Raad v Gedeon
[2022] ACTSC 337
•6 December 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Raad v Gedeon |
Citation: | [2022] ACTSC 337 |
Hearing Date: | 6 May 2022 |
Submissions last received: | 7 June 2022 |
DecisionDate: | 6 December 2022 |
Before: | McWilliam AsJ |
Decision: | Within 14 days, or such further time as is permitted by the Court, the parties are to bring in short minutes of order giving effect to these reasons and for the finalisation of the proceeding. |
Catchwords: | TRUSTS AND ESTATES – Statutory interpretation – Administration and Probate Act 1929 (ACT) s 49G – Intestacy – Where beneficiaries are spouse and intestate’s two children from previous marriage – Entitlement of spouse to appropriate dwelling house – Where value of dwelling house exceeds spouse’s interest in intestate estate – Whether appropriation excludes interest of children – Whether appropriation by spouse imposes an obligation to obtain a valuation of dwelling house |
Legislation Cited: | Administration Act 1903 (WA) Sch 4 cl 7 Administration and Probate Act 1919 (SA) s 72L Trustee Act 1925 (NSW) s 46 |
Cases Cited: | Adrenaline Pty Ltd v Bathurst Regional Council [2015] NSWCA 123; 97 NSWLR 207 A-G (NSW) v Quinn [2007] NSWSC 873 Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd [2010] WASCA 132; 41 WAR 134 |
Texts Cited: | Certoma, Giuseppe Leroy, “Intestacy in New South Wales: The 1977 Statutory Amendments” (1979) 53 Australian Law Journal 77 Heydon, J D and M J Leeming, Jacobs’ Law of Trusts in Australia (Butterworths, 8th ed, 2016) New South Wales, Parliamentary Debates, Legislative Assembly, 1 April 2009, 14284 (Barry Collier) |
Parties: | Daniel Raad (First Plaintiff) Diala Raad (Second Plaintiff) Samar Mina Hanna Gedeon (Defendant) |
Representation: | Counsel W Sharwood (Plaintiffs) T Morton (Defendant) |
| Solicitors Snedden Hall & Gallop (Plaintiffs) Farrar Gesini Dunn (Defendant) | |
File Number: | SC 89 of 2022 |
McWilliam AsJ
Mr Hanna Raad (the Deceased) died intestate on 29 July 2021. A dispute has arisen between his widow, Ms Samar Mina Hanna Gedeon (the defendant), and the intestate’s two children from a previous marriage, Mr Daniel Raad and Ms Diala Raad (the plaintiffs). Together they are the only beneficiaries to his estate.
When a person dies in the Territory without a valid will, there are rules about distribution of the estate between family members. Relevantly here, where the intestate is survived by a partner and two children, and the value of the estate exceeds $200,000, then the partner is entitled to a statutory legacy of $200,000 plus interest at 8% per annum from the date of death until payment, and an additional sum equal to one third of the balance of the estate. The two children are then entitled to be paid the remaining two thirds of the estate in equal shares: Administration and Probate Act 1929 (ACT) (the Act), Division 3A.2 (s 49) and Schedule 6, Part 6.1.
In the present case the principal, and really the only substantial, asset of the estate is the family home of the deceased in Isabella Plains (Isabella Plains property), in which the defendant was living, with the deceased, at the time of his death.
In such circumstances, s 49G (in Division 3A.3) of the Act permits the widow to elect to have the “dwelling house” appropriated “in or towards the satisfaction of any interest of the partner in the real and personal property of the intestate”. This case is primarily about what those words mean.
The application before the Court
There is no issue that the defendant was the “domestic partner” of the intestate, having been married to the Deceased for three years at the time he died. The controversy arises from the defendant executing a document on 21 December 2021, whereby she elected to appropriate (or claim) the entirety of the house she lived in with the deceased at the time of his death, being the Isabella Plains property. She did so pursuant to s 46 of the Trustee Act 1925 (ACT) (Trustee Act) and s 49G of the Act.
The dispute between the parties is that the defendant’s election purported to claim the Isabella Plains property irrespective of its value and without accounting to the estate for that part of the appropriation which exceeded her share in the statutory distribution (being the statutory legacy described above, interest, and a further third of the remaining estate).
The consequence of the defendant’s purported appropriation of the house in such a way is that she would receive a greater share of the Deceased’s estate than she would otherwise be entitled to receive under the Act. As the house is the only substantial asset in the estate (the remainder including a small amount of cash and two motor vehicles), the result would be to exclude the plaintiffs from receiving any benefit under the estate.
According to the inventory of property sworn by the defendant, the gross value of the estate is said to be $710,400 (a net value of $685,400), of which the property constitutes approximately $700,000. The defendant has subsequently disclosed liabilities totalling $143,732.05 (not including estate administration expenses which are also deductable pursuant to s 49(3) of the Act), which further reduce the net value of the estate.
The plaintiffs’ application seeks the following remedies:
(a)an order that the defendant obtain a valuation from a qualified valuer to determine the market value of the property; and
(b)a declaration that the purported election dated 21 December 2021 to appropriate the property is invalid; or
(c)in the alternative to (b) above, an order that the defendant pay to the estate the difference between the market value of the property and the value of the defendant’s interest in the estate.
Issue for resolution
The case turns on a single issue, which in turn depends upon the proper construction of s 49G of the Act. That section is in the following terms (emphasis added):
49G Claim by partner to dwelling house
(1) Subject to this division, if the intestate estate of an intestate who is survived by a partner comprises or includes an interest in a dwelling house where the partner was residing at the date of the intestate’s death, the partner may elect to have that interest appropriated under the Trustee Act 1925,section 46 in or towards the satisfaction of any interest of the partner in the real and personal property of the intestate.
(2) An election under this section may be exercised within a period of 1 year after the date representation in the estate of the intestate is granted by the Supreme Court or within any extended period the court allows.
(3) If—
(a) probate of a will of the intestate has been revoked on the ground that the will was invalid; or
(b) a question whether a person had an interest in the estate of the intestate, or a question about the nature of an interest claimed in the estate of the intestate, had not been determined at the time when administration of the estate was granted or first granted; or
(c) the Supreme Court, for any other reason affecting the administration or distribution of the estate, considers it proper to do so;
the court may extend the period specified in subsection (2).
