The Public Trustee in and for the State of Western Australia as administrator of the estate of Yanya Bebich v Bebich
[2013] WASC 456
•18 DECEMBER 2013
THE PUBLIC TRUSTEE in and for the State of Western Australia as administrator of the estate of YANYA BEBICH -v- BEBICH [2013] WASC 456
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 456 | |
| Case No: | CIV:2683/2013 | 12 & 18 NOVEMBER 2013 | |
| Coram: | LE MIERE J | 18/12/13 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Order extending operation of caveat discharged Injunction granted | ||
| B | |||
| PDF Version |
| Parties: | THE PUBLIC TRUSTEE in and for the State of Western Australia as administrator of the estate of YANYA BEBICH PETER BEBICH MATE BEBICH REGISTRAR OF TITLES |
Catchwords: | Caveat Extension of operation Caveatable interest Injunction |
Legislation: | Family Provision Act 1972 (WA) Inheritance (Family and Dependents Provision) Act 1972 (WA) Transfer of Land Act 1893 (WA), s 138B, s 138B(2)(a), s 138C(2) |
Case References: | Commissioner of Stamp Duties (Queensland) v Livingston [1965] AC 694; (1964) 112 CLR 12 Gangemi v Gangemi [2009] WASC 195 Giacci Bros Pty Ltd v Tyrell (Unreported, WASC, Library No 980106, 18 February 1998) Girando v Girando (Unreported, WASC, Library No 970444, 27 August 1997) Jandric v Jandric [1999] WASC 22 Marcuola-Bel Estate; Ines Marcuola-Bel v Thi Ly Tran [2005] NSWSC 1182 Midland Brick Co Pty Ltd v Welsh [2006] WASC 122 Re Faulkner (1999) 2 Qd R 49 Stacey v Stacey [2010] WASC 85 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
PETER BEBICH
First Defendant
MATE BEBICH
Second Defendant
REGISTRAR OF TITLES
Third Defendant
Catchwords:
Caveat - Extension of operation - Caveatable interest - Injunction
Legislation:
Family Provision Act 1972 (WA)
Inheritance (Family and Dependents Provision) Act 1972 (WA)
Transfer of Land Act 1893 (WA), s 138B, s 138B(2)(a), s 138C(2)
Result:
Order extending operation of caveat discharged
Injunction granted
Category: B
Representation:
Counsel:
Plaintiff : Mr J R Brooksby
First Defendant : In person
Second Defendant : In person
Third Defendant : No appearance
Solicitors:
Plaintiff : Public Trustee (WA)
First Defendant : In person
Second Defendant : In person
Third Defendant : No appearance
Case(s) referred to in judgment(s):
Commissioner of Stamp Duties (Queensland) v Livingston [1965] AC 694; (1964) 112 CLR 12
Gangemi v Gangemi [2009] WASC 195
Giacci Bros Pty Ltd v Tyrell (Unreported, WASC, Library No 980106, 18 February 1998)
Girando v Girando (Unreported, WASC, Library No 970444, 27 August 1997)
Jandric v Jandric [1999] WASC 22
Marcuola-Bel Estate; Ines Marcuola-Bel v Thi Ly Tran [2005] NSWSC 1182
Midland Brick Co Pty Ltd v Welsh [2006] WASC 122
Re Faulkner (1999) 2 Qd R 49
Stacey v Stacey [2010] WASC 85
1 LE MIERE J: The plaintiff is the Public Trustee as Administrator of the Estate of Yanya Bebich, deceased. The plaintiff lodged a caveat claiming an estate or interest in property at unit 2, 4 Dellamarta Road, Wangara, which I will describe as the Wangara property. The first and second defendants, Peter and Mate (also known as Matthew) Bebich, who I will describe as the defendants are the registered proprietors of the Wangara property.
2 The defendants caused the third defendant, the Registrar of Titles, to issue a notice under s 138B of the Transfer of Land Act 1893 (WA) (TLA). The effect of the notice was that the caveat would lapse at midnight on 13 November 2013 unless the plaintiff obtained a Supreme Court order pursuant to the TLA s 138B(2)(a) extending the operation of the caveat. The plaintiff applied by originating summons for an order that the operation of the caveat be extended and a chamber summons seeking an order that the operation of the caveat be extended until the finalisation of the proceedings CIV 1076 of 2012 to which I will refer later in these reasons. The chamber summons came on for hearing urgently on 12 November 2013. At that time I granted an interim order extending the operation of the caveat until 19 November 2013 and adjourned the application for further hearing on 18 November. On 18 November I heard argument from the plaintiff and the defendants concerning whether the operation of the caveat should be extended until the finalisation of proceedings CIV 1076 of 2012. These are my reasons for determining that application.
CIV 1076 of 2012
3 Yanya Bebich died on 11 August 2007. By her will the deceased appointed Peter Bebich to be the executor and trustee of her will. The deceased left the whole of her estate to the defendants as tenants in common in equal shares. The will did not make provision for any of the deceased’s five daughters.
4 In October 2008, one of the daughters of the deceased, Verna Marijancic, commenced proceedings under the Family Provision Act 1972 (WA), which at the time had the short title of Inheritance (Family and Dependants Provision) Act 1972 (WA). Subsequently the defendants and three of the deceased’s other daughters, including Ivy Bebich, were added as defendants.
5 Ivy Bebich suffers from a number of conditions as a result of which she requires care and supervision in her day-to-day living. The Public Trustee is the limited administrator of the affairs of Ivy Bebich pursuant to an order of the State Administrative Tribunal.
6 At the time of her death the deceased was the registered proprietor of two properties at Lenore Road, Wanneroo which I will describe as Lot 178 and Lot 179. On 13 August 2009 Lot 179, and on 28 January 2010 Lot 178, was transferred on the application of Peter Bebich as executor of the will of the deceased, to the defendants as tenants in common in equal shares. On 22 February 2010 the defendants encumbered Lot 178 and Lot 179 by granting to the ANZ a mortgage to secure a loan. Also on 22 February 2010 the defendants purchased in their own names as tenants in common the Wangara property for $792,000. Shaun Conlin, the Director of Trustee Services for the Public Trustee, states in an affidavit sworn 7 November 2013 that from the timing of the purchase of the Wangara property it appears that the funds from the mortgages over Lots 178 and 179 were used by the defendants to buy the Wangara property.
7 On 19 January 2012 the Public Trustee commenced Supreme Court proceedings CIV 1076 of 2012 against Peter Bebich as executor of the estate of the deceased and Peter and Matthew Bebich in their personal capacities. The relief claimed included:
• that the grant of probate of the will of the deceased to Peter Bebich be revoked;
• that there be a grant in favour of the Public Trustee of probate of the will of the deceased;
• Peter and Mate Bebich discharge all encumbrances over Lots 178 and 179;
• Peter and Mate Bebich transfer to the Public Trustee as executor of the estate of the deceased Lots 178 and 179 free of any encumbrance.
8 On 26 June 2012 the court ordered by consent that the grant of probate of the will of the deceased to Peter Bebich be revoked and there be a grant in favour of the Public Trustee of probate in solemn form of the will of the deceased. The remaining matters in issue in CIV 1076 of 2012, and in particular the Public Trustee's claims for orders in relation to Lots 178 and 179 are listed for trial commencing on 19 December 2013.
The issue
9 TLA s 138C(2) provides that the court may make an order extending the operation of the caveat 'if satisfied that the caveator's claim has or may have substance'. The claim of the caveator, that is the Public Trustee, is that the Public Trustee has an estate or interest in the Wangara property as constructive trustee.
10 The factual basis of the plaintiff's claim is that estate funds raised by mortgaging Lots 178 and 179 to the ANZ Bank were used in the purchase of the Wangara property. Peter Bebich swore an affidavit on 14 November 2013. Peter Bebich says that on 24 November 2009 the ANZ Bank restructured loan facilities to the defendants in their own capacity and as trustee for the Phirex Property Trust and companies associated with them and agreed to extend the credit overdraft facilities for their business operations and to assist in purchasing the Wangara property. In support of those loan facilities the ANZ Bank took various security including registered mortgages over Lots 178 and 179. Peter Bebich says that the defendants purchased the Wangara property as trustees for the Phirex Property Trust. Peter Bebich says that money to assist in the purchase of the Wangara property and for other purposes was borrowed from ANZ which took security, including the registered mortgages over Lots 178 and 179 to which I have referred. I find for the purposes of this application that there is a prima facie case that part of the purchase price of the Wangara property was obtained by the defendants from the ANZ Bank on the security of the mortgages over Lots 178 and 179.
