate at and known as 219 Woodville Road, Merrylands (to which, in the inventory of property, an estimated value of $200,000 was attributed, but which has a present estimated value of $390,000 - $400,000) and a house property situate at and known as 47 Gladstone Street, North Parramatta (to which an estimated value of $520,000 was attributed). The only other significant assets were moneys standing in a bank account ($16,380) and a 1987 Toyota motor vehicle (to which a value of $2,000 was attributed).

9 At the time of his death the Deceased as in the process of selling the property at 47 Gladstone Street, North Parramatta, for $520,000. That sale was completed in June 1998, some months after the death of the Deceased. The net proceeds of sale (after deducting the amount required for discharge of a mortgage over the property and various costs associated with the sale and the mortgage) was in the sum of almost $294,000.

10 On 25 August 1998 the First Defendant, as executor, caused the sum of $146,500 to be invested in the name of the Second Defendant and a further sum of $146,500 to be invested in the name of the Third Defendant.

11 I have already recorded that the Deceased was aged about seventy-two at the time of his death. He had come originally from Lebanon, but had lived in Australia for almost fifty years.

12 The Plaintiff herself was born in Australia on 1 March 1966 (and is presently aged thirty-six). She was the only child of her parents. When she was about eight months old her father left her mother and returned to Lebanon. The Deceased thereupon came to reside with the Plaintiff and her mother in the rented premises which the latter were then occupying at 32 Cowper Street, Harris Park.

13 It was the case for the Plaintiff that from that time until his death more than thirty-one years later the Deceased was, in effect, her surrogate father. The evidence supports that conclusion, at least until the Deceased married in Lebanon and returned to Australia with his wife in about 1980. When the Plaintiff was aged about eight the Deceased purchased a residence at 53 Bellevue Street, North Parramatta, into which he, the Plaintiff and the Plaintiff’s mother moved from the Harris Park rented premises. Upon the return of the Deceased to Australia with his wife, the Plaintiff and her mother departed 53 Bellevue Street and moved into another residence at 41 Bellevue Street, only four doors away, which had been purchased by the Plaintiff’s mother. The Deceased and his new wife continued to reside at 53 Bellevue Street.

14 In 1990 the Plaintiff married. The Plaintiff’s husband was her first cousin, Hussein Ahmad (who was a son of Ali Ahmad, the deceased brother of the Defendants and of the Deceased). The Plaintiff and her husband resided in Harris Park for about twelve months. They separated during the first year of marriage. The Plaintiff then moved back to reside with her mother at 41 Bellevue Street, North Parramatta, just four residences away from where the Deceased was still residing.

15 The Deceased’s marriage failed and his wife, Mrs Khaldie Ahmad, left him. In about 1991 they were divorced, and they entered into a property settlement. The Deceased remained in residence at 53 Bellevue Street, North Parramatta. In about 1990 the Deceased’s sister Salima (who is the Second Defendant) came to Australia from Lebanon. Thereafter she alternated her residence between the house of the Defendant and the house of the Deceased.

16 In about 1996 the Deceased sold the residence at 53 Bellevue Street, North Parramatta and removed to a house property which he then acquired at 219 Woodville Road, Merrylands (that property now constituting one of the significant assets in the estate of the Deceased).

17 At about the same time the Defendant sold her residence in 41 Bellevue Street, North Paramatta and purchased a house property at 4 Park Street, Merrylands, which was located in close proximity to the new residence of the Deceased at 219 Woodville Road, Merrylands. The Plaintiff moved into residence with her mother, the Defendant, at 4 Park Street. It was the evidence of the Plaintiff that thereafter she was in contact with and saw the Deceased in a family situation on a daily basis until the time of his death. The Plaintiff has continued to reside with her mother at 4 Park Street to the present time. She does not pay any rent to her mother.

