Supreme Court New South Wales Medium Neutral Citation: Bayside Council v Estate of Goodman (No 2) [2021] NSWSC 654 Hearing dates: 8 June 2021 Date of orders: 8 June 2021 Decision date: 08 June 2021 Jurisdiction: Equity Before: Lindsay J Decision: (1) Judgment entered for the plaintiff in the sum of $3,744,557.64, plus costs, against the unrepresented estate of the late Gary William Goodman (the first defendant). (2) Directions given for service of notice of the judgment on persons who may be interested in the estate of Mr Goodman, reserving to them liberty to apply for an order that the judgment be set aside or varied. (3) Reservation of questions relating to a grant of administration of the estate of Mr Goodman and the payment out of court of the sum of $184,955.06 held in court consequent upon a sale of land ostensibly owned by Mr Goodman. Catchwords: CIVIL PROCEDURE – Parties – Representative order – Judgment entered for plaintiff against unrepresented estate of deceased with liberty reserved for any party interested in the estate to apply for judgment to be set aside or varied CIVIL PROCEDURE – Parties – Representative order – Judgment entered against deceased estate in circumstances where persons interested in the estate failed to obtain a formal grant of representation or consent to a representative order Legislation Cited: Probate and Administration Act 1898 NSW Uniform Civil Procedure Rules 2005 NSW Cases Cited: Bayside Council v Estate of Goodman [2019] NSWSC 530 Category: Principal judgment Parties: Plaintiff: Bayside Council First Defendant: The Estate of the late Gary William Goodman Representation: Counsel: Plaintiff: Y Shariff SC and J Alderson First Defendant: No appearance Solicitors: Plaintiff: Sparke Helmore Lawyers First Defendant: No appearance File Number(s): 2015/00377346 Judgment – Ex tempore 1. By a further amended statement of claim filed on 15 May 2020 (in proceedings commenced by a summons filed on 23 December 2015) the plaintiff, a local government council, sued several defendants for compensation arising out of corrupt conduct on the part of the Council's Chief Financial Officer, Gary William Goodman. 2. The summons was served on Mr Goodman on 24 December 2015. 3. He died on 21 November 2017. 4. That he died leaving property in New South Wales is, prima facie, established by an affidavit sworn by him on 1 February 2016 in these proceedings. The affidavit discloses, inter alia, that he claimed to own land at Hinchinbrook, an interest in which may also be claimed by one Marny Baccam. 5. Following Mr Goodman's death, the Hinchinbrook land was sold by the Commonwealth Bank of Australia, as a mortgagee, with net proceeds of the sale (in the sum of $184,955.06) paid into Court on 15 October 2019, to abide orders of the Court. 6. That money remains in Court, together with such, if any, interest as may have accrued on it. 7. Mr Goodman is not known to have left a will. Persons who may have an interest in his estate have been identified by reference to personal relationships he is known to have had during his lifetime. 8. No person has applied for a grant of probate or administration of Mr Goodman's deceased estate. 9. For reasons published by Robb J as Bayside Council v Estate of Goodman [2019] NSWSC 530 on 13 May 2019, on 30 July 2019 his Honour made an order (under rule 7.10(2)(a) of the Uniform Civil Procedure Rules 2005 NSW) that proceedings against the estate of Mr Goodman (styled "the first defendant") continue in the absence of a representative of "the first defendant". 10. In making that order, Robb J satisfied himself that persons who had, or may have had, an interest in Mr Goodman's estate (namely, Elizabeth Goodman, Diane Holden, Suman Mishra and Marny Baccam) had been given notice of these proceedings and had been invited to apply for a grant of administration of the estate. 11. Having regard to the provisions of s 61 of the Probate and Administration Act 1898 NSW (which provides that, pending a grant of probate or administration in a deceased estate, the real and personal estate of the deceased person is deemed to be vested in the NSW Trustee), similar notice was given to the NSW Trustee. 12. None of the persons given notice of the proceedings, or invited to apply for a grant of administration, subsequently applied for a grant or for orders for representation of the estate in the proceedings. 13. The plaintiff's proceedings having been determined as against all defendants other than the estate of Mr Goodman, the plaintiff has today proceeded to an ex parte hearing against the estate. 14. Senior counsel for the plaintiff has taken the Court through evidence in support of a judgment against the estate of Mr Goodman in the sum of $3,744,557.64. 15. In the absence of any appearance on behalf of the estate of Mr Goodman, I have today formally made the following notations and orders: 1. NOTE the reasons for judgment published by Robb J as Bayside Council v Estate of Goodman [2019] NSWSC 530 (13 May 2019). 2. NOTE that, pursuant to those reasons for judgment, on 30 July 2019 Robb J (by order 1 of orders made on that date) ordered that pursuant to rule 7.10(2)(a) of the Uniform Civil Procedure Rules 2005 NSW proceedings against the first defendant (the estate of the late Gary William Goodman, who died on 21 November 2017) continue in the absence of a representative of the first defendant. 3. NOTE the further amended statement of claim filed on 15 May 2020 as against the first defendant. 4. NOTE the following evidence relied upon by the plaintiff against the first defendant: 1. the several affidavits identified in MFI P2, together with the exhibits to those affidavits; 2. the affidavit of Fausto Sut sworn 8 June 2021; 3. the affidavit of Roland Marchmont Hassall sworn 28 June 2019; 4. the affidavit of Roland Marchmont Hassall affirmed 29 July 2019; 5. the affidavit Gary William Goodman sworn 1 February 2016 (Exhibit P3); 6. the mini bundles of documents (comprising six volumes) respectively marked as follows: 1. Truck Service Centre (volume 1); 2. CND AU (volume 2); 3. Emu Alarms Pty Ltd (volume 3); 4. Performance Service Centre (volume 4); 5. Other Payment and Expense Claims (Volume one of two) (volume 5); and 6. Other Payment and Expense Claims (Volume two of two) (volume 6). 1. ORDER that judgment be entered for the plaintiff against the first defendant (the estate of the late Gary William Goodman) in the sum of $3,744,557.64 plus costs. 2. RESERVE to any person who is, or claims to be, interested in the estate of the late Gary William Goodman liberty to apply for that judgment to be set aside or varied. 3. ORDER that any application made pursuant to that reservation of liberty to apply be made by way of a notice of motion filed (and served on the plaintiff) no later than 31 August 2021, any such notice of motion to be made returnable before the Court at 9:00am on 14 September 2021. 4. ORDER, subject to further order, that any person (other than the plaintiff) who seeks an order that funds presently held in court in these proceedings be paid out to that person file (and serve on the plaintiff) no later than 31 August 2021 a notice of motion (seeking an order for payment out) returnable before the Court on 9:00am on 14 September 2021. 5. ORDER, subject to further order, that the plaintiff, no later than 29 June 2021, serve a copy of these orders on each of the following persons (against the possibility that they have, or may claim to have, an interest in the estate of the late Gary William Goodman): 1. Elizabeth Goodman; 2. Diane Holden; 3. Suman Mishra; and 4. Marny Baccam. 1. ORDER that the plaintiff file no later than 13 September 2021 an affidavit deposing to service of a copy of these orders on those persons. 2. ORDER that the proceeding be listed before Lindsay J at 9:00am on 14 September 2021 for such, if any, further orders as might be deemed necessary or appropriate. 3. RESERVE to the plaintiff liberty to apply (in these or such other proceedings as may be appropriate) for: 1. orders for substituted service of a copy of these orders on one or more of the persons identified in order 9 of these orders; 2. an order that the plaintiff (by a syndic) be granted administration of the estate of the late Gary William Goodman; and 3. an order that funds presently held in court, to abide the orders of the Court, in these proceedings (namely, the sum $184,955.06 paid into court on 15 October 2019) be paid out to the plaintiff. 1. ORDER that the court books and the mini bundles of documents be returned to the solicitor for the plaintiff, to be retained by that solicitor pending the final determination of any notice of motion filed pursuant to order 7 of these orders. 2. ORDER that these orders be entered forthwith. 1. According to these notations and orders, the proceedings will return before the Court on 14 September 2021, upon which date consideration may be given to the questions identified in paragraphs 11(b) and (c) of the orders. 2. As a precaution, but not necessarily anticipating an appearance by the NSW Trustee, the plaintiff proposes to serve a copy of the Court's orders on the NSW Trustee. 3. Upon a consideration of the plaintiff's claim against the estate of Mr Goodman, the Court had the benefit of detailed written submissions (MFI P1), prepared by counsel for the plaintiff, which justify an entry of judgment against the estate as ordered. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 June 2021