Supreme Court New South Wales Medium Neutral Citation: Application by NSW Trustee and Guardian Re Mountain [2018] NSWSC 419 Hearing dates: 22 March 2018 Decision date: 22 March 2018 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Direct that the plaintiff forward to my Associate proposed short minutes of order in relation to the distribution of the estate. Catchwords: JUDICIAL ADVICE – Intestate estate – Whether it is appropriate that the administrator carry out further searches in relation to the existence of next of kin of the deceased Legislation Cited: Births, Deaths and Marriages Registration Act 1995 (NSW), s 50 Succession Act 2006 (NSW), Ch 4 Trustee Act 1925 (NSW), s 63(1) Cases Cited: Re Benjamin [1902] 1 Ch 723 Category: Principal judgment Parties: NSW Trustee & Guardian as administrator of the estate of the late David Alan Mountain (Plaintiff) Representation: Counsel: A Hill (Plaintiff) Solicitors: NSW Trustee & Guardian (Plaintiff) File Number(s): 2017/00368075 Publication restriction: Nil ex tempore Judgment 1. HER HONOUR: This is an application by summons filed by the New South Wales Trustee and Guardian as administrator of the estate of the late David Alan Mountain, seeking judicial advice pursuant to s 63(1) of the Trustee Act 1925 (NSW) as to whether the plaintiff should continue next of kin searches of the deceased, who died intestate on 31 July 2013 in New South Wales. The summons seeks, if the answer to that question is in the negative, an order that the plaintiff be at liberty to pay the estate of the deceased to the beneficiaries identified by the New South Wales Trustee and Guardian, what is referred to as a Benjamin order (a reference to Re Benjamin [1902] 1 Ch 723). 2. In the alternative, the plaintiff seeks the opinion, advice and directions of the court in respect of the facts set out in an affidavit sworn 26 October 2017 by Kelvin Kwan, a legal officer employed by the New South Wales Trustee and Guardian who has carriage of the present matter on behalf of the plaintiff. Read in support of the application is the affidavit of Mr Kwan to which is annexed an advice from Dr Simon Chapple of Counsel. Tendered as Exhibit A is a bundle of documents which were exhibited to Mr Kwan's affidavit. Also tendered have been various documents indicating searches that have been made. Background 1. By way of background, the deceased was born on 15 November 1927 in Sydney, New South Wales. The deceased's birth certificate records the deceased's name as Alan David Mountain, but it appears that the deceased used the name David Alan Mountain during his lifetime. 2. The deceased's estate is valued at $828,801.80. Letters of administration were granted to the New South Wales Trustee and Guardian on 16 July 2014. 3. The deceased's history, which I take from the affidavit of Mr Kwan and by reference to materials in the exhibit to Mr Kwan's affidavit (Exhibit A), is as follows. There is no record of the deceased marrying in New South Wales, and there is no record of registration of a relationship with the deceased in New South Wales. Kerry Mountain, a niece of the deceased, has deposed that the deceased was not in a de facto relationship at the time of his death (see her affidavit sworn 26 May 2014). 4. There is no record of any births, adoptions or legitimisations of children of the deceased in New South Wales from 1 January 1939 to 31 January 2014 (I refer to the certificates issued under s 50 of the Births, Deaths and Marriages Registration Act 1995 (NSW) at Exhibit A, pages 13 and 14). 5. The deceased's parents, each of whom unsurprisingly predeceased the deceased, were Barbara Dorothy O'Shannassy and Charles Henry Mountain. 6. The difficulty the plaintiff has had in determining those who take on the deceased's intestacy, pursuant to the intestacy rules in Ch 4 of the Succession Act 2006 (NSW), is that the deceased's father had a number of relationships from which children were born over the years. 7. The deceased's father's first marriage was to Mary Anne Elizabeth Clayton on 24 December 1898. 8. The deceased's father and Mary Anne Elizabeth Clayton had one child named Mary Anne Mountain. Mary Anne Mountain had five children, Doris Beryl Beatrice Patterson, June Rose O'Rourke, Ivy Mary Maree Monk, Florence May Hair and Mary Pitcher. Doris and June survived the deceased. Ivy died on 30 January 1964 leaving two children, Maureen Carol Stavely and James Henry Monk both of whom survived the deceased. Florence died on 30 June 2009 leaving two children, William Gardiner Hair and Allan John Gardiner Hair both of whom survived the deceased. 