Sang v Choy [2004] NSWSC 1121

New South Wales Supreme Court

CITATION : Sang v Choy [2004] NSWSC 1121 HEARING DATE(S) : 19 November 2004 JUDGMENT DATE : 23 November 2004 JURISDICTION: Equity Division JUDGMENT OF : Master Macready at 1 DECISION : Paragraph 41

CATCHWORDS : Succession - Family provision - Joint tenancy - Notional estate. Application for family provision. - No estate but jointly owned property passed to defendant by survivorship. - Attempt to sever joint tenancy by executing transfer. - Whether agreement to sever joint tenancy. - Whether property designated as notional estate of deceased. - Whether plaintiff entitled to provision. - Held: Plaintiff receive legacy of $100,000.00. PARTIES : Betty Sang v Lawrence Choy FILE NUMBER(S) : SC 1439 of 2003 COUNSEL : L.J. Ellison for plaintiff J.R. Wilson SC SOLICITORS : Patrick Timbs & Company Back Schwartz Vaughan

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Master Macready

Tuesday 23 November 2004

1439/2003 Betty Sang v Lawrence Choy JUDGMENT 1 Master: This is an application under the Family Provision Act 1982 (NSW) in respect of the estate of the late Margaret Choy who died on 7 September 2001. The deceased had eight children, two of whom are the plaintiff and the defendant in this matter survived the deceased. The will of the deceased 2 The deceased made a will in 1970 in which she left the whole of her estate to her youngest son Lawrence, the defendant in the proceedings. On 21 May 2000 the deceased made a will in which she left "my half of the estate located and 14 Lyon St. Randwick" to her eight children. Probate of that will was not obtained, as the deceased left no estate. 3 The plaintiff has obtained a grant under section 41A of the Wills Probate and Administration Act 1898 (NSW). Any notional estate of interest in this matter is held by the defendant who was the joint owner with the deceased of her property at Randwick. He acquired the property by survivorship on the deceased's death. In these circumstances I made an order that the defendant represent the estate of the deceased for the purposes of these proceedings. Assets in the estate 4 As I have said there was no estate and after the deceased's property had been transferred to the defendant, he sold it for the sum of $860,000.00. Thereafter in accordance with his mother's wishes he paid $10,000.00 to each of his sisters save one to whom he paid $20,000.00. 5 Costs have been incurred by both parties in this matter with those of the plaintiff amounting to $44,364.00 and those of the defendant amounting to $27,265.00. Family history 6 The deceased was born on 18 June 1911 in China and she married in 1933. The plaintiff was born on 12 December 1938. In 1939 the deceased's husband arrived in Australia and commenced a business in Harris Street, Pyrmont. His wife and family were trapped in China and they came to Australia in 1946. 7 The defendant was the youngest of the children of the deceased and he was born on 21 April 1954. The plaintiff left school in 1955 to obtain work in an office for a few years. Between 1957 and 1968 she worked for her father in his business until she married in March 1968. At that stage she moved to Campsie and established her own life. Unfortunately her father died two days later. 8 Between 1968 and 1970 the plaintiff operated with her husband a Laundromat in Darlinghurst. In 1970 while Lawrence was still living at home, the plaintiff made her first will to which I have referred. 9 In 1972 the deceased and Lawrence moved to Campsie for a short time. Having tried unsuccessfully to sell the Pyrmont property, they moved back to the property, renovated it with the help of the defendant and ultimately sold it in 1981. At that stage there were discussions between the deceased and the defendant about the purchase of a unit. The deceased was not in favour of this and ultimately the property at 14 Lyon St Randwick was purchased by the deceased and Lawrence as joint tenants. 10 From her proceeds of the sale, the plaintiff contributed $74,641.00 towards the purchase price of $120,000.00. The defendant contributed $14,000.00 in cash and borrowed $36,000.00. Over the years the defendant repaid that loan from his own funds. In 1986 Lawrence married and he and his wife lived there for a short time with the deceased until they moved away from the home. 11 In 1999 the deceased was diagnosed with cancer. From this time on, her children who lived in Sydney set up a roster to stay with her on different days in the week in order to look after her. 12 On 21 May 2000 the deceased made a will to which I have referred. She also attempted to sever the joint tenancy by executing a transfer to herself and lodging it with the Registrar General pursuant to section 97 of the Real Property Act 1900 (NSW). Notice was given to the defendant of that application under the Act and he commenced proceedings in the Supreme Court on 14 June 2000 seeking an order restraining the severance of the joint tenancy. 13 In those proceedings the defendant swore an affidavit in support, which set out a history of the matter but did not record any agreement to not sever the joint tenancy. Those proceedings were compromised and orders were made in the following terms: "The Court declares that: