Weatherstone v Weatherstone

[2010] NSWSC 1371

CITATION:	Weatherstone v Weatherstone [2010] NSWSC 1371
HEARING DATE(S):	22 November 2010
JUDGMENT OF:	Ball J
EX TEMPORE JUDGMENT DATE:	22 November 2010
DECISION:	1. The Defendant is not to further encumber the property at Cronulla. 2. Pursuant to UCPR 25.3, the Defendant is to obtain as part of the settlement of any sale of the property a bank cheque for $1,000,000 (one million dollars) in favour of the Supreme Court of New South Wales and to lodge that cheque with the Registry forthwith to be held pending further order of the court. 3. Order that the defendant not be permitted to file further evidence without the leave of the court. 4. Direct that the plaintiff file any evidence in reply on or before 6 December 2010. 5. The defendant pay the plaintiff’s costs of the notice of motion filed on 22 November 2010.
CATCHWORDS:	PROCEDURE – civil – interlocutory issues – order that defendant not further encumber property – order that in event that property is sold proceeds be paid into court – order that defendant not be permitted to file further evidence without leave of the court
LEGISLATION CITED:	Uniform Civil Procedure Rules
CATEGORY:	Procedural and other rulings
PARTIES:	Tony Peter Weatherstone (Plaintiff) David Bruce Weatherstone (Defendant)
FILE NUMBER(S):	SC 2010/56643
COUNSEL:	C J Dibb (Plaintiff) No Appearance (Defendant)
SOLICITORS:	Darryl Barlow and Company (Plaintiff) Leader Law Group (Defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BALL J

22 NOVEMBER 2010

2010/56643 TONY PETER WEATHERSTONE v DAVID BRUCE WEATHERSTONE

EX TEMPORE JUDGMENT

1 This matter concerns a family provision claim. The deceased was survived by three sons: the plaintiff, the defendant and a third son. By her will she left her estate to the defendant on trust to be distributed between the three sons in such proportions as the defendant thought fit.

2 The plaintiff has made an application that provision be made for him out of the estate.

3 It appears that the deceased at the time of her death, or at least sometime before her death, had two principal assets. One was a house at Cronulla. The other was shares in a company registered in Belize known as Golden Paradise Corporation, although there is some doubt about whether the deceased owned those shares at the time of her death or whether by that time she had given them to the defendant. The house at Cronulla is estimated to be worth approximately $3 million. Despite that, the declared value of the deceased's estate is $28,000. That is because shortly before the deceased died she executed an acknowledgement of debt in the amount of $4 million in favour of the defendant.

4 The plaintiff challenges the validity of that acknowledgement of debt or, alternatively, says that the acknowledgement of debt forms part of the notional estate of the deceased. In addition he seeks a declaration that the shares in Golden Paradise Corporation are part of the estate of the deceased or form part of the notional estate of the deceased.

5 On the evidence before me the house at Cronulla has been put up for sale. The plaintiff expresses concern that if it is sold the defendant may dissipate the sale proceeds in a manner that makes it impossible for the plaintiff to recover that amount in the event he is successful in the proceedings.

6 The plaintiff points to a number of reasons for that concern. One set of reasons concerns the fact that the defendant has persistently failed to comply with orders of the court relating to the preparation of this matter for hearing and, most significantly, has failed to comply with an order of the court which required him to attend personally today. In fact, there was no attendance by the defendant or by a legal representative on his behalf. The plaintiff also points to other evidence which suggests that the defendant may dissipate the assets of the estate. In those circumstances the plaintiff asks for an order pursuant to UCPR r 25.3 that the defendant not further encumber the property at Cronulla and, in addition, in the event that the property is sold, that an amount of $1 million from the sale proceeds be paid into court.

7 I accept that, for the reasons the plaintiff gives, there is a significant risk that the defendant will dissipate the sale proceeds of the house at Cronulla if it is sold. In those circumstances I think that it is appropriate that I make the orders sought by the plaintiff. Consequently I make orders in terms of paragraphs 1 and 2 of the notice of motion filed today.

8 The plaintiff also seeks an order that the defendant not be permitted to file further evidence in these proceedings without leave of the court. The defendant has been given a number of opportunities in which to file evidence. He has filed some evidence but otherwise has failed to comply with the orders of the court and, in particular, as I have said, the order requiring him to attend today. In those circumstances, I think it is appropriate to make an order that the defendant not be permitted to file further evidence without the leave of the court.

9 I direct the plaintiff file any evidence in reply on or before 6 December 2010. I list the matter before the registrar for further directions on Wednesday 8 December at 9 am.

10 I see no reason why the plaintiff should not have his costs of today. I make that order.

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