9. The deceased father's second marriage was to Kathleen Hough in the United Kingdom on 27 January 1917. They had one child, Percy William Richard Mountain who died at the age of four months. 10. The deceased's father meanwhile had a relationship with Fanny Mount. There were three children of the relationship between the deceased's father and Fanny Mount: Margery Mount, Leonard Alick Mountain and Charles Eric Mountain, each of whom predeceased the deceased. Margery had one child, Beverly Leonard Wood. He resided in Canada and had two sons, Lance Wood and Manno Wood. Beverly Leonard Wood predeceased the deceased, but his two sons remain living. 11. Of the deceased's maternal siblings the deceased is survived by his sisters, Meryl Hope Fowler and Jean Kentwell. He had two brothers, Harry Mountain and Peter Charles Mountain. Harry Mountain was born in 1922. He died on 26 February 2003. He had nine children from his first marriage, all of whom have survived the deceased. He married his second wife, Ludia Silas Kamma in Indonesia on 13 September 1981. He and Ludia had a son, Stephen Henderson Mountain, who was born in September 1982 and died the following day. His other brother Peter Charles Mountain died at Smithfield, New South Wales. He had three children, all of whom had survived the deceased. 12. The first difficulty that the plaintiff has faced is that there is a possibility (that it has not been able to determine one way or another) that there was further issue of the relationship between Harry Mountain and Ludia in Indonesia. Ludia was from Indonesia. Enquiries have been made through the Consulate General of the Republic of Indonesia in Sydney as to whether Harry Mountain and Ludia Silas Kamma had any children together in Indonesia. There has been no response to those enquiries. 13. However, I note that the informant to the death certificate of Harry Mountain, who died on 26 February 2003 at the age of 80, is noted as being "L Mountain", his wife. That appears to be a reference to Ludia Silas Kamma, whose details are recorded in the death certificate. The informant has listed as the deceased's children the nine children from his first marriage and there is reference to Stephen Henderson, deceased, the child of Harry and Ludia from which it might be inferred that there was no further issue between Harry and Ludia since there is no other child named by Ludia on the death certificate. 14. The other difficulty relates to the position in Canada, namely as to whether there was any further issue in Canada or any issue in Canada. The email communications with Lance Wood conveyed the information that Beverly Wood was an only child. There is no reference to any further children of Margery, or any other information in relation to Margery's brother, Leonard Alex Mountain. (Their other brother, Charlie Eric Mountain, died in infancy.) Leonard Alick Mountain was born 8 June 1906 in the United Kingdom and died on 20 December 1970 in Langley, British Columbia, Canada. The New South Wales Trustee and Guardian has not been able to determine whether Leonard died leaving any issue. 15. Enquiries of the Canadian authorities have been exhausted insofar as it would be necessary to make enquiries of the relevant provinces in Canada and those enquiries cannot be made without providing names and dates. 16. At paragraphs 61-62 of Mr Kwan's affidavit he states: The civil registries in the Canadian provinces of Saskatchewan and British Columbia are not able to conduct the searches for further issue. … The information that the New South Wales Trustee and Guardian has been able to obtain has come from family members and the only descendants of Fanny Mount/Carp that the New South Wales Trustee and Guardian has been able to ascertain are Lance Wood and Manno Wood, the sons of Beverly Leonard Wood. The New South Wales Trustee and Guardian cannot exclude the possibility of unknown paternal issue of the half blood or a paternal niece or nephew of the half blood in Canada. 1. In those circumstances it does not seem to me to be practical for the plaintiff to carry out any further next-of-kin searches of the deceased in Canada nor do any future searches of next of kin, by reference to his brother Harry's relationship with Ludia seem to me to be warranted. 2. Therefore, in answer to the question posed as to whether the plaintiff should continue next-of-kin searches of the deceased, I am of the view that there is no utility in so doing and that the plaintiff would be justified in not doing so. 3. Proposed short minutes of order in relation to the distribution of the estate should be provided to my associate and I will make those orders in Chambers. ********** 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: 06 April 2018