Vanger v Bozzato - [2012] SASC 227

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
VANGER v BOZZATO & ANOR
[2012] SASC 227
Reasons of Judge Burley a Master of the Supreme Court
19 December 2012
EQUITY
Application for interlocutory injunction - deceased estate - plaintiff seeks paternity declaration - intends to bring claim under Inheritance (Family Provision) Act 1972 - some of deceased's monies held in a bank account - whether first defendant should be restrained from "disbursing or in any way diminishing the assets of the estate" - whether existing cause of action - prima facie case.
Inheritance (Family Provision) Act 1972 s 6(c), referred to.
Nobile v Scragg & Ors [2011] SASC 182; Burns v Elder's Trustee and Executor Co Ltd & Anor [1968] SASR 397; Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; Palmer v MacDonald Shire Council (2011) 29 NTLR 90; RTP Holdings Pty Ltd v Roberts (No 2) [2000] SASC 390; Zucker v Tyndall Holdings PLC [1993] 1 All ER 124; Brereton v Milstein [1988] VR 508, applied.

VANGER v BOZZATO & ANOR
[2012] SASC 227
JUDGE BURLEY:

By his Second Summons the plaintiff seeks a declaration of paternity pursuant to s 9 of the Family Relationships Act 1975 and an order pursuant to s 11 of the Powers of Attorney and Agency Act 1984 requiring the first defendant to provide copies of all records and accounts that are kept by her concerning the exercise by her of the powers conferred on her by an enduring power of attorney.
The plaintiff claims to be the son of Mihaly Cserhalmi who died on 26 March 2011. The first defendant is the daughter of the deceased. The plaintiff’s mother was Marta Fischer.
By paragraph 3 of the Second Summons the plaintiff has sought injunctive relief against the second defendant restraining it from paying out monies in two bank accounts to or at the direction of the first defendant.
By an Interlocutory Application filed on 26 September 2012 (FDN3), the plaintiff seeks an order as follows:
3An order restraining the first defendant from disbursing or in any way diminishing the assets of the estate of the deceased Mihaly Cserhalmi pending the outcome of these proceedings.
This was the only relief sought on the interlocutory application when it was brought on for hearing on 6 December 2012. At the hearing Mr Howard appeared for the plaintiff and Mr Ower for the first defendant. The two affidavits of the plaintiff filed respectively on 26 September 2012 and 4 December 2012 were relied upon by the plaintiff. They were admitted, except for the exhibit which comprised a copy of the will of the deceased. The first defendant relied on the affidavit of the first defendant’s solicitor, Mr Jordan, filed on 23 November 2012. This was admitted, again without the copy of the will of the deceased.
Each counsel filed a written outline of submissions.
The Court has not yet dealt with the plaintiff’s application for a paternity declaration.
Paragraphs 1 to 10 of the plaintiff’s first affidavit are as follows:
1    I was born 18 May 1957 at Szeged, Hungary. I am the son of Mihaly Michael Cserhalmi who died at Adelaide on 26 March 2011.
2    My father had two children, namely the First Defendant Eva Bozzato (“Eva”) and me. Eva was born on 26 November 1950 at Szeged, Hungary. At the time of her birth Eva’s mother was married to my father.
3    My father and Eva’s mother separated and were divorced in about 1954 or 1955.
4    In about 1956 Eva and her mother migrated to Canada in which country Eva has always resided.
5    In the period 1955-1956 my father established a relationship with my mother Marta Fischer as a result of which my mother became pregnant and later gave birth to me. My parents did not become married.
6    At the time of the October 1956 Hungarian Revolution my father escaped to England where he lived in London until about 1958.
7    My father migrated to Adelaide, Australia at some time in 1958.
8    After to[sic] my birth my mother Marta Fischer married Joseph Vanger (“Vanger”). Pursuant to Hungarian law I was thereby given the surname of Vanger and treated for all purposes of Hungarian law as if I was the child of Joseph Vanger and my mother Marta Fischer.
9    I was brought up as a child of Joseph Vanger and Marta Fischer.
10    In 1976 my father visited Hungary. At that time I was introduced to my father and the circumstances of my birth were for the first time explained to me. My father acknowledged me as his son. That was the first time that I learned that Joseph Vanger was not in fact my biological father. At that time I was 19 years old.
These paragraphs were followed by relatively detailed evidence of the relationship between the deceased and the plaintiff both in Hungary and Australia, in the course of which, according to the plaintiff, the deceased acknowledged the plaintiff as his son on many occasions. In addition, at paragraph 49 of his affidavit, he refers to a DNA analysis made of tissue samples provided by the plaintiff and the deceased’s sister. The analysis contains the opinion that the samples established a greater than 99.99 per cent probability of a biological relationship between the plaintiff and his Aunt. On that basis the plaintiff contends that he is the son of the deceased. A copy of the report is exhibited to his affidavit (Exhibit TV8).
It is common ground that the first defendant is named as executrix in the will of the deceased. There has been some delay in obtaining a grant of probate in respect of the will, partly caused by the lodging of a caveat in the Probate Registry by the plaintiff. The plaintiff allowed that caveat to lapse. It is common ground that the first defendant has applied for a grant of probate and that the probable time of the issue of the grant is February of next year at the earliest.
The first defendant contended that the plaintiff’s application for injunctive relief against the first defendant was premature. It was submitted that there is no cause of action presently available to the plaintiff in respect of which the interlocutory injunction could be said to support or to be ancillary to. Reliance was placed on the decision of Judge Withers in Nobile v Scragg & Ors.[1] In that case, Judge Withers referred to the cases on the question of whether or not a claimant under the provisions of the Inheritance (Family Provision) Act 1972 (“the Act”) had a cause of action prior to the issue of a grant of probate.
[1] 25 October 2011, Judgment Number [2011] SASC 182.
At paragraph [15] et seq Judge Withers referred to the cases. He cited and followed the decision of Mitchell J in Burns v Elder’s Trustee and Executor Co Ltd & Anor.[2]Having referred to Central Electricity Generating Board v Halifax Corporation[3] Mitchell J said:[4]
In an application under the Testators Family Maintenance Act, one fact which it would be necessary for the plaintiff to prove to support his right to an order would be that probate of the will of the testator had been granted to the defendant or defendants … I am therefore of the opinion that the cause of action in an application under the Testators Family Maintenance Act does not arise until the grant of probate.
[2] [1968] SASR 297.
[3] [1962] 3 All ER 915.
[4] At 301.
Judge Withers also placed reliance upon Ruwolt v Drake-Bockman & Anor[5] and the decision of Bleby J in Blunden v Blunden & Anor.[6]
[5] Unreported, Supreme Court of Western Australia, 29 March 1996.
[6] (2008) 258 LSJS 206.
I consider that these cases apply to this matter and I therefore hold that there is no cause of action under the Act available to the plaintiff until there is a grant of probate.
In addition, because there has not as yet been a declaration as to paternity, the plaintiff is not able, unless and until there is such a declaration, to establish that he is a person entitled to make a claim under the Act as specified in s 6(c) of the Act.
I turn now to the case law relating to the applications for interlocutory injunctions. The relevant principles are now well settled. In Australian Broadcasting Corporation v O’Neill[7] the High Court stated that an applicant for interlocutory injunctive relief must establish a prima facie case and that the balance of convenience favours the granting of an injunction. It was submitted by the first defendant that because there was no cause of action presently available to the plaintiff, the plaintiff could not establish the relevant prima facie case. I think this is correct. The prima facie case relates to the existence of a cause of action. It is not a matter of establishing that once a declaration of paternity is made and once there is a grant of probate, the plaintiff would be able to apply for relief under the Act. That is not sufficient. Unless there is both a declaration as to paternity and a grant of probate, the plaintiff does not have available to him a cause of action which he may pursue against the first defendant. That being the case, I consider that the application of the plaintiff is premature and should be dismissed, unless there is some other basis upon which the interlocutory injunctive relief sought may be granted.
[7] (2006) 227 CLR 57.
Mr Howard contended that there was such a basis. He argued that paragraph 3 of the amended application sought an order in the nature of a Mareva injunction.
What were formerly referred to as Mareva orders are now referred to as “freezing orders” in the Supreme Court Civil Rules 2006.[8] The Rule applies to various situations including one where “an applicant has a good arguable case on an accrued or prospective cause of action that is justiciable” in this Court.[9] However, a freezing order is only available to preserve the defendant’s assets so that any judgment in the plaintiff’s favour is not nugatory.[10] A plaintiff must show that there is a danger that the defendant’s assets may be removed from the state or disposed of.[11] In addition, there must be a pre-existing cause of action which is immediately enforceable against the defendant.[12]
[8] Rule 247. See generally Civil Procedure [6R 247.1] and [6R 247.5].
[9] Rule 247(5)(ii)(A).
[10] CF Palmer v MacDonnell Shire Council (2011) 29 NTLR 90.
[11] CF RTP Holdings Pty Ltd v Roberts (No 2) [2000] SASC 390.
[12] CF Zucker v Tyndall Holdings PLC [1993] 1 All ER 124.
To the extent that it might be said that a Mareva order may be sought in support of paragraph 2 of the Second Summons, that paragraph invokes s 11 of the Powers of Attorney and Agency Act 1984 and seeks an account, as opposed to the recovery of a debt. In those circumstances, without more, it would be inappropriate to grant a freezing order.[13]
[13] CF Brereton v Milstein [1988] VR 508.
The basis of the jurisdiction to grant a Mareva order is that there is a real risk that the defendant might dispose of his or her assets, or take them out of the reach of execution before the plaintiff can obtain a judgment and execute upon it. In this case, the asset referred to is an asset belonging to the estate and not to the defendant. If in due course the plaintiff is successful in obtaining an order for provision out of the estate of the deceased, the order is not for a monetary judgment. It consists of a direction which is treated as codicil that the plaintiff share in the estate of the deceased to the extent dictated by such direction.
Finally, the first defendant by her counsel has proffered an undertaking to the Court to notify the plaintiff’s solicitors in writing immediately upon her obtaining probate in respect of the will of the deceased. She has undertaken in addition not to make any distribution in the estate, apart from payment of proper expenses, without giving the plaintiff’s solicitor seven days notice in writing of her intention to do so. Such an undertaking removes any quia timet concerns the plaintiff may have.
Because I have formed the view that the plaintiff’s application is premature and that the plaintiff is not entitled to a Mareva order, I consider that the plaintiff’s position is adequately protected because, if a paternity order is made, and once the grant of probate is finalised, the plaintiff will be able to make such application as he may be advised to protect his interests, including an application under Rule 248(2) for an order for payment of the funds held by the bank into Court.
For the above reasons I propose to make an order dismissing paragraph 3 of the plaintiff’s amended application.