11 The onus is on the plaintiff to establish the existence of an arguable caveatable interest in the Wangara property. A caveatable interest must be a proprietary interest in the land. A beneficiary under a will has no interest in the assets of the estate but merely has an interest in having the estate duly administered: Commissioner of Stamp Duties (Queensland) v Livingston [1965] AC 694; (1964) 112 CLR 12, 698. A residuary beneficiary under a will has an interest to have the estate properly administered but has no caveatable interest in land forming part of the estate: Gangemi v Gangemi [2009] WASC 195 [51]. An applicant for provision under the Family Provision Act 1972 does not have an interest in land so as to justify the lodging of a caveat under s 138 of the TLA: Girando v Girando (Unreported, WASC, Library No 970444, 27 August 1997) (Templeman J); Stacey v Stacey [2010] WASC 85 [11].
12 A trustee who has received notice that a fund in his possession is or may be claimed is liable to the claimant for dealing with the property in disregard of the notice should the claim prove well-founded. Distribution with notice of claim under similar legislation was held to be a failure by the executors to provide for contingent liabilities so as to constitute a breach of trust in Re Faulkner (1999) 2 Qd R 49, 52 - 53. An executor with notice of an application under the Family Provision Act who disperses assets of the estate remains personally liable to a successful applicant for provision under the Act who suffers a loss as a result: Marcuola-Bel Estate; Ines Marcuola-Bel v Thi Ly Tran [2005] NSWSC 1182 [24].
13 Peter Bebich, as executor of the estate of the deceased, dispersed assets of the estate by transferring Lots 178 and 179 to the defendants. If the plaintiff succeeds in obtaining an order for provision under the Family Provision Act the plaintiff will suffer a loss as a result of Peter Bebich transferring Lots 178 and 179 to the defendants because the estate has no other assets out of which provision might be made for the plaintiff. Peter Bebich remains personally liable to the plaintiff if the plaintiff is successful in the application under the Family Provision Act.
14 In Marcuola-Bel Estate; Ines Marcuola-Bel v Thi Ly Tran Palmer J found that the executor of the estate of the deceased (Ines) had, in effect, dissipated the estate with knowledge of the claim of an applicant (Ly) for provision under the Family Provision Act 1982 (NSW). In those circumstances Palmer J held:
It seems to me that as Ines has, in effect, dissipated the estate with knowledge of Ly's claim, a tracing exercise to enable the estate to be restored, if it can be, is required.
- The matter was not fully explored on the hearing of this application and it is not appropriate to consider it further having regard to the fact that the trial of proceedings CIV 1076 of 2012 is to commence shortly.
15 In Giacci Bros Pty Ltd v Tyrell (Unreported, WASC, Library No 980106, 18 February 1998) Templeman J held that no proper caveat had been lodged but went on to say that it was open to him, even if the caveat was of doubtful validity, to make an order restraining the registered proprietor from dealing with the land, pending the resolution of the dispute in an appropriate manner, because under s 138C(2)(a)(iii) the court had a broad jurisdiction to make such orders as it thought fit concerning the caveat or the land in respect of which the caveat was lodged. His Honour considered that it was appropriate to grant an injunction so as to maintain the status quo pending the resolution of the dispute. In Jandric v Jandric [1999] WASC 22 and Midland Brick Co Pty Ltd v Welsh [2006] WASC 122 Commissioner Buss QC and Hasluck J respectively came to the same conclusion.
Conclusion
16 The plaintiff has made out an arguable case that it has a right to trace the funds obtained from mortgaging Lots 178 and 179, and thereby in effect dissipating those assets, into the Wangara property. The balance of convenience favours restraining the defendants from dealing with the Wangara property until the resolution of CIV 1076 of 2012. The hearing of that action is to commence on 19 December. The defendants have not put on any evidence that they intend to deal with the Wangara property before the resolution of CIV 1076 of 2012 or will suffer any specific prejudice by being restrained from dealing with the property until the resolution of CIV 1076 of 2012.
17 I will discharge the order extending the operation of the caveat but order that the defendants be restrained from selling, disposing of, encumbering or otherwise dealing with the Wangara property until the resolution of CIV 1076 of 2012 or further order.
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