Hiralal v Hiralal [2019] NSWSC 253

Supreme Court New South Wales

Medium Neutral Citation: Hiralal v Hiralal [2019] NSWSC 253 Hearing dates: 29 February; 1, 2, 3 and 4 March; 11, 12 and 13 October; and 9 December 2016; and 31 January 2017 Decision date: 13 March 2019 Jurisdiction: Equity Before: Lindsay J Decision: Rulings given on disputed items in an account Catchwords: WILLS AND ESTATES – Trusts and Trustees – Accounts – Disputed items - Rulings Legislation Cited: - Cases Cited: Jones v Dunkel (1959) 101 CLR 298 Coshott v Sakic (1998) 44 NSWLR 667 Texts Cited: - Category: Principal judgment Parties: Plaintiff: Vidyagauri Hiralal First Defendant: Nitin Hiralal Second Defendant: Vinod Gokal Third Defendant: Vibha Hiralal Representation: Counsel: Plaintiff: N Allan Defendants: P Afshar

Solicitors: Plaintiff: Harish Prasad & Associates Defendants: Indus Lawyers File Number(s): 2012/00082834

Judgment

INTRODUCTION 1. As one of three trustees of the deceased estate of her late husband, and representing the estate in these proceedings, the plaintiff claims against her co-trustees (the first and second defendants) relief designed to provide for due administration of the trusts and, more particularly, orders for the first defendant and his wife (the third defendant) to account for what is alleged to be trust property.

THE ESTATE AND FAMILY OF THE DECEASED 1. Hiralal Bhagwandas ("the deceased"), a businessman, died aged 78 years in Fiji on 13 June 2010, leaving a will dated 15 June 1993, probate of which was, on 11 February 2011, granted by the High Court of Fiji to the plaintiff, the first defendant and the second defendant as executors and trustees named in the will. 2. On 4 June 2012 orders were made by this Court (the Supreme Court of NSW), by consent, to the effect: (a) that the testamentary trust established by the deceased's will be administered under the control of the Court; (b) that the trustees were to direct maintenance payments of $4,000 per month to the plaintiff; and (c) that, until further order, all decisions by the trustees were to be made jointly and that any disagreement between them was to be resolved by approval of the Court. 3. The plaintiff is the widow of the deceased. The first defendant is one of their four sons. The second defendant is a friend of the deceased, a fellow businessman. The third defendant is the first defendant's wife. 4. The plaintiff was born in 1936, and is now aged 82 years. She and her late husband married in or about 1953. They emigrated from India to Fiji in 1954. At the time of the deceased's death, they were in a state of transition, intending perhaps to move from Fiji to Australia. 5. There were six children of their marriage; namely: 1. a son, Bhupendra. 2. a son, Ramesh. 3. a son, Niton (the first defendant). 4. a son, Hariwadan ("Hari") 5. a daughter, Pushpa. 6. a daughter, Urvashi. 1. The deceased's will (reproduced at 1 Court Book 85-89 together with the grant of probate relating to it) provided for his "just debts, funeral and testamentary expenses" to be paid from his estate "before any distribution", and for the residue of the estate to be held on trusts which directed his trustees: 1. "to let [the plaintiff] have the free use of [the deceased's] home and [his] chattels for her lifetime while she remains unmarried". 2. to "give to [the plaintiff] such sums of money from either the income or capital of [the deceased's] estate until her death or earlier remarriage". 3. on the death or remarriage of the plaintiff, to "divide and distribute such of [the deceased's] estate as shall then be remaining" between his six children in equal shares for their own use and benefit absolutely as tenants in common. 1. All the children are married with families of their own. The plaintiff has not remarried. 2. In 2006 the plaintiff and the deceased moved to Sydney (staying with Hari's family) hoping to emigrate, but maintaining links with Fiji that led to several return trips to Fiji before the deceased there met his fateful day. 3. The deceased sold the family home in Fiji in 2009. 4. In an apparent anticipation of a move of himself and the plaintiff to Australia, the deceased appears to have taken steps to transfer some of his wealth to Australia (through informal arrangements with the first defendant) and sought, without success, to buy a motel business in Australia. 5. Whether or not the financial dealings between the deceased and the first defendant were part of a design on the part of the deceased to move to Australia, they are central to the plaintiff's claim against the first and third defendants. 6. The importance of the deceased's unsuccessful proposals to enter the motel business in Australia (in or about January - March 2005, with a proposal to acquire the Parkview Motel in St Marys and, in or about October 2007, with a proposal to acquire the Willows Motel in Gosford) lies in the evidentiary value attributed by the plaintiff to documentation prepared by the deceased and the first defendant in support of applications for finance.