(4) An election by a partner must be given in writing—
(a) if the partner is not a personal representative of the intestate—to the personal representative, or to each personal representative, of the intestate; or
(b)if the partner is 1 of the personal representatives of the intestate—to the other personal representative, or to each other personal representative, of the intestate; or
(c) if the partner is the sole personal representative of the intestate—to the registrar.
(5) An election is not revocable except with the consent of the personal representative or of each personal representative of the intestate.
(6) A partner may require the personal representative of the intestate to have the interest in the dwelling house valued, and to inform the partner of the result of that valuation, before deciding whether to exercise the right given by this division.
The emphasised words are the essence of the conflict between the parties. The remainder of the section is included for construction purposes later in these reasons. In some cases, the family home forms part of a larger estate, or the statutory entitlement of the partner is equal to or greater than the value of the house. In those circumstances, the provisions of the Act work in uncontroversial harmony – the partner may elect to keep the house “in or towards the satisfaction of” the partner’s interest as set out in s 49 and Schedule 6 of the Act.
Here, the entire estate (after expenses) of the intestate is effectively the dwelling house. Unlike the position in other jurisdictions, which is discussed below, the Act is silent about what is to occur in a situation where the partner elects to appropriate the house, as permitted by s 49G, but the asset exceeds her statutory entitlement.
That has created controversy between the parties as to the meaning of s 49G. One meaning (supported by the defendant) is that the appropriation displaces the intestacy rules prescribed by s 49 and Schedule 6 of the Act. On the defendant’s construction, a partner appropriates the entire dwelling house “in…satisfaction of” the partner’s interest, which may be less than the value of the house. As the house is the only substantial asset in the estate, the intestate’s two adult children would be left nothing.
The other meaning of s 49G is to read the section as not displacing the effect of the other provisions in the Act, being s 49 and Schedule 6. That construction (preferred by the plaintiffs) permits the partner to take her “interest” under the Act, satisfied by the dwelling house, but only to the extent of the partner’s interest as otherwise set out in the statute. A cash payment would need to be made by the surviving partner to the estate, for that portion of the dwelling house that the partner appropriated which exceeded her statutory entitlement.
Does s 49G allow the widow to keep the family home, leaving nothing in the estate to be distributed to the intestate’s two children?
For reasons that follow, the answer to that question is no. The Act permits the defendant to appropriate the house, but only to the extent of her interest as otherwise prescribed under the Act. The section does not entitle the widow to adjust her statutory interest (that is, increase her entitlement). It is simply that s 49G permits her to elect to take that interest in the form of part of the matrimonial home.
In summary:
(a) The construction for which the plaintiffs contend is not only open; it is the preferable construction on the plain words of the section. That is because s 49G of the Act incorporates appropriation by the process under s 46 of the Trustee Act, the terms of which expressly preserve the interests according to the respective rights of the persons interested in the property.
(b) In the context of the Act, it is a construction that achieves consistency between provisions, and therefore the construction that best achieves the purpose of the legislation as a whole.
(c) The purpose of the section itself was to facilitate the partner remaining in the family home, but there is no discernible purpose of prioritising the partner’s interest in a way that exceeds the legislature’s expressly intended division of the estate between the intestate’s partner and children.
(d) The plaintiffs’ construction is consistent with judicial authority and statutory developments in other jurisdictions. To the extent that previous authority in the Territory has held otherwise, the precedent constitutes one decision at single instance. Applying the principle of judicial comity, I would have followed it. However, it is plainly wrong on its face. Accordingly, the Court may freely depart from it.
The applicable principles of construction
The established starting point for working out the meaning of a statute is the text itself, which must be read in its context and with regard to the purpose of the legislation: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 91 ALJR 936 at [14].
Expanding upon that general principle of construction, Allsop CJ recently stated in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (Bay Street Appeal) [2020] FCAFC 192; 384 ALR 668 at [4] (emphasis added):
… The context, general purpose and policy of the provision and its consistency and fairness are surer guides to meaning than the logic of the construction of the provision. The purpose and policy of the provision are to be deduced and understood from the text and structure of the Act and legitimate and relevant considerations of context, including secondary material: See Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at 381 [69]; Mason J in K&S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; 157 CLR 309 at 315 which drew upon Viscount Simonds in Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461 (cited in Independent Commission Against Corruption v Cunneen [2015] HCA 14; 256 CLR 1 at 28 [57] and in the other authoritative decisions of the High Court referred to in Federal Cmr of Taxation v Jayasinghe [2016] FCAFC 79; 247 FCR 40 at 43 [5]); Commissioner of Taxation (Cth) v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at 519 [39]; Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664 at 671–672 [22]–[23]; and SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at 368 [14].
To this may be added the Territory’s Legislation Act 2001 (ACT), s 139 of which provides that in working out the meaning of an Act, “the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.” Section 7 defines “Act” to include a provision of an Act.
The text of s 49G
The expression “in or towards the satisfaction of any interest of the partner” does have ambiguity about it. The words do not appear to contemplate the circumstances where a dwelling house’s property value exceeds the partner’s interest in the intestate estate, much less to provide for the appropriation of property at the expense of any interest of another person in the intestate estate.
Without more, it is open to construe the words as being capable of either construction. That is, the words might be read as permitting a partner to elect to take the dwelling house in satisfaction of their interest, even if the house is worth more than the interest the partner otherwise has under the Act. Alternatively, the words might be read as permitting a partner to appropriate the property, limited to the extent of satisfying “any interest” the partner has under the Act.
In my view, the latter is the preferable construction, on the basis that the section still speaks of satisfying an interest, and that interest is defined by reference to s 49 of the Act. But I accept that each construction of the section appears to be open on the text.
The context of the section
The next step is to put the words in the context of the section. The words “in or towards the satisfaction of any interest of the partner” need to be read in the context of the entire sentence. The preceding words to that phrase are critical. The appropriation is to be “under the Trustee Act 1925, section 46”.
The word “under” in this context is taken to mean “pursuant to” or “in accordance with”: Chan v Cresdon Pty Ltd (1989) 168 CLR 242 at 249. This means that the appropriation the subject of s 49G of the Act is governed by s 46 of the Trustee Act, which relevantly provides (emphasis added):
(1) A trustee may appropriate any part of the property subject to the trust or of the real or personal estate of a testator or intestate in its actual condition or state of investment in or towards satisfaction of a legacy or of any share or interest in the property or estate, whether settled or not, as to the trustee may seem just and reasonable, according to the respective rights of the persons interested in the property or estate…
The effect of the qualification in s 46(1), “according to the respective rights of the persons interested in the property or estate”, is that an appropriation under s 46 of the Trustee Act does not operate to adjust the respective interests of beneficiaries to an estate. Rather, it is an appropriation of property of an estate in or towards the satisfaction of a party’s relative interest in that estate. Here, the “respective rights of the persons interested in the property or estate” are set by Schedule 6 of the Act. Accordingly, when read with s 46(1) of the Trustee Act, the context supports the construction that s 49G does not adjust the respective rights of the persons interested in the estate.
The plaintiffs also drew attention to the fact that an identical provision to s 46 of the Trustee Act exists in the Trustee Act 1925 (NSW), where the provision has been regarded as a codification of the inherent jurisdiction of a trustee to appropriate an asset in satisfaction of a share: see Carr v Carr (1987) NSWLR 492 at 495C; Bruce v Cobcroft [2017] NSWSC 1464 at [112].
They submitted that an appropriation under s 49G is therefore subject to the same common law principles as an appropriation under s 46 of the Trustee Act. In this regard, the plaintiffs drew attention to Jacobs’ Law of Trusts in Australia by Dyson James Heydon with Justice Mark James Leeming (Butterworths, 8th ed, 2016) at [20-70]. Without repeating the authorities there-cited, the principles include that it is made “in complete or partial satisfaction of his or her interest”, and requires consideration by the trustee of the interests of other beneficiaries. Relevantly to the present case, appropriation of a share to one beneficiary and not another is conditional on there being no unfairness: Re Richardson [1896] 1 Ch 512; Re Nickels [1898] 1 Ch 630; In the Estate of Gamble (1915) 32 WN (NSW) 121.
In the more specific context of appropriation from a deceased’s estate (albeit a testate one), the plaintiffs also referred to the decision of the NSW Supreme Court in St John v St John [2021] NSWSC 399, where Parker J noted at [30] that the effect of an appropriation to a beneficiary is to set off the value of the appropriation against the beneficiary’s entitlement under the will. His Honour said, “[i]t must be remembered that the executor’s overriding duty is to realise and distribute the estate for the benefit of all the beneficiaries. A power of appropriation must be exercised consistently with that overriding duty.”
All of those matters support a construction of s 49G of the Act in a way that preserves the interests of all those who are entitled to a share of the intestate’s estate under s 49 of the Act.
The defendant argued that if the right in s 49G was effectively a restatement of the right the widow already had to seek appropriation under s 46 of the Trustee Act, s 49G had no work to do. However, what is important about s 49G is that it gives the surviving partner the priority over an appropriation of the family home – effectively a right of first refusal. Absent s 49G, any beneficiary may seek appropriation of an asset of the estate, but the right is in the discretion of the trustee, who may be a different person from the partner. With the overlay of s 49G on the general rights of appropriation under s 46 of the Trustee Act, the partner has a year to decide (s 49G(2)) whether to remain in the house or to move. If she (in this case) elects in favour of appropriation, the trustee cannot refuse. Further, where both the partner and the issue of the estate desire to appropriate the house, the surviving partner has priority.
The only matter in the Trustee Act that gives rise to any ongoing uncertainty about the construction of the provision in s 49G is s 46(15) of the Trustee Act. It provides:
(15) This section shall not prejudice any other power of appropriation conferred by law or by the trust instrument, and the powers conferred by this section shall be in addition to any such power.
Because of this provision, there may be an argument that if s 49G first adjusted the partner’s right to take the house even where the value exceeds the statutory entitlements prescribed in Schedule 6, then the power of appropriation referred to in s 46(1) does not prejudice that right.
In summary then, the words of s 46(1) of the Trustee Act deal with appropriation in a way that preserves the proportionate interests of the beneficiaries. A construction of s 49G that does not displace the statutory distribution entitlements in s 49 is consistent with the legislative scheme that is incorporated by reference to the Trustee Act, but the words of s 46(15) arguably still leave room for the alternative construction relied upon by the defendant.
The context of the Act
In construing the words of s 49G “in context”, that context extends not just to the other words in the section, but the broader context of the Act. The provision should be construed “so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole””: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 [69] (references omitted).
Following that general principle, the provision should also be construed in such a way that any apparent inconsistency between provisions within a statute disappears: Purcell v Electricity Commission (NSW) (1985) 59 ALJR 689, 692; Reseck v Commissioner of Taxation(Cth) (1975) 133 CLR 45, 53-54.
Here, on the plaintiffs’ construction, the election permitted in s 49G is a right to appropriate property only to the extent of “any interest”, with the “interest” being that specified in s 49 and Schedule 6. The construction achieves consistency between the provisions of the Act.
On the defendant’s construction, an inconsistency results between provisions of the Act: under s 49, the issue of an intestate have an entitlement which is then taken away by the operation of s 49G. On the above principles, such a result is not to be preferred.
For completeness, consideration has also been given to the opening words of s 49G “subject to this division” as being of potential relevance in the context of the Act as a whole. The words “subject to” make s 49G of the Act subordinate to other clauses in the division. The division contains certain restrictions on the surviving spouse’s power to elect to appropriate a dwelling house, which are not relevant to the present facts.
When used to qualify a provision, such words are a means of establishing a hierarchy of provisions: Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513, 580–581 (McHugh J), where it was stated that the words “subject to” are the standard way of making clear that the unqualified provision prevails. Authorities to similar effect across the jurisdictions include: Australian Executor Trustees (SA) Ltd v Kerr [2021] NSWCA 5 [320]; Medical Council (NSW) v Lee [2017] NSWCA 282 [87] (Medical Council v Lee); Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd [2010] WASCA 132; 41 WAR 134 [52]; DPP (Vic) v Leys [2012] VSCA 304; 44 VR 1 [157]; Adrenaline Pty Ltd v Bathurst Regional Council [2015] NSWCA 123; 97 NSWLR 207 [56].
