Wintour v Bonney [1999] NSWSC 189

New South Wales Supreme Court CITATION : Wintour v Bonney [1999] NSWSC 189 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 3001/97 HEARING DATE(S) : 11 March 1999 JUDGMENT DATE : 11 March 1999

PARTIES : John Neville Wintour (P) Herbert Bonney (D) JUDGMENT OF : Master McLaughlin

COUNSEL : Mr. J. M. Hennessy (D) SOLICITORS : Ian G. Dun (P) Messrs. Hynes & McCormack (D) CATCHWORDS : ACTS CITED : Family Provision Act 1982 DECISION : See Paragraphs 44 and 45

- 20 - SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER McLAUGHLIN

Thursday, 11 March 1999

3001/97 JOHN NEVILLE WINTOUR & ORS v HERBERT BONNEY

4322/97 LUANNA WINTOUR & ANOR v HERBERT BONNEY

1 MASTER: There are before me two sets of proceedings, each under the Family Provision Act 1982. 2 By summons 3001 of 1997 John Neville Wintour seeks, in effect, an order for provision for his maintenance, education and advancement in life out of the estate of his late father Neville Henry Wintour (to whom I shall refer as "the deceased"). 3 By summons 4322 of 1997 the plaintiffs Luanna Wintour and Maryanne Armstrong each seeks an order for provision for her respective maintenance and advancement in life out of the estate and/or the notional estate of the deceased. Each of those plaintiffs is a daughter of the deceased. 4 Subsequently, on 2 February 1999, the Court made orders that Edna Florence Wintour and Arnold Charles Wintour, Maryanne Armstrong and Luanna Wintour be joined as plaintiffs in the proceedings 3001 of 1997, an order that proceedings 4322 of 1997 be joined and heard with proceedings 3001 of 1997. 5 Edna Florence Wintour is the widow of the deceased. Arnold Charles Wintour is another son of the deceased. He was an adopted child of the deceased but the fact of his adoption does not have any effect upon his status as a child of the deceased. 6 The deceased died on 1 January 1996 aged sixty-seven years. Probate of his will dated 20 July 1993 was, on 15 July 1996, granted to the defendant Herbert Bonney, who was the executor named in such will. That grant was re-sealed in Queensland on 18 October 1996. 7 The deceased was survived by his widow and by his four children (each of those persons being now a plaintiff in one or other of the two sets of proceedings). The deceased, by his will, purported to give his interest in certain property at 18 Creek Street, Hastings Point to his widow. In fact, it appears that that property was held by the deceased and Edna Florence Winter as joint tenants, and in consequence the interest of the deceased in the property passes by survivorship to his widow and not in consequence of the provisions of the will. 8 The deceased, also by his will, gave to his widow a certain motor vehicle, gave to another beneficiary what is described as "my dredge and all dredging pipes", and gave to his sons, John and Arnold, all his tools of trade and workshop equipment. 9 Clause 7 of the will is in the following terms: I direct that my trustee shall sell my land known as Lot 156 in deposited plan 628026 and from the proceeds of that land to pay all my funeral and testamentary expenses and to divide the proceeds in the following manner: one-third of the net proceeds to be paid to wife Edna Florence Wintour, two-thirds of the net proceeds to be paid to Arnold Charles Wintour, John Neville Wintour, Maryanne Armstrong and Luanna Wintour for their sole use and benefit absolutely. 10 However, the gift contained in clause 7 adeemed, since the deceased during his lifetime had disposed of the land referred to in that clause. Apparently the deceased lent the proceeds of sale of that land upon a registered mortgage to a company called Tweed Coast Developments Limited, which, in due course, has gone into liquidation. The interest of the deceased in that asset is now the interest of a mortgagee in possession. However, the ultimate benefit to the estate in practical terms is uncertain. 11 The will does not contain any provision concerning residue. It follows therefore that the interest of the deceased in the mortgage to which I have just referred, which is by far the most significant asset in the estate (having a value which, in the most general terms, has been estimated to be within the range of between $1 million and $3 million), now passes upon partial intestacy. The effect of the provisions of the Wills Probate and Administration Act 1898 concerning that partial intestacy is to give to the widow of the deceased a significantly greater share in that asset than she would receive if the deceased had still retained the property which was the subject of clause 7 of the will. By the same token, the entitlement of each of the four children of the deceased upon intestacy in respect to the only significant asset in the estate would be considerably less than the benefit which the deceased intended each of those children to receive in the land which was the subject of clause 7 of the will. 12 Each of the plaintiffs is an eligible person in relation to the deceased within one or other of paragraphs (a) or (b) of the definition of that phrase contained in section 6 (1) of the Family Provision Act. The plaintiff, Edna Florence Wintour, as the widow of the deceased is an eligible person within paragraph (a) of that definition. Each of the other plaintiffs, John Neville Wintour, Arnold Charles Wintour, Luanna Wintour and Maryanne Armstrong, as a child of the deceased, is an eligible person within paragraph (b) of that definition. As such an eligible person each of the plaintiffs has the standing to bring the present proceedings. 