Ludwig v Public Trustee

[2006] NSWSC 890

Reported Decision: 170 A Crim R 460

New South Wales

Supreme Court

CITATION:	Ludwig v The Public Trustee [2006] NSWSC 890
HEARING DATE(S):	31/7/06, 1/8/06-4/8/06
JUDGMENT DATE :	17 October 2006
JURISDICTION:	Equity
JUDGMENT OF:	Campbell J
DECISION:	Judgment for plaintiff for $450
CATCHWORDS:	SUCCESSION – EXECUTORS AND ADMINISTRATORS – power to compromise litigation – SUCCESSION – EXECUTORS AND ADMINISTRATORS – administration – partial distribution – when justified – SUCCESSION – EXECUTORS AND ADMINISTRATORS – whether obliged to obtain a release from administration duties – SUCCESSION – EXECUTORS AND ADMINISTRATORS – notice barring claims under section 93 Wills Probate and Administration Act 1898 – claims to which such a notice can apply – principles for construing such a notice – power of Public Trustee to bar claims under section 34B Public Trustee Act without application to court – POLICE – rights powers and duties – power to retain evidence relating to a criminal trial or appeal – circumstances in which power arises – time for which evidence may be retained – STATUTES – ACTS OF PARLIAMENT – interpretation taking account of practical effects of a statute – STATUTES – particular statutes – Victims Rights Act 1966 – no effect in litigation for a civil cause of action
LEGISLATION CITED:	Administration and Probate Act 1911 (Vic) Constitution of the Commonwealth of Australia Family Provision Act 1982 Law Enforcement (Powers and Responsibilities) Act 2002 Lord St Leonard’s Act (Law of Property and Trustees Relief Amendment Act 1859 UK (22 & 23 Vict c 35)) Probate Act of 1890 Amendment Act 1893 Public Trustee Act 1913 Trustee Act 1925 Victims Rights Act 1996 Wills Probate and Administration Act 1898 Wills Probate and Administration (Amendment) Act 1977
CASES CITED:	In Re Barber deceased [1924] VLR 123 Barns v Barns (2003) 214 CLR 169 Bartlett v Weir (1994) 72 A Crim R 511 Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299 Clegg v Rowland (1866) LR 3 Eq 368 Commissioner of Stamp Duties (Queensland) v Livingston [1965] AC 694 Elias v Pasmore [1934] 2 KB 164 Ganter v Whalland (2001) 54 NSWLR 122 Ghani v Jones [1970] 1 QB 693 Gonzales v Claridades (2003) 58 NSWLR 188, [2003] NSWSC 508 Gonzales v Claridades (2003) 58 NSWLR 211, [2003] NSWCA 227 Guardian Trust and Executors Company of New Zealand Limited v Public Trustee of New Zealand [1942] AC 115 Herald and Weekly Times Ltd v The Commonwealth (1966) 115 CLR 418 Re K (2002) 171 FLR 286 In re Kay; Mosley v Kay [1897] 2 Ch 518 In Re Long (deceased) [1951] NZLR 661 Malone v Metropolitan Police Commissioner [1980] QB 49 Newton v Sherry [1876] 1 CPD 246 Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306 R v Barnett (1829) 3 Car & P 600, 172 ER 563 R v Burgiss (1836) & Car & P 488, 172 ER 217 R v Daniel O’Donnell (1835) 7 Car & P 447, 173 ER 61 R v Lushington; ex parte Otto [1894] 1 QB 420 R v Spathis; R v Patsalis [2001] NSWCCA 476 R v William Jones (1834) 6 Car & P 343, 172 ER 1269 R v William Kinsey (1836) 7 Car & P 447, 172 ER 198 Robinson v Becata Pty Ltd (2004) 12 BPR 22,699 Spathis v R (2002) 23(20) Leg Rep C12 In Re Timm deceased [1912] VLR 460 Wonall Pty Ltd v Clarence Property Corporation Ltd (2003) 58 NSWLR 23 Texts Cited Jacobs Law of Trusts in Australia, 7th edition
PARTIES:	Günter Ludwig - Plaintiff The Public Trustee - Defendant
FILE NUMBER(S):	SC 2964/05
COUNSEL:	M Meek - Defendant
SOLICITORS:	Plaintiff appeared in person G Salier - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

17 OCTOBER 2006

2964/05 GÜNTER LUDWIG v THE PUBLIC TRUSTEE

JUDGMENT

HIS HONOUR

PART A – BACKGROUND TO THIS LITIGATION

Nature of the proceedings

1 These proceedings relate to the estate of the late Klaus-Peter Ludwig, whom I will refer to as “the Deceased”. He was murdered on 12 April 1996.

2 The Deceased had never married. He had one brother, Mr Günter Ludwig, who is the Plaintiff in these proceedings. The Deceased had one child, Jonathan Scaffidi. Jonathan was the product of a brief relationship. Though the Children’s Court in Sydney had made a finding of paternity, and made a maintenance order against the Deceased, the Deceased usually did not pay the maintenance, and did not exercise any rights of access he had concerning Jonathan. Jonathan and his mother lived in Perth. The Deceased also had, it seems, a half brother, but he does not feature in any significant way in the evidence.

3 After the Deceased’s death, there was a dispute concerning entitlement to his estate. The Plaintiff sought letters of administration, on the basis that there had been an intestacy. The Public Trustee then sought letters of administration on the basis that there had been an intestacy, that Jonathan was the closest relative entitled on intestacy, but that Jonathan could not apply for administration himself because he was still a minor. The Plaintiff then made a claim for a grant of probate of an informal document, which the Deceased had executed and which said that the Plaintiff was entitled to the whole of the estate but that it “shall be at his discretion to pass on some of my assets to other members of my family according to the circumstances prevailing at that time”. Both Jonathan, and the Plaintiff, also made claims under the Family Provision Act 1982. In connection with these disputes, the Public Trustee at one stage made an application under section 150 Wills, Probate and Administration Act 1898. It sought an examination of the Plaintiff, to ascertain information so that enquiries could be made in South Africa concerning an alleged will of the Deceased which the Plaintiff had described as being “in a bank vault in South Africa”.

4 All of those sets of proceedings were settled when the Court made consent orders on 4 February 1998, as follows:

“By Consent the Court Declares:
1. That the document titled “Will” on the letterheading of Klaus-Peter Ludwig (the deceased) being Exhibit ‘A’ in these proceedings signed by the deceased, constitutes his Will for the purpose of Section 18A of the Wills Probate & Administration Act 1898 as amended.
By Consent the Court Orders:
2. The [Public Trustee] be granted administration of the estate of the late Klaus-Peter Ludwig with the said undated testamentary document which is exhibit “A” in these proceedings annexed.
3. Pursuant to Section 7 of the Family Provision Act 1982 that provision be made out of the estate of the late Klaus-Peter Ludwig in favour of Jonathan Karl Scaffidi, the Cross Claimant herein, by way of an entitlement to one half (1/2) of the nett proceeds of the said estate.
4. Any caveat lodged in respect of the said estate be removed.”

5 The parties to the litigation agreed on the way in which costs should be borne. The Plaintiff and Jonathan’s tutor agreed they would pay their own costs. The Public Trustee’s costs were to be paid on an indemnity basis from the estate, but the Public Trustee was to pay its own costs concerning the proceedings under section 150.

6 Letters of administration with the will annexed of the estate of the Deceased were granted to the Public Trustee on 18 March 1998.

7 The effect of the Family Provision Act order that Jonathan receive half the net proceeds of sale was that, once administration was complete, the whole of the estate would be held on a trust for sale and equal division of the proceeds between the Plaintiff and Jonathan.

8 In these proceedings, the Plaintiff claims damages from the Public Trustee, alleging a variety of acts of negligence in the administration of the estate. The Statement of Claim is pleaded as though the action were a common law action for the tort of negligence, alleging a breach of a duty of care causing damage. I will not pause to consider whether this is the correct way for a beneficiary to bring a claim alleging that the administrator of a deceased estate has mishandled the administration, or whether it is necessary for all parties who would be affected if the mishandling of the administration were made out to be joined to the proceedings. Rather, I will assume without deciding that the alleged duty of care exists, and turn directly to the factual substance of the complaints which the Plaintiff makes. In this negligence action, as in any other, the plaintiff bears the onus of proving breach of the duty, and that he has suffered damage in consequence of the breach.

9 The Statement of Claim contains some 35 particulars of negligence, some of which make several different allegations. Some of the particulars of negligence overlap with each other. Some of them are difficult to follow. In this judgment I will deal with the Plaintiff’s allegations by topic, rather than dealing with the particulars of negligence seriatim.

Assets of the Estate

10 The assets of the estate, as disclosed in the inventory of property annexed to the grant of Letters of Administration, were in substance:

Item	Value
Real estate at 9 Dianne Place Berowra Heights	200,000
Real estate at 18 Brooks St Arcadia Vale	90,000
Furniture, watches & jewellery at Berowra Heights	39,257
Money in current accounts	2,065
Money on deposit	16,569
Listed shares	7,900
Vending machine business	1
Motor vehicle and trailer	9,700
Credit balance with American Express	184
Total	365,676

The inventory of property did not purport to state any of the liabilities of the estate. In fact there were significant liabilities. Among them were a mortgage debt secured over the Berowra Heights home, and various claims against the estate.

Any necessity to obtain a grant of letters of administration?

11 The Plaintiff asserts that the right of the administrator to administer the estate derived from the settlement agreement made on 4 February 1998, and that any subsequent obtaining of a grant of letters of administration was unnecessary.

12 I do not agree. The consent order of 4 February 1998 was one that the Public Trustee “be granted administration” of the estate. It was not itself a grant of letters of administration. Any legal personal representative needs to have a formal grant of probate, or of letters of administration, to authenticate his or her entitlement to act as legal personal representative in relation to that estate.

The Plaintiff’s Appointment of an Attorney

13 On 24 September 1998 the Plaintiff wrote to the Public Trustee, saying:

“From early November 1998 onwards I will be absent and unavailable….
No further correspondence will be entered into after early Nov 1998 until finalisation of your administration.
Upon finalisation of your administration please transfer the balance/refund of my share of the estate to my account “

- and then went on to give details of the Plaintiff’s bank account.

