Momo v Vicente
[2012] VCC 407
•23 April 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES
Case No. CI-11-01958
IN THE MATTER OF Part IV of the Administration and Probate Act 1958
And
IN THE MATTER OF the Will and Estate of CRISPINA MAJERSKY, deceased
| CATHERINE ANN MOMO | Plaintiff |
| v | |
| JUAN VICENTE (as the Administrator of the Estate of CRISPINA MAJERSKY deceased) | Defendant |
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JUDGE: | His Honour Judge Misso | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 & 28 March 2012 | |
DATE OF JUDGMENT: | 23 April 2012 | |
CASE MAY BE CITED AS: | Momo v Vicente | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 407 | |
REASONS FOR JUDGMENT
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SUBJECT: TESTATOR'S FAMILY MAINTENANCE
CATCHWORDS: intestacy - claim by the only child of the deceased - claim brought out of time - application for leave - relevant considerations - whether the intestacy provisions provided adequate maintenance and support - no evidence of competing moral claims
LEGISLATION: Administration and Probate Act 1958, s.91 and 99
CASES CITED: Anderson v Teberonas [1990] VR 527; McKenzie v Topp [2004] VSC 90 and Ansett v Moss [2007] VSCA 161
RULING: time is extended for the plaintiff to bring the proceeding to 3 May 2011, and provision is made for the adequate maintenance and support for the plaintiff by the transfer of a property to the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W Gillies | Eales and Mackenzie |
| For the Defendant | Mr G Baker | James McDermott |
HIS HONOUR:
Introduction
1 By an Originating Motion filed 3 May 2011 the plaintiff seeks an order for provision to be made for her adequate maintenance and support from the estate of the deceased pursuant to the provisions of the Administration and Probate Act 1958 ("the Act").
2 Mr W Gillies of Counsel appeared for the plaintiff. Mr G Baker of Counsel appeared for the defendant.
3 The following evidence was adduced at the trial:
· the plaintiff gave evidence and was cross-examined.
· a statutory declaration of the Plaintiff dated 1 December 2008: Exhibit A
· an affidavit of the plaintiff sworn 14 April 2011: Exhibit B
· an affidavit of the plaintiff sworn 24 October 2011: Exhibit C
· an affidavit of Elmer Ragel sworn 25 October 2011: Exhibit E
· an affidavit of Erlinda Dullavin sworn 25 October 2011: Exhibit F
· an affidavit of Oliver Carub sworn 24 October 2011: Exhibit G
· an affidavit of Margarita Manalili sworn 24 October 2011: Exhibit H
· an affidavit of Reynaldo Bugay sworn 25 October 2011: Exhibit J
· Certificate of Title of the Fairfax Circuit property: Exhibit K
· defendant’s marriage certificate dated 17 September 1980: Exhibit L
· probate documents: Exhibit M
· AMP documents: Exhibit N
· two pages of the deceased's Commonwealth Bank book: Exhibit O
· the defendant gave evidence and was cross-examined.
· William John Vicente gave evidence and was cross-examined.
· an affidavit of the defendant sworn 22 September 2011: Exhibit 1
· an affidavit of the defendant sworn 23 March 2012: Exhibit 2
· an affidavit of William John Vicente sworn 20 March 2012: Exhibit 3
· an affidavit of Christopher John Vicente sworn 20 March 2012: Exhibit 4
The Background Facts
4 The issues in this proceeding were rather simpler than the volume of evidence adduced by the parties would suggest.
5 The plaintiff ("Catherine") was born on 17 October 1980. She was born in the Philippines. Her father is Andrej Majersky. Her mother is the deceased ("Crispina"). Her mother and father married on 6 May 1976 in the Philippines. It was the first marriage for her mother and a second marriage for her father. Her father died on 21 January 1982. The plaintiff is the only child of that marriage.
6 Crispina entered into a domestic relationship with Juan Vicente ("Juan") some time after the death of Catherine's father. Two children were born of that relationship, namely, William and Chrisopher. William was born on 7 July 1985. He is now 26 years of age. Chrisopher was born on 20 June 1989. He is now 23 years of age.
7 Crispina died intestate. Juan applied for letters of administration based upon probate documents which were tendered in evidence.[1] The letters of administration were granted to Juan on 19 May 2009. Amongst the documents submitted by Juan in support of his application for letters of administration is an inventory of assets and liabilities. The only asset disclosed is a propeety at Fairfax Circuit, St Albans valued at $250,000.
