Chu v Ngar

[2015] NSWSC 1505

Supreme Court

New South Wales

Medium Neutral Citation:

Chu v Ngar [2015] NSWSC 1505

Hearing dates:

24, 25, 26 and 27 August 2015

Decision date:

20 October 2015

Jurisdiction:

Equity

Before:

Hallen J

Decision:

Orders that the Plaintiff’s Summons be dismissed.

 

Orders that the Defendant’s notice of motion filed on 17 February 2014 be dismissed.

 Stands over any argument as to costs to a mutually convenient date.

Catchwords:

PRACTICE & PROCEDURE – Self-represented Plaintiff at the hearing – On occasions prior to hearing, Plaintiff had legal representation – Duty of the court to ensure fair hearing – Applications for an adjournment made by the Plaintiff – Applications refused

SUCCESSION – FAMILY PROVISION – The Plaintiff, a child of the deceased applies for a family provision order under Part 3.2 of the Succession Act 2006 (NSW) – The Defendant, the executor of the Will of the deceased and mother of the Plaintiff – Probate not granted although application for grant recently made – Defendant the sole beneficiary named in Will – Estate consisting of cash and shares wholly distributed despite no grant of Probate – Jointly held property transmitted to the Defendant – Notional estate orders sought regarding property in which the deceased was a joint tenant with the Defendant – Extension of time for making Plaintiff’s application required as proceedings commenced outside the time prescribed by the Act – Whether adequate and proper provision not made in Will of the deceased for the Plaintiff – Whether order designating property as notional estate should be made – Whether requirement to establish special circumstances – Nature and quantum of provision, if any, that ought to be made for the Plaintiff

Legislation Cited:

Bankruptcy Act 1966 (Cth)
Civil Procedure Act 2005 (NSW)
Family Provision Act 1982 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656
Balajan v Nikitin (1994) 35 NSWLR 51
Bartlett v Coomber [2008] NSWCA 100
Bates v Cooke [2015] NSWCA 278
Bladwell v Davis [2004] NSWCA 170
Boettcher v Driscoll [2014] SASC 86; (2014) 119 SASR 523
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Brand v Brand [2015] NSWSC 52
Butcher v Craig [2009] WASC 164
Butler v Morris [2012] NSWSC 748
Caska v Caska [1999] NSWSC 289
Cetojevic v Cetojevic [2006] NSWSC 431
Chandler v Coulson [2015] NSWSC 172
Chapple v Wilcox [2014] NSWCA 392
Chen v Lu [2014] NSWSC 1053
Christie v Manera [2006] WASC 287
Cicek v Estate of late Solomon [2014] NSWCA 278
Collicoat v McMillan [1999] 3 VR 803
Collings v Vakas [2006] NSWSC 393
Crossman v Riedel [2004] ACTSC 127
de Angelis v de Angelis [2003] VSC 432
De Winter v Johnstone (NSWCA, 23 August 1995, unrep)
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2008] NSWSC 304
Diver v Neal [2009] NSWCA 54
Edgar v Public Trustee for the Northern Territory [2011] NTSC 5
Flathaug v Weaver [2003] NZFLR 730
Foley v Ellis [2008] NSWCA 288
Foye v Foye [2008] NSWSC 1305
Gardiner v Gardiner [2014] NSWSC 435
Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep)
Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490
Goodsell v Wellington [2011] NSWSC 1232
Gorton v Parks (1989) 17 NSWLR 1
Grey v Harrison [1997] 2 VR 359
Harrison v Harrison [2011] VSC 459
Haskakis v Hatzopoulos [2015] NSWSC 1408
Hawkins v Prestage (1989) 1 WAR 37
Hitchcock v Pratt [2010] NSWSC 1508; (2010) 79 NSWLR 687
Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134
Hunter v Hunter (1987) 8 NSWLR 573
Hyland v Burbidge [2000] NSWSC 12
In re Allardice; Allardice v Allardice (1910) 29 NZLR 959
In re Allen (Deceased); Allen v Manchester [1922] NZLR 218
In the Estate of Puckridge, Deceased (1978) 20 SASR 72
Kay v Archbold [2008] NSWSC 254
Kearns v Ellis (Supreme Court (NSW), Mahoney JA, 5 December 1984, unrep)
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Kohari v Snow [2013] NSWSC 452
MacGregor v MacGregor [2003] WASC 169
McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566
McGrath v Eves [2005] NSWSC 1006
McKenzie v Topp [2004] VSC 90
Madden-Smith v Madden (estate of the late Doris Linda Madden) [2012] NSWSC 146
Marks v Marks [2003] WASCA 297
Mayfield v Lloyd-Williams [2004] NSWSC 419
Moore v Randall [2012] NSWSC 184
Palagiano v Mankarios [2011] NSWSC 61
Phillips v James [2014] NSWCA 4; (2014) 85 NSWLR 619
Pogorelicv Banovich [2007] WASC 45
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808
Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep)
Re Buckland, Deceased [1966] VR 404
Re Salmon, Deceased [1981] Ch 167
Romascu v Manolache (No 2) [2012] NSWSC 87
Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473
Salmon v Osmond [2015] NSWCA 42
Shi v ABI-K Pty Ltd [2014] NSWCA 293
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
D H Singh v G K Singh; D J Singh v D H Singh; S Dillon v D Singh; G K Singh v D H Singh [2015] NSWSC 1457
Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253
Smith v Johnson [2015] NSWCA 297
Smith v Woodward (NSWSC, Macready M, 9 September 1994, unreported)
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Stewart v Stewart [2015] QSC 238
Strano v Jovcevski [2008] NSWSC 380
Sung v Malaxos [2015] NSWSC 186
Szypica v O’Beirne [2013] NSWSC 297
Taylor v Farrugia [2009] NSWSC 801
Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757
Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100
Underwood v Gaudron [2014] NSWSC 1055
Underwood v Gaudron [2015] NSWCA 269
Verzar v Verzar [2012] NSWSC 1380
Verzar v Verzar [2014] NSWCA 45
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Vincent v Lewis [2006] NZFLR 812
Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep)
Wilcox v Wilcox [2012] NSWSC 1138
Zannetides v Spence [2013] NSWSC 2032

Category:

Principal judgment

Parties:

Angela Chu (Plantiff)
Chow Ching Ngar as executrix of the Estate of the late Ching Chu (Defendant)

Representation:

Counsel:
Ms R Winfield (Defendant)

  Solicitors:
William Chan & Co Solicitors (Defendant)

File Number(s):

2012/397182

Judgment

Introduction

1. HIS HONOUR: Ching Chu (“the deceased”) died on 29 November 2011, aged about 72 years. He was survived by his wife, Chow Ching Ngar (“the Defendant”) and their two children, Angela Chu (“the Plaintiff”), and Winnie Chu, who is not a party to the proceedings and who has played no direct part in the proceedings, although she was present in court throughout the hearing.