13 Apart from the five plaintiffs the only other eligible person in relation to the deceased is Melanie Wintour, the former wife of the deceased. A Notice of Claim, as required by the Supreme Court Rules, was served upon her by the defendant. She has not sought to make any claim against the estate of the deceased. It follows, therefore, that the five plaintiffs are the only persons whose interests in the estate of the deceased must be considered by the Court (apart from the beneficiary Geoffrey William Wallen who, under the terms of the will, receives the deceased's dredge and dredging pipes). 14 Although the first set of proceedings was instituted on 26 June 1997 and although those proceedings came before the Registrar on seven separate occasions between 29 September 1998 and 2 January 1999, the defendant executor filed the affidavit required by Part 77 Rule 59 of the Rules, being his affidavit sworn 27 November 1998, only on 15 February 1999. He had, shortly before then, on 2 February 1999, filed his affidavit sworn 27 January 1999. The defendant had in fact been ordered on 15 December 1998 to pay the costs of the then plaintiff in proceedings 3001 of 1997 and of the beneficiaries Arnold Charles Wintour, Edna Florence Wintour, Luanna Wintour and Maryanne Armstrong, those costs be paid personally by the defendant and not from the estate of the deceased. 15 The various plaintiffs are, as I have indicated, the only significant beneficiaries in the estate of the deceased. They are the only persons entitled to share upon the partial intestacy the only significant asset in the estate of the deceased. They are the only eligible persons, apart from the former wife of the deceased (who, although served with notice of the proceedings, has chosen not to make any claim against the estate of the deceased). 16 It emerges from the evidence that the five present plaintiffs were desirous of arranging amongst themselves that the only significant asset in the estate --- which in the events which have happened passes upon intestacy --- should pass, not in accordance with the relevant provisions of Division 2A of the Wills Probate and Administration Act, but in the manner in which the deceased himself clearly decided was appropriate, that is, that his widow should receive one-third of that asset and the remaining two-thirds should be divided among his four children (that is, that each of those four children would receive one-sixth of that asset). 17 The defendant executor, for reasons best known to himself, chose not to facilitate effect being given to the arrangement agreed upon by the only persons who had any interest in that asset of the deceased. It is difficult to resist the conclusion, when one looks at the procedural history of the matter and also at the contents of the two affidavits filed by the executor, that the defendant executor was deliberately choosing to obstruct the resolution of these proceedings. Indeed, when the matter came before me two days ago, on 9 March 1999, the defendant, who was then represented by a solicitor, informed the Court through his solicitor that he neither consented to nor opposed the relief sought. I, on that occasion, specially fixed the hearing of each of the two sets of proceedings for this day, 11 March 1999, before myself. 18 At today's hearing the defendant executor was represented by Counsel, who informed the Court that the defendant maintained the attitude that he neither consented to nor opposed the claims of each of the plaintiffs. The executor has no beneficial interest in the estate - indeed, in his affidavit of 27 January 1999 the defendant expressly states, "I have no material or pecuniary interest in the estate of the deceased person". In the light of that fact I find the attitude adopted by the defendant to be somewhat curious. He has a responsibility as executor to administer the estate in accordance with the provisions of the will of the deceased and, in the event, also in accordance with the rules relating to devolution upon partial intestacy. 19 The responsibilities of the executor are to the persons entitled under that will and upon such intestacy. Where, as here, each of those persons is of full age and legal capacity and where they have, as here, expressly requested the executor to participate with them in achieving the making of orders by the Court to give to each of those beneficiaries the interest which that beneficiary would have received under the will if the gift of the real estate contained in clause 7 had not adeemed, one wonders for whose benefit or in whose interest the executor is acting when he chooses not thus to co-operate with the entirety of the beneficiaries. 20 The five plaintiffs have agreed upon orders which they request the Court to make. Those orders are set forth in a document entitled Terms of Settlement dated 9 March 1999 which has been signed by the respective solicitors for each of the five plaintiffs. That document is exhibit A in the present proceedings. 21 The effect of that document is that the widow would receive less than her entitlement upon intestacy. To that extent, therefore, the claim brought by the widow as a plaintiff jointed in proceedings 3001 of 1997 must be dismissed. 22 Each of the other four plaintiffs has demonstrated some need. 23 It does not seem to me that in circumstances such as these the Court requires a great deal of persuasion before making an order for provision along the lines which each of the persons beneficially entitled seeks should be made. 24 I have referred to the date upon which the summons in proceedings 3001 of 1997 was filed, being 26 June 1997. That summons named only one plaintiff, John Neville Winter. Since the deceased died on 1 January 1996 those proceedings were brought within the period of eighteen months after the death of the deceased prescribed by section 16 of the Family Provision Act. 25 Proceedings 4322 of 1997, in which Luanna Wintour and Maryanne Armstrong are the plaintiffs, were instituted by summons filed on 8 October 1997. That summons was filed more than eighteen months after the death of the deceased. The claim brought by those two plaintiffs is about four months out of time. Prayer 4 in the summons seeks an order for extension of time. In support of that application for extension there has been filed a joint affidavit sworn by Luanna Wintour and Maryanne Armstrong on 8 December 1998. That affidavit addresses the question of why the claim of those two plaintiffs was not instituted within the eighteen-month period provided by section 16 of the Act. 26 In paragraph 3 of that affidavit the two plaintiffs say that the reason why they did not commence the proceedings within the prescribed period was that following the death of the deceased there were discussions and negotiations between various family members, and specifically after the commencing of proceedings by John Neville Wintour, the brother of those two plaintiffs, negotiations continued for a period of time. 27 The deponents say in paragraph 4: As a result of those negotiations spanning from the date of our father's death until the date of issuing of the summons on file number 4332 of 1997 at various times we were of the view that the matter had been resolved, but that ultimately ended up not being the case. 28 In paragraph 5 they say: In the end result the agreement that has been reached between all members of the family is in the same terms as we thought the matter had been resolved upon on a number of occasions between the date of the death of our father and the issuing of the summons in this matter. 29 Section 16(3) of the Act provides, The Court shall not make an order under subsection (2) allowing an application in relation to a deceased person to be made after the expiration of the prescribed period unless sufficient cause is shown for the application not having been made within that period. 30 I am satisfied from the material in the joint affidavit of the two plaintiffs in proceedings 4322 of 1997 that the explanation given by them shows sufficient cause for the application of those plaintiffs not having been made within the prescribed period. Similarly, I am satisfied from that evidence concerning the discussions and negotiations between the family members and the view that as a result of those negotiations from the time of the death of the deceased until the institution of Mr John Neville Wintour's proceedings that not only were, Luanna Wintour and Maryanne Armstrong of the view that the matter had been resolved but also that the other members of the family, including the widow of the deceased and Mr Arnold Charles Wintour, were of the same view. 31 I am satisfied therefore that sufficient cause has been shown for those two plaintiffs not having made their application within the prescribed period. But, as I have already recorded, since the claim of the widow is to be dismissed, it is not necessary for any order to be made extending the prescribed period for her application. 32 I propose however in the case of Arnold Charles Wintour, a plaintiff in proceedings 3001 of 1997, and in the case of each of Luanna Wintour and Maryanne Armstrong, the plaintiffs in proceedings 4322 of 1997, to order that leave be granted to each of those plaintiffs to bring their claim after the expiration of the prescribed period and that the time for the commencement of the proceedings by each of those plaintiffs be extended, in the case of Luanna Wintour and Maryanne Armstrong up to and including 8 October 1997 and in the case of Arnold Charles Wintour up to and including 2 February 1998, that being the date when he was joined as a plaintiff to proceedings 3001 of 1997. 33 I propose also to make an order along the lines of paragraph 1 in the document entitled Terms of Settlement which is exhibit A in the present proceedings. 34 [Submissions as to costs] 35 I have heard submissions concerning the costs of these two sets of proceedings. 36 There has already been an order made on 15 December 1998 that the defendant personally pay the costs of the five plaintiffs of that day and that those costs not be paid from the estate of the deceased. The plaintiffs, concerning the general costs of the proceedings, are content that they should bear their own costs because they are the only beneficiaries in the estate and, from a practical point of view, if they receive an order such as is usually made in favour of successful plaintiffs that their costs be paid out of the estate, those costs will be paid out og moneys which they will receive in any event. 37 However, each of the plaintiffs seeks a specific order in respect to the costs of last Tuesday 9 March and of the hearing this day, 11 March. The plaintiffs seek an order that the defendant should personally pay the costs of the plaintiffs of those days and that the defendant should not be entitled to recoup those costs from the estate of the deceased. 