Ward v Shah - [2008] NTSC 43

Ward & Anor v Shah [2008] NTSC 43

PARTIES: WARD, MICHAEL JAMES
and
WARD, JENNY ESTHER
v
SHAH, ELIJAH
TITLE OF COURT: SUPREME COURT OF THE NORTHERN
TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN
TERRITORY exercising Territory jurisdiction
FILE NO: 12/08 (20803363)
DELIVERED: 27 October 2008
HEARING DATES: 5 September 2008
JUDGMENT OF: THOMAS J
CATCHWORDS:
REPRESENTATION:
Counsel:

Plaintiffs: V Farmer
Defendant: Self Represented
Solicitors:

Plaintiffs: Withnalls
Respondent: Self Represented

Judgment category classification: C
Judgment ID Number: tho2008
Number of pages: 30
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Ward & Anor v Shah [2008] NTSC 43

No. 12/08 (20803363)

BETWEEN:
WARD, MICHAEL JAMES
First Plaintiff

WARD, JENNY ESTHER
Second Plaintiff

AND:
SHAH, ELIJAH
Respondent

CORAM: THOMAS J
REASONS FOR JUDGMENT
(Delivered 27 October 2008)

This is a claim on Amended Originating Motion dated 1 February 2008
seeking orders that the administration of the estate of Kimberley Michaela Ward by the defendant be revoked and that administration of the estate of
the deceased be granted to the first and second plaintiff.
The plaintiffs also seek a declaration that they are entitled to receive the

entirety of the deceased’s estate in accordance with Part 4 of Schedule 6 of
the Administration and Probate Act and a declaration that the defendant is
not a person entitled to take an interest in the estate of the deceased.

On 23 November 2007, Letters of Administration for the estate of the
deceased, Kimberley Michaela Ward, of 2/18 Gardens Hill Crescent, The
Gardens in the Northern Territory of Australia were granted to Elijah
Hussain Shah of 13 Craig Crescent, Coconut Grove in the Northern Territory

of Australia. The deceased was a customer service officer, who died
intestate on 18 November 2004 and who had, at the time of death, a personal
estate within the jurisdiction sworn not to exceed in total value the sum of $65,000.00. The Letters of Administration were granted to Mr Shah as the
defacto spouse of the deceased, he having been first sworn that he would

well and truly collect and administer the estate of the deceased according to
the law.

The essential issue on the hearing of this claim was the assertion by the
plaintiffs that the defendant was not the defacto spouse of the deceased and

accordingly was not entitled to the grant of the Letters of Administration.
The plaintiffs are the parents of the deceased and assert that Letters of
Administration should be granted to them.

The only asset in the estate was an amount of $64,158 superannuation. This

amount of superannuation was held by an organisation known as HostPlus
who were the trustee of the death benefit. The plaintiffs had also made
representations to HostPlus concerning their interest in the deceased estate.

On 13 March 2007, there was a determination made by the trustee of the
death benefit to pay the money to the legal representative of the deceased
upon sighting Letters of Administration.
The Court file relating to the grant of Letters…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ward v Shah

Details

AGLC: Ward v Shah [2008] NTSC 43
Case: [2008] NTSC 43
Decision Date: 27/10/2008

CaseChat Overview and Summary

In the case of Ward v Shah, the plaintiffs, Ward and Jenny Ward, contested the defendant's claim to Letters of Administration for the estate of the deceased, Kimberley Ward. The plaintiffs argued that the defendant was not the deceased's defacto spouse and therefore had no legal entitlement to administer the estate. The dispute was heard in the Supreme Court of the Northern Territory.

The central legal issues before the court were whether the defendant, Shah, was indeed the defacto spouse of the deceased, Kimberley Ward, and if so, whether this status entitled him to the grant of Letters of Administration. The plaintiffs contended that the relationship did not meet the legal criteria for a defacto partnership, specifically that the couple had not been living together in a shared household for a sufficient period before the deceased's death.

