Supreme Court New South Wales Medium Neutral Citation: Boaz v Hyde [2014] NSWSC 1591 Hearing dates: 6 November 2014 Decision date: 06 November 2014 Jurisdiction: Equity Division Before: Hallen J Decision: Order that the Plaintiff's amended notice of motion be dismissed with costs. Catchwords: SUCCESSION - Plaintiff's application to restrain executor of a will from realising one of the assets of the estate - Where executor proposes to sell one parcel of real property of the estate - Where basis of Plaintiff's claim is that she seeks an order that it be provided to her absolutely - Whether seriously arguable case that she may obtain a family provision order of the whole of the real estate - Balance of convenience Legislation Cited: Succession Act 2006 (NSW) Supreme Court Act 1970 (NSW) Cases Cited: Boettcher v Driscoll [2014] SASC 86 de Angelis v de Angelis [2003] VSC 432 Grizonic v Suttor [2004] NSWSC 137 Kolback Securities Limited v Epoch Mining NL (1987) 8 NSWLR 533 McKenzie v Topp [2004] VSC 90 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 Vigolo v Bostin [2005] HCA 11; 221 CLR 191 Wilcox v Wilcox [2012] NSWSC 1138 Category: Interlocutory applications Parties: Carolyne Reid Boaz (Plaintiff) Gwenda Mae Hyde (Defendant) Representation: Counsel: Mr A J Grant (Plaintiff) Ms T Catanzariti (Defendant) Solicitors: Clarke & Cunningham, Solicitors (Plaintiff) Owen Hodge Lawyers (Defendant) File Number(s): 2014/112550 Judgment EX TEMPORE (REVISED) 1HIS HONOUR: In this matter, the Plaintiff, who is the daughter of the deceased, makes a claim for a family provision order under the Succession Act 2006 (NSW) ("the Act") out of the estate or notional estate of her father, Herbert Hogden ("the deceased"). The Defendant named in the proceedings is the deceased's sister, one of the executors named in, and the person to whom Probate has been granted of, the deceased's Will. The deceased died on 13 November 2013. 2Today, the Plaintiff seeks an order (by amended notice of motion filed in court without objection) that "the Defendant [be] restrained by herself, her employees and agents from selling, disposing of or otherwise dealing with the land and improvements contained in folio identifier xxxx situated at and known as xxx Morgan Street, Earlwood, New South Wales ('the Earlwood property') pending the determination of the Plaintiff's claim in these proceedings". In addition, she seeks an order that the Defendant give access to the Earlwood property to a builder nominated by the Plaintiff within fourteen days. It is accepted that, if she does not obtain an interlocutory injunction, the second order is unnecessary since, in all likelihood, the Defendant will sell the Earlwood property. 3The basis of the Plaintiff's interlocutory application is that she asserts that she should receive, by way of family provision order, at least an absolute interest in the whole of the Earlwood property and that the sale of the property would prevent this occurring. 4The Plaintiff also seeks an additional lump sum to enable repairs and renovations to be carried out on the Earlwood property (estimated by counsel for the Plaintiff to be between $50,000 and $80,000) and a further lump sum for exigencies of life. 5Probate of the deceased's Will was granted to the Defendant on 6 February 2014. By his Will, the deceased left a legacy of $2,000 to the Plaintiff, a legacy of $2,000 to his other daughter, Jenniffer Lee Clarke (who has not commenced any proceedings), and the rest of the residue of his estate to the Defendant. 6In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the deceased's estate was disclosed as having an estimated, or known, value of $1,368,728. The estate was said to consist of the Earlwood property ($700,000), real estate at Beverly Hills ($430,000), shares in a public company ($39,821) and about $200,000 in the bank or on investment. 7Subsequently, on 6 June 2014, the Defendant disclosed further estate property of about $100,000. 8Two appraisals for the Earlwood property were annexed to an affidavit sworn 1 October 2014 of Mr J P McCaffrey, the principal of the firm of solicitors acting for the Plaintiff. Those appraisals value the Earlwood property at between $830,000 and $935,000. 9It will be seen from these estimates that the value of the Earlwood property accounts for much more than one half of the estimated value of the estate. 10When one considers the other claims of the Plaintiff, it is clear that she seeks a significant part of the deceased's estate by way of family provision order. 11There is no dispute, in this case, that the Plaintiff is an eligible person or that she has commenced the proceedings within the time required by the Act. There is also no dispute that her financial and material circumstances, at least as disclosed so far, make it likely that an order for provision will be made in her favour. 