2. In writing this judgment, I have borne in mind the admonition of the Court of Appeal in Underwood v Gaudron [2015] NSWCA 269, at [11], that “[t]he relevant principles can be stated briefly… [and that] in a case where the moving party had not always had (and might after the trial no longer have) legal representation, unnecessary length and complexity in a judgment is to be avoided”. However, it is to be noted that the hearing of these proceedings occupied 4 days, and as will be read, the only matters of importance agreed upon by the parties was that the Plaintiff was an eligible person and that she had not commenced the proceedings within the time prescribed by the Act.

3. It is, therefore, necessary to deal with all of the issues raised by one, or both, of the parties, whether legally represented or not. In the circumstances, it has not been possible to further reduce the length of the reasons for judgment. The case, unfortunately, demonstrates, yet again, the emotion and feelings of disappointment that is generated by family members in such claims.

The Claim

4. The Plaintiff commenced these proceedings by Summons filed on 21 December 2012, in which she sought a family provision order pursuant to Part 3.2 of the Succession Act 2006 (NSW) (“the Act”) and costs. A family provision order is an order made by the court in relation to the estate, or notional estate, of a deceased person, to provide from that estate, or notional estate, for the maintenance, education, or advancement in life of an eligible person. The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act1982 (NSW) (“the former Act”), which was repealed, effective from 1 March 2009.

5. As stated, there is no dispute that the Plaintiff’s application was not filed within the time prescribed by the Act (within 12 months of the date of the death of the deceased). It was commenced about 3 weeks out of time. In Paragraph 2 of her Summons, the Plaintiff sought an extension of time for filing the application “up to the hearing of the matter”. I shall return to this topic later in these reasons.

6. The court was informed by counsel, that the Defendant had recently made an application for a grant of Probate in common form, but that application, at the conclusion of the hearing, had not been determined: T48.47-T49.05.

7. On the second day of the hearing, for abundant caution, the following orders were made, with the consent of the Defendant (an explanation having been provided to the Plaintiff for the need to make such an order) (T79.30-T79.50):

“Orders, pursuant to Uniform Civil Procedure Rules 2005 (NSW), rule 7.10(2)(b), that the Defendant be appointed to represent the deceased’s estate and notional estate for the purposes of these proceedings.

Orders that any order entered or made in the proceedings binds the deceased person’s estate and notional estate to the same extent as the estate and notional estate would have been bound had a personal representative of the deceased person to whom administration had been granted been a party to the proceedings.”

The Course of the Proceedings

8. The matter, initially, was in the Registrar’s List (until the commencement of the Family Provision List in March 2013). On 5 April 2013, I ordered that the matter be referred to court annexed mediation, which mediation was held in July 2013. Regrettably, but unsurprisingly bearing in mind the course of the proceedings since then, the mediation proved unsuccessful and the matter has been before me on a number of occasions.

9. For a time, the Plaintiff was legally represented. The Summons and first affidavit in support bears the name of a firm of solicitors, Carneys Lawyers, and bears the hallmarks of having been prepared by someone with legal experience. The Plaintiff was subsequently represented, by a solicitor, Mr D Angelkov, of Kent Attorneys, who appeared at one, or other, of the directions hearings. The first firm of solicitors filed a Notice of Ceasing to Act on 22 November 2013. The second firm of solicitors filed a Notice of Ceasing to Act on 1 June 2015.

10. On other occasions that the matter was listed for directions, the Plaintiff appeared with legal assistance (Mr J Burrell), although he was a solicitor who had not filed an Appearance. On others, the Plaintiff did not appear at all, or if she did, she appeared in person. She confirmed that she was not legally trained. On any such occasions, the court urged her to obtain, and retain, legal representation. The court reminded her that she was likely to be disadvantaged because she did not have sufficient legal knowledge, the skills, or the objectivity, to conduct this quite complex litigation.

11. On the occasion the matter was listed for pre-trial directions on 22 July 2015, the Plaintiff appeared in person. Following the directions hearing, the Plaintiff complained of chest pains and it was necessary to call an ambulance to ensure her medical safety. (I was informed of this at the final hearing as the events had occurred after I had adjourned.)

12. On 18 August 2015, prior to the final hearing, I requested my Associate to forward an email to the Plaintiff, and to Ms R Winfield, counsel for the Defendant, in the following terms:

“Dear Ms Chu,

His Honour notes that you may not be legally represented at the hearing commencing on Monday, 24 August 2015.

You may care to go to the Supreme Court website which includes a section headed ‘Representing yourself in civil proceedings’.

You and Ms Winfield may also wish to consider:-

Ciric v Ciric [2015] NSWSC 313; and

Baird v Harris [2015] NSWSC 803

In each of which cases, his Honour has dealt with the principles in these types of proceedings.

Finally, to date, your original Affidavit sent by Express Post last week, has not been received in Chambers.”

13. At the commencement of the hearing, the Plaintiff acknowledged that she had received the email from my Associate. However, she said that she had only had the opportunity to look at the Supreme Court website at 3:00 a.m. on the morning of the hearing and had not looked at either of the cases: T10.35-T10.49.

14. Shortly prior to the commencement of the hearing, the court received an email from Dr Lawrence Lau, the husband of the Plaintiff from whom she stated she had separated, although from whom she has not been divorced. The email was, relevantly, in the following terms:

“Dear Duty Judge,

I’m trying to get a set of documents for a hearing set down at 10am Sydney time. The email I had for Judge Hallen’s associate is not working. The Plaintiff needs to get these printed out and witnessed/signed. Is there an updated contact for Judge Hallen associate or a way to pass a message that the Affidavit + Statements are available?

…

Dear Ms Simmonds,

I’m the McKenzie friend for Angela. She emailed me 11pm last night from

internet cafe and due to time-zones, I won’t be able to contact her at this

point.

Are you able to print out some documents (‘Statement of Issues’, Plaintiff

Objections, etc) to hand to her before hearing, or during a recess?

I’ll try and get her to contact you first.

But PLEASE remind her that as McKenzie friend, I can’t give legal advice so

she needs to select and cross out the items herself before getting it

witnessed/dated.

Dr. Lawrence Lau”

15. When the hearing commenced, it was clear that Dr Lau would not be attending, in person, to assist the Plaintiff. He was called outside the court, but he did not appear. When she was asked about her knowledge of the email, the Plaintiff did not seem to know it had been sent. She did not suggest that she had authorised Dr Lau to send it: T2.09-T2.44. Dr Lau did not play any part in the final hearing.

16. In view of the fundamental right of a litigant to appear in person, enshrined in the Uniform Civil Procedure Rules 2005 (NSW) (“the UCPR”) rule 7.1(1), the court accepted that the Plaintiff was to continue the hearing without legal representation.

17. Following confirmation by the Plaintiff that she was ready to proceed, the court confirmed its duty to ensure that the trial is fair and determined in accordance with the law, a duty that applied to both parties. The Plaintiff was also told that the court’s duty was not to advise her of how to conduct her case; nor to advise her of how her rights should be exercised; and nor to become her advocate or stand in the shoes of her previous solicitor. Nor would the court unduly interfere with the conduct of the trial on her behalf. Any assistance would be proportionate in the circumstances and would be given not for the purpose of affording an advantage to her as a self-represented litigant: Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100, per Bell J, at 130; Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep), per Samuels JA; Cicek v Estate of late Solomon [2014] NSWCA 278, per Ward JA, at [126]-[130]. To appear unrepresented would not be an advantageous procedural step.

