Murakami v Murakami; Murakami v Wiryadi

[2005] NSWSC 953

CITATION:	Murakami v Murakami; Murakami Re the Estate of Murakami; Murakami v Wiryadi [2005] NSWSC 953
HEARING DATE(S):	13 and 14 September 2005
JUDGMENT DATE :	26 September 2005
JURISDICTION:	Equity Division Probate List
JUDGMENT OF:	Windeyer J at 1
DECISION:	Special grant of Letters of Administration Ad Litem revoked

CATCHWORDS:	PROBATE - letters of administration - application to revoke ex parte grant of letters of administration ad litem - incorrect statements included in affidavit in support of ex parte application - full disclosure not made - whether misstatements material to decision to make the grant.
LEGISLATION CITED:	Wills Probate and Administration Act 1898 s40
CASES CITED:	Garrard t/as Arthur Anderson & Co v Email Furniture Pty Ltd (1993) 32 NSWLR 662 Thomas A Edison Ltd v Bullock (1912) 15 CLR 679
PARTIES:	In 109555 of 2005 Ryuji Murakami (Plaintiff) Takako Murakami (Defendant In 107306 of 2005 Takako Murakami (Plaintiff) Re the Estate of Takashi Murakami Suroso In 2906/05 Takako Murakami (Plaintiff) Louise Maria Wiryadi (First Defendant) Ryuji Murakami (Second Defendant) Ryuzo Murakami (Third Defendant) Sjamsjur Bahari (Fourth Defendant) Janti Lestare Wiryadi (Fifth Defendant) Glenn Martin Wiryadi (Sixth Defendant) Evelyn Dionne Wiryadi (Seventh Defendant)
FILE NUMBER(S):	SC 109555 of 2005; 107306 of 2005; 2906 of 2005
COUNSEL:	Ms J Needham SC (Plaintiff in 109555 of 2005 and First to Fourth Defendants in 2906/05) Mr P Hallen SC with him Mr M Meek (Defendant in 109555 of 2005 and Plaintiff in 2906 of 2005) No appearance (Fifth to Seventh Defendants in 2906 of 2005)
SOLICITORS:	Heazlewoods Busby International Lawyers (Plaintiff in 109555 of 2005 and First to Fourth Defendants in 2906/05) Uther Webster & Evans (Defendant in 109555 of 2005 and Plaintiff in 2906 of 2005) No appearance (Fifth to Seventh Defendants in 2906 of 2005)

LOWER COURT JURISDICTION:

- 17 -

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

WINDEYER J

MONDAY 26 SEPTEMBER 2005

109555/05 RYUJI MURAKAMI V TAKAKO MURAKAMI
107306/05 TAKAKO MURAKAMI RE THE ESTATE OF TAKASHI MURAKAMI SUROSO
2906/05 TAKAKO MURAKAMI V LOUISE MARIA WIRYADI

JUDGMENT

1 The question for decision is whether an ex parte order appointing Takako Murakami (Takako) administrator ad litem of the estate of Takashi Murakami Suroso (the deceased) should be revoked. The deceased died in Indonesia on 1 June 1996. It is necessary to explain the history of the litigation so far.

2 Takako and her brother Takao are children of the deceased born out of wedlock but recognized for succession purposes as legitimate children entitled to share in his estate. Ryuji Murakami and Ryuzo Murakami are children of the deceased of his marriage to Louise Maria Wiryadi which was dissolved in 1995. In proceedings in the Probate List No. 107306 of 2005 commenced by summons filed on 12 May 2005 Takako has sought (1) an order that probate of a will of the deceased dated 16 July 1993 be granted to her; (2) an order for special letters of administration ad litem for the purpose of bringing or defending proceedings in New South Wales. This application was supported by an affidavit of Takako sworn on 10 May 2005. Insofar as it related to the substantive claim it was in an appropriate form and it stated a belief that the deceased had property in New South Wales. Insofar as it related to the claim for appointment as administrator ad litem and perhaps also in relation to the substantive claim it stated:-

1. The deceased had been previously married to Louise Maria Wiryadi (Wiryadi), the marriage being dissolved in 1995.

2. Proceedings were commenced in 1995 by the deceased for division of property which Takako has continued.

3. That Wiryadi had property in New South Wales, which under Indonesian law should have been taken into account in division of the matrimonial property.

4. That Takako was not aware of any circumstances casting doubt upon her entitlement to probate.

5. That no person other than her brother and herself has any interest in the estate and that her brother consented to the application.

6. That by judgment dated 22 July 1995, the District Court of South Jakarta had confirmed the validity of the will and that there had been no appeal against that decision.

3 The will, or perhaps a copy of it was lodged with the application together with a translation from Indonesian into English. It declares that Takako and Takao were recognized as legitimate prior to the marriage of the deceased with Wiryadi, appoints them as beneficiaries of the “whole of my estate, moveable and immoveable as well as deposits in Indonesia and overseas, namely Singapore, Japan and the United States of America”, bequeaths “as testamentary gift” the 50 shares held in PT Mudaya Corporation Ltd as to 46 to Takako and as to the four remaining two for each of two named persons, and appoints Takako as testamentary executor.

4 Annexed to the affidavit of Takako was a draft statement of claim which she intended to file in Equity if a special grant were obtained. The proposed defendants were Wiryadi, her two children Ryuji (Ryuji) Murakami and Ryuzo (Ryuzo) Murakami, a brother-in-law, a sister-in-law, a niece and a nephew and a Mr Baharil. Put briefly the claims against the defendants, other than Wiryadi, could be described either as tracing claims or claims that property in their names is held on resulting trust for Wiryadi and was common property subject to division on dissolution of her marriage to the deceased.

5 In support of this claim for a special administration order there was also filed an affidavit by Vivian Evans sworn on 11 May 2005 annexing a copy of a Mareva order obtained by Takako against Wiryadi in the High Court of Justice, Singapore restraining, subject to limitations, disposal of assets of Wiryadi in Singapore up to $16.32 million.

6 It appears from the record that application was made to Bergin J on 12 May 2005 as duty judge for the grant of special administration. Mr Hallen SC appeared with Mr Meek. Her Honour having read the summons and affidavits to which I have referred, a copy of the will and the Singapore Court order said: “Having regard to the evidence I make the orders in the minutes of order initialled by me and dated today”. This appears on the court file. The order made was taken out and entered on the same day. A copy of it appears at the end of this judgment.

7 There are some rather peculiar features of the order. The first is that the limited grant enables any proceedings on behalf of the estate to be brought in New South Wales, not just the action proposed in the draft statement of claim. The second is that an order for costs was made at that stage. More significant however was the fact that the grant is made to Takako who was and probably still is in Indonesia or the United States of America. It is unusual for a final grant of letters of administration to be made to a foreign citizen unless such person is the sole next of kin. It is, I think, even more unusual for a limited grant ad litem to be made to such a person. Apart from anything else it is almost certain to result in an application for security for costs. The evidence does not disclose whether or not Her Honour was advised of this but Mr Hallen, Senior Counsel for the plaintiff, said she was not as a result of a discussion he had with the Registrar. I remain of the view this should have been pointed out to Her Honour, although the grant could still have been made. I also point out that the Registrar in Probate has power to make special grants. There was no call so far as I can determine to approach the duty judge as these special grants are regularly made by the Registrar without any delay. In any event this question of appointment of an administrator outside the jurisdiction was raised by me. It was not a ground relied upon by the plaintiff in the second probate action, although the argument was adopted by Ms Needham SC. It could only be relevant if the grant ad litem were revoked and an application made for a new grant in the same terms.

8 The next matter to which I draw attention is that on the evidence before the court there was nothing to suggest that there would be any delay in obtaining a full grant of probate. As a matter of course the Registrar would refuse to make an interim grant in such circumstances. The Probate file appears to include the necessary evidence to obtain a grant apart from the requirement for advertisement and the necessity to prove the will or an appropriately authenticated copy. In those circumstances in the absence of real urgency a grant is not usually made. It was suggested by counsel in discussing another matter that there would be a problem about a general grant as there might be no property in New South Wales and that would not be known until the Equity proceedings were either successful or unsuccessful. But accepting there to be an absolute requirement that there be property in New South Wales, the same restriction must apply to a limited grant and in any event the claimed chose in action would be property for the purposes of s40 of the Wills Probate and Administration Act 1898.

9 The next action is No 2906 of 2005 in the Equity Division General List. This was commenced by statement of claim filed on 12 May 2005, namely the date upon which the grant of administration ad litem was obtained. The pleading was not verified. It should not have been filed. Clearly it could not have been verified by the date on which it was filed. The administrator ad litem was not in Australia.

10 The defendants to the Equity suit filed a notice of motion on 10 June 2005 seeking various orders including an order that the proceedings be struck out. It was agreed that this claim was the only matter on the notice of motion with which I was to deal. By various orders the time for filing a defence to those Equity proceedings has been extended.

11 By notice of motion filed on 10 June 2005 in proceedings 107306 of 2005 the first to fourth defendants in the Equity action sought orders for leave to intervene in the Probate action and to be added as defendants and for the revocation of the grant of special letters of administration. It is not clear that the first and fourth defendants had the necessary interest to be joined as parties.

12 On 21 June 2005 Ryuji Murakami, the second defendant to the Equity action, commenced a new action number 109555 of 2005 in the Probate List by statement of claim against Takako as defendant seeking orders that the grant of administration ad litem be revoked. The only relevant basis for this application is that Takako made incorrect statements or failed to disclose material matters on the ex parte application for the special grant. There are other facts pleaded relevant to the Equity action which might be pleaded by way of defence to that action but are not otherwise relevant.

13 In an amended statement of claim in the Equity proceedings filed at the commencement of the hearing on 13 September, additional allegations are made about proceedings in Indonesia not yet concluded to support a claim for an alternative order to the revocation claim, namely that the proceedings – presumably the original Probate and Equity actions - be stayed until all proceedings in Indonesia, including review proceedings of the Supreme Court in that country have been finalized. According to expert evidence there is no time limitation for this.

14 I add that although Ryuji in the original statement of claim and the amended statement of claim pleads that she would have “title to claim a grant of special letters of administration” she has not sought that order and does not intend to do so.

15 On 24 June 2005, Young CJ in Eq ordered the defendant in this third action to file any defence and any cross-claim by 22 July 2005 and provisionally fixed the hearing of the motion in the Equity proceedings and the whole of the Probate action 109555 of 2005 for hearing before me on 13 and 14 September 2005. He ordered that the notice of motion filed on 10 June 2005 in the first Probate action be dismissed with costs. It is not clear whether this was by consent.

16 Takako filed her defence and cross-claim in action 109555 of 2005 as directed on 22 July. It is not necessary to discuss the defence. By the cross-claim Takako seeks orders that in the event she does not obtain a grant of probate in the original probate action, or in the event the special grant ad litem is revoked, that administration of the estate be granted to her or alternatively that she be appointed to represent the estate in the Equity proceedings. How this latter order could be made in the Probate action I do not understand, but it does bear on the arguments of Mr Hallen SC as to futility in revoking the special grant. The plaintiff Ryuji by his defence to the cross-claim put the validity of the will into issue but the real defence is that Takako is not a proper person to obtain a grant as she withheld material information on the application for a special grant and is under investigation by the Indonesian police.

17 As I have noted the plaintiff cross-defendant in the third action makes no claim for a grant of administration on intestacy or any other grant. The reason for this is obvious. It is not suggested that there is any asset in Australia other than the chose in action claimed by Takako. None of the first to third defendants in the Equity action would pursue that claim. Ryuji agreed to that in evidence. None of them would be prepared to state that there was property in New South Wales justifying the making of a grant in this State. Ryuji denied there was such property in the defence to cross-claim.

18 At the commencement of the hearing there was discussion as to what was before me to be heard. It was accepted that the issues on the cross-claim could not be heard. In any event they would not require determination if a grant of probate were made in the original Probate action 107366 of 2005. After discussion it was accepted by counsel and subsequently by me that the issue for me to decide was

“Should the special grant be revoked because the person obtaining the grant failed to disclose material matters”?

19 I will make whatever order is necessary for the separate determination of the issue. If the answer is “Yes” it would conclude the proceedings in 109555 of 2005 on the statement of claim but not the cross-claim. I do not consider it would determine the result of the motion in the Equity action.

20 During preliminary discussions at the commencement of the hearing when trying to come to grips with what seems to me to be an unnecessarily complicated set of proceedings I suggested that the sensible course would have been:

a. To join the second and third defendants in the Equity action as defendants in the Probate proceedings 107306 of 2005. While that application had been previously dismissed it could nevertheless be brought about by consent. The same result would be achieved by filing a caveat so that if it had substance the matter would go forward as a contested suit;

b. To stay the Equity action until the substantive claim for probate was determined. If probate were granted then the special administration would come to an end, and Takako in her capacity as executrix could carry on those proceedings rather than relying on her standing as administrator ad litem. If the Probate action failed then it would be clear the grant of special administration would be revoked, and the Equity proceedings would come to an end or at least be stayed for lack of standing, but that would not necessarily mean that Takako would not be able to commence new proceedings on behalf of the estate for the same relief if an appropriate order were made. It was at this stage I think that the discussion about the requirement for property in New South Wales being necessary for a grant took place.

21 As things turned out I should have insisted that this course be followed. However, at that stage the evidence subsequently given was of course not before me and both sides wanted to have the agreed issue decided. The matter proceeded. I should say that it is extraordinary to commence a separate action solely to obtain revocation of an ex parte order in other proceedings. The other order sought for a stay, whether it related to the original Probate action or also to the Equity action, is not one which I think should be claimed by separate action.

22 After this regrettably long introduction, which seemed necessary to give some understanding as to how the issue now for decision comes forward, I can turn to the issue.

23 In her affidavit in support, inter alia, of the claim for the special grant, the plaintiff, Takako, in paragraph 12 stated that she and her brother Takao were the persons entitled to distribution of the estate and said:

12. The names, ages and entitlements of the persons entitled in distribution of the estate of the deceased are:

Name Age Entitlement

TAKAKO MURAKAMI Over 21 Whole of the estate
Jointly with Takao
Murakami

TAKAO MURAKAMI Over 21 Whole of the estate
Jointly with Takako
Murakami
…

14. There are no persons, other than my brother and me, who has, or have, any interest in the deceased’s Estate.
…

20. I am not aware of any circumstances which raise doubt as to my entitlement to a grant of probate of the will of the deceased.
21. In further support of the last Paragraph, I say that on 11 July 1996, I filed a Petition at the Court of Justice, South Jakarta seeking the Court’s declaration of the validity of the will and my appointment as the Executrix of the Estate. Judgment was delivered by that Court on 22 July 1996 confirming the validity of the deceased’s will.
22. So far as I am aware, there has been no appeal from that decision.

24 Evidence of Professor Timothy Lindsey, Professor of Asian Law in the University of Melbourne, was given on affidavit and orally. Much documentary material was exhibited to his affidavits and admitted into evidence, including copies of judgments or reasons in many legal cases in Indonesia between what might be described as the Takako and Wiryadi interests. It is unnecessary to go into any detail in any of these apart from two. There appears to be constant and unceasing litigation between the warring parties.

25 The judgment referred to in paragraph 21 is judgment 180/PDT/1996PNJKTSEL of 22 July 1996. It is also the judgment or decision referred to in paragraph 13 of the statement of claim in the Equity proceedings. The effect of this judgment was that the South Jakarta District Court made a Stipulation declaring (a) the will of the deceased dated 16 July 1993 to be valid and of legal force; (b) the estate could be executed by Takako as testamentary executor appointed by the inheritor – that is the deceased.

26 By Stipulation 05/Pat Pen/1996 of the Supreme Court of Indonesia of 28 October 1996, the Stipulations of the District Court of Jakarta in the decision just referred to were declared void through want of jurisdiction not otherwise.

27 There have been various other decisions none of which bear on the position as it was left by decision number 180 and the Stipulation of the Supreme Court declaring that to be void. A decree of the Supreme Court number 1265/K/PDT/1996 rejected a cassation appeal by Ryuji and Ryuzo for a judgment to declare the will invalid. The decision did not appear to deal with the counter claim seeking an order as to validity but, at least in Australia, if the matter were litigated between the necessary parties, that would be assumed to follow. There is no present decision of an Indonesian court declaring the will valid; likewise there is no decision declaring it to be invalid. Certain other decisions assume the standing of Takako as the executor. There are however important decisions which confirm the rights of Ryuji and Ryuzo, as heirs of the deceased, to entitlement under Indonesian law to a legitimate portion of the estate. The effect of this is that as the deceased had four children, each entitled to a legitimate portion, each is entitled to a one-quarter share in the estate.

28 The evidence of Professor Lindsey establishes at least for the purpose of this hearing, but not necessarily for a final determination as to entitlement to admission to probate:

(a) the will appears to be a valid will in accordance with the law of Indonesia;

(b) that there is no procedure or requirement to obtain a grant of probate in Indonesia, although application can be made, as it was here, for some form of court authentication or declaration as to validity;

(c) that Takako and her brother, although not the children of a marriage, have been recognized by appropriate procedure as children of the deceased entitled to legitimate portion equally with the children of the marriage of the deceased with Wiryadi;

(d) that irrespective of entitlement on distribution the appointment of Takako as executor is valid; and

(e) that the executor is entitled to get in the estate of the deceased but is required to distribute it as required by law if this entitlement differs from entitlement under the will.

29 The result of all this is that in the evidence placed before Bergin J there were two misleading statements in the affidavit of Takako sworn on 10 May 2005. The present finding of the Indonesian Courts, and the position under Article 913 of the Indonesian Civil Code, is that Ryuji and Ryuzo are each entitled to a share in the estate. Paragraph 14 of that affidavit was not correct. Neither was paragraph 12. This must have been known to Takako.

30 Paragraph 20 was I consider a true statement on its own. However, paragraphs 21 and 22 if they had any purpose at all were clearly included to support the general claim in paragraph 20. It is I consider technically correct that the Stipulation 05/Pat Pen/1996 was not the result of an appeal but a determination of a superior court in exercise of its role as “supreme supervisor”, the plaintiff not being represented on the consideration. However, that does not mean that paragraph 22 is not misleading. The judgment relied upon in paragraph 21 has been declared void. As I said, the plaintiff must have known of this.

31 The question then arises as to whether these misstatements and non-disclosure of the interests of Ryuji and Ryuzo were material on the question before the court. Injunctions and ex parte orders are only to be set aside if there are material matters kept from the court or if there are material misstatements which may have borne upon the decision whether or not to grant the interim relief sought. See Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 as to ex parte injunctions, and Garrard t/as Arthur Anderson & Co v Email Furniture Pty Ltd (1993) 32 NSWLR 662 at 677 as to ex parte orders.

32 Counsel for Takako argued that paragraphs 21 and 22 were of no real significance and that paragraph 20 was correct. While that may be so, it is more likely than not that Her Honour had regard to the statement that a declaration of validity had been made in Indonesia and had not been revoked when she was considering whether or not special administration should be granted. In addition the statements that Takako and her brother were the only parties interested in the estate and that her brother consented to her making the application were on their face clearly incorrect insofar as the Indonesian proceedings now stand. Ryuji and Ryuzo have an interest in the estate, albeit not under the will. The affidavit gave the impression that the only people interested in the estate were the applicant and her brother who was a consenting party. Generally speaking in ordinary matters of administration the court is concerned to know those persons entitled on distribution whether on intestacy or in certain circumstances under a will. The fact is that the material was put before the court as relevant to the decision which Her Honour was required to make. It was, I consider, material to that decision. It is impossible to say it was not relied on. In those circumstances the appropriate order in Probate terms is to revoke the grant of special administration and I propose to make that order.

33 Mr Hallen SC did argue that it would really be a futility to do this because Takako would be entitled to bring the Equity proceedings in some capacity in any event. That is likely to turn out to be the position but that gives rise to no different considerations than those which arise in similar applications where an ex parte injunction if obtained without full disclosure is discharged. It is open in those circumstances for the party who originally obtained the injunctive order or the ex parte order such as the one in the present circumstances to apply again with complete disclosure for the same order as that discharged or revoked. In this case counsel for Takako has not indicated such application would be made and of course there is as yet no full disclosure. As I have indicated any such application would, I consider, fail as on the evidence a grant of probate of the will propounded will be obtained by Takako. The fact that the special grant has been revoked on the basis of what counsel for Ryuji would describe as improper conduct, does not mean that a grant of probate would not be made in favour of Takako. It is not necessary to consider whether or not the position would be different if Takako had been charged and convicted of an indictable offence. That is not the position here.

34 It is finally necessary to determine whether the answer to the separate question leads to a determination of the application to strike out the Equity proceedings. I have not heard full argument on this. Those proceedings were not a nullity when they were commenced. Takako had standing as administrator ad litem to bring that action. It is obvious that if those proceedings were struck out then identical proceedings will ultimately be brought in all probability upon a grant of probate being made in favour of Takako. The revocation of the special grant and the order which must necessarily follow as to the costs involved in the application for revocation are sufficient to show the disapproval of the court. Unless the Equity proceedings must be struck out the court should require them to be stayed pending the conclusion of the original Probate action, giving the plaintiff the opportunity to continue them in a new capacity, namely as executor if and when a grant is obtained. As it could not be said the answer to the separate question leads to a definite answer I should take this no further.

35 On the agreed issue and separate question before me the answer is “Yes”. I direct that the answer be recorded. It follows from this that orders should be made as follows:

1. Order that the following question be determined as a separate issue:

“Should the special grant be revoked because the person obtaining the grant failed to disclose material matters”?

2. Answer the separate question “Yes” and direct that answer be recorded.

3. Order the grant of letters of administration ad litem to Takako Murakami in proceedings 107306/05 be revoked.

4. Order Takako Murakami pay the costs of Ryuji Murakami on that issue in proceedings 109555/05. Such costs may be assessed and recovered forthwith.

5. Order the balance of the proceedings 109555/05 be stayed pending the determination of proceedings 107306/05 or further order.

6. Order that proceedings 2906/05 in the Equity General List be stayed pending the determination of proceedings 107306/05 or further order.

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