Hill v Hill

[2013] NSWSC 524

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Hill v Hill [2013] NSWSC 524

Hearing dates:

19 March, 28 March, 19 April and 7 May 2013

Decision date:

07 May 2013

Jurisdiction:

Equity Division

Before:

Lindsay J

Decision:

1. Order made under the Forfeiture Act 1995 NSW, s 11.

2. Order for a grant of administration of the estate of the Late Michel Wendy Carroll, deceased.

3. Sundry other orders.

Catchwords:

SUCCESSION - Forfeiture where testator or intestate killed unlawfully - Deceased killed by her de facto spouse - De facto spouse found not guilty by reason of mental illness - Whether the forfeiture rule should apply to de facto spouse as if he had been found guilty of murder.

Legislation Cited:

Succession Act 2006 NSW
NSW Trustee and Guardian Act 2009 NSW
Children and Young Persons (Care and Protection) Act 1998 NSW
Forfeiture Act 1995 NSW, s 11
Probate and Administration Act 1898 NSW s 74
Uniform Civil Procedure Rules 2005 NSW, rr 7.13, 7.14 and 7.15(3)
Compensation to Relatives Act 1897 NSW, ss 3-4.

Cases Cited:

R v Hill [2011] NSW SC 1196
Nay v Iskov [2012] NSWSC 598 at [9]
Public Trustee v Fraser (1987) 9 NSWLR 433 at 444F
Re Tucker (1920) 21 SR (NSW) 175 at 181-182; 38 WN 28 at 31

Texts Cited:

-

Category:

Principal judgment

Parties:

Charles Steven Leslie Hill by his Tutor Jeffrey Charles Burrowes (First Plaintiff)
Jeffrey Charles Burrowes (Second Plaintiff)
Julie Anne Burrowes (Third Plaintiff)
Steven Leslie Hill (Defendant)

Representation:

PA Regattieri for the Plaintiffs
J Brouwer, solicitor for the Defendant
MJ Duffy & Son Solicitors (Plaintiffs)
NSW Trustee & Guardian (Defendant)

File Number(s):

2012/00081187

Judgment - EX TEMPORE

1. Michel Wendy Carroll (nee Burrowes), the deceased, died at her home at Wamberal on the Central Coast of New South Wales on 16 June 2010, aged 45 years.

1. She was killed by her "de facto" husband - her domestic partner, a spouse (within the meaning of s 104 of the Succession Act 2006 NSW - Steven Leslie Hill (the defendant) in an episode of domestic violence. Her death certificate, prepared with the benefit of the Coroner's Inquest, records the cause of death as "blunt force head trauma and complex pattern of stab wounds."

1. The defendant was charged with murder. On 12 October 2011, a judge of this Court, Barr AJ, sitting alone, found him not guilty by reason of mental illness: R v Hill [2011] NSW SC 1196 at [31]. His Honour accompanied that finding with an order that the defendant be detained in the psychiatric ward of a hospital at Long Bay Correctional Centre or such other place as may be determined by the Mental Health Tribunal until released by due process of law.

1. Barr AJ's findings and orders were based upon a detailed statement of "agreed facts" tendered by the parties. That statement has been admitted in evidence in the present proceedings. In these proceedings it can be construed as containing admissions against interest by the defendant.

1. The defendant remains in custody or, perhaps more accurately, care.

On 10 December 2012 his estate became the subject of management under the NSW Trustee and Guardian Act 2009 NSW, and the management of his estate was committed to the NSW Trustee and Guardian, by a financial management order made under the Guardianship Act 1987 NSW by the Guardianship Tribunal.

1. On 19 April 2013 the NSW Trustee and Guardian was, by an order made by the court, appointed as tutor for the defendant in these proceedings: Uniform Civil Procedure Rules, 2005 NSW, rr 7.13, 7.14 and 7.15(3).

1. By the operation of sections 104, 105 and 113 of the Succession Act NSW, but for the operation for the operation of s 11 of the Forfeiture Act 1995 NSW, the defendant would be entitled to the deceased's personal effects, a statutory legacy and one half of the remainder (if any) of the deceased's intestate estate.

1. These proceedings have been brought to resolve questions relating to the administration of the deceased's estate.

1. The plaintiffs apply for an order under s 11 of the Forfeiture Act to the effect that the forfeiture rule shall apply with respect to the defendant as if the defendant had been found guilty of the murder of the deceased. The defendant does not oppose the making of such an order and, on the materials adduced in evidence in these proceedings, such an order is appropriate: Nay v Iskov [2012] NSWSC 598 at [9].

1. Having regard to the conduct of the defendant, the conduct of the deceased and the effect of the application of the forfeiture rule on the defendant and the children of the deceased (as mandated by s 11(2)), I am satisfied that justice requires the forfeiture rule to be applied as if the defendant had been found guilty of murder. An application of the forfeiture rule to the defendant precludes him from acquiring a benefit in consequence of his killing of the deceased.

1. The plaintiffs also seek that they be granted administration of the estate of the deceased pursuant to s 74 of the Probate and Administration Act 1898 NSW. The defendant does not oppose the making of such an order.

1. The children of the deceased (two sons) can be accommodated by these orders. The effect of the orders, if made, will be to benefit them.

1. If (as I propose) an order is made under s 11 of the Forfeiture Act, its effect will be that the defendant will be disentitled from taking any interest in the deceased's estate and, in the administration of the estate, he will be treated as notionally non-existent so that other beneficiaries (the children of the deceased) will take the estate: Public Trustee v Fraser (1987) 9 NSWLR 433 at 444F, following Re Tucker (1920) 21 SR (NSW) 175 at 181-182; 38 WN 28 at 31. The deceased's estate will then have to be distributed on the footing that the deceased died leaving two children, and no spouse.

1. In that eventuality, the effect of an order under s 11 of the Forfeiture Act, in combination with the operation of s 127(1) of the Succession Act, will be that the deceased's sons will be entitled to "the whole of [the deceased's] estate". Section 103 of the Succession Act defines "the whole of the intestate estate" as "so much of the estate as remains after payment of all funeral and administration expenses, debts and other liabilities as are properly payable out of the estate".

1. Section 74(a) of the Probate and Administration Act authorises the Court to appoint an administrator of the estate of a person who dies intestate, as did the deceased. The effect of a grant of administration will be to provide authority to the administrators to make a claim, on behalf of the estate of the deceased, against the defendant, under the Compensation to Relatives Act 1897 NSW, ss 3-4.

1. In aid of a grant of administration the applicants for a grant (the second plaintiff, Mr JC Burrowes, and his wife, JA Burrowes, the third plaintiff) have given an undertaking to the Court that: (a) they will have their solicitor collect all the funds payable to the deceased's estate and pay the same into his trust account; (b) they will direct their solicitor to distribute the amount collected, less the legal costs of the administration of the estate, to or for the benefit of the deceased's sons; and (c) they will cause their solicitor to pay the share of the plaintiff's younger, infant son (the first plaintiff) to the NSW Trustee & Guardian on completion of their duties as administrators of the deceased's estate.

1. As has been mentioned, the deceased died leaving two children: the older son, by a marriage now dissolved; the younger son (the first plaintiff) by the deceased's relationship with the defendant. The older son is now an adult; he has consented to a grant of administration in favour of Mr and Mrs Burrowes. They are the brother and sister-in-law of the deceased. They are also the "legal guardians" of the deceased's younger, infant son by virtue of an order made under s 79(1)(a)(iii) of the Children and Young Persons (Care and Protection) Act 1998 NSW. Mr Burrowes is also the tutor for that infant son in these proceedings.

1. I propose to order that Mr and Mrs Burrowes be granted administration of the estate.

1. Other matters sought in the amended summons presently before the court can be dealt with briefly. The plaintiffs have sought declaratory relief and injunctions. They appear on the whole no longer to be necessary. The parties have reached agreement as to the course to be followed in disentangling the respective property interests of the deceased's estate and the management of the affairs of the defendant.

1. However, it should be noted that on 19 April 2013, an injunction was granted dealing with proceeds of sale of land registered in the name of the defendant. I propose to deal with that, and its on going operation, by confirming that, subject to further order, the injunction (recorded in paragraphs 3 and 4 of the orders made on 19 April 2013) is to continue. There is no objection on the part of the defendant to that course being followed.

1. The only other matter that requires adjudication relates to the question of costs.

1. It is, in fairness, correct to record that the NSW Trustee and Guardian has acted promptly in dealing with the plaintiffs' proceedings once the proceedings came to attention. Nevertheless, the orders that have been sought in the proceedings by the plaintiffs, and are today made, are orders sought and made as a result of conduct on the part of the defendant, and the consequential necessity for orders to be made in public interest proceedings. It is appropriate in those circumstances that an order be made for the defendant to pay the costs of the proceedings.

1. I make the following orders:

(1) Order that pursuant to s 11 of the Forfeiture Act 1995 the forfeiture rule shall apply with respect to the defendant as if the defendant had been found guilty of the murder of Michel Wendy Carroll.

(2) Order that pursuant to s 74 of the Probate and Administration Act 1898 (NSW) Jeffrey Charles Burrowes and Julie Anne Burrowes be appointed jointly as the administrators of the estate of the late Michel Wendy Carroll.

(3)   Order that any requirement for the provision of an administration bond by Jeffrey Charles Burrowes or Julie Anne Burrowes be dispensed with.

(4)   Order that the proceedings be referred to the Registrar for completion of the grant.

(5)   Order that the injunction granted on 19 April 2013 (by paragraphs 3 and 4 of the orders made on that date) be confirmed in its operation until further order, noting that the plaintiffs' undertaking as to damages likewise continues.

(6)   Order that the defendant pay the costs of the proceedings to date.

(7)   Order that the balance of the relief sought in the amended summons be dismissed without prejudice to the plaintiffs' entitlement to bring such further proceedings as may be necessary to enforce such agreements as may have been made between the plaintiffs and the defendant for the administration of the deceased's estate and resolution of any claims the estate may have against the defendant.

(8)   I reserve liberty to apply generally.

1. The purpose of the injunction is simply to regulate the relationship between the parties pending the sale of the property to which it relates. I anticipate that it will, if necessary, be set aside as a matter of course once proceeds of a sale have been accounted for.

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Amendments

14 May 2013 - Formatting error.

Amended paragraphs: 22

Decision last updated: 14 May 2013