18. The Plaintiff was also informed that the court would not permit her to give evidence from the Bar table without oath or affirmation. She was told that there was a difference between evidence and submissions and that what she said during submissions would not be regarded as evidence. It was also made clear that the guidance of the court would not extend to advising her of how her rights should be exercised.

19. In order to assist the Plaintiff further, a copy of the Court Book, which the Defendant had attempted to provide to her prior to the commencement of the hearing, was handed to her. Because she did not seem to have access to a copy of all of the affidavits, I considered that the Court Book should be marked as an exhibit (Ex. 1) and the objections were marked on the affidavits within that Exhibit. It will remain with the court file.

20. As there were a number of the Plaintiff’s earlier affidavits, and some documents annexed to her affidavit of 7 July 2015, not contained as part of Ex. 1, on the second day of the hearing, I marked a second folder of affidavits, together with the additional documents, that had been read by the Plaintiff, but not included in Ex. 1, as Ex. 2.

21. Finally, the Plaintiff confirmed that she had received a copy of the Defendant’s Outline of Submissions.

22. I am satisfied that the Plaintiff was given every opportunity to be heard. I have no doubt that she is an intelligent woman who seemed to have no difficulty understanding what was said to her and keeping up with the procedural steps that were being taken. I also thought that her understanding of the English language was very good, which was unsurprising bearing in mind that she has been educated, principally in Australia, since her mid-teens.

23. As has been noted, “the right of a party to be given an opportunity to be heard… includes prior notice of the issues to be addressed, an opportunity to call evidence, an opportunity to make submissions and the right to have his or her evidence and submissions given appropriate consideration by the decision-maker. Whether such opportunities have been made available is a different question from whether they have been availed of. A party who has a reasonable opportunity to present his or her case and fails to make the most of it cannot later be heard to complain that there has been procedural unfairness”: Shi v ABI-K Pty Ltd [2014] NSWCA 293, at [50].

24. Naturally, it was necessary for there to be some degree of tolerance and assistance, within the constraints of the duty to ensure a fair trial to both parties, given to the Plaintiff who is clearly without any legal knowledge. Overall, I am satisfied that the Plaintiff understood the nature of the proceedings and that she conducted them as well as she could. By way of example, I should mention, as a matter going to satisfying me the Plaintiff was sufficiently astute to understand the general nature of the proceedings, that she raised the question whether the Defendant, without a grant of Probate, was able to sell the deceased’s shares in a private company, Chu Bros Pty Limited (“the Company”) which he held at the date of death: T87.12-T87.43.

25. There were 4 affidavits in chief and 2 affidavits in reply relied upon by the Plaintiff and 9 affidavits relied upon by the Defendant. An inordinate amount of time was spent dealing with objections to the evidence (by both parties).

26. It was clear that the Plaintiff had considered (or had had assistance in identifying) the parts of the affidavit evidence to which she wished to object.

27. The Plaintiff and all of the relevant witnesses called by the Defendant were then cross-examined.

28. The Plaintiff complained, again, on the second day of the hearing, shortly prior to her cross-examination, of feeling unwell. The hearing was immediately adjourned to see if she would feel better following the long adjournment. I was informed, subsequently that, during the long adjournment, an ambulance had been called and had attended.

29. Upon the matter resuming, after the long adjournment, with her consent, the hearing continued with the Plaintiff being cross-examined. During the rest of the afternoon, she displayed no symptoms, and made no complaint, of feeling unwell. She seemed well able to deal with the cross-examination by counsel for the Plaintiff. I shall return to the evidence and my views on credibility later in these reasons.

Applications for Adjournment

30. On the second day of the hearing, the Plaintiff sought leave to file a document, purportedly in the form of an affidavit, which was signed on the last page by her, and in which she stated that she required an adjournment.

31. She stated that she had not had an opportunity to read the Court Book, which had been marked as Ex. 1, because it had only been provided to her on the first day of the hearing. As I have earlier stated, Ex. 1 contained a copy of the affidavits of each side upon which reliance was to be placed in date order and consecutively paginated. When shown to the Plaintiff, prior to its tender, she confirmed that there were only two, or three, affidavits which she believed that she had not seen, despite each having been sent by email to her. I had asked her to check her emails overnight to ascertain whether she had, in fact, received each, and she did not indicate that she had done so, or that she was satisfied that she had not received the emails and the documents.

32. Meantime, counsel for the Defendant asserted, from the Bar table, that there was email correspondence, which she was then not able to locate, which she indicated would establish that a copy of the affidavits had been forwarded, by email, to the Plaintiff.

33. Accordingly, I rejected the first basis for an adjournment. Subsequently, counsel tendered Ex. 5, part of which included a copy of an email from the Plaintiff to the Defendant’s solicitor, acknowledging receipt of the two affidavits that the Plaintiff had said she had not received.

34. The email chain of correspondence relating to the service of the affidavits was tendered as Ex. 7. Counsel also tendered Ex. 8, which included an email regarding the service of an earlier affidavit upon the Plaintiff’s then solicitors.

35. As stated previously, one of the issues the Plaintiff wished to agitate was the value of the shares in the Company. She maintained that she believed that the value attributed to those shares was too low. During the course of referring to Ex. 1, one of the Defendant’s affidavits, was from a director of the Company to which was exhibited some extracts from the Company’s books of account. The affidavit had been sworn in September 2013. The Plaintiff asserted that she had only received the extracts on the first day of the hearing.

36. I suspect, although I cannot be sure, that despite what the Plaintiff stated from the Bar table, she may have been referring, again, to receipt of the Court Book (Ex. 1), rather than the extracts exhibited that were contained within the Court Book, because it was clear, from the reading the Plaintiff’s affidavit, sworn on 11 November 2014, that, by her then solicitors, Kent Attorneys, she had been served with, and had considered the contents of, the exhibit to that affidavit. Amongst other things, she had referred to the financial records as “extracts”. (The Plaintiff’s affidavit had been prepared whilst the Plaintiff was legally represented and bears the name of the solicitors on the front page of it.) The relevant part of the Plaintiff’s affidavit dealing with the exhibit to Mr Pan’s affidavit was read by the Plaintiff in reply.

37. The Plaintiff then complained that she did not have the exhibit to the affidavit before her because she had given it, the day before, to an accountant for examination and that “he want to come to the Court as a witness” (T83.40-T83.45). She also said that he would not be available during the course of the 4 day hearing. She said that “[t]he independent accountant takes time to audit the account”: T86.22.

38. The Plaintiff was informed that the value of the Company’s shares held by the deceased may prove to be something of a distraction, although clearly it was relevant. I referred to the deceased’s Will which had identified “estate liabilities”, which were required to be paid before the Defendant would receive any part of the deceased’s estate. (I shall return to this topic later in these reasons.)

39. I also indicated that if the court were satisfied, on the whole of the evidence, that one of the debts of the deceased was a genuine debt owed to the Company, a matter apparently not in dispute between the Defendant and the Company, then it was a liability that was required to be repaid before the value of the distributable estate could be calculated.

