NSW Trustee and Guardian v State of New South Wales

1. [1]

   HIS HONOUR: I am dealing with an application, commenced by Summons filed on 5 May 2015, in which the NSW Trustee & Guardian (“the Plaintiff”), in its capacity as administrator of the estate of Rigas Pitsios (hereafter called “the son”), seeks the following relief:

2. [2]

   The only Defendant named in the Summons, was the State of New South Wales, as beneficiary which might be entitled if the estate of the son passed on intestacy as bona vacantia.

3. [3]

   The Crown Solicitor, on behalf of the first Defendant, filed a submitting Appearance on 13 May 2015. The first Defendant, otherwise, has not taken any step in the proceedings, or appeared at the hearing.

4. [4]

   By notice of motion filed on 7 July 2015, the Plaintiff sought an order that the NSW Trustee & Guardian, in its capacity as administrator of the estate of Angeliki Pitsios (hereafter called “the mother”) be joined as a second Defendant, and that leave be granted to serve an amended Summons. The basis of the joinder was that the Public Trustee had signed an Election Letter, dated 2 March 2006, a copy of which was Ex. 1, electing to administer the estate of the mother.

5. [5]

   At the hearing, the parties stated that the order sought in the notice of motion had been made by Registrar Studdert, in Chambers, on 20 July 2015. A document headed Short Minutes of Order, signed by the legal representative of each of the Plaintiff and the second Defendant, had been filed on 15 July 2015 and an order in accordance with therewith was made.

6. [6]

   Paragraph 3(1)(d) of Schedule 1 to the NSW Trustee and Guardian Act 2009 (NSW), which commenced on 1 July 2009, provides that a reference to the Public Trustee is to be read as a reference to the NSW Trustee & Guardian. By Paragraph 11 of Schedule 1, the NSW Trustee & Guardian is to be taken, for all purposes, to be a continuation of the Public Trustee. The NSW Trustee & Guardian, is constituted as a corporation by s 5 and has the status of a NSW Government agency by s 6 of the NSW Trustee and Guardian Act.

7. [7]

   Pursuant to s 21(1) of the NSW Trustee & Guardian Act, the NSW Trustee & Guardian, acting in one capacity, may maintain proceedings against itself acting in another capacity. It is clear that the sub-section applies, where, as in this case, the NSW Trustee and Guardian is the administrator (or executor) of two estates that have rights or obligations against the other: Abu-Arab v NSW Trustee & Guardian [2014] NSWSC 954, per Davies J, at [50].

8. [8]

   However, in any such case the NSW Trustee & Guardian may apply to this Court for directions as to the manner in which the opposing interests are to be represented and must comply with the Court’s directions: s 21(2) of the NSW Trustee & Guardian Act. No directions were sought in this case. It was unnecessary to do so because the facts, as far as they are able to be discerned, are not in dispute. In addition, in an affidavit affirmed 7 July 2015, by Ms S Macmillan, a solicitor employed by the Plaintiff, the court was informed that “different solicitors employed by the NSW Trustee & Guardian will have the care and control of each estate and different counsel [will be] engaged to appear for each estate at the hearing”.

9. [9]

   On 21 July 2015, the Plaintiff filed an amended Summons, naming the NSW Trustee & Guardian as the second Defendant, as a result of its consent to being joined and the order made by Registrar Studdert. The relief sought in that document was the same as the relief sought in the Summons that I have set out above.

10. [10]

    At the hearing, Mr D Flaherty of counsel appeared for the Plaintiff and Ms J Brouwer, solicitor, appeared for the second Defendant. In accordance with directions, Mr Flaherty filed and served a written Outline of Submissions and a chronology, which I have read, and which I have found helpful. Ms Brouwer’s short written submissions confirmed that the second Defendant did not dispute any of the matters included in the Plaintiff’s written submissions and, in fact, supported the submissions on who, of the mother and son, had survived the other. Those documents will be retained in the Court file.

11. [11]

    None of the possible natural persons entitled on intestacy in either estate were represented at the hearing. However, I am satisfied that the issues were sufficiently considered, and argued, by the legal representatives of the Plaintiff and of the second Defendant.

Background Facts

1. [12]

   The evidence read at the hearing, which was not the subject of any dispute, enables me to recite the following facts in this rather tragic case:

2. [13]

   The circumstances surrounding the deaths of the mother and the son are not entirely clear. As stated, the body of each was discovered by police in the Rooty Hill property some weeks after death.

3. [14]

   There is an affidavit made on 17 March 2015 of Mario Victor Guillaumier, a Detective Sergeant of Police attached to Mt Druitt Local Area Command, who attended at the Rooty Hill property on the morning of 24 October 2005 shortly after the bodies were found. He states:

4. [15]

   Detective Sergeant Guillaumier, in his affidavit, also sets out his observations about the bodies of each of the son and the mother and of the house in which they were found:

5. [16]

   Detective Sergeant Guillaumier was not cross-examined. There is no reason not to accept his evidence. However, his “assessment of the evidence”, which was not the subject of objection, is an opinion upon the question which, ultimately, the court must decide.

