EGGLER v MITCHELMORE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, HANDLEY and SHELLER JJA 30 September 1998 [1998] NSWCA 73 Priestley, Handley and Sheller JJA A question has arisen in these proceedings concerning the effect of orders of the court made upon a summons which applied for relief under the Family Provision Act 1982. The proceedings concerned the estate of Mrs D M Cornwell who died in 1988. She left a will which was subsequently admitted to probate. Cl3 and cl4 of the will disposed of her estate. They were as follows: "3. I GIVE all my jewellery clothing and other personal effects to my daughter NORMA MAVIS EGGLER. 4. AS TO the rest and residue of my estate to my Executor UPON TRUST as follows:- (a) One half of such rest and residue to be divided equally between the following named as survive me:- my daughter NORMA MAVIS EGGLER and my grandchildren MARK EGGLER, PETER EGGLER and ELIZA EGGLER such grandchildren to take upon attaining their majority. (b) As to the remaining one-half of such rest and residue to be distributed as follows:- (i) I give to my niece MAVIS CAMPBELL of 38 Burden Street, Springvale the sum of Five thousand dollars ($5,000.00) and if she predeceases me the gift of Five thousand dollars ($5,000.00) shall be divided equally between such of the children of MAVIS CAMPBELL as are alive as at the date of my death. (ii) I give to my friend JULIANNA PIKE of 15 Edgecliff Road, Earlwood the sum of Five thousand dollars ($5,000.00) and if she predeceases me the gift of Five thousand dollars ($5,000.00) shall be divided equally between such of the children of JULIANNA PIKE as are alive as at the date of my death. (iii) The remainder of the rest and residue after the payment of the aforesaid gifts shall be divided equally between the following named charities:- (a) THE ROYAL NSW INSTITUTE FOR DEAF AND BLIND CHILDREN of 361-365 North Road, North Rocks; (b) THE MULTIPLE SCLEROSIS SOCIETY OF NEW SOUTH WALES: (c) THE ROYAL BLIND SOCIETY of 4 Mitchell Street, Enfield; (d) INTELLECTUALLY AND PHYSICALLY HANDICAPPED CHILDREN'S ASSOCIATION of 88 Gloucester Road, Hurstville; (e) THE RESEARCH FUND OF FOUNDATION 41 of 365 Crown Street, Surry Hills (a Company Ltd by guarantee)." The plaintiff in the summons seeking orders under the Family Provision Act was the testatrix's daughter Mrs Eggler. At first instance the summons was heard by Master Windeyer. He made orders the general effect of which was that Mrs Eggler was to receive either $80,000 or the interest in residue she would have received under the will but for the court's orders, whichever was the greater. 2 UNREPORTED JUDGMENTS Mrs Eggler appealed to this court (as presently constituted). The appeal was upheld. The court decided that Master Windeyer's orders should be varied by increasing the alternative sum from $80,000 to $250,000. This variation was effected by the entry of an order of this court as follows: "The order of the Court below made on 18 July 1990 be varied as follows: a. In para(a) of O1 and in O2 the figure '$80,000' be deleted and the figure '$250,000' be substituted. b. In O2 the date '7 September 1990'be deleted and the date '25 November 1992' be substituted." After the ordered substitutions are made the final orders upon the summons read as follows: "1. That in addition to the bequest of jewellery, clothing and personal effects given to her under the will of Dulcie Mary Cornwell deceased but in lieu of her share in residue in the said estate the plaintiff receive whichever is the greater of: (a) the sum of $250,000; plus any interest payable pursuant to O2; and (b) the interest she would receive in residue under the will were it not for this order. 2. Interest shall be calculated on the said sum of $250,000 from 25 November 1992 at the rates provided for interest on judgments pursuant to s95 of the Supreme Court Act. 3. The burden (if any) of these orders shall be borne equally by the five charities benefiting under the will of the deceased. 4. Costs of the plaintiff on the common fund basis and the defendant on the trustee basis be paid out of the estate." The amount which in the course of administration of the estate which Mrs Eggler would have received in residue under the will were it not for the court's order was less than $250,000. The question which the executor then had to consider was whether the burden of the court's orders to be borne equally by the five charities was the whole of the amount which had become payable under Ol(a) of the court or the difference between that amount and the amount Mrs Eggler would have received in residue under the will were it not for the court's order. The executor, upon advice, took the former view, but upon that being communicated to the charities, one of the charities, the Royal Blind Society of New South Wales (the Society) argued that the latter was the proper interpretation. The executor then filed a notice of motion in the appeal seeking directions as to the effect to be given to this court's orders of 1992 and also asking that provision be made for the costs of the proceedings. The court directed that written submissions be filed addressed to the three judges who heard the appeal in 1992 dealing both with what was the proper procedure for raising the question which the executor wished to be answered and also asking for written submissions on the substantive question. The court wished to be put in the position to decide the various questions on the written submissions alone unless of its own motion it sought further assistance. Submissions were then filed on behalf of the executor and also by the Society. The Society's submission acknowledged that it was not a party to the proceedings. The submission continued that it would be appropriate for the court to have a contradictor to put a view contrary to that of the executor. It was submitted that the court was entitled to grant leave to the Society to make submissions as amicus curiae. URJ EGGLER v MITCHELMORE (Priestley, Handley and Sheller JJA) 3 No objection was taken by the executor to the Society's application to become an amicus curiae. In the circumstances the court thinks the application was appropriate but that the court should go further and order that the Society be added as a party nunc pro tunc for the making of the submissions which were put before the court: SCR Pt8 r8(1)(b). The submissions for the executor and the Society both indicated they were content for the court to deal with the matter on the written submissions. On the procedural question the executor submitted that the Court of Appeal had inherent power to answer the question. For the charities it was submitted that any ambiguity could be corrected under the "slip rule". Dealing first with the substantive matter: the court is of the view that the answer is relatively clear. In order to see whether Mrs Eggler was to receive either $250,000 or, if it were greater, the interest she would have received in residue under the will were it not for the court's orders, that figure for that latter interest must be ascertained. Should it be less, then Mrs Eggler was to receive as a result of the court order an amount greater than she would otherwise have received, that greater amount being the difference between the lesser amount she would have received had no court order been made, and $250,000. Thus, it seems to us that the burden of the court's order is the difference between the amount Mrs Eggler would have received in residue under the will, were it not for the court's order, and $250,000. It is that difference which is to be borne equally by the five charities. The interpretation put forward by the executor would have the result that the beneficiaries under cl4(a) of the will, other than Mrs Eggler, would receive a greater share of the estate than they would have if the court had not made the orders under the Family Provision Act. In the absence of an application by those beneficiaries the court could not make orders having that result. Further, we see nothing in the reasons, either of Master Windeyer, or of this court given in 1992, to suggest that any such result was ever contemplated; and again, perhaps more importantly, we see no sign in the will itself and the court's orders, when read together, of words which bring about such a result. Returning to procedure, we think it would have been more regular practice for the executor to have brought his application before a single judge, pursuant to SCR Pt68. The case does not appear to us to be one for the slip rule; rather, it seems to us to be one of construction, and what, with respect to those who have thought otherwise, seems to us to be a relatively obvious matter of construction. However, we are of the view that we undoubtedly have jurisdiction to state that of the two views principally put forward the one that we have briefly elaborated above, advanced by the Society, is correct. Since the matter is before the court and since a delay has occurred, which is no fault of the parties and which the court regrets, we think we should, on this occasion, exercise jurisdiction, and make the following orders and declaration: 1. Order that the Society be added as a party; 2. declare (i) that the burden of the orders made by the court is the difference between the interest Mrs Eggler would have received in residue under the will were it not for the court's orders and the sum of $250,000; and (ii) that that burden is to be borne equally by the five charities benefiting under the will; and 3. order that the costs of the executor, on the trustee basis, and of the Society, on the common fund basis, be paid out of the estate. 4 UNREPORTED JUDGMENTS 1. Order that the Society be added as a party; 2. declare (i) that the burden of the orders made by the court is the difference between the interest Mrs Eggler would have received in residue under 5 the will were it not for the court's orders and the sum of $250,000; and (ii) that that burden is to be borne equally by the five charities benefiting under the will; and 3. Order that the costs of the executor, on the trustee basis, and of the Society, on the common fund basis, be paid out of the estate.