40. It was also not in dispute between the Defendant and the Company that the Defendant was not receiving any part of the proceeds of sale of the deceased’s shares in the Company as it was retaining the whole of the purchase price in accordance with the Share Sale Agreement.

41. The Plaintiff then raised the quantum of the debt as being relevant. I indicated to her that it was not a matter that the court was likely to determine. I pointed out that the Defendant, as the person who is entitled to the estate after the payment of all debts, seemed to agree that she would not receive any of the proceeds of sale, with the result that the significant issue appeared to be whether the deceased’s interest in the Chatswood property should be designated as notional estate.

42. I also pointed out that there appeared to be no evidence to contradict the evidence of the Defendant or of the representative of the Company concerning the nature and amount of the debt.

43. (I should mention, as an aside, that whilst she was legally represented, in October 2013, I had granted leave to the Plaintiff to join the Company, but no Amended Summons has ever been filed, by or on her behalf of the Plaintiff, naming the Company as a second Defendant, and the Company has not filed any Notice of Appearance.)

44. In all the circumstances, I refused the Plaintiff’s application for the adjournment.

45. On a number of other occasions during the hearing, the Plaintiff repeated that she had an accountant who was considering certain things for her and that she was waiting for him to produce evidence. On each occasion, she said she was unable to produce the evidence of the accountant with the consequence that I refused to delay the continuation of the hearing.

Background Facts

46. The following facts provide a useful background. The narrative represents the Court’s findings in relation to these facts.

47. The deceased and the Defendant married in November 1969 and remained married at his death. (Although the Plaintiff wished to make a point about the nature of their marital relationship, she seemed to accept that, in Australia, a marriage subsists until dissolved by a decree nisi of divorce being pronounced by the court, which decree nisi had become absolute: see Chen v Lu [2014] NSWSC 1053, per Brereton J, at [80].)

48. The Defendant was born in April 1946 and is now aged 69 years.

49. There were two children of the marriage of the deceased and the Defendant, namely, Winnie, who was born in January 1971 and the Plaintiff, who was born in February 1973.

50. Although the deceased died whilst he was overseas, the court was informed, by counsel, without objection from the Plaintiff, that he was on holiday, overseas, at the time of his death: T328.29-T328.41. (It is not suggested that he was domiciled in Hong Kong at the date of his death.)

51. The deceased, the Defendant, and the Plaintiff, migrated to Australia in 1988. Winnie was already living in Australia at the time of their arrival.

52. The deceased left a duly executed Will that he made on 5 June 2004, in which he named the Defendant, as the sole executrix, and appointed her the sole beneficiary of all of his property after payment of all his estate liabilities (which he defined in the Will). In the event that the gift to the Defendant did not take effect, the deceased left all of his property, after payment of all his estate liabilities, to the Plaintiff and Winnie, in equal shares. (Of course, as the Defendant survived the deceased, the substitute provision does not apply.)

53. According to the Defendant’s Inventory of Property, a copy of which was attached to her first affidavit, the property solely owned by the deceased, at the date of his death, was disclosed as having an estimated, or known, gross value of $264,127. His estate was said to consist of superannuation ($9,296), monies in bank ($130), shares in public companies ($6,700) and 8,070 shares in Chu Bros Pty Limited (to which I have referred as “the Company”) ($248,000).

54. As I have mentioned, it was the Plaintiff’s case, that the shares in the Company had a greater value than the value disclosed by the Defendant. She based her view simply on the assertion that the value of certain real estate owned by the Company was between $2.0 million and $2.5 million, with the result that the deceased’s shareholding, estimated to be about 25 per cent, should equate to between $500,000 and $625,000.

55. However, the Plaintiff relied on no expert evidence going to the value of the shares in the Company despite the fact that the issue had been raised much earlier in the proceedings. (She did not have any accountant’s report available before the conclusion of the hearing. This is not to say that had such a report been available, I would have permitted it to be tendered.)

56. In addition, in the Inventory of Property, the Defendant disclosed some property that was held jointly by the deceased and her, namely, monies in a joint bank account (one half of which was $140,145) and real estate at Chatswood (the estimated, or known, value of one half of which, at the date of death, was $362,500). She also disclosed the deceased’s one third interest in real property (a home unit) in Hong Kong, China (having an estimated, or known, value, at the date of death, of $187,500), which real property he had held, as joint tenants, with the Defendant and with Winnie.

57. Thus, the deceased’s share of the jointly held property, in New South Wales, and in Hong Kong, at the date of death, had an estimated, or known, value of $690,145. (I have omitted, and shall continue to omit, any reference to cents in the amounts to which I shall refer, which will explain any minor mathematical errors.)

58. A copy of an undated Notice of Death in relation to the Chatswood property forms part of the Plaintiff’s evidence. The Chatswood property is now registered in the sole name of the Defendant.

59. There was no evidence, in any of the affidavits, disclosing when the real estate at Chatswood in which the deceased held his joint interest at the date of his death, had been purchased. However, during the hearing, the parties orally agreed that the Chatswood property had been purchased by the deceased and the Defendant in about 1987: T17.41-T17.43.

60. Although there was some dispute suggested by the Plaintiff, concerning the current value of the Chatswood property, on the second day of the hearing, the Defendant tendered a Valuation Report (Ex. 3), without objection, in which the estimated market value, shortly prior to the date of hearing, was estimated to be $1.0 million.

61. In Ex. 3, the Chatswood property was described as “a unit… positioned on the first floor level of a nine storey strata building… offering a central entry point; two adjoining kitchen areas, both with built-in cabinets… lounge/meals area with access onto a front balcony; bathroom; laundry; three bedrooms, main with ensuite. Positioned at the basement level is a single garage”.

62. Thus, the Defendant accepted that the estimated current gross value of the deceased’s interest in the Chatswood property, if the whole of the interest was designated as notional estate, should be taken to be $500,000. (In making this concession, the Defendant did not accept that the deceased’s interest should be so designated.)

63. There is evidence that the real estate, in Hong Kong, was purchased, in about April 2011, the consideration being HK$4,500,000. Although there was some dispute, suggested by the Plaintiff, concerning the value of the Hong Kong property, at the date of hearing, the Defendant tendered a document described as a “Residential Property Valuation – Hong Kong” (Ex. 4), without objection, in which the value of the Hong Kong property, shortly prior to the date of hearing, was estimated to be HK$7,610,000 (or AU$1,312,068).

64. There was no description of the amenities of the Hong Kong property in the Residential Property Valuation.

65. The Defendant accepted that the estimated value of the deceased’s interest in the Hong Kong property, if the whole of that interest were to be designated as notional estate, should be taken to be AU$437,356. (In making this concession, the Defendant did not accept that the court had power to designate property outside the jurisdiction as notional estate, or that, if it could, the deceased’s interest therein should be so designated.)

66. During the oral evidence of the Defendant, the court enquired about the gross income received by the Defendant from the Chatswood property, and the rental income received by the Defendant and Winnie from the Hong Kong property.