6. [17]

   It was not possible, on autopsy conducted on 25 October 2005, to determine the direct cause of death of the son, or the mother, in each case, due to the decomposition of his and her body respectively. In the Forensic Medicine Final Report, Coroners Act, 1980, dated 10 January 2006, in relation to the son, this was confirmed, although the author, Dr Peter S J Ellis, added “but a seizure was one possibility as was acute heart failure. It was not possible to exclude drowning as the final event. There was no evidence of significant trauma”. In the Forensic Medicine Final Report, Coroners Act, 1980, dated 1 March 2006, in relation to the mother, Dr Ellis, stated that “[t]he cause of death was not evident due to the long period between death and discovery. Given the history of frailty and the coincident death of her son, the possibility of starvation cannot be excluded although it cannot be proved… There was no evidence that any violence or trauma played any part in [her] death”.

The Applicable Law

1. [18]

   Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), rule 54.3(2) relevantly provides that proceedings may be brought for the determination of any question which could be determined in administration proceedings, including any question arising in the administration of an estate or in the execution of a trust, or any question as to the composition of any class of persons having a beneficial interest in an estate, or any question as to the rights, or interests, of a person who claims to be entitled on the intestacy of a deceased person. On occasion, these types of questions are referred to as “next of kin proceedings”.

2. [19]

   The principal question at issue, at this stage, is the sequence of the deaths of the mother and the son. That sequence is relevant to the destination of her, and his, estate respectively, and the person, or persons, entitled on intestacy. Accordingly, there can be no dispute that the Summons relates to the determination of a question that has arisen in the administration of the estate of each of the mother and the son.

3. [20]

   Succession to moveable property on intestacy is determined by the law of the domicile of the intestate at the time of death (see P E Nygh and M Davies, Conflict of Laws in Australia (7th ed 2002, LexisNexis Butterworths) at 679-680. Since each of the mother and son was domiciled in New South Wales at the time of her, and his, death, respectively, succession to the deceased’s intestate estate is to be determined by the law of New South Wales: Public Trustee v Kehagias [2009] NSWSC 972, at [11].

4. [21]

   Chapter 4 of the Succession Act 2006 (NSW) (which Chapter relates to intestacy) applies where the death of the intestate occurred on, or after, 1 March 2010, the date of the commencement of that Chapter: Schedule 1, Part 4, Succession Act 2006; Succession Amendment (Intestacy) Act 2009 (NSW). The Chapter does not apply in the circumstances of this case.

5. [22]

   Since both the mother and the son died prior to 1 March 2010, sections 61A-61F of the Wills, Probate and Administration Act 1898 (NSW) do apply in this case. Relevantly, s 61B sets out the applicable scheme of distribution on intestacy. That section, so far as is relevant to this case, provides:

6. [23]

   If the son died before the mother, then s 61B(5)(b) applies, with the consequence that the whole of his estate passes to the mother. Then, since the mother died without a spouse, issue, and parents, s 61B(6) applies. As there appears to be a lack of complete information to establish the identity of the brothers and sisters of the whole blood of the mother, albeit that there is evidence that she did have six siblings of the whole blood, the second Defendant must carry out further searches relating to those siblings. In other words, it will be necessary for the second Defendant to establish the identity of all of the siblings of the mother who share the same parents, and, if appropriate, those claiming through each of them who did not survive the deceased.

7. [24]

   Section 61C(3) of the Wills Probate & Administration Act provided that, where the estate, or part of it, was directed to be held on statutory trust for any class of relatives other than issue of the deceased “that estate, or part, shall be held in trust corresponding to the statutory trust for the issue of the intestate as if that trust were repeated with the substitution of references to the members or member of that class for references to the children or child of the intestate”.

8. [25]

   Thus, the mother’s property would be divided into shares equal in number to the number of her brothers and sisters of the whole blood who either survived her, or who predeceased her leaving issue who survived her. Any surviving sibling of the mother would be entitled to one of the shares, whereas in the case of a sibling of the mother who predeceased the mother leaving issue who survived her, the issue would be entitled to divide one of the shares amongst themselves.

9. [26]

   In Re Boyd (No 2) (Supreme Court (NSW), 19 July 1995, unrep) Young J (as his Honour then was) referred to the meaning of s 61C(3) as follows:

10. [27]

    If the mother predeceased the son, then the whole of her estate, if any, passes to him. Since the son died without a spouse, any issue, parents, brothers or sisters of the whole, or half, blood, and grandparents, the identity of any uncles or aunts, first of the whole blood, who survived him, and if none, uncles and aunts of the half-blood who survived him, must be established. (It will be appreciated that s 61B(6)(d) and (e) each include the words “on trust” not “on statutory trust” with the result that s 61C is irrelevant.) The surviving uncles and aunts of the son, who survived him, will share the estate equally. If there are none, then, the whole of the son’s estate will pass to the Crown as bona vacantia.