[1]Exhibit M
8 Crispina was entitled to superannuation invested in a fund administered by AMP. Juan made an application dated 21 November 2008 to the administrator for the payment of the whole of the money standing to the credit of Crispina to be paid to him. His application was accepted and the whole of those monies were paid to him. One of the documents which was lodged with the administrator was a statutory declaration made by Catherine in which she abandoned any claim which she had on Crispina’s superannuation. Catherine said that she was unaware of what she was signing and its effect.
9 Mr Gillies made a sustained attack upon Juan on a number of fronts in an attempt to undermine his credit. One line of attack was that the inventory of assets and liabilities did not disclose ownership and valuation of jewellery; personal effects; banking accounts; shares; and any liabilities of the estate. Whatever of those assets were the possession of Crispina at the date of her death they must have passed into the possession of Juan.
10 The substance of the application made by Catherine is for a transfer of the fee simple in Fairfax Circuit property to her, and a forgiving of the balance of a loan made to her by Crispina and Juan. The absence of a valuation of the other assets referred to by Mr Gillies was not something which was pursued, save to the extent that it was said that the failure to disclose those other assets went to Juan's credit.
Fairfax Circuit
11 Crispina purchased the Fairfax Circuit property in 1983. She was registered as the sole proprietor on late April 1983.[2] Catherine said that her father left a sum of superannuation of about $35,000 which passed to Crispina on his death. Crispina used that money to purchase the Fairfax Circuit property. The photo copy of the Certificate of Title discloses that Crispina obtained finance for the purchase from the Commonwealth Savings Bank of Australia. It registered a mortgage over the property. The mortgage was discharged on 15 September 1989.
[2]Exhibit K
12 Juan essentially agreed with the plaintiff's account of the source of the funds used by Crispina to purchase the Fairfax Circuit property. He was aware that she used $35,000 of her own monies to purchase the property, and that she borrowed $10,000 from the Commonwealth Savings Bank of Australia. Catherine said that she was unaware that the Crispina borrowed any monies, but it is more likely that she did because the certificate of title discloses the registration of the mortgage in favour of the Commonwealth Savings Bank of Australia.
13 Some time after Crispina and Juan commenced living in a domestic relationship they purchased a property at Igloo Place, Keilor Downs in about 1996. Juan says that it was purchased by him. It was registered in the joint names of Crispina and Juan.
14 Catherine married Rafael Momo on 19 January 2003. Following their marriage they lived at Igloo Place with Chrispina, Juan and their sons. Catherine and Rafael commenced living in the Fairfax Circuit property in 2007 rent free. Catherine said she came to an arrangement with Crispina that because the Fairfax Circuit property was purchased with money derived from her father’s superannuation that Crispina intended that the property be transferred to Catherine.
The Loan
15 Catherine and Rafael were in debt. They approached Crispina and Juan for assistance in meeting their debt. In about 2005 Crispina and Juan secured a sum of $80,000 from the ANZ Bank which they gave to Catherine and Rafael as a loan which was to be repaid at $700 per fortnight. The sum of $80,000 was part of a larger sum borrowed from the ANZ bank which Crispina and Juan used to refinance the loan from the Commonwealth Savings Bank of Australia.
16 Catherine and Rafael made payments under the loan agreement of $700 per fortnight for a period of about 24 months. They were unable to continue paying that sum. Catherine said that she approached Crispina and told her of the financial difficulties that she and Rafael had encountered. Crispina told Catherine to pay the instalments under the loan agreement when she could, but added that she wanted Catherine to save her money.
17 In Juan’s affidavit sworn 22 September 2011 he said that Catherine and Rafael made only three instalments of $500 per month under the loan agreement.[3] However, he corrected that in his oral evidence. He said that Catherine and Rafael had made payments under the loan agreement regularly at $700 per fortnight and for a longer period of time, but not for the period referred to by Catherine.
[3]Exhibit 1
18 The terms of the loan agreement were simple. A sum of money was lent to Catherine and Rafael which was to be repaid at $700 per fortnight. On the basis of Catherine's evidence she paid something approaching $35,000 off the loan. Subsequent to the conversation she had with Crispina regarding her inability to continue making the instalments under the loan agreement no further instalments were made. No demand was made by Crispina or Juan for the instalments to recommence, nor was any demand made by Crispina’s estate for payment of the balance of the loan, nor does the inventory of assets and liabilities disclose that Catherine and Rafael are debtors of the estate to the tune of the unpaid portion of the loan.
Catherine's Circumstances
19 Catherine was born on 17 October 1980. She is now 31 years of age. She completed her schooling at Kings Park Secondary College. She subsequently completed a Travel and Tourism course. She then obtained employment with the ANZ Bank at the Docklands branch as a mortgage officer. She presently earns $45,000 gross per annum. She is studying for a degree in International Trade at Victoria University. Rafael is employed as a member of cabin crew by Jetstar International Airways. No evidence was adduced of his income.