38 Costs orders in favour of a successful party are intended, as far as possible, to place that party in a position where he or she is not out of pocket from having participated in the proceedings. Costs orders are not made to punish an unsuccessful party. Normally in claims under the Family Provision Act the executor is entitled, whatever be the outcome, to have his costs of the proceedings paid out of the estate, since the executor is regarded as having an obligation to uphold the terms of the will. 39 In the instant case I propose to make an order that the defendant executor, subject to two exceptions, receive his costs of the proceedings out of the estate and that those costs be on the indemnity basis. The two exceptions are, firstly, the order that has already been made on 15 December 1998 that he personally pay the costs of the appearance on that day. The other exception relates to the application which has been made on behalf of the plaintiffs that the defendant personally should pay the costs of 9 March and of the hearing this day 11 March. 40 The plaintiffs have been put to very considerable expense in having the matter brought before the Court for a full and final hearing of the proceedings. That expense has been occasioned to them, in my view, unnecessarily. It has been occasioned as a result of what I have already referred to in my reasons for judgment on the substantive claim of the plaintiffs as being a conclusion which it is very difficult to resist --- that is, that the defendant executor has chosen to be deliberately obstructive in this matter. It is unnecessary for me in delivering these brief reasons concerning costs to rehearse what I have already said concerning the responsibilities of the defendant in these proceedings and the query that I have raised, both during the submissions from Counsel for the defendant and in my reasons for judgment, as to the identity of those in whose interests it has been that the defendant sees himself as acting. He has chosen not to act in the interests of the only persons who are affected by the will or the partial intestacy of the deceased or by the present proceedings. 41 The defendant has also chosen to have various legal representatives from time to time acting for him throughout these proceedings. The procedural history clearly indicates considerable delay on the part of the defendant and lack of concern by him for advancing the orderly progress of the hearing of these claims. 42 In those circumstances I consider that there is substantial merit in the application which has been made on behalf of the plaintiffs that they should not be out of pocket for the appearance on 9 March or for the hearing this day (which has now occupied in excess of two hours). It would have been a very simple matter for the defendant to have consented, as apparently the plaintiffs thought that he had consented at various earlier stages, to the substantive orders that are set forth in the document Terms of Settlement, which is exhibit A herein. 43 Accordingly, I propose to make an order that in respect of the appearance on 9 March 1999 and of the hearing today, 11 March 1999, the defendant personally pay the costs of the plaintiffs and that he not reimburse himself from the estate of the deceased in respect of those costs, and, further, that he not have his own costs out of the estate in respect of those dates. 44 In proceedings 3001 of 1997 I make the following orders: 1. I order that the claim of the plaintiff Edna Florence Wintour be dismissed. 2. I order that the time for the making of the claim by the plaintiff Arnold Charles Wintour be extended up to and including 2 February 1999. 3 I make an order as in paragraph 1 in the document entitled Terms of Settlement, being exhibit A herein. 4. Subject to the costs order made on 15 December 1998 and subject to Order 5 hereof, I order that the costs of the defendant on the indemnity basis be paid out of the estate of the late Neville Henry Wintour ("the deceased"), and that there be no order as to the costs of the plaintiffs, to the intent that they shall bear their own costs of the proceedings. 5. I order that the defendant personally pay the costs of the plaintiffs of 9 March 1999 and of the hearing this day, 11 March 1999, and that the defendant not reimburse himself from the estate of the deceased in respect of those costs, and that there be no order in respect of the costs of the defendant of those dates, to the intent that he will personally bear his own costs thereof and not reimburse himself from the estate of the deceased in respect of those costs. 45 In proceedings 4322 of 1997 I make the following orders: 1. I order that the time for the making of this application be extended up to and including 8 October 1997. 2. I make an order as in paragraph 1 in the document entitled Terms of Settlement, being exhibit A herein. 3. Subject to the costs order made on 15 December 1998 and subject to Order 4 hereof, I order that the costs of the defendant on the indemnity basis be paid out of the estate of the late Neville Henry Wintour ("the deceased"), and that there be no order as to costs of the plaintiffs, to the intent that they shall bear their own costs of the proceedings. 4. I order that the defendant personally pay the costs of the plaintiffs of 9 March 1999 and of the hearing this day, 11 March 1999, and that the defendant not reimburse himself from the estate of the deceased in respect of those costs, and that there be no order in respect of the costs of the defendant of those dates, to the intent that he will personally bear his own costs thereof and not reimburse himself from the estate of the deceased in respect of those costs. I certify that this and the preceding pages are a true copy of the reasons for judgment of Master McLaughlin