11. [28]

    I should mention that the Wills Probate & Administration Act did not include a section similar to s 107(1)(a) of the Succession Act (also found in Chapter 4), which contains a 30 day survivorship provision (in cases other than if, as a result of its application, the intestate estate would pass to the State: s 107(2) Succession Act).

12. [29]

    Section 35 of the Conveyancing Act 1919 (NSW) provides:

13. [30]

    The section applies where two or more persons have died, where the circumstances of the death of each are known, and where those circumstances render it uncertain which of them survived the other or others. It is not limited to multiple deaths arising out of a common event or circumstances common to both deaths. The section operates in circumstances where two or more deaths, whether occurring together or separately, produce uncertainty as to who of them survived the other or others. The primary, and in fact, the sole, object of the legislation is to meet the case where the court is unable to determine the precise order of the deaths.

14. [31]

    It is, of course, also necessary to establish that reliance upon the section is for “purposes affecting title to property”. The section does not apply where no question of title arises: Perpetual Trustee Co Ltd v Commissioner of Stamp Duties (NSW) (1980) 10 ATR 589; (1980) 80 ATC 4073. In s 7 of the Conveyancing Act, “Property” is defined as including “real and personal property, and any estate or interest in any property real or personal, and any debt, and any thing in action, and any other right or interest”.

15. [32]

    Where no statutory presumption arises, there is no presumption based upon age, gender, or any other attribute, of the persons who died together: Wing v Angrave (1860) 8 HL Cas 183; (1860) 11 ER 397; Perpetual Trustee Co Ltd v Commissioner of Stamp Duties (NSW).

16. [33]

    Counsel for the Plaintiff and the solicitor for the second Defendant join in submitting that the evidence relied upon makes it reasonably clear that the son died first and that his death was followed by the mother’s death, with the result that reliance upon the presumption in the section is unnecessary. Implicit in the submission is the requirement for the court, itself, to consider the evidence before relying upon the presumption in s 35.

17. [34]

    I respectfully agree that the court should analyse the available evidence, since what is sought includes a declaration which depends upon a particular view of that evidence. In any event, as has recently been affirmed (in respect of the equivalent Victorian section), the section “does not absolve the Court from its task of weighing all the evidence to endeavour to ascertain, without recourse to the presumption, which of the two persons died first”: Re Carri-Ann Rowlings; Fraser v Thom [2010] VSC 626, per Macaulay J, at [10].

18. [35]

    This proposition is not novel. It had been said, by Harvey CJ in Eq in Re Plaister; Perpetual Trustee Company v Crawshaw (1934) 34 SR (NSW) 547, at 551:

19. [36]

    (Also see, Re Comfort [1947] VLR 237; [1947] ALR 288 and Re Zappullo deceased [1966] VR 390.)

20. [37]

    Then, Macaulay J added, in Re Carri-Ann Rowlings; Fraser v Thom, at [11]-[14]:

21. [38]

    Thus, it seems to me, that there are two results which might follow from an inquiry into the facts. The first might be that evidence, to the satisfaction of the court, enables the court to conclude, on the balance of probabilities, the order of the deaths of the two, or more, persons who have died. If the order of deaths is established to the satisfaction of the court, it will be unnecessary to resort to, or consider, the statutory provision giving rise to a presumption in law when the order of deaths is uncertain and cannot be established. The second result might be that reasoning based on probabilities can yield no result, because, on the evidence, the court cannot reach a conclusion as to the order of deaths of the two, or more, persons who have died. Then, there being no preponderance of probability one way or the other, there would be “uncertainty” and the court will resort to s 35.

22. [39]

    (This is a civil case and as such the standard of proof is on the balance of probabilities. No new, or different, standard of proof is introduced by the word “uncertain” when that word is considered in its context. However, s 140 Evidence Act 1995 (NSW), enables the court to take into account the nature of the cause of action, the nature of the subject-matter of the proceeding, and the gravity of the matters alleged.)

23. [40]

    Having closely considered all of the evidence to which I have referred, I am satisfied the Plaintiff has established, on the balance of probabilities, that the son died before the mother. Whilst there was no common calamity, the deaths do, at least, appear to be linked in time and connected by circumstances.

24. [41]

    A number of the facts, as well as inferences from the facts, point to this conclusion. These include the position of each of the son’s, and the mother’s, body. I respectfully agree that it is unlikely that the son would have left the mother lying dead in the room, and in the state, in which she was found, whilst he took a bath. Secondly, the conclusion reached that the possibility of starvation as a non-excluded cause of death of the mother is relevant. The possibility of starvation, in the circumstances of this case, supports the death of the son and the inability of the mother, after his death, to feed herself. Otherwise, starvation would not have been considered as a possible cause of death, bearing in mind the food that was found in the house. Thirdly, the extent of the decomposition, as observed by Detective Sergeant Guillaumier, supports that conclusion also.

25. [42]

    Being so satisfied, it is not “uncertain”, which of the mother and son survived, and the court is able to determine who did survive the other without resort to any statutory presumption referred to in s 35 of the Conveyancing Act.

26. [43]

    In the circumstances, the Court: