Sloboda v Crawford

1. [1]

   These proceedings concern the estate of the late May Sloboda. Without disrespect, I shall refer to the parties and others by their given names.

2. [2]

   The plaintiff, Andrew Sloboda, and the defendant, Michael Crawford, are two of May’s now adult children. May’s estate is small, comprising a modest house at St Andrew’s (“Number 74”). By a will made on 20 October 2005 (the “Will”), May left her entire estate to Michael. Andrew seeks provision from May’s estate under s 59 of the Succession Act 2006 (NSW) (the “Act”).

3. [3]

   Michael has filed a cross-claim for a declaration that Number 74 is beneficially his and therefore forms no part of May’s estate. There was no dispute that Michael paid for Number 74. There was also no dispute that Number 74 was originally in the name of another brother, John, who subsequently transferred it to May.

4. [4]

   The essential factual dispute was whether May and her late husband, Marion, had repaid Michael what he had paid for Number 74. Andrew’s case was that they had. Michael denied he had ever been repaid for Number 74.

5. [5]

   Andrew’s case relied only on the testimony from him and his ex-wife, Maureen, as to what they say they had been told by May. The Court is not satisfied on the balance of probabilities that Michael was ever paid for Number 74 by Marion and May. On the contrary, the Court is satisfied that the Will was the means by which May intended to return Number 74 to Michael as its “true” owner.

6. [6]

   Both Michael and Andrew are in poor financial circumstances. However, in this case where it is a small estate and Michael paid for what is the estate’s sole asset, the Court in the exercise of its discretion will not make an order for additional provision for Andrew, notwithstanding that the Will does not make adequate provision for his maintenance and advancement in life.

7. [7]

   If it were necessary to decide, the Court would also find that Michael has at all times been the beneficial owner of Number 74.

The structure of these reasons

1. [8]

   Because of the view I have come to about Andrew’s claim under the Act, it is strictly not necessary for me to determine what might be called the trust aspect in this case. If Michael’s claim that Number 74 was never part of May’s estate is correct, then Andrew’s claim must fail because there is nothing from which an order for provision can be made. If Number 74 is part of her estate then I have determined this is not an appropriate case for a family provision order in any event. Therefore, after considering the facts, I will first deal with Andrew’s family provision claim. I will then express some brief conclusions about the trust issues.

The facts

1. [9]

   The background facts were all undisputed.

2. [10]

   May was born on 4 September 1928. She met and married Marion Joseph Sloboda in the United Kingdom.

3. [11]

   There were four children of the marriage: John, Andrew (born 1953), Michael (born 1955), and Linda.

4. [12]

   In 1970, May, Marion, Andrew, Michael and Linda immigrated to Australia. By this time, John was married and living in Scotland.

5. [13]

   After living in a migrant hostel, the family eventually moved into a housing commission residence in Macquarie Fields.

6. [14]

   It was common ground that Marion and May spent their working lives in relatively low income employment. Marion worked (at least for some time) in a job moving bales of wool. May was employed in a furniture factory as a process worker.

7. [15]

   In 1976, Andrew left home.

8. [16]

   In 1979, Michael was seriously injured in a motor vehicle accident.

9. [17]

   In 1985, Michael received a substantial compensation payment arising from his accident. He used that money to buy two houses in the suburb of St Andrew’s: Number 74 and another property to which I shall refer as Number 31. The purchase price of Number 74 was $55,000.

10. [18]

    Around this time, John had made unsuccessful efforts to emigrate to Australia. The family came to understand that John’s prospects of a successful application would be enhanced if he owned property in Australia. There was no dispute that Number 74, though purchased by Michael, was put into John’s name for the purpose of assisting John’s prospects of being allowed to come to Australia. John’s next application was successful and for about two and a half years John and his family lived in Number 74 before returning to Scotland. After that (in the late 1980s or early 1990s), May and Marion moved into Number 74 on the basis, the Court is satisfied, that Michael told them that they were free to live there for life.

11. [19]

    For the period between around 1985 and when they moved into Number 74, May and Marion had lived with Michael in Number 31.

12. [20]

    Michael divorced his first wife in 1986.

13. [21]

    Marion retired in about 1989.

14. [22]

    On the basis of four payslips for between November 1990 and February 1991 (addressed to her at Number 31), May’s net weekly income was approximately $270 or a net annual income of approximately $14,000.

15. [23]

    In around 1991 (Michael says 1990, but I note that the payslips for February 1991 are still addressed to May at Number 31), Michael sold Number 31 and moved to Queensland.

16. [24]

    Also in around 1991, May retired. Although it was a little unclear in the evidence when exactly May and Marion moved into Number 74, it could not have been later than at some point in 1991.

17. [25]

    There was in evidence a letter dated 9 December 1997 from Centrelink to May addressed to her at Number 74. This informed her that her age pension would be $285.70 per week. The same document noted that she was receiving rent assistance of $35.30 and that her annual income was $155 from financial investments of approximately $5,000 and a UK pension yielding approximately $8,800 per annum.

18. [26]

    In about 1999, Michael returned to New South Wales and moved into Number 74 with his parents.

19. [27]

    Also in 1999, Marion became terminally ill. John returned to Australia to visit his father and during the course of that visit John executed a power of attorney in favour of Michael on 7 July 1999.

20. [28]

    Marion died on 26 July 1999.

21. [29]

    In 2001, Andrew married his second wife, Maureen.

22. [30]

    In mid-2005, John transferred Number 74 to May. The transfer was executed for John by Michael pursuant to the power of attorney referred to in paragraph [27] above. The transfer in evidence is undated, however, it bears an Office of State Revenue stamp saying, “Vendor duty endorsed” and another stamp indicating that the transfer was exempt from duty by reference to “80(1)”. I have arrived at the date of mid-2005 because vendor duty was abolished in New South Wales on 2 August 2005. The parties accepted that the reference to “80(1)” was a reference to s 80(1) of the Duties Act 1997 (NSW) (the “Duties Act”) which was an exemption from duty afforded to first home buyers.

23. [31]

    On 20 October 2005, May executed the Will in the presence of Mr Banfield, solicitor, and a legal secretary. Mr Banfield is now dead. The Will appointed Michael as executor and gave him the entirety of May’s estate. If he did not survive her then the Will appointed as executors and gave the entirety of her estate to Andrew and Linda in equal shares. At the same May executed a general power of attorney and form of appointment of enduring guardian in favour of Michael. The alternative enduring guardians were listed as Andrew and Linda.

24. [32]

    Around this time, but before the execution of the transfer referred to in paragraph [30] above (matters which I infer from the content of the document), I am satisfied that Maureen at least wrote, and probably sent, this document to May and Michael (“Maureen’s letter”):

25. [33]

    Maureen’s letter was typewritten, but the signature is handwritten. As the letter also refers to Josh, I note that Josh was born in 2001.

26. [34]

    From around 2005, Andrew and Maureen lived with May in Number 74.

27. [35]

    In 2008, Andrew and Maureen separated.

28. [36]

    In 2011, Andrew became May’s carer and received a carer’s pension.

29. [37]

    May died at the age of 87 on 2 December 2015.

30. [38]

    On 5 August 2016, probate for the Will was granted to Michael. Matters had clearly become tense between Michael (who was living in a remodelled garage at Number 74) and Andrew.

31. [39]

    On 16 November 2016, Michael left this handwritten note on the door of Number 74:

32. [40]

    Shortly thereafter Andrew left Number 74.

33. [41]

    On 22 November 2016, Andrew filed his summons in these proceedings for family provision.

34. [42]

    Since Andrew left Number 74, Michael has been living there with his estranged spouse and their child.

35. [43]

    On 14 June 2017, Michael filed his cross-claim asserting that Number 74 was beneficially his and had never formed any part of May’s estate.

36. [44]

    At the date of hearing, Andrew was aged 64 and Michael was 62.

Other undisputed facts

1. [45]

   A number of other background matters were not in dispute.

2. [46]

   Andrew’s claim has been brought in time and he is an eligible person. Ignoring what might be termed peripheral allegations of a kind which are common in this type of litigation, it is clear that both Michael and Andrew enjoyed good relationships with May. Both cared for her in health and, in her later years, in sickness. Insofar as this type of language remains relevant to applications under the Act, I have no doubt that they both have a moral claim to her bounty. Both are in straitened financial circumstances.

