Hastings v Hastings [2008] NSWSC 1310

New South Wales Supreme Court

CITATION : Hastings v Hastings [2008] NSWSC 1310

HEARING DATE(S) : 04/12/08

JUDGMENT DATE : 9 December 2008

JURISDICTION : Equity

JUDGMENT OF : White J

DECISION : 1. Order that the summons be dismissed and that paragraph 3 of the cross-summons be dismissed; 2. order that the plaintiff pay the defendant's costs of the proceedings; 3. exhibits may be returned after 28 days.

CATCHWORDS : FAMILY PROVISION AND MAINTENANCE – claim by adult son – criminal history – little contact with testatrix – impecuniosity due to forfeiture of assets following criminal conviction – brother's competing claim – held plaintiff not entitled to order for provision

LEGISLATION CITED : Family Provision Act 1982 (NSW)

Singer v Berghouse (1994) 181 CLR 201 Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 CASES CITED : Re Hatte [1943] SR (Qld) 1 In re The Will of F. B. Gilbert (1946) 46 SR (NSW) 318 Price v Roberts (23 September 1992, Court of Appeal NSW, unreported) Hoadley v Hoadley (17 February 1987, Young J, unreported)

Phillip Hastings PARTIES : v John Hastings

FILE NUMBER(S) : SC 2991/08

COUNSEL : Plaintiff: K Morrisey Defendant: L Ellison SC

SOLICITORS : Plaintiff: Coode & Corry, Solicitors Defendant: Thomas McDarra & Co

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WHITE J

Tuesday, 9 December 2008

2991/08 Phillip Hastings v John Hastings JUDGMENT 1 HIS HONOUR: The plaintiff is the younger son of Violet Edwina Hastings who died on 29 February 2008. He seeks an order for provision out of her estate pursuant to s 7 of the Family Provision Act 1982 (NSW). Mrs Hastings was survived by two sons: John (the defendant) and Phillip (the plaintiff). Her estate was initially valued for probate purposes at $643,789. The principal asset is a house at 4 Rayner Avenue, Narraweena. Market appraisals of that property range between $610,000 and $760,000. The average is in the order of $685,000. 2 T Counsel for the plaintiff submitted that he should receive an order for provision calculated as follows: " i) To pay off his car loan and credit card debts, ~ $35,000 ii) To assist with retraining, and/or to help establish a small stone importing business, ~ $40,000 iii) To assist with medical treatment (orthopaedic condition) ~ $20,000 iv) Accommodation ~ v) As a capital fund to meet unexpected contingencies $25,000 Total $140,000 " 3 The deceased had three sons: the defendant, now aged 61; Robert, who died on 29 July 2004; and the plaintiff, now aged 57. By her last will made on 18 February 2005, she appointed the defendant the executor and gave him all her estate. In earlier wills made on 16 August 1993 and 7 September 1998, she divided her estate (or in the case of the 1993 will her residuary estate) between the defendant and Robert equally. In none of her wills did she provide for the plaintiff. 4 The principal question in this case is whether the plaintiff's criminal conduct and long absences disentitle him from being considered as a proper object of his mother's testamentary bounty. That question is to be answered having regard to the circumstances as they exist today. 5 The plaintiff committed serious crimes involving the importing and distribution of marijuana in America. He left Australia in 1969 when he was 18. After travelling extensively he settled in Hawaii in about 1976. He deposed that he moved to California in the mid-1980s and that during his time in the United States he was involved in the drug trade. He further deposed that in the early 1980s he went into a property development business with his brother Robert and provided finance to the company established to operate that business from the proceeds of criminal activity. 6 In 1988 he was arrested when on holiday in Mexico on charges of drug importation. He remained in custody for three and a half years. He says he was tortured whilst in custody and was ultimately acquitted. There is hearsay evidence, not objected to, that the plaintiff's release in 1991 was procured by bribes provided by his brother Robert. 7 Newspaper articles were published in Australia in 1990 and 1991 in relation to the plaintiff and his alleged ill treatment. The newspaper articles said that he had been arrested on drug-running charges. At the time, the deceased thought that people avoided her or gossipped about the charges. 8 The plaintiff returned to Australia in 1991 and to Hawaii in 1992. He deposed that he started a charter fishing business. At that time, according to the plaintiff, he was receiving income from Robert's property development company which he had financed through the proceeds of criminal activity. There was a falling out with Robert and payments from that source ceased. The plaintiff deposed that in about 1996 and 1998 he became involved with a number of people selling marijuana in California. 9 A warrant for his arrest was issued on 13 March 1998 in California to answer an indictment of conspiracy to import and distribute marijuana. The indictment alleged that the plaintiff, along with 19 other defendants, conspired to import and distribute 18,000 pounds of Thai marijuana. 10 The plaintiff learnt of the indictment when he was in Australia. He fled Australia to Canada and then to Fiji where he lived under an assumed name. In July 2001 he was arrested in Fiji and imprisoned, awaiting extradition. He deposed that the United States did not have an extradition treaty with Fiji and that whilst in custody he reached a plea agreement with the Californian authorities. He pleaded guilty to a charge of distributing Marijuana, was deported to Canada, and thence to the United States where he served a term of imprisonment. He was released in July 2005.