Kinsela v Public Trustee [1999] NSWSC 481

New South Wales Supreme Court CITATION : Kinsela v Public Trustee [1999] NSWSC 481 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 4572/94 HEARING DATE(S) : 17, 18 May 1999 JUDGMENT DATE : 18 May 1999

PARTIES : Carolyn Rochelle Kinsela (P) Public Trustee of New South Wales (D) JUDGMENT OF : Master McLaughlin

COUNSEL : Mr. J. R. Wilson (D) SOLICITORS : Lynden E. Hopper & Co (P) Marsdens (D) CATCHWORDS : ACTS CITED : Family Provision Act 1982 CASES CITED : Warren v McKnight (1996) 40 NSWLR 390 DECISION :

SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER McLAUGHLIN

Tuesday, 18 May 1999

4572/94 CAROLYN ROCHELLE KINSELA -v- PUBLIC TRUSTEE OF NEW SOUTH WALES JUDGMENT

1 MASTER: These are proceedings under the Family Provision Act 1982. By summons filed on 22 November 1994, the plaintiff, Carolyn Rochelle Kinsela, seeks an order for provision for her maintenance, education and advancement in life out of the estate of her late father Charles Gordon Alexander Hill (to whom I shall refer as "the deceased"). The deceased died intestate on 16 August 1987. Letters of administration of his intestate estate were, on 10 May 1993, granted to the Public Trustee. 2 The deceased had been married twice. Of his first marriage, to Gwendolyn Ivy Hill, were born two children: the plaintiff (who was born on 20 April 1994 and who is presently aged fifty-five years) and Edward Charles (who was born some two years earlier). 3 The deceased subsequently separated from his first wife and they were later divorced. Their separation occurred in 1947. In 1949 the deceased married Gwendolyn Mary Veronica Hill, to whom he was still married at the date of his death. There were born to the deceased and Gwendolyn Mary Veronica Hill seven children. I have been informed, although there is no precise evidence in this regard, that one of those children by the deceased's second marriage, Cheryl Ann Hill (who was born in 1951), is now deceased. 4 The deceased was aged seventy-four years at the time of his death. Some four months after the deceased died his widow, Mrs Gwendolyn Mary Veronica Hill, died on 30 December 1987. She also died intestate. 5 The only asset of any significance left by the deceased was a house property situate at and known as 650 Henry Lawson Drive, East Hills. That house property had an estimated value of $200,000 at the time of the death of the deceased. As a consequence of the intestacy of the deceased, the principal beneficiary in his estate was his widow. Her estate has now become entitled to that benefit, and upon her intestacy the entitlement of the widow is to be divided among the seven children of he marriage (being the second marriage of the deceased), all of whom were living at the time of the death of the deceased's widow. It will be appreciated that the plaintiff, as a daughter of the deceased by his first wife, does not share in any interest upon the intestacy of the second wife of the deceased. 6 The house property was subsequently sold by the defendant, and in April 1995, when the affidavit of the administrator was filed, the defendant was holding an amount of $182,261. However, at that stage the defendant needed to retain a reserve in order to cover capital gains tax and income tax. Subsequently, as I understand it, those amounts have been paid. However, provision must be made for the costs of the present proceedings and for the costs of the administration by the defendant of the estate. 7 The most recent affidavit in regard to the financial position of the estate is that of David Mayo Webb, a legal officer in the employ of the defendant. In his affidavit of 14 May 1999, Mr Webb states that all the assets in the estate have been realised, and that as at 12 May 1999 there was held by the Public Trustee in his common fund an amount of $200,520 (consisting of capital of $175,766 and interest of $24,754). From that amount, however, there should be deducted a total of $20,000, to meet the costs of the present proceedings and the administration costs of the defendant, to which I have already referred. Therefore, in round figures, there would be available for distribution an amount of $180,500. 8 It will further be appreciated that if the plaintiff is successful in the present proceedings, she will be entitled to an order that her costs be paid out of the estate of the deceased. Any such costs order in favour of the plaintiff will further reduce the amount available for distribution upon intestacy amongst the other persons entitled to share in the intestate estate of the deceased. 9 A calculation has been performed on behalf of the defendant concerning the amounts which those presently entitled upon intestacy in the estate of the deceased or upon intestacy in the estate of the deceased's widow would receive. 10 Upon the intestacy of the deceased each of his children, including the plaintiff, would be entitled to an amount of about $440; and in consequence of the intestacy of the deceased's widow, each of the seven children born to the deceased by his widow would be entitled to receive about $28,000. However, I have been informed by Counsel for the defendant that after allowance is made for the costs of the defendant and after provision is made for the payment of statutory interest upon the widow's share in the intestacy there would remain nothing in the estate of the deceased to pass to the plaintiff or directly to the other children of the deceased. That is, the plaintiff would not even receive the $440 which, upon a preliminary calculation, would be her entitlement upon the intestacy of her father. 