Phillip Seeto v Kim Yum Bong Seeto (No 2)

[2013] NSWSC 1386

Supreme Court

New South Wales

Medium Neutral Citation:	Phillip Seeto v Kim Yum Bong Seeto & Anor (No 2) [2013] NSWSC 1386
Hearing dates:	27 August 2013
Decision date:	20 September 2013
Jurisdiction:	Equity Division
Before:	Slattery J
Decision:	Time for the commencement of these proceedings extended. Orders designating notional estate and orders made for provision in the form of a legacy to the plaintiff. Parties' costs to be paid out of the notional estate. Plaintiff permitted to reside in property designated as notional estate until three months after the legacy paid to him. All orders stayed for 28 days to allow the defendant an opportunity to appeal, and seek a further stay from the Court of Appeal.
Catchwords:	SUCCESSION - deceased's older son brings an out of time application under Family Provision Act 1982 - principal judgment determined that orders for provision in the form of a legacy of $400,000 and an order for designation of notional estate should be made - parties unable to agree on the form of final relief - plaintiff presently occupies a unit in the property designated as notional estate - whether order for provision should be conditional on the plaintiff vacating the unit - the principle that the Court should, so far as possible, completely and finally determined all matters in controversy between the parties discussed - whether a stay of final orders pending appeal should be granted and if so, for how long.
Legislation Cited:	Civil Procedure Act 2005, s 67 Family Provision Act 1982 Residential Tenancies Act 2010 Supreme Court Act 1970, s 63 Uniform Civil Procedure Rules 2005, r 51.44
Cases Cited:	Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286 Phillip Seeto v Kim Yum Bong Seeto & Ors [2013] NSWSC 1232
Category:	Consequential orders
Parties:	Plaintiff: Phillip Seeto Defendants: Kim Yum Bong (Raymond) Seeto, Wing On Investments Pty Limited
Representation:	Counsel: Plaintiff: M Gorrick Defendant: L Ellison SC Solicitors: Plaintiff: Vincent Butcher Defendants: Warren Smith, Macpherson + Kelley Lawyers (Sydney)
File Number(s):	2011/405719
Publication restriction:	No

Judgment

1. This is the Court's second judgment in these proceedings. In the Court's first judgment the plaintiff was granted an extension of time to bring proceedings under the Family Provision Act 1982; certain property in Wiley Park was designated as notional estate of the deceased; and the Court made an order for provision out of the estate of the late Kim Hung Seeto by way of legacy to the plaintiff in the sum of $400,000: Phillip Seeto v Kim Yum Bong Seeto & Ors [2013] NSWSC 1232. This judgment deals with disputes concerning the final form of relief in the proceedings.

1. Persons, events and things are referred to in this judgment in the same was as they are in the Court's principal judgment. Both judgments should be read together.

1. The parties are at issue about two features of the form of final orders: first whether or not a particular form of conditional order for provision sought by the defendants should be made; and the second is whether a stay should be granted on the Court's orders. In the result, for the reasons which follow, the conditional order sought should not be made, but a stay will be granted for 28 days. The Court's full orders are set out at the end of this judgment.

1. The defendants propose a conditional order for provision. After providing for a legacy of $400,000 the defendants' draft orders include draft Order 4 to the following effect:

The provision herein to be paid within three months of the making of the orders herein, and conditional upon the Plaintiff giving vacant possession to the Second Defendant of Unit 4 within the Property.

1. The defendants seek this order in order to finalise all disputes between Phillip and the defendants relating to the occupation of the estate's property. The defendant submits, correctly in my view, that the Court has the power under Succession Act ss 65(2) and 66(1) to make the payment of provision conditional on the plaintiff giving up existing benefit (such as rent-free accommodation of Unit 4) that he received from the estate. The defendants submit that the Court should attempt to produce finality of all issues between the parties in these proceedings through this judgment. And the defendants submit that Phillip will receive a further benefit of uncertain duration if the legacy is paid and Wing On has to litigate with him in the future in the Consumer, Trader and Tenancy Tribunal ("CTTT") to terminate his tenancy. There is a considerable force in this aspect of the defendants' submissions.

1. Phillip resists such a grant of conditional relief. He submits that this proposed condition: was not part of the defendants' case at the hearing; prejudges any rights that Phillip may have against Wing On qua tenant and landlord respectively; and, would be to pre-empt Phillip's exercise of his rights under the Residential Tenancies Act 2010 in the CTTT. Phillip also submits that he would have conducted his case differently had he known that such a conditional order would be sought: Phillip says he would have submitted that he should have a right of occupancy in the unit until the legacy was paid to him.

1. There is merit in both sides of this debate. An appropriate form of orders can be moulded to the advantage of both parties. It is clearly undesirable to contemplate the parties could be involved in a further, but avoidable, contest before the CTTT. Supreme Court Act 1970 s 63 requires the Court to grant remedies on the claims brought forward in the proceedings "so that, so far as possible, all matters in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of those matters avoided". The High Court emphasised the importance of adhering to this principle: Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286.

1. But determination of "all matters in controversy between the parties" does not mean denying a party procedural fairness, so that the party is faced with issues for which the party is not prepared. This is Phillip's point: he says that draft Order 4 as presently framed will force him to give up his rights as a tenant under the Residential Tenancies Act 2010, a matter which is not before this Court in these proceedings under the Family Provision Act 1982.

1. I accept that Phillip's rights as a tenant under the Residential Tenancies Act against Wing On, the owner of the apartment which Phillip occupies (referred to in these reasons as "Unit 4"), were not litigated as identified issues in the present proceedings. But if the Court can now mould orders which will avoid a future tenancy dispute without prejudicing Phillip's or the defendants' interests, then it should do so. The way to achieve this is not to disturb Phillip's possession of Unit 4 until he has alternative accommodation using the legacy, but to put in place a clear mechanism which will ensure that he does vacate Unit 4 promptly after the legacy is paid.

1. In the first judgement the Court reasoned that an order for provision in the form of legacy of $400,000 should be made to permit Phillip to purchase a property for him and his family to live in: Phillip Seeto v Kim Yum Bong Seeto & Ors [2013] NSWSC 1232 at [127]. The Court's logic involved an assumption that Phillip's rental outgoings would be eliminated after he purchased a suitable apartment with assistance of a legacy: Phillip Seeto v Kim Yum Bong Seeto & Ors [2013] NSWSC 1232 at [128]-[129]. This reasoning infers that relief should now be moulded to allow Phillip to reside in Unit 4 for a period of time up until he receives his legacy and allows him a short further period in order to find an apartment which he can purchase with the legacy for him and his family. A result that requires Phillip to undertake to the defendants before receiving the legacy to move out of Unit 4 within three months after he receives the legacy is entirely consistent with the case which Phillip put to the Court in these proceedings: that he needs the legacy to buy an apartment in which to live. It is also consistent with the objective of avoiding a multiplicity of proceedings. It will no doubt take him a few months to use the legacy to acquire alternative accommodation. He should not have to rent elsewhere whilst he looks for that other accommodation. The orders below are framed to include undertakings from Phillip to the Court before receiving the legacy to vacate Unit 4 within 90 days after receiving the legacy. .

1. The parties also disagree about whether a stay should be granted to the defendants, Raymond and Wing On, pending appeal. In their draft orders the defendants seek a stay upon the enforcement of the Court's orders which will operate as follows:

upon the Defendants filing a Notice of Intention to Appeal or Notice of Appeal with such stay to continue until the making of any final orders with regard to any Notice of Appeal and in the event no Notice of Appeal is lodged, until the expiry of the Notice of Intention to Appeal.

1. The defendants say that such a proposed order will allow them to take advice on a possible appeal from the Court's first judgment without time running against them.

1. The Court has ample power to grant a stay of its orders in these circumstances: Civil Procedure Act 2005 s 67. Specific provision is made with respect to stays pending appeal in Uniform Civil Procedure Rules 2005 r 51.44, which provides that the Court may order that a decision of first instance be stayed pending the filing of a relevant originating process.

1. In my view some short stay is appropriate here to enable the defendants to obtain advice in relation to their rights of appeal. But as the Court's first judgment was given ex tempore on 28 August 2013, after a hearing on 26 and 27 August, and published in written form shortly afterwards, and as this judgment is given approximately one month later, the defendants should have an adequate opportunity to explore and decide upon their appeal rights if a further stay of only 28 days is granted. The problem with the defendants' present proposal is that it grants an effective stay until the expiry of a Notice of Intention to Appeal, even if an appeal is not granted. That is too long in the circumstances. The Court will only allow a stay of 28 days from the date of these orders, this stay is reflected in the form of the orders below. This will allow enough time for a stay application to be made in the Court of Appeal, if the defendants do appeal.

1. For these reasons the Court makes the following orders:

(1)   The time for the commencement of these proceedings be extended up to and including the date of the filing of the Summons.

(2)   So much of the Wiley Park property as is necessary to satisfy orders 3, 5, 6 and 7 herein be designated as notional estate of the deceased.

(3)   The Plaintiff to receive a provision by way of a legacy of $400,000.00 out of the notional estate of the deceased but the defendants obligation to pay the legacy is conditional on the plaintiff first undertaking to the Court that he and his family will give vacant possession of Unit 4 to Wing On within 90 days after receiving the said legacy.

(4)   The legacy provided for in order 3 should subject to satisfaction of the condition provided in order 3 be paid within 90 days of the making of these orders.

(5)   The Plaintiff's costs on the ordinary basis be paid out of the notional estate of the deceased.

(6)   The Defendants' costs be paid out of the notional estate of the deceased on the indemnity basis.

(7) Interest to run on so much of the provision herein as may remain unpaid in breach of Order 4, from time to time, such interest to be at the rate for unpaid legacies under the Probate and Administration Act.

(8)   The enforcement of orders 1 - 7 is stayed for 28 days from today.

(9)   The parties are at liberty to re-list the proceedings before me so the plaintiff can provided the undertaking described in order 3.

(10)   Exhibits may be returned.

Decision last updated: 20 September 2013