Murray v McOnie

[2019] NSWSC 189

Supreme Court

New South Wales

Medium Neutral Citation:	Murray v McOnie [2019] NSWSC 189
Hearing dates:	25 February 2019
Date of orders:	25 February 2019
Decision date:	07 March 2019
Jurisdiction:	Equity
Before:	Ward CJ in Eq
Decision:	1.   Note that the plaintiff has agreed to allow access to the garage at the Ben Boyd Road property by any one or more of the defendants to these proceedings or a representative on their behalf in order for the defendants to the proceedings to inspect the contents of the Ben Boyd Road unit which are stored in the garage, for the purpose of identifying and removing any of the contents that any of the defendants wishes to retain. 2.   Note that the provision of access is to be by collection of a key by arrangement with the real estate agents appointed in relation to the property and that while the defendants or their legal representatives are in possession of the key, for the purpose of having access to the garage, the property in the garage remains at their risk. 3.   Order that, in the events that have transpired, the executor of the estate of the late Agnese McOnie would be justified in dealing with any contents of the property currently stored in the garage at the Ben Boyd Road unit, and not collected by or on behalf of the defendants by 26 March 2019, by disposing of those contents by causing them to be delivered to a waste disposal facility on or after 27 March 2019. 4.   Direct that the plaintiff notify the second and third defendants by email of the orders that have been made today. 5.   Direct that the defendants file and serve by 3 April 2019 any written submissions in reply to the plaintiff's submissions on costs with a view to costs orders being made on the papers. 6.   Give liberty to the parties to apply on 48 hours’ notice.
Catchwords:	EQUITY — Trusts and trustees — Judicial advice –– whether executors of deceased estate would be justified in disposing of contents currently stored in garage of deceased’s unit by causing them to be delivered to waste disposal facility –– where the beneficiaries under the will have not collected the contents of the unit which has been sold at auction –– judicial advice given that executor would be justified in so disposing of any of the contents currently stored in the unit and not collected by any of the defendants or a representative on their behalf by 26 March 2019
Legislation Cited:	Bankruptcy Act 1966 (Cth), s 133 Trustee Act 1925 (NSW), s 63(1)
Cases Cited:	Moorhouse v Angus and Robertson (No 1) Pty Ltd [1981] 1 NSWLR 700
Texts Cited:	P Butt et al, Encyclopaedic Australian Legal Dictionary (Lexis Nexis) G D Pont et al, Halsbury’s Laws of Australia (Lexis Nexis, vol 315) J D Heydon and M J Leeming (eds), Jacobs’ Law of Trusts in Australia (Lexis Nexis, 7th ed, 2006)
Category:	Principal judgment
Parties:	Pamela Ann Murray (Plaintiff) Megan Ann McOnie (First Defendant) David John McOnie (Second Defendant) Paul Pryde McOnie (Third Defendant)
Representation:	Counsel: D P Courtenay (Plaintiff, Solicitor) Megan McOnie (self represented via telephone link)   Solicitors: Courtenay & Co Solicitors (Plaintiff)
File Number(s):	2018/00114771
Publication restriction:	Nil

Judgment

1. HER HONOUR: Before me for hearing on 25 February 2019 was an application, by amended summons filed 22 November 2018, brought by Ms Pamela Ann Murray, the executor of the estate of the late Agnese McOnie (the deceased), for judicial advice as to whether she would be justified in dealing with the contents of a unit in Ben Boyd Road, Cremorne (the Unit) (referred to in the amended summons as being in Neutral Bay but in the Statement of Facts, and on the current contract of sale, as Cremorne – though nothing turns on where, within the respective suburb boundaries, it lies) by disposing of them in a particular way, namely, by causing the goods (which the plaintiff believes to have been abandoned) to be delivered to a waste disposal facility. The plaintiff, Ms Murray, is the surviving daughter from a former marriage of the late Charles Eness Murray (the deceased’s last husband) and the deceased’s step child.

2. On the hearing of the application for judicial advice, one of the beneficiaries named in the Will of the deceased, the first defendant (Ms Megan McOnie), one of three children of the deceased, appeared by telephone link from an overseas location and made submissions as to the administration of the estate. There was no appearance by the second or third defendants (Ms McOnie’s two siblings from the deceased’s marriage to Mr McOnie) who are also named as beneficiaries under the deceased’s Will.

3. After hearing submissions from the solicitor appearing for the plaintiff, Mr David Courtenay, and from Ms McOnie, I made certain orders (without opposition by the plaintiff) for the purpose of permitting Ms McOnie and her two brothers (to the three of whom I will refer collectively as the McOnie children) a final opportunity to inspect the contents of the Unit (the contents being that which remains from what were the contents of the Unit at the time of the deceased’s death after the removal, since the deceased’s death, of various items by one or more of the McOnie children) and to remove any items they may wish to keep, on or before 26 March 2019. The contents in question are presently stored in the garage of the Unit. I gave judicial advice to the effect that the executor would be justified in disposing to a waste disposal facility any items left in the garage of the Unit from 27 March 2019. I made directions to facilitate access to the garage of the Unit for the purpose of inspection (and, if so desired, removal) of the contents by the McOnie children or an authorised representative on their behalf (such access to be at the risk of the McOnie children if the garage were to be left unsecured by them during or after exercise of the access granted). I indicated that I would publish my reasons for the giving of that judicial advice as soon as practicable. These are those reasons.

Background

4. The following recitation of the background to this application is drawn largely from the Statement of Facts and affidavits filed in support of the application by the executor. In that regard, I note that a number of affidavits were read by the plaintiff on this application: affidavits sworn 1 May 2018, 31 May 2018, 21 August 2018, 4 September 2018 and 11 October 2018 by the plaintiff’s solicitor, Mr Courtenay.

5. As noted above, Ms Murray is the surviving daughter from the first marriage of the late Charles Eness Murray. By the time of his death, Mr Murray was married to the deceased. The McOnie children (Ms Megan McOnie, Mr Paul Pryde McOnie and Mr David John McOnie) are all children of the deceased from a marriage of the deceased before her marriage to Mr Murray.

6. At the time of the death of Charles Eness Murray on 24 March 2011, he and the deceased owned, as tenants in common, the Unit. By his Will dated 24 August 2000, Charles Eness Murray left his widow a life estate in respect of his interest in the Unit and gave, devised and bequeathed the balance of his real estate to her. The contents of the Unit (furniture and furnishings) were left to the deceased (see Schedule 1 to the Will.)

7. The deceased died on 17 May 2016. In the Statement of Facts (at [6]) it is stated that before her death the deceased had been under the care of the Trustee and Guardian from 27 August 2010 and that Paul McOnie had resided in the Unit. Ms McOnie disputes that her late mother was under the care of the Trustee and Guardian (see T 17.48) and says that her mother was always under the authority of Paul McOnie “through the New South Wales Guardianship Tribunal” but does not appear to dispute that her brother Paul was living in the Unit at the time of the deceased’s death. Indeed, Ms McOnie said in the course of submissions that Paul had been dispossessed and is now homeless (see T 20.42). In any event, nothing turns for present purposes on the care arrangements in place in respect of the deceased in the years before her death; and the only relevance of the fact that Paul was in occupation of the Unit at the time of the deceased’s death is that there was a delay in the plaintiff, as executor, obtaining possession of the Unit (which did not occur until 20 February 2018) and there is therefore a question as to what, if any, of the contents of the Unit had already been removed by that time.

8. By her Will dated 25 September 2003, the deceased bequeathed certain items of personal property to her three biological children: an antique carved oak table (that the plaintiff says was actually mahogany) to Paul McOnie; a cedar chest of drawers and oak sideboard to Megan McOnie (this perhaps being the antique table that Ms McOnie says was left to her and worth $20,000 – see below); and a hallstand to David McOnie. The deceased left the balance of contents to the Unit to the McOnie children as tenants in common in equal shares. (The plaintiff therefore has no interest in the contents of the Unit the subject of the present dispute.) The deceased’s interest in the Unit itself was left in equal shares to the three McOnie children and to the daughters of her late husband (Ms Murray and Ms Sandra Foskett, the latter now also deceased but whose interest passes to her three children in equal shares).

9. As at 2016, no application for probate or letters of administration had been lodged in respect of either the deceased’s Will or the Will of the late Charles Eness Murray.

10. On 23 May 2017, the plaintiff was granted probate (proceedings 2016/00325520) of the Will of the deceased. On 29 June 2017, the plaintiff was granted letters of administration with the Will annexed (proceedings 2017/00108667) in relation to the estate of the late Charles Eness Murray.

11. The half-interest held by Charles Eness Murray in the Unit at the time of his death comprised the bulk of his estate. Similarly, the deceased’s half interest in the Unit at the time of her death (her life interest in the balance of the Unit having then come to an end) comprised the bulk of the deceased’s estate.

12. Paul McOnie remained in possession of the Unit after his mother’s death. In her capacity as executor and administrator of the respective estates, the plaintiff commenced possession proceedings (2017/00255332) against Paul McOnie and obtained judgment for possession of the Unit on 24 November 2017. On 20 February 2018, the plaintiff obtained possession of the Unit by way of the enforcement of a writ by the NSW Sheriff.

13. At [9] of the Statement of Facts it is stated that on 20 February 2018, while the sheriff was at the Unit, Paul McOnie attended and advised that he had removed all of his contents from the Unit and that he had not lived there for some months, but that it appeared at that time that someone was residing in the Unit (as there was fresh food in the refrigerator on the day that possession of the Unit was obtained). Paul McOnie provided a contact telephone number and email address but refused to provide his residential address. (I interpose to note that Ms McOnie apparently has telephone contact details for her brother but says she has not spoken to him about this matter because it is all very traumatic for him – see T 27.25).

14. An unregistered damaged Volkswagen vehicle was found in the Unit’s car park; and keys to a Volkswagen were found in the Unit (see Statement of Facts at [13]). Ms McOnie has made allegations as to a vehicle that she says was her brother’s vehicle at the Unit and this apparently forms part of the allegations she has made or threatened to make to the police (see T 12.38ff). The plaintiff’s solicitor has deposed to the making of enquiries through the Roads Authority as to the vehicle (see Statement of Facts at [33]). In any event, as I understand it the vehicle is not part of the contents now sought to be disposed of by the executor and the question as to what happened to it (or what liability if any there may be in relation to it) is not to the point for present purposes.

15. At the time that the plaintiff obtained possession of the Unit she found it in poor condition. The plaintiff was advised by a real estate agent that the Unit should be expected to sell for a higher price if it was re-carpeted and re-painted (see Statement of Facts at 15]).

16. The plaintiff, through her solicitor, first wrote to the McOnie children on 1 March 2018 inviting them to remove from the Unit the items specifically bequeathed to them.

17. By email sent on 22 March 2018, Ms McOnie advised the plaintiff that all items in the unit belonged to the deceased and threatened to instigate police and other action in respect of the goods.

18. By letter dated 26 March 2018, the plaintiff’s solicitor advised the McOnie children that they were entitled to the remainder of all household effects, personal effects and furniture remaining in the Unit, as tenants in common in equal shares; and requested that the McOnie children arrange for all the items in the Unit to be removed.

19. A valuer was instructed to attend at the Unit and to identify any item in the Unit with a value greater than $100 (see Statement of Facts at [14]). A copy of the valuer’s report was provided to the McOnie children under cover of a letter dated 6 April 2018, in which the plaintiff proposed that items subject to a specific bequest and anything over $100 in value be placed into storage and that the balance of items be disposed of. There does not appear to have been any consent to that proposal. (A copy of the valuer’s report is in evidence.)

20. By email sent 10 April 2018, David McOnie identified a bag which had been located in the Unit as belonging to him (Statement of Facts at [12]). Otherwise, it does not appear that the defendants have identified (at least in writing) any particular items they wish to remove from the Unit (other than the items to which Ms McOnie has referred on the present application – as to which see further below, particularly at [45]).

21. By letter dated 10 April 2018, the plaintiff’s solicitor notified the McOnie children that, after 14 days, the items the subject of specific bequests and those nominated by David McOnie as items that he wished to retain would be placed into storage and that the balance of the items in the Unit would be disposed of if the solicitor was not advised within the next 14 days as to where the contents of the Unit were to be delivered and provided with details of the contact person with whom delivery was to be arranged.

22. By email dated 10 April 2018, Ms McOnie requested that the plaintiff’s solicitor cease and desist all actions regarding the estates of Charles Eness Murray and the deceased; and again threatened to instigate police action in relation to the contents of the Unit.

23. By letter dated 11 April 2018, the plaintiff’s solicitor: invited the McOnie children to advise by 24 April 2018 where the contents of the Unit were to be delivered and as to the contact details of the person to whom they were to be delivered so that arrangements for delivery may be made; advised that if goods were not collected or delivered by that date then the items the subject of specific bequests and any other item in the Unit with a value in excess of $100.00, together with the items specifically identified by David McOnie, would be placed into storage; and advised that remaining items would be disposed of.

24. There is thus a history of the plaintiff’s unsuccessful attempts (since obtaining possession of the Unit) to have the McOnie children either collect the contents of the Unit or advise an address to which they may be delivered; and of demands being made by Ms McOnie that the plaintiff cease and desist all actions regarding the estate of the deceased and threats to instigate police action.

25. Paul McOnie is a bankrupt. By letter dated 31 October 2017, the plaintiff was informed that he had been declared a bankrupt on 3 March 2015. His trustees in bankruptcy have disclaimed their interest in the contents of the Unit as onerous property in accordance with the provisions of s 133 of the Bankruptcy Act 1966 (Cth). All of the McOnie children have refused to provide their residential addresses to the executor (and in Ms McOnie’s case, she has failed to comply with an order that she nominate a physical address for service of hard copy documents). Ms McOnie has informed me that she is a whistleblower and fears for her safety (see further below).

