Robinson v Randell

HIS HONOUR: Before the Court, for urgent hearing on 23 and 25 November 2016 (for about two hours in total), was a contested notice of motion to remove the second Plaintiff’s tutor. On 25 November 2016, after the conclusion of the hearing, I refused the relief sought in the notice of motion. I ordered that the applicant’s notice of motion be dismissed and ordered the applicant, Lynette Ruth Forwood, to pay the second Plaintiff’s, and the tutor’s, costs of the application, as well as the costs of the Defendants, who had appeared on each of the days the matter was listed. I indicated that I would provide written reasons and these are the Court’s reasons for making those orders.

The notice of motion, as will be read, was heard urgently, because there is a private mediation of the substantive proceedings, and of associated proceedings, which had been organised to take place on 30 November 2016.

In the substantive proceedings, the first Plaintiff, Sharon Patricia Robinson, who is a child, and the second Plaintiff, Valmae Mary Cummings, who is the widow, of James Bartholomew Cummings (“the deceased”), by Summons filed on 25 August 2016, each makes a claim for a family provision order out of the estate and/or notional estate of the deceased pursuant to the Succession Act 2006 (NSW) (“the Act”), by way of greater provision than was made for her by his Will. They also seek an order that their costs of the proceedings be paid out of the estate.

The first Plaintiff played no part in the hearing of the notice of motion.

The second Plaintiff commenced her proceedings by her tutor, Anne Marie Casey, who is her daughter and the daughter of the deceased. The tutor has not brought any proceedings, herself, for a family provision order.

Uniform Civil Procedure Rules 2005 (“UCPR”), rule 7.16 provides that a tutor may not commence, or carry on, proceedings on behalf of a person under legal incapacity unless there have been filed the tutor’s Consent to Act as Tutor and a certificate, signed by the tutor’s solicitor, to the effect that the tutor does not have an interest in the proceedings adverse to that of the person under legal incapacity.

The tutor’s Consent to Act as Tutor was dated 16 August 2016 and was filed on 25 August 2016. It was in the form approved by the Uniform Rules Committee for use in civil proceedings in this Court. Within that Consent, after the signature of the tutor, was a certificate, signed by a solicitor (Ms H Baker) of the firm of solicitors representing the Plaintiffs in the proceedings, to the effect that “the tutor does not have any interest in the proceedings adverse to the interests of the person under legal incapacity".

The second Plaintiff is currently about 86 years of age. She and the deceased were married in August 1954 and remained married at his death on 30 August 2015. Accordingly, they were married for over 60 years.

There are also associated proceedings in which two other children of the deceased and the second Plaintiff, namely Anthony James Cummings and Margaret Mary McDonald-Kavanagh, also seek a family provision order out of the estate and notional estate of the deceased. Whilst they were represented at the hearing of the notice of motion by senior counsel and whilst they supported the applicant on the notice of motion, strictly speaking, they were not respondents to the notice of motion. The Court permitted their senior counsel to be heard only because there was no opposition to that course and because the Plaintiffs in the associated proceedings are family members and will be participating in the private mediation.

By her notice of motion, which was filed on 22 November 2016, the applicant, a person who, naturally, was not a party in the substantive proceedings, sought an order that the tutor be removed as the second Plaintiff’s tutor; that she be appointed as the second Plaintiff’s tutor; and that the Court make “such other and further order as the Court thinks fit”.

The applicant swore an affidavit that was read in support of the notice of motion.

The applicant commenced working for the deceased and the second Plaintiff, as a gardener, in about January 2004. She worked as a gardener until she resigned in December 2005 “for personal and family reasons”, but returned to work for them in March 2006, working four days a week, again as a gardener. In late 2008, the applicant commenced another separate job, two days per week, which enabled her to continue working for two days per week for the deceased as a housekeeper and in the office. In late 2009, she went back to working four days per week as a gardener, housekeeper and doing some office work. In 2011, the then farm manager having resigned, the applicant assumed the role of office manager and continued to undertake housekeeping, and occasionally, gardening work. In 2013, the deceased and the second Plaintiff came to live on the property known as Princes Farm on a full-time basis, and the applicant assumed the role of their full-time personal assistant and driver. In part, her role was to arrange and take the deceased to doctor’s appointments and help him with reading as his eyesight was failing. She did not assert any particularly close association with the second Plaintiff during this period.

Currently, the applicant works full-time on Princes Farm. She sees the second Plaintiff every day that she is at the farm, and she discusses, and organises, her needs with support staff and with Margaret (who also lives on the farm), one of the Plaintiffs in the associated proceedings.

The applicant also signed a Consent to Act as Tutor, on 22 November 2016, which Consent contained the certificate signed by her solicitor, Mr M Shehadie, to the effect that she did not have an interest in the proceedings adverse to the interests of the second Plaintiff.

In her affidavit, the applicant did not identify her employer. Senior counsel for the tutor and the second Plaintiff at the first hearing raised some concerns about this omission, seemingly suggesting that, perhaps, one of the second Plaintiff’s other children might be behind the application. He also suggested that her employer might have an interest adverse to the second Plaintiff.

The notice of motion was filed with a return date of 2 December 2016. The solicitor for the Plaintiffs in the associated proceedings, by email sent at 5:26 p.m. on that day to my Associate, provided a copy of the notice of motion and the affidavit in support and requested that “it be listed for an urgent directions hearing as soon as possible and prior to the end of this week”. He also adverted to the fact that there was a private mediation which the parties were to attend on 30 November 2016, “at great expense”.

At my request, my Associate immediately responded, by email, to all parties that “His Honour would be prepared to list this Notice of Motion tomorrow afternoon at 2:00 p.m. so as to avoid any risk that the mediation will not be able to proceed”.

My Associate received confirmation from each of the legal representatives, that the time suggested was suitable to each. Although it was too late to have the listing appear in the Court’s list, the notice of motion proceeded at that time.

When the notice of motion was called, Mr M Shehadie, solicitor, appeared for the applicant, Mr C Harris SC appeared for the second Plaintiff and her tutor in the substantive proceedings, Mr R Wilson SC appeared for the Plaintiffs in the associated proceedings, and Mr L Ellison SC appeared for the Defendants in each of the substantive proceedings. (On 25 November 2016, Ms S Warren of counsel appeared for the applicant.)

Following the reading of the notice of motion and the affidavit in support by Mr Shehadie, Mr Harris SC tendered some documents. Mr Wilson SC sought to file in Court and read an affidavit to which Mr Harris SC objected (as a copy had only been provided to his solicitors at Court) and which, subsequently, I rejected. Mr Ellison SC did not read any evidence or tender any documents.

The Plaintiffs in both proceedings and the applicant accepted that the second Plaintiff was a person under a legal incapacity and that she required a tutor. The Defendants did not dispute that the second Plaintiff required a tutor but were not prepared to admit that she did. (It seemed to me that this fact required confirmation, even though the applicant’s application was not for the removal of the tutor on the basis that the second Plaintiff no longer required one.)

In an application for removal, the tutor must establish that the appointment of the tutor continues to be justified in the circumstances: Coffey v Coffey (No. 2) [2015] NSWSC 338 at [5] and [10] (Slattery J).

When asked to identify the grounds on which the application to remove the tutor was being made, Mr Shehadie stated that the basis of the application was that the current tutor was a person who had an interest in the proceedings adverse to the interests of the second Plaintiff. When asked to identify the evidence in the applicant’s affidavit to support that ground, he stated that he was unable to do so and that what the applicant was relying upon was other evidence, filed in the substantive proceedings (to which no reference had been made at the hearing and no notice of reliance on such affidavits had, apparently, been given.)

When asked to identify that evidence, Mr Shehadie was unable to do so, submitting that he had not anticipated that the notice of motion was to be heard and determined. He then made an application to adjourn the notice of motion to later in the week to enable the applicant’s counsel to be available and to enable an opportunity to be given to identify and consider the evidence upon which it was intended to rely.

Mr Harris SC opposed the application to adjourn the notice of motion upon the basis that to do so was futile because the notice of motion was, on any view, hopeless. (He provided written submissions to support that proposition, to which I shall later refer.)

Because I considered that there might have been some ambiguity or misunderstanding regarding whether the listing of the notice of motion urgently meant that it would be heard at that time (“directions” having been adverted to in the email), I granted the applicant’s application for adjournment, but ordered her to pay the second Plaintiff’s and tutor’s costs of that day (which order Mr Shehadie did not oppose).

I made the order for costs because if there had been ambiguity or misunderstanding, it should have been resolved prior to the hearing of the notice of motion and also because Mr Shehadie should not have waited until submissions had begun to state that other evidence, which, up to that time, had not been adverted to, was to be relied upon in support of the notice of motion.

I then made directions regarding the service of an outline of submissions, which was to include a reference to the evidence already filed, upon which it was intended to rely. I adjourned the notice of motion until Friday 25 November 2016.

On 25 November 2016, the parties again appeared. Ms Warren of counsel sought to read the affidavit of Michael Jaloussis sworn 23 November 2016 (referred to earlier as the affidavit that had been rejected), to which, relevantly, was annexed a report of Dr M F Kakkat, a senior hospitalist, Geriatric Medicine, at Nepean Hospital. (The Macquarie Dictionary defines a hospitalist as “a medical practitioner who works in the public healthcare sector to provide cross-specialty expertise and facilitate a patient's access to a variety of medical services”.)

So far as is relevant, the report stated that the second Plaintiff had been seen at her home on 1 September 2016 in the presence of the tutor. It is unnecessary to set out all of the contents of the report, other than to note that:

There was no evidence by the applicant of how she came to know of, or otherwise be involved in, making the application. Her evidence regarding her role in the life of the second Plaintiff did not reveal how she would have known about the current proceedings or the nature of the claim of the second Plaintiff against the estate of the deceased.

I should also note that the applicant, in the evidence upon which Mr Shehadie relied in support of the notice of motion, did not disclose her financial and material circumstances and whether she had any ability to satisfy the second Plaintiff’s costs of her own solicitors, or to satisfy the order for costs, if any, that may be made in favour of the Defendants. This is relevant, as will be read when the evidence relied upon by Mr Harris SC is adverted to.

At the hearing on 23 November 2016, Mr Harris SC tendered and relied upon a letter dated 23 November 2016, sent by the Defendants’ solicitors (not by the applicant’s solicitors), to the Plaintiffs’ solicitors, requesting “your clients to produce at the listing the original or a copy of any will of [the second Plaintiff] made since 1 January 2014”: (Ex. NMP1). He also tendered and relied upon firstly, a Notice to Produce served upon the applicant in which she was required to produce:

At the hearing on 25 November 2016, the second Plaintiff’s tutor relied upon the certificate given by the solicitor that was included in the Consent to Act as Tutor. (In Saravinovska v (Chris) Saravinovski; Saravinovski v Saravinovski (No 5) [2015] NSWSC 128 at [36] – [48], Kunc J had dealt with the evidentiary nature of the solicitor’s certificate and concluded that a certification by a legal representative to the effect required by UCPR rule 7.18(5)(b) was evidence of the fact certified, and could be relied upon by the Court in the absence of evidence to the contrary, but that the facts stated in the certificate were not conclusive or irrebutable.)

In addition, Mr Harris SC tendered, as Ex. NMP3:

No ASIC search of the employer of the applicant, Stopoff Employees Pty Limited, was tendered.

In accordance with the directions made on 23 November 2016, the Court received submissions made on behalf of the applicant.

The applicant’s submissions included the following passage:

It was inferred, since “the estate” is not a juristic entity, that the applicant meant that her employers are the two Defendants, who are the executors of the estate of the deceased to whom Probate of the deceased’s Will was granted and who are directors of Stopoff Employees Pty Limited.

I have adverted to the affidavit evidence of the applicant. There is other evidence referred to in the applicant’s submissions.

The applicant’s submissions identified the following matters which were said to be relevant to the ground relied upon to remove the tutor:

It was then submitted that these matters led to the conclusion that the tutor had an interest adverse to that of the second Plaintiff and that the Court could not be satisfied that the second Plaintiff’s interests would be properly protected by her tutor; that there was a potential conflict of interest between the second Plaintiff and the tutor and that the latter’s “interest in the estate may be adverse to the interests of [the second Plaintiff] in these proceedings”.

(I should mention that despite the fact that none of the Trust Deeds were tendered on the notice of motion, the parties seemed to accept that each of the relevant trusts is of a character which may conveniently be described as a discretionary trust, that is to say, “another species of express trust, one where the entitlement of beneficiaries to income, or to corpus, or both, is not immediately ascertainable. Rather, the beneficiaries are selected from a nominated class by the trustee or some other person and this power may be exercisable once or from time to time”: Re Commissioner of Taxation v Vegners [1989] ATC 5274; [1989] FCA 480, at [12] (Gummow J); affirmed on appeal in Vegners v Federal Commissioner of Taxation (1991) 21 ATR 1347; [1991] ATC 4213. In other words, a discretionary object, prior to any appointment to him, her or it, under a power contained in the trust instrument, has no entitlement to any fixed beneficial interest, or proprietary interest, in the assets held on trust: Kennon v Spry (2008) 238 CLR 306; [2008] HCA 56.)

Mr Harris SC submitted:

I have dealt with some of the principles relating to the appointment of a tutor in Rappard v Williams [2013] NSWSC 1279 at [62] - [84]. It is not necessary to repeat all of what I wrote in that case, but the following principles stated in that case and otherwise appear to be particularly relevant:

In Yakmor v Hamdoush (No 2) [2009] NSWCA 284 at [45], Giles JA succinctly summarised the position of the tutor as follows:

In relation to the issue presently before the Court, there was no dispute that it is not appropriate for a person to be appointed as tutor where the proposed tutor has an adverse interest to that of the person to be represented and that the existence of a conflicting interest is a basis on which a tutor may be removed: Varma v Varma [2010] NSWSC 785 at [24] (Ward J, as her Honour then was).

In Douglas v Douglas [2004] NSWSC 279 at [18], Dowd J noted:

There was also no dispute that, where possible, the Court prefers to appoint a family member as tutor in preference to a stranger unless the interest of that family member is adverse to that of the incapacitated person: Deputy Commissioner of Taxation v P (1987) 11 NSWLR 200; Saravinovska v (Chris) Saravinovski; Saravinovski v Saravinovski at [34] (Kunc J).

That the tutor did not have any medical evidence to support the need for her to have a tutor seems, to me, to be irrelevant to the present application, since there does not appear to have ever been any dispute that the second Plaintiff is a person who requires a tutor. One might have thought if it had been in serious dispute that she required a tutor when the substantive proceedings had been commenced, that a notice of motion would have been filed by the second Plaintiff herself, upon ascertaining that the substantive proceedings had been commenced with a tutor, or by one, or more of her other children, seeking the removal of the tutor on the basis that the second Plaintiff did not require a tutor.

The applicant did not disclose in the written submissions how the fact that the tutor was a discretionary object of a number of the trusts in which the trustee was a company controlled by the Defendants, was an interest adverse to the second Plaintiff who was also a discretionary object. Nor did the argument become clearer during the oral submissions.

It cannot be in dispute that a discretionary object does not have a legal, or equitable, interest in any of the trust’s assets unless the provisions of the trust instrument create that result: see, CPT Custodian Pty Ltd v Commissioner of State Revenue of the State of Victoria (2005) 224 CLR 98; [2005] HCA 53. But a discretionary object does have a right to enforce the trustee’s obligation properly to exercise its discretionary powers and to compel proper administration of the trust: Gartside v Inland Revenue Commissioners [1968] AC 553, at 617–618; Spellson v George [1987] 11 NSWLR 300; Schmidt v Rosewood Trust Ltd [2003] 2 AC 709; Avanes v Marshall [2007] 68 NSWLR 595.

Having a mere hope, or expectation, that a trust will be exercised in her favour, does not mean that the interests of the tutor and the second Plaintiff are adverse. It is the trustee, of each trust, which, presumably, has the complete discretion as to distributions of income or capital. Any given discretionary object has no more than the equal right, with any other discretionary object, to be considered by the trustee of the relevant trust, as a potential recipient of distributions from the relevant trust.

As was written by Brereton J in Cypjayne Pty Ltd v Sverre Rodskog [2009] NSWSC 301 at [41]:

Furthermore, there was no evidence that the tutor has any present claim in respect of the second Plaintiff’s property. As the second Plaintiff is alive, assuming that she is a beneficiary named in the second Plaintiff’s Will, there is no evidence that she currently has any claim against the second Plaintiff’s estate, as a beneficiary, or under the Succession Act 2006 (NSW), or any interest to protect such future rights under that Act.

As was written by Kunc J, at [50], in Saravinovska v (Chris) Saravinovski; Saravinovski v Saravinovski (No 5) at [50] – [51]:

The evidence relied upon, in my view, does not disclose that the tutor has any adverse interest in the proceedings, or any other conflict, which would prevent her continuing to act as the second Plaintiff’s tutor. The application for the removal of the tutor and the appointment of the applicant as her tutor, therefore, was dismissed.

I should also mention that s 80 of the Civil Procedure Act 2005 (NSW) provides that on the application of the tutor for a person under legal incapacity, the Supreme Court may give directions with respect to the tutor’s conduct of proceedings, whether before the Supreme Court, or any other court, on behalf of that person. This power has been described by Slattery J as “a special power of advice and supervision between the tutor of a person under legal incapacity and the Supreme Court”: Smilevska v Smilevska [2015] NSWSC 1794 at [35].

Accordingly, if the tutor has any concerns regarding the conduct of the second Plaintiff’s proceedings, she may seek the directions of the Court.

Had I formed the view that the tutor did have an adverse interest, I would have had some difficulty appointing the applicant in any event as I am not satisfied that she has no interest adverse to that of the second Plaintiff. Where her employers are the Defendants named in the substantive proceedings, or where they are the directors of the company that is her employer, and where she is being indemnified as to her costs of the notice of motion and of the proceedings by a competing claimant upon the bounty of the deceased who has, himself, commenced proceedings, it seems to me that the applicant might very well find herself with a conflict of interest.

It has not been necessary to formally relist the matter to hand down these reasons as the applicant and the parties in these and the associated proceedings, requested that the Court should simply provide to each of the legal representatives who appeared a copy of these reasons. Each of the legal representatives has been advised when these reasons will be published and of the medium neutral citation.