Vo v Lai
[2013] NSWSC 1639
•08 November 2013
Supreme Court
New South Wales
Medium Neutral Citation: Vo v Lai & Anor [2013] NSWSC 1639 Hearing dates: 1, 2 and 3 October 2013 Decision date: 08 November 2013 Jurisdiction: Equity Division Before: Windeyer AJ Decision: Amended Summons dismissed.
Catchwords: [SUCCESSION] Family Provision - Eligible person - Whether plaintiff a de facto spouse of deceased at time of death - Whether dependent on deceased.
[SUCCESSION] - Family Provision - Limitation of actions - Extension of time - Whether extension ought to be given - Succession Act 2006, s 58.
[PRACTICE AND PROCEDURE] - Commencement of action - Amendment of originating process - Where summons made no claim for family provision - Where amended summons made such claim - Whether amendment dated from date of commencement of action or from date of amendment - Civil Procedure Act 2005, ss 64 and 65.Legislation Cited: Civil Procedure Act 2005
Family Provision Act 1982
Interpretation Act 1987
Succession Act 2006
Uniform Civil Procedure Rules 2005Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656
Ball v Newey (1988) 13 NSWLR 489
Benney v Jones (1991) 23 NSWLR 559
Churton v Christian (1988) 13 NSWLR 241
Re Fulop (1987) 8 NSWLR 679
Permanent Trustee Company Limited v Fraser (1995) 36 NSWLR 24Category: Principal judgment Parties: Tung Thanh Vo (Plaintiff)
Minh Ngoc Thi Lai (First Defendant)
Margaret Baotran Lu (Second Defendant)Representation: Counsel:
TT Vo (Plaintiff) (self-represented)
LE Judge (Defendants)
Solicitors:
Teece Hodgson & Ward (Defendants)
File Number(s): 2011/348903 Publication restriction: Nil
Judgment
The plaintiff, Tung Thanh Vo (Mr Vo), seeks an order under s 59 of the Succession Act 2006 (the Act) for provision out of the estate of the late Amanda Van. He claims to be an eligible person under s 57 of that Act either as the de facto spouse of the deceased or as a person who was partly dependent upon the deceased at a particular time and at that or another time was a member of the same household of which the deceased was a member.
Issues
The claim abounds with problems. The following issues arise:
(a) Whether the claim was brought in time.
(b) If not, whether an extension of time should be granted.
(c) Whether the plaintiff was the de facto spouse of the deceased at the time of her death.
(d) If not, whether he was at a particular time dependent or partly dependent on the deceased and was then, or was at another time, a member of the same household as the deceased.
(e) If the answer to (c) is no and (d) yes, whether there are factors which warrant the making of the application.
(f) If the answer to (e) is yes, whether provision should be made for the plaintiff and, if so, what provision.
Facts
Throughout the case the deceased was referred to as Amanda and from time to time I will do the same. Amanda died on 2 November 2010 aged 46. Her death was caused by cancer. Amanda left a will dated 19 September 2010 probate of which was granted on 14 December 2010 to the defendants, the executrices and trustees named in the will. The first defendant, Mrs Lai, is a sister of the deceased and the second defendant, Ms Lu, is a niece of the deceased.
The will provided:
(a) For the proceeds of the superannuation account with the AMP to be paid to the estate.
(b) For the proceeds of a superannuation account with Spectrum and any other superannuation to be paid as to 70% to the estate and as to 30% to Mrs Hang Thi Do, the deceased's mother.
(c) A legacy of $100,000 to Mrs Do, diminished by any amount received under (b) above.
(d) A right in Mrs Do to reside in the property at 51 Northam Road, Bankstown free of charge for two years from the death of the deceased.
(e) For the residue to be held on trust in the events which occurred for Jessica Vo, the child of Amanda and Mr Vo, as to 50% of that residue contingent upon her attaining the age of 30 years and as to the other 50% contingent upon her attaining the age of 35 years, or, in either case, at such earlier date as to the whole or part as the trustees deem fit and appropriate after Jessica attains the age of 18 years.
(f) By gift over in the event the estate or part of it is not disposed of under (e) to Mrs Do if alive at the time of the failure and, if not, to such of the sisters of the deceased then living, in equal shares.
(g) For Mrs Lai to be guardian of any infant children. Failing her then Loan Kim Lu, another sister of the deceased, to be guardian.
The will in paragraph 2(e) of its First Schedule gave power to the trustees to:
2(e) advance any income or capital of the expectant, contingent or vested share of any beneficiary in or towards the maintenance, education, advancement or benefit for the benefit in life of such person.
No provision was made for Mr Vo.
The assets in the estate at the date of death as set out in the inventory of property attached to the probate were as follows:
51 Northam Avenue, Bankstown
$1 million
Jewellery, furniture and contents of home
$10,000
Motor Vehicle
$10,250
Money in Westpac Banking Corporation
$98,635
AMP Life Ltd Superannuation Account
$94,185
Spectrum Superannuation Account
$276,469
$1,489,539
Since Amanda's death the legacy to Mrs Do has been paid, the car has been sold, the superannuation monies and proceeds of bank accounts have been collected and paid into an estate account, the Bankstown property has been transmitted to the executors, and substantial sums have been paid for costs. At present the estate consists of:
51 Northam Avenue, Bankstown
$1,050,000
St George Bank Savings Account
$11,001
St George Bank Term Deposit Account
$300,000
St George Bank Freedom Account
$1,995
Jewellery, contents and furniture
$10,000
$1,372,996
Including the amounts which have already been paid for costs, the total estimated costs of the executors in respect of the probate application and these proceedings is $124,000. That high figure is to some extent explained by the fact that there was an application by the plaintiff for interim provision and it has been very difficult for the defendants to establish the true financial position of the plaintiff.
The plaintiff is aged 48. He was born in Vietnam in 1965 and came to Australia in 1980, becoming an Australian citizen in 1983. The deceased was born in Vietnam in 1964 and came to Australia in 1979. She was the youngest of seven children, all of whom came to Australia with their mother. Her father had died before they came here.
Mr Vo and the deceased met in 1996 and began to spend time together. Amanda owned a property at 81 Northam Avenue, Bankstown where she lived with her mother. In 2002 she sold that house and purchased another house in the same street at 51 Northam Avenue, Bankstown (Northam Avenue) from her sister Helena Reed. There was a house at Northam Avenue which was demolished and the deceased built a new house there. That new house contains five bedrooms and four bathrooms. From the photographs of the exterior it appears quite sizeable.
On 21 December 2003 Mr Vo and Amanda had a party, which he called a wedding ceremony, and exchanged rings. By this time Amanda was three months pregnant with Jessica, the child of Amanda and Mr Vo. It was not a marriage according to Australian law although Mr Vo repeatedly said he regarded it as such. In any event the parties lived together at Northam Avenue. Amanda's mother lived there as well. Jessica, the child of the relationship, was born on 4 May 2004. While there may not have been much sharing so far as finances were concerned, I accept the couple lived in a de facto relationship from shortly before Jessica was born up to some time in 2008. In the long run that was not contested by the defendants.
At the end of 2004 the deceased was diagnosed with breast cancer. Thereafter she underwent extensive and more or less continuous treatment including chemotherapy and radiotherapy until it was clear that nothing more could be done.
Mr Vo contends that he lived in a de facto relationship with the deceased up to the time of her death. He gives evidence of his general activities as part of the household but I do not accept that these activities, or all of them, continued up to the time of death, and the activities were, in any event, exaggerated.
The Plaintiff
Mr Vo completed the Higher School Certificate at Dulwich Hill High School. He commenced a course in engineering at the University of Sydney, transferred to the Faculty of Science and graduated Bachelor of Science in 1992 majoring in computer science and pure mathematics. He then moved to Macquarie University and graduated Bachelor in Legal Studies at the same time being employed as a tutor in computer science at the University. For the next two years he managed a newsagency for his sister. In 1999 Mr Vo was employed as a legal clerk; in 2000 he completed his practical legal training course at the College of Law and was employed in 2000 as a law clerk with LW Williams & Associates. He was registered as a migration agent in 2001 and admitted as a solicitor in this State in the same year, continuing to work at LW Williams & Associates as a solicitor. He then obtained a full practising certificate and formed a firm called Australasia Legal & Migration Services, working as a solicitor, migration agent and education counsellor. His practising certificate was suspended in 2007. He said this was because there was some intermixing of funds between the various aspects of his business. Whether that is so is not clear from the evidence but the evidence does show a receiver was appointed, presumably to the trust account. For some reason his registration as a migration agent was also suspended in 2007. In addition to this the plaintiff, since 2003, has obtained from the Australian Business and Retail Academy a Diploma of Retail Management, a Certificate IV in Business Management, a Certificate IV in Training and Assessment, a Certificate in International Education Services, and a Certificate of Admission as a Qualified Education Agent Counsellor in Australia and abroad. It would seem from this that he should be able to obtain employment rather than engage in unsuccessful enterprises to which I will come.
In 2004 Mr Vo incorporated and became the founding and sole director of International Business College Pty Limited which was established in Bankstown and subsequently at Chester Hill. That business has now closed.
I have set all this out in some detail as it goes to the ability and qualifications of the plaintiff to earn an income.
Amanda Van
As I have said, Amanda came to Australia aged about 15 years, having fled Vietnam with her mother and sisters. She attended high school in Brisbane then studied Commerce at the University of Queensland, admitted to the degree of Bachelor of Commerce in 1986. She qualified as a Certified Practising Accountant in 1991. After that, Amanda moved to Sydney with some members of her family, working first for the Westpac Banking Corporation, then the AMP Society for 13 years in its taxation department, and finally as a tax manager. She then moved to Zurich Insurance in 2000 and stayed there until her illness prevented her from working further. According to Mrs Lai, the deceased was earning somewhere between $160,000 to $200,000 per annum when her employment ceased. The plaintiff gave the impression that the deceased spent a lot of time working on his business accounts. I am satisfied that while she might have provided some assistance, she would not have had the time to enable her to do as much as he said she was doing, and, in any event, it seems quite unlikely that Mr Vo would have got into trouble with the financial affairs of his business had Amanda been working there on his accounts.
Was there a De Facto Relationship at the Date of Death?
Mr Vo moved out of Northam Avenue in November 2008. There is some dispute about this but notes annexed to a Centrelink application by Amanda support it, as does her statement in support of a child support application, as does the evidence of Mrs Lai which I accept. The child support assessment took place and it was determined in November 2009 that Mr Vo was to pay $3,198 per annum or $61.29 per week for Jessica. He said that he was not aware of this and I accept that. There might have been some difficulty in finding him. He made no payments.
After Mr Vo moved out some transport assistance with the Lions Club was arranged to take Amanda to medical appointments and hospital visits.
After he left, Mr Vo slept at his business premises. There was some accommodation for students at one of them. On most days he did pick Jessica up from school and take her home. He said that his regular arrangement was to take Jessica home, to prepare her dinner, bath her and read to her. He said that when Amanda returned from work or later when she was too ill to go to work, he, Amanda and Jessica would lie down together and that when Jessica fell asleep he would leave the house and go back to sleep at Southern Cross College or Legal House, being premises where he conducted his business. Mr Vo would return on most mornings to take Jessica to school but on most of those occasions he did not enter the home. There is no evidence of any sexual relationship after November 2008. Indeed, Mr Vo deposed to the same ending in 2005 because of the deceased's breast cancer, he said. I accept that. There was no intermingling of money. The deceased had told her family that Mr Vo had left her. She made the same statement to Centrelink. Mr Vo was identified as her next of kin on some hospital forms up to January 2010. However I am satisfied that at least in the latter years Mrs Lai took the deceased to hospital. It seems forms which recorded Mr Vo as next of kin and other details were printed automatically from computer records. The address on those forms supports this. Admission forms in 2010 name Mrs Lai as next of kin. There were many occasions when Mr Vo was absent interstate or overseas. He was not present during the final illness until told that Amanda was about to die. There is evidence of sisters of the deceased who stayed at the home to look after her that Mr Vo was not at the home each evening. They were not cross examined.
Mr Vo did not perform any household duties at least after May 2008. He and Amanda had no shared life apart from care of Jessica. There is no suggestion or evidence to show that they presented to the public as a couple living together.
The requirements of s 21C of the Interpretation Act 1987 as to the meaning of de facto partner of a de facto relationship are not met. The relationship ended in November 2008. The claim to be an eligible person as one in a de facto relationship at death fails.
Claim under s 57(ii)(e) of the Act
There is no doubt that, apart from a short separation, Mr Vo and Amanda were members of the same household between 2003 and 2008. The question is whether or not Mr Vo was dependent upon the deceased during this time.
The plaintiff and the deceased each had their own income and means of support. Amanda did all the housework although Mr Vo might have cooked some meals. But dependency requires more than that. The plaintiff relied in particular on the fact that he was living with Amanda in her house and that therefore he was dependent upon her for accommodation.
Young children whose parents have died and who live with or are maintained by grandparents are obviously dependent on them. To be dependent usually connotes the requirement to receive, or to be in receipt of, some sort of financial support; whether or not emotional support alone is sufficient has not been finally determined. Obviously people in a de facto relationship would be thought to give each other emotional support but that, in my view, does not equate to dependency. In this case the only matter going to dependency is shelter. The question is whether the fact Amanda provided accommodation means that Mr Vo was dependent upon her. It is not suggested that Mr Vo did not have the means to house himself or the ability to earn money for that purpose. It was held in Ball v Newey (1988) 13 NSWLR 489 that actual dependence is the test and that ability to provide separate accommodation is irrelevant: at 492 per Samuels JA. This was referred to with apparent approval in Benney v Jones (1991) 23 NSWLR 559 at 565. In accordance with those decisions I find that the plaintiff was an eligible person under s 57(i)(e) of the Act. In any event I consider the persons in an ordinary de facto relationship would be dependent upon each other.
Were the Proceedings in Time?
The original Summons was filed on 1 November 2011 so that it would have been brought in time had it been a Summons for provision out of the estate under Chapter 3 of the Succession Act 2006 relating to family provision. By that Summons the plaintiff sought orders that the defendants: (a) compensate and pay to him equitable damages; (b) an order or declaration that the deceased held 50% of her estate on constructive trust for the plaintiff and that the defendants transfer 50% of the estate to him; (c) that the original probate of the estate of Amanda Van be set aside; (d) that the first defendant be removed as an executor and that a new board of trustees be appointed "to hold in trust and manage the residue 50% of the estate of Amanda Van for the benefit of Jessica Vo"; and (e) that the new board of trustees recover all assets in the estate and give Mrs Thi Hang Do $100,000 before any other distribution. The plaintiff's affidavit in support of the original Summons affirmed on 1 November 2011 might, if a very lenient view were taken of it, have had some relevance to some of the claims made in the Summons but certainly no relevance to a claim under for family provision.
The Summons was required for administrative purposes to state the type of claim which was being made. It set out on the front page seven headings taken from the documents available on the Court website dealing with types of claim and the preparation of documents. All the types set out in the Summons were under the general heading of Trusts and Succession and then set out as additional information the following: (a) trusts - vesting orders; (b) family provision/TFM; (c) wills and estates - validity of wills; (d) wills and estates - rectification of wills; (e) trusts - removal of trustee; (f) trust - appointment of new trustee/s; and (g) other. To some extent the plaintiff relies on this to say that the proceedings were commenced for family provision but in fact the relief claimed is quite contrary to that. Those types of claim are merely collected for statistical purposes and cannot control the relief claimed in the Summons.
On 3 April 2012 the plaintiff served a proposed Amended Summons deleting all relief then claimed and seeking an order for provision under s 59 of Succession Act. The defendants refused to consent to it being filed.
On 4 April 2012 the Registrar in Equity dismissed the plaintiff's application for leave to amend. On 4 May 2012 the plaintiff filed a Notice of Motion for review of the Registrar's decision. This Motion ultimately came before Associate Justice Hallen on 8 June 2012.
Hallen AsJ made an order (Order 1) by consent giving leave to the plaintiff to "file his Amended Summons dated 1 November 2011". However Order 2 of those Orders provided:
2. Order 1 is made without prejudice to the Plaintiff, if necessary, seeking an order that his claim in the Amended Summons back dates to 1 November 2011, alternatively that he be granted an extension of time to make such claim, and without prejudice to the Defendants contending that such claim does not backdate to 1 November 2011 and opposing the granting of an extension of time to the Plaintiff.
It is necessary to decide this matter as the defendants argue that the amended claim does not date back to 1 November 2011. It may be unfortunate in some ways that the review of the decision of the Registrar did not proceed. Had his decision been upheld then a new action could have been commenced seeking an extension of time as well as substantive relief for provision out of the estate. It would seem to have been thought that the order was made pursuant to s 65 of the Civil Procedure Act 2005 on the basis that the original Summons was filed within the limitation period and the amendment sought after the expiration of that period. However if that were the basis it would be necessary to decide whether the substituted cause of action "arises from the same (or substantially the same) facts as those giving rise to the existing cause of action and claim for relief set out in the originating process": s 65(2)(c). I do not consider this to be the case. As there is no pleading setting out a cause of action it is only the claim for relief which can be considered. I have set out that claim. It has nothing to do with a claim for provision out of the estate of the deceased. At best it is a claim for an entitlement in equity either through a proprietary interest or by the imposition of a constructive trust on one half of the assets of the estate. For the purposes of this finding I accept that the facts set out in the plaintiff's affidavit of 1 November 2011 can be considered. Most of that affidavit was rejected as irrelevant to the claim finally made but insofar as it is relevant to this particular question the facts set out in it are directed towards a claim for an order for a constructive trust. However I consider the fair order is to order the amendment take effect from its date. Even if s 65 does not apply, an order allowing the amendment could be made under s 64 with a term imposed that it take effect from its date. It is doubtful whether sufficient attention was given to this when the amended document was filed. I consider the proper result so as to prevent prejudice to the defendant but to be fair to the plaintiff is to order that the amended process take effect from its date of filing.
I explained to Mr Vo that if I determined the matter that way then he would need to file a Further Amended Summons seeking leave to proceed with his claim out of time. This amended document was filed on the third day of the hearing, 3 October 2013. As is usual with these matters, the application for extension of time and the substantive application were heard at the same time. It is therefore necessary to turn to the other evidence relevant to the plaintiff's claim for relief, as I have found that he is an eligible person under s 57(1)(e) of the Act.
Further Facts
The following facts are relevant when considering this claim:
(a) Jessica is the daughter of both the plaintiff and the deceased. She is in the care of the plaintiff with some rights of access now to Mrs Lai.
(b) Mr Vo prior to the death of Amanda maintained contact with Amanda and had reasonably close contact with Jessica, taking her to school, picking her up and, over the final two years at least, spending time at Northam Avenue before Jessica went to sleep. I am, however, not satisfied that he did this as regularly as he said.
(c) That Mr Vo, apart from buying some meals for Jessica, did not make any contributions to the household expenses from the date which he left in 2008 nor did he provide any sum of money for the maintenance of Jessica.
(d) That Mr Vo was not in any way the carer for Amanda when she needed care, particularly in the final six weeks of her life. He was not living in the home; he was not taking Amanda to appointments at the hospitals; he was not noted as her next of kin on the final hospital records; and he was away in Byron Bay and in Lismore in the few weeks before Amanda died. Sisters of the deceased arranged a roster among themselves to live at Northam Avenue and assist in caring for Amanda.
(e) That Amanda was very upset when the plaintiff left her. She said to her sister, Mrs Reed, that he "walked out on me when I needed him most".
(f) That Mr Vo made no substantial contribution to the acquisition of the assets of the deceased. Amanda purchased the house. Her work provided her superannuation benefits.
In addition to this it is relevant to consider the financial position of Mr Vo, although the evidence adduced by him makes this almost impossible. The defendants complain, perhaps too much, of the work involved and difficulties encountered in attempting to ascertain the assets of Mr Vo and still complain that no proper statement of these has been given.
The plaintiff says his only asset is an interest in a property in Victoria Avenue, Springvale, Victoria which, according to his evidence, this Court, in separate proceedings on 26 July 2010, ordered be transferred by the then registered proprietor, a Ms Gib, to him. The order is not in evidence.
A copy of the Statement of Claim in proceedings brought by Mr Vo in the Supreme Court of Victoria is in evidence. It pleads that, contrary to the orders of this Court, Ms Gib has transferred the property to another named defendant. The Victorian proceedings have now been referred to mediation. Whatever the outcome, the plaintiff's interest in the property or the proceeds of property would be subject to whatever amounts were owing on two registered mortgages at the date the transfer complained of took place. In an affidavit of 30 September 2013 the plaintiff says that his best outcome from the Victorian litigation would be obtaining $1,350,000; his worst outcome would be to have to pay $100,000 for costs and an acceptable outcome would be that he received $125,000.
The plaintiff says he has no income. He has never given any comprehensible account of his occupations and his financial affairs. There is no doubt he has been a director of numerous companies, usually formed for some language education purpose, most of which have been unsuccessful or did not commence and which have been deregistered. The plaintiff gives evidence of total liabilities of about $176,000 plus claims for monies due by him to his former legal representatives in these and other proceedings. There is documentary evidence to support these claims for legal expenses but no documentary evidence to support debts alleged to be due to the Commonwealth Bank of Australia in the sum of $21,000, the Department of Education for $35,000, the Law Society of New South Wales for $50,000 and two sums, each of $35,000, said to be due to some relatives. None of the liabilities were incurred for the benefit or part benefit of the deceased.
It is likely that amounts are due to the first three creditors but not in the round amounts claimed. Nobody appears to be pressing for payment. So far as the relatives are concerned, the evidence is that it is the Vietnamese custom for family members to help each other out and that the amounts which had been received would be repaid if it were possible to do so. The plaintiff in his own evidence and submissions says that he is hopeless with money. He appears to have been quite unsuccessful in most of his business endeavours but, until brought to an end, it seems that his legal and migration businesses must have provided an income to support him at least to some extent. After Amanda died he entered into a contract for the purchase of a property in Bankstown, paying a deposit of $25,000. He did not complete the contract as he did not have the funds and lost the deposit. The evidence was unclear but it seems likely that the property was purchased by a nephew who might have somehow been credited with the deposit sum. The statements of Amanda as to his unreliability in financial matters to which I will come were well founded.
There is still in existence a company named Shark Bay Pty Limited. Mr Vo is a shareholder of that company together with another man. Its purpose was to set up some sort of ecological environmental operation in the deserts of Western Australia. Substantial money seemed to have gone into the account of that company and out of it, some to accounts of Mr Vo and some to an account of Mr Vo in trust for Jessica. I could not understand his explanation for this but the monies have been paid out of those accounts and there is no suggestion that the monies paid into the trust account for Jessica were used for her benefit.
Mr Vo has made a number of trips to Vietnam since Amanda died. He has made trips to Western Australia and to Queensland. He has received money from relatives and business associates to enable him to travel. He has been able to rent a house at Alstonville and in fact enrolled Jessica at school there earlier this year. After that he moved to his sister's house at Bankstown. He is presently living at Northam Avenue, Bankstown pursuant to an order for interim provision to which I will have to return.
Position of Jessica and Reasons for Dispositions Under Will
I turn now to the position of Jessica. Mrs Lai in affidavit evidence, confirmed as to date in oral evidence, said the following statements were made to her by Amanda in October 2010. It was at that time that she and Amanda accepted she would die before Christmas. Paragraph 35 of the affidavit affirmed on 26 November 2012 is as follows:
5. Amanda told me:
(a) "I want you to look after her. To support her. To love her like your own child. Keep a close relationship with her. I want her to grow up to be a good person. Tung is a bad person. I want Jessica to live honestly and with integrity, not like him. I want her to know what is right and what is wrong."
(b) "I'm concerned that Jessica will waste the money if she gets it in her own hands when she is young. I've changed my Will so that Jessica will not get the money until she is old enough."
(c) "I want you to protect my estate for Jessica so that she will benefit when she grows up. I want Jessica to be able to buy a home."
(d) "I want there to be money for Jessica in case she really needs it such as for a medical bill."
(e) "If Jessica wants money you and Margaret have to assess whether it is reasonable or not. When she is 18 or 20 and when she has a driving licence and can drive a car, you should buy her the car that she wants. Buy a good car for her."
(f) "I want mum to live in the house until the day she dies. We have lived together since I was born until I die. Don't let her worry about money. My estate will pay for the house maintenance."
(g) "Don't give the money to Tung. He will spend it in 6 months."
In paragraph 7 of the same affidavit Mrs Lai says:
7. I do not want any part of the Estate to be paid to Mr Vo because:
(a) Amanda asked me to preserve her estate for Jessica's benefit.
(b) I am concerned that Mr Vo would squander the money for his own benefit and to fund his extravagant lifestyle and not for Jessica.
(c) I am concerned that he would use the money in his business dealings which Mr Vo states have been unsuccessful.
(d) Mr Vo has many creditors chasing him for payment due to his past business dealings.
Similar statements to those made to Mrs Lai were made by the deceased to Mrs Reed, a sister of the deceased and to Ms Thayer, a Lions Club member who assisted in providing transport of the deceased to Westmead Hospital.
There have been proceedings in the Federal Magistrates Court of Australia (now the Federal Circuit Court of Australia) between Mrs Lai and Mr Vo where Mrs Lai sought an order for access to, or that she have time with, Jessica. It is not necessary to go into this unfortunate litigation in any detail. Limited orders for Jessica to spend time with Mrs Lai and with her and with Jessica's grandmother Mrs Do are in force although Mrs Do has since died. There has been an appeal to the Family Court, in part successful; a further hearing in the Federal Circuit Court has not yet concluded. It seems that, in spite of the provisions as to guardianship in the will, Mr Vo seeks to prevent contact with Jessica's maternal relatives.
The second defendant in an affidavit affirmed on 3 September 2013 said in paragraph 5 that Amanda had said to her in January 2009:
5. In mid January 2009, my Deceased Aunt said to me:
(a) "Would you be my executor?"
(b) "Tung is not careful with managing money. I do not want him to manage the estate."
(c) "I want Ba Ngoai (my grandmother) to live in the house (referring to the property at 51 Northam Avenue Bankstown NSW 2200) (the "Bankstown Property")) for as long as she is alive."
(d) "I want Di Bai (referring to Mrs Lai, the Second Defendant) to be Jessica's guardian."
(e) "Tung should pay for Jessica's day to day living expenses. I want to keep my estate to the extent possible for Jessica to inherit when she is grown up. I will give you the discretion to use the estate in advance if you feel it is necessary for Jessica's benefit. She should have the best education possible. If she cannot go to a selective school then she should go to a private school. Buy her a car when she obtains her driver's licence if she needs one. I want Jessica to be able to go to university and you should give her money to do that."
The evidence of the defendants is that they are prepared to pay Jessica's school fees, health insurance, and a monthly sum to assist Mr Vo in caring for Jessica and to assist with maintenance and accommodation expenses. They intend to provide for Jessica's private school fees if she does not obtain entry to a selective high school and to pay whatever is required to enable her to attend university should she go there. They will also provide her with a car, probably when she reaches 18 years. In other words their evidence is that they intend to comply with the wishes of Amanda and I am satisfied that they will do so.
There has been unnecessary difficulty, caused on the most part by Mr Vo or his former solicitor, in starting payments to him. This has been caused largely by his failure to provide details of a bank account to the executrices to enable payments to be made. For some reason Mr Vo asked that payments be made to a trust account of his accountant Mr Tye and again there was some difficulty when an irrevocable authority was produced directing Mr Tye to make the payments to Mr McEncroe. Mr Tye would not do so as he said the payments were not for the purpose of the fees of Mr McEncroe but for the benefit of Jessica. The first payment was made on 30 August 2013. This happened partly as a result of consent orders made on 15 May 2013, presumably by way of interim provision under s 62 of the Succession Act under which the defendants agreed to pay to the plaintiff for maintenance of Jessica a weekly income up to hearing, calculated by reference to the income generated on a term deposit held by the estate, less 20%. In addition, the order provided that Jessica and the plaintiff could reside at Northam Avenue on condition the plaintiff paid $200 per week on entry into employment or commencing to earn an income. Other orders were made, including a right to the defendant to inspect the property. Inspection did take place and gave little evidence of occupation as a home.
I am satisfied that the defendants will act entirely properly for the benefit of Jessica in exercising their discretion to make advances of capital and income for her benefit from the residuary estate.
Extension of Time
The plaintiff seeks an order extending the time for the bringing of the proceedings up to the date upon which the Amended Summons was filed, 8 June 2012. Section 58(2) of the Act gives power to make such order "on sufficient cause being shown".
The matters usually considered on such an application are: (a) whether adequate reason or explanation for the delay is given; (b) whether the extension of time will prejudice the defendants or the administration of the estate; (c) whether there is any unconscionable conduct - in this case of the plaintiff; and (d) the strength of the case for relief. There are many cases to this effect and there is no point in setting them out.
On the facts here there was no unconscionable conduct. There is no prejudice to the defendants caused by the late commencement of the proceedings. So far as the strength of the case is concerned, it seems to me that when a claim for extension and a claim for a substantive order are heard at the same time then this is really only a factor to be taken into account if the claim is bound to fail.
It is necessary to consider whether an explanation has been given about the delay. First, it is necessary to say that the plaintiff endeavoured to file the Amended Summons towards the end of March 2011 so that the period of delay was only about five months. The plaintiff argued that he always intended to make whatever claim was available as it was apparent from the list of types of claim included on page 1 of the Summons. As I said, the claim for relief does not really support that but the fact is that the amendment sought could never have caught the defendants by surprise. That is particularly so as the original Summons was filed the day before the limitation period expired. The defendants' solicitors are very experienced in this type of claim and the date of commencement would have turned their minds to a family provision claim.
The plaintiff in evidence said that he had been advised by counsel that the Amended Summons would operate so as to commence on the date of the filing of the original Summons. I accept that evidence. It does not really explain the delay up to that date although it explains why no extension of time was sought then. As will be seen from the transcript, I gave the plaintiff an opportunity to give oral evidence as to the reasons for the delay. Although he is qualified as a solicitor it is clear he has no experience in succession law and little knowledge of litigation except perhaps insofar as migration law is concerned. His attempts to give some explanation appear at transcript pages 53 and 54. I will not set this out in detail. In summary the plaintiff says that he was in an emotional state, he was dealing with Court proceedings relating to Jessica, he was caring for Jessica, he was dispossessed and he repeats the first Summons was intended to be a family provision claim.
In cross-examination at transcript pages 59 and 60 the following appears:
Q. So by November 2011 you were well aware that you needed to file the application for family provision within 12 months of Amanda's death, weren't you?
A. I was never advised. I just told you I had a conference and I left that to Mr Butler. I was travelling. I was in grief. Jessica and I trying to forget everything. We don't even want to mention about the very very sickness, death, anything. We want to travel so that we just get out of the situation and left everything to the professional to deal with it. I didn't know what they did but they never advised me anything.
Q. So you're saying to the court, are you, that you were not aware of that despite the fact that you had a background as a solicitor of the court and you had spoken to at least two solicitors in the intervening 12 month period? Is that your evidence to the court?
A. I was not aware Succession Act. I never applied for Succession Act before. I was not aware of Succession Act and was not aware by when it has to be filed, by the eve of Amanda's death, until very very last minute that I did a research myself because at that time I didn't have money. I did a bit of research and then I knew that day I file it in just one day before the expiration date.
Q. And you made a decision not to seek family provision I suggest?
A. No. On the first page my intention was very clear, family provisions. I refer to court book volume 1, book 1, and the very first page of it I say succession, family provision, TFM. That was the intention and wills, estate, validity of the wills. Through this I tried to have a very broad basis so that any claim later because I knew that it was out of time. I didn't have proper legal advice what to do with it so I just put it in.
I consider an extension of time should be given. As I have said it was arguable that the provisions of s 65(4) of the Civil Procedure Act apply. The question then would arise whether or not an order should be made that the amendment operate as from its filing date which is the decision to which I have arrived. It is probably fair to say that while this plaintiff should be expected to have reasonable legal knowledge and know that if a claim is intended to be put forward under the family provision sections of the Succession Act then he ought to be able to find out the requirements for that to be done and in particular to make a claim under that Act rather than a claim for damages or some proprietary interest in property. However he did know a time limit was about to expire and he has not caught the defendants by surprise. It would, I think, be unjust to this plaintiff to prevent his bringing the action. For that reason an order for extension of time should be made.
Are there Factors which Warrant the Making of the Application under s 59(1)(b) of the Succession Act?
Although the wording of s 59(1)(b) differs from the wording in s 9(1) of the Family Provision Act 1982, perhaps to ensure that all evidence on the substantive claim is considered, it still remains necessary to give effect to the difference between eligible persons under paragraphs (a), (b) and (c) of s 57(1) of persons designated as eligible under paragraphs (d), (e) and (f) of s 57(1). The considerations in Re Fulop (1987) 8 NSWLR 679 continue to be applicable. Claimants in paragraphs (d), (e) and (f) need to show that they have "the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased": at 681D. Priestley JA agreed with this statement in Churton v Christian (1988) 13 NSWLR 241 at 252.
The question then is whether the plaintiff is such a person. In determining this the Court is probably speaking for reasonably minded members of the community in the same way as it is held to be in determining substantive applications: Permanent Trustee Company Limited v Fraser (1995) 36 NSWLR 24 at 46; Andrew v Andrew (2012) 81 NSWLR 656 at 661 per Allsop P and at 679 per Barrett JA.
This is not a claim by a former husband whose eligibility is separately identified in s 57(1)(d) of the Act. It is a claim by a person who was at a certain time partly dependent on the deceased and who was at some time a member of the same household as the deceased. On the facts it is a claim:
(a) by a former de facto spouse where that relationship ended 2 years before the death of the deceased and was ended by the plaintiff;
(b) who maintained contact with the deceased for the most part for the purpose of taking a part in the care of their daughter;
(c) who was sleeping away from the deceased;
(d) who provided no financial support to the deceased or their child (apart from occasional meals for the child) after the de facto relationship came to an end;
(e) who would be expected to have the care and custody of the child after the death of the mother;
(f) who is not a good financial manager;
(g) who has the qualifications and capacity to earn an income;
(h) in circumstances where the deceased has left her whole estate to and for the benefit of the child of the relationship.