26. By reason of the communications from Ms McOnie, the plaintiff considered it prudent to obtain judicial advice as to the disposal of the Unit contents and flied a summons seeking such advice on 12 April 2018. At the time of the filing of the summons, the items the subject of the specific bequests and the items that had been valued by the valuer at more than $100 remained in the Unit. (That is no longer the case (see [35] below).) Subsequently, the defendants were joined as parties to the proceedings.

27. Although an appearance was initially entered on 6 June 2018 a solicitor at Maurice Blackburn Lawyers on behalf of Ms McOnie, and the Court was advised that the solicitor was also representing Paul McOnie, on 8 August 2018 the solicitor filed a Notice of Ceasing to Act on behalf of Ms McOnie. No notice of appearance has ever been filed by or on behalf of either Paul or David McOnie. There has thus been no formal appearance by either of Ms McOnie’s brothers in the proceedings (although at one stage it appears they may have attended a directions hearing before the Registrar – see the reference to this in the summary of the plaintiff’s submissions set out below).

28. By letter dated 21 June 2018, the plaintiff proposed arrangements for access to the Unit to facilitate removal of items by the McOnie children.

29. The plaintiff’s solicitor’s evidence in this regard is that, as at 19 July 2018, David McOnie had a set of keys to the unit (so that he could access it at any time suitable to him) and that another set of keys was left with a nearby real estate agent so that Ms McOnie could have access to the Unit (see [20]-[23] of Mr Courtenay’s affidavit of 21 August 2018). Further it is said that Ms McOnie, David McOnie and the real estate agent were permitted, at that time, to allow Paul McOnie access (and that the McOnie children could allow anyone access to assist them in the removal of items).

30. Ms McOnie takes issue with the suggestion that she (or her brother, Paul) had access (or at least in her case “reasonable” or “easy” access) to the Unit. At T 10, she said:

Yes, but nobody else was given a key. Like me from overseas, I wasn’t given a key. I had to go there in real estate business hours and wait an hour. No, Mr Courtenay, I was not given access to this apartment. Easy access. And neither was my brother, Paul McOnie. He was denied access. From the time you gained possession he was denied access to the apartment that had all his contents still inside.

31. Nevertheless, despite her complaint as to the time it took to obtain access to the Unit, it is clear from Ms McOnie’s oral submissions that she did at least on one occasion have access to the Unit (because she claims that she had arranged for, or marked, a plastic box for collection from the Unit, though she says that that box was not collected – see further below, particularly at [51]).

32. The plaintiff’s solicitor inspected the property on 7 and 20 August 2018. He observed that several items, including the items the subject of any specific bequests, had been removed from the Unit (see [6]-[9] of his affidavit of 21 August 2018).

33. According to his affidavit of 21 August 2018, on 9 August 2018, when this matter was before the Registrar, the plaintiff’s solicitor (in the presence of the McOnie children) advised the Registrar in open Court that the plaintiff would withdraw her application for judicial advice if the McOnie children confirmed that she could now dispose of the remaining contents of the Unit (see [26]-[27]).

31. By affidavit made by the plaintiff’s solicitor on 4 September 2018, he deposes that none of the items referred to in prayers 1(a) of the summons as initially filed, and none of the items identified by the valuers as having a value more than $100, remains on the property. On 22 November 2018, the plaintiff filed an amended summons, reflecting the fact that none of those items remains on the property.

32. I am informed that the contents of the Unit now remaining on the property are stored in the garage (in approximately 40 boxes, as well as some items of household furniture). They were described in oral submissions by the plaintiff’s solicitor as “almost a garage full of mattresses, bedding, clothing, knives, forks, plates, kitchen items” and as “essentially the detritus of the family life” (see T 17.14). There is no inventory of those items. The evidence of the plaintiff’s solicitor is, however, that the items in respect of which there were specific bequests and those that were valued at more than $100 are not included in the contents now remaining in the garage (see T 12.18).

33. Finally, there is evidence that the Unit has now been sold following a public auction on 16 February 2019 (the bidders’ record of which is Exhibit D). I was informed by the plaintiff’s solicitor from the bar table that, after the matter was adjourned for a lengthy period from November 2018 to February 2019, the decision was made on part of the estate to put the contents of the Unit into the garage so that the Unit itself could be recarpeted, repainted and prepared for sale (so that there would not be a further delay in relation to the administration of the estate) (see T 21.19ff).

34. The front page of the contract for sale, dated 16 February 2019, is in evidence (Exhibit C). Completion of the contract for sale is due on 1 April 2019 (see T 18.49). I am informed that, as is the usual conveyancing practice, the vendor is obliged on completion to provide vacant possession (see T 19.29).