12There is no doubt, and it was not the subject of any dispute, that a family provision order may require provision to be made by way of an absolute interest in property: s 57(2)(d) of the Act. 13The Defendant has stated under oath that she wishes to sell the Earlwood property and convert the asset to cash "before it deteriorates further, to reduce the risk of the estate being liable for a personal injury claim and to generate a better rate of return on the estate assets". She also states that the Earlwood property is "currently in a state of disrepair". 14In submissions, counsel for the Plaintiff disputed each of these allegations. (However, he made no application to cross-examine the Defendant after the passage objected to by him in the Defendant's affidavit was allowed to be read). He submitted that the photographs in evidence revealed that the Earlwood property simply "needed a coat of paint and a whipper snipper". 15It is difficult to take this submission seriously in light of the Plaintiff's claim, referred to above, that she seeks, by way of additional provision, an amount of $50,000 to $80,000 for the purpose of putting the Earlwood property into a reasonable state of repair. In an affidavit affirmed on 25 June 2014, the Plaintiff accepted that the property "has not been renovated for many years and is currently in a poor condition". The range of amounts claimed by her suggests that the Earlwood property, in fact, requires substantial work to enable it to be made more habitable. (Also, the submission made by counsel for the Plaintiff, despite what was said, does not, in my view, find support in the photographs annexed to the Defendant's affidavit.) 16If that were not enough, there is also some evidence that, because of its condition, the present tenant of the Earlwood property is paying less than the market rent which could be received in the event that repairs and renovations were carried out. 17Counsel for the Plaintiff also submitted that the Defendant's evidence regarding her desire to, and the reasons for, selling the Earlwood property are "an obvious (and transparent) attempt to disguise the fact that Ms Boaz, having indicated the nature of her claims for provision ... Mrs Hyde now seeks to attempt to frustrate those claims by disposing of the Earlwood property." 18I do not accept this submission as there is simply no reasonable basis for it on the evidence. 19Turning, then, to the Plaintiff's claim for an interlocutory injunction, there was no dispute about the jurisdiction of this court to grant an interlocutory injunction to restrain the Defendant from selling the Earlwood property. In Grizonic v Suttor [2004] NSWSC 137, at [11], Campbell J (as his Honour then was) wrote: "Concerning other statutes where courts have a power to change the property rights of parties, it is recognised that the court can grant an interlocutory injunction to protect the subject matter of the suit. When a claim is made under the Family Provision Act 1982 the Court has power to grant an interlocutory injunction requiring property that might be the subject of an order to not be disposed of until the suit is heard. This is a particular example of the Court's jurisdiction to preserve the subject matter of a suit pending the hearing...." 20However, the Act, itself, does not contain any provision permitting the court to make an order restraining an executor, in whom the estate property is vested, from dealing with those assets, other than in respect of final or partial distribution, pending its determination of an application for a family provision order: see s 62(3) of the Act. (Of course, s 66(4) of the Supreme Court Act 1970 (NSW) provides that the Court may, at any stage of proceedings, on terms, grant an interlocutory injunction in any case in which it appears to the Court to be just or convenient so to do.) 21There was also no dispute that "like other applications for an interlocutory injunction it is necessary to consider whether [a Plaintiff has established] a reasonable prospect of ultimate success in obtaining an order which would affect the property in question", or, put another way, there is a sufficiently seriously arguable case for final relief and that the balance of convenience favours the grant, or the withholding, of interlocutory injunctive relief, essentially to preserve the status quo in the meantime. 22Although the Plaintiff did not offer, until the morning of the hearing, the usual undertaking as to damages, by her counsel she has done so. Despite some criticism of her ability to satisfy any such undertaking, I am prepared to accept, for the purposes of her application, that she will be able to do so in the event that an injunction were granted and some damages were suffered by the Defendant. 