Tina Marie Carter v Elizabeth Margaret Law

[2017] NSWSC 919

Supreme Court

New South Wales

Medium Neutral Citation:	Tina Marie Carter v Elizabeth Margaret Law [2017] NSWSC 919
Hearing dates:	11 July 2017
Date of orders:	11 July 2017
Decision date:	11 July 2017
Jurisdiction:	Equity
Before:	Emmett AJA
Decision:	1.   Order the defendants to pay the plaintiff the sum of $30,000. 2.   Order the defendants to pay the plaintiff’s costs of the proceedings. 3.   Order that orders 1 and 2 be stayed until 9 August 2017 or if further affidavits are filed in accordance with order 4, until further order of the Court. 4.   Direct the defendants to file and serve any further affidavits upon which they intend to rely no later than 8 August 2017. 5.   Direct the plaintiff to file and serve any affidavits in reply no later than 22 August 2017. 6.   Note that the further evidence is limited to the question of ownership, possession and value of jewellery of the deceased. 7.   Stand the matter over for further directions at 10 am on 5 September 2017.
Catchwords:	SUCCESSION – executors and administrators – proceedings against executors and administrators
Legislation Cited:	Probate and Administration Act 1898 (NSW), ss 85, 89
Category:	Procedural and other rulings
Parties:	Tina Marie Carter (Plaintiff) Elizabeth Margaret Law (First Defendant) Paul Anthony Pittin (Second Defendant)
Representation:	Counsel: MWE Maconachie / J Shandil (Plaintiff) PA Pittin (in person) (Second Defendant)   Solicitors: Tony Cox Lawyers (Plaintiff)
File Number(s):	2016/00355666

Judgment

1. The plaintiff, Ms Tina Carter (Ms Carter), seeks orders that the defendants, Ms Elizabeth Law and Mr Paul Pittin (the Executors), pay to her the sum of $30,000. Ms Carter seeks that relief in connection with the administration of the Estate of the Late Betty Irene Beacroft (the Testatrix), who died on 13 December 2013. Probate of the will of the Testatrix dated 19 June 2007 (the Will) was granted to the Executors on 27 March 2014.

2. The dispute between Ms Carter and the Executors concerns the alleged ownership and value of jewellery that at some stage belonged to the Testatrix. There is no evidence satisfactorily identifying all of the jewellery in question. However, the Executors assert that jewellery having a value of $30,000 was entrusted to Ms Carter by the Testatrix before her death. They have administered the estate of the Testatrix and distributed it on the basis that Ms Carter has retained property of the estate having a value of $30,000. Ms Carter, on the other hand, claims that certain jewellery was the subject of a gift to her by the Testatrix some years before her death and that that jewellery has a value of $6,685. The Executors dispute that any jewellery was the subject of a gift to Ms Carter.

3. Neither of the Executors has filed a notice of appearance and they are presently unrepresented in the proceedings. By affidavit sworn 5 December 2016, Mr Alan Carney, the solicitor for Ms Carter, deposed to having served Mr Pittin with the summons, the affidavit of Ms Carter of 28 November 2016 and a notice of listing, by delivering them to him personally at an address in Port Macquarie. On 31 March 2017, the Court ordered that service of the summons and the affidavit on Elizabeth Law be effected by posting a copy to Mr Pittin together with a letter requiring him to bring the documents to the attention of Ms Law. By affidavit of 1 May 2017, Mr Anthony Cox, solicitor for Ms Carter, deposed to having forwarded the summons and affidavit to Mr Pittin with a request to bring the documentation to the attention of Ms Law.

4. An affidavit sworn by Ms Law on 4 May 2017 was filed on 5 May 2017. The legal representative shown on that affidavit is “Elizabeth Law”. Another affidavit sworn by Ms Law on 5 July 2017 was filed on 6 July 2017. Again, the legal representative is described as “Elizabeth Law”.

5. When the proceedings were called on for hearing on 11 July 2017, the day fixed for hearing, Mr Pittin appeared in person. Mr Pittin intimated to the Court that Ms Law could appear by telephone if necessary. In the circumstances, I embarked on the hearing in the absence of Ms Law.

6. At the conclusion of the hearing, I indicated to the parties my provisional conclusion that, on the basis of the evidence presently before me, Ms Carter was entitled to an order that the Executors pay the sum of $30,000 to her. Accordingly, I ordered that the Executors pay the sum of $30,000 to Ms Carter and that they pay her costs of the proceedings. However, I ordered that those orders be stayed until further order. I then gave directions for the Executors to file further evidence, if they are so disposed, and for Ms Carter to file evidence in reply. My reasons for making those orders are as follows.

7. By the Will, the Testatrix appointed the Executors as her executors and directed that they stand possessed of the final balance of her estate:

• as to 20% for Ms Law;

• as to 30% for Mr Pittin;

• as to 30% for Ms Carter; and

• as to 20% for Colin Law.

Each of the beneficiaries is a child of the Testatrix. There are gifts over the event of either of those beneficiaries predeceasing the Testatrix. However, all four of her children survived the Testatrix.

