Brown & Murdoch (No 3)

[2014] FamCA 1005

FAMILY COURT OF AUSTRALIA

BROWN & MURDOCH (NO. 3) [2014] FamCA 1005

FAMILY LAW – PROPERTY SETTLEMENT – Deceased husband – Section 79(8) conceded by all parties – Other claimants against the estate – Criticism by wife of the role of the executors – Criticism rejected – Infants’ compromise considered and ordered.

Administration and Probate Act 1958 (Vic)
Family Law Act 1975 (Cth)

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Bonnici and Bonnici (1992) FLC 92-272
Coghlan and Coghlan (2005) FLC 93-220
Dickons & Dickons [2012] FamCAFC 154
Dimos v Skaftouros and Ors (2004) 9 VR 584
Fisher v Martin [2008] NSWSC 1357
Gillespie v Alperstein [1964] VR 749
Karvelas (by her next friend) v Chikirow (1976) 26 FLR 381
Lovine and Connor and Anor (2012) FLC 93-515
Mallet v Mallet (1984) 156 CLR 605
Mason v Hannaford; Mason-King (Intervener) (1993) FLC 92-398
Mason v Mason c/o Hannaford; Mason-King (Intervener) (1994) FLC 92-446
Miller v Cameron (1936) 54 CLR 572
Monty Financial Services Limited v Delmo [1996] 1 VR 65
Norbis v Norbis (1986) 161 CLR 513
Pierce and Pierce (1999) FLC 92-844
Stanford v Stanford (2012) 247 CLR 108
Steinbrenner & Steinbrenner [2008] FamCAFC 193

APPLICANT: Mr Savva and Mr Gould as Executors of the Estate of the late Mr Brown

RESPONDENT: Ms Murdoch

FILE NUMBER: MLC 9886 of 2010

DATE DELIVERED: 14 November 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 5, 6, 10, 11, 12, 13, 16, 17 June 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P Davis

SOLICITOR FOR THE APPLICANT: Kennedy Partners

COUNSEL FOR THE RESPONDENT: Mr Testart

SOLICITOR FOR THE RESPONDENT: Schetzer Constantinou

Orders

1. That if by 4 pm on 12 January 2015, G Pty Ltd has not distributed to the wife (and/or the wife on trust for the children of the husband and wife) the proceeds of the Brown Superannuation Fund (and in particular the motor registration plates), this matter may be relisted on a date to be fixed before the Honourable Justice Cronin for submissions and evidence as to what should happen to the interests (if any) of the husband and the wife in that fund.

2. That by 4 pm on 12 December 2014, the wife may elect to purchase H Apartment, Surfers Paradise (the apartment).

3. If the wife elects to purchase the apartment, she shall have until 12 January 2015, to pay to the executors $1.137 million and upon the payment by that date of the said amount, the executors shall do all such things as may be required to transfer to the wife at her expense all of their interest and that of the husband in the apartment.

4. If the wife does not elect to purchase the apartment, the executors shall pay to her $263,000 by no later than 12 January 2015.

5. If the executors fail to pay the wife the sum of $263,000 by 12 January 2015:

   (a) interest as calculated according to the Family Law Rules 2004, shall run from 12 January 2015; and

   (b)the apartment shall thereafter be sold on such terms and conditions as may be agreed and, failing agreement, as ordered by the Court.

6. That the parties have liberty to apply in respect of the terms and conditions of the sale of the apartment.

7. Upon the settlement of the sale of the apartment, the proceeds shall be applied as follows:

   (a)first, to pay all costs, commissions and expenses of the sale;

   (b)secondly, to discharge any encumbrance affecting the apartment;

   (c)thirdly, to pay to the wife $263,000 together with interest as calculated under the Family Law Rules 2004 from 12 January 2015 until the payment; and

   (d)fourthly, the balance be paid to the executors.

8. That paragraph 1 of the orders made 5 June 2014 (the injunctive order) is forthwith discharged.

9. That paragraph 1 of the minutes annexed to the orders made on 4 June 2013 is forthwith discharged.

10. That to the extent that any caveat lodged by the Executors of the Estate of the Late Mr Brown has not been removed over any of the following real properties:

    ·    S Street, Suburb T;

    ·    B Street, Suburb T; and

    ·    P Street, Suburb M

    it be so removed forthwith at the expense of the Estate.

11. That by 4 pm on 12 December 2014, the Executors make available for collection by the wife all of her personal files and photographs of the wife and the children which are currently in the possession or control of the Executors.

12. That to the extent that documents have not been executed by the Executors to establish the children’s trusts referred to in the will of the husband, they be so executed and provided to the wife by 4 pm on 12 December 2014.

13. That without prejudice to the obligations of the executors to otherwise administer the Estate according to law, from the funds held in the Estate after payment of the sum due the wife under paragraph 4 of these orders, the executors distribute the Estate funds as follows:

    (a)Mr Gould $90,000

    (b)Mr Savva $36,000

    (c)Schetzer Constantinou $172,000

    (d)Firm Q $161,025 together with fees until the winding up of the estate at the rate of $550 per hour capped at a further $20,000

    (e)The creditors and other persons entitled to payments under the Estate referred to in the reasons for judgment this day.        

14. That upon doing all things as may be required to complete the administration of the estate, the executors pay the balance of funds to the wife as trustee for the children Y and J.

15. That the compromise relating to the interest of the said children in the real property at Suburb A referred to in the reasons for judgment this day is approved by the Court.

16. That any application for costs arising out these orders shall be by written submission filed and served by no later than 4 pm on 12 January 2015 and any such determination shall be made in chambers.

17. That save as to the matters referred to in paragraphs 1 and 16, all applications are otherwise dismissed.

18. It is certified that the briefing of counsel was appropriate in the circumstances.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Brown & Murdoch has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9886 of 2010

Mr Savva and Mr Gould as Executors of the Estate of the late Mr Brown

Applicant

And

Ms Murdoch

Respondent

REASONS FOR JUDGMENT

1. The dispute between Ms Murdoch (to whom in these reasons, I shall refer as “the wife”) and the estate of the late Mr Brown (who in these reasons and for my convenience, I shall refer to as “the estate”) over property, was very bitter.

2. The contested proceedings spanned eight sitting days and involved a number of other parties who were either joined or intervened over claims against the estate.  At great expense to the estate, those disputes were largely resolved.  Regardless of their resolution, there was a modest set of assets to satisfy the relief sought by the wife and all of the other claimants.

3. At the end of the chain of estate claimants lay the residuary beneficiaries.  They are the two young children of the husband and wife who have lost a father.  Their financial future lay in the hands of adults who argued over many issues in these proceedings.  The children have been the losers. 

4. Whichever way this dispute is examined, it is a claim for relief through the alteration of property interests under s 79 of the Family Law Act 1975 (Cth) (“the Act”). In the final analysis, the focus was on an unencumbered $1.4 million holiday penthouse in Queensland (“the Queensland apartment”). That property was registered to the husband’s name alone. The Court’s task was to wade through all of the evidence and decide whether the wife should be allowed to keep what she considered her holiday home (and as a consequence, have it transferred to her) or whether it should be disposed of and the proceeds thereafter divided with the estate.

5. There are some immediate important jurisdictional observations to be made.  All parties agreed that:

   (a)It was just and equitable to make some sort of order altering the existing legal and equitable interests of the husband (including through his various corporate entities) and the wife;

   (b)As the husband had died, the Court would have made an order if he had not died and it was appropriate to make such an order now; and

   (c)Notwithstanding the wife’s children were not independently represented by lawyers, the Court should, as part of the just and equitable orders, determine that their mother’s decision to abandon part of an entitlement they had under their father’s will, was an appropriate compromise.   

6. For the reasons set out below, I find it is just and equitable to:

   (a)Leave those assets described in paragraph 151 which are now under the wife’s control, as her property;

   (b)Order a sale of the Queensland apartment and from the sale of that real property, the wife be paid $263,000; and

   (c)Have the wife retain her superannuation.

7. It is a matter for the trustee of the superannuation fund (a company not a party to the proceedings and in circumstances where no splitting order was sought) to decide whether the wife’s children should be the beneficiaries in specie of two personalised motor car number plates (which is what the husband intended under his will) or for them to be sold and placed in the residuary estate of which the children are the main specified beneficiaries.

8. In respect of the Queensland apartment, orders will be made providing for the wife to elect within 30 days to keep the property if she can buy out the interest of the estate.

Background To The Proceedings

1. The facts of the case are very unusual and deserve comprehensive description.  The bitter fight was not just between the executors of the estate and the wife; there were other family members and claimants involved.  The evidence about these claims needs to be considered here because the majority of the hearing focussed on the conduct of the executors.  They are two professional men who at various times were friends of the husband and wife.  The husband’s death and these proceedings fractured that friendship. 

2. At the commencement of the proceedings, the wife applied for the removal of the executors.  The submissions put on her behalf alleged the executors misconceived their obligations or, more seriously, conducted the case, to use her words:

   such that the result would be, if the orders suggested by them were to be made, a significant, undeserved, financial disadvantage to the Respondent Wife.

3. To the extent that the submissions of the wife allege impropriety for a particular purpose, I strongly reject it.  To the extent the submissions suggest impropriety on the basis of a failure to protect the interests of the wife and the children, as beneficiaries of the estate, I reject that too.  To the extent the submissions suggest lack of candour or failure to fulfil obligations as litigants in the Court, I reject that and say that the wife contributed to the dilemma that the executors faced.  Having said that, the executors were also not as responsive as they should have been to the requirements of the Court.  That may have been as a consequence of the advice they were receiving or the many facets of the estate that they were trying to deal with not to mention the various parties who were at war with one another.  Despite the wife’s complaint about the question of discovery, it must be noted that she chose to proceed.

Background of the parties

1. Mr Brown (“the husband”) began living with the wife in November 2000.  The wife then 21 years old, was employed as a marketing assistant at the husband’s Business Z in Melbourne.  The husband was then 56 years of age.  In 2002, their first child Y was born. The child Y is now aged 12 years. 

2. In 2005, the husband and wife married.  In mid-2006, their second child J was born.  The child J is now eight years of age. 

3. When the parties began their relationship, the husband had a variety of entities but otherwise owned, either through those entities or personally, Business Z.  In the proceedings, the estate alleged that the husband brought into the relationship $1.7 million whereas the wife was only prepared to concede that the husband had interests of between $700,000 and $1 million.  The wife conceded that the husband had two motor vehicles, approximately $300,000 in equity in a property in Suburb T and various other corporate interests.  On any view of the evidence therefore, his equity must have exceeded $1 million.  The wife’s unchallenged evidence was that she did not know what other business or personal debts the husband had other than that she was aware that when she entered the relationship, he had borrowed to buy out the interest of his former business partners.  Taking into account the evidence of the accountant/executor to whom I shall return and the concession of the wife, I find that the husband’s initial contribution certainly exceeded $1 million.  As an executor of the estate, the accountant also acted for not only the husband but also the business.  When he was tested about where this figure of $1.7 million came from, he observed that it was he who had prepared the monthly accounts and in November 2000, there were net unappropriated profits of $1 million.  Neither party was able to provide evidence with any precision but it makes sense that if the balance sheet showed unappropriated profits of $1 million, there was at least that much.  Bearing in mind the wife’s concession which was a very wide range, I find that it is likely that the husband had a very significant asset position when the relationship commenced.  It was common ground that, as the wife was only 21 years of age, she had no assets.

4. That asset position becomes quite significant in these proceedings because in 2008, the husband received $1.3 million from the estate of his late mother.  No similar contribution of a financial nature was made by the wife during the ten year cohabitation.  

5. The significance of both of those financial contributions lies in the fact that throughout the ten years of the relationship, the parties had an affluent lifestyle but, in the end, the equity that I am now dealing with (excluding the claims of other beneficiaries) was about $2.6 million.  Thus, those two financial contributions of the husband are very significant in the scheme of this relationship.  It was not suggested that the husband’s financial contributions were not reflected in the current assets.

6. When counsel for the wife opened her case as the respondent, he said that during the marriage, the wife gave her total support to the husband.  He said the husband did what he wanted to do and the wife went along with him.  He said that the wife was subject to the husband’s wishes and in particular, business decisions.  He said that the wife was dependent upon the husband.  All of that was borne out in the evidence of the wife but it clearly indicated that the husband was the driving force of the financial situation.  That was clearly not the wife’s position in relation to the homemaker and parent role to which I shall return.

7. In July 2010, the parties separated under the one roof.  It was not a contentious issue that a violent incident occurred on 7 September 2010 involving the husband pointing a gun at the wife and then attempting to strangle her in the presence of the child Y.  The attendance by the police saw the husband charged with criminal offences and there was a subsequent intervention order favouring not only the wife but also the children. 

8. Late 2010 was a traumatic time because it also saw the intervention of the Department of Human Services in the wife’s life.  They were concerned about the safety of the children.  Needless to say, all of that settled down and the husband and wife resumed their acquaintanceship.  Indeed, as part of what the wife’s counsel described as a “rapprochement”, a property at S Street, Suburb T was bought in February 2012 in joint names.  The purchase price was $1.22 million but there were borrowings of $970,000 which were secured by a mortgage over the property.

9. The husband then resumed the financial support of the wife and the children including the payment of their private school fees, health insurance, medical expenses and provision of expenses associated with the running of the family car.  Much of this arose out of a court order.  It was the husband who began parenting proceedings in the Federal Magistrates Court around the time of separation. 

10. After being charged by the police and with the Department of Human Service’s involvement, the husband undertook counselling and the level of conflict diminished.  As a consequence, the parenting of the children resumed cooperatively and constructively. The husband was residing under the same roof as the wife and the children.  Indeed, by the end of 2012, the intervention orders were discharged and the husband was spending unsupervised and flexible time with the children.  In February 2013, he executed an enduring power of attorney (medical treatment) appointing the wife as his agent to make ongoing medical decisions.  There is significance in that because it was then that the husband was diagnosed with a terminal illness.  The wife began taking him to medical appointments and visiting him when he was hospitalised.  He was dying.  Notwithstanding the parties had proceedings on foot in the Federal Magistrates Court, they ceased involving lawyers and resumed their discussions to try to resolve their property dispute.

11. Knowing of this serious illness, the husband and the wife agreed to buy the property at B Street in Suburb T in joint names.  The idea was that there was to be a separate residential area into which the husband would move to enable him to continue to see the children whilst at the same time, be cared for by the wife.  There was no misunderstanding also that the parties were concerned about the inevitable deterioration of the husband’s physical condition as his cancer was expected to progress.  On 8 April 2013, the husband executed a new will the terms of which I shall set out in a moment.  Despite his endeavours to stave off his death, he died in a Melbourne hospital the following month.

The husband’s will

1. Under his will, the husband appointed his accountant and his banker as his executors.  Sufficiently confident in his two friends to appoint them as executors, he also authorised them to be paid proper fees for the work that ultimately unfolded.

2. The husband left shares he held in a company called XX Corporation Pty Ltd (“XX Pty Ltd”) to his sister Ms S for her lifetime.  XX Pty Ltd owned a house in Suburb A and effectively, the husband created a life tenancy for his sister.  Upon her death (or her ceasing to live in the A home), his will (paragraph 4) required that the property fall into the estate residue and for each of his two infant children to be jointly entitled to the residue upon attaining the age of 21 years.

3. It is also obvious from the drafting of paragraph 4 of the will that the husband had sufficient confidence in the nature of his relationship with the wife to provide that if the two children did not reach the allotted age for the estate to vest in them, she was nominated as the primary beneficiary.

4. Below, I turn to the issue of the infants’ compromise.  As the proceedings began, through her counsel, the wife announced that she was renouncing the interest of the children in the A property on the basis of and in the interest of the resolution of a dispute that Ms S had with the estate.  After discussion and the Court querying the capacity of the wife to make that concession, it became common ground that all parties wanted it to occur but that the Court should exercise its parens patriae jurisdiction to endorse the settlement because it was a compromise under which the children gave away significant rights.

5. The will of the husband then referred to the B Street property and indeed how the mortgage on it was to be dealt with in anticipation that the property proceedings had not been completed by the time of the husband’s death.  Nothing turns on that issue now.

1. Quaintly, the husband then left two number plates to his children.  They are personalised number plates and clearly obtained with the names of his children in mind.  The dilemma is that the plates somehow became acquired by the husband’s self-managed superannuation fund.  Thus, it would seem that either the husband or the lawyer who drew the will, were unaware of how the legal position of that property sat.  The provision in the will could only be effective if the trustee of the superannuation fund decided not to exercise a discretion to hand out the plates in specie but rather place them in the estate. 

2. The superannuation issue was also not without controversy.  It became common ground between the parties that the husband’s self-managed superannuation fund had a balance of $261,500 in it of which only $11,500 was in cash and the number plates had been valued at $250,000.  The wife had an interest in a different superannuation fund of $157,000.

3. The wife had maintained that there was about $15,000 in cash in the superannuation fund but the evidence before me was that it was closer to $11,500.  In her evidence, the wife also said that she did not know if the superannuation fund had or did have any other assets. There being neither further evidence before me, nor any challenge to that sum, that is the figure that I have accepted. For the reasons that follow, there is, however, little significance in the amounts.

4. As part of her case, the wife’s counsel cross-examined (and indeed criticised) one of the executors about the superannuation issue.  In her evidence, the wife was critical of the executor for not chasing up, and investigating, monies that had been removed by the husband prior to his death but apparently at a time when the parties were having their “rapprochement”.  I find that there is no basis for the executor to have taken such a step, particularly bearing in mind that the wife was still either in the marriage or in a state of rapprochement with the husband. It might well be argued that the executors had a responsibility as litigants in this Court but my understanding was that that had not been raised prior to separation or indeed trial. To the extent that it had been, I did not understand it to be an issue.

5. In cross-examination of one of the executors, he indicated that there was no binding death nomination and that as far as he understood, the trustee of the superannuation fund was to divide the accounts equally between the dependents and there were three nominated.

6. One of the issues that the Court has to grapple with is whether or not it is just and equitable to make an order at all and as I earlier indicated, it was common ground that the parties wanted such an order made.  However, because the husband made a will very shortly prior to his death, at which time, he clearly indicated that he wanted the number plates to be given to the two children, my view is that I should ignore the husband’s superannuation interests completely as they do not affect the wife.  The bulk of the husband’s entitlement in the superannuation fund belongs to the trustee.  The bulk of that value lies in the personalized plates.  In her final proposed orders, the wife sought an order that the executors deliver to her the three number plates at the expense of the estate by a transfer to her.  I do not consider there is power to do so as the property does not belong to the husband.  As a result of the husband’s death, the superannuation member account managed by the trustee, became the trustee’s responsibility.  I refer specifically to paragraphs 11(e)(1), 23(c)(3) and 23(d) of the trust deed.  I am unsure whether it matters from the estate’s perspective but in case there is a dispute, I shall explain my reasoning.  First, who is the correct superannuation trustee?

The Superannuation Trustee

1. It was the wife’s case when the proceedings began that she was a trustee of this fund along with the husband. Whilst there was initially some confusion about all of that, one of the executors, Mr Gould, was able to produce his file in which it was shown that a change of trusteeship had occurred in May 2011.  I find G Pty Ltd is the trustee.  Accordingly, I propose to treat the superannuation fund as a matter for G Pty Ltd. 