23In this case, counsel for the Plaintiff accepted that "a reasonable prospect of ultimate success" meant a reasonable prospect of ultimate success in obtaining a devise of the Earlwood property absolutely. 24I have considered the very detailed outline of submissions (148 paragraphs) as well as the oral submissions made by counsel for the Plaintiff. I shall not repeat these submissions. 25I am of the view that the Plaintiff does not have a reasonable prospect of ultimate success in regard to the Earlwood property. In this regard, it is necessary to refer to some of her evidence. (I shall not refer to other evidence that may be the subject of dispute.) 26The Plaintiff's most recent affidavit is one affirmed on 25 June 2014. In that affidavit she stated, at [190] - [192] and [234] - [235]: "I am currently considering alternative employment. I have been invited by the Greater Western Area Health Service in Dubbo to apply for a position with it as area coordinator for disabilities. This would involve driving to rural and remote areas to offer services to people with disabilities. I intend applying for this position. However, it is not available for another ten months (in about April 2015). A position as care manager with Westhaven Association (a charity in Dubbo that is a disability service provider) is also currently available. I also intend applying for this position. ... I also believe that I would have better employment prospects in Sydney. I still wish to work, but... I now find the heavy lifting (and other physical requirements) of nursing increasingly difficult... I would like to be able to move into an administrative or management role... and I believe my prospects of obtaining such a role are greater in Sydney. I also believe I have a greater earning capacity in Sydney...". 27The Plaintiff has filed no further evidence regarding what has occurred in relation to the applications for employment to which she referred. Nor does she give any evidence of making any applications for employment in Sydney. Her evidence, overall, suggests that her employment will not be in Sydney. 28The Plaintiff's affidavit also includes the following, at [233]: "I would prefer to move back to Sydney where I can access the medical team at Westmead Hospital more easily (and, generally, be able to access a better quality of health care than I am currently able to from Binnaway)." 29There is no evidence of any inability, on the part of the Plaintiff, to return to Sydney, if medical treatment is required. 30At least as at June 2014, the Plaintiff resided with her two sons, Beau and Bronson, in Binnaway, New South Wales. In her affidavit, the Plaintiff asserted, at [231] - [236]: "[The Earlwood property] is a 3 bedroom house which would provide suitable accommodation for Beau, Bronson and me (or, if Bronson joins the Army, a spare room for him and my grandchildren to stay when they come to visit). ... I also believe that Beau's employment opportunities are likely to be greater in Sydney." 31There is no suggestion that she has sought any accommodation in Sydney and there is no affidavit from either Beau or Bronson suggesting that he intends to continue to live with the Plaintiff indefinitely. 32Beau is currently aged 31 years, having been born in May 1983. He is currently working in Binnaway with a builder. He has previously worked in central Queensland, at a coal mine, and "has recently been approached by his employer to return". Beau has "also made enquiries about working in the coal mine in Ulan (north of Mudgee) (about 2 hours' drive from Binnaway)". Beau has two children who both live in Brisbane. 33Bronson is currently aged 17 years, having been born in January 1997. He is currently interviewing with the Australian Defence Force and wishes to "pursue a career in the army". If he is successful, he may not be stationed in Sydney. 34The Plaintiff's only connection with the Earlwood property appears to be that she lived there, with her adoptive parents, until the age of 5 years (between 1965 and 1970). 35The Defendant submitted that the Plaintiff has not demonstrated that a specific devise of the Earlwood property would likely be made by way of a family provision order. The Defendant's submissions, which I accept, included the following passage: "The Plaintiff has no particular connection to this house... it has been a rental property since 1970. It is not close to Coonabarabran where she currently lives, or Newcastle where she has had medical treatment and where her son may be posted, and not particularly close to Westmead Hospital where she has had treatment. Her doctor merely says that she needs to move to a larger town or even a metropolitan area. Her counsel submits that it would provide suitable accommodation for her and her children. However, other properties could equally provide suitable accommodation. ... The Defendant submits that it is not necessary to make proper and adequate provision to specifically devise the Earlwood Property, and submits proper and adequate provision could be made by providing a capital sum... and allowing the Plaintiff to purchase other suitable accommodation." 