18 I have already recorded that, according to the evidence of the Plaintiff, her marriage broke down and she and her husband have now separated, and they have maintained separate lives since 1991. Nevertheless, the Plaintiff and her husband are still married, and he resides in the house property at 4 Park Street, Merrylands with the Plaintiff and her mother. According to the Plaintiff, he is sometimes in that residence and is sometimes absent therefrom (his whereabouts during those absences being unknown to the Plaintiff), and the relationship between the Plaintiff and her husband has completely broken down. I would in this regard observe that no evidence was given by the Plaintiff’s husband in the present proceedings.

19 The Plaintiff was born on 1 March 1966, and is presently aged thirty-six. She left school in 1985, when she was aged about eighteen, and commenced a pathology technician’s course. The Plaintiff discontinued that course, and embarked upon a computer course. Since 1989 she has worked as a computer programmer. In her affidavit of 7 May 2001, filed in support of the summons, the Plaintiff stated that she was then currently employed by GIO and that her present gross income was approximately $42,000 a year. She then set forth details of how she expends her income. In paragraph 15 of that affidavit the Plaintiff said that she had no assets and had no debts.

20 Paragraph 18 of that affidavit is in the following terms,

I would like to be completely independent of my mother and have secure accommodation. I would like to own a two bedroom home unit in North Parramatta or Merrylands. Annexed and marked A are copies of advertisements in the Parramatta Sun for home units in those areas. In relation to the North Parramatta advertisements, I contacted Jeron Real Estate and was informed that the home units were priced from $300,000.

21 Annexure A consists of three advertisements, each of home units or townhouses, located either at North Parramatta or at Merrylands.

22 It should here be recorded that the Plaintiff did not read paragraph 18 of her affidavit of 7 May 2001 as part of her evidence. However, that paragraph was read as part of the evidence of the Defendants.

23 It is understandable that the Plaintiff chose not to read paragraph 18, since the statements in that paragraph are totally false and were intended deliberately to mislead the Court and to mislead the Defendants.

24 In her affidavit of 18 February 2002 the Plaintiff attempted to explain the false statements which she had made in her earlier affidavit of 7 May 2001 concerning her income, expenses, assets and debts. She attempted to correct the statement of her present gross income by saying that the amount should have read “approximately $62,000 per annum”.

25 Paragraphs 4, 5 and 6 of her affidavit of 18 February 2002 are as follows,

4. I relation to paragraph 15 of my previous affidavit it should have read as follows:

Assets – House property situated at 28 Yoogali Street, Merrylands, NSW (“the property”) purchased by me about three (3) years ago at a purchase price of $225,000.

Debts – Mortgage to ANZ Banking Group Limited secured by way of registered first mortgage over the property. Amount presently owing under the mortgage is approximately $145,000.

5. The property referred to in paragraph four (4) has not been rented out by me since its purchase. I reside there occasionally staying for two (2) or three (3) days only at a time.

6. I did not disclose my higher income and the property in my previous affidavit as I did not wish my husband or my aunts Salima and Badrieh to know about them. My husband who is also my first cousin has been and remains close to my aunts Salima and Badrieh, he having lived with them in Lebanon.

26 Less than two weeks before the hearing the Plaintiff filed a further affidavit by herself sworn on 14 May 2002. In that affidavit of 14 May 2002 the Plaintiff set forth in paragraph 5 that her income as a computer programmer for GIO Australia is $62,000 a year, and that her net fortnightly pay is $1,760.77. She states in paragraph 6 that she has the following assets: 28 Yoogali Street, Merrylands – estimated value about $300,000; and in paragraph 7 that there is a mortgage on that property in favour of the ANZ Bank, the amount owing at 1 February 2002 being $141,227.71.

27 The Plaintiff states in paragraph 8 that she has superannuation with her employer, her interest as at 15 March 2002 being $24,494.30; further (in paragraph 9), that she has about $5,399 in the GIO Building Society.

28 The Plaintiff states in paragraph 11 that she sometimes stays overnight in the property at 28 Yoogali Street, Merrylands, and that she has never allowed tenants to occupy that property.

29 Further information concerning the Plaintiff’s circumstances and lifestyle emerged under cross-examination. She stated that she expends her income on the house which she owns, on the purchase of clothing and what she described as “partying”. Among her outgoings was the cost of hairdressing twice a week. She also said in response to a question asked of her in cross-examination, that social parties are costly.

30 During the course of her oral evidence the Plaintiff disclosed that she had assets additional to those which had been disclosed in her various affidavits. In addition to the superannuation entitlement of almost $24,500 (referred to in paragraph 8 of her affidavit of 14 May 2002), the Plaintiff at the hearing disclosed that she held a further superannuation entitlement (with Telstra), having a present value of $38,000. Further, that she owns household furniture having a value of $15,000. That is, the assets of the Plaintiff have a present total value of $382,900. Her only liability is the mortgage, upon which an amount of $141,200 is presently owing. Thus she has net assets of $241,700.

31 The Plaintiff asserts that she is an eligible person within paragraph (d) of the definition of that phrase contained in section 6 (1) of the Family Provision Act, in that the Plaintiff was a member of the same household as the Deceased from the time when she was aged about eight months until the time when she was aged eighteen years, and that throughout that period she was at least partly dependent upon the Deceased. As I understand it, the Defendants do not dispute those assertions or the fact that the Plaintiff is such an eligible person.

32 I am satisfied that the Plaintiff is an eligible person within paragraph (d) of the definition. As such she has the standing to bring the present proceedings.

33 The only other persons who may be eligible persons in relation to the Deceased are the three Defendants and also Mr Khaldie Ahmad, the former wife of the Deceased (whose present whereabouts are unknown).

34 The Plaintiff is out of time in bringing the present proceedings. The Deceased died on 21 February 1998. The eighteen months limitation period provided for by Section 16 of the Family Provision Act expired on 21 August 1999. The present proceedings were not instituted until 20 March 2001, that is, some nineteen months after the expiry of the limitation period. Accordingly, by prayer 1 in each of the summons and the amended summons, the Plaintiff seeks an order for the extension of the time in which to commence the present proceedings.

35 It will be appreciated that there is no purpose in the Court making such an order if the proceedings are bound to fail. To do so would be an exercise in futility.

36 Accordingly, it is appropriate that I should proceed to a consideration of the substance of the Plaintiff’s claim. My conclusions in that regard will largely be determinative of whether or not I should then proceed to a consideration of the application for extension of time.

37 I have had the benefit of receiving from Counsel for the respective parties written outlines of submissions. Those written outlines will be retained in the Court file, together with the chronologies prepared on behalf of the respective parties.

38 It cannot be emphasised too strongly that an applicant for an order for provision has an obligation to place before the Court as fully and as frankly as possible all information and details relating to the financial and material circumstances of the applicant.

39 In the instant case the Plaintiff in her primary affidavit chose not to place that information before the Court. She chose deliberately to mislead the Court and to mislead the Defendants by the material contained in that affidavit. The statements contained in paragraphs 14 (concerning her present gross income) and 15 (concerning her assets and liabilities) of the Plaintiff’s affidavit of 7 May 2001 was false and were false to the knowledge of the Plaintiff at the time when she swore that affidavit. The statements contained in paragraph 18 (concerning her desires in respect to accommodation) were deliberately misleading and were known and intended to be so by the Plaintiff at the time when she swore that affidavit.

40 It is all very well for the Plaintiff now to say that the information which was ultimately placed by her before the Court and upon which she relied in support of her present claim was correct.

41 But the corrections which the Plaintiff admitted in her later affidavits were made only when she had been caught out in her earlier false statements. The Plaintiff did not volunteer the true facts until after she realised that, as a result of material which she was required to provide in answer to a notice to produce, the Defendants had become aware of the true facts. The admission by the Plaintiff of those true facts was not as a result of some change of heart on the part of the Plaintiff. That admission does not reflect any credit upon the Plaintiff. It was merely an acknowledgement that she had been caught out in the false statements which she had made in her earlier affidavit.

42 I am not persuaded that the Plaintiff, if she had not realised that the Defendants had become aware of the true facts concerning her financial and material circumstances (in particular, concerning her ownership of the house property at 28 Yoogali Street, Merrylands), would have voluntarily revealed to the Court the true facts concerning those circumstances. Even that material in her later affidavits did not disclose the full extent of the Plaintiff’s assets, which only emerged under cross-examination.