2. The confusion about the trustee arose because the wife produced the original trust deed (as well as some correspondence directed to the wife from the Australian Taxation Office) showing both husband and wife as trustees of the fund.  Indeed it was the executor in his capacity as the accountant who had set up that fund.  He observed that there was $900,000 in the accounts of the fund in 2009 and 2010 and in March 2010, the husband bought motor car registration plates.  That exercise cost $314,000 leaving $619,000 in the bank account.  At that point, the separation occurred.  A variety of withdrawals were then made ultimately culminating in the small cash balance by the time this trial started in addition to the three number plates.

3. It must be said that the husband would have been eligible to take the superannuation bearing in mind his health but it appears he did not do so.  The accountant-executor was asked whether he knew where all the money went and he indicated that he did not.  He confirmed that the husband was the only member with a balance although the wife also was a member but she had no balance.  Where and how the husband amassed that sum was not clear.  Two important observations need to be made.  First, for whatever reason, the husband was entitled to take all of his member balance and he seems to have spent money, which included the purchase of the motor vehicle registration plates.  That seems to have been treated by everyone as the superannuation trust having purchased them.  That occurred prior to any involvement of the executors.  Secondly, in May 2011, the husband changed the trustee from husband and wife to the company G Pty Ltd over which he had control.  It would appear that the wife was never told about that and she had come to court believing that she was still a trustee.  It seems that the executor-accountant was responsible for lodging the relevant ASIC form but he was vague about exactly what had happened.  Counsel for the wife called for the documents associated with all of that and the matter was not raised again.  In my view, G Pty Ltd is the trustee, the owner of the assets in the trust fund and responsible for their distribution pursuant to the deed.

The Interveners

1. Notwithstanding the ultimate determination here concerns the division of property between the wife and the estate, it is necessary to refer to how the assets that are to be divided will be affected if the various interveners’ claims require consideration.  To that extent, the nature of their claims needs to be mentioned.

2. I have already briefly mentioned the claim of the husband’s sister. 

3. By Notice of Intervention filed 11 March 2014, Ms S made it clear she was desirous of being heard prior to the determination of the interests of the wife in the estate of the husband.  On that day, she filed a submission drawn by counsel attached to which was a set of orders.  The orders included that the executors provide administration accounts for the estate of Ms R. 

4. Ms R was the husband’s step-mother and in respect of her estate, the husband was the executor of the will.

5. Ms R’s estate comprised a home and some cash in the bank the total value of which was said to have been about $1.4 million.  Ms R died in August 2007 and the husband completed the necessary affidavit material filed in the Supreme Court of Victoria to obtain probate.

6. Ms S’s position was that she was unsure whether the estate had ever been completed and she asserted that on the evidence she had, the husband, and as a result of his death, his executors, had failed in their fiduciary duty to her.  Albeit vague, the assertion was that the husband had failed in his duty to avoid conflicts of interest, had intermingled estate assets with his own and had failed to keep proper accounts of the administration.  Ms S conceded she was not entirely aware of what had happened.  The position of the executors of the husband’s estate was that they were unable to assist in relation to many of the assertions. 

7. When this case began on 5 June 2014, counsel for the estate opened by indicating that the claim of Ms S was agreed by all beneficiaries.  That settlement provided that as indicated in the husband’s will, XX Pty Ltd was to be transferred to Ms S and that the estate would be liable for taxation issues relating to the transfer.  It was agreed that a sum of $300,000 would be retained in trust until the taxation rulings had been finalised.  Furthermore, $100,000 was to be paid out of the husband’s estate to Ms S along with her legal costs which had been determined at $84,437.

8. What was sought and agreed by all parties was that a declaration be made that XX Pty Ltd held property as bare trustee for Ms S.

9. Thus it can be seen that absent the consensus of the parties, the intervener’s claim would have taken court time as she was asserting that property held by the estate was not that of the husband in his own right but in his capacity as the executor of the estate of Ms R.

10. Ms S was intending to argue that it was the executors’ duty to not only identify the property but also to uphold the terms of the will of Ms R, collect her assets and then distribute them according to the terms of her will.  The will of Ms R was read in evidence. 

11. As can also be seen, the major asset of XX Pty Ltd was the Suburb A property which in due course, would have become a part of the residuary estate depending on what happened to Ms S.  The residuary estate would have belonged to the children of the husband and the wife.  As they were infants, the estate sought to be protected by having the Court approve the compromise which in reality was being advocated for and pursued by the wife.  It was one of the few things upon which all parties agreed.

12. As between Ms S and the estate, orders were made finalising her claim.  That however must be subject to the Court-endorsed compromise.

The infants’ compromise

1. Unashamedly, the wife agreed on behalf of the children, Y and J, to forego any interest in the A property.

2. Ms S’s evidence was not tested but I have accepted that the agreement between all parties indicated that there was a justifiable basis for the relief being sought by her.

3. It was and remains, a relevant factor, that there was a possibility that such an intervention (even though the subject of some criticism because of its lateness), could have meant that there would have been proceedings in the Supreme Court and indeed, the possibility of anti-suit injunctive proceedings in this Court as a consequence. Common sense and pragmatism of all of the lawyers prevailed. That is relevant to the issue of whether these orders should be approved.

4. The husband’s sister said that in about 1990, the husband gave her the keys to the house in Suburb A in which she has since lived. The husband also financially supported her in various ways. Most importantly, notwithstanding what the husband set out in his will just before he died, Ms S deposed that the husband said that the house was hers all along.

5. XX Pty Ltd acquired the house in 1992 and has been the registered proprietor since. Apart from some encumbrances by way of bank mortgages, the legal title has remained with the company.

6. It must be observed that on the face of the husband’s will, there may have been little detriment to the sister because she was provided a place to live until her death and financial support as well. Her claim was compromised on the basis that she became the owner of the XX Pty Ltd shares.

7. The wife’s case was that she made no claim against XX Pty Ltd and, knowing that it owned the A house, made no claim for its inclusion in the dispute with the estate because she always regarded it as her sister-in-law’s home. She then said:

   Insofar as, under the terms of the will, the [A] property may fall into the residuary estate, it is my view that my children (the residual (sic) beneficiaries) would not wish to receive that property to the detriment of (the sister). (emphasis is mine)

8. The statement by the wife means that she acknowledged that as part of the claim she was making for relief under s 79 of the Act, she was no longer seeking an alteration of the interests of the husband (such as they may have been) in XX Pty Ltd. Similarly, it must also mean that to the extent that she acknowledged there was a long term interest of her children in XX Pty Ltd or its assets, she was no longer seeking such an alteration in her favour as against them. To pursue claims of that nature would have put her interests in conflict with those of her children. Thus to then say that the children abandoned that interest gives rise to the question of whether she had the ability to do so. There is significance in the fact that the wife is the unchallenged parent with sole responsibility for decisions about the care, welfare and development of the children.

9. This litigation has been very expensive for all concerned. That was a factor for the wife justifying the action she took. To continue to litigate including against her sister-in-law meant the continuation of the involvement of professional executors who were permitted to charge professional fees under the will. The husband’s sister would most likely have been successful because of the way the husband conducted himself.  The claim of Ms S also included an amount for costs incurred to that point but to litigate further may have included significantly more. That was money out of the Estate which ultimately fell to the children.

10. Thus, to the extent that the wife and the Estate might be criticised for not attempting to protect the rights of the children, this was a pragmatic decision based on the likelihood of costs being unnecessarily expended and with the prospects of the husband’s will being altered because of Ms S’s testators’ family maintenance claim.

11. The wife as sole guardian has not only the power but also the responsibility to decide whether actions should be pursued on behalf of the children. To the extent that that might be open to argument, the Court’s scrutiny of such a decision in a parens patriae capacity was said to solve the dilemma.  It is probable that this sort of decision is an incident of parental responsibility but the estate and the husband’s sister wanted something more certain.

12. Apart from the trust funds to which I turn below, the wife will be the only support for the children. Both children are being educated in the private school system and that had begun before the husband’s death. Orders could perhaps have been pursued under s 79 of the Act for the purposes of making a property order in favour of the children but that would not have alleviated the stress of the litigation and the obvious respect that the wife had for Ms S’s entitlements.

13. Whilst there is no equivalent of r 15.08 of the Victorian Supreme Court (General Civil Procedure) Rules 2005 in the Family Law Rules which provides that a compromise will not be valid without the approval of the Court, all agreed that I should determine the matter on the basis that this Court had and was exercising the parens patriae powers that might arise in respect of the administration of an estate. I consider there is such a power in s 67ZC of the Act and it should be exercised here. Even if s 67ZC is limited to the supervision by the Court of parental responsibility and therefore the power to consider the compromise does not lie there, I was dealing with the Ms S claim by agreement with all parties on an accrued jurisdiction basis. The power to consider a compromise at law is found in the rules of most State Supreme Courts but here, it is specifically found in rule 15.08 of the Victorian Supreme Court rules.

14. In considering the possible conflict of interest here, I take into account that the children do not have independent advice. It is clear that the wife has been advised by her legal advisers that the compromise is in the best interests of the children.

15. In my view, because of that possible conflict, it is appropriate for this Court to decide whether the compromise sought by the wife should be allowed.

16. Ultimately, in carrying out the examination and sanctioning of such a compromise, the Court is called upon to consider whether the decision by the wife is for the benefit of the children (see Gillespie v Alperstein [1964] VR 749).

17. The children are under the disability of not being able to make decisions for themselves. In some circumstances, the Court could order that they be so represented but to do so here would not assist in the pragmatic decision of the wife in endeavouring to stop the financial haemorrhaging that I accept had underlined her decision.

18. I am satisfied that the outcome, had this compromise not been reached, would most likely have been less favourable than what could have been the possible ultimate interest of the children. 

