New South Wales Supreme Court CITATION : SMITH v. LENNOX & ANOR [2004] NSWSC 1115 revised - 19/11/2004 HEARING DATE(S) : Tuesday 16 November 2004 JUDGMENT DATE : 23 November 2004 JURISDICTION: Equity JUDGMENT OF : Acting Master Berecry at 1 DECISION : 1. In addition to the provision in the will of the late Lorna Joan Walters there be paid to the plaintiff legacies provided for in the will for Sarah Kate Walters and Natalie Louisa Smith; 2. The defendants costs be paid out of the proceeds of sale of 2 Kilgour Avenue, Bar Beach; 3. The plaintiff pay her own costs; 4. The defendants pay the plaintiff's costs reserved by Bergin, J. on 8 November 2004; 5. The order made by Bergin, J. on 8 November 2004 restraining the sale of 2 Kilgour Avenue, Bar Beach be dissolved; 6. The plaintiff be released from her undertaking given to the court on 8 November 2004. CATCHWORDS : Family Provision Act - further provision - daughter of deceased - provision for unencumbered property - relation with the deceased - inadequate provision - assistance towards purchase of house - consideration of relationship of sister and deceased - assistance provided during her lifetime by the deceased to plaintiff - whether court should accept minors' offer to forego legacy. LEGISLATION CITED : Family Provision Act 1982 Shearer v. The Public Trustee (Young, J. unreported 23 March 1998) CASES CITED : Fiorentini v.O'Neill (Cowdry, AJ. unreported 4 December 1998) Singer v. Berghouse (1994) 181 CLR 201 re The Minister for Immigration and Ethnic Affairs Ex parte Lai Qin (1997) 186 CLR 622 PARTIES : SMITH, Leslie Rhonda v. LENNOX, Donna Rae & ANOR FILE NUMBER(S) : SC 1351 of 2003 COUNSEL : Plaintiff: L. Ellison Defendant: M. Bridger SOLICITORS : Plaintiff: Turnbull Hill Lawyers Defendant: Bilbie Dan IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION ACTING MASTER BERECRY TUESDAY 23 NOVEMBER 2004 No. 1351 of 2003 LESLIE RHONDA SMITH v. DONNA RAE LENNOX & ANOR JUDGMENT 1 ACTING MASTER: The plaintiff commenced proceedings pursuant to s.7 of the Family Provisions Act 1982 on 7 February 2003 in respect of the estate of the late Lorna Joan Walters. The deceased died on 5 September 2002. The application has been brought within time. Probate of the will of the deceased was granted on 25 October 2002. 2 The plaintiff and the first defendant are the daughters of the deceased. The second defendant is the daughter of the first defendant and the co-executrix. The deceased's estate was valued for the purpose of probate at $1,270,989.70. There are two major assets of the estate, being land known as 44 Bar Beach Avenue, Bar Beach valued at $750,000 and land known as 2 Kilgour Avenue, Bar Beach valued at $500,000. 3 Under the terms of the will, the first defendant is to receive the property known as 44 Bar Beach Avenue, Newcastle together with items of personally and the residue of the estate. Provision for the plaintiff is 50% of the net proceeds of sale of the property known as 2 Kilgour Avenue, Bar Beach. The remaining 50% is to be divided into five equal parts between the deceased's grandchildren. There have also been bequests made in respect of other items of personally for the grandchildren and a friend. 4 The plaintiff seeks an order pursuant to s.7 of the Act giving her the property known as 2 Kilgour Avenue, Bar Beach. 5 The plaintiff was born on 22 February 1954. She left school at the age of 15 and worked in a variety of jobs until the birth of her eldest child on 7 October 1977. She gained positions in Newcastle, Sydney and in New Zealand. She married her first husband in 1975. In 1978, she had returned to Newcastle and was employed at that time. However, her father became ill and she offered to assist her mother to care for her father. At this time, her mother was in full time employment. 6 The plaintiff gave up work and cared for her father on a full time basis until he died in late May 1978. During this period of time, the plaintiff's parents provided her with rent free accommodation. It is not in issue that the plaintiff looked after her father during this period. 7 After the death of her father, the plaintiff returned to Sydney and continued to work until 1980. She continued in full time employment until the birth of her daughter, Sarah Kate, in March 1980. By this time she had separated from her first husband and by 1982 had re-married. It would appear that up until the birth of Natalie in 1983 the plaintiff did not return to the workforce. 8 In 1985, the plaintiff and her family returned to Newcastle and they lived with the deceased at 44 Bar Beach Avenue, Bar Beach. During the period that they lived with the deceased, namely six months, the plaintiff paid board to the deceased. The plaintiff and her husband purchased a home at Adamstown Heights and remained there for two years. During this time, she worked as a casual clerical assistant for the Roads and Traffic Authority. 9 Her third child was born in June 1987 and in 1988 she separated from her second husband. Thereafter, she resided with her mother for approximately two months and then obtained rented accommodation at Thornton for about 18 months, then public housing at Broadmeadow. An aunty of the plaintiff and the first defendant owned a home at 1 Patrick Street, Merewether. As a result of the Newcastle earthquake in 1988, the property was damaged. After a family discussion between the first defendant, the deceased and the aunty, it was decided to apply for earthquake funds to enable the damaged property to be demolished and for a duplex to be constructed on the site. The first defendant took care of the administrative steps necessary to enable the development application to be approved and for the obtaining of the grant. In 1990, there was a discussion between the plaintiff and the deceased concerning the duplexes. It is asserted by the plaintiff that she was offered accommodation in one of the duplexes if she looked after Aunty Bon. According to the plaintiff, the arrangement was that she could live in the duplex rent free. 10 In respect of the arrangement with Aunty Bon, there is a difference in the evidence given by both parties. The first defendant alleges that there was a conversation between the plaintiff and Aunty Bon in the first defendant's presence whereby the plaintiff agreed to pay $100 per week rent. It is asserted by the first defendant that the plaintiff never paid the rent. However, the plaintiff's evidence was that at that time she was paying $32 rent at her existing accommodation and the inference being that there would be no benefit for her by moving into 2 Kilgour Avenue and paying an increased rental of $100 per week. In relation to this issue, I am prepared to accept the plaintiff's evidence that the arrangement was that she could live in 2 Kilgour Avenue rent free provided she cared for Aunty Bon. 11 The duplexes were known as 2 and 4 Kilgour Avenue, Bar Beach. The plaintiff moved into 2 Kilgour Avenue and according to her evidence looked after Aunty Bon until April 1996 at which time Aunty Bon was placed in a nursing home. However, her evidence is contradicted on this point as there is evidence that the plaintiff left her then husband and children and obtained accommodation elsewhere in 1994. 12 The first defendant's evidence on this point is that for a period of approximately two years, neither the aunty, the deceased nor the first defendant knew of the whereabouts of the plaintiff. The only information they had was the plaintiff had entered into a relationship with a man named Craig. The first defendant's evidence is that on a number of occasions when she asked her mother had she heard from the plaintiff the response was always that she hadn't and she didn't know where she was living. The plaintiff's evidence on this point is that she regularly contacted her mother by telephone. The plaintiff conceded that she never told her mother during this period where she was living. It seems that she played no active role in caring for either Aunty Bon or had regular contact other than by way of telephone with her mother. As it turned out, the plaintiff resided at Charlestown, a nearby suburb in Newcastle. 13 The plaintiff's evidence is that she lived at Charlestown for about 18 months but only made telephone contact with her mother. During this period, the plaintiff's husband was left to care for the three children. He was a train driver and did shift work. This necessitated the deceased in staying overnight on occasions at 2 Kilgour Avenue and on a regular basis she provided food for the husband and the children and generally assisted the care of the family. Therefore, the plaintiff's evidence cannot be accepted in relation to the time that she says that she looked after Aunty Bon. It is clear that from some time in 1994 until at least April 1996 she played no role in the care of Aunty Bon. However, this is not really a matter which becomes an issue in these proceedings as it does not directly bear on s.9(3) factors in relation to the deceased. At best it shows that the plaintiff did not take seriously her part of the bargain that she would enjoy rent free accommodation at 2 Kilgour Avenue provided she looked after Aunty Bon. 14 Aunty Bon died in May 1996. The duplexes at Kilgour Avenue were left to the deceased. The deceased had a stroke in the same year and the first defendant held a Power of Attorney in respect of her affairs. The plaintiff was approached by the first defendant to pay rent for living at 2 Kilgour Avenue. It was put on the basis that the deceased needed an income from the property. 15 The first defendant insisted that the plaintiff pay rent for her continued occupation at 2 Kilgour Avenue. An agreement was reached between them that the plaintiff would pay $120 per week. However, the evidence discloses that the plaintiff fell into arrears fairly soon after entering into the agreement. It would appear that there was a period when payment was unsatisfactory. The first defendant, therefore, arranged for an agent to manage the property. The parties signed a Residential Tenancy Agreement and the money received by the agent was paid to the deceased. However, the plaintiff fell into arrears notwithstanding the agreement. On 17 July 2000, she was served with a notice from the Residential Tenancy Tribunal requiring payment of outstanding rent. In cross-examination, the plaintiff's evidence was that the reason why the rent was in arrears was because she was not always able to pay the money. She also gave evidence that at one stage when the rental arrears were approximately $900, the deceased gave her the money to pay the agent, in effect, the deceased paid the rent for a property that the deceased owned. 16 In 1999, the plaintiff filed a creditor's petition for bankruptcy. In that petition she stated that she owed her mother $2,000. It was unclear how this debt arose. 17 Another issue between the parties was the plaintiff's conduct towards the deceased. The first defendant's evidence was that the plaintiff rarely assisted the deceased. As the deceased got older, her health started to fail and she required dialysis treatment and for that she needed to go to hospital three times per week. The plaintiff's evidence is that she took her mother to hospital on numerous occasions. However, I prefer the evidence of the defendants on this point as they were able to specifically refer to the times when either one of them took the deceased to the hospital for dialysis treatment. The plaintiff's evidence on this point was vague. I accept that she may have, from time to time, taken her mother for dialysis treatment, but I do not accept that it was on a regular basis in the absence of evidence that supports her assertion. 18 In 1979, after the deceased had a stroke, she moved in with the first defendant at Adamstown Heights for a period of approximately 18 months. During this time, the first defendant was the primary carer for the deceased. The second defendant during this period moved out of Adamstown Heights and into the deceased's property in Bar Beach Avenue. It seems there were two reasons for the second defendant's move. Firstly, a lack of accommodation at the Adamstown Heights property. During her stay the deceased slept in the loungeroom until the second defendant moved out of the property. Secondly, to provide some security for the Bar Beach Avenue property. 19 The deceased, however, indicated that she wished to return to her home in Bar Beach Avenue. The first defendant put her home on the market and she moved into Bar Beach Avenue with the deceased and the second defendant. The first defendant continued to look after the deceased during this period. It was acknowledged by the first defendant that during her occupation of the Bar Beach property she did not pay rent. In fact the first defendant remained in the property until the deceased died in 2002. During that time, extensive renovations were undertaken in respect of the property. The first defendant's evidence is that approximately $100,000 was spent carrying out various renovations and improvements to the property. Those renovations were funded to the extent of some $70,000 by the deceased and some $25,000 to $30,000 by the first defendant. However, the primary purpose of conducting the renovations was to extend the home so that the first defendant and her family could reside comfortably at the property. Nevertheless, this was done with the knowledge and the consent of the deceased. Contributions by the plaintiff pursuant to s.9(3) 20 The plaintiff's evidence is that she assisted with the construction of 2 and 4 Kilgour Avenue by helping her aunt to select brick types, colour, roofing material and the like. She also said that she selected the carpet and paid for the carpet and the furnishings. Her evidence was that she cleaned 2 Kilgour Avenue and carried out household repairs and kept the lawn and the yards tidy. She also paid for a concrete driveway. 21 At the time this work was carried out, the property was owned by Aunty Bon and not by the deceased. Therefore there was not a benefit that the deceased gained through any contribution made by the plaintiff. The property was transferred to the deceased after Aunty Bon died, pursuant to her will. The only evidence of the plaintiff is that she kept the house tidy and carried out household repairs and mowed the lawn and kept the yard tidy. However, Exhibit 1, a report by Craig's Building Advisory Services Pty. Limited dated 15 February 2001, paints a completely different picture. The report contains coloured photographs of various rooms at 2 Kilgour Avenue, Merewether. This is one and the same property identified in the inventory of property and the grant of probate referred to as Bar Beach. The photographs do not support the plaintiff's contention that she looked after the property. It is apparent from the photographs that the property was extensively damaged during the plaintiff's occupancy. There are photographs of damage to doors, carpet having been removed from the stairs, holes punched in walls, graffiti on walls, accumulated rubbish and generally the place was left in a filthy condition. In my view it could not be said that the plaintiff made any contribution towards providing services to the deceased. In fact, quite the contrary, as a result of her vacating the premises money had to be expended to bring the place up to a habitable standard so that it could be rented. 22 Exhibit 2 is a notice of order from the Residential Tribunal seeking payment for arrears of rent. Further, the plaintiff's own evidence indicates that at at least one stage she owed $900 on rent. Her evidence was that her mother gave her the $900 to pay to the agent. By her own evidence, the plaintiff was, at the very least, tardy in meeting her obligations since 1996 to pay rent for the accommodation. Therefore, it could not be said that the plaintiff made a financial contribution to the extent that she was obligated to. 23 There is controversy over the amount of care the plaintiff provided to the deceased. The evidence on both sides in many respects conflicts. However, taking all the evidence into consideration, I think the overall position is that the plaintiff did make some contributions towards the welfare of the deceased. She may not have been the perfect daughter and in fact the evidence appears that the deceased on more than one occasion gave significant support to the plaintiff or to her family. I accept that from time to time the plaintiff may have taken her mother for medical appointments and I accept the plaintiff visited her mother from time to time at 44 Bar Beach Avenue. However, overall, the evidence suggests that the major carer for the deceased, especially in the last 10 years of her life, was the first defendant. 24 Another matter which I consider relevant to factors warranting the making of an adjustment in the plaintiff's favour is the role that the plaintiff played during the last five months of her father's life. The father contracted cancer and required constant care over that period. The deceased was working during this period and was unable to attend on him between 9.00 am and 5.00 pm. The plaintiff volunteered to give up work to be her father's full time carer. This provided assistance to the deceased in two ways. Firstly, it enabled her to remain in the workforce to earn an income to support herself and her husband. Secondly, it relieved the deceased of the burden of full time caring for her husband. 25 The first defendant makes some issue of the fact that during this period her parent provided the plaintiff with rent free accommodation. However, in my view, that does not take away from the fact that the plaintiff was prepared to commit herself to the full time care of her father during the last five months of his life. In my view, that is a factor which should be taken into account because indirectly that was a matter for which the deceased received benefits. The plaintiff's needs 26 The plaintiff, in her affidavits and in cross-examination, has expressed a desire to live at 2 Kilgour Avenue, Bar Beach. She has put that desire on four grounds. Firstly, she has lived for a significant period of time at that address. Secondly, Max, her son, requires a stable environment and his friends live in the Bar Beach area. Thirdly, the home is large enough to provide accommodation for not only herself and Max, but also for Sarah Kate who is currently residing with her. Fourthly, to give her 2 Kilgour Avenue would redress the injustice to her in the will of a half interest in the proceeds of sale, whereas her sister receives the property at 44 Bar Beach Road. 27 Of course, it is not permissible under the legislation to alter the will by making an order under s.7 of the Act to overcome any feeling of injustice or hurt feelings that a plaintiff may have. It is not permitted, and I do not intend to consider this case on that basis. 28 The general position in relation to children is that the deceased is under no obligation either legally or morally to provide unencumbered accommodation for a child: see Shearer v. The Public Trustee (Young, J., unreported 23 March 1998) and Fiorentini v. O'Neill (Cowdry, AJ. unreported 4 December 1998). In Fiorentini (supra), Cowdry, AJ. commented that it is generally not the position that such provision is required. That, of course, suggests that each case must be considered on its own facts, but if the circumstances of the plaintiff requires and the estate is capable of providing such provision, then the court in its discretion may so order. 29 In these proceedings, although the plaintiff's evidence is that between 1990 and 2001 she lived at 2 Kilgour Avenue, Bar Beach, that is not in fact the position. Between 1994 and 1996 she separated from her husband and spent most of that time at Charlestown. Since vacating the premises in 2001, she has lived at two different addresses in the Maitland area. It would appear that she has at least established a life in the Maitland area and her daughter, Sarah Kate, has found employment at Bonds, Cessnock, some 20 kilometres from Maitland. 30 There is no evidence from Max or from any medical practitioners which suggest that he is suffering in any way by residing in the Maitland area. 31 Another matter to be taken into consideration when determining whether or not adjustment should be made is the testamentary intentions of the deceased. The court must always take into consideration the wishes of the deceased, the court has no right to override those wishes unless there is evidence to support that what the deceased did was not the act of a wise parent. What this deceased did was to provide the plaintiff with a sum of money which would have been half the net proceeds of sale of 2 Kilgour Avenue. It is agreed by the parties that currently the value of the property is about $500,000 and the net proceeds of sale will be approximately $410,000. That would leave the plaintiff, but for these proceedings, with an amount of some $205,000. 32 The plaintiff has put on evidence to show that her solicitors have made enquiries and have obtained provisionally a loan for $50,000. Her evidence was that she has not made any applications for a loan, but has been informed that on her current earning capacity she may be able to borrow up to $130,000. It was pointed out to her that in six months time, she loses the child support money that she receives from her ex-husband for Max. Her response to that was that although she loses that, she will no longer have to pay $400 a fortnight for rent, therefore the rental money will, in the future, be redirected towards any mortgage repayments. 33 The deceased has also made provision for her grandchildren. Each has received a one tenth share of the net proceeds of sale of 2 Kilgour Avenue. There are five grandchildren. 34 In my opinion, having regard to all the circumstances, including, but not limited to, the position of the second defendant, the plaintiff's son, Max, this is not a matter where the estate ought to provide the plaintiff with the property 2 Kilgour Avenue. 35 Max turns 18 in six months. Under the terms of the deceased's will, Max does not receive his inheritance until he is 21 – see clause 18 of the will. 36 In my view, the plaintiff has not demonstrated any special needs which would require the court to exercise its discretion by having 2 Kilgour Avenue transferred to her. Her evidence does not disclose that she is experiencing hardships by living in the Maitland area. In fact, to the contrary, she is currently in employment and so is her daughter. 37 The defendant put on evidence concerning property values in the Maitland area. Exhibit 3 is a series of photographs of properties in the Tenambit and East Maitland areas. The range in value of those properties is from $169,000 to $237,500. Whilst some of the properties do not indicate how many bedrooms they have, other photographs indicate the number of bedrooms. It would appear that there are a number of properties which are either three or four bedroom properties. Properties of a similar type and price would be more than suitable for the plaintiff. The Singer v. Berghouse test 38 The first stage of the test in Singer v. Berghouse (1994) 181 CLR 201 at 210, is whether or not the plaintiff has been left with inadequate provision for her maintenance and advancement in life. Under the terms of the will, she was not left a half interest in the property. She was left with 50% of the net proceeds of the sale of the property. As I have already indicated, that would have left her with a fund of approximately $210,000. It is clear that such a fund would assist her in acquiring a property in the area where she currently lives. However, it is doubtful that she would be able to purchase a property in one of the eastern suburbs of Newcastle. 39 The plaintiff is 50 years of age and is currently working and earning $500 per week. Whilst her evidence is that her borrowing capacity is $130,000, one must treat that with some degree of scepticism for the following reasons. Firstly, she tendered no evidence to corroborate that statement. Secondly, having regard to her age, if she does have that capacity to borrow $130,000, one would have thought that the loan period would continue beyond her reaching the age of 60 years and thirdly, the possibility of her staying in full time employment beyond the age of 60 is probably questionable. Even if she were able to borrow such sums, having regard to her capacity in the past to honour financial obligations, there is a possibility that she would not be able to meet the mortgage repayments and therefore ultimately lose the property. Therefore, there must be some doubt that she has the financial capacity to secure accommodation. The relevant provision in the will neither enables her to secure an absolute interest in 2 Kilgour Avenue, nor purchase any other property with the assistance of an affordable mortgage. 40 The plaintiff has made out a case that the provision for her is inadequate. 41 Moving to the second stage and considering the matters in my reasons, I am of the view that some adjustment should be made for the plaintiff. She requires a sum of money which would reduce the amount of any loan she would be required to take for the difference between the amount that she will ultimately get from the sale of 2 Kilgour Avenue and the costs of purchasing a property. She is also entitled to some provision to give her an economic cushion or alternatively to fund the purchase of furniture and any renovations that may be required to the property. 42 Her three children have put on affidavits saying that they are prepared to forego their legacy. Sarah Kate was cross-examined on her affidavit and she acknowledged that whilst it would be good to have a sum of money of the kind envisaged from the estate, she would much prefer to see that money go to her mother so that her mother has secure accommodation. Max also gave evidence along similar lines. In my view, adjustments should be made in favour of the plaintiff. 43 The other two beneficiaries are the children of the first defendant. Only one beneficiary has put on an affidavit, namely the second defendant. She has given evidence of the assistance that receipt of the legacy would do for her. However, no evidence has been put on by her brother and he did not attend court. 44 In all the circumstances, I am not prepared to make an adjustment which would take into account the legacy that was provided for Max. Although Max consents to foregoing his legacy, he has not obtained legal advice and I am not satisfied that it would be in his long term interest to forego the legacy. 45 In my view, the plaintiff should receive the legacies that were provided for her two daughters. 46 Exhibit C is a schedule of the rents received in respect of 2 Kilgour Avenue since 19 February 2003. The schedule also shows withdrawals from that account. The schedule was shown to the first defendant and she conceded that many of the entries under the column "withdrawal " were payments in respect of matters having no connection with 2 Kilgour Avenue. She also gave an undertaking to pay those monies if an order is made in favour of her sister. A calculation was made by counsel for the plaintiff which showed that the monies received from the period 19 February 2003 to 21 October 2004 amounted to $13,909.43. Any adjustment in favour of the plaintiff must take into account the fact that there are three beneficiaries who also still have entitlement to some of the income from the rent. Therefore any adjustment in favour of the plaintiff should reflect her 50% interest in the proceeds of sale and the 10% each of her two daughters. Therefore an adjustment should be made in favour of the plaintiff in the sum of $8,345.65. Costs 47 The plaintiff has succeeded on the application but by and large she is only marginally better off than she was had she not commenced these proceedings. She indicated during evidence that she would be able to provide funds to meet her own costs. In my view, the estate should not be burdened with the costs of both parties which amount to some $84,000. As the plaintiff has only had a partial victory and having regard to the provisions of s.33(2)(b), in my view, the appropriate order is that the estate's costs be paid out of the proceeds of sale of 2 Kilgour Avenue on the indemnity basis and the plaintiff's costs be paid by her. 48 Counsel indicated at the conclusion of the hearing that costs had been reserved by Bergin, J. in relation to a notice of motion seeking injunctive relief heard before her Honour on 8 November 2004. In re The Minister for Immigration and Ethnic Affairs Ex parte Lai Qin (1997) 186 CLR 622, McHugh, J. said that the approach should be taken in relation to costs at an interlocutory stage where a final determination has not been made is that one should look at the reasonableness of the parties. In this case, of course, the proceedings have now concluded. The plaintiff has had some success. She hasn't had success to the extent that 2 Kilgour Avenue is to be transferred to her. To that extent, prima facie, there was no reason why the sale of the property could not have gone ahead. However, when one considers the timing of the proposed sale, my view is that there is a different outcome. 49 These proceedings were commenced in early 2003. The central issue of these proceedings was whether or not the plaintiff should have 2 Kilgour Avenue. It was not until some weeks before the matter was to be heard that the executrixes' put 2 Kilgour Avenue on the market for sale by way of public auction. It seems to me that that was an unnecessary and unwise step to take. It could not be said that by holding off a month or six weeks there would be a deterioration in the property market to such an extent that the beneficiaries would be prejudiced. In my view, putting the property on the market at the time when the executrixes' did was unreasonable. 50 The plaintiff gave undertakings as to damages and the executrixes were restrained until further order from selling the property. In my view, the plaintiff has been successful on that notice of motion. Therefore the defendant should pay the plaintiff's costs reserved by Bergin, J. on 8 November 2004. I note the parties agree that, if at the conclusion of these proceedings the property is not transferred to the plaintiff, then the injunction should be removed. 51 Orders:- 1. In addition to the provision in the will of the late Lorna Joan Walters there be paid to the plaintiff legacies provided for in the will for Sarah Kate Walters and Natalie Louisa Smith. 2. The defendants costs be paid out of the proceeds of sale of 2 Kilgour Avenue, Bar Beach. 3. The plaintiff pay her own costs. 4. The defendants pay the plaintiff's costs reserved by Bergin, J. on 8 November 2004. 5. The order made by Bergin, J. on 8 November 2004 restraining the sale of 2 Kilgour Avenue, Bar Beach be dissolved. 6. The plaintiff be released from her undertaking given to the court on 8 November 2004. ********** Last Modified: 11/29/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.