Tobey v von Baibus [2004] NSWSC 537

New South Wales Supreme Court

CITATION : Tobey v von Baibus [2004] NSWSC 537 HEARING DATE(S) : 21/06/2004 JUDGMENT DATE : 23 July 2004 JURISDICTION: Equity Division JUDGMENT OF : Master Macready at 1 DECISION :

CATCHWORDS : Personal property. Ownership of various items of property of a deceased person and her husband in dispute. Orders made determining the ownership of the disputed items. No matter of principle. PARTIES : Patricial Carolyn Tobey v Andreas von Baibus FILE NUMBER(S) : SC 4134 of 2003 COUNSEL : G. Sundsrom for plaintiff L. Ellison for defendant SOLICITORS : Emery Partners for plaintiff Turnbull Hill Lawyers for defendant

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

Master Macready

Friday 23 July 2004

4134 of 2003 Patricia Tobey v Andreas Von Baibus

JUDGMENT 1 MASTER: In these proceedings the plaintiff seeks orders for, inter alia, the delivery up to the plaintiff of various items of personality set out in a schedule to the Summons. The plaintiff did not proceed with the claims for damages for detention of goods or damages for conversion. A judge of the Court has ordered that a Master hear the whole of the proceedings. Background circumstances 2 The plaintiff is the Executrix of the estate of the late Shirley Alice von Baibus who is the plaintiff's mother. The defendant is the deceased's second husband he having married the deceased in 1974. The plaintiff is the daughter of the deceased's first marriage. 3 The plaintiff obtained probate of the will of the deceased such will being dated 12 April 2002. The deceased died on 19 July 2002. Under her will the deceased left the sum of $10,000.00 to the defendant and gave the balance of her estate in the events which have happened to the plaintiff. At the date of her death the deceased held bank accounts with the Commonwealth Bank in the order of $42,000.000 and she had a car valued at $8,000.00. She also had a joint bank account with the defendant with the Commonwealth Bank of Australia which had been opened in 1992 when the defendant retired. 4 As I have mentioned the deceased and the defendant were married in 1974 and they lived together for a short time prior to their marriage. In 1971 the deceased acquired a unit which she paid off over a period of time. It was finally paid off in 1986. When the deceased and the defendant commenced to live together they lived in the property which was owned by the defendant and they continued to live there until the death of the deceased. The deceased's unit which had been purchased a few years previously was rented and the rent was used to pay the mortgage and to meet outstanding utilities. It seems that the defendant may have met some of the taxation liabilities which resulted from the investment in the unit. It also seems clear that the monies from the rent of the unit were banked to the credit of two accounts in the name of the deceased they being accounts which only the deceased could operate. 5 Eventually the unit was sold in 2000 and presumably the cash left in the estate is the remaining money from the sale of that unit. 6 At the time of filing the summons the schedule which referred to the disputed items of personality which under the will would have gone to the plaintiff, numbered 41 items. There were negotiations between the parties and their advisors and a substantial number of items were given to the plaintiff. At the commencement of the hearing before me there were 8 items which remained in dispute. In opening the plaintiff conceded that she was not proceeding in respect of item 30 which was the salt and pepper grinders nor was she proceeding with item 22 which effectively at that stage was a sewing machine box. In final submissions item 13 being the contents of two brown wall units was conceded by the plaintiff as she had not been able to establish admissibility of certain evidence in relation to that claim. 7 This left the following list of items in dispute between the parties. Item 18 Contents of blanket box normally stored in room outside bathroom/toilet including sheets, pillow slips and another items belonging to the Gledden family.