43 The conduct of the Plaintiff in deliberately lying in her affidavit of 7 May 2001 reflects very badly upon the credit of the Plaintiff. It is possible that it may constitute a crime. It certainly constituted a most serious attempt to mislead the Court and thus a most serious abuse of the process of the Court.

44 Nevertheless, that conduct is not of itself determinative of the claim of the Plaintiff. It is not appropriate that the Court, as some form of perceived punishment of the Plaintiff for her conduct in providing false information in her affidavit of 7 May 2001 and thereby attempting to mislead the Court and the Defendants, should dismiss the Plaintiff’s claim. (See Re Will of Gilbert (1946) 46 SR (NSW) 318.)

45 In performing the first stage in the two stage process identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 at 208-209 it is necessary for the Court to determine whether the Plaintiff has been left without adequate provision for her proper maintenance and advancement in life.

46 The Plaintiff is thirty-six years old, and has no dependents. She receives a good income. Her weekly net earnings more than comfortably cover her claimed expenses (even allowing for the fact that those expenses appear to be inflated: they include hairdressing and personal grooming of $70 a week and entertainment of $50 a week). The Plaintiff owns a residence, available for her full time occupancy or available to be rented out. She resides there for several days at a time. It is through her own choice that that residence does not produce income for her. The Plaintiff is in a secure financial position and has no genuine needs.

47 I have no hesitation in expressing my conclusion that the Plaintiff has not been left without adequate provision for her proper maintenance and advancement in life.

48 It is appropriate, however, that, if (contrary to my foregoing conclusion) I were persuaded that the Plaintiff had been left without adequate provision for her proper maintenance or advancement in life, I should indicate whether, in performing the second stage of the two stage process recognised by the High Court in Singer v Berghouse, an order for provision should, in the exercise of the Court’s discretion, be made in favour of the Plaintiff.

49 The Plaintiff owns a house in which she chooses not to reside on a full time basis. That house is not otherwise occupied and is not income producing. The Plaintiff could, if he so chose, live in that house on a fulltime basis. Alternatively, the Plaintiff could, if she so chose, lease out that house and thus obtain an income therefrom.

50 The Plaintiff no longer asserts (as she did in paragraph 18 of her affidavit of 7 May 2001) that she “would like to… have secure accommodation” and “would like to own a two bedroom home unit in North Parramatta or Merrylands”. The assertion of such a desire hardly sits well with the fact that the Plaintiff presently owns (and since early 1999 has owned) not merely a home unit, but indeed a house, in Merrylands, being a house which not merely has a present value of about $300,000, but was purchased by her in about early 1999 for $225,000.

51 The Plaintiff, however, submits that she should receive out of the estate of the Deceased an order for provision by way of a legacy in the sum of $145,000, such legacy being in an amount sufficient to enable her to discharge the mortgage on her house property.

52 If, contrary to my foregoing conclusions, it were appropriate for me to proceed to the claim of the Plaintiff that she should receive an order for provision out of the estate of the Deceased by way of a legacy in a sum sufficient to enable her to discharge the mortgage on her house property, it would be necessary for me to do so in the context of any competing claims upon the testamentary bounty of the Deceased. The only such competing claims are those of the sisters of the Deceased. The First Defendant does not herself assert such a competing claim.

53 I have already recorded that each of the sisters of the Deceased is probably an eligible person in relation to the Deceased (since each of those sisters was at some time a member of the same household as the Deceased and was partly dependent upon the Deceased).

54 It is the Second and Third Defendants who assert claims upon the bounty of the Deceased. It will be recognised that those Defendants are the chosen objects of the testamentary beneficence of the Deceased, being the two beneficiaries between whom the Deceased by his will left the entirety of his estate. It is, as I have already observed, probable that each of the Second and Third Defendants is an eligible person in relation to the Deceased, being such within paragraph (d) of the definition of that phrase contained in section 6(1) of the Act.