11 The plaintiff did not institute the present proceedings within the period of eighteen months after the death of the deceased prescribed by section 16(1) of the Family Provision Act. That limitation period expired on 16 February 1989. The present proceedings were instituted by summons which was filed on 22 November 1994, that is, some five years and nine months after the expiry of the limitation period. Accordingly, the plaintiff by her summons sought an order for extension of time. I shall in due course return to that application for extension of time. 12 The plaintiff, as a daughter of the deceased, is an eligible person within paragraph (b) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such, she has the standing to bring the present proceedings. 13 The evidence discloses that the plaintiff from the age of about eight had no contact with her father; that is, from about 1952 until her father died in 1987, (a period of some thirty-five years) there was no contact between the plaintiff and the deceased. 14 The plaintiff in her affidavit evidence offers an explanation for that lack of contact. Her explanation is that, in consequence of the breakdown of the marriage of her parents, she was for some time with her mother but later with her father; that she was subject, whilst with her father and her father's new wife, to physical and sexual abuse; that there were proceedings in the Children's Court at Albion Street and that she was put into various boarding schools and boarding institutions. 15 It will be appreciated that the truth and accuracy of these matters relied upon by the plaintiff to justify her total lack of contact and lack of desire to have any contact with the deceased for the last thirty-five years of her life are matters concerning which essentially only two people were in a position to have direct knowledge. They were the plaintiff herself, who has given her version, and the deceased who, by definition, is not in a position to give his version. The Court must, therefore, approach allegations of this nature with caution. 16 However, there has been no submission on the part of the defendant that I should reject the evidence of the plaintiff concerning her allegations of physical and sexual abuse at the hands of her father and of physical abuse at the hands of her stepmother. Further, the plaintiff, although cross-examined, was not asked any questions concerning these matters. 17 The Court is entitled, therefore, to accept the evidence given by the plaintiff concerning these allegations which she offers as an explanation for her lack of contact with the deceased from the time when she was aged eight and was ultimately removed and ultimately ceased to be in the custody of her father. 18 It must also be recognised, in looking to the nature of the relationship between the plaintiff and the deceased, a non-existent relationship for a period of thirty-five years, that the deceased himself is not revealed by any evidence to have desired to have any contact or communication with the plaintiff. This was not a one-sided situation where only one of the parties did not wish to have contact with the other. It would appear from the evidence that the deceased totally abdicated all financial and parental responsibilities in relation to the plaintiff after she left his custody when she was aged eight. 19 The plaintiff in bringing her present claim has, at the hearing, represented herself. The proceedings were originally instituted by a solicitor acting on behalf of the plaintiff. However, on 12 February 1998 the plaintiff terminated the authority of that solicitor and since that time she has represented herself in the proceedings and has conducted the hearing in person on her own behalf. 20 It cannot be emphasised too strongly that a plaintiff making a claim under the Family Provision Act, seeking provision for her maintenance out of the estate of a deceased person, bears a responsibility to place before the Court as fully and as frankly as possible all available information concerning her financial and material circumstances. In this case the plaintiff has failed to place before the Court to the degree which the Court would require all available information concerning her financial and material circumstances. I appreciate that the plaintiff has chosen to act for the last fifteen months without the benefit of legal representation, but that does not absolve her from enabling the Court to determine whether she has established a financial situation which would entitle her to an order for provision. The Court, however, must do the best it can with the evidence which is placed before it. 21 In her original affidavit (which was prepared when the plaintiff had a solicitor acting for her) she gave some evidence, skimpy though it was, concerning her income. At that time, in February 1996, the plaintiff was conducting her own business, known as Capri Interior Decor, and she was also in part-time casual employment with Dulux, the paint company, for which she was being paid $11.40 an hour and worked on an average of twenty-five hours a week. From her own business she was at that time receiving a net profit of $68 a week. She did not place before the Court in that affidavit any evidence concerning her outgoings. 