67. The Defendant stated that the gross rental income received from the Chatswood property was about $3,320 per month, and that the gross income from the Hong Kong property was HK$12,000 per month (AU$2,068). She gave oral evidence that the repayments on the debt secured by mortgage on the Hong Kong property, that was paid out of the rental income earned, was HK$4,800 per month (AU$827). She also gave evidence that the income received was otherwise used to pay the outgoings on each property, including rates, management fees, and repair and maintenance costs. The balance of the income was received by Winnie, who used it to pay for all of the living expenses for the Defendant, including rent for her accommodation in Hong Kong, being HK$15,000 per month (AU$2,586).

68. The Defendant gave evidence that no part of the rent from the Hong Kong property was retained by Winnie separately (despite the fact that she was currently entitled to one half of the balance of the net income).

69. The Defendant disclosed that the deceased’s superannuation had been distributed to her on 10 October 2012; that the shares in public companies had been distributed in June 2012; and the shares in the Company were transmitted into her name on 14 September 2012.

70. Whilst it was not entirely clear whether the Defendant retained the amount of superannuation, other evidence made clear that she had retained, at the date of the hearing, the shares in the public companies and the shares in the Company.

71. The Defendant also gave evidence that on 17 July 2015, she had executed a Deed, a copy of which she had annexed to her affidavit, between the Company and her, “in relation to buy back of shares in Chu Bros”. The Deed contained the following recitals:

“A.   Ching Chu, formerly of Unit xx xxxxx, Chatswood NSW 2067 (‘the deceased’) died 29 November 2011.

B.   At all material times until his death, the deceased was a director of the Company who controlled the decisions of the Company and was solely responsible for bookkeeping and engagement of the Company’s external accountants and auditor.

C.   The deceased was the owner of 8070 ordinary fully paid shares issued by the Company as shares numbered 3 to 8072 inclusive (hereinafter ‘the Chu shareholding”).

D.   Chow is the deceased’s widow and by his last will dated 5 June 2004 the deceased appointed her to be his executor or and trustee and the sole beneficiary of his estate.

E.   Except for the Chu shareholding, the only other property comprising assets in the deceased’s estate, were an ANZ superannuation account and Westpac Master Gold card account to a value of $9,427.26, all of which assets were realised and applied to meet estate debts or expenses by Chow and certain listed shares to a value of approximately $11,700 that remain in the estate.

F.   In September 2012 the Chu shareholding was transferred to Chow upon approval by the Company of her application for transmission to her of the Chu shareholding.

G.   The directors of the Company subsequently became aware that before his death, the deceased had withdrawn amounts totalling approximately $681,000 from the Company that he had wrongly allocated in the books and records of the Company against amounts owed by the Company to other shareholders, without the concurrence, or consent of those shareholders (hereinafter ‘the misappropriation claims’).

H.   In addition, at the time of his death, the deceased’s own loan account with the Company was in debt in an amount of $227,903 approximately.

I. On or about 23 July 2013 the Company made formal demand to Chow in her capacity as executrix and trustee of the estate of the deceased for full repayment of the sums identified in recitals G and H totalling approximately $908,903.

J.   In partial settlement of that claim, the parties have negotiated a selective share buyback transaction under which, subject to and conditional upon the necessary approvals and compliance with the applicable statutory requirements, they have agreed that the Company will purchase the Chu shareholding (which will then be cancelled pursuant to section 257H of the Corporations Act) in consideration for:

reducing the amount of its claim against the estate of the deceased by an amount equal to the value of the Chu shareholding, as ascertained by valuation of those shares as at 31 December 2014, namely $354,212;

b.   releasing the estate of the deceased from the Company’s claims for interest on that amount;

c.   entering into a conditional covenant not to sue for the balance of the claim as hereinafter provided.

K.   Attached to this Deed is a form of transfer of the Chu shareholding from Chow to the Company, executed by Chow (hereinafter ‘the Transfer’) and which is to be held by the Company in escrow pending satisfaction of the Operative Preconditions as defined in clause 1 of this Deed.”

72. The Deed went on to provide, relevantly:

“1.   For the purpose of this deed, the operative preconditions (hereinafter ‘the Operative Preconditions’) are as follows:

a.   Lodgement of the documents identified in section 257D (4) of the Corporations Act with ASIC at before the notice of the meeting to consider approval of the terms of the buyback agreement is sent to shareholders;

b.   The terms of the buyback agreement herein provided for are approved by a special resolution passed at a general meeting of the company, with no votes being cast in favour of the resolution by Chow (being the person whose shares are proposed to be brought back) or by her associates; or by resolution agreed to, at a general meeting, by all ordinary shareholders as required under section 457D of the Corporations Act.

2.   Subject to and conditional upon the Operative Preconditions being met and satisfied:

a.   Chow hereby agrees to sell and the Company agrees to purchase the Chu shareholding comprising 8070 fully paid ordinary shares in the Company

b.   the Company hereby agrees to and does reduce the amount of its claim against the estate of the deceased by $354,212, which amount is to be allocated as received by the Company on account of the misappropriation claims;

c.   the Company hereby agrees to and does release the estate of the deceased from the Company’s claims for the interest on the said amount of $354,212;

d.   the Company hereby covenants not to sue for the balance of its claim against the estate of the deceased subject to the Covenant Conditions as defined in clause 4 of this Deed;

3.   When the Operative Preconditions have been met and satisfied:

a.   the Transfer as attached hereto becomes immediately operative and ceases to be held by the Company in escrow; and

b.   the Transfer must be registered by the Company and the Chu shareholding so transferred must be cancelled in accordance with section 257H of the Corporations Act.

4.    For the purposes of clause 2d of this Deed, the Covenant Conditions are as follows:

…

b.   the covenant remains operative only for so long as, to the best of the Company’s knowledge and information, there are no other significant assets available to the estate of Chu beyond the assets reference in the Recitals…”

73. At the hearing, as previously noted, the Defendant confirmed that she will not receive any part of the proceeds of sale which was said to be $354,212 in the Deed, all of which proceeds will be retained by the Company to reduce what is said to be the debt of the deceased.

74. There was some confusion in relation to whether the Chatswood property, if it were to be sold, would become available to the estate and clause 4 of the Deed would in turn become operative.

75. The Defendant and her counsel seemed to think this would occur (T275.31-T276.18):

“HIS HONOUR: Ms Chu, I’ve told you that I’m not going to decide how much your father owes the company. All I’m going to decide is that your mother and the company have reached an agreement that $345,000 [sic], which they agree is the value of the sale price of those shares to the company, is going to be retained by the company to reduce the debt said to be owed by your father to the company. In addition, as I understand it, and Mr Pan, I’ll ask you to correct me if I’m wrong, the effect of the agreement is that if the company receives the proceeds of sale of those shares, there will be no further claims by the company against either your mother or your father’s estate.

Q. Is that your understanding of the agreement?

A. Yes ..(not transcribable)..

HIS HONOUR: What’s the problem about that?

WINFIELD: That’s not what the deed says.

HIS HONOUR: I think it does. That’s where I got it from, Ms Winfield. I thought there was a forbearance to sue.