3. [47]

   Andrew is 64 years old and has minimal assets and savings. He is unemployed and on a Newstart pension. He has had to move in with his 33-year-old daughter, his 12-year-old granddaughter and his daughter’s boyfriend and the boyfriend’s sister. Andrew contributes $100 a week to rent and makes other contributions to the household. He has a credit card debt of $11,000, no assets to speak of and his only income is the Newstart allowance. While he is not unhappy living with his daughter, he understandably wants his own space. He makes a claim on the estate of $100,000 based on purchasing a motorhome or caravan, valued between $50,000 and $60,000, which he would park in a permanent caravan park. He then would have to have funds to meet the rent in such a park of between $150 and $200 per week.

4. [48]

   Michael’s only source of income is also a Newstart allowance of $280 per week. He has applied for a disability pension owing to various physical and psychological difficulties from which he suffers. Ignoring Number 74, he has minimal assets consisting of $9,000 in a bank account, a Toyota motor vehicle with an estimated value of $11,000 and household contents with an estimated value of $12,000. His liabilities consist of credit card debts of $300 and his liability for the costs of the proceedings. He is separated from his wife, Elizabeth, but they continue to reside in Number 74 with their nine-year-old daughter. Michael’s wife works as an aged care nurse and has an income of $1,121 per week.

5. [49]

   The sole asset of May’s estate is Number 74, which has an estimated value of $580,000. Assuming it were to be sold and allowing for the defendant’s costs of the proceedings it was agreed that this left an estimated distributable estate of $488,544.70. Assuming Andrew is successful, the estate would be reduced by approximately a further $63,500 in relation to Michael’s costs and disbursements on the ordinary basis.

The central factual question

1. [50]

   Against the background of so many uncontroversial matters, in my view the case turns on the answer to this question: did Marion and May repay Michael what Michael had paid for Number 74? There was no dispute that, whether by an express or resulting trust, Number 74 was beneficially Michael’s while it was held by John. Whether that position changed when or after Number 74 was transferred by John to May largely turned on whether Marion and May had paid Michael for the cost of Number 74.

2. [51]

   A positive answer to this question was the basis of Andrew’s contention that Number 74 was legally and beneficially May’s and therefore part of her estate. There was no dispute that Andrew bore the onus of satisfying the Court to the level of actual persuasion on the balance of probabilities that such a repayment had, in fact, occurred. For the reasons which follow, I am unable to reach such a state of actual persuasion.

3. [52]

   No one was able to provide any documentary evidence that shed light on this question one way or the other. Andrew accepted in cross-examination that his case on this point depended entirely on what he said he had been told by May.

4. [53]

   Andrew’s evidence may be summarised by what appears in his affidavit of 16 November 2016:

5. [54]

   Maureen’s affidavit evidence was:

6. [55]

   Michael denied this version of events and said that the transfer from John to May was the product of two things: first, a fear on the part of May that if Michael ever sold Number 74 she would have to go into a retirement village; and, second, that if Michael ever went through another divorce, Number 74 might be lost in any property settlement. Michael’s affidavit response included:

7. [56]

   Linda’s evidence given in Michael’s case did not directly address the question of the alleged payments from Marion and May to Michael. Her affidavit evidence of 9 June 2017 was:

8. [57]

   Linda’s oral evidence was to the effect that, “We all knew Michael owned the house” and that the arrangement had been that Michael had bought Number 74 (which was first in John’s name, then in May’s name) on the basis that May could live there for the whole of her life.

9. [58]

   Unsurprisingly, John was unable to cast any light on the question of the alleged payments. His affidavit evidence of 2 October 2017 was:

10. [59]

    I approach this question on the basis that Andrew must satisfy the Court on the balance of probabilities, but to the level of actual persuasion and bearing in mind the importance or seriousness of the question in the context of this case. I respectfully adopt what was said by Emmett J (as his Honour then was) in the matter of Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123, (2011) 297 ALR 56:

11. [60]

    Mr L Ellison of Senior Counsel, who appeared for Andrew, submitted that I should give considerable weight to Maureen’s evidence as the closest to a disinterested witness in this case. I do not accept that submission for two reasons.

12. [61]

    First, the fact that Andrew and Maureen are divorced does not in and of itself support the conclusion that she is, to any extent, disinterested. Her own affidavit evidence was that, “Although Andrew and myself no longer live together as husband and wife, we have remained close friends as we have a son together.” Without intending any criticism, my firm impression was that Maureen was very much “in Michael’s camp.”

13. [62]

    Second, I found her denial in relation to Maureen’s letter (see paragraph [32] above) to be completely unconvincing. The copy tendered into evidence bore what she admitted was her own handwriting saying, “Maureen, Andrew and Josh xx.” It was an original document. Confronted with the document, she forcefully asserted several times that she had never seen its contents before. Other than her denials, there is nothing to suggest that Maureen’s letter is not genuine. I find that it is genuine. It is unnecessary for me to determine whether her assertions were the product of a bad memory or a desire to deceive the Court. Whatever the reason, her response completely undermined any confidence I may have had in her as a reliable witness.

14. [63]

    Weighing Andrew’s evidence on this point against the following matters, I am unable to reach a state of actual persuasion on the balance of probabilities that Marion and May paid Andrew for Number 74. It is the accumulated weight of the following matters that has led me to this position.

15. [64]

    First, Mr J Armfield of Counsel, who appeared for Michael, submitted that what was known about Marion and May’s financial position made it highly unlikely that they could ever have repaid Michael, even over a period of time, what he had paid for Number 74. Looking at the limited evidence about their financial circumstances (see paragraphs [22] and [25] above), that submission must be accorded some weight. However, what I find particularly persuasive, and which enables me to accept Mr Armfield’s submission, is the overall history of Marion and May in relation to accommodation. The evidence is that they were frugal people who lived on relatively low incomes. Before they moved into Number 31 and then Number 74, it was accepted that they had lived their entire lives in Australia (other than for a few months at the outset) in Housing Commission accommodation.

16. [65]

    There is no suggestion they ever attempted to buy their own home and I infer from that and the evidence, such as it is, that they would never have been able to have afforded to do so. In particular, I am satisfied that it is highly unlikely that they could have ever obtained a loan. This casts serious doubt on Maureen’s evidence that May told her and Andrew that they (May and Marion) had taken out a loan to pay Michael out, particularly when the chronology suggests that this would have happened when both Marion and May were retired and living on pension income. No mortgage or caveat has ever been registered over Number 74. It is this last mentioned factor of retirement that I also take into account. It seems to me highly unlikely that they would have been able to have a loan or to have afforded to have paid Michael out once they were in retirement. Finally, given that their financial resources were obviously always somewhat limited, why would they have imposed on themselves the burden of paying Michael out when, as I accept, he had never asked for repayment and had told them they could stay in Number 74 for life? He reiterated this offer to May after Marion’s death.

17. [66]

    Second, the third paragraph of Maureen’s letter paints a completely different picture of why Number 74 was being transferred to May. If, in fact, May and Marion had paid Michael what he had paid for Number 74, that would have been a simple and straightforward explanation.

18. [67]

    Third, there was uncontested evidence that Michael had made improvements to Number 74 over the years to a value of approximately $36,000. Even accepting that he was living there, making such improvements seems an entirely incongruous course of action if one understood that the property was not his because he was being paid for it by May and Marion.

19. [68]

    Fourth, Michael’s explanation for why the transfer occurred (see paragraph [55] above), strikes me as inherently probable, especially when there was already history in the family of Number 74 being put in particular people’s names for particular purposes. Quite apart from assuring her own peace of mind, putting Number 74 in May’s name to avoid adverse consequences if Michael went through another divorce, seems to me to be entirely plausible.

20. [69]

    For these reasons I am not satisfied that Michael was paid by Marion and May for Number 74. Furthermore, for the same reasons, I accept Michael’s evidence that he was in fact not paid by them and that the arrangement between him and Marion was for the legal ownership of Number 74 ultimately to reflect his beneficial ownership through the mechanism of the Will.

The Act

1. [70]

   Part 3.2 of the Act deals with family provision orders. Division 1 of that part identifies in s 57 who are “eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person.” Section 58(2) requires an application for a family provision order to be “made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown.”

2. [71]

   Division 2 of Part 3.2 of the Act deals with determination of application for family provision orders. For the purposes of these proceedings, the relevant provisions are:

3. [72]

   In West v Mann [2013] NSWSC 1852 at [9] to [11], I explain the reasons for the approach I adopt to applications under the Act. That is how I will proceed in this case.

4. [73]

   By reference to the language of the Act the questions and issues which the Court must take into account are:

   1. (1)

      Is the person who has applied to the Court for a “family provision order” (as defined in s 3 of the Act) an eligible person under s 57 of the Act? In accordance with s 60(1)(a), the Court may (not must) have regard to the matters set out in s 60(2) in determining whether that person is an eligible person. It is not readily apparent how many of those matters could be relevant to the issue of eligible person, but nothing turns on that observation.

