Spiller v Lowe [2000] NSWSC 1182

New South Wales Supreme Court

CITATION : Spiller v Lowe [2000] NSWSC 1182 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 3767/99 HEARING DATE(S) : 23/11/2000 JUDGMENT DATE : 23 November 2000

PARTIES : Jennifer Ann Spiller (P) James David Lowe (D) JUDGMENT OF : Young J

COUNSEL : J Van Aalst (P) E Holt (D) SOLICITORS : Mullane & Lindsay (P) McMillan & Dawson (D) CATCHWORDS : SUCCESSION [335]- Family Provision Act- Applicant seeks injunction to prevent sale of asset- Need to sell for administration- Little prospect of obtaining other than a monetary award- Application fails. CASES CITED : Re Gough (1973) 5 SASR 559 DECISION : Application dismissed.

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG J

THURSDAY 23 NOVEMBER 2000

3767/99 - SPILLER v LOWE

JUDGMENT

1 HIS HONOUR: This is an application for an injunction to prevent an executor from selling an asset in the estate pending the hearing of Family Provision Act proceedings. The plaintiff is a daughter of the late George Henry Horn. Mr Horn left three major assets, being three parcels of real estate, namely, his former matrimonial home in Valentine, a property at Sandgate and an investment property at Soldiers Point. The executor wishes to sell the Soldiers Point property for testamentary expenses, including his costs of these proceedings. 2 The status of the proceedings is that they are fixed for callover before the Master later this month and may well obtain a date for hearing in February/March 2001. Mr Van Aalst for the plaintiff, says that an order might be made in the proceedings that the Soldiers Point property pass in fee simple to the plaintiff and that it would be inappropriate that it be sold at present, particularly as there does not appear to be any present need for its sale. 3 However, as indicated in the reasons I gave in proceedings 4560/00 earlier this afternoon, the executor is, on any view of it, about $10,000 to $12,000 short in paying his current legal bills. This is, Mr Van Aalst says, of relatively little moment as it is convention for legal practitioners to wait until the end of the case before rendering their bills and there is no reason why that should not happen in this case. In any event, as he says, as the evidence presently stands, none of the people who received property under the deceased's will have put on any affidavit material to show they have needs which should be taken into account to oppose the plaintiff's needs. 4 Under the will, the plaintiff receives virtually a quarter of the remainder of the Soldiers Point property after the death of the deceased's widow. The plaintiff lives in a home which she purchased in 1977 in Bucketts Way Allworth with her husband. Her affidavit suggests she intends to continue to live in that property. Accordingly, her need appears from that affidavit to be for a money sum only. Mr Van Aalst says that may appear to be so but, on the other hand, the Master may think the appropriate order is to give the plaintiff the fee simple in the Soldiers Point property so she can use it either to raise income, or alternatively, sell it herself. 5 It is rare in Family Provision Act applications to grant injunctions preventing administration of the estate. Most of the cases for such injunctions that have been successful are cases where the applicant is a widow seeking to prevent sale of the home in which she lives pending the hearing; see eg Re Gough (1973) 5 SASR 559. Where the probabilities are that if successful the plaintiff will receive a money award, then it is very difficult indeed to justify an order that the executor be restrained. 6 In the instant case, I indicated that if the plaintiff was prepared to advance the executor $12,000 for expenses an injunction could be made, but Mr Van Aalst indicated that that was not possible. 7 Mr Van Aalst says that the injunction would only be for two or three months. That is probably right. However that is to be put against the case made by Ms Holt for the executor that it is necessary to pay those testamentary expenses. 8 I do not consider that the case for injunction has been made out and so dismiss the application for injunction with costs. ****************