The Estate of Vass Naidoo

[2020] NSWSC 1

Supreme Court

New South Wales

Medium Neutral Citation:	The Estate of Vass Naidoo [2020] NSWSC 1
Hearing dates:	3 January 2020
Date of orders:	03 January 2020
Decision date:	03 January 2020
Before:	Davies J
Decision:	1. Dismiss the second plaintiff’s notice of motion filed 31 December 2019. 2. The second plaintiff is to pay the defendant’s costs of the notice of motion.
Catchwords:	SUCCESSION - executors and administrators - rights, powers and duties – settlement of contested probate proceedings – order whereby second plaintiff appointed administrator with obligation to pay agreed sum to defendant - failure by administrator to pay legacy – extension to pay sought – extension refused
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Procedural and other rulings
Parties:	Valerie Naidoo (First Plaintiff) Evelyn Naidoo (Second Plaintiff) Yianna Matsoukas (Defendant)
Representation:	Counsel: In person (Second Plaintiff) V Culkoff & J Orsini (Defendant)   Solicitors: Unrepresented (Second Plaintiff) J Orsini (Defendant)
File Number(s):	2016/257589
Publication restriction:	Nil

Judgment

1. These proceedings were contested proceedings for probate and/or a grant of letters of administration. The proceedings involved an informal document which was alleged by the plaintiffs to constitute the deceased’s last will. The second plaintiff was the wife of the deceased and the first plaintiff was the second plaintiff’s sister. The defendant claimed to be the de facto spouse of the deceased and sought that letters of administration be granted to her, and that the whole of the estate be distributed to her.

2. After the proceedings had been on foot for two years and, no doubt, considerable expense incurred, the parties settled the proceedings at a mediation held on 8 August 2019. By the time of that mediation the parties who were both legally represented, appeared to have accepted that the whole estate was worth only approximately $316,000, comprising the proceeds of a life insurance policy.

3. On 3 September 2019 Ward CJ in Eq made orders by consent in accordance with short minutes of order. Those short minutes relevantly provided that letters of administration with the informal will dated 20 April 2006 annexed be granted to the second plaintiff, and that in relation to the life insurance proceeds payable from Westpac Life Insurance Services:

(a)   the defendant to receive the sum of $115,000 within 28 days of receipt by the estate; and

(b)   the second plaintiff to receive the balance of the same.

4. The short minutes provided that the proceeding were otherwise dismissed with no order as to costs, to the intent that each party pay their own costs and with all prior costs orders being discharged.

5. A grant of letters of administration was made on 29 October 2019.

6. When the amount of $115,000 was not paid to the defendant, and no response received to enquiries made about when it would be paid, the defendant by notice of motion filed 17 December 2019 sought an order, that the Second Plaintiff forthwith pay, or direct Westpac Life Insurance Services to forthwith pay, the whole of the Life Insurance proceeds into Court, and noting that the sum of $115,000 from the proceeds was to be paid to the defendant in accordance with order 2 of the short minutes of order made on or about 2 (sic) September 2019.

7. That notice of motion came before Kunc J on 17 December 2019. There was no appearance for the second plaintiff. On that day, Kunc J made the following order (inter alia):

On the Defendant, by her Counsel, giving the usual undertaking as to damages, an Order pursuant to Part 25 rule 3 Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that the Second Plaintiff be restrained from dealing with the Life Insurance Proceeds other than on or before 18 December 2019 paying or directing Westpac Life Insurances Services to forthwith pay the whole of the Life Insurance Proceeds into Court, pending further Order(s). In this order “Life Insurance Proceeds” means the life insurance proceeds payable from Westpac Life Insurance Services, policy No DM404468 to the estate of the late Vass Naidoo.

8. His Honour then stood the notice of motion over before the duty judge on 20 December 2019. The second plaintiff did not pay the money into Court by 18 December or at all. On 20 December 2019 the matter came before Pembroke J. There was no transcript or other notation on the file of what occurred on that day apart from an order dismissing the notice of motion and making no order as to costs.

9. On 31 December 2019 the second plaintiff sought to have the matter listed before me as vacation judge in order to file a notice of motion. I directed that notice was to be given to the defendant. When the motion came before me for hearing the second plaintiff appeared in person and Ms V Culkoff of counsel appeared for the defendant.

10. The second plaintiff’s notice of motion sought the following orders:

1.   The defendant provide employment details of the deceased;

2.   The defendant provide details of the superannuation details of the deceased;

3.   The court grant me consent to use the pleadings under the above case number 2016/257589 in support of this application to the extent that it deems fit and proper; and

4.   Payment to the Defendant in terms of the court order dated 03 September 2019 be stayed pending the provision of the information provided in terms of relief 1 and 2, and for thirty days thereafter. This will allow the defendant sufficient time to provide me the plaintiff with the requested information (it's holiday season till end January and just about every resourceful department is working on skeleton staff) and to enable me to quantify the claim for employment benefits and superannuation benefits claimable by the estate and heirs of the late Vass Naidoo.

11. The affidavit in support concerned itself almost exclusively with assertions by the second plaintiff that the deceased had been employed by a company run by the defendant, and dealt with the second plaintiff’s attempts and desire to obtain details of that employment so that the superannuation to which the deceased had been entitled could be recovered for the estate. It was the failure of the defendant to provide that information which, according to the second plaintiff, justified prayer 4 in her notice of motion, that is, an extension of time to pay the $115,000 to the defendant.

12. I enquired of Ms Culkoff what occurred on 20 December 2019 before Pembroke J. She informed me that the second plaintiff appeared via a lawyer on that day. That lawyer informed Pembroke J that the life insurance proceeds had been received by the second plaintiff on 3 December 2019 but had not been paid to the defendant. The lawyer said that the money had been placed in an interest bearing deposit and that the money would be paid within the 28 day period provided for in the orders made by Ward CJ in Eq. That is to say, the payment would be made by 31 December, the day I was hearing the motion. It was on that basis that the defendant’s notice of motion of 17 December 2019 was dismissed by Pembroke J.

13. I have subsequently obtained a copy of the transcript of the hearing before Pembroke J which is entirely consistent with what Ms Culkoff told me.

14. The second plaintiff’s submission was that she should not have to pay the $115,000 until she was provided with the documents concerning employment and superannuation that she sought from the defendant. She said that she sought the Court’s assistance to have the material provided.

15. In my opinion, not only was the second plaintiff not entitled to seek the Court’s assistance to obtain that material whilst she was in breach of the order to pay the money to the defendant, but in any event the two matters were entirely distinct. The parties appeared to have agreed at the mediation that the only asset of the estate was the life insurance policy, and the contested probate proceedings were settled on the basis of dividing that money between the second plaintiff and the defendant. The second plaintiff’s more recently formed opinion that there might be other assets constituted by the superannuation provided no basis on which she should either decline to pay the money due to the defendant or obtain an extension to do so.

16. I declined to grant any extension to the second plaintiff to pay the money to the defendant for two reasons. First, because the stated reason given by the plaintiff, that she needed the documents from the defendant, had no connection with her obligation to pay the money. Secondly, no explanation had been provided for her failure to comply with the orders made by Kunc J (to pay the money into Court or to the defendant before 18 December 2019) and for her view that she had until 31 December to pay the money.

17. I have read what her lawyer submitted to Pembroke J concerning the order made by Kunc J regarding payment of the money. I do not accept his submission. The words in Kunc J’s order commencing “other than” would be entirely otiose if the second plaintiff had no obligation to pay the money into Court by 18 December.

18. In those circumstances, I ordered that the second plaintiff was to pay the $115,000 to the defendant by no later than 11:00am on 2 January 2020. I then stood the proceedings over to today to ensure that that had occurred and to deal with the question of costs. In doing so, I informed the second plaintiff that she would need to be in a position to put forward submissions why she should not have to pay the defendant costs of her notice of motion.

19. I am informed that the money has now been paid in accordance with the order that I made. Two issues remain. The first concerns the balance of the notice of motion. The second concerns costs.

20. In my opinion, orders 1, 2 and 3 sought in the notice of motion are misconceived. The present proceedings were, as I have said, contested proceedings concerning probate, administration and an informal will. Those proceedings were settled at mediation in their entirety. The short minutes of order made by Ward CJ in Eq on 3 September 2019 provided that the proceedings were dismissed apart from the order concerning the payment of the $115,000. The second plaintiff’s present notice of motion is not ancillary to the final relief sought in those proceedings. What is sought in the notice of motion relates to the administration of the estate by the administrator. Orders for the production of documents to the administrator can only be made in separate proceedings. In those circumstances, the notice of motion must be dismissed.

21. In relation to costs, the second plaintiff has submitted that she brought the notice of motion because it was the only way she had to obtain this material from the defendant when she claimed the defendant had not been prepared to supply it to her. She said in that regard that she was seeking the Court's assistance and she was not being greedy to obtain the whole of that money. She submitted that the Court should not penalise her for trying as the executor to get the documents.

22. As to the costs, the second plaintiff has been entirely unsuccessful on the notice of motion. If she had complied with Kunc J’s orders the notice of motion would not have been necessary in any event. In those circumstances, the second plaintiff should pay the defendant’s costs of the notice of motion.

23. The defendant has sought an order that a lump sum costs order should be made to avoid the increased costs of going through an assessment process if agreement cannot be reached. In the circumstances where the second plaintiff is unrepresented I do not consider it is appropriate to make such an order.

24. Accordingly, the orders I make are these:

1.   Dismiss the second plaintiff’s notice of motion filed 31 December 2019.

2.   The second plaintiff is to pay the defendant’s costs of the notice of motion.

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Decision last updated: 03 January 2020