New South Wales Supreme Court CITATION : Patrick v Manning [2002] NSWSC 200 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 1592/01 HEARING DATE(S) : 22 February 2002 JUDGMENT DATE : 22 February 2002 PARTIES : Jayne Susan Patrick (Plaintiff) Jacqueline Michelle Manning (Defendant) JUDGMENT OF : Master McLaughlin COUNSEL : Anderson (Plaintiff) Bridger (Defendant) SOLICITORS : Oliver Campbell, Solicitor (Plaintiff) Smyth Turner & Wall Solicitors (Defendant) DECISION : 1. Order that the notice of motion filed by the Plaintiff on 20 February 2002 be dismissed.; 2. Order that the Defendant on or before 25 February 2002 furnish the Plaintiff with copies of all material in the possession of or under the control of the Defendant relevant to the present value of the land situate at and known as 49 Cessnock Road, North Rothbury.; 3. Order that the Plaintiff pay the costs of the Defendant of the aforesaid notice of motion. IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION MASTER McLAUGHLIN Friday, 22 February 2002 1592/01 JAYNE SUSAN PATRICK -V- JACQUELINE MICHELLE MANNING – ESTATE OF NOEL RAYMOND MANNING JUDGMENT 1 MASTER: There is presently before the Court a notice of motion filed by the plaintiff, Jayne Susan Patrick, on 20 February 2002. By that notice of motion the plaintiff seeks substantively the following orders: 1. That the hearing date of 26 February 2002 be vacated; 2. The defendant to give reasonable access to a valuer nominated by the plaintiff to attend the property known as 49 Cessnock Road North Rockleigh for the purpose of carrying out a valuation of this property. 2 The relief sought in that notice of motion is opposed by the defendant, Jacqueline Michelle Manning. 3 The substantive proceedings were instituted by summons filed by the plaintiff on 27 February 2001, by which she claims an order for provision pursuant to the Family Provision Act 1982. 4 The plaintiff is an adult daughter of the late Noel Raymond Manning (to whom I shall refer as the "the deceased"). The defendant is the widow of the deceased and is the sole beneficiary named in his will. 5 The proceedings were placed in the Masters' List by the Registrar on 31 August 2001. They were listed at callover on 31 October 2001, when the hearing date of 26 February, being next Tuesday in the Family Provision Running List, was fixed for the hearing of the matter. 6 At the callover it was noted that the estimated length of the hearing was two days. 7 On each of those two occasions, 31 August 2001 and 31 October 2001, the Court was assured, either expressly or at least by implication, that the evidence in the matter was complete. 8 The basis upon which the plaintiff seeks to vacate the hearing date is that the plaintiff is desirous of obtaining evidence concerning a piece of real estate which is the residence of the defendant. That real estate is not one of the assets in the estate of the deceased. Apparently it was held by the deceased and the defendant in joint tenancy, and upon the death of the deceased it passed by survivorship to the defendant. 9 The plaintiff asserts that there was some form of agreement that the defendant would allow access to that property to enable a valuation on behalf of the plaintiff to be effected. The property is referred to in the affidavit of the defendant, filed on 30 May 2001, as being one of the present assets of the defendant. The defendant ascribes to that property a value. The defendant does not hold herself out as being an expert in the field of valuation of real property. There is nothing in her affidavit to support the value which she ascribes to that property. 10 The plaintiff submits that it is essential to her case that she be able to gain access to the property with a view to obtaining a valuation thereof, so that she can challenge the value ascribed to the property by the defendant. 11 It must, however, be appreciated that the property of which the plaintiff desires to have a valuation becomes of relevance only if the plaintiff has firstly established that she is entitled to an order for provision out of the estate of the deceased. 12 If she establishes her entitlement to such an order, then any competing claim of the defendant may have the effect of reducing, or even extinguishing, an order for provision an entitlement to which the plaintiff might otherwise have established. 13 I have already observed that the property, the subject of the present application, is the residence of the defendant. As far as I can gather, it is the approach of the plaintiff that she needs to know the value of this asset belonging to the defendant so that she can submit to the Court that it would be appropriate for the defendant to subdivide the property and, presumably, thus to acquire additional or more valuable assets. 14 I do not entirely understand the basis of that approach. It is not for the Court to tell the defendant how she should conduct her lifestyle. As the widow of the deceased, the defendant has certain well recognised rights which are relevant to any assertion of a competing claim against the claim of the plaintiff. But, in any event, if the plaintiff at the hearing objects to the assertion of the defendant that a specific value be ascribed to the property, then unless there is material to support or substantiate that asserted value, the evidence of value will be rejected. 15 It has been stated by Counsel for the defendant that it is possible that there may be in existence a valuation of this property. If there is any such valuation held by the defendant or under the control of the defendant, then I consider that that material should be made available to the plaintiff through her legal representatives. 16 I propose to make an appropriate order in that regard. 17 As I have already observed, this is not a case where the property of which the plaintiff says that she desires a valuation is one of the assets in the estate of the deceased. Quite obviously, it is essential not only for the parties but also for the Court to have up to date valuations of assets in the estate. But this property is not an asset in the estate. It is the residence of the defendant, and upon the somewhat limited knowledge which I presently have of the evidence in the substantive proceedings, I would consider it highly unlikely that the Court would make an order the effect of which would be to deprive a defendant widow, who is the sole beneficiary named in the will of the deceased, of her residence. 18 A further consideration in this matter, which I regard as being both relevant and significant, is the fact that the assets of the estate total only $133 000. Although I have not been informed of the estimates of the costs of the present proceedings for the respective parties, my experience in this regard would suggest that for a one day hearing the totality of the costs would probably be in the vicinity of $60 000. 19 I consider that it would be most undesirable if the value of the distributable estate were to be eroded further by any adjournment of the proceedings. I have already recorded that the Court was assured, at least implicitly, on behalf of both parties (and I note that when the matter was fixed for hearing it was apparently the plaintiff alone who was represented) that the evidence in the matter was in a state of complete readiness. 20 No explanation has been offered as to how it has come about, the Court having been thus implicitly assured on both 31 August 2001 and 31 October 2001, that the plaintiff now regards herself as not being in a state of readiness for the hearing. 21 It is necessary for me to attempt to balance the competing interests of, on the one hand, the desire of the plaintiff to have additional information concerning valuation of the residence of the defendant, and, on the other hand, the fact that the proceedings have been fixed for hearing on Tuesday of next week, and the fact that this is a small estate, and the fact that the defendant opposes the vacation of the hearing date. 22 In all the circumstances, I am not disposed to accede to the application to vacate the hearing date. I propose to make an order of the nature which I have indicated, which will require the defendant no later than next Monday, 25 February 2002, to furnish the plaintiff with a copy of any material held by or under the control of the defendant relevant to the valuation of the property. 23 I make the following orders: (1). I order that the notice of motion filed by the plaintiff on 20 February 2002 be dismissed. (2). I order that the defendant on or before 25 February 2002 furnish the plaintiff with copies of all material in the possession of or under the control of the defendant relevant to the present value of the land situate at and known as 49 Cessnock Road, North Rothbury. (3). I order that the plaintiff pay the costs of the defendant of the aforesaid notice of motion. ********** Last Modified: 03/06/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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