VESEY & VESEY

[2011] FamCA 1080

FAMILY COURT OF AUSTRALIA

VESEY & VESEY [2011] FamCA 1080

FAMILY LAW – PRACTICE AND PROCEDURE - Husband institutes proceedings – wife disputes separation and seeks appointment of a case guardian – case guardian appointed – husband dies – husband’s son and daughter-in-law claim to be executors under will which prima facie appears invalid – matter taken out of defended docket list whilst parties sort out who is, and is not, properly a party to the proceedings and what orders are sought.

APPLICANT: Mr K Vesey

RESPONDENT: Ms Vesey

CASE GUARDIAN: Mark Parker

THE ESTATE OF THE LATE MR K VESEY: Mr R Vesey

FILE NUMBER: MLC 11486 of 2010

DATE DELIVERED: 10 November 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 10 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Hymans Solicitors

COUNSEL FOR THE RESPONDENT: Mr Melilli

SOLICITOR FOR THE RESPONDENT: Kenna Teasdale Lawyers

CASE GUARDIAN Mr Parker

COUNSEL FOR MR R VESEY Ms Stoikovska

SOLICITOR FOR MR R VESEY Moores Legal

Orders

IT IS ORDERED THAT:

1. For the avoidance of doubt, Mr Mark Parker is excused from further appearance in his capacity as case guardian for the husband who passed away on 13 October 2011.

2. The pending proceedings for alteration of property interests be removed from my docket and returned to the pool of cases awaiting assessment for hearing.

3. If any application in a case is filed at this Registry of the Court, the application may be referred to my Chambers for listing before me but this does not preclude another judge from hearing the matter.

4. There be leave to Mr R Vesey to file a Notice of Address for Service.

5. My reasons for decision this day be transcribed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vesey & Vesey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 11486 of 2010

Mr K Vesey

Applicant

And

Ms Vesey

Respondent

REASONS FOR JUDGMENT

1. The matter of Vesey comes before me as the first day of the final hearing in a property matter.  The parties were notified of the procedure on a first day by correspondence from my chambers.  The first day was 14 October 2011.  The first day was adjourned, administratively, due to the death of the applicant husband who passed away on … October 2011.  The Veseys were married for approximately 40 years.  There were two children of the husband by a previous relationship and the wife had a daughter from a previous relationship.  The one child of their marriage is Ms K.  The husband’s children are Mr R Vesey, and Ms L.  Mr R Vesey is married to Ms A.

2. Today, a number of people attend Court.  It will become apparent in what capacity they attend may itself be attended by some doubt.

3. Mr Melilli appears for the respondent wife.  Ms Vesey is apparently ill today and does not attend Court, and nothing turns on that.  Mr Teasdale instructs Mr Melilli of Counsel. 

4. Mr Parker, the case guardian for the husband, appears as a matter of courtesy, he accepting that his part in the proceedings fell away upon the death of the person for whom he was appointed case guardian.

5. Mr Hone, solicitor, has attended Court and not taken any part in the proceedings, but advised the Court that he still acts as agent, and has an agent for and has a watching brief for Hymans Solicitors.  As a matter of convenience to him, he sat at the bar table. 

6. Ms Stoikovska of counsel appears, instructed by Mr Szabo of Moores Legal.  Ms Stoikovska announced her appearance on behalf of the “executors and trustee of the will of the husband” or words to that effect.  Mr Melilli made known that he disputed her client’s capacity to do so, whereupon I asked Ms Stoikovska to produce the Will or other instrument which confers the status claimed by her clients.

7. Ms Stoikovska handed up a three-page document which appears to be a copy of the last will and testament of the husband.  I marked that exhibit “I1”, and have directed it remain on file.  It is a brief document.  It does not purport to have been prepared by a named solicitor.  The cover sheet refers only to it being the last will and testament of Mr K Vesey, dated (no date) January 2011.  More interestingly, however, the attestation clause at the end of page 2, apparently signed by the husband.  The signature to which I refer appears to be the same signature as that on the Court documents and witnessed by one Darroll Nelson and one Mr S and is dated “this 10^th day of December in the year 2011”.  The problem is that today is only 10 November 2011.  The witnessed attestation clause says the document was signed by the husband in approximately a month’s time or about two months after the husband died.

8. These reasons explain why I will order that the pending proceedings which comprise the husband’s initiating application filed on 13 December 2010 and the wife’s response filed on 4 March 2011, should be returned to the pool of cases awaiting allocation of a hearing pending someone making an application to put them into a judge’s docket so as to progress the matter to determination.  In short, it is not ready to proceed even to the point that no-one can tell me who the parties should be.

9. After the husband’s application was filed, the wife raised concern about his capacity.  Pursuant to an application in a case filed on 6 June 2011 by the husband’s then solicitors, Hymans Solicitors of Dandenong, a case guardian was appointed.

10. I note that the evidence in relation to the appointment of a case guardian included an affidavit sworn by Ms D on 1 June 2011, which set out some history of the matter.  And annexed to it, a report dated 4 April 2011 from Mr R, a specialist physician geriatrician which it would appear the parties were prepared to rely upon.  Mr R’s opinion included the following:

    “My impression was that [the husband] was not able to make an informed decision, given his inability to either recall or process information around him.  In my opinion, I consider [the husband] has an underlying dementia with behavioural disturbance.  …Given the significant impairment in this man and conflicts surrounding decision-making, I would suggest that he have a guardian and administrator appointed for him.  It is usual that a guardian and administrator can be secured through VCAT proceedings.  I would support an application through VCAT, organised by […] ACAS.”

11. The letter was addressed to Kenna Teasdale, who were and still are the solicitors for the wife.  The examination, giving rise to the opinion expressed by Mr R, is said to have been in February 2011. 

12. On 14 June 2011, the matter came before Cronin J.  Mr Hone, solicitor, appeared for the applicant.  I am told by Mr Hone who attends Court today that he did so as agent for the husband’s solicitors, Hymans Solicitors of Dandenong.  Mr Teasdale, solicitor, appeared for the respondent wife.  It was ordered that pursuant to rule 6.10, Mr Mark Parker of Lander & Rogers be and is hereby appointed as case guardian for the husband, and all outstanding interim applications were otherwise dismissed.

13. There are no reasons for the decision to appoint a case guardian.  It was an outcome to which all parties agreed. 

14. After Mr Parker was appointed, there was a hearing at VCAT – not at his initiative, but apparently at the initiative of some hospice carers for what he describes as a guardianship type order.

15. By order made on 22 June 2011, the firm FTL Judge and Papaleo Pty Ltd of Fitzroy were appointed administrator of the estate with all powers and duties conferred by part 5, division 3 and 3(a) of the Guardianship and Administration Act 1986, of the estate of the husband. It will be exhibit “W1”. Mr Parker said not much happened in the proceedings thereafter. He was somewhat unclear of his role in progressing the matter, given the appointment of Judge and Papaleo but nonetheless, made some inquiries and investigations to ascertain the pool of divisible assets.

16. For instance, that included on 9 September 2011 writing to Holt & MacDonald Solicitors of Ringwood, asking about whether they had prepared any wills for the husband.  He received a response to the effect that they had “prepared wills in 2008 and 2009” or words to that effect.  I take it that those wills were executed.  Mr Parker was helpful in relation to a general history of the matter.  He said that to him, it appeared that the pool of assets divisible between the parties in these proceedings may be fairly restricted.  He referred to a trust “[The Ms K Trust]” which had been established on 25 November 1980, with B Pty Ltd as the trustee. 

17. I note that on a cursory look, the husband was the “supervisor” of the trust.  I don’t know whether that is an equivalent position to an appointor.  In any event, it may be that this trust has now been concluded but prior to it being concluded, it was thought by Mr Parker that some considerable amount of money, perhaps in the vicinity of $38 million, might have passed through it.  Mr Melilli did not agree with that, but he does say that there was a fortune that the Veseys had which is now “lost”.  Anyway, Mr Parker’s view was that prior to the husband’s death, he would have considered and made an assessment of whether this case required further action to be taken to set aside transactions or against third parties to bring back into the pool of divisible assets, assets which should have been there.

18. I asked Ms Stoikovska whether she was aware of any earlier will.  On behalf of her client, she said that she thought there had been an earlier will in which her client, Mr R Vesey, had been an executor and trustee and his sister, Ms L, had been an executor and trustee.  There was discussion in Court about how to clarify matters so that the case could move forward.  I note that this matter should not have been allocated to a docket unless it was ready for trial.  I suggested to the parties that they consider retaining a member of the Victorian Bar to facilitate a without prejudice conference, to see if perhaps some potentially expensive steps in proceedings could be avoided in favour of sensible concessions being made, and to get the matter on track.  I don’t know whether they will take that advice, but they have certainly had long enough this morning to consider it. 

19. Arising out of issues that were raised by Mr Melilli, I asked Ms Stoikovska to obtain instructions as to her client’s knowledge of how the document (Exhibit “I1”) she handed up this morning had been executed.  I did not consider it appropriate that she have to obtain instructions in front of everyone else and adjourned the matter for some 20 or so minutes, to enable her to obtain instructions in private.  Prior to doing so, however, she indicated that she had been told by Mr R Vesey that on one occasion, he transported his father to a restaurant in Suburb O where his father met with Mr Darroll Nelson, who is a witness to Exhibit “I1”.

20. I was informed by Mr Hone and Mr Parker that Mr Nelson is a sole legal practitioner in East Brighton.  Mr S (the other witness) is Mr Nelson’s driver.  If Mr Darroll Nelson is the solicitor or practitioner or person who prepared the will, I note that he has not indicated that on the document itself. 

21. I asked Ms Stoikovska for fairly mundane details such as the name of the restaurant and then adjourned the matter for her to get instructions.  It should, I think, have been tolerably clear to her that enquiry was only as to matters her clients would know as his personal knowledge, like the name of the Suburb O restaurant to which he delivered his father.

22. When the matter returned, Ms Stoikovska said that she was instructed to not say anything further.  That’s a matter entirely for her client.  Subsequently he may be asked to explain why Ms Stoikovska could not provide details of the name of the restaurant or anything else but that will be on another day. 

23. It is a matter of significance that the wife’s position is that she was not aware that she and the husband were in fact separated.  At the time the husband made the initiating application, he was living with her at apartment … , … W Street, Suburb O in Victoria. 

24. It will be part of the wife’s case now that no orders ought to be made pursuant to section 79 of the Act, adjusting between the wife and any other person who stands in the place of the husband, any interests in the property.  I take it that Mr Melilli is referring to the provisions of section 79 (8).

25. The wife continues to live at the apartment in W Street, Suburb O.  Mr R Vesey and Ms A live in Suburb Y. 

26. Everyone agrees that Mr Parker’s role in the proceedings has now fallen away.  He will get his costs paid from the estate whenever he and others figure out who is the person to whom the accounts should now be addressed.  Although it may be that Mr Parker is retained in some other capacity in the case.

27. Rule 6.15 provides that if a party to proceedings dies, “the other party or the legal personal representative must ask the Court for procedural orders in relation to the future conduct of the case”, and that the Court may order that the legal person or representative of the deceased person be substituted for the deceased person as a party.  The dictionary to the rules defines legal person or representative for a deceased party as “the executor or administrator of the parties’ estate”.  Whereas Ms Stoikovska announced an appearance in that capacity this morning, it is now apparent that she is not in a position to substantiate their status. It would have been of assistance for Ms Stoikovska to have been prepared to address the issue today.

28. Mr Melilli says that the parties need some months to sort out in what capacity anyone may seek to do something in this case.  I would have thought it could take much less than six months and still the most productive course would be to have some facilitated discussions by someone with some experience and expertise in commercial matters, trust matters and estate matters. 

29. It is apparent to me that no one seems to know what they are doing, for various reasons and the matter is not ready to proceed in my list.  Accordingly, it ought to be returned to the pool of cases awaiting hearing.

30. I would imagine that it will be taken out of that pool upon someone making an application in the capacity as executors and trustees of the husband’s estate or the wife seeking to move the matters forward, although one may wonder why she would seek to do so if the only orders to be sought are against her. 

31. I am content to take the matter back into my docket at a later time, but it is not necessary that the parties wait for me if I am not reasonably available and another judge can take the matter earlier.

32. There will be leave to file the notice of address for service for Mr R Vesey.  He is described in the head note as the legal representative of the husband’s estate.  Whilst that may ultimately be the case, it is not something that the other party to the proceedings is prepared to concede at this point and I cannot regard him as such based on Exhibit “I1”.  

I certify that the preceding thirty two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 10 November 2011.

Associate: 

Date:  16 March 2012