Application by NSW Trustee and Guardian (Estate of the late Frederick John Vermaak) (No. 2)

[2016] NSWSC 1853

Supreme Court

New South Wales

Medium Neutral Citation:

Application by NSW Trustee and Guardian (Estate of the late Frederick John Vermaak) (No. 2) [2016] NSWSC 1853

Hearing dates:

7 December 2016

Date of orders:

07 December 2016

Decision date:

07 December 2016

Jurisdiction:

Equity

Before:

Slattery J

Decision:

A Benjamin order made that the plaintiff is at liberty to distribute the deceased’s estate to his three sons.

Catchwords:

CONSEQUENTIAL ORDERS – whether the Court should make a Benjamin order giving the plaintiff liberty to distribute the deceased’s estate among his three known sons, despite there being some uncertainty whether he may have had other children.

Cases Cited:

Application by NSW Trustee and Guardian (Estate of the late Frederick John Vermaak) [2016] NSWSC 1436

Category:

Procedural and other rulings

Parties:

Plaintiff: NSW Trustee and Guardian (The Estate of the late Frederick John Vermaak)

Representation:

Counsel

 

Plaintiff: A. Hill

  Solicitor
Plaintiffs: Ruth Pollard, NSW Trustee and Guardian
Defendants: n/a

File Number(s):

2016/233709

Publication restriction:

No

Judgment

1. This is the Court’s second judgment in these proceedings. The Court’s first judgment was delivered on 7 October 2016: Application by NSW Trustee and Guardian (Estate of the late Frederick John Vermaak) [2016] NSWSC 1436 (“the first judgment”).

2. In the first judgment, the Court declined to make a Benjamin order, holding that it was not satisfied on the evidence adduced up to that point that sufficient searches had been performed to provide a reasonable basis to infer that the deceased, Mr Frederick John Vermaak, had no issue aside from his three known sons, Aloys, Salvio and Zebbion.

3. The Court therefore adjourned the matter to 1 November 2016 to allow for various further searches to be performed, all of which were identified in the first judgment. The searches discussed in the first judgment all have a common theme: to either investigate, or eliminate, the possibility that the deceased may have had children other than the three sons already identified by the plaintiff in these proceedings.

4. These reasons should be read in conjunction with the Court’s reasons for decision in the first judgment. Events, matters and persons are referred to in the same way in both judgments.

5. Since the Court’s first judgment the plaintiff has performed the further inquiries and searches for issue of the deceased that the Court suggested in the first judgment. Evidence of the result of those inquiries and searches has now been put before the Court through the affidavit of Ms Christina Nicola sworn 6 December 2016. The result of those inquiries and searches satisfies the Court that a Benjamin order should now be made.

6. Whether the deceased lived within Australia but outside Victoria or New South Wales was uncertain at the time of the first judgment: see first judgment at [11]. If he lived in other States of Australia then the plaintiff’s searches of Registers of Births Deaths and Marriages might have needed to be widened to encompass those other States.

7. The additional evidence now shows that further state-based searches in Australia are unnecessary. The deceased’s son, Zebbion, has provided evidence that to the best of his knowledge and belief that: the deceased was only married to his and his siblings mother; only ever lived in South Africa and then migrated to the States of Victoria and the New South Wales in Australia; did not remarry after his divorce from their mother; and, although the deceased had other relationships, none of them was long-lasting.

8. The evidence at the time of the first judgment did not give a complete picture of whether prior to the last 13 months his life the deceased may have had a marital or de facto relationship that may have produced children. The additional evidence now gives a much better picture that such a relationship was very unlikely. The deceased’s niece, Lindsay Schmidt in South Africa states that she is aware the deceased married once and had only three children.

9. In addition to this evidence, the plaintiff has now adduced evidence of the reverse side of the deceased’s Certificate of Australian Citizenship dated 29 April 1982 signed by the then Minister of State for Immigration and Ethnic Affairs, The Hon. Ian Macphee. Only two children are declared upon that certificate, Aloys and Salvio, who are the deceased’s two children already known to have been born in Republic of South Africa (RSA). The Certificate mentions no other children. The deceased’s last child, Zebbion, was born in Australia. The deceased’s provision of information for this certificate was a solemn act accompanying his taking of an oath of allegiance and is therefore inherently likely to be accurate, particularly as he had migrated to Australia with these his children.

10. Finally, at the time of the first judgment the evidence as to why a search of Births Deaths and Marriages registries in RSA failed was obscure. The RSA principal registry appeared to understand the plaintiff’s request as one to look for a particular marriage or birth associated with the deceased. But the Court’s interest was a more general one, namely to ascertain whether or not there was any other marriage in which the deceased participated and whether the deceased was not the father of any other child. To undertake such research would require the capacity to survey all the relevant RSA databases to eliminate the possibility that the deceased was connected in those databases with another spouse or another child. Such computer searches are routinely possible in New South Wales and in other State registries of Births Deaths and Marriages in Australia.

11. But why that requested search is impracticable and cannot be undertaken in RSA is now much clearer on the evidence. The plaintiff’s further enquiries reveal that RSA registries lack the technical capacity to electronically search records for evidence of the deceased’s name within all their records of birth, deaths and marriages, to establish any linkages with other persons. This is because the RSA’s registries are still kept locally rather than centrally and many of the local registries are still in non-electronic form. The researcher the plaintiff engaged in RSA, Dr Katie Mooney, a professional genealogist of Cape Town, has confirmed that in RSA there is no publicly available electronic search facility of the kind that would be needed for the general search required in this case. I accept that further searches of the kind originally contemplated are not possible in RSA without incurring prohibitive expense.

12. For the reasons given the Court will make a Benjamin order in respect of the distribution of the estate of the deceased. The Court therefore orders as follows:-

1. That the NSW Trustee & Guardian is at liberty to distribute the estate of the late Frederick John Vermaak, who died on 21 June 2014, in the manner set out below in the absence of conclusive evidence that the Deceased was survived by:

1. Any person who was his spouse;

2. He was survived by his known issue namely:

1. His son, Aloys Bartholomew Vermaak born 20/1/1967 in Port Elizabeth, South Africa.

2. His son, Salvio Vermaak born 30/9/1968 in Port Elizabeth, South Africa.

3. His son Zebbion Vermaak born 20/6/1979, in Australia.

2. The Plaintiff is at liberty to distribute the Deceased’s estate to the following persons:

1. His son, Aloys Bartholomew.

2. His son, Salvio Vermaak.

3. His son Zebbion Vermaak.

3. Order that the Plaintiff’s costs of these proceedings be paid out of the estate of the late Frederick John Vermaak on an indemnity basis.

4. Grant liberty to apply.

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Decision last updated: 19 December 2016