Maria Do Rosario Mendonca Rosa v Lynette Joy Cirulis [1993] ACTSC 2 (25 January 1993)

SUPREME COURT OF THE ACT

MARIA DO ROSARIO MENDONCA ROSA v. LYNETTE JOY CIRULIS
No. SC 1239 of 1987
Number of pages - 10
Practice and Procedure - Testators Family

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Master A. Hogan(1)

CATCHWORDS

Practice and Procedure - Amendment - Whether useless - No issue of principle.

Testators Family - Maintenance - Widow in Portugal - Deceased in Australia - Common matrimonial property - After acquired property - Propretory claim - Estate fully administered before proceedings - Arguable case - Proper parties.

In Re De Nicols; De Nicols v Curlier (1900) 2 Ch 410

In the Marriage of Hannema (1981) 54 FLR 79

Re Donnelly (1927) 44 WN (NSW) 72

Heuston v Barber (1992) 19 NSWLR 354

Family Provision Act 1969 (ACT) Ss 20(1); 20(2)

HEARING

CANBERRA, 13 November 1992
25:1:1993

Counsel for the Plaintiff: M.M. Hilbery

Instructing Solicitors: Macphillamy Cummins and Gibson

A. Bradbury

Counsel for Executrix: P. Sheils QC

Instructing Solicitors: Scott Sheils Glover
M. Scott

ORDER

THE COURT ORDERS THAT:
1. I decline to set aside the leave to make the amendment which was granted on 14 October 1992.
2. The plaintiff pay the costs of the application heard on 14 October 1992 and the costs of and occasioned by the amendment, leave to make which was granted on that day.

3. The application for security for costs be dismissed.
4. The defendant pay the plaintiff's costs of the application for
security for costs.

DECISION

MASTER A. HOGAN. This suit was commenced by Originating Summons taken out on 13 October 1987. The plaintiff is the lawful widow of Jose Rosa. He died in the Australian Capital Territory on 15 October 1986. In the Summons the plaintiff claimed that she had been left without adequate provision for her proper maintenance and support and sought orders for such provision to be made out of his estate pursuant to the Family Provision Act 1969.

2. The plaintiff and the deceased were born in Portugal. They married in Portugal on 17 October 1942. A daughter was born to them there on 24 March 1943 and a son on 4 January 1945.

3. In 1952 the deceased migrated to Australia. His wife and children did not accompany him then. Their son migrated to Australia in 1961. The daughter later spent some years in Australia and returned to Portugal to live with the applicant, who has never come to Australia.

4. In 1957 the deceased began to live in a defacto relationship with Sonya Carola Katchen Rosa.

5. About a month before his death, on 17 September 1986, the deceased made a will, in which he named the defendant as executrix. The deceased left real estate and personal property in the ACT, and real estate in NSW. He also possessed real estate in Portugal. Probate of the will was granted to the defendant by this Court on 27 November 1986. Reseal was granted by the Supreme Court of New South Wales on 17 February 1987.

6. By the will dated 17 September 1986 the deceased left to his defacto wife, Sonya Carola Katchen Rosa, the cash in his bank account and two parcels of real estate in Downer ACT. He left the residue of the estate to his son. He made no provision for his lawful widow or for his daughter.

7. The defendant executrix proceeded to administer the estate, and I understand it to be common ground that when these proceedings began she had fully administered it and had no assets of the estate in her possession or under her control.

8. On 8 December 1989 an application by the defendant to dismiss the proceedings for want of prosecution was dismissed by consent, the plaintiff being ordered to pay the costs of that motion. By that date a number of affidavits had been filed both on behalf of the plaintiff and of the defendant.

9. On 19 February 1992 the plaintiff's solicitor applied to the Registrar to fix a listing conference on the ground that a certificate of readiness served by them on the defendant's solicitors on 28 October 1991 had not been returned.

10. Apart from that, the Court file does not disclose any action taken by either side until, on 13 October 1992, solicitors for the plaintiff filed a Notice of Motion, returnable on 14 October 1992, seeking an order that the plaintiff have leave to amend the Originating Summons by adding a claim for a declaration that all the property acquired by the deceased after 17 October 1942 was acquired as joint tenant with the plaintiff, and that the title to the property vested in the plaintiff on his death on 15 October 1986.

11. On 14 October 1992, the last day of a period of 6 years from the date of the death of the deceased, there was no Court time available for the matter to be properly argued, so I made an order granting leave to the plaintiff to make the amendment sought, the actual terms of the amendment having been expanded during the hearing from that first sought in the Notice of Motion. I adjourned the matter until 23 October 1992 for directions, those directions to include argument on whether the amendment was one that could properly be made.

12. On 15 October 1992 the defendant filed a Notice of Motion, also returnable on 23 October 1992, seeking an order for security for costs.

13. Both those applications were then adjourned to 13 November 1992, to enable argument to be presented by counsel.

14. For present purposes the evidence may be summarised as follows.

1. The plaintiff and the deceased were lawfully married in Portu gal
in accordance with the law of Portugal.
2. By the law of Portugal, the circumstances of the marriage wer e
such that their property rights were governed by the provisions
of community of property.
3. By the law of Portugal, under the community of property
provisions, the common matrimonial property includes all present
and future property of both parties to the marriage, except those
specifically excluded by Statute, which may be described as
"personal assets". The statutory exceptions are not here
relevant.

15. It was argued that the community of property regime therefore applied to the real property acquired by the deceased after he became domiciled in Australia.

16. Against that, it was submitted that the deceased had acquired a domicile of choice in Australia, which meant that his wife was also domiciled here, so that the law of Portugal no longer governed their rights with regard to real estate later acquired by him in Australia.

17. I do not think that for the purposes of this application I need to analyse the contentions in any depth. In the light of the decisions of Kekewich J in In Re De Nicols; De Nicols v Curlier (1900) 2 Ch 410 and of Nygh J in In the Marriage of Hannema (1981) 54 FLR 79, it is clear that the propositions for which counsel for the plaintiff contends are at least arguable. I am certainly not prepared to set aside the amendment on the basis that it is one giving rise to a case that clearly could not succeed.

18. The second difficulty confronted by the plaintiff arises from the fact that the estate had been fully administered before the Originating Summons was issued.

19. The first answer to that is that the amendment raises a claim to a legal title in the property that the testator purported to dispose of by his will. That remains also an arguable proposition.

20. If the proprietary claim were not upheld, it was submitted, Section 20(1) of the Family Provision Act 1969 allows provision to be made out of property that has been distributed notwithstanding the distribution, subject only to subsection 20(2). It is at least arguable that that subsection does not prevent the making of an order in this case.

21. In this respect the Territory legislation differs markedly from the Family Provisions Act 1982 of NSW, and the decision of Master Windeyer (as he then was) in Heuston v Barber (1990) 19 NSWLR 354 is distinguishable on a number of grounds.

22. In this present case there was both real and personal estate in the Territory which formed part of the estate. Whether the real estate in New South Wales could be affected by an order made under the Territory legislation I do not need to decide.

23. There is another matter referred to in that case by Master Windeyer, at p 361 G, which the parties may wish to consider. That is, whether it would be appropriate for the beneficiaries under the will to be made defendants to the action, and for the defendant executrix to be dismissed from it. Having heard no argument on the matter I have no view either way, but it is a question that it would seem wise for the parties' legal advisers to consider.

24. I therefore come to the conclusion that the amendment that I granted leave to make on 14 October 1992 was one that could properly be made.

25. On the question of security for costs, I do not think that the decision in Re Donnelly (1927) 44 WN (NSW) 72 stands in the way of my making an order. On the evidence the plaintiff is not entirely without means, and to make an order would not clearly make it impossible for her to prosecute the claim.

26. It is relevant that the plaintiff has already consented to an order for costs of an interlocutory application, and has not yet paid them. It does not appear on the evidence, however, that she has ever been notified of the amount sought to be paid, or that any formal demand for payment has been made to her.

27. I think it is also relevant that the defendant is really only a nominal defendant, and is entitled to indemnity for her own costs from the beneficiaries under the will.

28. Even if the plaintiff were to fail in her application for relief under the Statute, it does not necessarily follow that she would be ordered to pay the defendant's costs. In this type of litigation costs of an unsuccessful applicant may well be ordered to be paid out of the estate. I do not have sufficient information before me to enable me to say that such an order is unlikely to be made in this case. Another possibility is that the Court might simply make no order for the costs of the plaintiff, leaving her to bear her own costs and the beneficiaries to bear the costs incurred by the estate in defending their interests. It does not appear that the circumstances of this litigation are such that an order for costs against this plaintiff is more likely than not.

29. The affidavit sworn by the executrix in support of the application states that the application made on her behalf by Notice of Motion dated 17 November 1989 was one for security for costs. It is clear from the Court record that she is mistaken. It was an application to dismiss for want of prosecution.

30. There is no evidence in support of this application quantifying the sum of money that would be a reasonable provision for the costs of the defendant, even if an order were made in her favour.

31. In the exercise of my discretion I am not persuaded that the mere residence of the plaintiff outside Australia, or the interests of justice otherwise, require the making of an order for security. I dismiss the application for security for costs.

32. In the result, the plaintiff succeeds on her application to amend. She should pay the costs of and incidental to the amendment.

33. However, the defendant has chosen to contest her right to have that amendment upheld. She has been unsuccessful in that application. She has also failed in her application for security for costs.

34. I therefore order the plaintiff to pay the costs of the application heard on 14 October 1992, which I reserved on that day, and the costs of and occasioned by the amendment.

35. The costs of the mention on 23 October 1992 have already been ordered, by consent, to be costs in the cause.

36. I order the defendant to pay the plaintiff's costs of the application for security for costs.