19. In Fisher v Martin [2008] NSWSC 1357 it was noted that the responsibility of the Court is protective in nature and the approval or disapproval will be determined on whether or not the agreement is or is not beneficial to the interests of the person under the legal incapacity. It is for the Court, not the parties, to determine whether the compromise will be beneficial to the infant.

20. The determination must weigh up whether it would be in the interests of the children to reject the arrangement and continue the proceedings in the hope that they will ultimately benefit by receiving the property. That must be seen as a risk here because of what the continuation of this litigation would have created (see Karvelas (by her next friend) v Chikirow (1976) 26 FLR 381).

21. Taking all of that into account, I have formed the view that the compromise is in the interests of the children.

Other beneficiaries under the will

1. Paragraph 3.4 of the husband’s will provided that if there were sufficient other assets in his estate, he desired that his children from his former marriage together with his various grandchildren, also benefit.  In my view, those matters are irrelevant to these proceedings because the estate can only distribute to those beneficiaries if there is sufficient equity.

2. Paragraph 4 of the will then provided for the residue as I have described it at paragraph 23 of these reasons for judgment.

The claims by the husband’s adult children

1. A number of claims also arose in the form of statements of claim.  The first was filed on 17 March 2014 by Ms B in her personal representative capacity of the Estate of Mrs Brown.  Mrs Brown was the husband’s first wife.  This claim arose out of the husband’s family law proceedings in 1990 with his former wife who is now deceased.  In 1990, that claim involved a variety of things including the payment by the husband of weekly payments and a lump sum payment as well.  It was asserted by the claimant that whilst the husband did make weekly payments, he had not fulfilled his obligations under the Court’s 1990 order and therefore a claim of $244,000 was made.

2. Also on 17 March 2014, a statement of claim was filed by Ms C and her husband Mr C.  Ms C is the daughter of the husband.  These claimants alleged that there was an agreement between themselves and the husband under which they would lend him money from time to time repayable on demand.  The statement of claim set out the basis of that and the relief sought was a payment by the estate of $125,000.  This was a contractual claim.

3. In opening the case for the estate on 5 June 2014, its counsel indicated that these last mentioned claims were “unreservedly denied” but only a day or so later, that was altered to an admission at least as to part of the liability. It was asserted for example that there had been no attempt by the intervener or the deceased to exercise the powers under s 105 of the Act to enforce the family law order debt for over 23 years. What was concerning however was that, if one also factored into the claim an interest component, the liability exceeded $600,000.

1. Like the other claims, the claim of Ms C and her husband was compromised.

2. In addition to those claims, there was a further claim mooted under the Victorian Testators’ Family Maintenance Provisions but that did not proceed.

3. On 10 June 2014, a compromise was reached and an order was made with the consent of all parties.  That order began that the estate (conditional upon there being sufficient funds) was to pay to all of the parties mentioned as interveners above (obviously other than Ms S) the sum of $150,000 which sum was accepted in full and final settlement of all claims of the nature I have just described.

4. Other provisions of the agreement tendered to the Court included matters relating to personal chattels but they are not matters that I need to deal with.

Priority of payment

1. The wife sought that she retain, or have transferred to her, a variety of properties including the Queensland apartment.  There was no dispute about the transfer of the titles to the properties other than the Queensland apartment.  If she retained that, the sale proceeds of Business Z would be expected to pay costs, Ms S’s claim, liabilities of the estate and the amounts due to the interveners under the orders of 10 June 2014.  In final submission, it was said by counsel for the wife that the interveners bargained for, and consented to, orders for payment of monies only on the basis that there were sufficient funds in the estate.  Thus, in the normal course of the administration of an estate, the legacies abated and a person named as a legatee may lose all or part of the legacy if there were not sufficient funds available.  It was clear that the wife saw that as a real possibility if she retained the Queensland apartment.

2. Counsel for the wife referred to the decision of Moss J in Mason v Hannaford; Mason-King (Intervener) (1993) FLC 92-398. His Honour noted that once a point in the determination of the s 79 proceedings had been reached where all matters under that section had been taken into account, there was no basis to take into account as a relevant factor, the entitlements of the third parties merely because they would suffer or alternatively benefit in some way if a property order was made. To take those matters into account, his Honour thought, was “to go outside the ambit of s 79” (see 80,055).

3. In his submission, counsel for the estate simply referred to the standard approach of dealing with the case as if the husband had not died.  The determination of the husband’s interests and the consequent alteration of those interests would ultimately leave the estate in a position where it either had or did not have sufficient funds to satisfy its obligations.  The judgment of Moss J needs to be cautiously considered because there was a successful appeal (see Mason v Mason c/o Hannaford; Mason-King (Intervener) (1994) FLC 92-446), but most importantly, in 2005, s 79(10) was inserted in Part VIII of the Act. That provision permitted parties other than a party to the marriage to participate “inter alia” if they were a creditor of a party and may not be able to recover the debt if the order sought by a party to the marriage was made.  The claim of the husband’s sister does not affect the determination except in relation to the question of her costs and the lump sum payment she is to receive.  All of that is coming out of the assets of the parties to the marriage or either of them.  The same must be said in respect of the other interveners who compromised but whose claims lay in contract and Part IV of the Administration and Probate Act 1958 (Vic). Section 79(10) provides:

   Any other person whose interest would be affected by the making of the (property) order…may intervene.

   Section 79(10) entitles those interveners to become a party to the proceedings and participate. It does not guarantee payment of their debt but rather, entitles them to consideration about whether, and if so by whom, they should be paid.

4. Section 79(1) provides that in property settlement proceedings, the Court may make such order as it considers appropriate with respect to the property of the parties to the marriage or either of them, altering the interests of those parties in the property. That particular order is not to be made unless the Court is satisfied that in all the circumstances, it is just and equitable to make it (s 79(2)).

5. Section 79(4) provides that in considering what order (if any) should be made, the Court is to take into account the matters referred to in s 75(2) insofar as they are relevant. One of those matters is seen in s 75(2)(ha) which provides that the Court is to take into account the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s “debt” so far as that effect is relevant.

6. In my view, it is therefore relevant for the Court to take into account in its determination of the matters between the wife and the estate that there are creditors. Creditor is not defined in the Act. In my view, it includes any person who has an entitlement in law to be paid from or by one of the parties. Persons who seek a share in a deceased’s estate by virtue of Part IV of the relevant state legislation are in competition with the other person seeking an alteration of property interests. Both seek relief based, in part, on a maintenance entitlement. The entitlement of the wife under s 79 arises out of a recognition of her contributions and the factors set out in Part VIII of the Act. The creditor is entitled to be considered but not necessarily paid because, had the payment been made prior to the s 79 order being made, there would normally be less to divide between the husband and the wife. The Court is also obliged by s 75(2)(n) to consider the terms of any order made or proposed to be made under s 79 in relation to the property of the parties.

7. In my view, when determining the alteration of the interests of the wife and the estate, the Court is obliged to consider but not necessarily absolutely protect, the interests of the creditors. For the reasons that follow however, I am not sure that it makes a significant difference here to the outcome because on a contribution basis and even making an allowance for the factors in s 75(2), I would not give the wife all of the equity in the Queensland apartment.

The “money grab”

1. On the day the husband died, the wife went to the business premises under instructions from the husband to collect an envelope which was said to have had money in it.  Apparently, the envelope was not available and the following day, the wife’s father went in and collected the envelope.  In the course of cross-examination of one of the executors, he observed that he understood, but did not really know, that the wife had taken $100,000 from the business through this envelope.  Indeed, when the wife was giving evidence, she said that she did not look inside the envelope but was later told by her father, who kept the envelope in his safe, that it contained $10,000. 

2. This whole issue was a complete distraction.  Counsel for the wife accused one of the executors of dissembling because this “money grab” was not mentioned until late in the proceeding at a point in which the wife had an expectation that consent orders would be made.  It was said that by that time, she had withdrawn her application to remove the executors.  I return to the complaints against the executors next.  It was submitted by counsel for the wife that this issue was an “unwarranted smear” against the wife.  In reply, counsel for the estate said it had been raised to show that the executors were more than warranted in treating all potential claimants with caution. Having regard to the various claimants of this estate and the complexity of the matters out of which those claims arose, I accept on that basis that there was some justification for the issue being raised but the facts were unclear until the wife gave evidence. 

3. The husband died in a hospital in close proximity to the Business Z premises.  It was the wife’s evidence, which could not be challenged seriously by the executors, the husband had told her to go to the business premises and collect an envelope with her name on it.  It would seem that on the afternoon of his death, the wife did just that.  However, whose money it was and what it represented remain a mystery.

4. Each of the two executors gave evidence about this issue and indicated that they were not being critical of the wife nor did they know anything about it other than what they had been told.  They had not investigated it beyond that point.

5. It was the wife’s position that the husband’s adult daughter had got in first and taken the bulk of the cash in the business safe which she had understood totalled $100,000 leaving her with $10,000. The wife conceded that it had not only not been mentioned in her affidavit but it had also had not been mentioned to her solicitors.  It was an unusual situation because, as part of these proceedings, there was the claim of the adult daughter for the refund of money she said she had lent to her father. I found it perplexing that, knowing the daughter had made a claim against the estate, the wife would not have raised this as a justification for rejecting the daughter’s claim.  That is, if the daughter was owed money under a contractual arrangement with her father, would this “money grab” by the adult daughter not have satisfied that contractual claim?

6. I described this issue as a distraction: the claim of the daughter settled for reasons mentioned above.  It was not sought by the estate to include this money taken from the business in the determination.  Indeed, when the executor who raised it was cross-examined, he readily confirmed that he had simply been told about it but had done nothing about it because at the time, he had not had legal advice from the solicitors who ultimately were to act for the estate nor did he feel that he had to do much more about it in the proceedings. 

7. To the extent that it was submitted by the wife that the raising of the issue reflected badly on the executors, I reject that. To the extent that Counsel for the estate urged the Court to criticise the wife for not being a candid witness, I decline to do so. I accept the wife’s evidence that she did what she did on the instructions of the husband and that at the time she was distressed because of his death and had the responsibility for the two children.  Be that as it may, it would have been a much more sensible approach to have raised the subject and told the executors what she had known.  The silence on the issue just exacerbated the confusion.  I can understand how these two executors who are not lawyers, had difficulty trying to work out what to do. 

The complaints by the wife against the executors

1. As the trial began, counsel for the wife sought an order removing the executors to take effect as soon as the proceedings were concluded. He said the wife had lost all confidence in them. Thus, the wife was content for the executors to fulfil their roles including in relation to the proceedings but once they had the assets in and under their control and became trustees, they should be replaced. The basis of the removal of the executors was said to lie in s 34(1)(c) of the Administration and Probate Act 1958 (Vic) (“the State Act”). It was common ground that this was another exercise of the Court’s accrued jurisdiction.

2. This issue did not ultimately require judicial determination.  Counsel for the estate said it was abandoned and counsel for the wife remained silent on the point.  In my view, the “money grab” issue earlier mentioned did not alter the fact that the evidence did not support the removal of the executors.  In final submissions, the order was not pursued.  Two important observations must be made.  First, the best part of five days of hearing was spent on a close examination of the role of the two executors but also the lawyer who gave them commercial advice.  Secondly, a specific order has been sought by the wife for the referral to taxation of the professional costs’ claim by the solicitors who originally acted for the executors prior to my order removing them from acting.  Their bill of costs is still disputed by the wife.

3. In the final submissions by counsel for the wife, even though the application to remove the executors was abandoned, it had not gone away.  The complaints about the executors and indeed about their evidence formed a very significant part of the final submissions.

4. Having heard the evidence over five days and then the subsequent days relating to the family law dispute, I can well understand the dilemma faced by the executors.  They were required to obtain advice in a very contentious dispute involving not only the wife but also the husband’s adult children, employees of the company that ran the business and the court process itself.  Whilst the will provided for them to be paid professional fees, I am satisfied that the demands on their time were significant and the situation was not made any easier by the involvement of two firms of lawyers one of whom was handling the non-family law issue and the other, the family law dispute.  At worst, there was confusion but I do not accept there was any malafides nor more importantly, do I find the conduct of the executors fell within the description in s 34(1)(c) of the State Act. That view is taken bearing in mind the following authorities.

5. In Dimos v Skaftouros and Ors (2004) 9 VR 584 the Victorian Court of Appeal examined the relevant State provision. Winneke P said at paragraph 13:

   It must be steadily borne in mind,…, that the court will not lightly exercise its discretion to remove a person who has been chosen by the testator as the personal representative.  However, it is the welfare of the beneficiaries and the protection of their interests in the estate which must be regarded by the court as the paramount considerations in exercising the discretion.

6. In Dimos, Dodds-Streeton AJA, with whom Winneke P and Batt JA agreed, examined a number of authorities in relation to the question of conduct.  Reference was made to a judgment of Ashley J in Monty Financial Services Limited v Delmo [1996] 1 VR 65 in which his Honour said that it was impossible to accept that serious dereliction of duty as an executor did not make that person unfit to hold the office. He said it could not matter whether the dereliction was born out of intent or carelessness or of incompetence. In each case, the actual or potential deleterious effect upon the estate and the beneficiaries was the same.

7. Although counsel for the wife began the case by indicating that the wife had lost confidence in the executors, cross-examination went much further.  That was significant because at that time, the wife had not had her evidence subjected to cross-examination.  There could be little doubt that the wife and her lawyers were frustrated but I do not find the executors were careless or incompetent in the context of the many things that were then happening.

8. As Dixon J (as his Honour then was) noted in Miller v Cameron (1936) 54 CLR 572 at 580 in the context of a trust case relating to the removal of the trustee, the decision to remove a trustee required the court to form a judgment based upon considerations “possibly large in number and varied in character” which combined to show that the welfare of the beneficiaries did not justify the continued occupation of the office of trustee. As his Honour said, the judgment must be largely discretionary. It is important therefore to look at what occurred in this case, in context.

The submission of the wife

1. Counsel for the wife submitted that the “attitude” of the executors towards the wife was concealed from her at all times until well after the trial had commenced and it was only “fortuitously” the wife discovered the “attitude” of the executors.  That was a broad and sweeping statement which in my view, was unsupported by the evidence.  Counsel submitted that where there was a conflict in the evidence between the wife and the executors, that of the executors should be rejected.  I reject that.

2. Counsel for the wife said that the wife’s position was that the executor’s commission should be paid to Mr Gould fixed in the sum of $90,000 for his role in the entire administration of the estate and for Mr Savva, a fixed sum of $36,000.  An order was also sought that the executors’ family law solicitors be paid $172,000 and the non-family law solicitors Firm Q, the sum of $161,025 together with a charge-out rate of $550 per hour including GST capped at $20,000 for the winding up of the estate.  The costs were a very significant issue when the case began particularly as the executors were seen as creditors of the estate.  The very size of the bills also indicates the degree of satisfaction on the wife’s part that at least that amount of work was done.

The accusations against the executors

1. In his cross-examination, counsel for the wife put to Mr Gould that after the proceedings had begun, only one court order had been complied with in a timely fashion; Mr Gould disagreed.  He did however concede that not all had been complied with in a timely fashion. 

2. When she was cross-examined, the wife acknowledged that the executors were not trained but indeed had been appointed because the husband had trusted them and they were friends, albeit professionals.  In a candid statement, the wife conceded that the executors were “stuck in the middle” between she and the husband’s other adult daughter Ms C.  She then accepted that they acted on legal advice and when asked what they had done wrong, she replied with words to the effect:

   There could have been a level of compassion.

   Counsel for the executors then asked whether, had that occurred, the other adult daughter would have seen that as favouritism and the wife agreed.  To have acted with favouritism would have been contrary to what Dixon J, Ashley J and Winneke P were all talking about in the authorities to which I have earlier referred.

3. Counsel asked the wife about a string of emails all of which related to organising and managing the estate and collecting the assets.  To that issue, the wife’s statement was that she was hurt by the emails and it “appeared” that the executors had “bought into it”.  I find that the wife’s understanding of what was going on was clearly coloured by a number of things.  They included her frustration that there was a dispute with her step-daughter, a cessation of the flow of money that she had enjoyed prior to the death of her husband, various technical and legal problems associated with the transfer of a motor car and the withdrawal from her of another motor car that belonged to the business of which she was not a shareholder or owner.  There were also the almost disastrous financial consequences of the executors not proceeding to assist with the completion of the purchase of the home of both husband and wife on legal advice.

4. As the issues surrounding the executors were extensively cross-examined upon and I consider those issues may affect the costs issue as well as the findings in relation to credibility, it is important that I deal with them sequentially.

The purchase of B Street

1. Just prior to the death of the husband, he and the wife purchased the house at B Street under a contract.  All of that came to a halt.  Mr Gould confirmed that there was no secret about the property being purchased prior to the husband’s death including the loan application for the funds.  He confirmed that the husband had telephoned him to contact the bank to get the loan funding moving.  He knew that the purchase was being undertaken jointly with the wife even if he did not know the settlement details.  When asked why the estate withdrew from the contractual position after the husband’s death leaving the wife in the position of having to complete the contract herself and obtain the necessary funding, Mr Gould passed the responsibility to the lawyers acting for the estate.  The wife was able to complete the contract with the assistance of her father.  There was then a problem about money being released from the estate to repay the wife’s father.  Mr Gould was asked why it was necessary for the wife to go to court to get that money and his explanation was that the advice he was getting from the lawyers was to protect the interests of the estate.  He was not able to say why the estate withdrew from the contractual situation.  This was only days after the husband had died.  It was put to Mr Gould that he had a grudge against the wife.  He denied that.  In isolation, this incident would appear to be innocuous but it is important that it be looked at contextually.  There were many things going on in the estate and the wife’s statement about the executors lacking compassion adds some insight.  As a whole picture however, it is not difficult to see how in the very early stages of the arrangements after the death of the husband, the executors needed to put themselves in a position where they knew fully what the estate was about.  I would not criticize the executors for their role about that.

The boxes of chattels

1. At the same time as the house issue occurred, an ugly incident occurred in relation to chattels.  There was a dispute about what was in boxes and what was to be examined.  That dispute required court intervention and I made orders at the time.  Mr Gould was questioned as to why that was all necessary.  His answer was plausible.  He said that he had been told that the various items belonging to the husband had been boxed up at a time when the parties were not living together so his conclusion was that the items belonged to the husband.

2. The estate adopted its position, no doubt fuelled by the adult daughter, based on logic and an apparent assumption as to legal (but not necessarily equitable) ownership. I am not at all convinced that this issue warranted the heat that it engendered. As counsel for the wife put to Mr Gould, the wife was claiming that the property was hers as well as that of the husband and the children. His response was that he would have disputed that. There is a very clear distinction here between legal and an equitable ownership of property. Even if the wife had no legal interest, the injunctive orders could have been made simply on the basis that the wife was going to pursue items that had belonged to the husband under s 79 of the Act. I would not criticise executors for not understanding the subtlety of that. In that very period (July 2013) Mr Gould received an email from the husband’s adult daughter Ms C. It was a plaintive plea to Mr Gould to put the boxes in a “safe place” because otherwise they would be left in the sole possession of the wife who could go through them and “no-one will know what she has removed”. Unflatteringly to Ms C, the email then went on to say:

   This is very disturbing and certainly not a fair approach given we all know her motives…to suck the Estate dry and get anything of value in her clutches.

   Those last words alone indicate the enmity between the wife and Ms C which permeated this period of time.  With Mr Gould’s knowledge of where the items had been previously stored and the unflattering remark of Ms C, it is hardly surprising that he adopted a cautious approach.

The valuation of Business Z

1. A substantial dispute in this case had been the value of Business Z and ultimately, its sale. 

2. An order was made on 4 June 2013 requiring a valuation to be undertaken of Business Z.  Counsel asked Mr Gould whether he had done anything to put the train in motion and he named the firm of chartered accountants who he said took a long time to undertake the process.  He confirmed that by September 2013, the wife was chasing the valuation.  Mr Gould passed the request on to the solicitor from whom he was getting advice.  That was Mr N.

3. Mr N is a partner of Firm Q.  On 9 September 2013, he wrote to the solicitors for the wife saying that the company which owned Business Z would undertake a formal process of selling its enterprise.  Notwithstanding the order of the Court of 4 June 2013, Mr N reported that the executors expected to receive the confidential valuation following which they would determine the price for the sale.  The letter went on to say how secretive the process would be because of the “peculiar nature of the enterprise” and the desire of the estate to limit the dissemination of the knowledge of the sale or the process to the public generally.  That letter was directed to the wife on the basis that she was anticipated to be a potential purchaser.  However, it had the appearance of flying in the face of the Court’s order.

4. On 17 September 2013, Mr N wrote to the solicitors for the wife saying that given that the entity which owned Business Z was not a party to the proceedings, he had difficulty with the proposition that the enterprise would form part of the assets available for division in the proceedings. That was an ill-considered statement having regard to the fact that the shares in the company (to the extent that they were owned by the husband), was property to which Part VIII of the Act applied. He observed that the orders of 4 June 2013 made no reference to the wife being provided with a copy of any formal valuation. One might wonder why an order of a court was made for the purposes of obtaining a valuation if the litigants were not to see it. What other purpose could it be for? Importantly, when that order was made, the executors were represented by experienced counsel. It is not difficult to see the clash of ideologies. The executors were desirous of obtaining a price for the sale of Business Z by a process that may have included a number of family members as potential purchasers. The wife would have had an advantage over other family members had she been made aware of the valuation. I have little doubt that the advice of Mr N made good commercial sense. If there is to be any criticism of that advice it is that a more prudent approach would have been to have applied to the Court for an exclusion of the wife from having access to the valuation. It is important to also observe that there was no criticism of Mr N in the final submission of counsel for the wife save that the evidence “as a whole sought to imbue the administration of the estate with a complexity which it never had”. I reject that submission on the basis that whilst it might have been prudent for Mr N to expand his horizon and knowledge in relation to the family law proceedings, I have no doubt he was looking at this purely from the point of view of the responsibilities of the executors as administrators of the estate. It would be difficult therefore to criticise Mr Gould or his co-executor if that was the source of their advice.

5. It is also to be observed that the final orders sought by the wife include the payment of Mr N’s fees and there has not been any suggestion of any impropriety on his part, nor could there be.

6. I make the last observation because when counsel for the estate invited the wife to withdraw the complaints against the executors, she said she had reservations about doing so but then volunteered that it may have been that they acted the way they had because of the influence of other people.  In my view, the influence to whom she was referring could not have been Mr N.

The sale of Business Z

1. Ultimately, it was the husband’s adult daughter who became the purchaser.  Mr Gould was cross-examined at length about the sale price being inconsistent with the original valuation.  The matter was compounded by confusion between the sale of the business as an asset of the entity and the shares in the entity which conducted the business.  In addition to his role as the executor, Mr Gould was also the accountant for the company.  Having heard him cross-examined at length, I am satisfied that he made a proper decision to advise on and agree to the sale to the daughter because he knew the value of the various assets which were interlinked with the companies.  I clearly understood the inference that counsel for the wife wanted me to draw in respect of the cross-examination of Mr Gould when he put to him that the purchaser of Business Z got “two for the price of one”.  Whilst ignorance of the accounting situation may have given the appearance of some underhanded deal, Mr Gould properly and adequately explained the accounting arrangements which were otherwise not challenged.

2. Counsel for the wife cross-examined Mr Gould about the difficulties the valuers had in gaining access to property.  Mr Gould’s response was that he did not know why or who had denied that access.  On that basis, it would be hard for me to be critical of Mr Gould’s cooperation with the wife in sorting out the valuation of property.

3. Even on the subject of the accounting, counsel for the wife put to Mr Gould that in the circumstances that the wife faced, a small dividend from unappropriated profits shown in the balance sheet of the company could have been made.  Mr Gould’s response was that that could have happened but the company did not have the liquidity.  The issue was not taken any further.

4. Whilst this Court jealously guards the importance of compliance with its orders and at the same time requires parties to be frank and candid in relation to disclosure of all things including valuations, I do not find in this case that there is sufficient evidence to indicate that the wife was excluded for an illicit purpose or that the executors had taken some position contrary to her interests.

Correspondence with the wife about money

1. The wife had been required to return to the business a BMW motor car that was registered to and owned by the company.  When Mr Gould was asked why there appeared to be a trade-off between the $700,000 that the wife was looking for to complete the mortgage arrangement and repay her father, Mr Gould observed that there was a shortfall and the company needed to attend to its obligations.  Undeterred, counsel for the wife observed that the wife had not only driven this BMW but also that it had personalised number plates with her initials.  Again, when asked why this car was requisitioned, Mr Gould said it was on the advice of the solicitors particularly in circumstances where the vehicles were subject to a hire purchase obligation of the company. 

2. Counsel then suggested that there was no reason to simply “turn off the tap”.  Mr Gould’s response was that the company did have a “pretty tough year” and that things had started to decline.  Counsel put to Mr Gould that the husband could afford to pay for these things but Mr Gould, who obviously was also the husband’s accountant, denied that was true.  Counsel for the wife did not pursue any line of questioning about the company’s liquidity or financial position.  In the contest of the evidence of the $100,000 cash sitting in the company safe, it was hard to get any sense of just what the company’s financial position was.  That was all irrelevant though because the business was sold and it was not suggested by the wife that the company structure had any other assets of value than the proceeds of the sale.

3. Counsel’s line of cross-examination was that Mr Gould had done something wrong.  Counsel confirmed that the wife had been told that the school fees would no longer be paid and she was not welcome at the business premises.  Mr Gould indicated he did not know where all this was coming from and, indeed, in respect of the latter was surprised.

4. I was left with the very strong impression that the executors were following advice and that they were endeavouring to call in the assets.  It was not put to the executors that any arrangements had been offered to offset these benefits that the wife had been receiving.  Nor was it explained how the wife was receiving the benefits that she was from the company other than that she was engaged on some consultancy basis.  It was the wife’s evidence that she was a homemaker and that the husband had made all of the decisions of a financial nature.

A proactive approach?

1. In light of the matters just mentioned, counsel for the wife put to Mr Gould that there was no proactive approach to the wife.  Mr Gould volunteered that he and his co-executor were told by their legal advisors not to sit down with the wife.  A similar approach appears on the evidence to have been made in relation to the other adult beneficiaries all of which meant that communication was in writing.  I find it was also balanced in relation to all beneficiaries for the reasons that follow. 

Correspondence with the husband’s adult children

1. I have already mentioned the unflattering email of the husband’s adult daughter.  The bundle of correspondence was tendered in evidence and far from it showing any partisanship on the part of the executors, I consider it shows a relatively balanced approach.  Whilst, at some level, Mr Gould may have appeared to have accepted the statement of the adult daughter, he acknowledged that he thought her position was reasonable at that time.  However, there is nothing to indicate that he had lost his objectivity nor his focus on his responsibility of administering the estate.  I take into account the observation made by counsel for the estate that both of the executors were professional men and no doubt had other responsibilities to deal with.

2. As late as February 2014, there was correspondence between the solicitors in which they disagreed about the various legal interests and entitlements.  The correspondence reflected their subjective views with which I might have disagreed.  Whatever their advice was, it is hard for me to criticise the executor for watching what was effectively a “ping pong” match.

3. One such example related to the Queensland apartment.  Mr Gould knew that the husband and wife had used the property as a holiday house.  He was unable to say what was on the inventory of chattels of that property.  What compounded the problem was that the wife offered to take the property as part of her entitlement at $1.45 million less the outstanding body corporate fees.  Only days later, the solicitor for the estate rejected the offer and the property remained on the market for sale.  When challenged as to why the estate executors did not accept the wife’s offer, Mr Gould indicated that it was never rejected but he conceded that the property was left on the market.  The solicitor for the wife wrote in December 2013 that the transfer of this property would mean that there would be no money changing hands but an adjustment could be undertaken in the final settlement.  Just exactly how that would work, remained unsaid.  In final address, it remained unsaid.  This property is the asset which is the only really disputed item between the estate and the wife.

4. I accept the evidence of Mr Gould that the estate, at that stage, had significant obligations to meet and there was a paucity of money.

The wake

1. One unseemly dispute between the executors and the wife which was resolved during the running of the trial concerned the “wake”.  It seems that an arrangement had been made for some catering of a “wake” after the husband’s death but the payment had still not been finalised.  When asked why nothing was done about it, Mr Gould indicated that he thought the bill was high and there was a lot of activity at that time so the bill was left aside.  Ultimately, consent orders were made in relation to that matter on 6 June 2014.

The use of two solicitors

1. The estate engaged one firm of solicitors to handle the administration of the estate and another for these proceedings.  The clear inference from the evidence was that there were communication difficulties between the firms and the executors seemed unsure as to who was taking what responsibility for correspondence.  When asked why that happened, Mr Gould said that there were all sorts of things being handled by one firm and as the husband had been represented by a family lawyer in the proceedings that had been issued prior to his death, it seemed to him, reasonable to continue that.  Mr Gould said that there was an argument between the lawyers about communication and the copying of each other with correspondence but the difficulties were resolved when the first firm of lawyers was removed by my order.  Mr Gould said things improved after that.