8. An interim statement of receipts and disbursements in respect of the estate of the Testatrix as at 3 November 2014 is annexed to Ms Carter’s affidavit of 8 September 2016. The interim statement shows receipts of $162,012.70 and estimated funds available for interim distribution of $137,012.45. The receipts did not include any jewellery, although jewellery was apparently disclosed in the application for probate filed on behalf of the Executors.

9. The distribution proposed in the interim statement was to the four children of the Testatrix in the proportions provided in the Will, except that Ms Carter was treated as already having received $30,000 “being conservative estimate of value of jewellery retained by [her]”. The balance of $45,000 was shown as being held in trust.

10. Annexed to the affidavit of Ms Law of 4 May 2017 is a final statement of receipts and disbursements in respect of the estate of the Testatrix. The final statement shows a balance of nil held by the Executors. There is no evidence to suggest that there is any dispute as to the accounts, save for the dispute about jewellery said to be worth $30,000.

11. In her summons, Ms Carter sought relief under s 85(1A) and s 89 of the Probate and Administration Act 1898 (NSW) (the Probate Act). Section 85(1A) provides that every trustee of the estate of a deceased person must verify and file or verify, file and pass, the trustee’s accounts relating to the estate at times and in such manner as may be fixed by the rules or as the Court may order. Section 89 provides that the Court may make such order with reference to the distribution or application of any monies that an executor may have in hand, or as to the residue of the estate, as it may think fit. However, no final order for distribution may be made except upon notice to all of the parties entitled.

12. In the events that have occurred, Ms Carter no longer presses her claim for relief under the provisions of the Probate Act. The substance of Ms Carter’s claim is that an order should be made for the payment to her of $30,000, the amount retained by the Executors as being the value of the jewellery alleged by them to have been the property of the Testatrix and in the possession of Ms Carter.

13. In administering the estate of the Testatrix, the Executors proceeded on the basis that Ms Carter was in possession of jewellery owned by the Testatrix having a value of $30,000. That value was placed by Mr Pittin on the basis of his alleged knowledge of the personal effects of the Testatrix during the time that he acted as her carer before the Testatrix became a resident of Regis Hastings Manor and during visits to the Testatrix at Regis Hastings Manor. Mr Pittin has no qualifications as a valuer. He is a qualified and experienced wall and floor tiler but there is no evidence that he had any knowledge or experience in relation to the value of jewellery.

14. Ms Law says in her affidavit that, when she last saw the Testatrix in July 2012, the Testatrix told her that she believed that Ms Carter had been taking her jewellery and using it as her own, against the wishes of the Testatrix. Ms Law says that the Testatrix told her she had asked Mr Pittin to bring her a safe in which to keep her personal items. Those parts of the affidavit were admitted to prove the fact that those assertions were made by the Testatrix, but not as evidence of the truth of the assertions made by the Testatrix. The evidence may have some relevance as indicative of the reasons for the actions taken by the Executors in relation to the administration of the estate.

15. Ms Carter accepts that, at the time of the death of the Testatrix, she was in possession of jewellery that at some stage belonged to the Testatrix. She tendered a valuation of $6,685 in respect of that jewellery. It appears that the Executors assert that the jewellery so valued does not include all of the jewellery of the Testatrix alleged to be in the possession of Ms Carter.

16. It is most unfortunate that a dispute involving the sum of $30,000 could not be resolved without incurring costs that would represent a fairly substantial proportion of the amount in dispute. However, it is apparent from the force of assertions made by Mr Pittin at the hearing that matters of principle are perceived as being in issue. Mr Pittin made assertions from the bar table that indicate that there is a genuine dispute as to the jewellery of the Testatrix that passed into the possession of Ms Carter, the basis upon which that jewellery was delivered to Ms Carter and the value of any jewellery retained by her. However, none of the assertions constituted admissible evidence, and Mr Pittin informed the Court that he wanted to have the opportunity of adducing evidence as to those matters, notwithstanding the failure to comply with earlier directions given for the filing of evidence. With considerable reluctance, I have afforded him that opportunity on terms that I will describe.

17. On the basis of the material presently before me, there is no more than an assertion on behalf of the Executors that Ms Carter was in possession of jewellery belonging to the Testatrix at the date of her death. If there had been adequate evidence identifying particular jewellery that was at some time prior to her death owned by the Testatrix and demonstrating that that jewellery was in the possession of Ms Carter, it would be a matter for Ms Carter to demonstrate that any such jewellery in her possession had been the subject of a gift by the Testatrix prior to her death. If Ms Carter failed to establish that the jewellery so identified by the Executors had not been the subject of a gift to her by the Testatrix, it would be necessary for the Executors to demonstrate that the jewellery so identified had a value of at least $30,000.

18. The evidence presently before me does not establish that any jewellery in the possession of Ms Carter was the subject of a gift by the Testatrix. On the other hand, as I have said, at this stage there is no evidence that any particular item of jewellery owned by the Testatrix is in Ms Carter’s possession.

**********

Decision last updated: 17 April 2018