I have come to the conclusion that the plaintiff is not such a person who would be regarded as a natural object of the testamentary bounty of the deceased and accordingly he does not satisfy the requirements of s 59(1)(b) of the Act and his claim fails. I accept that in making this determination relevant matters set out for consideration in s 60(2) of the Act may be considered at that stage in particular paragraphs (b), (d), (j) and (k). I should say that I do consider that had the deceased left her estate for the benefit of members of her family rather than for the benefit of the child of the relationship then proper minded members of the community might think that it view of the obligation of the father to provide for the child then he was a natural object of bounty, but that is not the case here.
It follows that the requirements of s 59(1)(b) of the Act are not met and the claim should be dismissed.
Considerations if s 59(1)(b) of the Act is Satisfied
I proceed further in case it should be held my decision on factors warranting is wrong.
Were it not for the position of the plaintiff as father of the child of the relationship I would not consider he had any legitimate claim on the estate of the deceased or, in another expression, that the deceased failed in a moral obligation to make proper provision for him.
The plaintiff put forward his need as a need for accommodation for himself and Jessica, a sum of money to enable him to pay his debts, and some fund to give him time to re-establish himself. He seeks an order under which he would have the right to continue to occupy Northam Avenue at least until Jessica leaves school. In fact, in proceedings in the Family Court or the Federal Circuit Court he still appears to be maintaining that he has some interest in the property.
Some of the claimed debts arose through breakdown of his previous businesses. None were brought about by the deceased. It is difficult to see why, in a case where a de facto relationship has ended two years before death, provision should be made to enable these creditors to be paid.
The fact which bears most heavily on the claim is the provision made for Jessica and the reasons no provision was made for the plaintiff. I consider the reasons cogent and reasonable. It is clear that the deceased considered the future wellbeing of Jessica of great concern to her. She was justified in this. She was justified in considering that the plaintiff was not able to manage money. The executors have given evidence of their intentions as to advances for the maintenance, education and advancement of Jessica and the funds which would be needed for that purpose. Unfortunately there is conflict between Mrs Lai and the plaintiff as to the time Jessica should spend with her which has resulted in costly family law proceedings. It was not, however, suggested that the conflict bore in any way upon the future intentions of the executors so far as providing for Jessica was concerned.
The executors are prepared to advance moneys for the education, medical and like expenses for Jessica. Ms Lu has set out likely fees for private school education if that is thought to be necessary and other amounts which she thinks will need to be provided. In an affidavit affirmed on 3 September 2013 she sets out her views as to this and as to the funds required to carry out the wishes of the deceased so far as Jessica is concerned. The effect of this is that unless Northam Avenue is sold or rented for a commercial rent the funds are likely to be insufficient. On the other hand if the property is sold or if it is rented out for its proper commercial value which is said to be about $800 per week then there would be sufficient funds available to provide a sum of about $250 per week towards maintenance of Jessica and about $200 per week towards rental expenses. In other words the executors consider that Mr Vo should make some contribution himself towards the maintenance and accommodation of his daughter. They have no confidence that if some right of residence were given to the plaintiff in Northam Avenue that it would be properly maintained, as Mr Vo has done little if anything for its maintenance up to the present time.
I do not think it necessary or desirable to deal separately with each of the matters enumerated in s 60(2) of the Act. Insofar as they are relevant I have set out the facts which have been the subject of consideration.
In some ways what the executors intend may be thought to be irrelevant but nevertheless the claim and need of Mr Vo must be considered in light of future expenses which he would normally have to meet for Jessica as his child. As the whole purpose of the will of the deceased was to ensure the future wellbeing of Jessica I conclude that this was a proper intent for her to have and I consider that the plaintiff has no legitimate claim for provision.
Costs
Sections 98 and 99(1) of the Civil Procedure Act 2005 and r 42.1 of the Uniform Civil Procedure Rules 2005 relate to costs. Costs would follow the event unless it appears some other order should be made which would include an order for the costs of either or both parties be paid out of the estate. I would not make an order that the plaintiff's costs be paid out of the estate. I am prepared to hear argument on costs. At present my view is that the costs of the defendants should be paid out of the estate and not be ordered to be paid by the plaintiff.
Orders
I make the following orders:
1. Pursuant to section 65 of the Civil Procedure Act 2005, order that the claim in the Amended Summons filed on 8 June 2012 date from that date.
2. Pursuant to section 58 of the Succession Act 2006, grant the plaintiff an extension of time up to the filing of the Amended Summons on 3 October 2013 to make a claim under Chapter 3 of the Succession Act.
3. Order that the Amended Summons filed on 3 October 2013 be dismissed.
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Decision last updated: 08 November 2013
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