Supreme Court New South Wales Medium Neutral Citation: Goldberg v Landerer [2011] NSWSC 130 Hearing dates: 17 February 2011 Decision date: 17 February 2011 Before: Rein J Decision: Interest in accordance with s 84A of the Probate and Administration Act 1898 (NSW) will run on $741,000, from 16 December 2010 to 8 February 2011, and on $241,000 from 8 February 2011 until it is paid Catchwords: PROCEDURE - interest - whether there was an agreement as to which statutory provision dealing with interest should apply and the appropriate date from which interest is to run Legislation Cited: Civil Procedure Act 2005 (NSW) Probate and Administration Act 1898 (NSW) Cases Cited: Large v Higham (No 3) [2010] NSWSC 681 Category: Consequential orders Parties: Judy Goldberg (plaintiff) John Landerer (defendant) Representation: Counsel: V R Gray (plaintiff) M S Willmott SC (defendant) Solicitors: DSM Austin (plaintiff) Les Pozniak Landerer & Co (defendant) File Number(s): 2008/281185 EX TEMPORE Judgment 1On 10 December 2010 I handed down reasons for judgment in this matter and the related matter of Kennedy v Landerer ( "the First Judgment" ). I indicated in my reasons that Mrs Goldberg, the plaintiff, should receive an additional amount of $800,000 from the estate of the late Louis Kennedy, that is, in addition to the $50,000 which had been provided to her under the will and which had already been paid to her some time before. 2In the First Judgment at [91], I referred to the argument advanced by Mr V Gray of counsel, who appeared on behalf of the plaintiff, as to the liability of the plaintiff to repay the total amount of $59,000, that is, $50,000 received under the will and $9,000 additionally received by her from the testator prior to his death, to her trustee in bankruptcy. I said in the judgment at [91]: "The executor should require proof by Judy of advice to her trustee in bankruptcy that she is to inherit these monies." 3On 10 December 2010 I stood the matter over to 16 December 2010 to enable short minutes to be prepared and brought into court. On 16 December both matters were listed and orders were made. 4There was a dispute as to whether some portion of the plaintiff's costs should be paid in advance and there was foreshadowed an argument about whether an order for indemnity costs should be made. In respect of the latter issue, the argument was not pressed by Mr Gray on behalf of the plaintiff. As to the first issue, I indicated that my preliminary view was that the $60,000 was a substantial and sufficient amount for an initial payment towards the plaintiff's costs. 5On 16 December 2010, it was agreed that there were only two issues between the parties in relation to the short minutes that I understood had been prepared by the defendant's solicitor and counsel. There was discussion about the short minutes and it is found at T3.40-T4.30: "HIS HONOUR: On that basis then do your short minutes now provide for what is effectively either agreed or determined? WILLMOTT: Yes. HIS HONOUR: I hand this down to see if it is what you want. WILLMOTT: There has been a slight alteration. I hand that up. The one alteration is on page 2. HIS HONOUR: You have seen that, Mr Gray? GRAY: Just at the same time your Honour has, yes. We understand effectively that clause 4 has been satisfied so there is really nothing left. HIS HONOUR: That's right, isn't it Mr Willmott? WILLMOTT: Yes. HIS HONOUR: So I can delete 4 or do you need it noted? What you could do is leave it in and say "noted as satisfied". What I'll do, Mr Gray, is leave it in but agree it has been satisfied. The problem I take it is not the form of the letter, you are happy with that, but hasn't Mr Austin said he sent the letter? WILLMOTT: 4 is fine, yes. HIS HONOUR: I make orders in accordance with the short minutes of order initialled by me dated with today's date and placed with the papers. I note that it is agreed that the condition in order 4 has been complied with. Right, the other matter. Can I have the competing minutes in that matter? WILLMOTT: Before we do that, there is another matter in this respect. I had up a letter." 6In relation to the issue of the trustee in bankruptcy, on 15 December 2010 Mrs Goldberg's solicitor wrote to the trustee in bankruptcy advising him of the fact she had received the $59,000 previously at a time when she was still a bankrupt. A copy of that letter of 15 December 2010 was shown to the defendant's legal representatives and a copy was provided to the Court. I will mark that letter Exhibit A on this application. 