55 The Second Defendant, Selima Mohamad Ali Ahmad, is a disable person. The Protective Commissioner became the curator of the Second Defendant pursuant to an order made under Protected Estates Act 1983 on 24 July 2001. The Protective Commissioner is the tutor of the Second Defendant in the present proceedings.

56 The Second Defendant is aged seventy-six. She has been resident in a nursing home at Rosehill since September 2001. The Second Defendant suffers from the effects of a cerebral haemorrhage, severe depression and anorexia. Evidence was placed before the Court concerning the income of the Second Defendant and concerning the costs and expenses associated with her residence in the nursing home.

57 The Third Defendant, Badrieh Mohamad Ali Ahmad, is aged seventy-one. She is in receipt of an aged pension, which is her only income apart from amounts received or to be received by her pursuant to the provisions of the will of the Deceased. The Third Defendant suffers from problems with discs in her spine, which have necessitated surgery to her back. She has difficulty in walking and uses a walking stick. Similarly, she has problems when travelling in a motor vehicle. She cannot travel by bus or train because of the pain caused to her thereby.

58 The Third Defendant currently resides in a home unit at Harris Park. That residence is occupied by the children of one of her brothers. Three adults are living in the home unit, and it is necessary for the Third Defendant to share a bedroom with her niece, who is about forty years of age. The Third Defendant does not pay any rent for her occupancy of that residence.

59 The current expenses of the Third Defendant have been set forth, totalling about $170 a week; whilst her income consists of a pension of only $260 a fortnight. That is, the outgoings and expenses of the Third Defendant exceed by almost $40 a week her income.

60 It emerged from the cross-examination of the Third Defendant that she is indebted to a Mr Dib in Lebanon in respect to the residence which she was occupying in the city of Tripoli in Lebanon. That residence was a home unit owned by Mr Dib in which she was residing at the time of the death of the Deceased.

61 In her affidavit of 18 February 2002 the Third Defendant expressed a desire to live by herself in her own home. She said that she would like to reside in the house in Woodville Road which was one of the assets in the estate of the Deceased. However, due to her medical condition, she said that she considered that she would need either full-time nursing or domestic assistance to help her at home on a daily basis if she were living on her own.

62 According to the evidence of the First Defendant, the Third Defendant first came to Australia some years ago and resided with Deceased, the First Defendant and the Plaintiff. The Third Defendant then went back to Lebanon. She returned to Australia for a further period and again resided with the Deceased, the Plaintiff and the First Defendant. The Third Defendant yet again returned to Lebanon, and yet again returned to Australia after the death of the Deceased.

63 It is in my view significant that it was the Deceased who sponsored each of the Second and Third Defendants to come to Australia, when each of those ladies was already of late middle age. At various times from 1990 the Second Defendant resided in the residence of the Deceased. It is quite apparent that the Deceased assumed the obligation to look after these two elderly sisters, each of whom is unmarried and childless. That is an obligation which is reflected in the provisions of his will.

64 It is quite apparent from the evidence of the Third Defendant that the beneficiaries are, objectively, in very modest circumstances, and, by comparison to the Plaintiff, are in far less comfortable circumstances than is the Plaintiff.

65 Even if (contrary to my earlier conclusions herein) I were satisfied that the Plaintiff had established an entitlement to an order for provision out of the estate of the Deceased, nevertheless, on account of the competing claims of the Second and Third Defendants (to whom a partial distribution has already been made), I would not be disposed to interfere with that partial distribution, or, indeed, to make any order for provision in favour of the Plaintiff.

66 The competing claims of the Second and Third Defendants are such as to extinguish any order for provision out of the estate of the Deceased an entitlement to which the Plaintiff might otherwise have established.

67 Since the Plaintiff is an eligible person only within paragraph (d) of the definition of that phrase contained in section 6(1) of the Act, it is necessary for her to establish, pursuant to section 9(1), that there are factors which warrant the making of the application. In the event that the Plaintiff had otherwise established an entitlement to an order for provision, I would be satisfied that the fact that the Deceased and the Plaintiff were in what could be described as the relationship of surrogate father to surrogate daughter would constitute a factor warranting the making of the application.

68 My foregoing conclusions are determinative of the present proceedings. It will be appreciated that, since the claim of the Plaintiff must fail, it would be an exercise in futility to extend the limitation period, to enable the proceedings to be instituted out of time. Nevertheless, it is appropriate that I should make reference to the circumstances in which the Plaintiff did not institute the proceedings within the limitation period of eighteen months from the death of the Deceased.

69 According to the evidence of the Plaintiff, she (although disappointed by the terms of the Deceased’s will) was not aware of the existence of the Family Provision Act or of the possibility that she could make a claim under that statute until 12 March 2001, when she attended a conference with Mr Michael Smith, solicitor, of Champion Partners. That firm was acting for the Plaintiff’s mother in her capacity as executor of the estate of the Deceased. The Plaintiff attended that conference with her mother, to act as interpreter, since the First Defendant had difficulties in communicating in English. The Plaintiff first saw her present solicitor on 14 March 2001, and thereupon gave him instructions to commence the present proceedings. The proceedings were instituted less than a week later, by the filing of the summons on 20 March 2001.

70 Had the Plaintiff otherwise established an entitlement to an order for provision, the circumstances which I have just outlined would in my view have justified the making of an order extending the time for the institution of the present proceedings. The partial distribution which had been made to the Second and Third Defendants was made before the expiry of the limitation period, and those Defendants did not change their circumstances between the expiry of the limitation period and the institution of the present proceedings.

71 I summarise as follows my foregoing conclusions.

72 The Plaintiff has not established that she has been left without adequate provision for her proper maintenance or advancement in life.

73 Even if the Plaintiff had established that she had been left without adequate provision for her proper maintenance or advancement in life, in the exercise of my discretion and in the light of the competing claims of the Second and Third Defendants, being the chosen objects of the testamentary beneficence of the Deceased, I would not be disposed to make an order for provision in favour of the Plaintiff.

74 In light of my foregoing conclusions, there is no point in extending the prescribed period in respect of a claim which must inevitably fail.

75 It follows, therefore, that the Plaintiff’s claim will be dismissed.

76 There are a number of other matters to which I should make reference.

77 On 21 August 2001 at the instance of the Plaintiff orders by way of injunction were made by consent of all parties restraining the First Defendant from selling the property at 209 Woodville Road, Merrylands, and restraining each of the Second and Third Defendants from calling for repayment to that Defendant of the moneys held on behalf of such Defendant in excess of $100,000. That application by the Plaintiff and those consent orders were grounded upon the false evidence contained in her affidavit of 7 May 2001, expressly upon the false evidence contained in paragraph 18 thereof.

78 The Plaintiff now consents to the dissolution of those injunctions.

79 The Defendants have submitted that the costs order which must inevitably made against the Plaintiff should require her to pay the costs of the Defendants on the indemnity basis. If the true facts of the financial and material circumstances of the Plaintiff had been revealed at the outset of the proceedings, it is obvious that the Plaintiff’s claim would been recognised as being without substance and doomed to failure. In those circumstances, I am in agreement with the foregoing submission on behalf of the Defendants. The Plaintiff will be required to pay the costs of the Defendants, such costs to be on the indemnity basis.

80 I have already referred to the conduct of the Plaintiff in swearing an affidavit which contained material which was false, and was false to the knowledge of the Plaintiff. That affidavit was sworn by the Plaintiff with the deliberate intention of misleading the Defendants and of misleading the Court. It is in my view appropriate that I should direct the Registrar to refer the papers in this matter to the Director of Public Prosecutions.

81 I make the following orders:

(1). I order that the summons be dismissed.

(2). I order that the Plaintiff pay the costs of the Defendants, such costs to be on the indemnity basis.

(3). I order that the injunctions set forth in paragraphs 1, 2 and 3 in Short Minutes of Order dated 21 August 2001 be dissolved.

(4). I direct that the Registrar refer the papers in this matter to the Director of Public Prosecutions.

(5). I direct that the exhibits remain in Court.

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Last Modified: 12/17/2002