Plaintiff’s submissions on judicial advice application

38. The plaintiff notes that, in her capacity as executor and administrator, she is bound to administer the respective estates for the benefit of the beneficiaries and that, to do so, she is obliged to consolidate in all the assets so that liabilities may be met and distribution to the beneficiaries may occur. The main asset of both estates (as noted above at [11]) is the Unit. Steps have been taken to realise the principal asset of the estates (the Unit) and, as noted above, the plaintiff needs to remove the remaining contents of the Unit from the garage in order to provide vacant possession on completion of the sale due on 1 April 2019. The plaintiff is of the view that the remaining contents have no value and, in circumstances where the McOnie children have not collected the remaining contents or advised a place to which they can be delivered, the plaintiff wishes to dispose of them as waste.

39. It is submitted that the McOnie children have had ample opportunity to remove anything they wish from the Unit and that that which now remains may be regarded as abandoned.

40. It is further submitted that, had the McOnie children provided instructions, the estates could have been fully administered by the end of 2016; and that, instead of assisting in the administration of the estates, Ms McOnie and Paul McOnie (the latter having refused to deliver up possession of the Unit) have hindered the ability of the plaintiff to carry out her proper functions.

41. As to costs, in the amended summons the costs order sought was simply that the costs of obtaining the judicial advice be paid from the estate of the deceased. At the hearing of the application for judicial advice, however, an order was sought that Paul and David McOnie pay the costs of the plaintiff as assessed on the ordinary basis and that Ms McOnie pay the costs of the plaintiff as assessed on the indemnity basis (it being the intent of the plaintiff to reduce, in satisfaction of such costs orders to the extent that the plaintiff is able so to do, the share in the estates to be received by each defendant by an amount equal to one third of the plaintiff’s costs as assessed on the ordinary basis and further to reduce the share of Ms McOnie by the difference, if any, between the costs of the plaintiff assessed on the ordinary basis and the costs of the plaintiff as assessed on the indemnity basis). Since Ms McOnie had not had an opportunity to address the particular costs orders now sought by the plaintiff, I made directions for the filing of submissions on that issue (which I will deal with on the papers in a separate judgment as soon as possible).

Ms McOnie’s submissions

42. Ms McOnie served a document by way of submissions in which she took issue with various aspects of the administration of the deceased’s estate but again in oral submissions said that she had not had time to put forward evidence or to deal with the matter (T 7.32) and sought leave to supply a “full submission”, which because of other matters she said she had not been able to do (see T 7.4).

43. In that regard, it is apparent (from the document served and from the oral submissions made on the hearing of this application) that any evidence or further submission that Ms McOnie might serve if such leave were to be given is unlikely to address the confined issue that is presently before the Court, which is whether the executor would be justified in disposing of the remaining contents of the Unit (presently stored in the garage) by delivery to a waste disposal facility.

44. Instead Ms McOnie apparently seeks to raise a whole raft of allegations as to what has happened to the items she believes were in the Unit and as to the administration of the estate, including the provision of accounts.

45. Broadly, Ms McOnie is convinced that there is (or was) property in the Unit of value (she referred repeatedly to an oil painting, an antique lamp and to antique furniture); and she maintains that she wants all of her late mother’s property because it is of sentimental value or (at other times) says that all of the property in the Unit is her brother, Paul’s. As noted, she makes complaints about other matters in relation to an account of the administration of the estate; assertions as to the treatment of her brother and the alleged theft of his car; and as to difficulty in obtaining access to the Unit (to inspect the contents or collect goods).

46. Much of Ms McOnie’s written and oral submissions relate to matters not the focus of this very discrete application for judicial advice and it is not helpful here to summarise those submissions. She is also clearly suspicious as to the circumstances of sale of the Unit, that she apparently only learnt about during the course of the hearing of this application. In oral submissions by the plaintiff’s solicitor, Ms McOnie constantly interrupted to interrogate him as to various matters relating to the estate and, even accounting for the difficulty in a hearing where one party was in attendance over a mobile phone in another country, Ms McOnie (who has said she suffers from a cognitive disability) constantly talked over the top of others, including me.

47. The tenor of Ms McOnie’s oral submissions, and her complaints as to the administration for the estate, can be seen from the following statements made by her in the course of the hearing:

Mr Courtenay, as you well know I am of no fixed address and I have been due to the actions of the financial services industry. I have been of no fixed address since 2012. I am a whistle blower so it is important that nobody knows where I am and I cannot be contacted in any way. So I do not have a fixed address and I do not have an address for service. [T 5.45ff]

and from T 11.50:

FIRST DEFENDANT: Excuse me. This action by Mr Courtenay was to remove everything from the apartment for the apartment to be renovated and sold and that forms part of this action. So if Mr Courtenay has sold the apartment without, [‑] when he has brought this whole action so the apartment could be sold why are we even talking now? Because the whole action was for, to give his client the ability to sell the apartment. Well, they’ve sold the apartment so why are we even talking.

HER HONOUR: Let me just go back to Mr Courtenay’s submissions. Mr Courtenay you said that the contents of the apartment are in boxes in the garage.

COURTENAY: Correct, your Honour.

HER HONOUR: Do I understand you to be saying that there are no items in the boxes in the garage that have been valued at more than a hundred dollars?

COURTENAY: Correct, your Honour. And there are none of the specific items that are the subject form [sic] of a specific bequest to the children of Agnes [sic; Agnese].

FIRST DEFENDANT: I would like to contest that because Mr Courtenay, there’s an oil painting there that's worth at least $500. There’s an antique lounge there, or should be there, that should be at least $400. You undervalued the estate at [$]20,000 when the insurance for it is 10 times that amount. It’s antique furniture and antiques that all belonged to my mother from our family home that you contested belonged to Mr Murray when he left his second marriage to his second wife in the clothes he stood up in, taking nothing forward with him. Everything stayed with his second wife, Patricia Stapleton. So you have misrepresented to the Court over and over the circumstances in this case.

And now you say the apartment has been sold at auction when you have sold an asset of Paul McOnie by seizing it when it was locked in the garage without returning the keys, Mr Courtenay, so the car could not be, and you took that to court as uncollected goods. And what we received from you was an email saying that your client would sell that car for a hundred to merely $50 and that, as a consequence of that, you are stripping my brother who is a bankrupt of his possessions without the ability I requested, and this is a police matter. I requested you return the car keys and you did not return the car keys and you locked the car in the garage so nobody could remove the car and then you take it to court and say it is uncollected goods when there was no ability for anybody to, to, [‑] and that car I checked with police was in the name of my brother. Not his business name. There were two identical cars. One was in business and one was in his name and this car the police saw, they have evidence that it was in my brother's name and you sold that car, I don't know for what? What did you sell it for? $50, a hundred? And then you said that your client could sell it to whoever she wants for whatever she wanted.

So I assume that was the directions in the apartment was it, Mr Courtenay? Did I ever receive a valuation or anything else that I asked for in this matter on what was going to be spent on the apartment for it to be prepared for sale? No. Nothing. Have I received any information about Mr Murray’s finances including a bank account in the name of the late Charles Murray that you revealed and then did not provide any information on it saying it had $57,000 in it when he died in 2011? And that, and I’ve got details of that bank account in front of me.

So, Mr Courtenay, you have bought this action towards, to this Court as malicious, vexatious action only naming me as part of it when you knew I was a whistleblower, that I lived overseas and the danger of me returning to Australia and I returned each time for each court matter. And I have spent $30,000 of my own money representing myself in this matter returning each time.

…

FIRST DEFENDANT: I’m absolutely ‑ this apartment has been sold. In the apartment is the property of my brother and his washing machine and dryer that has been sold as part of the apartment that I have the receipts for that were assessed as having a value of over a hundred dollars when each was $1500 each, the washing machine and the dryer. And they were left in the apartment. Not assessed as any value of over a hundred dollars. I mean, all that’s happened is my brother has been stripped of all his contents and everything he owned. And he’s a bankrupt. He lived there for ‑ I just, really, oh. Mr Courtenay, would you like to advise what you sold the apartment for?

48. Ms McOnie denied that she had been “legally served” anything, complained that she had not been given access or reasonable access to the Unit, and maintained complaints as to the dealing with the valuation of items in the Unit and as to her brother’s car:

FIRST DEFENDANT: You can't collect the goods if you're locked out. If somebody has the car keys, Mr Courtenay, and he refuses to return the car keys and then locks the car in the garage that is now empty because the car has been sold, you cannot remove them. And then he goes to court and claims the goods are uncollected. [T 14.1]

49. As to the oil painting (to which Ms McOnie referred more than once) the plaintiff’s solicitor pointed to photographs in evidence showing a painting in the main room that was no longer in the Unit when he last inspected the Unit. His belief is that the paintings on the walls had been removed by the McOnie children.

50. Ms McOnie’s response to that was that (at T 23.46):

FIRST DEFENDANT: The boxes that I am talking about was in the main bedroom and that included valuable artwork and antiques and it was in boxes in the main bedroom.

and that:

FIRST DEFENDANT: According to his assessment. I understand very clearly and what I am saying is that the entire contents of the apartment were undervalued. The only, the only reason that this valuation took place is it took place at my request because it hadn’t taken place and so an email to the Court that Mr Courtenay did not value the courts, did not inventory the apartment or value what was in the apartment at all. It was only when I asked for the inventory that he actually had an inventory take place. And then he said a hundred dollars. And the contents in the apartment were all undervalued because they are antiques. And part of the contents that should be there are antiques and they are all worth more than, and original artwork. And they are all worth more than a hundred dollars. [T 14.21ff]

51. Ms McOnie was adamant that there was a box in the Unit containing the oil painting (see T 27.11ff):

FIRST DEFENDANT: Yes. I understand very clearly. If I knew very clearly that there was box there with the original oil paintings in it which was not closed, it is a plastic box, with some oil paintings in it, an antique lamp. You know, any person can look at that box and know that these are valuable contents.

…

FIRST DEFENDANT: Can I ask Mr Courtenay, seeing he is here and he knows everything about this, is there a box in there with oil pointing ‑ a plastic box, a clear plastic box with oil paintings, an antique lamp in it that were in the bedroom of the home the last time I was there and I was provided access by the real estate agent? I cannot decide what’s happening unless I know what's in the garage and Mr Courtenay is not providing that information except what is actually in the garage.

52. Her position (at T 24.30) was that:

Thank you, this isn’t ‑ what these boxes are things of value that I do want, it belongs to me and my children but everything else from the garage belongs to my brother, Paul McOnie who was dispossessed from the apartment with everything that he owned in there. And for Mr Courtenay then to say that there’s nothing belonging to my brother within the apartment, when everything belonging to my brother was in the apartment including his car keys for his car.

53. Ultimately, Ms McOnie appeared to accept that the goods could not stay in the Unit indefinitely (see T 25.48; 26.24) but then she demanded information as to the circumstances of the sale (see T 26.35ff), and there was the following statement:

FIRST DEFENDANT: Right. Okay. As part of this action though I would like to know details of what the apartment sold for, what was spent on the apartment, who has purchased the apartment I think because the documents that I have here and the intent of Pamela Ann Murray, I need to know these, before I can make the decision as to the way forward.

I want to let the Court know that I have provided information to the New South Wales Police Commissioner regarding the actions of Pamela Ann Murray and Mr Courtenay without knowing that the apartment was already sold. And in my action I said, because of what, the disposal of Paul McOnie’s car, and the way that the email that we received, that they could sell it for what they want and when they want and it was a car worth $16,000 was going to be sold for $100 or $50, that I had the greatest concern as to the intent and what was going to happen with the sale of the apartment. Well, that has already taken place. And as I have already provided this information to the New South Wales Police Commissioner and the apartment is sold, it is really important immediately that I have that information to provide to the New South Wales Police Commissioner, who I first reported to on 24 November 2015. So it is really important in their future actions to know what has actually happened with the apartment, what the costs that were involved, who purchased the apartment, the relationship to anybody else because as I said this is now a police matter.

54. Ms McOnie raised an issue as to how any costs of storage of the items (were they now to be placed in storage) should be borne (see T 26.6ff):

FIRST DEFENDANT: Mm‑hmm. Mr Courtenay did say that the costs of the estate, so I say that should be both estates if that is what happens. And I don’t know, if there is full inventory of this apartment at any time and if there is an inventory of what was placed in the garage, I could say this box, this box, these boxes, belong to my brother you know if we had any idea what was in these boxes, it would be very easy for me remotely from overseas to be able to say, this is what you should do with these boxes, these boxes belong to my brother Paul McOnie, they can go to him, these boxes belongs to me and my children and these are to be delivered, we can't do that without knowing what is in the boxes.

Determination

55. Section 63(1) of the Trustee Act 1925 (NSW) provides that:

A trustee may apply to the Court for an opinion advice or direction on any question respecting the management or administration of the trust property, or respecting the interpretation of the trust instrument.

56. The right of a trustee/executor to approach the Court for advice is explained in Jacobs’ Law of Trusts in Australia at [2132]:

A trustee is not obliged to take any risks by deciding in a doubtful case what are the respective rights of the beneficiaries, or by performing any act which, however advantageous to the trust, is strictly a breach of trust, or even by exercising a power or discretion where there is a possibility that the proprietary of such exercise might afterwards be called into question by the beneficiaries. In all these cases, the trustee is entitled to approach the court and to ask it to determine the beneficiary’s rights, or to authorise him or her to perform the necessary act, or to advise him or her upon the exercise of the power or discretion as the case may be. In all these cases, there are appropriate procedures which now avoid the necessity for a suit for general administration of the trust estate, as once was necessary.

57. I am satisfied that this is an appropriate case for judicial advice to be sought by the plaintiff. The plaintiff has a duty to administer the two estates in respect of which either probate or letters of administration have been granted to her (which includes realising the assets for distribution to beneficiaries in accordance with the deceased’s Will). The plaintiff has quite properly sought advice as to whether she is justified in disposing of property (the remaining contents of the Unit as stored in the garage) that she believes to have been abandoned and in respect of which she has been unable to obtain assistance from those entitled to the contents under the Will (the defendants) either for their (or a chosen representative’s) collection of the goods or for nomination by them of an address to which they may be delivered.

57. The matter now has some urgency because, having sold the Unit, the executor must deliver up vacant possession on completion of the sale on 1 April 2019. Thus the goods, if not collected by the defendants or delivered to an address nominated by the defendants, would need to be stored somewhere (at expense to the estate at least in the first instance) unless disposed of as the plaintiff seeks to do.

58. There was some debate in the course of oral submissions as to whether the contents might be stored at the expense of the defendants but ultimately that did not seem to me to be a reasonable solution (not least because it is not clear how long that situation would continue but also because Ms McOnie then raised a dispute as to whether the costs should be borne out of the estate of Charles Eness Murray rather than simply out of the estate of the deceased – in effect, as I understand it, being of the view that any costs of storage of goods which under the deceased’s Will were left to the McOnie children should be borne by all the beneficiaries rather than simply the McOnie children) (see T 26.6).

59. In the circumstances, although I considered that the defendants had already had ample opportunity to collect any items they might wish to retain, I concluded that it would be appropriate to allow one final opportunity for the goods remaining in the garage of the Unit to be collected or removed by or on behalf of the defendants, failing which I am satisfied that the goods can be considered to have been abandoned. The concept of abandonment of personal property encompasses the notion of “surrendering, leaving, forsaking, giving up completely or finally, giving up without finishing, or leaving something” (see the definition of ‘abandonment’ in the Encyclopaedic Australian Legal Dictionary (online at 7 March 2019)). What is required is that there be evidence to establish or from which one can infer “an intention to relinquish any claim to the property” (see Halsbury’s Laws of Australia, vol 315, at [315-425]; Moorhouse v Angus and Robertson (No 1) Pty Ltd [1981] 1 NSWLR 700). In the present case, neither of the McOnie sons has taken any active step in the proceedings, from which it can readily be inferred that neither is wishing now to assert any claim to the goods in storage. Ms McOnie has clearly asserted a right (on her own behalf and that of her brother Paul) to the contents but, as already noted, the plaintiff’s solicitor has not been able to procure her assistance in the removal of the goods or notification of an address to which they can be delivered. Accordingly, if Ms McOnie does not now avail herself of this last opportunity to remove the contents, it is appropriate for the executor to proceed on the basis that they have been abandoned.

60. Hence the orders that I made on 26 February 2019. On that occasion, I attempted to impress upon Ms McOnie (and to have conveyed through her to the other defendants) that anything left in the garage as at 27 March 2019 can be disposed of to a waste facility by the plaintiff.

61. It is not to the point that there may be some fault on the part of the executor (though I am not to be taken as here suggesting that there is or was) if items have already been removed during times at which one or other of the McOnie children has had access to the Unit. Nor is it practicable for the executor now to prepare an inventory of the 40 boxes or so of household “detritus” (as it was so described in submissions by the plaintiff’s solicitor) or other furniture. The evidence before me is that the items the subject of specific bequests and those that were valued at more than $100 by the independent valuer have already been removed from the Unit. If there is an oil painting or antique lamp or other valuable items currently stored somewhere in the garage (that has or have somehow escaped the attention of the valuer and of the plaintiff or her solicitor) then there is now a final opportunity for Ms McOnie (herself or by arranging for someone she trusts to do so if she considers there to be too much risk to her as a whistleblower to attend to this in person) and her brothers to inspect the boxes in the garage to find out. Or it would be open to any one of the McOnie children (at his or her expense) to arrange for the collection of all of the items and store them at some place where he or she can inspect them at his or her leisure.

62. The administration of the estate should be held up no longer by the impasse occasioned by the failure or refusal of the defendants to identify and remove any items they wish to keep (or to nominate a place to which they can be delivered). Storage of the items at the expense of the estate does not provide a solution to the impasse because I can have no confidence, given the history of the matter to date, that the defendants will actually take steps to collect from storage items they wish to retain out of the now remaining contents; and I foresee that all that that would give rise to would be a further debate as to who is to bear the expense of the storage.

63. It was for those reasons that on 25 February 2019 I gave the judicial advice referred to above and made the orders and directions indicated above.

64. Thus, apart from a ruling on costs (to be made shortly following the receipt by email dated 3 April 2019 (at the latest) of final submissions from Ms McOnie) this disposes of the matter. Any complaints Ms McOnie has in relation to other matters to do with the estate are complaints that fall outside the scope of this judicial advice application and (though I am by no means encouraging further litigation) would need to be the subject of fresh proceedings in an appropriate jurisdiction.

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Decision last updated: 07 March 2019