22 The plaintiff at that stage and to the present time resides in a house property owned by her, which is situate at and known as 94 Queens Parade East, Newport. That house property which, in February 1996, was valued at about $300,000 and was subject to a mortgage for $100,000, has a present value of about $500,000 and is subject to a mortgage of $250,000. The plaintiff is presently paying an amount of $1,563 a month in interest upon the mortgage, which is for a fixed principal sum. She owns a motor vehicle, which in February 1996 was worth about $10,000. At that time she had about $3000 of personal debts. 23 Some evidence was given by the plaintiff under cross-examination concerning extensions to her residence and inquiries which she had made concerning the cost of a smaller property in the area in which she presently resides. She gave evidence that a smaller property would cost about $500,000. Apparently the extensions by way of the construction of an additional storey to her residence were effected in order to enable her daughter and her daughter's two children to reside with her, which they did for some time, but they are no longer living with her. 24 However, for the period of about six months whilst the plaintiff's daughter and grandchildren were residing with her, the plaintiff was receiving $150 a week rent from them. Occasionally the plaintiff now rents out the upper storey of her residence for bed and breakfast, but that would be only for one or two nights a week and not every week. 25 Not only in relation to the substantive claim of the plaintiff for an order for provision out of the estate of her late father, but also in relation to the application by her for an extension of time in which to institute proceedings, it is relevant for the Court to look to what might be described as the competing claims of the other persons who are entitled to share in the intestacy of the deceased. 26 Those other persons are the brother of the full blood of the plaintiff, Edward Hill, and the seven siblings of the half blood of the plaintiff. There is evidence that three of those siblings of the half blood suffered from some form of intellectual problem. I have already referred to Cheryl Ann, who was born on 2 August 1951 and who is said now to be deceased. She was intellectually disabled. Helen Susan, who was born on 25 December 1953, and Margaret Gay, born on 2 January 1955, are also suffering from intellectual disability and are in receipt of benefits or pensions as a result of such intellectual disability. They are living in what might be described as protected accommodation. 27 Two of the other siblings of the half blood of the plaintiff, Gary Charles, born on 10 September 1952, and John Henry, born on 21 February 1962, are presently not able to be located. However, at an earlier stage there was obtained some information concerning the latter of those siblings, John Henry, who, it would appear, was suffering from chronic schizophrenia. The only one of the siblings of the half blood concerning whom there is any detailed information is Joanne Frances, born on 8 September 1956. She appears to be in modest financial and material circumstances. 28 The defendant opposes the extension of the prescribed period which the plaintiff seeks. The defendant in that opposition refers to the various factors which, in Warren v. McKnight (1996) 40 NSWLR 390, Hodgson CJ in Eq described as being capable of being relevant to the exercise of the discretion to extend time for bringing an application under the Family Provision Act. 29 The first of those factors is the sufficiency of the explanation of delay in making the claim. I have already observed that the claim was some five years and nine months out of time, the summons being filed more than seven years after the death of the deceased. The evidence, however, discloses that it was only as a result of a communication to her from the Public Trustee in September 1993 that the plaintiff became aware of the death of her father. Until that time she was not aware of his death, which had occurred almost six years earlier. 30 Subsection (2) of section 16 of the Act gives to the Court a discretion to extend the prescribed period, having regard to all the circumstances of the case, but subject to subsection (3) of that section. Subsection (3) contains an express prohibition against such an extension of the prescribed period, "unless sufficient cause is shown for the application not having been made within that period". 31 The plaintiff submits that her total unawareness for the period of eighteen months after the death of her father on 16 September 1987 constitutes sufficient cause for her not having made her present application within that period of eighteen months. I am in agreement with that submission. If the plaintiff was not aware that her father had died until after the expiration of the prescribed period, it seems to me that she could not have instituted the proceedings within the prescribed period. Accordingly, the Court is not precluded by the prohibition contained in subsection (3) from exercising its discretion under subsection (2). 32 The defendant submits that even after the expiration of the prescribed period that there is no explanation for the delay of some nine months from the awareness of the plaintiff that her father had died as a result of the communication from the Public Trustee in September 1993 until the filing of the summons on 22 October 1994, a period of some fifteen months. 33 The plaintiff, however, in her affidavit of 28 February 1996 states that, upon receiving that information from the Public Trustee, she passed it on to solicitors with instructions to act and advise, and that subsequently she instructed the solicitors who were presently acting for her at that time. It seems to me that although the material in that regard could have been somewhat amplified, there is an adequate explanation of the delay of some fifteen months after the plaintiff became aware of her father's death until she made the present claim. 34 The defendant also submits that as a result of the institution of the present proceedings there is prejudice to the beneficiaries, in that the persons entitled upon intestacy have been considerably delayed in receiving their entitlement. 35 There has certainly been a considerable delay in the present proceedings. The Court file discloses that the summons was returnable before the Registrar on 8 December 1994. On that date the Registrar directed that Practice Note 63 should apply to the proceedings, and the matter was not again listed until 18 December 1997, when it again came before the Registrar. There has been no adequate explanation on the part of the plaintiff as to that very considerable delay of more than three years. But, by the same token, if the defendant had desired to do so he could at any stage in that period have had the matter listed for the making of peremptory orders requiring the plaintiff to comply with Practice Note 63, or even, as a final resort, the defendant could have made application for dismissal of the proceedings for want of prosecution. 36 I am not satisfied that there is, in fact, prejudice for which the plaintiff should be held responsible affecting the interests of the beneficiaries. There is no suggestion made by the defendant that there has been any unconscionable conduct by the plaintiff. The defendant, however, submits that the strength of the plaintiff's case is not great and that, therefore, it would, in effect, be futile for the Court to extend time. 37 The strength of the plaintiff's case is of significance not only in the application to extend time but also, of course, in her substantive claim. I have already referred to the somewhat meagre evidence placed before the Court by the plaintiff concerning her financial and material circumstances. However, I have reached the ultimate conclusion that the plaintiff has established an entitlement to an order for provision out of the estate of the deceased. 38 The deceased totally abdicated the entirety of his responsibilities for the plaintiff during her childhood. He acted towards her in a way which justified her not choosing to have any contact with him from the age of eight until his death. He clearly did not wish to have any contact with the daughter of his first marriage. He did not fulfil his financial and legal responsibilities to her during her childhood. It seems to me that the plaintiff has established an entitlement to receive a benefit out of his estate greater than the notional entitlement upon intestacy, which might have given her $440 but which, in consequence of the present proceedings and the administration expenses of the estate, will give her nothing. The question, however, is what order for provision should be made in her favour. 39 The plaintiff has sought an amount which would enable her to discharge the mortgage on her house property. That amount, of course, would entirely exhaust the totality of the assets of the estate, and I can see no justification, in any event, for the plaintiff receiving such an order. 40 It seems to me that the plaintiff has established an entitlement to an order for a modest legacy. The size of that legacy, however, should be such as will not detrimentally affect the beneficiaries who could be described as disable persons, who will indirectly, through the intestacy of their mother, benefit from the estate of the deceased. 41 The conclusion which I have reached is that the plaintiff should receive a legacy which will enable her to pay any present debts and to remove. To an extent, the uncertainties of her income as a person conducting her own business in self-employment, such legacy to be in the amount of $40,000 and that that legacy should be borne by that part of the estate which would otherwise pass to persons other than the disable beneficiaries. 42 I propose to stand the matter down to enable Counsel for the defendant to prepare short minutes to reflect that conclusion; and the short minutes should also make provision for the costs of the plaintiff on the party and party basis and the costs of the defendant on the indemnity basis to be paid out of the estate of the deceased.