14 The last letter which the Plaintiff wrote to the Public Trustee from an Australian address was on 29 October 1998.

15 The Plaintiff gave a Power of Attorney to Mr Richard Wilson in April 1999. It was, on the face of it, executed by the Plaintiff at Hamburg, in Germany. It gave the Plaintiff’s address as being “PO Box 74 Carlingford NSW 2118”. It gave Mr Wilson’s address as being “P.O. Box 916, Mona Vale NSW 2103”. The Power of Attorney was expressed to be subject to a limitation, “to dealing with my interest in the estate of Klaus-Peter Ludwig”. Subject to that limitation, it granted Mr Wilson power

“ to exercise … the authority conferred on him … by Section 163B of the Conveyancing Act 1919, to do on my behalf anything I may lawfully authorise an attorney to do.”

16 From April 1999 onwards Mr Wilson wrote numerous letters, and had numerous meetings, with officers of the Public Trustee concerning the estate.

PART B – THE FASEMO CLAIM – PARTICULAR (dd)

Facts Concerning the Fasemo Claim

17 One claim of the Plaintiff is that the Public Trustee acted negligently in settling some litigation brought against the estate.

18 On the day of his death, the Deceased was driving a motor vehicle which he had hired from Fasemo Pty Ltd, which trades as Thrifty Car Rentals. In connection with the events involved in the murder of the Deceased, that vehicle was seriously burnt, and became a write-off.

19 The Deceased, during his lifetime, had operated a business which involved the placement and servicing of cigarette vending machines. The exact circumstances of the death of the Deceased are not before me, but he met his death after setting out on a journey to buy, as he thought, a large quantity of cigarettes. Those cigarettes are variously described, in different parts of the evidence, as “discounted” and “stolen”, and the evidence does not enable me to decide which of the descriptions is right. Nor does it enable me to decide whether there ever were any cigarettes available for the Deceased to buy.

20 As early as 7 January 1997 a solicitor for Fasemo wrote to the Public Trustee’s solicitor, making a claim of a little over $29,000 in connection with the damage to the car, asserting that the vehicle “was being used in the illegal enterprise conducted by the late Mr Ludwig at the time of his death”, and asking to be informed when the litigation concerning entitlement to administration of the estate was completed.

21 Evidently the Public Trustee informed Fasemo of the completion of the litigation, and by June 1998 the Public Trustee, and the Plaintiff were both giving active consideration to Fasemo’s claim. The Plaintiff wrote to the Public Trustee on 22 June 1998, setting out his contentions concerning the circumstances of the murder and the burning of the car, and concluding:

“If I would be the Administrator, I would explain the wrongfulness of the claim to Fasemo, but offer them 15 000 Dollars to irrevocably drop their claim, because usually it doesn’t pay to dispute. But of course, you are the one to assess. You are the one with the greater knowledge and experience.”

22 On 24 July 1998 Fasemo began proceedings against the Public Trustee in the Local Court claiming in excess of $41,000 inclusive of interest, costs and disbursements. The cause of action was based on breach of contractual terms obliging the Deceased to return the vehicle in the same condition as when received, and be liable for the vehicle as a bailee for reward, and strictly liable for any damage or loss. The claim for interest, of nearly $12,000, made up a particularly high proportion of the claim, because there was a term in the rental agreement requiring the hirer to “pay interest on all outstanding accounts or charges at the rate of 18 per cent per annum”. There was an allegation in the Statement of Claim that on or about the night of 11 April 1996, “the vehicle was damaged following the renter’s use of the vehicle for an illegal enterprise”, but I have difficulty in seeing how that allegation has any relevance to the contractual claim which Fasemo was making – a bailee is obliged to take care of the bailed chattel regardless of whether the chattel is being used in an illegal enterprise.

23 The Public Trustee sought advice from external solicitors concerning Fasemo’s claim. The claim had not been heard by February 2000, and the advice of the external solicitors was to wait and see if Fasemo pressed on with its litigation.

24 On 21 April 2000 the Plaintiff’s attorney, Mr Wilson, wrote to the Public Trustee on various topics, referring, concerning the Fasemo claim, to the Plaintiff’s earlier suggestion of settlement, and saying:

“… now we don’t believe the estate should pay for the vehicle. There was no illegal action taking place on Peter’s behalf. His murder did take place and the subsequent burning of the vehicle by the murderers.”

25 The Public Trustee decided to attempt to settle Fasemo’s claim notwithstanding Mr Wilson’s views. By 13 July 2000 the Public Trustee had made an offer of $15,000 inclusive of costs, and Fasemo had rejected that offer and made a counter-offer of over $48,000 inclusive of costs, which the Public Trustee rejected.

26 Eventually, the litigation was settled by the Public Trustee paying $20,000 inclusive of costs. That settlement was arrived at on the advice of the external solicitor. A direction to pay, signed by the Managing Director of Fasemo on 29 May 2001, directed that that sum be paid as to $2,042 to Fasemo itself, and as to the balance to Fasemo’s insurer.

Public Trustee’s Power to Compromise Disputes

27 One complaint of the Plaintiff is that the Public Trustee should not have paid Fasemo anything in connection with its claim.

28 Section 5 Trustee Act 1925 provides that in that Act, unless the context or subject matter otherwise indicates or requires:

“Trust … includes … the duties incident to the office of legal representative of a deceased person.
Trustee has a meaning corresponding with that of trust; and includes legal representative and the public trustee and a trustee company.”

29 Section 49 Trustee Act 1925 provides:

“(1) The trustee or the majority acting together, or a sole trustee where by the instrument, if any, creating the trust, or by statute, a sole trustee is authorised to execute the trusts and powers thereof, may, if and as the trustees or the majority, or the sole trustee, may think fit:
…
(d) compromise, compound, abandon, submit to arbitration, or otherwise settle any debt, account, claim, or thing whatever relating to the estate or trust,
(e) for any of those purposes enter into, give, execute, and do such agreements, instruments of composition or arrangements, releases, and other things, as to the trustees or the majority, or the sole trustee, seem expedient.
(2) An executor or administrator may pay or allow any debt or claim on any evidence that the executor or administrator thinks sufficient, and may, if and as the executor or administrator may think fit, do any of the things mentioned in paragraphs … (d) and (e) of subsection (1).
(3) The trustees trustee executor or administrator shall not be responsible for any loss occasioned by any act or thing so done by the trustees, trustee, executor or administrator in good faith.
(4) This section applies only if and as far as a contrary intention is not expressed in the instrument, if any, creating the trust, and shall have effect subject to the terms of that instrument, and to the provisions therein contained.”

30 The Public Trustee has the powers set out in section 49(1)(d) and (e), whether through the Public Trustee being expressly included in the definition of “trustee” in section 5, and there being nothing in the context or subject matter of section 49 to indicate otherwise, or through the operation of section 49(2). In the circumstances of this case, the “instrument” referred to in section 49(4) is either the will, or the grant of letters of administration. Nothing in either of those documents expresses any intention that the Public Trustee should not have the power to compromise disputes.

31 Thus, settling the action notwithstanding Mr Wilson’s views was something which the Public Trustee had power to do.

Was there an Incorrect Exercise of the Power to Compromise?

32 It is, of course, possible for an administrator to have power to carry out some act, but nonetheless to not adhere to the standards that the law requires in the manner in which it actually carries out that act. Seeking advice about the Fasemo claim was an appropriate and reasonable course for the Public Trustee to take.

33 That litigation brought against a deceased estate has been settled in accordance with legal advice is in many circumstances an adequate demonstration that the administrator has acted properly. It is not, however, always so. There can be circumstances where a matter is so important that it could be an appropriate exercise of discretion to seek a second opinion. There can be circumstances where the advice given is the sort of advice which, to an ordinarily prudent businessman conducting similar affairs of his own or (if the administrator is a professional administrator) to an ordinarily skilled and experienced professional administrator, ought seem suspect. In such situations seeking another opinion is required in the proper exercise of the administrator’s discretion.

34 In the present case, the comparatively small size of the claim, and of the estate, would be appropriate matters to take into account in deciding whether the advice of the external solicitor should have been followed. More importantly, however, I see no flaw in the advice. The kind of claim which Fasemo had looks, on paper, a powerful one. It did not depend on whether or not the car was being used in an illegal enterprise. On the basis of the evidence before me, the Public Trustee was fortunate to be able to settle it for as small a sum as it did. There was no breach of its obligations in the way in which it went about settling the Fasemo claim.

35 Further, I infer that in so doing the Public Trustee acted in good faith. I infer this from the Public Trustee seeking advice, obtaining advice that seemed sensible, and acting in accordance with it. Thus, even if its actions in settling the Fasemo claim had, on the sort of minute examination which is possible in a court, been shown to have been lacking, it would, by reason of section 49(3), have had no liability for it.

Cost of External Legal Advice for the Fasemo Claim

36 Another submission which the Plaintiff made in the course of the hearing (although not particularised) was that legal assistance should not have been engaged at all concerning the Fasemo claim. The Plaintiff argues that it was the Public Trustee which was appointed as administrator, and was paid commissions to act as administrator, and so it should have made its own mind up, rather than engaging other advisers, who necessarily needed to be paid.

37 I do not accept that submission. Even a professional administrator of estates could not itself be expected to have the legal expertise to deal with litigation like the Fasemo claim brought against the estate. Any administrator is entitled to be indemnified from the estate for expenses properly incurred: Jacobs Law of Trusts in Australia, 7th edition para [2105]. The expenses of engaging the external solicitors were properly incurred, and so are a proper charge against the estate.

38 Even though the fees of the Public Trustee are fixed by legislation, section 9 of the Public Trustee Act 1913 provides:

“(1) There may be charged in respect of the duties of the Public Trustee such fees, whether by way of percentage or otherwise, as may be prescribed by the regulations.
(2) Any expenses which might be retained or paid out of the trust property if the Public Trustee were a private trustee may be so retained or paid, and the fees may be retained or paid in the like manner as and in addition to such expenses.
(3) (Repealed)
(4) The incidence of the fees and expenses under this section as between corpus and income shall be determined by the Public Trustee.”

Thus, section 9(2) has the effect that the Public Trustee is entitled to charge the fees of the external solicitor against the estate.

PART C – BANKNOTES HELD BY POLICE – PARTICULAR (bb)

Facts Concerning the Banknotes

39 Another contention of the Plaintiff is that the Public Trustee has acted negligently in not having recovered certain banknotes which were the property of the Deceased.

40 Shortly prior to the time of his death, the Deceased had in his possession a quantity of banknotes. Those banknotes are an asset additional to those which had been disclosed in the inventory of property attached to the grant of Letters of Administration. Originally it was thought that the amount of the banknotes was of the order of $58,000, but by a letter of 23 February 2002 a policeman involved in investigating the death of the Deceased, Detective Jacob, informed the Public Trustee that the amount involved was in fact $42,470.

41 Very soon after the death of the Deceased, those banknotes were taken into the custody of the police, as evidence relating to the circumstances of the murder. The cash, according to information supplied to the Public Trustee by the investigating police, “has been burnt, and the majority of it is covered in blood and is “Contaminated -- High Risk”.”. The police say that the money “has distinctive characteristics and blood staining which makes it unique”.

42 Two men, Alexios Spathis and Michael Patsalis, were charged with the murder. They were found guilty, and were sentenced on 23 February 2000. They appealed to the Court of Criminal Appeal, but that appeal was dismissed on 29 November 2001: R v Spathis; R v Patsalis [2001] NSWCCA 476. An application by Spathis for special leave to appeal to the High Court was refused in November 2002: Spathis v R (2002) 23(20) Leg Rep C12.

43 In July 1998 the Public Trustee wrote to Det McNamara, of the Major Crime Squad, seeking information about the amount of cash held by the police and when it could be released to the Public Trustee. Det McNamara replied promptly, saying that the trial was yet to be listed, and all exhibits “including an amount of cash found on the deceased will be required to be retained till the trial date.”

44 On 24 February 2000, the day after Spathis and Patsalis were sentenced, the police wrote to the Public Trustee identifying the amount of money involved as $58,000, and saying it “is being held as an exhibit and will continue to be so held until the completion of any appeal process”.

45 On 13 June 2000, the police wrote again, explaining the distinctive characteristics of the banknotes, and saying: “The exhibit must be available for production in the event of a fresh trial being ordered by the Court of Criminal Appeal.”

46 The Public Trustee inquired again of the police as to the situation concerning release of the banknotes on 4 December 2000, and pointing out that it was unable to earn interest on the face value of the banknotes while those banknotes were held by the police. The police replied on 11 December 2000 that the timing of appeals to the Court of Criminal Appeal was outside the control of the police. The police officer wrote:

“I am sympathetic to the interest rate impacting on the Public Trustee but I simply cannot authorise that these unique banknotes be tampered with in any way until this matter is finally resolved.
Is it possible that you could have the banknotes held as exhibits certified unusable and marked for destruction by the Reserve Bank? I could certainly facilitate a viewing of the exhibit by any authorised persons you arrange.”

47 On 19 December 2000 the Public Trustee wrote to the Reserve Bank, inquiring whether a representative of the Bank could inspect the notes, certify that they were unusable, mark them for destruction, and reissue fresh notes to the estate. The Bank replied promptly, saying it was not its practice to mark notes for destruction, but leave them in the possession of others - however when the notes were released by the police the Public Trustee could have the notes assessed by the Bank, which would then pay the assessed value.

48 The Public Trustee wrote again to the police inquiring about the situation concerning the appeal, and the banknotes, on 17 July 2001, 24 August 2001, 18 January 2002, 18 February 2002, and 8 August 2002. The police replied on 4 March 2003 stating that Spathis,

“… has a current application for leave to appeal to the High Court of Australia. Further that Michael Patsalis has exercised the provisions of Freedom of Information legislation to assist in his ongoing defence. “

49 The police again refused to return the notes, saying “The Crown Prosecutor has re-enforced the importance of these exhibits”.

50 In response to further inquiry, the police informed the Public Trustee on 28 April 2004 that

“The FOI application has had a number of hearing dates at Goulburn Court (sitting as the Administrative Appeals Tribunal).”

51 On 16 September 2005 police wrote to the Public Trustee, explaining that proceedings were part heard before the Administrative Appeals Tribunal, that Patsalis “is seeking to have his conviction reviewed by the Supreme Court of NSW”, and once again refusing to release the notes. Detective Jacob wrote:

“The Crown Prosecutor has previously reinforced the importance of retaining these exhibits through to the conclusion of the appeals process.”

52 Ms Pollard, solicitor for the Public Trustee, has also made recent inquiries of Det Jacobs, and the Registrar of the High Court, and was informed that one of the men convicted is currently seeking leave to appeal, and that that application might be heard on the papers by the end of this year.

Police Power to Retain Evidence

53 At common law constables have power to retain, for use in court, things which may be evidence of crime, and which have come into the possession of the constables without wrong on their part: R v Lushington; ex parte Otto [1894] 1 QB 420 at 423-4; Elias v Pasmore [1934] 2 KB 164 at 169-170, 173; Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299 at 312-313,316-317,320; Ghani v Jones [1970] 1 QB 693 at 706, 708-709; Malone v Metropolitan Police Commissioner [1980] QB 49 at 57 – 59, 69 – 70. The power to retain an item can be exercised for as long as is necessary for the trial and any appeal: Malone v Metropolitan Police Commissioner [1980] QB 49 at 58; Bartlett v Weir (1994) 72 A Crim R 511 at 523.

54 In my view, an application for special leave to appeal to the High Court counts as an “appeal” within this principle. That is in part because it is a frequent practice of the High Court to consider, at the special leave application in criminal matters, the merits of the points which would be argued if leave were granted, so that applications for special leave are often, in practice, the appeal as well. More importantly, it is because the granting of special leave could be a step in a process which results in an order for a new trial, and the policy of the law is that potential exhibits should be retained while ever there is a real prospect that they might be needed for a future trial.

55 Criminal courts would order the return to an accused person of property which was not material to the charge on which that person was to be tried: R v Barnett (1829) 3 Car & P 600, 172 ER 563; R v William Jones (1834) 6 Car & P 343, 172 ER 1269; R v Daniel O’Donnell (1835) 7 Car & P 138, 173 ER 61; R v William Kinsey (1836) 7 Car & P 447, 172 ER 198; R v Burgiss (1836) 7 Car & P 488, 173 ER 217. The existence of that practice demonstrates that the common law power of the police to detain property existed only in relation to property which was material to a pending criminal charge or appeal, and lasted only as long as was necessary for the purpose of the criminal charge or appeal.

56 Section 21(2)(b) Law Enforcement (Powers and Responsibilities) Act 2002 confers on a police officer a power to seize and detain all or part of a thing that the police officer suspects on reasonable grounds may provide evidence of the commission of a “relevant offence”. Section 20 of that Act defines “relevant offences” as including indictable offences. Murder is an indictable offence. Any property seized under that power must, pursuant to section 218 of that Act, be returned to the owner or person who had lawful possession of the thing before it was seized or came into custody if the officer who seized the thing, or has custody of the thing, is satisfied that its retention as evidence is not required, and it is lawful for the person to have possession of the thing. Those provisions are, pursuant to section 4 of that Act, in addition to the common law powers of the police.

57 Pursuant to these powers, the police were entitled, on the evidence before me, to retain the banknotes, and will continue to be entitled to retain them until the High Court has dealt with the outstanding application for special leave to appeal. Further, if the outcome of the application for special leave is such that there will, or might, be a new trial, the police will be entitled to continue to retain them until any such trial, and any appeals from it, have run their course. The Public Trustee took reasonable steps to enquire, from time to time, whether the police were prepared to release the notes. There has been no breach of duty on the part of the Public Trustee in having failed, so far, to recover the banknotes.

PART D – CLAIMS CONCERNING CHATTELS

Claims Concerning Chattels – Factual Background

58 The Plaintiff contends that, in a variety of ways which I shall consider later, the Public Trustee acted negligently in the way in which it dealt with various chattels located in the Deceased’s house at the time of his death.

59 Before considering the particular allegations of negligence, I will set out the background against which those allegations are made.

60 At the time of the death of the Deceased, he lived in a house of which he was the registered proprietor at 9 Dianne Place, Berowra Heights. That house was also the only home which the Plaintiff had in Australia.

61 On 30 July 1996 Mr Gerald F. Weingarth JP (concerning whom the evidence discloses little more than his name) wrote to the Public Trustee enclosing 37 colour photographs of the interior of the house at Berowra Heights, which he said he had taken at 2 pm on Tuesday, 16 April 1996 ie, four days after the murder of the Deceased. He says that he entered the property at that time in the company of three policeman, whom he named,

“… and took the enclosed photographs for security record purposes. A set of the same 37 colour photographs was given by me to Mr Gunter Ludwig at Sydney International Airport on Monday, 22 April 1996.
These 37 photographs will illustrate the huge collection of original paintings, antique and other furniture, china, silver, coins and many other items collected by the late Mr Peter Ludwig.”

62 The Plaintiff had been overseas at the time of his brother’s death, and returned to Australia on 22 April 1996.

63 The Plaintiff describes himself as “a traveller”. He sent various documents to the Public Trustee, enclosed with a letter dated 27 December 1996. One of them he described as “excerpts from a psychological impact study prepared by a registered psychologist”. That report is dated 18 November 1996, and includes some history apparently provided to the psychologist by the Plaintiff:

“He said that about 17 years ago he had effectively “retired” from his employment and since that time he has continued to live on his investments. He said that he has lived a migratory lifestyle over the past 17 years, having travelled to Australia on about 20 separate occasions during this period, and having lived in Australia for approximately 50% of the time over the last 17 years… He said that his income has averaged about $5,000 per annum in recent years and that this has come from various casual jobs … Gunter Ludwig had relied on his brother to a considerable extent. This reliance was partly financial over the past 15 years, as Klaus-Peter Ludwig had provided various casual work opportunities in Australia. However, the main reliance appears to have been upon the emotional support on which Mr Gunter Ludwig received from his brother.”

64 Another document enclosed in that letter was a statement which Mr Wilson had made on 3 June 1996, which included:

“Guenter leads an unusual life, in that he spends approximately 6 months of every year in Europe and the other six months in Australia, where he spends most of that time with his brother Peter at his house at Berowra.”

65 Arrangements were made, which became embodied in a court order, for an inspection of the chattels in the Deceased’s house. That inspection was arranged to take place on 4 December 1996. On 25 November 1996 the Public Trustee wrote to the Plaintiff,

“…advising that a photographer will also be present on 4 December 1996, to photograph all of Peter’s items.
I note that during our meeting on 15 November 1996 you indicated that some items in the house belong to you and therefore it would be an advantage to you to also have them photographed particularly if a dispute as to ownership should arise in the future.”

66 The Plaintiff replied on 29 November 1996, saying:

“… no photographer will be allowed in the house because of important reasons which are outside of the estate dispute.
…
I consider it disgusting that you as a Government body are not only trying to take my home away from me after my brother was killed by the Government via the Police or Ex-Police, but as well you want to dispute my own property as indicated in your letter.”

One of the men charged with the murder was, it seems, an ex-policeman.

67 On 4 December 1996 three officers of the Public Trustee, and Mr Dick Potter, a valuer from Combined Auctions Pty Ltd, who was instructed by the Public Trustee went to the Berowra Heights property. Jonathan Scaffidi’s mother had organised for a photographer to also accompany them.

68 On arrival at the property, the Plaintiff refused to allow the photographer to enter the house, saying to the photographer “if you try to gain access to the property I will call the police”.

69 Thus the three people from the Public Trustee, and Mr Potter, were the only ones to enter the house. They stayed there several hours, noting and valuing all of the home contents. One of the Public Trustee’s officers, Mr Fullgrabe, noticed that a number of items shown in the photos that had been taken by Mr Weingarth were missing. He said to the Plaintiff:

“Some of the items shown in photographs of the household contents are missing. Do you know where they are?”

70 The Plaintiff’s response was to the effect:

“That is irrelevant and the photographs were taken illegally.”

71 When Mr Fullgrabe asked the Plaintiff again where the missing items were, he refused to answer.

72 Mr Fullgrabe gives evidence, which I accept, that if during the visit the Plaintiff had been adamant that any of the home contents belonged to him he is certain he would have noted that in some way, either by marking the inventory or preparing a separate inventory. No such note or separate inventory was made.

73 That was the start of a dispute, which has lasted for years, concerning the ownership and value of the chattels in the house.

74 Following the inspection, Mr Potter produced a lengthy valuation. In the first part of the valuation, he listed every item in the house, and gave, for each item, an auction value, and a fair market value. In the second part of the valuation, he listed items shown in the photographs but which could not be found in the house at the time of the inspection, and gave for each an estimated auction value, and fair market value.

75 One of the items he found at the house and valued was the deceased’s Toyota Camry motor car. Mr Potter valued it at $9,500 auction value, $13,000 fair market value. The other chattels he found at the house, comprising some 185 items, he valued in total at $11,357 auction value, or $29,510 fair market value. The items shown in the photographs but not found at the house, comprising some 24 items, he valued at $27,900 auction value, or $51,850 fair market value. In total, he valued the items at the house and the items in the photographs at $48,757 auction value, and $94,360 fair market value.

76 The Public Trustee wrote to the Plaintiff on 17 December 1996, enclosing a copy of Mr Potter’s valuation, and saying:

“The Public Trustee seeks your comments on the items missing from the house which includes all the items in part 2 of the valuation. Would you please also advise details of any items claimed to be yours.”

77 The Plaintiff replied on 27 December 1996, saying:

“My substantial property (items) inside my home should not be of your concern, as I am not concerned about details of your items inside your home. It has got nothing to do with the estate. What you want, is knowledge of Peter’s estate.
The extent of Peter’s estate is clearly defined in my Application for Letters of Administration filed before the possible ex-nuptial child you are representing popped up.

…
The house at 9 Dianne Place contains Peter’s property, my property, family property and other people’s property.
It is difficult to determine at times what is Peter’s property and what is my property…
Over the many years I lived in Australia with Peter at Dianne Place we lived as a family unit doing most things together both at work and at play.
Our joint efforts provided us both with food and accommodation as well as investments for our old-age, and although we both had specific possessions (i.e. gifts given to each other or direct purchases), on the whole most things went into our joint household and collection. I had investments with Peter.
Like in a married couple we did not always keep track of who bought what for our place….
It was understood between the two of us that the survivor in the event of death would automatically inherit of the other. It is for this reason that it is virtually impossible to say that most possessions are either directly Peter’s or mine. I believe that in the event of a dispute only the Court system will be able to determine who owns what under this circumstances .” (emphasis added)

78 In cross-examination, the Plaintiff accepted that the last two sentences of this quotation are true. I accept that evidence. It is a significant admission about the ability of the Public Trustee, short of court proceedings, to be positively satisfied about who owned the chattels.

79 The only other time when officers of the Public Trustee attended the house where the chattels were located was on 29 January 1997 when Mr Wheatley and Ms Underwood visited for one hour. The purpose of the visit was to enable Mr Wheatley to look at some books relating to the cigarette vending business, peruse the tax returns of the deceased, and any company returns which might have been prepared for corporate regulatory authorities. Ms Underwood’s file note records:

“I made a quick inspection of the house. It appeared to be in the same order as on my previous visit. My only concern was that there may have been a few more paintings missing since that visit. I cannot however confirm that to be the case in view of the number of paintings in the property.”

80 In December 1998 and January 1999 a friend of the Plaintiff, Mr Ivan Delves, arranged to have some, but by no means all, of the house contents delivered to the storage facility of O’Connor’s Removals in Glebe. The items handed over by Mr Delves included the Deceased’s car, of which the Plaintiff had had the use up to that time.

81 The items which were so delivered were submitted for auction. The car was sold for $4500. An auctioneer’s commission of $360.50 was payable in connection with the sale of the car. The other items delivered were sold for amounts totalling $9,190. An auctioneer’s commission of $1,608.25 was payable in connection with those goods. The Public Trustee received the auction proceeds over a period from 8 March 1999 to 6 April 1999.

82 The other goods that had been in the house remained under the control of the Plaintiff. The Plaintiff purchased the house in July 1998 (Para [150] ff below).

83 After April 1999 the Plaintiff had no more direct dealings with the Public Trustee.

84 On 20 March 2000, in circumstances which I will consider in a little more detail later, the Plaintiff sold the Berowra Heights house. Apart from the fact that they have never been delivered to the Public Trustee, or in any way accounted for to the Public Trustee, it is not known what has become of the chattels that were in the house when the Deceased died but that were not sent to O’Connor’s Removals.

85 There have been years of dispute, first between the Public Trustee and the Plaintiff, then between the Public Trustee and Mr Wilson, about what the Public Trustee ought to do concerning the chattels -- what recognition it should give to the Plaintiff’s claim to have title to at least some of them, and what value should be attributed to them, and whether the administration should proceed by distributing them in specie, permitting the Plaintiff to buy them, or selling them. There have been a variety of settlement proposals put, but no resolution has been agreed upon.

Public Trustee’s Treatment of Chattels on Distribution of Estate

86 Insofar as it could do so (because one asset, namely the banknotes held by the police, had still not been realised), the Public Trustee distributed the estate in December 2004. The amount paid to the Plaintiff was $21,150.14. In calculating the amount available for distribution the Public Trustee treated an amount of $42,487.50 as a capital receipt of the estate relating to the chattels which the Plaintiff had kept, and charged an amount of $42,487.50 to the account of the Plaintiff concerning those chattels. Book entries to recognise those two amounts were made in the accounts of the estate on 11 August 2003.

87 The explanation given by Ms Pollard, the Principal Legal Officer of the Public Trustee, for taking that course is:

“… the Defendant exercised his discretion and determined that a figure calculated at 66% of fair market value (estimated by the Defendant to be halfway between fair market and auction value) be used as the value of the chattels and charged against the Plaintiff’s share of the estate.
I am advised by Patrick Kiernan that the price determined by the Public Trustee to be charged against the Plaintiff’s share of the estate for the chattels he retained was calculated as follows:

Total value of all furniture and effects including the motor vehicle	$94,360.00
Less fair market value of chattels sold at auction	$16,985.00
Less motor vehicle	$13,000.00

This resulted in a balance of $64,375.00. Sixty-six per cent of that amount is the sum of $42,487.50.”

Whether the Public Trustee Should Have Decided Some of the Chattels Were the Plaintiff’s

88 A related collection of allegations which the Plaintiff makes is that the Public Trustee was negligent in failing to recognise and accept certain claims which the Plaintiff made to ownership of chattels which had been located in the house. The themes which the Plaintiff advanced to the Public Trustee in support of his claim to ownership of chattels were:

1. There were some items he could demonstrate he had purchased.

2. The house was his only permanent place of residence, and it was usual and expected that a person would own things inside his own place of residence.

3. He and his brother were each other’s primary emotional support and had a “common household” , which automatically meant that they shared ownership of commonly used items.

4. The income his brother had had during his lifetime, as demonstrated by his income-tax returns, could not have been sufficient to have purchased everything which was physically present in the house.

The Plaintiff alleges that he has suffered damage in consequence of his title to these chattels not being recognised, because, when the Public Trustee charged the Plaintiff’s account with the value of chattels which the Plaintiff had kept (para [86] above), it thereby charged the Plaintiff for the value of chattels which already belonged to him.

Common Household – Particular (l)

89 The Plaintiff alleges that the Public Trustee was negligent in failing to take into account certain information which the Plaintiff supplied in support of the existence of a common household. I do not accept that the Public Trustee failed to take any of that information into account. Rather, it took that information into account, but did not regard it as sufficient.

90 A strand of the Plaintiff’s complaint on this topic is, it seems to me, that he also alleges that the Public Trustee, acting reasonably, ought to have regarded the documentary material presented to it as sufficient to establish that the Plaintiff had title to certain of the chattels.

91 I accept that the Plaintiff, over years from 1979, often shared accommodation with his brother. They did not share accommodation continually, because of the frequent absences from Sydney of the Plaintiff while travelling. I accept that they were emotionally close. I accept that some people who knew them socially regarded them as behaving like an old married couple. On the basis of documentary material which the Plaintiff presented to it, the Public Trustee, acting reasonably, ought to have come to a similar conclusion.

92 It is to be observed that the outcome which the Plaintiff and Mr Wilson submitted to the Public Trustee should result from the existence of a common household was, not that there were specific and identifiable chattels which were the property of the Plaintiff, but that the Plaintiff ought to be entitled to a percentage of the total household chattels. Orders of that kind are sometimes made by courts when a marriage or de facto relationship comes to an end, but those orders are made in the exercise of a special statutory power -- they are not the recognition of any pre-existing property right.

93 The existence of a common household does not, of itself, give rise to any proprietary right of the Plaintiff in any chattel used in any household which they shared. The Public Trustee was not failing to exercise reasonable care when it declined to accept the Plaintiff’s argument that a common household proved he had title to chattels. Consistently with its duty to the other beneficiary, the Public Trustee was entitled to require better evidence of title to the chattels.

Usual Inferences From Chattels Being in Someone’s House – Particular (h)

94 It is not difficult to accept that often a person owns items which are located inside his own place of residence. Nor is it difficult to accept that sometimes the house of a deceased person contains items which do not belong to the deceased person. Accepting those propositions, however, is not sufficient to prove that it is more likely than not that any particular chattel, or any collection of chattels, located within the home belongs to the Plaintiff. The Public Trustee, acting reasonably, was entitled to require more than a reminder of these propositions to be satisfied that any of the chattels in question belonged to the Plaintiff.

95 Even if it had been proved that the Deceased had had the comparatively low taxable incomes shown in his tax returns, that would not have been sufficient to establish that the Plaintiff was entitled to any asset or collection of assets. The Public Trustee was entitled, acting reasonably, to expect better evidence than that.

Not Recognising Plaintiff’s Superior Knowledge – Particulars (i) and (l) (v)

96 The Plaintiff had a copy of Mr Potter’s valuation, marked each item in it with a symbol indicating whether it was owned by the Deceased, the Plaintiff, was joint property of the Plaintiff and the Deceased, or property of other people and sent it off to the Public Trustee. He contends that he knew best who owned the various items in the house – in particular, he knew far better than Jonathan, and Jonathan’s mother, who had had practically no contact with the Deceased - and that once the Public Trustee had been told what the situation was concerning ownership of those items, it should have acted in accordance with what it had been told. In my view, the Public Trustee was justified in not accepting that list as adequate proof of the ownership of chattels.

97 The Plaintiff contends that the Public Trustee’s failure to accept the Plaintiff’s superior knowledge about ownership of the chattels amounted to “failing to impartially gather information to identify the extent of” the estate. I am not satisfied that the Public Trustee showed any partiality in the way in which it went about identifying ownership of the chattels. It asked the Plaintiff, repeatedly, for evidence of his ownership of the chattels, and considered the information which was given to it.

Specific Items the Plaintiff Claims to have Proved are His -- Lawsons Purchases – Particular (l) (vi) and (vii)

98 The Plaintiff produced to the Public Trustee receipts from Lawsons, auctioneers, made out in his own name for two items of Georgian silver purchased in February 1996 for a total price of $506. I accept that, on the face of them, those receipts relate to a purchase, because they show a total price of the goods, and add to that total price a 10% “buyer’s premium”, and bear a machine imprinted acknowledgement of receipt of the total amount of the invoice. In the receipts, those items are described by reference to the Lawsons lot numbers, and as “4351 Pr Geo Sugar nips” (price $100), and “Pr Geo open salts, c1782” (price $360). The Plaintiff also produced to the Public Trustee another receipt, in similar form, relating to “408 Silver Plate Coffee, Creamer &” (Price $55).

99 The inventory produced by Mr Potter following the inspection on 9 December 1996 included, in the part of the inventory which identified goods only by reference to the photographs,

· Item “6. 3 Pair Salts, most probably Sterling Silver”, which were together valued at $700 on an auction basis, or $1200 on a fair market value basis. The inventory also said concerning that item “(if only Plated Auction $150 & Fair Market $350)”.

· Item “9. Silver & Plated Items to Lower Shelves, Cruet Set, Pen Stand etc”, which were valued at $600 auction value, $900 fair market value.

· Item “13. Porcelain China Figures, Crystal Perfume Bottles, Silver & Plated Ware to Cabinet”, which were valued at $1000 auction value, $2000 fair market value.

100 First the Plaintiff, and later Mr Wilson, asserted to the Public Trustee that the open salts which the Plaintiff had purchased fell within item 6, and that both the sugar nips and the “Silver Plate Coffee, Creamer &” he had purchased fell within either item 9 or item 13.

101 I accept that it is a realistic possibility, simply by comparing the descriptions of the items in the receipts and the descriptions of the items in the inventory, that the Plaintiff’s assertion was correct. However, it is also a realistic possibility, if one engages in that comparison, that the Plaintiff’s assertion was not correct. In that situation, in my view it was open to the Public Trustee, acting reasonably, to reach the view that it had not been satisfied that the Plaintiff’s assertion was correct.

Specific Items the Plaintiff Claims to have Proved are His -- Wall Unit

102 The parties dealt with this item at the hearing, even though it had not been particularised.

103 On 22 January 2001 Mr Wilson produced to the Public Trustee for the first time a document which Mr Wilson described as “wall unit receipt $1250 dated 19-9-91 and 20-9-91”. That document is a handwritten document, not on any letter head, and not addressed to anyone, in two parts. The first part reads:

“Wall Unit $1250 Dep $350 Bal $900 on 10 piece Wall unit R O’Neill 19/9/91”.

104 The second part reads:

“ balance on Wall Unit $900 cash paid R O’Neill 20/9/91”.

105 The inventory produced by Mr Potter included, as an item in the lounge room:

· Item “156. Walnut Finish 3 piece Wall Unit, Fitted with 10 Doors & 5 Drawers, Light Floral inlays to the Doors”, which was valued at $1000 auction value or $2500 fair market value.

106 Mr Wilson asserted that the wall unit referred to in the handwritten document was the same as item 156 in the valuation.

107 Again, it is a realistic possibility that that contention might be right, and also a realistic possibility that it might not be right. Again, in my view it was open to the Public Trustee, acting reasonably, to reach the view that it had not been satisfied that Mr Wilson’s assertion was correct.

108 Further, when the document was not addressed to anyone, the Public Trustee was entitled to entertain doubts about whether, even if the wall unit to which it referred was the one which had been valued, it was the Plaintiff who had purchased that wall unit.

Specific Items the Plaintiff Claims to have Proved are His – Television – Particular (l)(viii)

109 Another document that the plaintiff sent to the Public Trustee in 1998 is a statutory declaration from a Mr Heinrich Kobbing. That statutory declaration stated that Mr Kobbing ran a television service business, and that “approximately in 1991 Guenter Ludwig had bought a Philips TV set with stereo and teletext for 400 Dollars from Harry Bothan previously working for “Philips Service”. My company had adjusted the channels of that television set at that time.”

110 The inventory produced by Mr Potter included, as an item in the lounge room:

· Item “166. Philips 48 cm Colour TV with Remote”, which was valued at $50 auction value and $150 fair market value.

111 Once again, the contention that the television referred to in the statutory declaration, and the television referred to in item 166 in the inventory were the same, might or might not be true. The statutory declaration gives no clue as to how it was that Mr Kobbing knew that it was the Plaintiff who had bought the Philips television set, rather than the Plaintiff’s brother, or indeed anyone else. The Plaintiff did not produce any receipts, invoices, cheque butt stubs, or any other confirmatory documentation. Again, in my view it was open to the Public Trustee, acting reasonably, to reach the view that it had not been satisfied that the two items were identical.

Specific Items the Plaintiff Claims to have Proved are His -- Light Fittings - Particular (j)(i)

112 The inventory produced by Mr Potter included, as an item in bedroom one:

· Item “140. 6 Brass & White Metal Ceiling Light Fittings, with shades”, which were valued at $300 auction value and $900 fair market value.

113 The Plaintiff purchased the Berowra Heights property from the Public Trustee. That conveyance settled on 10 July 1998. It is common ground that the contract for sale included the usual inclusions in a contract for sale of a house, including fixed light fittings. The Plaintiff claims that thereby he purchased item 140.

114 Mr Potter’s valuation stated that what he was valuing was the “Furniture, Paintings & Effects” in the Berowra Heights house. It would be unusual for a valuer to include something which was really a fixture in any such valuation. As well, it would be unusual to have six ceiling light fittings, of a kind which had shades, installed as fixtures in the one bedroom. The Public Trustee, acting reasonably, was entitled to expect better evidence that those light fittings were the property of the Plaintiff.

Specific Items the Plaintiff Claims to have Proved are His – Scales – Particular (j)(ii)

115 The inventory produced by Mr Potter included, as an item in the storeroom,

· Item “153. Set of Vintage Avery Balance Scales”, which were valued at $100 auction value, and $225 fair market value.

116 Some parts of the scale in question were made an exhibit in the case. It is a scale of an unusual type, where the dial shows dollar amounts, rather than weights. I accept that it is the type of scale which would be appropriate for weighing coins in bulk, to ascertain the value of the coins. I accept that it is the sort of item which would be of use to someone who conducted a cigarette vending machine business, and that it is more likely than not that the Deceased used the scale in that way.

117 The Plaintiff claims that this is an item which he purchased, as part of the cigarette vending machine business.

118 The evidence does not include any executed contract for sale of that business. On 15 February 1998 the Plaintiff provided to the Public Trustee, at its request, a stock list and “a list of other assets being assets of the business.” That list of assets does not refer to the scales. It does not even contain a general description of goods into which the scales might fall. On 7 March 1998 the Plaintiff provided to the Public Trustee a different list of the plant of the business. That list likewise did not specifically refer to the scales, and did not have a general description of goods into which the scales might fall.

119 It is clear enough that the parties intended that the business would pass to the Plaintiff. On the whole of the evidence now before me, I conclude that is enough to have given the Plaintiff title to the scales.

120 But it is only by having seen the parts of the scales which were tendered, and noted the unusual units of measurement which they have and that they are indeed “Avery” scales that I have reached that conclusion. That evidence was at no time before the Public Trustee. The description of the scales – which was all the Public Trustee had to go on – does not suggest the scales were an asset of the business. On the material before it, the decision of the Public Trustee not to recognise the scales as being Mr Ludwig’s property was a reasonable one.

Ignoring Mr Wilson’s warning – Particular (k)

121 A separate particular of negligence is:

“Failing to respect the Plaintiff’s property, having been proved to be inside his home, by including it in the Defendant’s distribution calculation after being explicitly warned by Mr Wilson acting under Power of Attorney for the Plaintiff, that such action would be equal to or as good as theft.”

122 Mr Wilson gave a warning of the kind to which this particular relates. However, in circumstances where the Public Trustee was not satisfied that the Plaintiff had demonstrated ownership of any of the chattels inside the house, and where, for reasons which I have earlier given, the Public Trustee was not negligent in taking that view, ignoring Mr Wilson’s warning does not involve the Public Trustee acting negligently.

Allegedly Lost Items – Particulars (m) and (n)

123 The Plaintiff complains that the Public Trustee has been responsible for the loss of estate property, namely:

Combined Auctions Inventory number	Item	Auction Value	Fair market value
158	Four piece lounge suite	$150	$350
150	Approx 200 books	$50	$150
142	Black & White TV chairs & 2 speakers	$5	$15
147	Assorted sundry items (curtains etc)	$20	$60
172	Lamp base & shade	$30	$90
Total	$255.00	$665.00

124 Items meeting those descriptions in the inventory were delivered to O’Connor’s by Mr Delves. No money, identifiable as attributable to goods with these inventory numbers, was received by the Public Trustee. However, the auctioneers did not use the same lot numbers as had been used in the Combined Auctions inventory.

125 Mr Wilson described those items as ones which “were lost, not bid on, damaged or destroyed” in a letter he wrote to the Public Trustee on 22 July 1999. I accept that it is possible that any of these descriptions might have applied to these particular goods.

126 Ms Pollard, when cross-examined about what had become of these goods, gave another possibility. She gave evidence that:

“… some items might have been bundled up with other lots, they may have been sold off together or in several lots, we just do not know.”

127 Concerning the books in item 150, she said that:

“ the books may have all been merged. I think there were two lots, Lot 200 and Lot 400.”

(These lot numbers were the auctioneer’s lot numbers, which did not tally with Mr Potter’s inventory numbers.) I also accept that that is a possibility.

128 I am not satisfied that the Plaintiff has made out that these items were lost.

129 Further, these items were all items which the Plaintiff had caused to be delivered to O’Connor’s Removals, for the purpose of being auctioned. Mr Delves had requested the Public Trustee to reimburse him $250, which it had cost him for their transportation to O’Connor’s Removals. The goods had been stored pending the auction, again at an expense. The value of the goods had been estimated by Mr Potter to be fairly small. If any of the goods had indeed been submitted to auction and not attracted a bidder, that would provide a strong ground for concluding that Mr Potter’s estimate of their auction value had been too high. In those circumstances, if it were the case that some or all of the items had been submitted for auction and had not been purchased, it would be open to the Public Trustee, acting reasonably, to decide that it should take no further steps in relation to the unpurchased goods, and to simply abandon them. I am not satisfied that any negligence has been made out in relation to any loss of these goods.

130 The Plaintiff complains that, regardless of what has become of these particular goods, the Public Trustee treated him, in the calculations which it made for the purpose of charging his share of the estate with a value for chattels, as having kept and purchased these goods. To make good that contention, the Plaintiff would need to show that the allegedly lost goods were not part of the goods which went into the Public Trustee’s calculation (set out at para [87] above) in the line “less fair market value of chattels sold at auction -- $16,985.00”. He has not proved that fact.

131 For these reasons, the complaints of negligence concerning the allegedly lost goods are not made out.

PART E – REIMBURSEMENT OF ESTATE EXPENSES – PARTICULARS (e), (f) and (g)

The Vending Machine Business

132 As early as 27 December 1996 the Plaintiff had written to the Public Trustee saying that “the quantity and location of Peter’s cigarette machines are known to myself only.”

133 On 20 February 1998 the Public Trustee wrote to the Plaintiff stating that it would instruct solicitors to act on the sale of the vending machine business, that the Plaintiff was free to negotiate the sale and advise how the business should be sold, and that the Public Trustee required the serial numbers of the machines and an inventory of plant and equipment.

134 On 21 March 1998 the Plaintiff said he would provide a list of the serial numbers and locations of the machines “as soon as practicable”. He advised that the vending machines should not be removed from the sites, because of high transport costs and storage costs, and the goodwill value of the vending site being destroyed. As well, he said,

“Most of the machines are in private Greek clubs behind iron security doors, the owners unwilling to have them removed (I told them). People there cannot read and sometimes not speak/understand English.”

135 On 12 April 1998 the Plaintiff told the Public Trustee “I will prepare a list of cigarette vending sites and machine numbers shortly.”

136 On 29 May 1998 he wrote to the Public Trustee saying:

“The localities of the cigarette machine sites of Galaxy Vending are not a secret, and it is not a problem to disclose them to you. I will do so in due course.”

137 He said that he would make efforts to find a buyer for the business, and that “as soon as a buyer is found it will be necessary that all details of the business are given …”.

138 Other requests by the Public Trustee, on 1 June 1998 and 14 July 1998, to advise the location and serial numbers of the machines, produced no information on that topic. Indeed, the Public Trustee never managed to extract that information.

139 On 15 February 1998 the Plaintiff had provided the Public Trustee with a complete list and wholesale value of the cigarette stock on hand as at 13 February 1998, totalling $19,598.86. He estimated the goodwill value of the business, including machines, at $11,000, giving an approximate value of $31,000.

140 After some negotiation, agreement was reached in October 1998 that the Plaintiff would buy the vending machine business for $27,000. The Plaintiff paid a $1,000 deposit in August 1998. The balance of $26,000 was treated as a debit to his capital account on 24 February 2000 (para [146] below).

The Plaintiff’s Claim for Repayment of Estate Expenses

141 On 7 March 1998 the Plaintiff made a claim to the Public Trustee to receive certain reimbursement of expenses, and payment for work done, which can be summarised as follows:

Reimbursement of funeral costs	4615.00
Expenses paid from Commonwealth Bank account (mortgage and utility payments for Berowra, council rates and water rates for both Berowra and Arcadia Vale, his own expenses of returning to Australia)	4792.80
Payment for hours worked in running the business from the date of the deceased’s death until the date of the consent order	41,575.50
Payment for time spent, over the period between the date of death and the consent orders, in connection with his application for administration	12,312.00
Total	63,295.30

142 He accepted that $3531.08 should be deducted for certain private benefits he had received from the expenditure, thus making his net claim $59,764.22. His calculation of the quantum of those private benefits included half of the utility charges paid concerning the Berowra Heights property in the period after death, an allowance in a sum he estimated at $1,200 for 10% private usage of the Deceased’s car, and an amount of $1,980 for rent of the Hornsby property from 4 February 1998 until a date he estimated would be the date of exchange of contracts for him to purchase the Hornsby property. (His references to the “Hornsby property” were to the Berowra Heights property.)

143 The Public Trustee, as early as March 1998, offered $10,000 to settle this claim. It explained the rationale for that offer as being that

(a) reimbursement of funeral expenses was appropriate subject to invoices and receipts,

(b) the usual policy was that occupants of real estate rent-free usually pay all outgoings associated with it,

(c) fees for administration and managing the estate were not payable to the Plaintiff in accordance with the terms of the Consent Orders, and

(d) the Plaintiff’s claim for time spent managing the business was excessive considering that any profit from the business had not been accounted for to the estate, and that he had been residing at Berowra Heights rent-free.

The Plaintiff had in fact been residing at the Berowra Heights property without paying rent since his return to Australia in April 1996.

144 The Plaintiff provided invoices and receipts concerning the funeral expenses.

145 The Public Trustee eventually allowed those claims at $25,000.

146 The Plaintiff complains that the Public Trustee has not paid or allowed him that $25,000. That submission is incorrect. The Public Trustee reflected its allowance of the $25,000 in the estate accounts by entries made on 2 February 2004 as follows. On 24 February 2000 the unpaid balance of purchase money for the vending machine business, namely $26,000, was debited to the account which the Public Trustee maintained in the name of the Plaintiff. On 2 February 2004, when a recalculation of the entitlement of each beneficiary was made by the Public Trustee, the amount shown as owing by the Plaintiff in connection with the cigarette vending business purchase was shown as $1000. There was a note on the account entitled “Distribution Sheet (Multiple)” prepared on 2 February 2004, which explained that this amount was arrived at by taking into account the $1000 deposit which the Plaintiff had paid, the $27,000 purchase price for the vending machine business, and offsetting his claim of $25,000 against the purchase price.

147 The Plaintiff contends that his claim for these expenses had earlier been quantified at $47,000 by the Plaintiff and “Justice Simon” (a misnomer for Simos J which frequently appears in documentation produced by the Plaintiff concerning this case). The Plaintiff also contends that that quantum of $47,000 was agreed by the defendant during a conference in mid-1998. I am not satisfied that a legally binding agreement, of either of these kinds, was ever made.

148 On a close reading of the particulars of negligence, I do not find any allegation that the Public Trustee ought to have paid any different sum than $25,000 in settlement of the claim. However, both in correspondence with the Public Trustee and sometimes in submission, the Plaintiff made such a complaint. In those circumstances, I shall express my conclusion concerning it. I am not satisfied that the Plaintiff has established that the Public Trustee ought to have allowed him any larger sum than $25,000 in connection with that claim.

PART F – THE PLAINTIFF’S CLAIM FOR HAVING LOST HIS HOME PARTICULARS (e), (f) and (s)

149 The Plaintiff claims that he lost his home because the Public Trustee did not reimburse him for rates and mortgage payments he had paid on two estate owned houses, did not reimburse funeral costs, and did not release funds to enable him to pay a bill which he owed his solicitor.

150 The deceased at the date of his death owned a home at 9 Dianne Place Berowra Heights, being the land in Folio identifier 20/246918. That home was subject to a mortgage to the Advance Bank. The Public Trustee transferred the house to the Plaintiff on 10 July 1998. The price at which the Public Trustee sold it to the Plaintiff was $235,000. The way in which the consideration was expressed on the transfer was “$117,500 for a one half share and the remaining one half share by way of entitlement to the estate of Klaus Peter Ludwig …”.

151 There were various claims against the estate, which needed to be taken into account before the Public Trustee could transfer the house. After making allowance for those claims, it was calculated that the Plaintiff needed to pay $196,350 to receive a transfer of the house. The Public Trustee wrote to the Plaintiff on 15 May 1998, saying:

“We refer to our previous correspondence in respect of you retaining the above property as part of your entitlement in the estate. For this to occur the Public Trustee must calculate the likely distribution of the estate, taking account of all assets, claims, costs and fees.
The preliminary calculation shows that $196,350.00 is to be paid in by you to enable such a notional sale to take place. In this regard, kindly note that:-
(i) The following reserves have been taken into account:

Claim by yourself	$65,000.00
Mortgage and Loan Accounts to Advance Bank	$150,000.00
Claim by Fasemo Pty Limited (including costs)	$60,000.00
Possible Dispute re chattels and effects	$10,000.00
Litigation costs	$13,000.00
Energy Australia	$16.00
ANZ Telstra Visa Card	$9,508.00
Westpac Mastercard	$4,563.00
Westpac A/c 590651 – debit	$2,040.00
Jonathan Scaffidi – Solicitors Costs charged against his share	$34,812.45

(ii) The possible assets of the business known as Galaxy Vending and funds held by Police (believed to be between $50,000.00 - $58,000.00) have not been taken into account.
The following issues will impact on the quoted figure:-
1. Your claim for $65,000.00 – the amount agreed will reduce the amount to be paid by you.
2. Your retention of the chattels – will increase the amount required.
3. The claim by Fasemo Pty Ltd – may reduce the amount required.
4. The receipt of the cash held by the Police – will reduce the amount required.
The Public Trustee realises that it will not be until the outstanding issues are resolved that we will be able to be more exact. However, it is imperative that we receive evidence of your ability to provide the Public Trustee with the sum of $196,350.00, noting that a refund of excess would occur.”