7On 18 January 2011, the trustee in bankruptcy claimed the $59,000 from Mrs Goldberg and Mrs Goldberg sent an authority on 21 January 2011 to the defendant's solicitors authorising them to pay the $59,000 to the trustee in bankruptcy out of the amount due to her and $59,000 was in fact paid on 8 February 2011. Additionally, on 8 February 2011, an amount of $500,000 was paid to Mrs Goldberg. 8The plaintiff now seeks an order that interest be paid by the estate on the amount of $800,000 from 16 December 2010 at the rate set out in s 101 of the Civil Procedure Act 2005 (NSW). 9Order 4 that was made on 16 December 2010 is in the following terms: "the lump sum referred to in paragraph 1 hereof shall not be not paid unless and until the plaintiff has satisfied the defendant that her former trustee in bankruptcy will make no claim on the aforesaid lump sum or on any part thereof and to the extent the said trustee in bankruptcy makes no such claim, the plaintiff will pay the amount not so claimed to the plaintiff within fourteen days after receiving such notification and if the same or any part is not paid by that date interest shall be paid on the same or on any part thereof not paid at the rates prescribed for the payment of unpaid legacies in s.84A of the Probate and Administration Act 1898 calculated as and from fourteen days from the date of the aforesaid notification until payment of the same." 10The defendant's position is that order 4 in the short minutes was agreed to by counsel for the plaintiff and reflects what was agreed about interest, namely, that interest would run from fourteen days after the trustee in bankruptcy indicated that there was no claim and, secondly, that interest would be payable in accordance with s 84A of the Probate and Administration Act 1898 (NSW) . 11The plaintiff's position is that the defendant accepted on 16 December 2010 that order 4 had been complied with and the amount was due and payable immediately. Mr Gray says that he did not embark on any argument about the terms because Mr M Willmott SC of counsel, who appeared for the defendant, agreed it had been satisfied. Mr Willmott says it is clear that what was satisfied was the requirement in [91] of the First Judgment that the trustee in bankruptcy be notified. However, Mr Willmott says that if there was a misunderstanding about what was in fact satisfied, he is prepared to accept on behalf of his client that interest is to run from 16 December 2010 notwithstanding that the clause speaks about fourteen days from a specified date. Mr Willmott strongly resists any attempt to now argue that some different rate than that specified, namely, that provided under s 84A of the Probate and Administration Act , is the appropriate rate. 12I think it is clear that what should have been noted on 16 December 2010 was that the plaintiff had notified the trustee in bankruptcy and had thereby satisfied the requirement in [91] of the First Judgment. 13Order 4 is incomplete in the sense that it deals only with the question of the absence of claim and does not provide for what will happen if the trustee in bankruptcy makes a claim. In fact, what has happened, namely, notification by the trustee in bankruptcy and an authority from Mrs Goldberg to the executor to pay the amount, is very much in line with what was intended to be achieved by the requirement for notification. 14There are differences in the calculation of interest under the former Family Provision Act 1982 (NSW), Probate and Administration Act and the Civil Procedure Act (see the discussion in Large v Higham (No 3) [2010] NSWSC 681 per Slattery J). 15Mr Willmott's willingness to accept that interest should run from 16 December 2010 in light of Mr Gray's contention that he has understood the position to be that Mrs Goldberg has met the preconditions for interest to commence to run ameliorates fully any lack of precise agreement which may have existed. Whatever the date which is chosen, there is no doubt that there was agreement that interest was to be calculated on the basis of s 84A of the Probate and Administration Act, and I do not accept Mr Gray's argument that the matter can now be re-opened to argue something different. 16Given that the trustee in bankruptcy made no claim for interest and given that $500,000 was paid on 8 February 2011 by the estate, interest in accordance with s 84A of the Probate and Administration Act will run on the difference between $800,000 and $59,000, ie $741,000, from 16 December 2010 to 8 February 2011, and on $241,000 from 8 February 2011 until it is paid. ********** 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. Decision last updated: 09 March 2011