The U vehicle

1. A U vehicle is a large four-wheel drive vehicle about which the wife gave evidence.  She said it had been purchased for trips to the snow with the family.  In the context of the BMW vehicle being requisitioned by the company, the wife was asked why she was upset about the loss of the BMW when she had the access to the U vehicle.  Logically, she explained the difficulties were associated with using such a big vehicle in a suburban area.  However, that was not the problem that gave rise to her criticism of the executors.

2. An order was made on 4 June 2013 for the transfer of the U vehicle to the wife.  After the order, a roadworthy examination became necessary for the transfer and there were some repairs to be done.  Mr Gould said that he asked the wife to get a repair quote and she did.  The wife then produced to the business manager at the Business Z business premises, a notice of disposal and Mr Gould thought that she was given a cheque for the repairs.  Things then went wrong.  It seems that the vehicle had been registered in Queensland and when the wife endeavoured to transfer the registration, VicRoads refused.  The wife asked Mr Gould to attend at VicRoads and he had not done so.  He was criticised for that.  Mr Gould’s view was that he had done all that was required of him by signing the transfer document.  In addition, the insurance expired during the intervening period and it was the wife’s view that, as she was not the owner, she could not renew the insurance.  There was some disagreement in the cross-examination as to who was right about that and I am not required to make a finding.

3. What ultimately transpired was that the wife had to struggle with the transfer of this vehicle herself.  The 2013 orders had not contemplated what was required.  I do not understand why the personal attendance at VicRoads was required.  I do not understand the problem related just to a form.  I do not consider Mr Gould was obstructive.  Neither he nor the wife adequately explained the problem.  Thus it is not appropriate for me to criticize Mr Gould. 

4. Things were compounded by the fact that an employee of the business named Mr W had been the person responsible for business management after the husband’s death.  It seems that he had some significant role in its administration prior to the husband’s death.  I did not hear evidence from Mr W.

The girls’ trust

1. The husband created two trusts for the children of this marriage.  The substance of the investment lay in bank accounts in two different banks.  In March 2014, as a result of consensus at Court, agreement was reached for the transfer of the responsibilities of trusteeship to the wife.  Thus, should she so desire, the wife could use those funds for the maintenance of the children.  That was particularly important in relation to her obligation to pay private school fees.  By June when Mr Gould was cross-examined, he was unaware of why the bank account transfers had not been completed because he had signed documents weeks before.  He was able to tell me that he emailed the documents to the account manager and he believed that they were lodged with the National Australia Bank two weeks later.  The other account was with the Bendigo Bank and that had taken some time longer.  It was common ground that these accounts were never part of the estate.  Even as late as the final submissions from counsel for the wife, orders were sought that that transfer be completed.  I am unsure what the problem was because Mr Gould made clear that he had sent off all documents.  Despite the agreement in March, no orders were made.  The assurance of Mr Gould is comforting but as a precaution, I shall make orders to give effect to the agreement.

The valuation of B Street  

1. There was even a dispute about the payment of the valuation account for the B Street property which had been required for Court purposes.  When asked why the executors had not paid their half of the account, Mr Gould indicated that he had not seen the account requiring payment.  To the extent that that had been sent between lawyers, I am satisfied that Mr Gould knew nothing about it.

The horse

1. It seems that the husband had an interest in a racehorse.  Conflicting pieces of evidence were given about whether there was an interest and it was left to Mr N to clarify.  Contrary to what the executors seemed to understand, Mr N did have documents in relation to the horse but he said that he had given them to the family law solicitors.  He was receiving monthly bills from the trainer but all of these he said were handed to the solicitors who were handling the family law side of matters.

2. For reasons earlier articulated, even if the executors had personal responsibility for the administration of the estate, if the two lawyers could not sort out the rights and the wrongs of not only the gathering in of the assets but also handling the family law matter, it is hard for me to criticise the executors.

1. The wife has net assets of $952,000 after I have ignored her father’s debt and her legal fees.

2. Taking from the two totals, the three amounts I have allowed as “joint” liabilities (that is, the Ms S liability, the $63,000 in debts and the executors’ commissions), the estate needs to include $1,748,000 for possible division with the wife.  The property attracting the power of alteration is therefore $1,748,000 and $952,000.  That is, a total of $2,700,000. 

The assessment of contributions

1. In Lovine and Connor and Anor (2012) FLC 93-515, the Full Court held at paragraph 42:

   As part of the process of ultimately determining just and equitable orders under s 79 there is included a complex of discretionary assessments and judgments of many components of contribution, only some of which are capable of measurement in money terms and then often only in historical, rather than present, money terms. Any dictate to the effect that in the course of assessment each disparate component part or kind of contribution must be assigned a discrete and identifiable value or percentage is antithetical to the nature of the discretion involved.

2. In that same year, the Full Court in Dickons & Dickons [2012] FamCAFC 154 said there was little to be gained and much to be said against approaching the task of assessing the contributions of the parties by trying to attach various percentages to various components of those contributions. In other words trying to assess contributions on the basis of the various aspects of s 79(4) can be difficult particularly having regard to the fact that the nature of the contributions is distinctly different. Here, the estate agreed the comparison of tasks was unnecessary because the assessment concerned the treatment of the contribution of the husband because of the initial contribution and the inheritances. It was said that otherwise, contributions were equal. Counsel for the wife described the issue in general terms. He said the wife preserved the property and maintained it up until trial but she also contributed to the welfare of the family to the trial. Counsel submitted that 58 per cent of the net value of the assets represented a just and equitable recognition of the wife’s contributions and “her future needs”. Thus, her contribution might be inferred at less than 58 per cent. In my view, whilst weight must be given to the wife’s tasks post-separation, she also had the benefit of the use of the property.

3. The Full Court warned in Dickons (supra) however that the task of assessing contributions is holistic and must ultimately represent justice and equity in the particular circumstances of that particular relationship.  The Full Court reminded everyone about the comments about giving over-zealous attention to the contributions referred to by the High Court of Australia in Norbis v Norbis (1986) 161 CLR 513 at 524.

4. There is an overwhelming sense that the husband’s initial contribution and the inheritance in 2008 are still reflected in the assets that either the wife has now or indeed the estate has.  Those significant contributions are to be reflected in the sorts of approaches taken by the Full Court in such authorities as Pierce and Pierce (1999) FLC 92-844. In Pierce, the marriage was of 10 years and the Full Court, in recognizing the vast bulk of the financial contribution came from the husband, divided the assets in his favour as to 70 per cent.  However, the assets were small and the husband had the two children.

5. In Bonnici and Bonnici (1992) FLC 92-272, there was a late inheritance and the Full Court, in re-exercising the discretion, divided the assets as to 55 per cent to the husband in circumstances where the trial judge had found equality.

6. Looking at other cases enables the litigant to compare but there are few cases where the nature of the contributions will be identical.  At the same time, it is important that this exercise is not just “intuitive synthesis” because if it were, it would fall into the area criticized by the High Court in Mallet v Mallet (1984) 156 CLR 605 and in particular, the observations of Deane J at 641.

7. There is no argument in this case about what the parties did.  On any view, the husband’s financial contribution was overwhelming and the wife fulfilled a much greater role in caring for the children both before and after the separation and an even greater role since the death of the husband.  On any view however, those two types of contribution could not be seen to be equal. 

8. As Coleman J said in Steinbrenner & Steinbrenner [2008] FamCAFC 193:

   Given that the evaluation of contribution based entitlements inevitably moves from qualitative evaluation of contributions to a quantitative reflection of such evaluation, there will inevitably be a “leap” from words to figures.  That is the nature of the exercise of discretion, whether it be in the assessment of contributions in the matrimonial cause, assessment of damages in a personal injuries case, or determination of compensation in a land resumption case.  In some cases, the “leap” is so great, and so unheralded by the discussion which precedes it as to render the reasoning process defective.

   The Court is obliged therefore to assess the entirely different contributions in money figures.  In this group of assets, the Business Z sale proceeds and the Queensland apartment came from the husband’s direct financial contributions.  In her role, the wife cared for the family but also enjoyed the fruits of what she acknowledged as the husband’s financial acumen.  The separation saw the wife’s role as a parent increase but the rapprochement meant the husband retuned to the children’s lives.  The evidence about what each did was minimal.  The period of separation to the husband’s death was short so that contribution was not significant by either.  Since the husband’s death, the wife has had sole responsibility for the children and has had to deal with the problems of the impact on them of the husband’s death.  Even so, the wife’s contribution was ameliorated by the use of the property and the fund set up for the children (albeit she may not yet have received that money).  Whichever way I view it, the husband’s contribution of virtually all the assets from sources outside the relationship must be seen as significantly greater, that is, more than double that of the wife in a group of assets like this.   In my view, that assessment should be reflected as to 70 per cent to the husband (or the estate) and 30 per cent to the wife.

9. Section 79(4)(e) then requires the Court in this holistic exercise to contemplate the matters set out in s 75(2) of the Act. As with the assessment of contributions, this exercise is similarly broad in terms of discretion. The wife intends to return to study no doubt to turn her mind to a career and the future security for herself. She has the care of the two children. She has no physical assistance from the husband but she will have the financial assistance by way of not only the $300,000 trust but also the balance of the estate which the executors have indicated they will transfer to her on trust for the children. The wife has significant accommodation which is reflected in the two real properties of substance even if both are significantly encumbered by mortgage. There is little equity in the M property.

10. I acknowledge that the wife has been significantly supported by her parents who seem to have funded her legal case to date.  As I earlier mentioned, the evidence about how that was to be repaid if at all, was vague.  I cannot discount the prospect that no claim will be made in the foreseeable future by the wife’s father.

