Kenneth Walter Waddell v Allan William Waddell as executor of the Estate of the late Ronald John Waddell (No. 2)

[2011] NSWSC 1688

Supreme Court

New South Wales

Medium Neutral Citation:	Kenneth Walter Waddell v Allan William Waddell as executor of the Estate of the late Ronald John Waddell (No. 2) [2011] NSWSC 1688
Hearing dates:	3 November 2011
Decision date:	03 November 2011
Before:	Slattery J
Decision:	Declaration made to give effect to principal judgment. Directions made to facilitate the inquiry into superannuation benefits received by the plaintiff.
Catchwords:	PROCEDURE - Judgments and orders - in general - form of orders to be made -directions sought as to the enquiry to be undertaken pursuant to paragraphs [101] of the principal judgment, Waddell v Waddell as Executor of Estate of Waddell [2011] NSWSC 1174.
Cases Cited:	Waddell v Waddell as Executor of Estate of Waddell [2011] NSWSC 1174
Category:	Consequential orders
Parties:	Plaintiff- Kenneth Walter Waddell Defendant- Allan William Waddell
Representation:	Plaintiff- L. Ellison SC; H. Bennett Defendant- A. Hill Plaintiff- J.J.Francis Defendant- M. Boemi
File Number(s):	2010/00158898
Publication restriction:	No

EX TEMPORE Judgment

1. Following upon my principal judgment of 4 October this year ( Waddell v Waddell as Executor of Estate of Waddell [2011] NSWSC 1174) a number of issues remain between the parties as to the form of the orders to be made. In my view it is appropriate to make the declaration which is sought in the orders proposed by the plaintiff, that is declaration 1, because in my view that follows from the judgment. But equally in my view a conveyance to the plaintiff cannot occur until the terms of that conveyance are fixed. Those terms will include the plaintiff paying back to the defendant the benefit the plaintiff has received, as ultimately assessed by the Court.

1. The repayment of that sum should in my view be made a term of the conveyance when it occurs. But the correct order of things in my view is for the Court now to give directions for the expeditious assessment of any such benefit so the terms of the conveyance can be fixed. Equally in my view it is not appropriate to make a costs order as yet. The final form of any costs orders may be effected by the result of the enquiry that results arising out of paragraph [101] of my judgment, in relation to any benefits received by the plaintiff. I will consider questions of costs as soon as that enquiry is finished and a conveyance on appropriate terms has been ordered.

1. The parties in the recent directions hearing were somewhat concerned about the nature of the issues that might be raised on the enquiry envisaged by paragraph 101 of my principal judgment. Without defining any particular limits on the issues to be raised on such an inquiry in my view what needs to be investigated is at least two main things: the benefit that the plaintiff received from the interest-free loan and secondly the taxation benefit that the plaintiff may have received from the contribution of a substantial sum to his superannuation fund in the 2006/2007 financial year.

1. The latter of these two issues may involve the adducing of expert evidence of an accounting nature on one or both sides. But the parties may wish the Court to appoint an expert to determine that question on the basis of agreed facts. I have not provided for such an order in the orders that I am making. However I have granted liberty to apply. It may be that if the parties can agree upon the basic facts that they can approach the Court and I will make an order for the appointment of an expert to deal with that.

1. I say that because it appears to me that the amount of the tax benefit, if there is one, may be able to be determined without much controversy. Any real controversy may be in the extent to which it may be said by one or other party that it should not be taken into account against the plaintiff.

1. The two matters mentioned here do not limit the defendant's claim to raise other possible benefits were received. Nor does it limit the plaintiff's right to say that no benefit has in fact been received. I identified these two issues as issues which occur to the Court as ones which would be expected to be the subject of this enquiry. In my view that is a sufficient statement of the possible issues, to assist the parties.

1. So I will therefore make directions to speed up the holding of an enquiry. The directions will bring the proceedings back to Court on Tuesday 29 November in a month's time. That means the parties will have to make up their minds whether they are going to engage their own expert accounting evidence in relation to taxation issues. If the parties are not going to do that then they should agree upon facts and then re-approach the Court under the liberty to apply provision to ask the Court to appoint an expert to determine the question of any taxation benefits.

1. The directions have been structured on the basis that the defendant on this issue is the moving party. In my view on the question of benefit, the defendant is the moving party, because it is the defendant who is in effect alleging that the plaintiff has received a benefit. The directions are therefore structured so that the defendant goes first.

1. I will also mention one other matter. There was debate at the directions hearing about the plaintiff requiring certainty as to the use of the land, particularly as the summer growing season is coming. On his side one can understand this. The Court's judgment having been given, if it is not going to be appealed, the plaintiff wishes to have a conveyance of the land to him as soon as possible. On the other side, there may be an appeal. That would mean a conveyance would not occur, possibly at all, if the judgment is overturned. But in the short term what is required, it seems to me, is some degree of certainty for the plaintiff for his use of the subject property.

1. If the parties cannot agree upon a regime for that, and there was no detailed debate before me about such a regime, then the matter can be relisted before me to resolve such an issue. But Mr Ellison SC now indicates and I note that there is no dispute about exclusive occupation.

1. With those reasons then I will make the following orders and declarations:-

(1)   The defendant to serve a statement of the benefits that the defendant claims that the plaintiff received from the deceased in the 2006/2007 financial year on or before 5pm on 11 November 2011. The defendants to serve any evidence upon which he relies in support of his contentions as to the benefits received by the plaintiff by 5pm on 18 November 2011, including any expert evidence. That gives two weeks in effect for that expert evidence to be prepared

(2)   The plaintiff is to serve any evidence in reply on or before Friday 25 November 2011, including any expert evidence and including the statement of the basis upon which the plaintiff disputes his receipt or the quantum of his receipt of benefits from the deceased in the 2006/2007 financial year.

(3)   I list the matter for further directions on Tuesday 29 November 2011.

(4)   I grant liberty to apply.

(5)   The Court declares that the defendant holds the whole of the realty comprised in folio identifier 1/836106 and known as 373 Galston Road, Galston ("the subject land") on trust for the plaintiff.

(6)   I note the agreement of the parties that the plaintiff has exclusive use of the subject land until the resolution of any appeal in these proceedings or the making of final orders in the absence of an appeal.

(7)   Direct an inquiry in accordance with paragraph [101] of my principal judgment into: the benefit that the plaintiff received from the interest free loan; and the taxation benefit that the plaintiff may have received from the contribution of a substantial sum to his superannuation fund in the 2006/2007 financial year.

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Decision last updated: 14 March 2012