WINFIELD: It is, but it is limited. In the recital there’s a clause which says that in the event that any money comes into the estate, it’s only a forbearance to sue unless there’s any‑‑

HIS HONOUR: Yes, but what’s going to come into the estate, Ms Winfield? What else is in the estate that could possibly come into the estate?

WINFIELD: I suppose if Orchard Street was sold‑‑

HIS HONOUR: But that’s not part of the estate, Ms Winfield, it could never be part of the estate. I thought the whole case was about Orchard Street not being part of the estate.

WINFIELD: It is, it’s notional estate.

HIS HONOUR: It doesn’t come into the estate. It’s designated as notional property if I find it to be. It is not part of the estate. Ms Chu, that’s the position, and you can ask as many questions as you like--”

76. The Defendant also stated, at T226.29-T226.31, “…there were (sic) still some money owing to that company. They let me live in that Orchard Road unit because they concerned that I am a widow. I was informed that if that property was sold I will need to repay the remaining debt. So if that happened, how will I be able to make my life?”

77. As clarified during the hearing, the proceeds of sale of the Chatswood property would not form part of the estate of the deceased, if it were to be sold. Therefore, subject to any family provision order, the Chatswood property, or the proceeds of its sale, will remain the property of the Defendant as the sole registered proprietor.

78. Whilst each of the distributions of the property solely owned by the deceased at the date of his death, occurred at least 6 months thereafter, there is no evidence that the Defendant, as the legal representative of the deceased, had given notice in the form approved under s 17 of the Civil Procedure Act 2005 (NSW) that she intended to distribute the property in the estate after the expiration of a specified time.

79. There was also no evidence of the circumstances of the distributions having been made without a grant of administration, a matter, as I have noted, the Plaintiff raised.

80. The Defendant also stated that the bank accounts had been closed in February, or March, 2012, and that the deceased’s interest in the real estate in Hong Kong had been transferred, on 29 March 2012, to her and to Winnie as joint tenants. (These distributions were not made at least 6 months after the deceased’s death.)

81. The Will identified “estate liabilities” as including “my funeral expenses; all debts I owe when I die; all expenses my Trustee incurs in administering the estate; and all charges my Trustee makes for doing the work”.

82. The Defendant disclosed no liabilities in the Inventory of Property. However, in her first affidavit, she stated that the deceased owed the Company $908,902; that there were debts secured on the Chatswood property ($46,130), which she had discharged on 29 March 2012; that there were credit card debts ($4,031) which she had caused to be repaid on 28 November 2011; and that there was a debt secured on the Hong Kong real estate ($62,500). She was not cross-examined on any of these liabilities, other than the Company debt.

83. (In an affidavit sworn on 24 July 2015, the Defendant stated that the debt owing to the Company was then $899,219. It had been reduced, she said, because dividends from the Company were being set off against the debt instead of being paid to her as the shareholder.)

84. In addition, the Defendant stated that Winnie had paid the funeral expenses ($7,102) using estate funds, and that she had paid $5,000 to one, Mrs Teng, using money from the estate. (The reason for the payment was not disclosed in the affidavit, but I was informed by counsel, from the Bar table, that Mrs Teng was a friend of the deceased and that he had owed her $5,000 which was the amount repaid. The precise reason for the repayment was not disclosed.)

85. It follows that, as a result of the distributions made to the Defendant of the estate in New South Wales, and because the sale proceeds of the shares in the Company will be used to reduce the debt said to be owed by the deceased to the Company, there is no actual estate available from which any order for provision in favour of the Plaintiff may be made.

86. There is property, however, in New South Wales that may be designated as notional estate, comprising the deceased’s interest in the Chatswood property (with a current value of $500,000) which had been transmitted to the Defendant. The value of the deceased’s interest in the Hong Kong property, if it were designated as notional estate (with a current value of AU$437,356) is also relevant.

87. It is clear, if the deceased’s interest in the Hong Kong property is not available to be so designated, it is property that has passed, in part, to the Defendant and to Winnie and, at least so far as the Defendant is concerned, is provision that she has received as a result of the death of the deceased.

88. Bearing in mind the claim of the Plaintiff, as stated in her oral submissions, there is sufficient if only the deceased’s interest in the Chatswood property were to be designated as notional estate.

89. The Defendant’s counsel accepted that the money in bank that was jointly held by the deceased and the Defendant at the date of death and which was inherited by the Defendant by survivorship may also be designated as notional estate. However, as disclosed, only a portion of that money is currently retained by the Defendant.

90. It seems to me that the precise amount of the alleged liability of the estate to the Company is not directly relevant to the value of the property that may be designated as notional estate, since, at the date of hearing, the jointly held property is not the subject of a claim brought by the Company. No claim in any proceedings has been made by the Company in which it is asserted that the deceased used the Company’s money to purchase any interest in the jointly held property, or used the Company’s money to repay any debts secured on either the Chatswood property or the Hong Kong property.

91. Although there is evidence filed by the Defendant on behalf of the Company, no step has been taken by the Company to join these proceedings, at least one of the directors being well aware of them. Nor has it commenced any proceedings against the Defendant to have the deceased’s estate administered under Part XI of the Bankruptcy Act 1966 (Cth) or otherwise to establish any claim it may have. (This was acknowledged by counsel who had submitted, in writing, that “the threat of legal proceedings by Chu Bros remains hanging over the Defendant’s head”.) I have earlier mentioned that leave had been granted to the Plaintiff to join the Company as a Defendant but she had not done so.

92. In addition, if the sale of the shares in the Company is completed in accordance with the Deed, the balance of any debt will, presumably, not be repayable. Accordingly, in light of the terms of the deceased’s Will, the proceeds of sale would not form part of the estate of the deceased at the date of hearing.

93. In calculating the value of the estate or notional estate, finally available for distribution, the costs of the present proceedings should be considered, with circumspection, since the Plaintiff, if successful, normally, will be entitled to an order that her costs, to the extent that she has any, calculated on the ordinary basis, be paid out of the estate or notional estate of the deceased, whilst the Defendant, as the administrator, irrespective of the outcome of the proceedings, normally, will be entitled to an order that her costs, calculated on the indemnity basis, be paid out of the estate or notional estate.

94. I have dealt with the principles that apply to the costs of a self-represented litigant in Romascu v Manolache (No 2) [2012] NSWSC 87, at [27]-[31]. It is not necessary to repeat what I wrote in that case. There is no evidence about the Plaintiff’s own costs, or out of pocket expenses, that she has incurred.

95. Yet, in her summary of liabilities, in her most recent affidavit, the Plaintiff stated that she has a debt to Carneys Lawyers (the solicitors initially instructed) of $25,000 and a debt to the solicitor (Mr J Burrell) who appeared with her at a number of directions hearings but who did not file an Appearance ($7,000).

96. During submissions, the Plaintiff did disclose, from the Bar table, and without objection, that the costs and disbursements said to be outstanding to Kent Associates, were $72,266 (inclusive of GST and calculated on the indemnity basis). (Mr Angelkov, the solicitor at Kent Attorneys, had happened to be present in court on the first day of the hearing and I requested him to inform the Plaintiff of the amount of costs and disbursements that the firm might claim from the Plaintiff.)

