Carter v Law (No 2)

[2017] NSWSC 1229

Supreme Court

New South Wales

Medium Neutral Citation:	Carter v Law (No 2) [2017] NSWSC 1229
Hearing dates:	5 September 2017
Date of orders:	05 September 2017
Decision date:	05 September 2017
Jurisdiction:	Equity
Before:	Emmett AJA
Decision:	1.   Extend the stay ordered on 11 July 2017 to 5 September 2017. 2.   Confirm orders 1 and 2 made on 11 July 2017.
Catchwords:	SUCCESSION – executors and administrators – proceedings against executors and administrators
Cases Cited:	Carter v Law [2017] NSWSC 919
Category:	Procedural and other rulings
Parties:	Tina Marie Carter (Plaintiff) Elizabeth Margaret Law (First Defendant) Paul Anthony Pittin (Second Defendant)
Representation:	Counsel: MWE Maconachie (Plaintiff) PA Pittin (in person) (Second Defendant)   Solicitors: Tony Cox Lawyers (Plaintiff)
File Number(s):	2016/00355666

EX TEMPORE Judgment

1. EMMETT AJA: On 11 July 2017, for reasons that I gave on that day, I made orders in these proceedings[1] . In these reasons, I shall use terms as defined in the earlier reasons. I ordered the Executors to pay Ms Carter the sum of $30,000 and ordered the Executors to pay Ms Carter’s costs of the proceedings. However, for reasons that I then gave I ordered that those orders be stayed until 9 August 2017 or, if further affidavits were filed no later than 8 August 2017, until further order of the Court.

   1. See Carter v Law [2017] NSWSC 919.

2. There is some question as to whether the affidavits that were contemplated were, in fact, filed in accordance with the directions. However, the evidence now before me indicates that an attempt was made to file affidavits no later than 8 August 2017. Accordingly, to the extent that it is necessary, I will order that the stay be extended up to and including today.

3. Two further affidavits were filed on behalf of the Executors. One is an affidavit sworn 7 August 2017 by Ms Elizabeth Law, who is the oldest daughter of the Testatrix. The affidavit annexes a number of photographs showing the Testatrix wearing various items of jewellery. Ms Law gives evidence of seeing various items of jewellery in the possession of the Testatrix and asserts that the Testatrix was a lover of jewellery who often wore many items. She says that there is a reasonable expectation that a woman who loved wearing jewellery and who would wear multiple pieces every day would have many pieces of jewellery at the time of her death.

4. The other affidavit, sworn by Mr Paul Pittin on 16 August 2017, really does not take the matter very much further, other than to assert a belief that Ms Carter is in possession of jewellery of the Testatrix. Mr Pittin asserts that Ms Carter “abused her position” and used the funds of the Testatrix for her own expenses and, although she had Power of Attorney, was negligent in not cancelling insurance policies when the property of the Testatrix was sold, such that the insurance company continued to debit the account of the Testatrix for a further five years. Mr Pittin also asserts in his affidavit that the Testatrix wanted to include other family members as beneficiaries but noted that that was not attended to before she died.

5. The only reference to jewellery in Mr Pittin’s affidavit is where he says that the Estate was left in the hands of his solicitor. He says that his defence to Ms Carter’s claim is that “jewellery” was only lent to Ms Carter for use on a special occasion and was to be returned the next day. Mr Pittin asserted that the Testatrix had many arguments with Ms Carter asking her to return “the jewellery” and she would not return it.

6. Mr Pittin also made oral complaints about bad advice received from his solicitor. Whether or not the Executors should have taken proceedings on behalf of the Estate of the Testatrix against Ms Carter for recovery of jewellery in her possession may have been a matter upon which the solicitor was asked to advise. However, there is no evidence as to that matter presently before the Court.

7. The difficulty for the Executors, if there is any substance in their case, is that they have the onus of establishing that Ms Carter is in possession of identifiable jewellery that belonged to the Testatrix. I do not consider that the evidence that has been adduced on behalf of the Executors establishes, on the balance of probabilities, that any specific item of jewellery that belonged to the Testatrix at the date of her death is in the possession of Ms Carter. More importantly, there is no evidence of the value of any item of jewellery that may have belonged to the Testatrix.

8. Having regard to the nature of the additional material, I do not consider that a further substantive hearing would be warranted. In those circumstances, there is no basis for further extending beyond today’s date the stay that I ordered on 11 July 2017. It follows that orders 1 and 2 made on that day have now become effective. I propose to make the following orders:

1.   Extend the stay ordered on 11 July 2017 to 5 September 2017.

2.   Confirm orders 1 and 2 made on 11 July 2017.

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Endnote

Decision last updated: 13 September 2017