Simpson v Hodges; Re Estate of the Late Pamela Amy Simpson

[2005] NSWSC 1051

CITATION:	Simpson v Hodges; Re Estate of the Late Pamela Amy Simpson [2005] NSWSC 1051
HEARING DATE(S):	17 October 2005
JUDGMENT DATE :	17 October 2005
JURISDICTION:	Equity
JUDGMENT OF:	Campbell J
DECISION:	Discovery ordered concerning certain categories of documents

CATCHWORDS:	SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - contested proceedings for probate - whether discovery to be ordered
PARTIES:	Howard Collins Newby Simpson - Plaintiff Shelley Emma Elizabeth Hodges - Defendant
FILE NUMBER(S):	SC 3107/05
COUNSEL:	C Bevan; Mr Young - Plaintiff J Wilcher - Defendant
SOLICITORS:	Kristjan Geering - Plaintiff Miller Noyce - Defendant

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

CAMPBELL J

MONDAY 17 OCTOBER 2005

3107/05 HOWARD COLLINS NEWBY SIMPSON v SHELLY EMMA ELIZABETH HODGES; RE ESTATE OF THE LATE PAMELA AMY SIMPSON

JUDGMENT – Ex Tempore

1 HIS HONOUR: This is an application to review an order of the Registrar. It arises in proceedings which are, in substance, contested Probate proceedings. The plaintiff is the only son of the deceased; the defendant is the only daughter of the deceased.

2 It appears to be common ground that the deceased was living with the defendant, for a period of a little over a year before she died.

3 It also does not appear to be in contest that the deceased gave the defendant a Power of Attorney, that a sum of money which was the proceeds of certain New Zealand assets which the testatrix had had was transferred to a particular account of the testatrix with the St George Bank, and that an amount of $200,000 or thereabouts came to be paid from that account, in a way which was for the personal benefit of the defendant.

4 The plaintiff, by his Statement of Claim, makes two alternative allegations - that the money was removed using the Power of Attorney without the knowledge and approval of the testatrix, or alternatively, that the transaction was the product of undue influence.

5 The plaintiff has verified the Statement of Claim.

6 The plaintiff made application to the Registrar for orders, first, for discovery of documents by the defendant, and then for a timetable for the putting on of affidavits.

7 The Registrar declined to order any discovery, and made directions setting a fairly short timetable for the putting on of evidence.

8 The application for review is based upon, in substance, the Registrar's declining to order discovery.

9 The plaintiff is resident in New Zealand. Today’s application has been run, quite frankly, on the basis that the plaintiff simply does not know what has happened concerning the transaction, at least in a way which could be backed up by evidence which was admissible in accordance with the rules of evidence.

10 The defendant has refused to give discovery. There is an admission that all of the papers of the testatrix are in the possession of the defendant.

11 There is no challenge to the testamentary capacity of the testatrix.

12 The Will of the testatrix, which appears to be her last one, was one which appointed the plaintiff and the defendant as executors, and gave them the residue of her estate equally.

13 The contest in the litigation will concern whether there should be a grant to the defendant, or whether she is not a fit and proper person to take a grant. The basis upon which it is alleged that there is unfitness on her part is the circumstance concerning the transfer for the benefit of the defendant of the amount which came from the St George Bank account.

14 The defendant, for her part, says that there is nothing improper about that transaction at all, and that it was a gift.

15 Against that, the plaintiff has pleaded, in the Statement of Claim, that very soon before her death, the deceased informed the plaintiff that she had become aware that a large amount of money was missing from the St George Bank account, that she believed the defendant had taken it, that she was seeking the plaintiff's assistance to ascertain what had become of it and if her suspicions were correct, to assist her in recovery from the defendant.

16 The allegations in the Statement of Claim are verified by the plaintiff, who says in that affidavit that he believes that the allegations of fact made in the Statement of Claim are true.

17 The usual principle is that an allegation in a Statement of Claim does not count as evidence. However, sometimes, for the purpose of an interlocutory application, and where an allegation in a Statement of Claim is within the personal knowledge of the plaintiff, and the plaintiff swears to his belief in its truth, that is a matter which can appropriately be taken into account in deciding whether certain interlocutory steps are appropriate.

18 In my view, the verified allegation of the deceased's complaint to the plaintiff about the money being missing provides a sufficient evidentiary basis to justify the making of an order requiring the discovery of documentation which, if it exists at all, would elucidate whether the contention of the plaintiff, that the transaction was improper, or the contention of the defendant, that the transaction was completely regular and ordinary, is correct.

19 Counsel for the defendant submits that it might be possible for the plaintiff to obtain the same information as he sought by discovery by the issue of a large number of subpoenas. That course is not one which seems to me to be the appropriate way of dealing with the matter.

20 A relevant factor which I take into account is the size of the testatrix’s estate. It appears that, even if it were correct that the money transferred from the St George Bank should be brought back into the estate, the estate would still be of the order of less than A$400,000 net.

21 When there is a prospect of contested litigation over a comparatively small estate like that, it becomes all the more important that procedures be adopted which will achieve a cheap and quick resolution of the real issues.

22 In my view, for the defendant to disclose just what documents she has relating to these transactions is the quickest way to get to the truth of the matter.

23 The Notice of Motion which instigated the present application for review had annexed to it a Schedule which listed various categories of documents. I have given some consideration to whether the Schedule is too wide. However, it seems to me that given that the financial affairs of the testatrix appear to be extremely simple, the likelihood is that the total volume of documents called for would be quite small.

24 In those circumstances, it seems to me appropriate to make the orders which the plaintiff seeks.

**********