97. (It will be appreciated that even if she were successful, there is likely to be a difference between the Plaintiff’s costs calculated on the ordinary basis and her costs calculated on the indemnity basis. That difference, unless a special costs order were made would constitute an amount that she would have to pay.)

98. Mr W Chan, solicitor, in an affidavit sworn on 23 July 2015, estimated the Defendant’s costs and disbursements of the present proceedings, including counsel’s fees, calculated on the indemnity basis (inclusive of GST and upon the basis of a four day hearing), to be about $102,955. Of those costs and disbursements, he stated that the Defendant has paid, from her own resources, $48,955. Mr Chan also stated that she will have to meet the balance of the costs and disbursements from her own resources as there are, or will be, no money in the actual distributable estate available to meet these costs.

99. The Plaintiff did not serve a notice identifying the persons who are, or who may be, eligible persons within the meaning of that term in the Act. The Defendant had asserted that each of the parties, and Winnie, and two of Winnie’s children is, are, or may be, eligible. Whilst each of the parties, and Winnie, is clearly an eligible person, there is no evidence that either of the deceased’s grandchildren was wholly or partly dependent upon him. Accordingly, I am satisfied that each grandchild is not an eligible person.

100. There is no evidence that the prescribed form of notice was served on Winnie. However, the court was informed by counsel for the Defendant that Winnie was well aware of the proceedings and that she did not wish to make any claim for a family provision order under the Act. As she was present throughout the hearing, I am satisfied that it is unnecessary to serve upon her a notice of the application, and of the Court’s power to disregard her interests as a person by, or in respect of whom, an application for a family provision order may be made, but who has not made an application.

101. Of course, the Defendant is a party to the proceedings. However, as she is a beneficiary named in the Will of the deceased, the court may not disregard her interests.

Additional Findings of Fact

102. The deceased and the Defendant purchased a property at Hercules Street, Chatswood, in about 1991. They sold that property in February 2010. There is no evidence of the purchase price, of this property.

103. The Defendant gave evidence that from the gross proceeds of sale, about $400,000 was used to repay the debt secured by mortgage on the title, and an undisclosed amount was used to renovate the Chatswood property, with the balance of about $1.0 million placed on term deposit in the joint names of the deceased and the Defendant. Subsequently, an undisclosed part of the funds held on term deposit, was used to purchase the Hong Kong property. Finally, the Defendant asserts that she used part of the term deposit to repay monies borrowed by the deceased, without her knowledge, and gambled away by him.

104. In her affidavit of 4 April 2013, the Defendant stated that the balance left was $74,154. The Defendant also gave evidence, in that affidavit, that the Chatswood property had been rented and that she received rental income of about $4,750 per month, of which $2,375 per month was used to reduce the debt ($93,750) then secured on title to the Chatswood property.

105. The Company is an Australian proprietary company limited by shares. It was first registered on 5 March 1976. It has 32,282 issued ordinary shares, of which the deceased held 8,070.

106. There are three other shareholders who hold the same number of shares as did the deceased, and two other shareholders, who hold 1 share each in the Company.

107. The Company owns, amongst other assets, real estate at Gordon, Sydney, comprising a three story substantially brick building, comprising two shops, at ground level, with offices above and car parking at the rear. In late October 2014, the estimated gross value of the Gordon property, was said to be $2.0 – $2.5 million.

108. One of the directors of the Company, Li-Ning (Rhett) Pan swore an affidavit on 30 August 2013, in which he stated that the Company was formed by Mr Tokien Chuang, a family friend of the deceased, who effectively managed it until his death in 1989. It was 3 years later that the deceased began to administer the affairs of the Company as a director, although he had been a director since its registration. The deceased had kept the financial records of the Company and it is those records which have been relied upon to conclude that the deceased owed the Company the sum that it had claimed.

109. The Plaintiff was married, in 2007, to Lawrence Lau. They separated in about 2010 or early 2011. For most of their married life, they lived, rent and occupation fee free, in the Hercules Street property, although they did travel regularly to New Zealand, to Lawrence’s home. They are not yet divorced and they maintain some contact via email (T137.43-T138.37).

110. The Plaintiff states that she received advice that she is “entitled to make a claim for equal division of relationship property under the Property (Relationships) Act 1976 (NZ)” against Lawrence. However, the value of her claim is “minimal at best and confined to a share of the value of the gemstones which Lawrence is withholding from me”. I shall return to the evidence of the value of those gemstones.

111. Winnie lives with her husband and their two children in Hong Kong. She has not given any evidence of her financial and material circumstances. Since she is not a beneficiary named in the Will of the deceased, and as she has not made a claim for a family provision order, her interest, as an eligible person, may be disregarded.

112. It is clear that the Defendant relies upon Winnie to a large extent. Whilst they do not live together in Hong Kong, it was clear from the Defendant’s evidence, that Winnie handles the financial affairs of the Defendant and generally looks after her where necessary.

Extension of Time

113. The Plaintiff provided some evidence explaining her failure to commence proceedings within the time prescribed by the Act. She stated in an affidavit sworn on 1 April 2014, that “[d]uring most of 2012 I was in Taiwan or Hong Kong and not in Australia. I was busy with other things and not mindful of any time limit on commencing this type of case”. She also said that she had returned to Australia in December 2012 and engaged Mr A Carney, of Carneys Lawyers, who had provided her with legal advice.

114. In particular, she stated in her affidavit:

“He advised me with words to this effect: ‘The application should be lodged within 12 months of the date of death, it is out of time, we need to lodge it immediately’. A few days later, on 21 December 2012, the summons commencing the proceedings was filed.”

115. The cross-examination of the Plaintiff revealed some more information on this topic which did not assist her. It was revealed that the Plaintiff, after she had been provided with a copy of the deceased’s Will, had been in contact with the solicitor (one Mr E Teng), who had prepared that Will and who was one of the attesting witnesses to the deceased’s signature on the Will. He had advised her to obtain independent legal advice.

116. The Plaintiff next contacted Mr P Stern, solicitor, by email. A copy of an email dated 11 April 2012, from Mr Stern to the Plaintiff (forming part of Ex. 6), responding to the Plaintiff’s email, relevantly stated:

“I’m sorry that I am in the same position as Edmund – I am not able to provide you with advice as to any entitlement you may have in relation to your late father’s estate due to conflict of interest (landlord/tenant relationship). However, you should be aware that you must commence proceedings within 12 months of your father’s death if you consider you have not been provided for adequately in your father’s Will.” [My emphasis]

117. The Plaintiff was cross-examined about her knowledge of the need to commence the proceedings (at T129-T130):

“Q. You understood Mr Stern was telling you if you wanted to bring a claim, you had to bring it within 12 months of your father’s date of death.

A. Yes.

Q. Nevertheless you say in your affidavit at paragraph 27, ‘I was busy with other things and not mindful of any time limit on commencing this type of case.’ But you were mindful of the time limit, weren’t you, because Mr Stern had told you?

A. I commit suicide overdose when I staying in my mother’s place and I didn’t want to contest it until that happened, so I was under depression and I was admitted in hospital, and then I flew into Sydney after one week of my overdose in hospital that I got discharge.

Q. Mr Stern told you on 11 April, but you sought no alternative legal advice until you saw Mr Carney in December of that year, some eight months later, isn’t that right?

A. I was out of the country. That’s the first day I came back and I went to see him with my luggage.

Q. But you didn’t need to be in the country to give a solicitor instructions to‑‑

A. I did try to get instruction, I get in touch with ..(not transcribable).. they say they not doing family provision case and did not - they don’t have capacity. And also for Chinese culture, within 14 month, you’re not suppose to contest it, it’s disrespectful for my father. And also I’m concern that my mother was depression, she was suffering from depression and couldn’t cope very well with my father’s death, so I don’t want to trigger her depression, so I try to resolve it outside the Court. So‑‑

Q. Ms Chu, you’ve said none of that in your affidavit that you swore on 1 April.

A. That’s why none of the lawyer are representing me because I told them to put it in and they didn’t do - follow my instruction.

310. As a matter of discretion, I would not make an order in favour of the Plaintiff.

311. In this regard, apart from the matters in s 60(2) to which I have referred, I also consider the provision made for the Plaintiff during the deceased’s lifetime, which provision would have reduced the value of the deceased’s estate. This is a relevant matter to take into account.

312. I also remember that the Defendant is the widow of an extremely long marriage with the deceased. Due regard must be had to what the deceased regarded as a superior claim or preferable disposition as demonstrated by his will: Pontifical Society for the Propagation of the Faith v Scales per Dixon CJ at [6], and I must not overlook the fact that the Court is not invested with a discretion to remake a deceased’s Will upon some principle of fairness.

313. Given the conclusions that I have reached above, it is not necessary for me to deal with the question of notional estate or extension of time. However, I shall briefly set out my views in regard to each aspect. I do so in a summary way.

314. Relevantly, (and ignoring the distribution of the shares in the Company for the reasons explained earlier in these reasons), the designation of property as notional estate requires there to be, first, a relevant property transaction. Here, the relevant property transaction is said to be that the deceased died without having terminated the joint tenancy in the Chatswood property, and converted it into a tenancy in common.

315. It is clear that a failure to terminate a joint tenancy is the type of conduct which can be a relevant property transaction.

316. If the relevant property transaction occurred, s 83 and s 87 imposes some extra requirements before property can be designated as notional estate. I have taken into account the various matters to which these sections refer. When one considers “reasonable expectations in relation to property”, it is likely that the Defendant’s reasonable expectations were that the joint tenancy would not be severed prior to the death of the deceased, and that she would inherit the Chatswood property by survivorship. After all, the Chatswood property was purchased in about 1987, and held, for about 25 years thereafter, by the deceased and the Defendant as joint tenants. The length of time the Chatswood property was held, leads, in my view, to a reasonable expectation held by the Defendant that the Chatswood property as held would be enjoyed solely and absolutely by her, as the survivor, upon the death of the deceased, who was the other joint tenant.

317. Even if the Defendant did not hold the expectation that the deceased would not sever the joint tenancy after all those years, the terms of the deceased’s Will, following his death, would have created the expectation that she would inherit the deceased’s interest therein as a tenant in common.

318. (To the extent that it is relevant, the deceased’s reasonable expectation would have been that the Defendant would inherit the Chatswood property, either by survivorship or, if he severed the joint tenancy, by the terms of his final Will.)

319. On the other hand, and to the extent that it is relevant, there is no evidence that the Plaintiff had any expectation, reasonable or otherwise, in respect of the Chatswood property. Whilst she may have lived in that property for a period of time, and accepting that in 1994, the deceased suggested selling the property and splitting the proceeds equally to each family member, there is no evidence that the deceased expressed any intention to provide her with any share of the Chatswood property on his death.

320. The other mandatory considerations in s 87 include “the substantial justice and merits involved in making or refusing to make the order” and “any other matter it considers relevant in the circumstances”. The substantial justice and merits of the case incline the court towards not making an order to place the burden of any provision for the Plaintiff, or costs, upon the Chatswood property due to the competing claim of the Defendant as a spouse of a marriage which lasted over 40 years. Making an order for provision in favour of the Plaintiff out of the notional estate would reduce not only the Defendant’s income but also her capital. This is an unacceptable outcome considering her needs and her competing claim on the bounty of the deceased.

321. Next, s 88 requires the court to consider other matters. Had I considered that an order for provision should be made, I am of the view that s 88(1)(b) would be satisfied because the deceased’s estate would have been insufficient for the making of the family provision order, and any order as to costs, that the court was of the opinion should be made.

322. Section 89 would require the court to have regard to the matters identified in determining what property should be designated as notional estate of the deceased. In this regard, only the deceased’s interest in the Chatswood property is seen as being available to be so designated. Even then, the Court must not designate as notional estate property that exceeds that necessary, in the Court’s opinion, to allow the provision that should be made, or, if the Court makes an order that costs be paid from the notional estate under section 99, to allow costs to be paid as ordered, or both.

323. In respect of s 90, I am satisfied that the property that could be designated as notional estate (the deceased’s interest in the Chatswood property) was the subject of a relevant property transaction and that the Defendant, the person who holds the property, holds it as a result of the relevant property transaction. As the Defendant does not hold the property as a result of distribution as the trustee only, I am also satisfied that the property is not vested in interest in any beneficiary under a trust.

324. In those circumstances, the Plaintiff would not need to overcome s 90(2)(b), and establish “special circumstances”, even though she can bring her application only because an extension of time is granted.

325. If I were wrong in reaching the last conclusion, I am unable to find any “special circumstances” which would justify the making of a notional estate order of a one-half interest in the Chatswood property.

326. Had I found that an order for provision ought to be made, I would have made an order extending the time for the making of the Plaintiff’s application. The Summons was filed three weeks later than the time prescribed and there was no evidence of any prejudice suffered by the Defendant, or any unconscionable conduct of the Plaintiff.

327. However, because I am not satisfied that adequate provision for the applicant’s proper maintenance, education or advancement in life has not been made, and that, even if contrary to that finding, I would not make an order, as a matter of the exercise of discretion, there is no need to make an order extending the time for the making of her application. There is no injustice in refusing to extend the time for the making of the application in circumstances of the Summons being dismissed.

328. In all the circumstances of this case, I order that the Summons be dismissed. I also order that the notice of motion filed on 17 February 2014 by the Defendant be dismissed. (I confirm the order that I made, on the second day of the hearing, the notice of motion should be dismissed: T80.11.)

329. The Defendant requested me to allow the parties an opportunity to make submissions on the question of costs of the proceedings. I shall publish these reasons and hear the parties on the costs orders to be made.

330. The Defendant should seriously consider whether further costs should be incurred arguing about the costs of the proceedings. However, that is a matter entirely for the Defendant. Currently, there seems to be no basis for the Plaintiff to seek an order for her costs since she has been unsuccessful.

331. Subject to any further argument on costs, my present view would be to make no order as to costs to the intent that each party should pay her own costs of the proceedings.

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Decision last updated: 21 October 2015