Price v Ikin [2004] NSWSC 706

New South Wales Supreme Court

CITATION : Price v Ikin [2004] NSWSC 706 HEARING DATE(S) : 28/7/2004 JUDGMENT DATE : 27 August 2004 JURISDICTION: Equity Division JUDGMENT OF : Master Macready at 1 DECISION : Proceedings dismissed with no order as to costs.

CATCHWORDS : Procedure - costs. Application under Family Provision Act 1982. Plaintiff dies before hearing. Consideration of whether in this case the Court can make an order for costs. Held no power to make an order for costs. McEvoy v Public Trustee (1989) 16 NSWLR 92 Stead v Foster (Unreported, NSWSC, 4 September 1998) Kalejs v Minister For Justice & Customs (2001) 111 FCR 442 Phung v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 821 CASES CITED : Ali v Hartley Poynton (No 2) [2002] VSC 245 In the Marriage of Sims (1980) 50 FLR 286 Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194 at 201 Re Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622 One Tel Ltd v Deputy Commissioner of Taxation (2000) FCA 270 PARTIES : Robert John Price v David William Ikin FILE NUMBER(S) : SC 4287 of 2002 COUNSEL : M. Willmott SC for plaintiff B. Sharpe for defendant SOLICITORS : Lees & Givney for plaintiff Winston Readford for defendant

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

Master Macready

Friday 27 August 2004

4287 of 2002 ROBERT JOHN PRICE v DAVID WILLIAM IKIN AND ORS JUDGMENT 1 MASTER: This is the hearing of an application for costs on behalf of the plaintiff. The substantive matter concerns an application under the Family Provision Act 1982 (NSW) in respect of the estate of the late Deidre Robin Price who died on 14 November 2001. The plaintiff who had gone through a marriage ceremony with the deceased in 1991 survived the deceased. Walter Joseph Goosakoff, the second defendant, who was in fact the husband of the deceased, she having married him on 8 November 1972, also survived the deceased. 2 The application is made because the plaintiff in the proceedings died on 9 May 2004. The plaintiff, by his legal representatives in these proceedings, accepts that because of the decision in McEvoy v Public Trustee (1989) 16 NSWLR 92 the late plaintiff's cause of action does not survive his death and the proceedings abate. Assets in the estate 3 It appears that the plaintiff's estate is insolvent with the only assets being savings with the Horizon Credit Union in the sum of $11.00 and a van that was repossessed by the hire purchase company following his death. For ten years the plaintiff and the deceased resided in the property 352 Pittwater Road, North Ryde, New South Wales. It turns out that that property had been registered in the name of the deceased and her husband Walter Goosakoff as joint tenants and that it passed to him by survivorship upon her death. 4 The property is valued at $530,000.00. It is apparent that there are a number of debts in the estate of the deceased totalling some $25,619.00. 5 The deceased made her last will on 16 August 2001. Under that will she gave the whole of her estate to her husband Walter Joseph Goosakoff. 6 I have read the substantive evidence in the hearing and it is apparent that the deceased deceived the plaintiff as to the fact of her earlier marriage and the existence of her husband. She also represented that the house in which she and the plaintiff resided was in fact owned by her. It seems apparent that the deceased's husband who is now aged 73 years suffered strokes in 1984 and 1985. It appears that in 1989 the plaintiff and the deceased commenced living together at the home of the deceased and her husband. Apparently he was not living there at the time. The deceased told the plaintiff she had previously lived with Wally but that he was in a nursing home because of a stroke. That she said was "past history". 7 After the death of the deceased the plaintiff continued living in the property and remained there. Wally, the husband, was living in a Christadelphian Homes Limited village and the house in which he was living was to be demolished. No accommodation would then be available to him. In these circumstances, David Ikin, the stepson of the husband sought alternative accommodation for himself and Wally so that he could look after Wally. The medical evidence seems to suggest that Wally the husband could be looked after in his own home provided he had a carer. He can not speak but he can understand others when they speak to him. 8 In these circumstances David Ikin found a property at North Ryde, which was leased, from 10 May 2004. David Ikin and Wally moved into the property on 17 May 2004. Some three weeks later they found out that the plaintiff had died on 9 May 2004. They then re-entered the deceased's property and spent $1,737.35 to clean it. They now live there. Unfortunately David Ikin has a liability, which might increase to a sum of $8,331.00 if the accommodation that he leased cannot be relet to a new tenant. The defendants submit that the appropriate costs' order should be that each party pay their own costs. The defendants' outstanding costs are some $37,952.00. 9 The plaintiff's legal representatives seek an order for costs which up to the date of his death amounted to $34,363.60 and are estimated up to and including the hearing before me at a total sum of $41,818.30. 10 There are number of procedural problems in respect the application. The plaintiff made a will dated 17 March 2004 under which he appointed his Brother Baden Thomas Price as executor and trustee. He gave a number of pecuniary legacies and left the residue of his estate equally between his brother Baden and his sister Cecelie Mary Turner. There has been no application for Probate of that will. 11 I have already referred to the history, the deceased's will, the assets in the estate and the existence of a notional estate being the property valued at $530,000.00 which is now owned by Wally. 12 At the time the plaintiff swore his affidavit in February 2003 he was 55 years of age and was working in his lawn mowing business, which gave him an income of about $500.00 per week. This covered his business expenses but not all his other personal expenses. He had assets being a van, lawn mowing equipment and furnishings totalling $20,000.00. It is apparent that he had been going into debt since the death of the deceased as his liabilities amounted to $31,500.00, which included an estimate then for legal costs of $10,000.00. He had no superannuation entitlements and would have to keep working until he received the pension. 13 He had a number of health problems including angina. He suffered from back pain, skin cancer and was a diabetic. He was a single man with no dependants. He gave evidence of number of particular matters in relation to how he had been left without adequate and proper provision for his maintenance, education and advancement in life. Clearly he needed some funds to provide accommodation, replace equipment and pay out his debts. He had a relationship with the deceased for some 10 years and had not contributed anything to the build-up of the estate other than possibly repairs and maintenance. 14 The husband Wally is now 73 years of age. He has assets of several hundred dollars and liabilities approaching $4,000.00. He lives on the pension from which he receives of $470.00 per fortnight. As I earlier recounted, he also has the house where he now lives and is looked after by David Ikin. It appears from the evidence that the house in question may have been acquired by the deceased prior to her meeting Wally. In any event the deceased and Wally were married in 1973 and lived together until the disabilities which Wally suffered as a result of the strokes overcame him in 1987 and he went into a nursing home. 15 As is apparent from McEvoy's case, the plaintiff's cause of action does not survive his death. That is a matter of substance. In addition, so far as procedural matters are concerned, the proceedings themselves have abated. In the circumstances of this case Part 8 rule 10 of the Supreme Court Rules 1970 (NSW) (SCR) does not apply to prevent the proceedings from abating. Part 8 rule 16 of the SCR is in the following terms: "16 Deceased person