Stubberfield v Brown [2010] NSWSC 536

New South Wales Supreme Court

CITATION : Stubberfield v Brown [2010] NSWSC 536

HEARING DATE(S) : 24 and 25 May 2010

JUDGMENT DATE : 4 June 2010

JUDGMENT OF : Ball J

1. The grant of probate to the Defendant made on 23 March 2007 be revoked. 2. The Defendant deposit the grant in the Registry. DECISION : 3. The administration of the estate of the Deceased be granted to the Plaintiff. 4. Declaration that as at the date of the death of the Deceased, the Defendant was indebted to the Deceased in the sum of $100,000. 5. Declaration that the $100,000 is owed by the Defendant to the estate. 6. Defendant to pay Plaintiff's costs of proceedings.

CATCHWORDS : PROBATE - Revoking grant of probate - Plaintiff and Defendant originally granted probate - Removal of Defendant executor - Grant of probate to Plaintiff alone - Statements by Deceased that Defendant held $100,000 cash on behalf of Deceased - Declaration that Defendant indebted to estate.

CATEGORY : Principal judgment

Briginshaw v Briginshaw (1938) 60 CLR 366 CASES CITED : Browne v Dunne (1893) 6 R 67 Upton v Downie [2007] NSWSC 1095

PARTIES : Bruce Stubberfield (Plaintiff) Robyn Brown (Defendant)

FILE NUMBER(S) : SC 2008/309551

COUNSEL : M A Friedgut (Plaintiff) T J Morahan (Defendant)

SOLICITORS : Colin Quinn Daley (Plaintiff) Brydens (Defendant)

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

BALL J

4 JUNE 2010

2008/309551 BRUCE STUBBERFIELD v ROBYN BROWN JUDGMENT 1 HIS HONOUR: This case raises two issues. One is whether the Defendant should be removed as an Executor of her father's Will. The other is whether the Defendant has failed to account to the estate for an amount of $100,000 in cash which it is said was in her possession at the time of her father's death. 2 Harry James Stubberfield ("the Deceased") made his last Will on 22 October 2000. By that Will, he appointed the Plaintiff, his son, and the Defendant, his daughter, as Executors of the Will. Under the Will, he left each of his three grandchildren (all of whom are children of the Defendant) $3,000. He made a number of other small specific bequests. He left the residue of his estate to be divided equally between the Plaintiff and the Defendant. Leaving aside the $100,000 cash to which I will return shortly, the estate consisted largely of a residential property in Peakhurst. 3 Up until late 1999 the Deceased lived at the property in Peakhurst – for a number of years with a boarder. In late 1999, he collapsed due to low blood pressure. He lived with the Defendant and her husband from that time until 17 June 2004, when he moved into a nursing home. He also stayed with the Plaintiff and his wife at their place at Uralla on a number of occasions during the time that he lived with the Defendant. 4 On 8 June 2005, the Deceased met with Mr Timothy Daley ("Mr Daley"), a director of Colin Daley Quinn Solicitors, at the "Second Cup" coffee shop in Kogarah. The Deceased had known Mr Daley for a number of years and had expressed in his Will a desire that Colin Daley Quinn be employed in connection with the administration of his estate. Also present at the meeting were Ms Christine Webber, a senior probate paralegal employed by Colin Daley Quinn, the Defendant and the Defendant's husband. There is a dispute about what happened at that meeting and how it came about. 5 In her affidavit, the Defendant says that she arranged the meeting because her father had told her that he wanted to change his Will. According to the Defendant, the Deceased said that he was considering amending his Will to leave his estate to be divided equally between his three grandchildren or leaving it to be divided equally between them, the Plaintiff and the Defendant. She said in cross-examination that the Deceased was not happy with the way the Plaintiff and his wife had treated him on his trips to Uralla. 6 Although Mr Daley did not keep a file note, he gave a clear account of what happened at the meeting. He said that he observed that the Deceased appeared to be comfortable and relaxed, but the Defendant appeared to be agitated and that she spoke quickly and loudly and at times over statements made by both himself and the Deceased. Mr Daley asked the Deceased whether he wanted to change his Will. According to Mr Daley, the Defendant interjected and said that the Deceased wanted to leave everything to his grandchildren. The Deceased then said that he had promised the Plaintiff that his estate would be divided equally between the Plaintiff and the Defendant and that there was a house and $100,000 in cash. According to Mr Daley, the Deceased said that the Defendant had the cash and that he wanted his son to get half of it. The Defendant replied that she would see to it. Mr Daley then asked the Defendant and her husband to go for a walk so that he could speak privately to the Deceased. He gave evidence that he spoke to the Deceased at length and that, during the course of the conversation, the Deceased said words to the following effect: "I promised Bruce that it would go equally between Robyn and himself and I will not go back on that. Robyn's got the money and she must give Bruce half of that money. The rest of the Will as it is at the moment is exactly as I want it except that I want Darryl [the Defendant's husband] to have my shares in Stockland Holdings. I have a lot of time for Darryl." 7 Following that conversation, Mr Daley arranged for a Codicil to be prepared at his office (which was close by) which was consistent with those instructions. The Codicil was then brought to him at the meeting. He read the Codicil to the Deceased. The Deceased said that the Codicil was what he wanted and signed it. No other changes were made to the Will. There is no suggestion that the Deceased did not understand what he was saying or doing at the meeting. 8 Ms Webber gave evidence which corroborated the evidence given by Mr Daley. In particular, she had a specific recollection of the Deceased saying words to the effect of: "I have promised Bruce that everything will go equally to him and to Robyn. I have a house and $100,000 in cash that Robyn has. Robyn must make sure that she gives Bruce half the money after my death." 9 The Defendant gave a completely different account of the meeting. She said in cross-examination that the Deceased was in a great deal of pain and that he was "cranky" at the meeting, although she later accepted that he appeared to be comfortable and relaxed. She denied that her father said anything about the $100,000. She said that she may have referred to the sum of $100,000, but that that was a reference to settlement moneys which were payable to her following a motor vehicle accident and that she was confused. She denied that Mr Daley explained the change that the Deceased had asked to be made to his Will. She said that when they got back into the car to go home the Deceased said that Mr Daley had told him that he could not change his Will and that the law in New South Wales required that the estate be divided equally between his son and daughter. She said that the Deceased expressed dissatisfaction with Mr Daley. Throughout her cross-examination, the Defendant vehemently denied that there ever was $100,000 in cash. 10 The Defendant's husband (Mr Brown) also gave evidence concerning the meeting. An affidavit was not filed from him before the hearing commenced and he was in court throughout the Defendant's cross-examination. After that cross-examination was completed, the Defendant sought leave to file an affidavit from him which had been prepared overnight. I granted that leave. Mr Brown could shed little light on what happened at the meeting. He said in cross-examination that "I stepped back. I didn't want to be involved in what was happening. It's not my business". He could recall the Defendant saying that the Deceased wanted to change his Will and Mr Daley asking him and the Defendant to leave the meeting, but ultimately he accepted that he could not deny Mr Daley's and Ms Webber's account of the meeting (or confirm that it was correct). 11 The Deceased died on 5 July 2005. 12 On 10 April 2006, Mr Daley and Ms Webber met with the Plaintiff, the Defendant and her husband. Mr Daley and Ms Webber gave evidence that, during the course of that meeting, the Defendant said that she had $100,000 in cash from her father in a box. Mr Daley thought she was referring to a shoe box. Mrs Webber thought she referred to a safety deposit box. The Defendant gave evidence that what she said was "I think I have $100,000 in cash from our late father in a safety deposit box." She says that she told Mr Daley and Ms Webber that she would check the safety deposit box soon thereafter. Mr Brown also recalls the Defendant saying that she had cash, although he could not remember the amount. In cross-examination, his evidence was in the following terms: Q. You recall that she [the Defendant] mentioned that there was a substantial sum in cash which she had of the deceased. She mentioned that at the meeting? A. Yes, I think it was, yes.