Caldar and Estate Late Gittoes v Public Trustee [2005] NSWCA 3 (19 January 2005)

CITATION: Caldar and Estate Late Gittoes v Public Trustee [2005] NSWCA 3

FILE NUMBER(S):

41204/04

HEARING DATE(S): Wednesday 19 January 2005

JUDGMENT DATE: 19/01/2005

PARTIES:

Russell Caldar

The Estate of the Late Mrs Rachel Isobell Gittoes

Public Trustee of New South Wales

JUDGMENT OF: Tobias JA

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 13973/04

LOWER COURT JUDICIAL OFFICER: Hidden J

COUNSEL:

SOLICITORS:

Cl: In person

Opp: L Ellison / J Patey

CATCHWORDS:

PROCEDURE - Application for stay of execution of writ of possession - Circumstances in which Court will exercise discretion in favour of granting a stay - Whether appeal would be rendered nugatory if stay not granted - Whether claimaint has arguable case on appeal

WILLS PROBATE AND ADMINISTRATION - Administration of will by Public Trustee - Sale of property required to cover debts of estate - Writ of possession obtained by Public Trustee - Claimant claiming property in specie - Claimaint had lived in and maintained property

LEGISLATION CITED:

Wills Probate Administration Act 1898

Trustee Act 1925

Wills Probate Administration Act

DECISION:

Notice of Motion dismissed with costs

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 41204/04

SC 13973/04

TOBIAS JA

Wednesday 19 January 2005

RUSSELL CALDAR AND THE ESTATE OF THE LATE MRS RACHEL ISOBELL GITTOES v PUBLIC TRUSTEE OF NEW SOUTH WALES

Judgment

1 TOBIAS JA: Rachel Isobell Gittoes died on 27 April 2001, leaving a will dated 21 July 1967 by which she appointed her husband, Harry Victor Gittoes, and her solicitor, John Norman Stephen Jackson, executors and trustees thereof. Harry Victor Gittoes pre-deceased the deceased and John Norman Stephen Jackson renounced probate. Accordingly, under the provisions of the Wills Probate Administration Act 1898, the Public Trustee was on 20 May 2002 appointed administrator with the will annexed of the estate of the deceased.

2 By the terms of her will the deceased gave, devised and bequeathed all her real and personal property of which she should have power of disposition at the time of her death unto her trustee upon trust to

“sell, call in and convert the same into money at such times and in such manner as he shall think fit with power to postpone the sale, calling in and conversion of the whole or any part thereof during such period as he shall think proper without being responsible for loss.”

3 The will then provided for the trustee to pay out of the moneys arising from the sale, calling in or conversion of the deceased’s property, her just debts, funeral and testamentary expenses, and to thereafter stand possessed of

“the residue of the said moneys or investments for the time being representing the same and all such parts of my estate as shall for the time being remain unsold or unconverted upon trust for my sons Allan Ramon Gittoes and Russell Graham Gittoes as tenants in common and equal shares.”

4 It seems common ground that the only substantial asset of the estate of the deceased was a property located at 36 Arthur Street, Dee Why, to which I shall hereafter refer as “the property”. The property remains unsold although I was informed from the Bar table that there are debts of the estate in the order of some $90,000, which have been incurred by the Public Trustee in its administration.

5 The deceased lived in the property with her son, the claimant, up until 1996 when she was admitted to a nursing home where she remained until her death. The claimant has resided in the property since 1952, some 53 years. After his mother was admitted to the nursing home, he continued to care for and maintain the property and until her death he was authorised to operate on the deceased’s bank account for the purpose of paying outgoings in relation to the property which, to the extent to which they were insufficient, he subsidised out of his own pocket.

6 It would also appear that the claimant has at all times maintained that at the very least he is entitled to have the property, or at least his one half share interest in the property transferred to him in specie. That could only be achieved if the Public Trustee transferred the property both to the claimant and to his brother as tenants in common in equal shares. However, it appears that Mr Allan Gittoes does not wish to have the property transferred to him but wishes it to be sold in accordance with the terms of the will and for the proceeds of sale to be divided equally between the two beneficiaries after payment of the estate’s debts. In this respect the payment of the debts of $90,000 to which I have referred can only be sourced out of the sale of the property there being no other available funds.

7 To this end, the Public Trustee has sought to obtain possession of the property from the claimant so that it can be sold with vacant possession. Accordingly, on 24 June 2003 the Public Trustee obtained an order for possession of the property, the execution of which the claimant has since resisted in numerous pieces of litigation that he has instituted.

8 On 14 September 2004 the claimant filed a statement of claim in the Equity Division of the Supreme Court in which he sought an order that the property be transferred to him and his brother as tenants in common. It would appear that the claimant’s intent was that if this occurred he would be entitled to remain in possession of what has been his home since 1952. This statement of claim was amended and on 11 November 2004 the Public Trustee applied by summons in the Equity Division of the Court to have the amended statement of claim struck out on the basis, as I understand it, that it did not disclose a cause of action.

9 Master Macready heard the motion. On 26 November 2004, he upheld the Public Trustee’s arguments and dismissed the proceedings, that is, the proceedings constituted by the amended statement of claim. The claimant has appealed from Master Macready’s order to a single judge of the Equity Division of the Court by summons returnable on 17 February next.

10 There have been numerous other proceedings between the parties including an application by the claimant to the Equity Division of the Court under the Family Provision Act, which was dismissed by Master McLaughlin late last year. I am informed from the Bar table that a holding appeal has been lodged by the claimant against the Master’s decision which has not been further progressed. However, it seems common ground that so far as that application was concerned, it was not contended by the claimant before Master McLaughlin that he was entitled to the whole of the estate of the deceased or, more relevantly, to the whole of the property.

11 On 17 November 2004 a writ of possession was issued out of the Common Law Division of the Court to give effect to the order for possession made in favour of the Public Trustee on 24 June 2003. It is to be executed on 24 January 2005. The claimant, on a date of which I am unaware but which appears to have been probably in December of last year, issued a summons in the Common Law Division of the Court seeking an order staying the execution of the writ. On 13 December 2004 Justice Hidden dismissed that summons upon the basis, as was the case with the amended statement of claim dismissed by Master Macready, that the claimant’s assertions in support of a stay were without substance and in fact were misconceived. By summons filed on 14 January 2005 the claimant sought this Court’s leave to appeal the order of Justice Hidden dismissing his claim for a stay of execution of the writ of possession. This summons has yet to be listed for hearing.

12 As a consequence of the imminent execution of the writ of possession, on 17 January 2005 the claimant filed a notice of motion in this Court seeking a stay of execution of the writ pending determination of his application for leave to appeal the order of Justice Hidden. The claimant seeks to support his application for a stay until the hearing of that application on the same bases as were advanced before Master Macready and Justice Hidden. The essence of those contentions appears to be as follows.

13 Firstly, he has been living in the property as his home for some 53 years.

14 Secondly, he administered the deceased’s affairs from the time she was confined to a nursing home in 1996 until her death in 2001 and he has continued to do so since her death, by which I understand him to mean that he has both manually and financially looked after and maintained the property out of his own pocket. This appears to be the case as the Public Trustee has no funds from which to pay the outgoings in relation to the property unless and until it is sold.

15 Thirdly, as a beneficiary under his mother’s will the claimant asserts that he has an equitable interest in her estate and, in particular, in the property itself.

16 Fourthly, by virtue of that interest he asserts that he is entitled to have his share in the estate transferred to him in specie, whereby both he and his brother will become tenants in common in equal shares of the property.

17 Fifthly, he asserts that his entitlement is supported by the terms of the will itself which provides, amongst other things, that all such parts of the deceased’s estate as shall for the time being remain unsold or unconverted shall be held by the trustee upon trust for the two brothers as tenants in common in equal shares.

18 A number of other allegations have been made in the summary of the claimant’s arguments, which has been filed in support of the application for leave to appeal the order of Justice Hidden. In particular and over and above the matters to which I have already referred, the claimant sets out in that document that his brother is in financial straits, does not wish to live on the property but only wants his money from his share of the estate on the sale of the property. Further, Mr Allan Gittoes apparently does not wish to enter into negotiations with the claimant in relation to the sale but wishes to leave it to the Public Trustee to sell and distribute the proceeds in accordance with the terms of the deceased’s will. Furthermore, the claimant asserts that as a consequence of the provisions of the Trustee Act 1925 this Court has no power to grant letters of administration with the will annexed to the Public Trustee and that only a testator or testatrix is entitled to appoint the administrator of his or her estate and that if the nominated trustee or executor has pre-deceased the testator or otherwise has renounced probate, then the Court can only appoint a person as administrator with the consent of the beneficiaries.

19 Accordingly, he submits that the Public Trustee was wrongly appointed and has no power to evict him from the property and to sell the property for the purpose of distributing the net proceeds of sale. It would appear from what I am told from the Bar table that this is an argument that the claimant has advanced on other occasions before the court in various pieces of litigation and on each occasion such a submission has failed. In any event it is clear that under the Wills Probate Administration Act the Public Trustee was entitled to letters of administration with the will annexed of the estate of the deceased and, in any event, that is an issue that has already been determined between the parties including, so I am told, in this Court.

20 The claimant also makes a number of allegations in his summary of argument in support of his application for leave to appeal relating to the rights which he asserts arise out of his possession of the property over a lengthy period of time. I have carefully looked at what he says in that regard particularly in paragraph 11 of the summary of argument, but in my opinion none of the matters referred to are relevant to the present case. The fact that he has been living in the property for a lengthy period of time cannot be doubted, but he has not had exclusive possession of the property except since 1996 and only then because his mother was required to enter a nursing home.

21 The summary of argument also contains a number of allegations against the Public Trustee alleging what appears to be fraud and unconscionable conduct. It also alleges that the Public Trustee is only interested in increasing its funds by maintaining control of the estate and selling the property and thereby being able to make a substantial profit. He alleges bias, unconscionable conduct, larceny and fraudulent appropriation of property against various people, including those who apparently had possession of the deceased’s will and the title deed to the property both prior to and after her death as well as against the Public Trustee. None of those matters, with respect, are relevant to the proceedings before me and none of them in my view in any way impinge upon the legal right of the Public Trustee to obtain possession of the property.

22 The principles applicable to an application for a stay were stated by this Court in Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685. Relevantly for present purposes the Court (at 695) mentioned the following two principles. The first was that where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, the court will normally exercise its discretion in favour of granting a stay. Thus, the Court said:

“Where it is apparent that unless a stay is granted an appeal will be rendered nugatory, this will be a substantial factor in favour of the grant of a stay.”

23 The claimant submits that all he seeks is the maintenance of the status quo until his application for leave to appeal is heard. He says, with justification, that unless that occurs he will be evicted from the only home he has known for 52 years and that the property will be sold as a consequence thereof. If he is ultimately successful in his appeal, it will all be too late.

24 Secondly, however, the Court in Cambridge Credit said this:

“Although courts approaching applications for a stay will not generally speculate about the appellant’s prospects of success, given that argument concerning the substance of the appeal is typically and necessarily attenuated, this does not prevent them considering the specific terms of a stay that will be appropriate fairly to adjust the interest of the parties from making some preliminary assessment about whether the appellant has an arguable case. This consideration is protective of the position of a judgment creditor where it may be plain that an appeal which does not require leave has been lodged without any real prospect of success and simply in the hope of gaining a respite against immediate execution upon the judgment.”

25 In my opinion, the force of the claimant’s submission that unless a stay is granted his appeal against the decision of Justice Hidden will be rendered nugatory is offset by my clear view that the appeal against Justice Hidden’s decision is, with respect, quite hopeless. In my view, the claimant does not have an arguable case that could support a reversal of the order made by Justice Hidden.

26 I should add a reference to three matters. Firstly, I have sympathy for the claimant as he is a pensioner and if the order is executed on 25 January he will be without accommodation. However, in due course when the property is sold he will come into an amount of money that will no doubt alleviate that situation. On the other hand, one has to consider the position of the Public Trustee as representing both beneficiaries as well as its duty under the terms of the will, including the powers and discretions vested in it by the will to properly administer the estate of the deceased in an even handed way. The simple fact is that the debts of the estate have to be paid and if the only way of achieving that requires the sale of the property, then there is clear power given by the will to the Public Trustee to sell the property for the purposes of paying the debts of the estate and dividing the balance of the proceeds of sale equally between the two beneficiaries who are entitled thereto.

27 The second matter is that the claimant has informed me from the Bar table that he now proposes to commence a further set of proceedings in which he will claim that notwithstanding the terms of the will of the deceased, he, the claimant, is entitled to the whole of the property. The basis of this claim is not entirely clear but it seems to be dependent upon the claimant obtaining evidence which he says is available to him, that prior to her death the deceased informed him as well as witnesses that he was to have the whole of the property and that it was her intention that he was entitled (having lived there for the whole of his life) to have that property exclusively. This claim has not been made to date and therefore it seems to me that I cannot take it into account for the purpose of exercising the discretion, which I clearly have, as to whether or not to grant a stay.

28 Thirdly, I should note that at the outset of the hearing I was reminded by counsel for the Public Trustee that I was a member of this Court which, on 7 July 2003, struck out as incompetent an appeal by the claimant in the matter of Caldar v Public Trustee & Ors [2003] NSWCA 187. I then expressly asked the claimant whether he had any objection to me hearing his application for a stay and he advised that he did not.

29 In the foregoing circumstances, I am of the opinion that no arguable basis exists for challenging the correctness of the exercise of discretion by Justice Hidden in refusing a stay of execution of the writ of possession. I would accordingly dismiss the notice of motion with costs.

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LAST UPDATED: 04/02/2005