20 From Catherine's affidavits sworn 14 April 2011[4] and 24 October 2011[5] it is clear that neither she nor Rafael own any other assets of any appreciable value. I infer that their inability to continue paying the instalments under the loan agreement demonstrates that their income is sufficient for them to survive, but insufficient to maintain the loan requiring payment of $700 per fortnight. In other words, the aggregate of their income appears to be relatively modest. Juan did not contest the financial position of Catherine and Rafael in any material way.
[4]Exhibit C
[5]Exhibit B
Juan's Circumstances
21 Juan is the sole proprietor of the Igloo Place property. Catherine suggested that it has a value of about $500,000. Juan, in his affidavit sworn 22 September 2011, refused to suggest its value. He said that there is mortgage over the property of $180,000. He received the whole of the superannuation of Crispina. He currently follows an occupation as a community services worker. He formerly worked as a motor mechanic. He did not disclose his income in either of his affidavits nor whether he has any other assets of value.
22 William and Christopher both swore affidavits on 20 March 2012. The affidavits are identical in almost every particular even down to the identity of their employer and their working conditions and income. I am disquieted by a number of aspects of the presentation of Juan's case. There seems to be a hallmark of poor attention to detail. The inventory of assets and liabilities has a number of very obvious shortcomings. Juan’s affidavits have been drafted in an almost pleading like manner and are very argumentative.
23 In addition to the foregoing I am not satisfied that Juan gave his evidence candidly. He was unable to explain why the inventory of assets and liabilities was deficient. His affidavit sworn 22 September 2011 in so far as it relates to the failure of Catherine and Rafael to pay instalments under the loan agreement is plainly wrong. His refusal to disclose his income and assets in either of his affidavits runs against the grain of proper disclosure required in a proceeding such as this.
24 In Anderson v Teberonas[6] Ormiston J observed that in the absence of evidence of competing need from beneficiaries that the Court is not obliged to undertake an enquiry into the comparative moral claims of the beneficiaries.[7] I intend to proceed on the footing that Juan and his sons, William and Christopher, do not have comparative moral claims against the estate of Crispina. I do so on the basis that he has not been entirely truthful regarding the assets and liabilities of Crispina and his own income, assets and liabilities. It is extraordinary that the affidavits sworn by William and Christopher are in almost identical terms. I do not accept that they could have had identical experiences and have identical knowledge on each and every issue referred to in the affidavits. They have failed to exercise care in what they have sworn which reflects poorly on their credit.
[6][1990] VR 527
[7]At 535-536
Adequate Provision
25 It is trite law that Crispina owed a responsibility to Catherine to adequately provide for her maintenance and support. That responsibility is often described as a responsibility to put a roof over the head of the person to whom the responsibility is owed and to provide that person with a nest egg to be able to face the unforeseeable vicissitudes which lie ahead.
26 Crispina did not leave a will. Catherine's entitlement is based upon an intestacy which amounts to about $40,000 gross, in the assessment of Mr Gillies. The question then is whether that is adequate for the maintenance and support of Catherine. I am not satisfied that it is.
27 I must pay regard to the considerations in section 91(4)(e)-(p). Catherine is the daughter of Crispina. The evidence strongly suggests that they had a very good relationship as mother and daughter. Crispina had a responsibility to Catherine to make adequate provision for her maintenance and support. The estate is a modest one comprising the Fairfax Circuit property with a value of perhaps $260,000. Catherine's financial resources are modest. She does not own any property. Her only asset is her capacity to work, and her reliance upon the income earned by Rafael. Catherine is still quite young. She is only 31 years of age and very much at the early stage of her adult life. Catherine obtained a benefit from Crispina being the loan of $80,000 of which about $35,000 was repaid. Rafael has a responsibility to maintain Catherine as her husband. There was no issue regarding the character or conduct of Catherine in connection with Crispina.
28 I have not referred to in paragraphs (i), (k) and (o) because they do not appear to have any particular relevance to the facts in this proceeding.
29 I am also influenced by the evidence of Catherine that her mother promised to make a gift to her of the Fairfax Circuit property. There is a large body of evidence which confirms that it was the intention of Crispina to do just that. In the affidavits of Laura Riego;[8] Elmer Ragel;[9] Erlinda Dullavin;[10] Oliver Carub;[11] Margarita Manalili, and[12] Reynaldo Bugay[13] they each refer to expressions by Crispina to benefit Catherine. They said that part of the reasoning of Crispina was that the Fairfax Circuit property was purchased using the superannuation which passed her from her first husband. This evidence goes to demonstrate the intention of Crispina, but of course it is imperative that notwithstanding the expression of such an intention that Catherine nonetheless must prove that she was owed a responsibility by Crispina and that she is in need.
[8]Exhibit D
[9]Exhibit E
[10]Exhibit F
[11]Exhibit G
[12]Exhibit H
[13]Exhibit J
30 In McKenzie v Topp[14] Nettle J considered that it was a relevant, for example in this case, that the source of the funds for the purchase of the Fairfax Circuit property came from Catherine's father. In the absence of any comparative moral claim by Juan, William or Chrisopher it is a matter which should be weighed up with the other relevant considerations referred to above.[15]
[14][2004] VSC 90
[15]At paragraphs 57-60
Disposition
31 In the end I am satisfied that Crispina owed a responsibility to Catherine to make adequate provision for her maintenance and support. I am satisfied that Catherine is in need for the reasons set out above. I am also satisfied that there is no relevant comparative moral claim by Juan, William or Christopher.
32 In the exercise of discretion I consider that the Fairfax Circuit property should be transferred to Catherine. There is no claim by the estate upon Catherine for the repayment of the balance of the monies under the loan agreement. It seems to me that no such claim could be made in any event because by the conduct of Crispina and Juan it would appear that the balance owing was forgiven by the estate. No claim has been made against Catherine nor does the inventory of assets and liabilities disclose the balance of the loan being a debt owed to the estate.
Leave
33 Crispina died on 16 October 2008. Catherine commence this proceeding on 3 May 2011. Section 99 provides that the application must be made within six months after the date of the grant of letters of administration. The letters of administration were granted on 19 May 2009. The six-month period expired on 19 November 2009.
34 Catherine said that she did not make a claim because she thought that Juan would make good the promise made by Crispina and transfer the Fairfax Circuit property to her. She said that she approached Juan who refused to transfer it to her. Juan denies that any such approach was ever made or that there was ever any such promise made by Crispina.
35 Catherine said that she asked Juan to inform her of the administration of Crispina’s estate. She said that she was not informed of anything which led her to believe that she could make a claim or should make a claim. However, she must have known that steps were required to administer Crispina’s estate. She said that she mentioned going to a solicitor in a conversation with Juan.[16] Juan denied having such a conversation, and that Catherine was ignorant of the administration of Crispina's estate.
[16]Exhibit B
36 Catherine said that she first obtained knowledge that she could make a claim when she spoke to Ms Carmel Morrison, solicitor on 1 April 2011.[17] She subsequently swore her first affidavit on 14 April 2011, and this proceeding was then filed on 3 May 2011. She acted promptly when she was advised by Ms Morrison that she could make a claim. However, a significant period of time had elapsed from the date when the time for making the application expired.
[17]Exhibit C
37 I thought Catherine gave evidence in a relatively straightforward and uncomplicated manner. Her evidence relevant to why she did not bring the application earlier is credible.
38 In Ansett v Moss[18] Buchanan JA observed:
[18][2007] VSCA 161
· there is no requirement that in every case the delay in bringing the proceeding needs to be satisfactorily explained.[19]
· the application for leave does not need to prove ignorance of the right to bring a claim.[20]
· the strength of an applicant's claim is a relevant factor to be considered.[21]
[19]At paragraph 6
[20]At paragraph 7
[21]At paragraph 11
39 It is clear from the observations of the members of the Court of Appeal that there are no hard and fast rules by which an application for leave will be judged. What are relevant considerations in one application may not be as relevant in another application.
40 In the instance of Catherine's application for leave I accept that she was ignorant of her right to bring a claim, however, it would appear that she had an inkling that obtaining legal advice was necessary. She failed to turn that inkling into a forward step by seeking legal advice until she spoke to Ms Morrison.
41 I accept the plaintiff's evidence that she had a serious belief that Crispina intended to gift the Fairfax Circuit property to her. It would appear that she did not believe she needed to do anything more than have Juan take the necessary steps to convey that property to her. This belief was part of the reason for delay. Although the Court of Appeal did not refer to prejudice as a relevant consideration it occurs to me that it probably is. I say that in the context of delay which may change the course of events making it difficult or impossible for an executor to defend the proceeding. No prejudice is pointed to by Juan.
42 For the reasons which are abundantly clear I consider that Catherine always had a strong case.
43 It is for the foregoing reasons that I propose to make an order extending time for Catherine to bring the proceeding to 3 May 2011. I propose to make an order that Juan transfer the Fairfax circuit property to Catherine. I am inclined to depart from the practice of ordering that the costs of each party be borne by the estate on the solicitor/client basis, and to order that each party bear their own costs. However, I will permit counsel to address me on the question of costs.
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