   2. (2)

      If the answer to question (1) is “yes”, has the application been filed in the Court’s Registry not later than 12 months after the deceased’s death (ss 58(2) and (3))?

   3. (3)

      If the answer to question (2) is “no”, has the eligible person who has brought the application shown sufficient cause for the Court to order otherwise to extend the date for the filing of the application in the Court’s Registry (ss 58(2) and (3))?

   4. (4)

      If the answer to question (2) is “yes” or the Court has otherwise ordered under s 58(2), is the Court satisfied that the person in whose favour the order is to be made (the “applicant”) is an eligible person (s 59(1)(a))? In reaching the requisite state of satisfaction the Court may (not must) have regard to the matters set out in s 60(2). As a theoretical matter this question admits of the possibility that “the person in whose favour the order is to be made” is not the person who has brought the application (in which case, the latter must also be an eligible person).

   5. (5)

      If the answer to question (4) is “yes”, what provision has been made for the proper maintenance, education or advancement in life of the applicant by the deceased’s will or by the operation of the intestacy laws (the “Provision”)?

   6. (6)

      Is the Court satisfied, at the time when the Court is considering the application, that the Provision is not adequate for the proper maintenance, education or advancement in life of the applicant?

   7. (7)

      If the answer to question (6) is “yes” (i.e. the Court is satisfied the Provision is not adequate for the specified purpose) then the Court’s discretion conferred by the chapeau to s 59(1) to make a family provision order in favour of the applicant (the “Discretion”) is enlivened.

   8. (8)

      Once the Discretion is enlivened then, noting s 59(2), what provision, if any, does the Court think ought to be made for the proper maintenance, education or advancement in life of the applicant, having regard to the facts known to the Court at the time the order is made (the “Proposed Provision”)? This is an evaluative judgment which arises from the word “ought” and requires examination of the applicant’s needs. In making this judgment the Court may (not must) have regard to the matters set out in s 60(2) (“the nature of any such order”: s 60(1)(b)).

   9. (9)

      Having answered question (8), should the Court exercise the Discretion to make an order for the “Proposed Provision”? In deciding whether to exercise the Discretion to make such an order, the Court may (not must) have regard to the matters set out in s 60(2) (“whether to make a family provision order”: s 60(1)(b)).

   10. (10)

       Section 60(2) provides a helpful checklist but it is no more than that. The Court is not obliged to take those matters into account. The extent to which it does (if at all) will depend upon the facts of each particular case.

   11. (11)

       Section 60(2)(p) confirms the breadth of matters the Court can take into account. Once enlivened, the Discretion is expressly fettered only by the requirement in s 59(2) that if an order is made, it must be such order “as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made”. The Discretion is otherwise unconfined, which means that in answering question (8) the Court is otherwise constrained only by the need to act judicially, that is to say “not arbitrarily, capriciously or so as to frustrate the legislative intent”: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [22] per Gaudron and Gummow JJ. The Court must act rationally and exercise the Discretion for the purpose for which it was conferred.

Uncontroversial matters

1. [74]

   Because Andrew is May’s son, he is an eligible person under s 57 of the Act. The summons was filed less than 12 months after May’s death. It follows that the questions set out in sub-paragraphs (1), (2) and (4) of paragraph [73] above are all answered, “Yes.”

2. [75]

   The provision referred to in the question posed in subparagraph [5] of paragraph [73] above is nil.

Has adequate provision not been made for Andrew?

1. [76]

   It is next necessary to consider what is sometimes referred to as the jurisdictional question. This is set out in subparagraph [73(6)] above, namely whether the Court is satisfied, at the time when the Court is considering the application, that the provision for Andrew is not adequate for his proper maintenance, education or advancement in life. If that question is answered, “Yes,” then the Court’s discretion to make a family provision order in favour of Andrew is enlivened.

2. [77]

   In Verzar v Verzar [2014] NSWCA 45, Meagher JA, with whom Macfarlan and Barrett JJA agreed, summarised the legal principles governing this stage of the inquiry:

3. [78]

   In addition to the passage from Verzar quoted in the preceding paragraph above, I also respectfully adopt what Hallen J said in Camernik v Reholc [2012] NSWSC 1537 both as to the general approach to be adopted to applications for family provision and general observation concerning claims by adults and children:

4. [79]

   Applying the principles just set out, the Court is satisfied that the provision is not adequate for Andrew’s proper maintenance, education or advancement in life. The question posed in subparagraph [73(6)] above is answered, “Yes.” The reason for this is that, as I have said, Andrew does have a moral claim on May’s testamentary bounty, not least as an adult child who had been a dutiful son and who has no real reserves for the future. That claim is obviously not met by his exclusion from the Will.

What provision ought to be made for Andrew

1. [80]

   The various considerations under s 60 of the Act are well-known. I accept Mr Armfield’s observation that, had the estate been larger, Andrew would have had a good case for additional provision. However, in the exercise of the Court’s discretion, the Court declines to order further provision for Andrew for these reasons:

   1. (1)

      The small size of May’s estate.

   2. (2)

      The fact that Michael had paid for Number 74 and had never been paid for it by anyone.

   3. (3)

      There is no suggestion that in permitting the transfer to May, Michael ever intended to abandon his status as the “true” owner of Number 74.

   4. (4)

      Any order would dispossess Michael from his home, to which he has also made additional improvements. I do not accept Mr Ellison SC’s submission that this could be cured by a reverse mortgage. This still, in effect, requires Michael to part with what was his and fetters his ability to deal with it.

2. [81]

   For these reasons, the Court declines to exercise its discretion to make a family provision order in favour of Andrew and answers the question posed in subparagraph [73(8)] above, “No.”

The trust issues

1. [82]

   By his cross-claim, Michael sought this declaration:

2. [83]

   In addition to denying that Michael was entitled to such a declaration, the Court gave leave to Andrew to amend his defence to the cross-claim to plead these special defences:

3. [84]

   I will briefly express my conclusions on the questions raised by the cross-claim, notwithstanding that as I explained in paragraph [8] above, it is strictly not necessary for me to do so.

4. [85]

   My conclusions are:

   1. (1)

      By reason of the factual findings I have made above, I am satisfied that the benefit of Number 74 has, at all times, been Michael’s. In those circumstances, and absent any disentitling factors, Michael would be entitled to the declaration that he seeks in the cross-claim.

   2. (2)

      I do not consider there has been any disentitling or disqualifying delay in Michael’s asserting his interest. This is because no occasion has arisen where he has been required to or ought to have done so until Andrew brought these proceedings. Nor is there any evidence that Michael’s lawyers sought to obtain evidence which is no longer available due to the passage of time.

   3. (3)

      It is clear that a trustee would not have been eligible for the duty exemption under the First Home Buyer’s Scheme (see s 73(1) of the Duties Act). However, the evidence does not permit the conclusion that is what was done, given that we have no evidence of what passed before Mr Banfield. Even if it was, the transfer would have been subject to only nominal duty if it had been characterised as the transfer from one trustee to another (see s 54 of the Duties Act). I accept Mr Armfield’s submission that, applying Nelson v Nelson [1995] HCA 25; (1995) 184 CLR 538, there is no conduct proven in this case that would disentitle Michael from the declaration he seeks.

   4. (4)

      Even if the transfer to May was done with some intention to defraud the revenue (and the evidence does not permit and I make no such finding), there is no evidence that Michael was a knowing participant. Therefore, the defences of lack of clean hands, estoppel or similar must fail.

5. [86]

   I will give the parties an opportunity to address on the form of orders required to give effect to these reasons.

Postscript

1. [87]

   Mr Armfield persuaded me that there is utility in the Court making the declaration sought by Michael, in particular to facilitate transferring the registered title to Number 74 to Michael. Mr Ellison SC does not oppose this.

2. [88]

   The orders of the Court are as follows:

   1. (1)

      The summons is dismissed.

   2. (2)

      The Court declares that the property situated and known as 74 XXX, St Andrews, NSW, 2566 Folio Identifier XXXX is held by the said Michael Crawford as the executor of the estate of the late May Sloboda on trust for the benefit of the said Michael Crawford absolutely.

   3. (3)

      The plaintiff is to pay the defendant/cross-claimant’s costs of the summons and the cross-claim.

   4. (4)

      The exhibits are to be returned to the parties to be held by them in accordance with the applicable practice note.