11. Whilst the real properties now owned by the wife have to be looked at in the light of the net equity in them, the wife seemed to be suggesting that she had at least the capacity to keep one property as an investment because the tenants were paying sufficient to cover some of the mortgage.  That obviously reduces her stream of income but in my view, she has the capacity for employment.  While she also has the responsibilities of the children, their financial needs will be substantially covered.  The evidence supports the conclusion that the children have difficulties associated with their father’s death.  That will inconvenience the wife but I infer that the age and maturity of the children will assist that problem.

12. The obvious problem is that absent the wife converting all of the assets into cash, she has no money upon which to live.  If she sold all of the properties and repaid her debt to her parents, there would be only about $600,000 left and of course, she would then have to find accommodation for herself and the children.

13. In my view, there is a justification for an adjustment in the wife’s favour. It is difficult in a holistic way to attribute weight to particular factors in s 75(2) and I accept that this is not a precise science but on any view, the wife should have some cash which would enable her to either live on or invest for her support until such time as she can re-establish herself in the community.

Section 75(2) factors

1. In assessing whether an adjustment should be made in favour of the wife because of s 75(2) of the Act, I make the following findings:

   ·The wife is 35 years of age and enjoys “relatively” good health;

   ·The income of the wife is limited to the rent from the investments she has but she was employed as a consultant in the husband’s business and described her original position when she first worked for the husband as being in marketing. Although it was said that the wife had minimal capacity to earn and income, the wife said that she intended to undertake study for the opportunity to improve her employment capacity.  It was not disputed that since the relationship began, the wife has been the major homemaker and parent and I accept that that role has affected her potential to earn an income away from the entertainment business of the husband. But that said, nothing I heard suggested that she could not return to paid employment;

   ·The property and financial resources of the wife are limited bearing in mind the need to provide accommodation but this was never going to be a case where there was a significant amount of money to be distributed;

   ·There is no argument that the wife has the responsibility of the two children and is without assistance from the husband. It was not disputed that the wife wishes to be with the children. There is unchallenged evidence that the death of the husband has caused problems for the children and the wife has had to deal with that as she will into the future. It was not said however that her parenting responsibilities would preclude her from employment;

   ·The wife’s financial statement showed that she and the children lived modestly and her major expense related to mortgage commitments on property;

   ·The expenses associated with the schooling of the children and, in part, their future living expenses will be covered by the specific trusts set up by the husband. Further, it seems likely on the calculations I have done earlier that there is a prospect of a further amount being left over when all of the obligations of the estate have been paid. Whilst it is not a precise calculation and subject to the estate legal fees and commissions being in the ranges of what I have set out earlier, there may be as much as a further $700,000 available for the future maintenance of the children. In his final submissions, counsel for the estate made reference to the fact that the left over money would be paid to the wife as trustee for the children;

   ·The wife does not have a responsibility to support any other person except the children and no-one is currently providing her with financial support other than her parents;

   ·The wife has superannuation entitlements to which I have referred but those are inaccessible at this time because of her age. They do however represent a financial base from which she can build her future;

   ·There are no government pension considerations in this case;

   ·The standard of living of the parties was, at face value, of some affluence because there were expensive cars albeit they were leased and there was the Queensland partment but the husband’s death and the disposal of Business Z brought that lifestyle to an end. Whilst its continuation would be optimal in a perfect world, it was never going to be the same again after the death of the husband as he was the unchallenged primary financial manager ;

   ·The orders I propose will have an effect on the creditors of the husband but those obligations are his, or in this case, those of the estate. If a legatee misses out, that is unfortunate but that presumably would have happened whether the parties had separated or not. What has caused that problem here is the significant dispute that brought with it, large legal costs;

   ·It is unfortunate that there is such a modest amount to be divided but to simply treat the factors in s 75(2) as the most important would be to ignore the very significant financial contribution of the husband.

2. It is because of her personal need that I consider an adjustment should be made in her favour of 15 per cent making the overall adjustment 55 per cent to the estate and 45 per cent to the wife.  Forty five per cent of a “pool” of $2.7 million to which I earlier referred less the $952,000 that the wife has retained entitles her to a further sum of $263,000.  That sum can come out of the cash in the estate.  The estate can satisfy not only its liabilities but also the various legatees from the sale of the Queensland apartment.

3. If the payment is note made by 12 December, the Queensland apartment will be sold and the wife will be entitled to interest from 12 December.  If the wife wishes to buy the Queensland apartment from the executors, that is, pay them $1.137 million, she must elect to do so by 12 December and provide them the payment by 12 January 2015.  In my view, the overall outcome and the relevant underlying values is just and equitable to both the wife and the estate.

4. During the cross-examination of the Executors, questions were asked about trusts and accounts relating to the children that had not been implemented. Mr Gould seemed oblivious as the state of the transfers at that time maintaining (and I have accepted his evidence) that the paperwork had all been completed and he could not understand what the problem was. I have decided not to make orders on the basis that there are extant legal obligations on the Executors to fulfil their responsibilities. Again as previously mentioned, to the extent that I am misguided about that, the wife can apply to have the matter relisted on the question of the completion of the estate if she considers that the Court has jurisdiction and power to make the orders she envisages.

5. In final submissions, counsel for the wife set out in detail a set of orders that were proposed. Those orders included the transfer of the registration plates concerning the children. For the reasons I have set out, I do not consider I can make those orders but to the extent there is an unresolved problem, I will adjourn that issue unresolved. To the extent therefore that there is property and the Court has power to deal with it, the s 79 power will not have been exhausted. The dilemma lies with the necessity to then join the trustee, G Pty Ltd. I have not expected that to be a problem having regard to the statements made by counsel for the Estate.

6. I intend to give the Executors and opportunity to pay out the wife what I have ordered. Although this was not canvassed, common sense dictates that as the Estate has money sitting in its accounts from the sale of Business Z, that can and should be used ahead of distribution to other persons who are entitled to costs or legacies. I consider it sufficient time for the Executors to make a decision such that  by 4 pm on 1 December 2014, if the Executors have not paid to the wife $263,000, they immediately place the Queensland apartment on the market for sale. If terms and conditions cannot then be agreed with the wife, the matter can quickly be relisted before me and I shall hear submissions.

7. In his final orders proposed by the wife, counsel for the wife urged the Court to make an order that the Estate be administered by the executors “in the ordinary course” and upon its winding up, and “residual estate shall be transferred to the wife upon trust for the children”. Counsel for the Estate urged the Court to ultimately say that there should be flexibility to finalise outstanding matters and pay further costs of the executors and their lawyers. There was agreement during the trial about fixing sums relating to those matters but I accept that those amounts could only apply to expenses incurred to that date. I have taken into account that the Estate still has things to be completed but largely, it should now be straightforward. Importantly, there was no disagreement that the ultimate balance of funds should be paid to the wife as trustee for the children. Indeed, it was submitted that the executors would set up that fund. In my view, it would be better for the wife to set up the fund and control it bearing in mind her responsibilities as trustee for the children will include their financial well-being. Accordingly, I will order that upon doing all things as may be required to complete the administration of the estate, the executors pay the balance of funds to the wife as trustee for the children Y and J.

8. In his final submissions, counsel for the wife sought a variety of orders relating to property that I had understood had already been transferred. Section 79 relates to property to be transferred rather than that which has not been. It is common to make orders about what people keep in a settlement but that is usually because there is often dispute afterwards. That should not occur here but out of an abundance of caution, I will order that the wife retain to the exclusion of all other persons, the U vehicle, the real properties at S Street, Suburb T, B Street, Suburb T and P Street, Suburb M, and all other chattels and jewellery in her possession. In respect of the real properties, the Executors had apparently lodged caveats on behalf of the Estate and there would be no reason now why they should subsist because there is no longer any caveatable interest claimed by the Estate.

9. That to the extent that the Executors have any personal files of the wife and/or photographs of the wife and the two children of the husband and wife, they be forthwith delivered up to the wife as her personal property.

10. Counsel also sought the transfer of the registration number plate xxxx  but the evidence is not clear as to who owns it and how. Thus, to the extent that it is not property that I have divided under the orders I propose to make, that issue can fall in with the superannuation dispute.

11. A variety of orders were sought about how the estate was to manage the distribution of funds otherwise once the wife’s entitlement had been determined. In my view, there is no need for that order as the will and probate order govern those issues. To the extent that it has always been the wife’s concern about the costs incurred by the estate, I do not intend to deal with that issue now because I have separated those sums out from the assets to be divided. To the extent that the children as beneficiaries of the residuary estate have a concern that money has been wasted and thereby reduced their entitlements, I consider that issue is a matter that can be taken up with proper objections under the rules of this Court or that of the Supreme Court. As there was no agreement as to how that would be done, I propose not to determine it. It was submitted that the Court was exercising accrued powers in relation to that matter. I do not consider that it is appropriate that I deal with it without the solicitors whose accounts have been given notice of the requirements of an assessment or taxation. The wife wanted the matter referred to a taxation. I am not convinced the Court should simply do that on the basis of the findings I have made. If necessary, further proceedings can be taken and the wife can decide whether she has the standing to bring that claim if indeed, the costs issue really only affects the residuary estate.

1. I have also decided to make an order that if the Executors have in their possession or control various chattels and pictures that belong to the wife, they should be returned as it is hard to imagine why they should not be if that is her property. This was not an issue that was canvassed in the trial so I am unsure whether there is a dispute or not.

2. I have already mentioned the costs dispute but no specific question about the matters required to be established under s 117 of the Act have been canvassed. Thus, I will make provision that costs issues remain alive and otherwise, all extant applications will be dismissed.

I certify that the preceding Two Hundred and Five (205) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 14 November 2014.

Associate: 

Date:  14 November 2014