152 In other words, the Public Trustee did a calculation, on the basis of information then available and taking a cautious approach to the quantum of possible claims that the estate might have to meet and expenses involved in the transfer, of the amount which was likely to be ultimately distributable to the beneficiaries. The amount it calculated as likely to be distributed to each beneficiary was $42,159.54.

153 The Public Trustee calculated the estimated out-of-pocket expenses which the Plaintiff would need to pay in connection with the sale to him as being $3,509.54. The Public Trustee then deducted that $3,509.54 from the $42,159.54 calculated as being distributable to each beneficiary, as the Public Trustee intended to finance those expenses from the amount distributable to the Plaintiff. Thus, the net amount distributable to the Plaintiff was calculated at $38,650.

154 The Public Trustee then treated the sale as though it was a partial distribution to the Plaintiff of $38,650 plus the estimated expenses of sale, and required the Plaintiff to pay the difference between the $235,000 sale price of the house, and $38,650, ie $196,350. Because the Plaintiff paid an amount of $196,350, the amount he paid was $78,850 greater than the $117,500 purchase price of a one half interest in the house.

155 In adopting that approach to the making of a partial distribution, the Public Trustee was acting in the way the law requires: Gonzales v Claridades (2003) 58 NSWLR 188, [2003] NSWSC 508 at 200, [47]-[50], the reasoning of which was expressly affirmed in Gonzales v Claridades (2003) 58 NSWLR 211, [2003] NSWCA 227 at 215, [16]. As Romer J said in In re Kay; Mosley v Kay [1897] 2 Ch 518 at 522, when a prudent and reasonable executor “… has notice of any claim, prima facie, he ought not to proceed to pay the legatees without making due provision for all claims of which he has had notice.”

156 The transfer took the form of a distribution to the Plaintiff of a half share in the house, and a purchase by him of the other half share. Structuring it in that way had the effect of minimising the stamp duty which the Plaintiff paid. However, in light of its calculations, the Public Trustee was justified in distributing in specie a one-half interest in the house only because it had received from the Plaintiff an amount of $78,850 which it could use, in lieu of the house, as a fund to meet possible claims. It was not as though that $78,850 was a sum which the Public Trustee held on deposit for the Plaintiff.

157 The Plaintiff obtained finance of $161,000 from Adelaide Bank Limited, secured by a mortgage over the Berowra Heights home, which upon settlement of the conveyancing transaction was paid to the Public Trustee.

158 On 8 May 1999 Peter Lander, solicitor, lodged a caveat against the title to the Berowra Heights property, claiming an entitlement to do so pursuant to a letter dated 15 April 1998. Mr Lander was a solicitor who at one time had acted for the Plaintiff.

159 On 7 June 1999 the Plaintiff wrote a letter to the Public Trustee, from an address in France, instructing it not to pay any money to Mr Lander.

160 From around the middle of 1999 Mr Wilson was not readily contactable. He had, it seems, left Sydney. By a letter dated 22 July 1999, and possibly earlier orally, he had told the Public Trustee that he had left Sydney, so that he was unable to turn mail around quickly without being telephoned first, in a period of time which he nominated as from 6 pm to 9 pm. He explained that if he was not contacted in that way he could only turn mail around every six weeks or so as mail was forwarded to him. There is no evidence before me that anyone from the Public Trustee indicated any willingness to telephone him between 6 pm and 9 pm concerning this estate.

161 On 18 October 1999 the Public Trustee wrote to Mr Wilson, referring to an interview they had had on 12 October 1999. I infer that in that interview Mr Wilson had requested the Public Trustee to make available enough money for the Plaintiff to pay Mr Lander’s account. That was the first time there had been any departure from the Plaintiff’s instruction of 7 June 1999.

162 The Public Trustee replied on 18 October 1999, saying:

“I make reference to our recent interview of the 12 October, 1999.
In such interview we discussed numerous aspects of the estate administration. I would now be grateful if you would kindly advise/provide the following:
1. Provide a copy of Lander & Lander’s Solicitors, account. From recent discussions, I believe this account currently stands at approximately $25,000.00 but you will try and negotiate a lower figure.
2. You confirmed that the business “Galaxy Vending” was sold by Gunter for the sum of $27,000.00 and $1,000.00 deposit was forwarded to this Office. I would now be grateful if you would forward records of the sale to this Office for my attention.

“ … the only persons who are to be affected by the notices are those whose claims against the estate are to be met by the executor or administrator as the case may be in a due course of administration, and not persons whose claims are that the executor or administrator has no rights to administer the estate at all.”

282 In Re Barber deceased [1924] VLR 123 is a decision of Cussen A-CJ which had as its ratio that certain proprietary claims can fall within the Victorian equivalent of the pre-1977 form of the section. The facts of that case need to be considered, however. They arose from the practice, now obsolete, of a vendor of real estate entering a “terms payment contract”, under which the purchaser periodically paid instalments of the purchase price, and the vendor was not obliged to transfer title until the whole purchase price was paid. An intestate had, during her lifetime, contracted to purchase a Torrens Title house on terms payment, and during her lifetime the whole of the purchase price had been paid. After her death, her administrator obtained a transfer of the property, and became the registered proprietor. Her husband claimed a beneficial interest in the house, on the ground that he had provided some of the purchase price. The administrator served a notice under the Victorian equivalent of section 93, which the intestate’s husband did not respond to. The administrator then sought an order to bar the claim. Cussen A-CJ held that a claim such as the one made by the husband fell within the section. He said, at 126:

” … the sub-section applies to cases other than those of claims of ordinary creditors against the estate … I myself said in In Re Timm [1912] VLR 460 that I thought that what may be called proprietary claims were included in the section, and I adhere to that opinion.”

283 On the facts of that case, there was a very real sense in which it could be said that the husband’s claim was a “claim against” the estate -- by virtue of having become registered proprietor, the administrator clearly had the legal title to the house, and the husband’s claim was that that asset, which the administrator was bound to deal with, was held on trust for him.

284 It is not immediately apparent that the same rationale applies to some of the claims which the Plaintiff makes concerning chattels. The Public Trustee did not obtain, by virtue of the grant of letters of administration, any specific authorisation to deal with any particular chattels. What the grant of letters of administration gave to the Public Trustee was authority to deal with whatever might in fact turn out to be the assets (including chattels) of the Deceased. Concerning the chattels that were found in the house, the Public Trustee has not come to be under the same sort of clear duty to deal with an asset that arises if Torrens Title land is registered in the name of the administrator of an estate.

285 The Plaintiff says, in effect, that he owns various of the chattels which were in the house, and that the Public Trustee simply had no right to deal with those chattels. It is implicit in his submissions that what the Public Trustee has done concerning the chattels is tantamount to theft or conversion of his chattels. Further, as the Plaintiff sees it, when he has contended that the Public Trustee has wrongfully asserted a right to deal with all the chattels that were in the house at the time of death, the Plaintiff was not making a claim “in respect of the assets of the estate of the testator” – he was making a claim in respect of the Plaintiff’s own chattels. In the Plaintiff’s eyes, it was ludicrous for the Public Trustee to call on him, by the section 93 notice, to bring proceedings to enforce “your claim of the chattels in the estate”, because he did not claim any of the chattels in the estate – he only claimed his own chattels. If the Public Trustee could not understand that they were his chattels, that was the Public Trustee’s problem, not his – nothing could change the fact that they were his chattels.

286 In considering whether that is the correct approach to the validity of the notices that were served, I bear in mind that even if the Plaintiff were correct in claiming that he owned some of the chattels in the house, the Public Trustee would not have converted any of those chattels. Indeed, part of the problem which the Public Trustee has encountered in administering this estate is that it has not had physical dominion over the chattels – the Plaintiff has at all relevant times had them under his control, except for the chattels which were sent for auctioning. Rather, what the Public Trustee has done is to calculate the manner in which the estate assets should be distributed, taking into account the value of chattels which it has charged against the Plaintiff.

287 I earlier said that one of the changes which the 1977 amendments to sections 92 and 93 introduced was to make claims to which those sections referred claims “in respect of the assets of the estate of the testator”. The expression “in respect of” is capable of having a very wide meaning, of conveying some connection or relation between the two subject matters to which the words refer – however the width of meaning which the expression actually has, in a particular statute, depends upon the context in which appears: Wonall Pty Ltd v Clarence Property Corporation Ltd (2003) 58 NSWLR 23 at [41]-[43], 44-45, and cases there cited.

288 In deciding whether a claim is “in respect of the assets of the estate of the testator”, the task one is called on to carry out is to find out whether there is the type of connection between the claim, and the assets of the testator, that is within the scope of sections 92 and 93. If that type of connection exists, that suffices to make it a type of claim to which sections 92 and 93 apply, even if it could also be said that the claim is “in respect of” something other than the assets of the estate of the testator. This is analogous to the way that a particular Commonwealth law can be “with respect to” one of the heads of power of the Commonwealth Parliament listed in section 51 of the Constitution even if it can also fairly be said to be “with respect to” some topic which does not appear in section 51: Herald and Weekly Times Ltd v The Commonwealth (1966) 115 CLR 418 at 434.

289 The context in which sections 92 and 93 appear is one of the administration of deceased estates. The purpose of the sections is to facilitate the administration of those estates. Part of the administration of the present estate involved ascertaining which of the chattels located in the house belonged to the Deceased, and applying those chattels in the proper order of distribution of assets. It involved calculating the manner in which assets should be distributed, taking into account the value of the chattels that properly were in the estate. The Public Trustee had, by the time the section 93 notice was served, made clear its view that it was not satisfied that any of the chattels were the property of the Plaintiff, and that it proposed to distribute the estate accordingly. To be able to distribute the estate, the Public Trustee needed to be able to carry out a calculation which had the value of estate-owned chattels as an essential element in it. In that context, the Plaintiff’s claim that a certain value of chattels ought be excluded from the calculation that the Public Trustee did can properly be characterised, within the purpose of section 93, as a “claim in respect of the assets of the estate”. That is so because, if that value of chattels is excluded, it affects the manner of distribution of assets which are unarguably assets of the estate.

290 Another way of reaching the same conclusion is by accepting that the Public Trustee and the Plaintiff found themselves with a difference of opinion, which could not be resolved by mere discussion, about which of the chattels were truly chattels of the estate. It is well within the purpose that section 93 is trying to achieve to advance the administration of the estate by providing a mechanism for breaking this sort of a difference of view between the administrator of an estate and a person making a claim to own an asset which is arguably an asset of a deceased estate.

291 Concerning an analogue of section 93, which permitted the barring of a “claim against the estate”, the New Zealand Court of Appeal in In Re Long (deceased) [1951] NZLR 661, at 672, said that the section:

“… provides a special procedure for the benefit of administrators, a procedure which is not available to ordinary persons. Presumably, administrators were given this advantage because of the special difficulties of their position; uncertain claims might make it impossible for them to ascertain the amount of the estate assets so as to have duty assessed and paid, and might also prevent beneficiaries from obtaining payment of moneys or transfer of properties to which they would otherwise be entitled. We think, therefore, that is proper to give the section its full, natural meaning as applying in every case where there is a claim of any sort against the administrator as such, requiring to be met by him in the due course of his administration, whether it affects the assets of the estate directly or affects them indirectly through the administrator in either case, the administrator cannot safely distribute without the protection of the Court, and that protection is as valuable in the one case as in the other.” (emphasis added)

292 The first two sentences of this quotation were cited with approval by Angel J in Re K (2002) 171 FLR 286 at 295, [29]. I agree with the whole of the quotation. In the present case, the existence of a claim that chattels are not in truth chattels of the estate affected the assets of the estate indirectly, because the Public Trustee could not safely distribute the assets until that claim was resolved. It is, in my view, even clearer, now that the post-1977 version of the section uses the more general expression “claim in respect of the assets of the estate of the testator”, that a claim such as that which the Plaintiff made in the present case concerning the chattels falls within the section.

293 It is legitimate for a court to check the correctness of a particular view on construction of a statutory provision which it has arrived at by considering whether it produces practical results which are sensible, rather than ones which are very seriously anomalous: Ganter v Whalland (2001) 54 NSWLR 122 at 131, [35]-[36] and cases there cited. It is a common enough phenomenon for the executor or administrator of a deceased estate to not be fully informed about the dealings of the deceased person that are relevant to the estate. In a situation like the present, where the Public Trustee was a stranger to the Deceased, and the Plaintiff has presented the Public Trustee with a fait accompli concerning the chattels, by simply deciding which are the ones he will keep, and only handing over ones which he has decided not to keep, it would be unreasonable to expect the Public Trustee to undertake the onus of proof of title to the chattels, which would be involved if the Public Trustee were to sue the Plaintiff for detinue or conversion concerning the chattels which the Plaintiff kept. The practical effect of section 93, as I construe it, is to cast on the Plaintiff the onus of proving, in litigation, title to the chattels he claims, or run the risk that the estate will be administered on the basis that he has no such title. Further, in the situation where the administrator of an estate does not have the special powers which the Public Trustee has under section 34B, this construction enables the administration of the estate to proceed with the only court proceedings involved being the comparatively simple proceedings involved in obtaining a barring of a claim. In a situation where the Public Trustee has special powers under section 34B, the construction of section 93 which I have arrived at enables the administration of the estate to proceed without any court proceedings at all. I see nothing unreasonable in these consequences. This provides some further support for the correctness of the construction of the expression “claim in respect of the assets of the testator” that I have arrived at.

Validity of the Notices – Particulars (ff), (gg) and (hh)

294 There is then a question of whether the notice which was actually served called upon the Plaintiff to bring such a claim. The notice related, so far as is relevant, to “your claim of the chattels in the estate”. The notice is clearly one that is a unilateral notice, issued by the Public Trustee. Such a document is effective if it conveys its message clearly and distinctly to a reasonable reader in the position of the recipient: Robinson v Becata Pty Ltd (2004) 12 BPR 22,699 at [24] – [49], and esp [49]. It was known to the Plaintiff and Mr Wilson that the contention of the Public Trustee was that all the chattels that had been in the house were ones that fell into the estate, and that the Public Trustee was intending to administer the estate on that basis. A reasonable reader with that information would construe the notice as calling on the Plaintiff to bring proceeedings concerning his claim to chattels that the Public Trustee contended were in the estate. The alternative – which the Plaintiff contended was correct – was that the Public Trustee was engaging in an exercise in futility, because none of the chattels that the Plaintiff claimed were really (though, as I have found, in a way which had not at that stage been clearly demonstrated) chattels in the estate. A construction which achieves a useful purpose for a document, rather than one which makes it a futility, is preferable.

295 I conclude that the section 93 notice was one which called upon the Plaintiff to bring proceedings to make good his claim that he had title to some of the chattels which the Public Trustee contended were estate assets, or be at risk of having his claim to ownership of those chattels barred.

296 The Plaintiff makes complaint that the Public Trustee did not go to court, seek an order barring the claim, and place the full story concerning the Plaintiff’s claims before the court. The simple answer to that complaint is that, because of the special statutory power which it had under section 34B, there was no need for the Public Trustee to go to court to be able effectively to bar the claims.

297 It is a precondition for the operation of section 93 that the person serving a section 93 notice has published notices under section 92. That precondition is satisfied in the present case. Notices under section 92 were published on 4 April 1998.

298 The Plaintiff contends that the notices were not validly served on him, because it was outside the scope of Mr Wilson’s authority to receive them. I do not agree. The notices related to the Plaintiff’s interest in the estate of the Deceased, and the Power of Attorney conferred on Mr Wilson full authority to deal with that subject matter.

299 The Plaintiff also alleges that the notices are invalid by reason of their manner of service. However, there are no statutorily laid down requirements for service of notices under section 93, or section 34B. They are not notices given in any court proceedings. For a notice under one of those sections to be served, it is sufficient that they actually come to the attention of the person to whom it is directed (or, as in the present case, the attorney of the person to whom it is directed), and be considered by that person. That happened concerning both the section 93 notice and the section 34B notice in the present case. In putting the test for adequacy of service that way, I am not seeking to suggest that that is the only way in which service of such notices could be effected. I am satisfied that the notices were validly served.

300 Even if it were the case that Mr Wilson did not receive the original of the section 34B notice, but only a copy sent to him later by the Public Trustee, that would not affect the efficacy of the copy of that notice to act as, itself, a notice under section 34B. The time the notice came to Mr Wilson’s attention would affect the time from which the time under it would run, but in the present case more than three months elapsed after Mr Wilson received a copy of the section 34B notice, without any action being commenced.

301 In all these circumstances I conclude that, even if I were wrong in holding that the Plaintiff has not made out any claim of negligence against the Public Trustee concerning the manner in which it has dealt with any of the chattels which were in the house at the time of the death of the Deceased, the Plaintiff’s claim concerning any such chattels has been effectively barred.

Effect of the Statutory Notices on the Plaintiff’s Expenses Claim – Particular (gg)

302 The Plaintiff’s claim to be reimbursed certain expenses, and paid for certain work he claims to have done for the benefit of the estate, is a claim to be a creditor of the estate. It is that claim which a reasonable recipient of the section 93 notice, with the knowledge that the Public Trustee and the Plaintiff had, would recognise was the claim described in that notice as “your claim against the estate for $60,000”. The claim when first made was, after allowing credits that the Plaintiff conceded were appropriate, for very nearly $60,000: para [142] above. Mr Wilson referred to it as “Gunter’s original claim of $60,000”: para [162] above. Providing a means of barring a claim against the estate assets by a person who claims to be a creditor is very clearly within the ambit of section 93 and section 34B.

303 In the course of negotiations with the Public Trustee, the Plaintiff had put various offers of what amounts, less than $60,000, he might accept in settlement of the claim for expenses and work done. The Plaintiff contends that the section 93 notice is invalid because it referred to the $60,000 claim that the Plaintiff had started out with, not the claims for lesser amounts which he had offered to accept in the course of negotiation. I do not accept that that notice was invalid on that ground. The offers to accept lesser amounts which the Plaintiff had made were still proposals to settle his original claim of, approximately, $60,000.

304 I conclude that, even if I were wrong in having concluded that the Plaintiff had not made out any claim of negligence concerning his claim for repayment of expenses, any such claim that he had would have been effectively barred by the service of the statutory notices. Further, insofar as one element of the claim for expenses was a claim to be paid for work done in running the cigarette vending business, it is also covered by the expression “your claim regarding the sale of the cigarette business”, and effectively barred by that route.

PART I – MATTERS AFTER CONCLUSION OF HEARING

305 After the conclusion of the hearing in this matter I received from the Plaintiff a variety of documents, namely:

1. letter dated 5 August 2006;

2. supplementary submissions dated 8 August 2006;

3. Plaintiff’s affidavit dated 14 August 2006;

4. Plaintiff’s supplementary submissions dated 14 August 2006;

5. letter dated 26 August 2006 to me;

6. letter dated 28 August 2006 to the Chief Justice;

7. document entitled “Plaintiff’s Irregular Application for Special Leave” dated 27 August 2006; and

8. Plaintiff’s supplementary submissions No. 3.

306 I have received, and treated as part of the submissions in the case, all of these documents except the affidavit. There was a pre-trial direction that all evidence in the case be by affidavit, and that all affidavits be filed by a nominated date. The affidavit in question contains assertions which go to the testamentary intentions of the Deceased. That is not a relevant matter in the present proceedings. I decline leave for that affidavit to be filed and treated as read at this stage of the proceedings.

PART J – CONCLUSIONS

307 In the result, all the Plaintiff’s claims fail, except for his claim that withholding tax was miscalculated.

308 I order:

1. Judgment for the Plaintiff for $450.00.

2. The proceedings be otherwise dismissed.

I direct that if any party wishes to make any application concerning costs, an appointment be made with my Associate within 14 days of the date of delivery of these reasons, for a time at which any argument about such an application may occur.

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