36It must not be forgotten that the court's discretion under the Act is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation: Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, at [6] (per Dixon CJ); McKenzie v Topp [2004] VSC 90, at [63]. 37Gleeson CJ, in Vigolo v Bostin [2005] HCA 11; 221 CLR 191, at [8] and [25], observed that the justification for interference with freedom of testation is to be found in the failure of a deceased to meet the obligations, which the community would expect, in terms of maintenance, for those persons within the class of eligible persons. The process requires the court to "connect the general but value-laden language of the statute to the community standards". 38As Pembroke J said in Wilcox v Wilcox [2012] NSWSC 1138, at [23]: "The court does not simply ride roughshod over the testator's intentions. The court's power to make an award is limited. The purpose of the discretionary power under Section 59(1) is to redress circumstances where 'adequate provision' has not been made for the 'proper maintenance, education or advancement in life' of the claimant. The adjectives 'adequate' and 'proper' are words of circumspection." 39Furthermore, whilst the concept of "need" in a claim under the Act is relevant, and even though it is a relative concept (de Angelis v de Angelis [2003] VSC 432, per Dodds-Streeton J, at [45]), it is different from "want". The latent difference between the words was stated by Lord Neuberger of Abbotsbury (now President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808, at [54]: "'Need' is a more flexible word than it might first appear. 'In need of' plainly means more than merely 'want', but it falls far short of 'cannot survive without'." 40In Boettcher v Driscoll [2014] SASC 86, David J, at [41], added: "'Need' is not so synonymous with 'want' such that the two are interchangeable." 41Considering all of the evidence, I am far from satisfied that the Plaintiff has established that there is a serious question to be tried as to her entitlement to relief in that her proper maintenance or advancement in life would require the order that she seeks of an absolute devise of the Earlwood property to her. 42Nor does the overall justice of the case suggest that an interlocutory injunction should be granted. To that end, I remember the following observations of McLelland J in Kolback Securities Limited v Epoch Mining NL (1987) 8 NSWLR 533 at 535D: "... where a plaintiff's entitlement to ultimate relief is uncertain, the Court, in deciding to grant or refuse an interlocutory injunction, must consider what course is best calculated to achieve justice between the parties in the circumstances of the particular case, pending the resolution of the uncertainty, bearing in mind the consequences to the defendant of the grant of an injunction in support of relief to which the plaintiff may ultimately held not to be entitled, and the consequences to the plaintiff of the refusal of an injunction in support of relief to which the plaintiff may ultimately be held to be entitled...". 43Even if the Plaintiff were entitled, by way of family provision order, to provision out of the estate in the form of an unencumbered residence in Sydney, the court would not necessarily order the transfer to her, absolutely, of the Earlwood property. If the court were satisfied that provision by way of an unencumbered residence was adequate and proper in all the circumstances of the case, a lump sum to enable the purchase of such accommodation would be more likely. Accordingly, the Plaintiff would not suffer irretrievable damage to her statutory right to make a claim for a family provision order by the refusal to make the order sought in the amended notice of motion. 44If that were not enough, I am also not satisfied that the balance of convenience is in favour of granting the interlocutory injunction. As a claimant for a family provision order, the Plaintiff has no interest in any specific property in the estate. There is insufficient evidence to suggest that the concerns that the Defendant has expressed regarding the condition of the Earlwood property are unjustified. The Defendant should not have to bear a risk for which the estate would be liable in damages in order to enable the possibility, rather than likelihood, that the Plaintiff might succeed in obtaining an order that she seeks. 45In my view, the Plaintiff has not been successful in obtaining the interlocutory relief that she seeks and her claim for an interlocutory injunction should be refused. I order that her amended notice of motion be dismissed with costs. ********** 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: 12 November 2014