Here, the words are perhaps significant more for what they do not say. The phrase used does not state “subject to this Part”. Had it done so, the position that s 49G did not displace s 49 of the Act would have been clear. However, the words only establish a hierarchy within the division, not between divisions. Section 49 of the Act is located in the previous division (Div. 3A.2 of the Act).
In any event, recourse to such words, and other tools of construction such as the general yielding to the specific, would only have been necessary if s 49G were unable to be construed consistently with other provisions of the Act. “Where there is no clash, the phrase does nothing”: Medical Council v Lee at [87], citing C & J Clark Ltd v Inland Revenue Commissioners [1973] 1 WLR 905 at 911 per Megarry J. Accordingly, the opening words of the section can be passed over as not being of particular assistance for the present task of construction.
Object and purpose of the Division 3A.3
The defendant placed a heavy emphasis on the legislative history of the provision, with a view to arguing that the purpose of the section was precisely to enable a widow to remain in the family house without having to account to intestate’s children. If the partner had to account for that portion of the value of the house that exceeded her share of the estate, and did not have the financial wherewithal to do so, the house would still have to be sold. Such a construction would defeat what was said to be the purpose of the provision. The defendant relied on Rosa Manna v Damiano Manna and Peter Manna [2008] ACTSC 10 (Manna) in support of her argument. That case is discussed separately below.
I agree that the legislative history behind the surviving partner’s entitlement to an intestate estate is relevant to understanding the purpose behind the provision, but it does not support the defendant’s construction of effectively giving the family home to the surviving spouse in lieu of the statutory distribution entitlements set out in the Act. In short, and as will be explained, it is one thing to seek to elevate the rights of the partner vis-à-vis other beneficiaries to the estate. The legislative history evinces such a purpose. But it is quite another to determine that when dealing with appropriation of the family home, the partner’s rights are elevated to such an extent as to exclude the share of those who are otherwise beneficially entitled. Such a purpose is not discernible from the history to the provision, and in my view, the opposite purpose is the case.
The legislative history and purpose behind provisions such as s 49G can be traced back to the Intestates’ Estates Act 1952 (UK) (Intestates’ Estates Act). In Public Trustee v O'Donnell [2008] SASC 181; 101 SASR 228, Gray J (when sitting in that court), undertook a detailed examination of the purpose of the UK Act and the legislative developments preceding s 49G of the Act. His Honour first set out the words of the amendments in the UK at [52]-[53] relevantly as follows (references omitted, emphasis added):
[52] In 1953, the enactment of the Intestates’ Estates Act 1952 (UK) gave the surviving spouse of an intestate deceased the right to require the personal representatives to exercise their power of appropriation in respect of the matrimonial home in or toward the satisfaction of their interest in the estate.
[53] Schedule 2 to the Intestates’ Estates Act relevantly provided:
Rights of Surviving Spouse as respects the Matrimonial Home
(1) Subject to the provisions of this Schedule, where the residuary estate of the intestate comprises an interest in a dwelling-house in which the surviving husband or wife was resident at the time of the intestate’s death, the surviving husband or wife may require the personal representative, in exercise of the power conferred by section forty-one of the principal Act (and with due regard to the requirements of that section as to valuation) to appropriate the said interest in the dwelling-house in or towards satisfaction of any absolute interest of the surviving husband or wife in the real and personal estate of the intestate.
…
(2) This Schedule shall be construed as one with Part IV of the principal Act.
Clause 5 of the Intestates’ Estates Act incorporated Schedule 2 into the Act in the following manner:
The Second Schedule to this Act shall have effect for enabling the surviving husband or wife of a person dying intestate after the commencement of this Act to acquire the matrimonial home.
His Honour then considered the purpose behind the legislation, through the extrinsic materials to the United Kingdom legislation (emphasis added):
[54] The general purpose of the Intestates’ Estates Act, and the specific purposes of Clause 5 and Schedule 2, were outlined in the Second Reading Speech to the relevant Bill:
The general purpose of this Bill can however be stated in a very few words. What the sponsors of the Bill are seeking to do is to provide more generously for the widow and the dependants of a man who has died wholly or partially intestate.
...
Clause 5 and the Second Schedule are important. They give the widow the right to ask that the matrimonial home shall be set-off and appropriated to her. The personal representatives have always been able to do that, if they so wished. We are now turning that right into an obligation, because I think it stands to reason that most men want to provide for the widow being able to continue living in what has been the matrimonial home. That is what the Morton Committee said.
Unfortunately, great difficulty arose in working out the machinery for this provision and, in the first place, this was not included in the Bill. But the Law Society have now come forward with a suggestion that Section 41 of the Administration of Estates Act, 1925, provides a possible solution: the power of appropriation granted to the personal representatives in that section might be the solution. … I am certain, however, that the principle is sound. Certainly statistics bear out that the vast majority of men in these circumstances would desire their widows to continue living in the matrimonial home. Of course, there are circumstances of hardship which one can readily envisage—for instance, where a man marries for the second time, late in life, and the children who have lived for many years in the family house see the house going to the second wife for whom they have little or no affection. But we cannot legislate for everyone, and I think the legislation in this clause covers the large majority of cases.
[55] The reference in the Second Reading Speech to the Morton Committee is a reference to the Committee on the Law of Intestate Commission which sat in October 1950 and July 1951 and was chaired by Lord Morton of Henryton. The committee published a report in 1951, entitled “Report of the Committee on the Law of Intestate Succession”, making recommendations concerning the right of a surviving spouse to acquire the matrimonial home in the following terms:
If at the date of the intestate’s death the surviving spouse was living in a freehold house owned by the intestate, or in a house held by the intestate under a tenancy with two years or more unexpired at the date of death, the spouse should have the option to purchase such house or the intestate’s interest therein from the estate at a price to be ascertained … . In subsequent paragraphs we use the phrase “the matrimonial home”, for convenience, in referring to a house which falls within the scope of this option to purchase. In most cases such a house will in fact be the matrimonial home, but in our view the surviving spouse should have this option to purchase from the estate the house in which he or she was living, whether or not the intestate was also living there. …
...
... It will be appropriate at this stage to discuss what interest, if any, in the matrimonial home should be given to the surviving spouse. We have already drawn attention to the fact that the greatly increased value of house property now renders it impossible in the majority of cases for the spouse to ask the personal representative to appropriate the matrimonial home to the whole or part of the statutory legacy of ₤1,000. Therefore, unless the intestate’s children are able to agree to allow the spouse to remain in the house, it must often be sold, where the estate is over ₤1,000, in order to provide the children’s immediate share of the estate. Those who have submitted evidence to us have made varying suggestions as to the provision which should be made for the spouse in respect of the matrimonial home and the proposals fall naturally into three groups:-(a) merely to increase the statutory legacy;
(b) to give the matrimonial home to the spouse;
(c) to give the spouse an option to purchase the matrimonial home at a fixed value.
...
It appears to us, therefore, that the balance of interests is maintained if the right to be given to the surviving spouse is an option to purchase from the estate the intestate’s interest in the matrimonial home. This right will give the spouse an advantage which he or she does not possess under the existing law because, provided a limit is set on the period during which the option can be exercised, the personal representatives will not be able to sell the house against the wishes of the spouse until the option expires.
…
We think it is fair that a spouse exercising the option to purchase should pay the price which the property would fetch if sold in the open market at the time of the intestate’s death. ... It has been suggested that the spouse should be given the option to purchase the house at the concessional value ... This lower value will, of course, be more favourable to the spouse. We have, however, to take into account the interests of the children who will be adversely affected by such a basis for valuation. ... We, therefore, regard the market value at the date of the intestate’s death as the most suitable for the purpose of exercising the option to purchase.
Gray J then noted (at [56]) that the provisions of the Intestates’ Estates Act concerning the rights of the surviving spouse provided a model for the enactment of broadly similar enactments in Australia. In particular, his Honour noted that the legislation in the Australian Capital Territory (among others) was closely modelled on the United Kingdom legislation. So much is readily apparent from a comparison of the above extract from the United Kingdom legislation with the language of s 49G above.
The above extract is lengthy, but the emphasised passages demonstrate that the purpose of the legislation was priority to the partner, not exclusivity or an adjustment of the entitlement. Consideration was given to whether to legislate the family home as a gift, and the legislature in the United Kingdom decided upon an option to purchase. The intention behind the legislative scheme was to give a surviving spouse a priority right to effectively purchase the family home, so that it did not have to be sold to pay the children’s share of the estate. As part of that process, the statutory interest of the spouse was to be “set-off”.
In Tagliaferri (as administrator of the Estate Tagliaferri) v Tagliaferri and Sawyer (as trustees for Tagliaferri and Tagliaferri) [2013] WASC 321, EM Heenan J made passing reference to the question whether a surviving partner of the deceased intestate could make an election where the value of the home exceeded the entitlement of the surviving partner to share in the estate on intestate distribution. The context for the consideration was the equivalent right of appropriation, but it is important to recognise that at the time of the decision, the Administration Act 1903 (WA) already contained an express requirement (in Schedule 4 cl 7) that the surviving partner may appropriate the interest partly in satisfaction of the entitlements of the surviving spouse, and partly by a payment of money towards the satisfaction of the other entitlements.
Nevertheless, in remarks that were expressly noted as being obiter, as the issue did not arise in the case before his Honour, EM Heenan J referred to Re Phelps (dec) [1980] 1 Ch 275, stating at [49] (emphasis added):
… In that case, the English Court of Appeal held that the effect of the United Kingdom legislation was to extend the power of appropriation by an administrator of an intestate's estate to include a transaction that is partly an appropriation and partly a sale; and, in the light of the apparent policy of the Schedule, this confers a right of election upon the surviving spouse where the value of the property exceeds that of the entitlement but in which case the surviving spouse must make a cash payment to the deceased's estate equal to the difference. …
The decision provides some further (albeit modest) assistance as to operation of the legislation in the United Kingdom. The above consideration of the historical purpose of the legislation in the United Kingdom which founded the Act in the Territory makes it clear that the legislative intention was not to allow the surviving spouse to appropriate the family home without accounting to the estate, but rather to prioritise the spouse and the ability for the spouse to be given the first option to take their share of the estate in the form of the family home, without the home being sold. That purpose is entirely consistent with the plaintiffs’ construction.
In the Territory, the Act has built upon that purpose. Part 3A of the Act was inserted by the Administration and Probate Ordinance 1967 (ACT). Evolving from the legislation repealed by that instrument, which entitled the surviving partner to only one third of the intestate estate, with the balance to be divisible among any surviving issue, the Ordinance itself was introduced with:
The principal object [of] amend[ing] the law relating to succession on intestacy, mainly to increase the share of a surviving spouse and to restrict the classes who may take as next of kin.
The defendant submitted that, absent the legislative reforms that have clarified the positions of other jurisdictions (discussed separately below), Division 3A.3 must be read in light of a purpose giving primacy to the interest of the surviving partner, as opposed to any other beneficiary. I do not disagree, but the difficulty for the defendant is that by the provisions set out in Schedule 6, the Act also defines the nature of the ‘increased share’ for the surviving spouse, being the purpose referred to in the explanatory statement. The explanatory statement does not evince an intention of increasing the share of a surviving spouse beyond that which the Act itself has proclaimed.
Previous judicial consideration in the Territory – should Manna be followed?
The defendant relies on the decision of Higgins CJ in Manna, to argue that the defendant does not have to account to the estate in her appropriation of the property. This was a case dealing with a broadly similar factual circumstance. In Manna, the only asset of the estate was a residential dwelling, and the beneficiaries on intestacy were a spouse and two adult children.
The plaintiff in that matter, being the spouse of the intestate, commenced proceedings to set aside a deed of family arrangement on the basis that it was prepared without reference to the plaintiff’s entitlements under s 49G of the Act. With respect to s 49G, Higgins CJ found at [52] (emphasis added):
… the plaintiff was entitled to the deceased’s interest in the matrimonial home if she elected, as she did, to have it without reduction by reference to any interest the defendants otherwise might have had.
Higgins CJ had earlier stated at [24] that (emphasis added):
Section 49G of the [Act] is not materially different from s 61D of the [Wills, Probate and Administration Act 1898 (NSW)]. In my view, s 49G would serve no useful function if it did no more than credit the value of the surviving partner’s interest in the intestate estate against the deceased’s interest in the matrimonial home leaving the surviving partner, if she or he could, to pay out the other beneficiaries the sums provided for by the Sixth Schedule.
As I will explain, I consider [24] to be wrong in each of the highlighted respects. As to the first, the now-repealed s 61D of the Wills, Probate and Administration Act 1898 (NSW) (NSW Wills Act) (as it then stood) is set out below (emphasis added):
61D Rights of surviving spouse with respect to shared home
(1) Subject to the Fourth Schedule, where:
(a) an intestate dies leaving a spouse and issue,
(b) the value of the estate of the intestate (excluding any household chattels) exceeds the prescribed amount,
(c) the intestate, at the time of the intestate’s death, held an interest in a dwelling-house which is situated in New South Wales, and
(d) that dwelling-house was, at that time, occupied by the intestate and the intestate’s spouse or by the intestate’s spouse as their, or as the spouse’s, only or principal residence,
the spouse may require the administrator to hold that interest in trust for the spouse, and on being so required, the administrator shall hold that interest accordingly.
(2) A reference in subsection (1) to the spouse of an intestate is, where the intestate dies leaving a spouse and a de facto spouse, a reference to the spouse or de facto spouse for whom part of the estate is required to be held in trust under section 61B (3), (3A) or (3B).
While the two provisions, in isolation, share a similar objective of providing a surviving spouse with an ability to appropriate the matrimonial home at the time of the deceased’s death, his Honour erred in construing the ACT provision by analogy. The emphasised words above make it plain that the provision was different in material respects. His Honour does not appear to have undertaken the task of construction by reference to the ordinary and natural meaning of the words of the language used by the Territory in light of the object and purpose of the Act.
Instead, his Honour was influenced by commentary surrounding the legislative intention of the now-repealed NSW Wills Act in force at the time of the decision (see Certoma, G L, “Intestacy in New South Wales: The 1977 Statutory Amendments” (1979) 53 Australian Law Journal 77, 79-81), which, as discussed, was directed to legislation that was materially different to s 49G.
Higgins CJ ascertained the purpose of s 61D as being “to reduce the interests of the surviving issue not merely to be a credit against the interest the surviving spouse would otherwise have had”. His Honour reached the conclusion that the equivalent ACT statute should be interpreted as having the same intention.
Such reasoning failed to consider the context of the NSW Wills Act, which was important to the way it was interpreted. The NSW Legislation contained a separate provision which expressly allowed a spouse to take an interest in property exceeding the value of their entitlement on intestacy, to the detriment of other beneficiaries, as shown below (emphasis added):
61B Succession to real and personal property on intestacy
…
(3) If the intestate leaves a spouse and also leaves issue, then if the value of the estate (excluding any household chattels) does not exceed the prescribed amount, the whole estate shall be held in trust for the spouse, but if the value of the estate (excluding any household chattels) exceeds the prescribed amount, then:
(a) the household chattels (if any),
(b) the prescribed amount, and
(c) one-half of the estate (excluding any household chattels and the prescribed amount),
shall be held in trust for the spouse and the residue of the estate shall be held in statutory trust for the issue of the intestate.
…
(13) Notwithstanding subsection (3), where the interest of an intestate in a shared home is, under section 61D, held in trust for a surviving spouse of the intestate, the share of the intestate’s estate to which the spouse would, but for this subsection, have been entitled under subsection (3) (b) and (c) shall:
(a) where the value of that interest is equal to or exceeds the value of that share, be deemed to be fully satisfied and, if the value of that interest exceeds the value of that share, the share of the issue under subsection (3) shall be reduced by the amount of the excess, or
(b) where the value of that interest is less than the value of that share, be deemed to be satisfied to the extent of the value of that interest.
The NSW legislature revoked this provision shortly after Manna was handed down with the express rationale of avoiding the effect propounded by the defendant in this case. The legislative developments since Manna are addressed separately below.
In the Territory, there was (and remains) no equivalent of s 61B and in the absence of such an express provision, it is difficult to see how a similar intention of reducing the interests of the intestate’s issue could be imputed to s 49G of the Act.
As to the second point made by Higgins CJ, that s 49G would serve no useful function if the construction for which the plaintiffs here contend were adopted, again, I respectfully disagree. I have already set out its utility from a statutory construction perspective at [30] above. The further practical advantage of s 49G is to expressly permit the spouse to remain in the family home for up to a year, where the property might otherwise be sold, only for part of the proceeds of sale to be returned to the spouse for the purpose of providing the surviving partner with the statutory legacy. If there is a fluctuation in the market, a partner who is to pay out other beneficiaries has a small degree of flexibility to wait in a falling market, which may be the difference between a widow being able or unable to afford to stay in the home. An election to appropriate also saves the expenses of selling the asset, which may be considerable, resulting in a greater amount to distribute between the partner and the issue of the intestate. Contrary to the view expressed by Higgins CJ, if the plaintiffs’ preferred construction is adopted, the section has clear work to do in terms of giving priority to the surviving spouse over the interests of the children of an intestate; it just does not extend as far as reducing or excluding their interests.
I am mindful of the authorities to the effect that a departure from a previous decision of a judge of this Court requires a finding that the decision is clearly or plainly wrong: Takapana Investments Pty Ltd v Teco Information Systems Co Ltd (1998) 82 FCR 25, 32; Royal Society for the Prevention of Cruelty to Animals (WA) Inc v Hammarquist [2003] WASCA 35; 138 A Crim R 329 [29]; BHP Billiton Iron Ore Pty Ltd v The National Competition Council [2007] FCAFC 157; 162 FCR 234 [88]-[89]; Tomasevic v Travaglini [2007] VSC 337; 17 VR 100 [21]-[24]; A-G (NSW) v Quinn [2007] NSWSC 873 [65]-[68]; Uren v Neale [2009] VSC 267; 196 A Crim R 415 [84]-[85]; Hunter v Hanson [2014] NSWCA 263 [71]; Anderson v Canaccord Genuity Financial Ltd [2022] NSWSC 58 [1745]-[1746].
As noted by French J in Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2003] FCA 1263; 133 FCR 190; 203 ALR 33 at [52] (using the language “clearly wrong”), such a departure is “not lightly to be adopted having regard to the choices that so often confront the courts particularly in the area of statutory construction”. See also Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 at [76], cited with approval in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 at [13].
What constitutes a decision that is “clearly wrong” or “plainly wrong” has been considered in Gett v Tabet [2009] NSWCA 76 at [294] (Tabet), in the context of reconsidering a previous decision of co-ordinate intermediate appellate court. The Court of Appeal held that at least one of the following attributes was required:
(a)the fact of error is immediately … apparent from reading the relevant judgment;
(b)the strong conviction of the later court that the earlier judgment was erroneous and not merely the choice of an approach which was open, but no longer preferred, … and
(c)the nature of the error that can be demonstrated with a degree of clarity by the application of correct legal analysis.
Here, the fact of error is immediately apparent just by looking at the differences between the NSW Wills Act and the Act, which Higgins CJ in Manna overlooked when applying the commentary concerning the NSW legislation. The application of the established approach to statutory construction (only partially carried out by his Honour) by reference to text, context and purpose – ascertained by reference to the extrinsic material explaining both the historical purpose of the legislation and the contemporary purpose in the Territory as set out above – further demonstrates the error.
The lack of any legislative amendment to s 49G of the Act following Manna
Finally, the defendant submitted that since Manna was decided, the Legislative Assembly has not amended s 49G of the Act and that from the lack of any amendment, the Court could infer a deliberate legislative intention to adopt the construction of the section in Manna. She drew attention to two matters:
(a) Other minor amendments were made to different parts of the Act while the terms of s 49G have remained the same; and
(b) Other jurisdictions have expressly clarified the statutory analogues in this regard, while the terms of the Act in the Territory have remained the same.
It is important to first understand the principles of interpretation, and then to work out their potential application to, and impact on, s 49G.
Where words in a provision of a statute have received a judicial construction, and the provision is later amended without altering the interpreted words, there is a presumption that the legislature intended the provision to carry the same meaning: Platz v Osborne (1943) 68 CLR 133, 145-146; Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96 at 106.
The Federal Court has held that the principle “should also apply to amendments made to one or more of a number of provisions which, when taken together, deal exhaustively with a particular subject”: Federal Commissioner of Taxation v Energy Resources of Australia Ltd [2003] FCAFC 314; 135 FCR 346 at [14]-[15].
Applying those principles here, since Manna was handed down, s 49G of the Act has not been amended. Further, while there have been minor amendments to the Act since 2008, Division 3A.3 has not been amended at all. It cannot be said that the amendments which were made dealt exhaustively with the subject matter of Division 3A.3 so as to impute an intention on the part of the legislature to adopt the construction of s 49G propounded in Manna.Contrary to the defendant’s submission, there is no scope for the operation of the presumption of legislative intention where a provision has been judicially considered.
As to the second matter relied upon, the defendant submitted that because Manna was decided by reference to a statutory scheme which the NSW legislature has since abandoned, the inaction by the Legislative Assembly in the Territory in response to legislative developments in other jurisdictions is indicative of an intention to preserve the effect of the repealed NSW legislation, rather than adopt those developments.
The defendant drew the Court’s attention to what Division 3A.1 does not contain, by reference to similar provisions in other jurisdictions which expressly restrict the surviving partner from making a windfall on an appropriation of the dwelling house from the intestate estate.
It is the case that s 49G presently stands apart from legislation that has been enacted in other Australian jurisdictions, all of which contain some provision enabling the surviving spouse to appropriate or acquire the dwelling house. New South Wales, Victoria, South Australia and Tasmania all refer to a power given to a surviving spouse or domestic partner to acquire the relevant interest in the dwelling house, rather than appropriate it. Western Australia refers to the power to “acquire under an appropriation”. All those jurisdictions impose a liability on the surviving partner electing to appropriate or acquire the property to pay into the intestate’s estate the value of the property to the extent that it exceeds their interest under the intestacy rules: see Administration Act 1903 (WA) sch 4 cl 7(2); Administration and Probate Act 1919 (SA) s 72L(4)(b); Administration and Probate Act 1958 (Vic) s 70W; Succession Act 2006 (NSW) s 120 (NSW Succession Act); Intestacy Act 2010 (Tas) s 21.
As Manna involved the adoption of an interpretation from the NSW legislation, it is further worth noting that s 115 of the NSW Succession Act now provides a right for the spouse to elect to “acquire” property from an intestate estate.
Recalling that s 61D of the repealed NSW Wills Act largely informed how Higgins CJ resolved the ambiguity of s 49G in Manna, s 120 of the current NSW Succession Act expressly restricts an appropriation where the difference was to be met from the share of the estate to which any issue of the intestate were entitled. Instead, it provides:
120 Exercise price—how satisfied
If a spouse elects to acquire property from the intestate estate, the exercise price is to be satisfied—
(a) first from money to which the spouse is entitled from the intestate estate, and
(b) if that is insufficient, from money paid by the spouse to the estate on or before the date of transfer.
This provision was inserted into the NSW Succession Act (along with a new Chapter 4) by Schedule 1 cl 4 of the Succession Amendment (Intestacy) Bill 2009 (NSW) (NSW Intestacy Bill), which would become the Succession Amendment (Intestacy) Act 2009 (NSW). As evidenced by the Second Reading Speech for the NSW Intestacy Bill, the current statutory regime in NSW is directed precisely to the situation presently before the Court (emphasis added):
The bill provides for different arrangements where the intestate dies leaving a spouse or partner and children from another relationship. This recognises the fact that such children may not stand to inherit from the intestate's spouse or partner. In these circumstances the estate is shared between the spouse or partner and the intestate's children. The spouse or partner will receive a legacy, the intestate's personal effects and half the residue of the estate. All of the intestate's children share in what remains. The second significant changes [relate] to the rights of the spouse when the intestate dies leaving children from another relationship. When the intestate dies leaving a spouse or partner and children of another relationship, the surviving spouse will not, as is currently the case, be automatically entitled to the house at the expense of the intestate's children. Instead, the spouse or partner will have a special right to elect to take any part of the estate in satisfaction of their entitlement.
If the selected part of the estate is worth more than the entitlement, the surviving spouse or partner will be required to make up the difference from their own resources. This will protect the interests of the intestate's children in such a situation. …
Accordingly, I accept the premise of the defendant’s argument, that the position in states such as NSW is now very different to the statutory landscape that existed when Manna was decided.
However, it does not follow that simply because other jurisdictions have introduced a statutory regime that is markedly different from the Act as it currently stands, the lack of any similar amendments in the Territory reflects a deliberate legislative choice. Even if the words of s 49G were identical to those in the previous NSW statutory analogue, and NSW subsequently amended its legislation without the ACT following suit, I would have found it difficult to impute to the Legislative Assembly an intention that the lack of a similar amendment was deliberate. The position may be different where the provision under consideration was part of uniform legislation and uniform amendments across the state had been made, or the provision had been the subject of a law reform commission report which had otherwise been acted upon by the legislature, but that is not this case here.
It is even less likely that such an intention could be imputed to the legislature where the provision in NSW was not the same as that enacted in the Territory in the first place. As has been set out above, the NSW Wills Act was in very different terms so as to require amendment to achieve the ends set out in the above extract from the Second Reading Speech. On the plaintiffs’ construction of s 49G, the Act already achieves the same result, albeit not as clearly as is now the case in NSW.
Is a valuation required?
The construction of s 49G of the Act means that the defendant, as surviving partner, was entitled to elect to appropriate the Isabella Plains property, but only to the extent of her interest as set out in s 49 and Schedule 6 of the Act.
The defendant has already elected to appropriate the property. That gives rise to a further issue, in that the election was based upon what I have found was a misapprehension of the law. The consequence is that the defendant did not obtain a valuation of the property, asserting that she was entitled to the full value of the property to the exclusion of the plaintiffs’ interests.
The plaintiffs submitted that before making the election, the defendant was required to obtain the market value of the interest of the intestate in the Isabella Plains property (s 49H of the Act). In that regard, they complain the defendant failed to comply with her obligations under the Trustee Act. They argue the election is invalid as a result.
Section 46(3) of the Trustee Act, provides as follows (emphasis added):
For the purpose of an appropriation under this section, the trustee may ascertain and fix the value of the respective parts of the property or estate and the liabilities to which the property or estate is subject as the trustee may think fit, and shall for that purpose employ a duly qualified valuer in any case where such employment may be necessary.
The defendant submitted that, absent any mandatory language in this provision or in s 49G, a personal representative is not obliged to obtain a valuation from a duly qualified valuer, nor to bear the costs thereof, where he or she as the partner making the appropriation has not exercised their alleged discretion to require a valuation. She argued that the onus is on the beneficiary seeking the valuation to obtain such a valuation at its own expense, which she has already invited the plaintiffs to do.
As to the argument about the ‘validity’ of the document executed by the defendant on 21 December 2021, if it were necessary to make a finding, I would have found that the election was valid, but that a valuation is subsequently required for the defendant to account to the plaintiffs at the time that the property is transferred into her name. The defendant has not yet registered her interest in the Isabella Plains property, and it is at that time that she will need to account to the estate.
A valuation was not strictly necessary for these proceedings, the heart of which was a question of statutory construction. In any event, it is preferable that a valuation be obtained close to the time of the proposed appropriation: Boian & Ors; Re Estate Boian [2014] NSWSC 800 at [28]. However, on the findings above, a valuation of the Isabella Plains property will now need to be obtained because the Act does not operate to exclude the statutory entitlements of the plaintiffs. The cost of obtaining it should properly be funded by the intestate estate. If the defendant wishes to maintain her election, such a valuation is necessary for the purpose of distributing the estate as the defendant will need to ascertain how much she will now have to pay to the estate (both for distribution to the plaintiffs and for the unpaid liabilities to the estate of approximately $144,000).
However, the defendant may no longer wish to appropriate the Isabella Plains property and incur the liability to the intestate’s estate. Given that she is also the personal representative of the estate, the election is revocable on her initiative alone: s 49G(5) of the Act.
If that is the case, then it may be that the Isabella Plains property will be sold and the proceeds of sale divided according to s 49 of the Act, after the liabilities of the intestate’s estate are paid. In those circumstances, a valuation is unlikely to be required.
Alternatively, now that they know the legal position, the parties may wish to consider whether to hold the asset in their respective interests. The evidence suggests the widow has very little means to buy out the interests of the plaintiffs and there is a whisper of a claim for family provision depending on the result. Depending on their own financial positions, the parties may want an opportunity to consider allowing the widow to remain in the home during her lifetime without having to account to them.
Accordingly, I consider it appropriate for the parties to have an opportunity to consider these reasons before final orders are made, as it may ultimately not be necessary to direct the defendant to obtain a valuation, nor that she pay to the plaintiffs any money (recalling that what was sought was the difference between the market value of the property and the value of the defendant’s interest in the estate, presumably less estate expenses).
As to costs, the plaintiffs have been successful on the construction question, but the defendant is also the personal representative and is entitled to an indemnity (s 63 of the Act, s 59(4) of the Trustee Act). It does not appear that either party has been vexatious or lacking in good faith. Given the previous authority of the Court, there was a proper basis for the defence of the proceedings. In those circumstances, and subject to any arguments to the contrary, it appears appropriate that the costs of the proceedings be paid by the estate, on the ordinary basis in respect of the plaintiffs, and on a solicitor and client basis in the case of the defendant (r 1732(2)(b) of the Court Procedures Rules 2006).
Conclusion and orders
For the above reasons, the parties are to bring in short minutes of order giving effect to these reasons. If either party wishes to agitate a different costs order, the orders should propose a timetable for argument, either written or oral.
The Court directs:
(1) Within 14 days, or such further time as is permitted by the Court, the parties are to bring in short minutes of order giving effect to these reasons and for the finalisation of the proceeding.
| I certify that the preceding ninety-five [95] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour, Associate Justice McWilliam .................. Associate: Date: 6 December 2022 |
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