Pahlow-Silady v Siladi [1999] NSWSC 890

New South Wales Supreme Court CITATION : Pahlow-Silady v Siladi [1999] NSWSC 890 CURRENT JURISDICTION : Equity Division Probate List FILE NUMBER(S) : 109172/1993 HEARING DATE(S) : 26 August 1999 JUDGMENT DATE : 3 September 1999

Pauline Mary Pahlow-Silady (Plaintiff) PARTIES : John Siladi (Defendant) Estate of Stephen Silady JUDGMENT OF : Bergin J

COUNSEL : B Coles QC/J Jobson (Plaintiff) P Jacobson QC/A Bulley (Defendant) SOLICITORS : DG Stuart (Plaintiff) O'Connor Filewood & Co (Defendant) CATCHWORDS : Whether statutory declaration constituted the deceased's will pursuant to s18A of the Wills, Probate and Administration Act (NSW) 1898. ACTS CITED : Wills, Probate and Administration Act (NSW) 1898 In the Estate of Masters (deceased); Hill v Plummer; Plummer v Hill (1994) 33 NSWLR 445; CASES CITED : Pahlow-Silady v Siladi (Supreme Court of NSW, unreported 21 November 1994, Santow J); Pahlow-Silady v Siladi (Court of Appeal, unreported 22 April 1997, Gleeson CJ, Mason P and Powell JA). DECISION : Statutory declaration constituted deceased's will

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST

BERGIN J

FRIDAY 3 SEPTEMBER 1999

109172/93 - PAULINE MARY PAHLOW-SILADY v JOHN SILADI Estate of STEPHEN SIDADY JUDGMENT

1 The plaintiff made application for a grant of Letters of Administration of the Estate of the late Stephen Silady (the deceased) by summons filed on 9 June 1993. 2 The matter was heard by Santow J on 6 July 1994 when the issue for determination was whether a statutory declaration made by the deceased on 9 April 1983 constituted his valid will pursuant to s18A of the Wills, Probate and Administration Act NSW (1898) (the Act). 3 The terms of the statutory declaration are as follows: Statutory Declaration I, STEPHEN SILADY, Company Director, of 152 Greville Street Chatswood West, in the state of New South Wales, do hereby solemnly declare that in the event of my death, my one-third share in the business of Derwent Thermostats Pty Ltd and Derwent Controls, 27 Higginbotham Road, Gladesville, is to be given to my brother, John Siladi, to be kept operating as a going concern and a family business. In the event of my illness and mental incapacity rendering me incapable of conducting the business, my share of the business is to be conducted by my brother, John Siladi, and in the event of his illness, mental incapacity or death, by my brother Anthony Siladi, and his two sons Edward Siladi and John Siladi as a going concern and a family business. In the event of my death, my half-share in the business of Derwent Properties is to be given to my brother John Siladi, including rents accrued and owing at that date by Derwent Thermostats Pty Ltd or others. In the event of my illness or mental incapacity, my half share of the rent of the premises, 27 Higginbotham Road, Gladesville, to be paid to me as half owner, for the duration of such illness or incapacity per calendar month. Signed 'Stephen Silady' 9/4/83 Witnessed: 'Pauline Silady' 9/4/83 4 Santow J delivered his judgment on 21 November 1994. He found that pursuant to s18A of the Act the statutory declaration constituted the deceased's will. Because the statutory declaration dealt with only part of the deceased's estate administration with the will dated 9 April 1983 was granted to the plaintiff, the widow of the deceased. Santow J's judgment was the subject of a successful appeal (Court of Appeal unreported 22 April 1997. Gleeson CJ, Mason P (dissenting) and Powell JA). The Court of Appeal set aside His honour's orders and made the following order: ORDER That insofar as they deal with the question of the application of s18A of the Wills Probate and Administration Act 1898 to the document entitled "statutory declaration" and executed by the deceased on 9 April 1983, the proceedings be remitted to the Probate Division for rehearing. 5 This remitted matter was heard by me on 26 August 1999 when Mr Coles QC, leading Mr J Jobson of counsel, appeared for the plaintiff and Mr Jacobson QC, leading Mr Bulley of counsel, appeared for the defendant. 6 After the plaintiff's evidence was read Mr Jacobson QC made application for an adjournment of the proceedings to enable the defendant to pursue a further line of inquiry that had been identified on the perusal of documents that had been unearthed as a result of a subpoena that had been served on the defendant by the plaintiff. That line of inquiry related to whether there had ever been a partnership agreement executed between the deceased and any of his brothers. This was a matter identified in the judgment of the Court of Appeal in the appeal in this matter some 2 years ago and in the circumstances I declined the application. 7 This matter had been adjourned once before on the application of the plaintiff's representatives because the plaintiff was unavailable to be cross examined because of ill health. The plaintiff was once again too ill to attend for cross examination in the proceedings before me but no application for adjournment was made on the basis of such inability. No objection was taken to the reading of the plaintiff's affidavits or to the tender of the transcript of the plaintiff's evidence before Santow J on 6 July 1994.