Talent v Official Trustee in Bankruptcy (No 4)
[2019] ACTSC 372
•15 November 2019, 13 December 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Talent v Official Trustee in Bankruptcy & Anor (No 4) |
Citation: | [2019] ACTSC 372 |
Hearing Dates: | 15 November 2019, 13 December 2019 |
DecisionDates: | 15 November 2019, 13 December 2019 |
Before: | Murrell CJ |
Decision: | Application granted. See [32]–[36]. |
Catchwords: | SUCCESSION – FAMILY PROVISION AND MAINTENANCE – Interlocutory application – Injunction – Possession proceedings – Ejection |
Legislation Cited: | Family Provision Act 1969 (ACT) |
Parties: | John James Talent (Plaintiff) Nadia Joan Talent as Executor for the Estate of the late Joan Gwen Talent (Second Defendant) |
Representation: | Counsel T Crispin (Plaintiff) D Moujali (Second Defendant) |
| Solicitors Ray Swift Moutrage (Plaintiff) Gil-Jones Barker (Second Defendant) | |
File Number(s): | SC 414 of 2019 |
Murrell CJ
Introduction
This matter involves a dispute over the principal asset in the estate of Joan Gwen Talent (the deceased), her former home at 9 Bonney Street, Ainslie (the property).
The plaintiff and the second defendant are the children of the deceased. The second defendant is the executor of the deceased’s estate. The first defendant is the Official Trustee in Bankruptcy. The plaintiff is a bankrupt.
The plaintiff has lived at the property since 2013, residing with the deceased until shortly before her death on 8 August 2018.
Pursuant to the deceased's will dated 15 March 2018, no provision was made for the plaintiff. That may be because the deceased regarded the plaintiff as financially reckless. The will provided that each of the deceased's grandchildren (all of whom are the plaintiff's children) should receive a sum of $10,000. The remainder of the estate was left to the second defendant.
The plaintiff has commenced proceedings under the Family Provision Act 1969 (ACT) (Family Provision Act). The provision that he seeks is quite specific; it is a life interest in the property.
The second defendant has offered various accommodation options to the plaintiff, including that a property be placed in his name and that the cost of rental accommodation be met on an interim basis, but all her offers have been rejected.
The second defendant has commenced proceedings for possession. The proceedings were commenced only last Friday, 8 November 2019. In the ordinary course of events, a defence should be filed within 28 days.
In the past, the second defendant has undertaken that she will not distribute the proceeds of any sale of the property. Today I invited her to give an undertaking that she would not interfere with the plaintiff's occupation of the property for a period of four weeks, but she declined and indicated that she proposed to proceed with the claim for possession.
The parties have agreed to participate in a mediation of the family provision and possession claims on 12 December 2019.
It is in that context that this injunction application must be considered.
The plaintiff applies for orders that:
(a) the property not be sold or otherwise transferred out of the estate until further order of the Court;
(b) he be permitted to reside at the property until further order of the Court; and
(c) the estate pay his costs of this application.
The second defendant asks that the application for injunctive relief be dismissed and that her costs be paid, possibly on an indemnity basis.
History of the proceedings
The proceedings have a considerable history, albeit a short one.
On 30 August 2019, Crowe AJ made orders disposing of a caveat over the property. At about that time, the second defendant undertook that, if the property was sold, she would not distribute the proceeds of sale.
Subsequently, the plaintiff sought an assurance from the second defendant that, pending resolution of the family provision claim, she would not dispose of the property. The assurance was not given.
The plaintiff sought interlocutory injunctive relief. When the matter came before Mossop J on 6 September, the second defendant agreed to undertake that she would not commence the ejectment proceedings for four weeks.
Due to a miscommunication, she did in fact serve the plaintiff with a notice to vacate the property, but the notice was later waived.
On 9 October 2019, the second defendant served a second notice to vacate, requiring the plaintiff to vacate the property by 6 November 2019.
The plaintiff did not vacate the property. Instead, his response was to advertise advertising the property for rental on a share basis.
Further discussions of a relatively adversarial nature failed to resolve the matter, and the plaintiff brought the present application.
The Court has a considerable amount of material that goes to the merits of the Family Provision Act application.
The plaintiff’s case
The plaintiff is 62 years old.
The plaintiff states that, following the death of his father (the deceased's husband) in the late 1980s, the deceased moved to Canberra to be close to the plaintiff and his children, who were the deceased's only grandchildren. He asserts that he assisted her to establish herself in Canberra, and thereafter they spent a considerable amount of time together, enjoying mutual academic interests and a love of the arts.
The plaintiff states that he has suffered from leukaemia since 1998, which, at times, has been more or less in remission, and at other times has interfered greatly with his daily activities. In 2013, he suffered a relapse. At about the same time, the deceased was diagnosed with bowel cancer.
From 2013, the plaintiff and the deceased resided together at the property. The plaintiff says that they cared for each other until a matter of days before the deceased's death, living happily together. On the other hand, the second defendant says that the relationship was not always happy. Indeed, it was often quite hostile.
In any event, the plaintiff is still residing in the property and he still suffers from leukaemia, although he is now receiving a treatment that is relatively efficacious.
The plaintiff has few personal assets. He said that he was not in a position to pay $900 towards the costs of the mediation on 12 December. He was declared bankrupt in May 2000, and he is currently in litigation with the Official Trustee in Bankruptcy in the Federal Court. The plaintiff claims that he cannot afford to move from the property and that his health would deteriorate if he was ejected from the property.
The second defendant’s case
The second defendant has filed evidence that the value of the property is about $1.1 million. The property is the principal asset in the estate, which has a total estimated value of about $1.4 million. Partly because it is the principal asset in the estate, the second defendant is very concerned about the deteriorating condition of the property, which will, of course, impact on its value and saleability.
The second defendant questions the plaintiff’s statements about his financial position, but she does not dispute that he is in a relatively poor financial position. She queries the extent to which the plaintiff assisted and supported the deceased in the deceased's final years.
The second defendant suggests that, as was the case with two previous wills, the deceased may have declined to provide for the plaintiff in her last will because she considered that the plaintiff was incapable of properly managing his finances.
The second defendant appears to accept that, there should be some provision for the plaintiff's accommodation needs. However, she says that the appropriate provision does not extend to a life estate in the property.
The current application
In relation to the application for an injunction, the questions are whether the plaintiff's substantive claim has reasonable prospects of success, and whether the balance of convenience favours the making of the order sought.
The plaintiff's prospects of success on the family provision claim generally are good; that is clear from the material before me, limited as it may be. On the other hand, it may be highly debateable as to whether he will succeed in obtaining a life interest in the property, given that it is the principal asset in the estate, and it would seem that he has already demonstrated that he is incapable of maintaining it in a proper condition.
However, that is not to say that his case in that regard is not arguable; it may be arguable. The balance of convenience strongly favours the making of the order sought for a short period so that the mediation can proceed without unnecessarily escalating hostilities.
I am prepared to make the orders sought, but only to preserve the position until after the mediation.
Orders made on 15 November 2019
I grant the orders sought in the application dated 6 November 2019 and order that:
(a)the property not be sold or otherwise transferred out of the estate until 4 PM on 13 December 2019;
(b)the plaintiff be permitted to reside, with quiet enjoyment, at the residence until that time; and
(c)costs are reserved.
I listed the matter for mediation on 12 December 2019 at 2 PM before Mr McIlwaine SC and made the usual orders associated with mediation, except that I varied Item 5 under the heading “Costs” to provide that the mediation fee of $1,800 be paid in full by the second defendant, on condition that the plaintiff’s portion of the fee will be recoverable by the estate in the event that provision is made for the plaintiff.
Both the family provision proceedings and the possession proceedings are to be the subject of the mediation.
If the matter does not resolve at mediation, it is listed at 9.30 AM on 13 December 2019 before me.
Orders made on 13 December 2019
The matter is listed for hearing on 30 March 2020 before Crowe AJ.
The injunction and residence orders made on 15 November 2019 are continued until 4 PM on the hearing date.
| I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: |
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