The court examined the evidence presented by both parties, including witness statements and affidavits. The plaintiffs' evidence highlighted that Kimberley had moved out of the shared residence in September 2004 and had been living with her parents for the majority of the time leading up to her death. The court also considered that the deceased had removed the defendant from her private medical health fund and had not listed the funeral expenses in the grant of Letters of Administration to the defendant. The court concluded that the evidence did not sufficiently establish a defacto relationship between the defendant and the deceased at the time of her death, and thus, the defendant was not entitled to the Letters of Administration.

The court ordered that the Letters of Administration granted to the defendant be revoked and that Letters of Administration be issued to the plaintiffs, Ward and Jenny Ward, as the lawful administrators of the deceased's estate.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The essence of the plaintiffs’ claim is that the defendant was not in law the defacto spouse of the deceased and had no entitlement to the grant of Letters of Administration. Plaintiffs’ Evidence I have confined my references to the evidence to the issue between the parties as to the status of the defendant with respect to Kimberley Ward. In The first plaintiff gave evidence he had not personally been served with the application for Letters of Administration filed by the defendant. He gave evidence that his daughter (the deceased) resided with the defendant from June 2004 till early September 2004. The first plaintiff stated that in September 2004, the deceased asked to come home and then resided with her parents till her departure for Perth, Western Australia on 6 November 2004. Mr Ward gave evidence that during this time she spent most nights at her parents home. She brought all her personal possessions with her but left behind furniture that her parents had supplied when she resided with the defendant at Gardens Hill Crescent. In cross examination the first plaintiff gave evidence that in September 2004 The second plaintiff, Jenny Ward, gave evidence. An affidavit sworn by her on 1 February 2008 is Exhibit P5. In this affidavit, the second plaintiff deposes to the fact the deceased met the defendant in late July 2003 and formed a romantic involvement with him at the end of 2003. At this time the deceased commenced living with the defendant at 13 Craig Crescent, Coconut Grove. After that time, there were short periods when she did not The second plaintiff denied that the defendant was at any time the defacto removal of the defendant from Kimberley’s private medical health fund. dated 6 November 2007 and her agreement with Grunt Labour Services. The Annexure “D” to the affidavit of the second plaintiff is a copy of the determination made by HostPlus administration dated 14 September 2006 to pay the full superannuation to the defendant as defacto spouse. The second plaintiff stated that she gave instructions to her solicitor, Vanessa Farmer, to appeal this determination. Annexure “E” is copy of a letter from HostPlus administration stating that On 18 July 2007, a notice of Intended Application for Letters of Administration by the plaintiffs was published in the Northern Territory News (annexure “F”) having been lodged by solicitors for the plaintiffs on the plaintiffs’ instructions. On 11 September 2007, the second plaintiff accepted service of a number of documents which were handed to her by the receptionist at the office of David C. Story. These were the documents already enumerated. Mrs Ward, the second plaintiff gave evidence that these documents appeared Also annexed to the affidavit of the second plaintiff was a copy of a tax invoice for the funeral expenses addressed to Mrs Ward. The plaintiff paid this account. No reimbursement had been received for these expenses. The funeral expenses were not listed as a liability in the grant of Letters of Administration to the defendant. The amount of the funeral expenses was $7,696.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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PARTIES:	WARD, MICHAEL JAMES
and
WARD, JENNY ESTHER
v
SHAH, ELIJAH
TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction
FILE NO:	12/08 (20803363)
DELIVERED:	27 October 2008
HEARING DATES:	5 September 2008
JUDGMENT OF:	THOMAS J
CATCHWORDS:
REPRESENTATION:
Counsel:
Plaintiffs:	V Farmer
Defendant:	Self Represented

Plaintiffs:	Withnalls
Respondent:	Self Represented
Judgment category classification:	C
Judgment ID Number:	tho2008
Number of pages:	30
IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN