Sherry v Manasseh [1999] NSWSC 1079 (3 November 1999)

Last Updated: 4 November 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Sherry v Manasseh [1999] NSWSC 1079

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): 5307/97

HEARING DATE{S): 27 and 28 May 1999

JUDGMENT DATE: 03/11/1999

PARTIES:

Shirley Anne Manasseh (P)

Charles David Alexander Manasseh (D1)

Gloria Regina Cnapich (D2)

JUDGMENT OF: Master McLaughlin

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

Mr. J. B. Whittle (P)

Mr. M. Macrossan (D)

SOLICITORS:

Grinberg Young & Krass (P)

K. J. Minotti & Company (D)

CATCHWORDS:

Family Provision

Claim by adult daughter against estate of her mother

Estate left equally among plaintiff and defendants

Benefits given to each party by their deceased father

Expression of wishes (entitled "Direction") made by father before his death

Financial and material circumstances of plaintiff

Residence of plaintiff is valuable, but in need of repair

Plaintiff not left without adequate provision for her proper maintenance and advancement in life

Application not made within time

Plaintiff was before the expiration of the limitation period aware of the Family Provision Act and of the limitation period for making a claim thereunder

Conduct of defendants as an asserted cause of the failure of the plaintiff to institute proceedings within time

Competing claims of the defendants.

ACTS CITED:

Family Provision Act 1982

DECISION:

1. I order that the summons be dismissed

2. I order that the plaintiff pay the costs of the defendants, such costs to be on the party and party basis, and that the defendants be entitled to retain out of the estate of the late Paula Flora Manasseh ("the Deceased") the difference between such costs and the costs of the defendants on the indemnity basis.

JUDGMENT:

SUPREME COURT OF

NEW SOUTH WALES

EQUITY DIVISION

MASTER McLAUGHLIN

Wednesday, 3 November 1999

5307/97 SHIRLEY ANNE SHERRY -v- CHARLES DAVID ALEXANDER MANASSEH AND GLORIA REGINA CNAPICH

JUDGMENT

1 MASTER: These are proceedings under the Family Provision Act 1982.

2 By summons filed on 24 December 1997 the plaintiff Shirley Ann Sherry claims an order for provision for her maintenance and advancement in life out of the estate of her late mother Paula Flora Manasseh (to whom I shall refer as "the deceased").

3 The deceased died, aged 75, on 11 April 1996. She left a will dated 19 June 1995, probate whereof was on 11 December 1996 granted to Charles David Alexander Manasseh and Gloria Regina Cnapich, the executors named in such will (who are the defendants to the present proceedings).

4 By that will the deceased gave her estate (after payment of debts, funeral and testamentary expenses) in equal shares to her son and her two daughters, being the three parties to the present proceedings.

5 The only asset disclosed in the inventory of property of the deceased was a house property situate at and known as 74 Glenayr Avenue, North Bondi, to which an estimated value of $375,000 was ascribed. However, that property was subsequently sold, and the assets of the estate now consist of the net proceeds of that sale, which are held in two investment accounts in the Commonwealth Bank, in a total amount of $476,151.90. Each of the parties will receive one-third of those proceeds, which, after allowance is made for the costs of the present proceedings ($22,478 for the plaintiff, $18,370 for the defendant), will provide to each of them about $145,000 (or, if ultimately only the costs of the defendants are payable out of the estate of the deceased, about $152,600).

6 The proceedings were not instituted within eighteen months of the death of the deceased (as required by section 16 of the Family Provision Act). Accordingly, the plaintiff, by prayer 1 in the summons, seeks an order, pursuant to section 16(2) of the Act, extending the period for the filing of the summons up to and including the date of the filing of the summons (that being 24 December 1997). Any such extension of the prescribed period is opposed by the defendants.

7 The deceased was a widow at the time of her death, her husband Elias Hai Manasseh (also known as Alec Manasseh) having predeceased her on 5 July 1994. The plaintiff and the two defendants are the only children of the marriage of their parents.

8 The plaintiff was born on 29 May 1949 (and is presently aged 50). The first defendant (to whom I shall refer as Charles) is presently aged 37. The second defendant (to whom I shall refer as Gloria) was born on 30 November 1954 (and is presently aged 44). The deceased, her husband and their children originally resided in Singapore. Subsequently the deceased, her husband and each of their three children (although at different times) relocated to Australia, living variously in Sydney and in Perth.

9 The plaintiff married her first husband in 1976, and lived in California for some time before returning to Singapore. Upon marrying her present husband, Lionel Sherry, in February 1980 the plaintiff entered into occupation of a house property owned by Lionel, and in which he had to that time been residing, situate at and known as 50 Murriverie Road, Bondi. The purchase price, which apparently had been largely funded by a housing loan secured by a mortgage, had been largely paid off by Mr Sherry before his marriage to the plaintiff. That house property is now unencumbered. After their marriage Mr Sherry transferred the title in that house property (which is still the family home of the plaintiff and her husband) to himself and the plaintiff as joint tenants. It is estimated that that house property is now worth $700,000.

10 Mr Sherry is presently 56 years of age. Although qualified as a television repairer, Mr Sherry has earned only a small income from that occupation in recent years, due essentially to health problems, of both a physical and an emotional nature.

11 As well as his interest in the house property at Murriverie Road, Mr Sherry's assets consist of a superannuation entitlement of $14,000, together with shares in companies worth about $71,700. Mr Sherry (who is an only child and whose father is deceased) owes an amount of $25,000 to his mother, now aged in her 80s.

12 The plaintiff and her husband have one child, a son Samuel (born on 16 July 1983 and presently aged sixteen), who is still at school and resides with them.

13 Evidence was given by both the plaintiff and her husband concerning the present condition and the state of deterioration of the Murrieverie Road property, and their architect's estimate that an amount of about $60,000 would be required to remedy essential problems, and to effect the conversion to a garage of a disused shop located at the front of the residence.

14 The plaintiff is employed as a pay clerk at the Prince of Wales Hospital. She works on average between 24 and 30 hours a week, and earns between $300 and $350 (after tax) per week. The plaintiff also in her spare time works as an Amway representative. During the financial year preceding the hearing the plaintiff earned $1,980 gross from her Amway activities. At the time of the hearing she held shares worth about $24,500, from which she received dividends totalling about $800 a year. The plaintiff has savings of $1,700, and has an accrued superannuation entitlement of $23,000.

15 The plaintiff's liabilities consist of a personal bank loan of $1,500 and credit card debts of $2,600.

16 A considerable quantity of evidence was devoted to details of the various residences in which the deceased and, at various times, each of her three children lived after each of them came to Australia, and the funding of the acquisition of each of those residences.

17 For the purposes of the present proceedings it is not necessary for me to rehearse that detailed information. Suffice it to say that the plaintiff came to Sydney in 1980. Gloria came to Sydney in 1981. The deceased and Charles came to Sydney in either January 1983 or January 1984. After residing in Sydney for several years the deceased returned to Singapore in July 1986 (her husband having remained in Singapore during that period whilst the deceased was residing in Sydney). The deceased and her husband then left Singapore in late 1990 and relocated in Sydney. Subsequently the deceased, her husband, Gloria and Gloria's family relocated from Sydney to Perth in 1991. The deceased returned to Sydney in August 1993. Charles relocated to Perth in February 1994, not long after his mother had suffered a cerebral haemorrhage in January of that year. The deceased entered a nursing home in Sydney in April 1994. On 5 July 1994 her husband died, in Perth. The following month the deceased was transferred to a nursing home in Perth, where she resided until her death some twenty-one months later.

18 The various residential properties in which the deceased and her children resided, in both Sydney and Perth, were purchased with moneys provided by the deceased's husband Alec Manasseh. It was his practice to send funds from Singapore to Australia for that purpose. For example, in 1982 Alec Manasseh funded the purchase, in the plaintiff's name, of a home unit at 4/114 Murrieverie Road, Bondi. Gloria resided in that home unit from 1983 until April 1985, paying $60 a week rent to the plaintiff. At various times after her arrival in Australia the deceased resided with the plaintiff and also with Gloria.

19 In April 1985 the deceased purchased the residence at 74 Glenayr Avenue (which comprised her only asset at the time of her death), in which she commenced to reside with Gloria, Gloria's husband and their two children.

20 During the period 1984 to 1991 the deceased made a number of extended visits to Singapore, but Gloria and her family continued to reside in the Glenayr Avenue property. During the period after his mother's removal from 4/114 Murrieverie Road Charles resided in that home unit for a period of two years. Despite the plaintiff's assertion that Charles did not pay any rent, although he paid the expenses and outgoings on that residential unit, it was the evidence of Charles that he paid to the plaintiff rent of $60 a week. In 1986 Faridah Mohamed, who had been employed by the family in Singapore, arrived in Australia to work as a full-time helper for Gloria. Both Charles and Miss Mohamed then moved into residence at 74 Glenayr Avenue. In August 1988 Charles and Miss Mohamed commenced to live in a de facto relationship.

21 As well as providing funds for the purchase of 4/114 Murrieverie Road and 74 Glenayr Avenue, Alec Manasseh in 1982 advanced $60,000 to the plaintiff and her husband for the purpose of constructing extensions to their residence in order to accommodate the deceased and Charles.

22 In 1992 Alec Manasseh purchased, in Gloria's name, a house property at 33 Lantana Crescent, Dianella in Western Australia. According to Gloria the purchase price was $165,000, although the plaintiff said that her father told her that that house had cost $220,000. Upon its purchase, the deceased and her husband, Gloria and her family and Charles all moved into residence in the Dianella house property.

23 On 7 September 1992 each of the deceased and her husband made a fresh will.

24 At the same time Alec Manasseh executed a document referred to as his "First Direction". That document is not in evidence in the present proceedings.

25 However, on 14 December 1993 Alec Manasseh executed a further document (which was entitled "Direction", but was also referred to in the proceedings as his "Second Direction"). That document, which had been prepared by a firm of solicitors, included directions that certain assets which he had already transferred to one or other of the defendants should be held by such defendant for the benefit of the plaintiff, subject to the expressed desire that during her lifetime "the income therefrom be utilised for the benefit of" the deceased. The legal effect of that document was far from clear, and certainly was not the subject of any detailed analysis in the hearing of the present proceedings.

26 However, it clearly emerged that, in consequence of the existence of that document, there had been a number of discussions and negotiations between the plaintiff on the one hand and the defendants on the other hand during the period of about twenty-one months between the death of their father in July 1994 and the death of their mother in April 1996, and for a further period after the death of their mother.

27 The attitude of the defendants appears to have been (indeed, this was expressly stated by at least Gloria, under cross-examination at the hearing) that whilst their mother was alive the defendants were prepared to abide by the terms of the direction made by their father (that is, that the income from those assets be used for the benefit of the deceased), but that, as soon as their mother died, the defendants decided not to carry out the terms of the direction that assets be held for the benefit of the plaintiff --- whether or not they were under any legal obligation to do so. That decision was not communicated to the plaintiff until June 1997.

28 That conduct on the part of the defendants has obviously been one of the precipitating factors which has brought about the institution of the present proceedings by the plaintiff. That conduct on the part of the defendants is certainly not honourable conduct, and reflects very poorly upon the characters of the defendants. However, such dishonourable conduct by the defendants is not of itself in any way determinative of the present proceedings. Indeed, I doubt whether it is of significance, or even of relevance, to the present claim of the plaintiff brought by her against the estate, not of her father, but of her mother. There is no evidence to suggest that the plaintiff in any way acted in reliance upon her expectations under the direction of 14 December 1993.

29 It is appropriate here to record that the plaintiff sought and obtained legal advice from Tress, Cox and Maddox, solicitors, concerning any rights which she might have against her father's estate. That advice (which was given by letter dated 22 January 1997) adverted to the direction of 14 December 1993, and also expressly referred to the limitation period in respect to any claim under the Family Provision Act.

30 There was an incident at the Sydney Airport in January 1997, when Gloria clearly lulled the plaintiff into a false sense of security concerning the intentions of the defendants in relation to the estate of their late father (saying, "Just trust me and everything will be allright"), with the consequence that the plaintiff, although aware of her rights and of the existence of a time limitation in respect to her father's estate, did not direct her attention to her mother's estate until after the expiration of the limitation period in respect to that latter estate.

31 All the plaintiff's concerns and expectations at that time appear to have been directed to her interest in her father's estate, and not to any interest or rights which she might have had in the estate of her mother.

32 At the time of Alec Manasseh's death his only asset was a term deposit with the Hong Kong and Shanghai Bank in Singapore in an amount equivalent to $5,789. Charles arranged for that amount to be directed to a BT account in Sydney which had originally been opened in 1991 with an amount of $20,000 from funds belonging to his father. Ultimately, in March 1997 Charles redeemed the remaining investments in that account and effected a distribution of approximately one-third to each of the plaintiff, Gloria and himself, in accordance with the terms of his father's will. Since she had already received an advance $1,000 from Charles on 29 July 1996, the final distribution which the plaintiff received in March 1997 was in an amount of $7,700 (that giving to the plaintiff a total amount slightly in excess of the amount received by each of Gloria and Charles).

33 The plaintiff as a child of the deceased is an eligible person within paragraph (b) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such, she has the standing to bring the present proceedings. It will be appreciated that each of the defendants, as a child of the deceased, is also an eligible person within the same paragraph of that definition.

34 Under the will of the deceased the plaintiff shares equally with each of her brother and her sister the estate of their late mother. The plaintiff asserts that she is entitled to an additional benefit from that estate, in an amount of $60,000, for the purpose of effecting necessary repairs and restoration work to the Murriverie Road residence, and converting part of the structure of that residence from an unused shop into a garage.

35 It must, however, be recognised that the present house property of the plaintiff and the husband is a very valuable property. It was submitted on behalf of the defendants that there was no reason why the plaintiff should be required to reside in a valuable house property that needs considerable restoration work, whilst it would be equally open to her and her husband to sell that property and to acquire, for the amount of the net proceeds of sale, a property which did not need such expenditure in order to raise it to a properly habitable standard.

36 I am in agreement with that submission.

37 Further, it will be appreciated that the plaintiff will receive out of the estate of her late mother an amount of about $145,000 (or possibly aout $152,600, although receipt of that latter amount would imply a liability in the plaintiff of at least her own costs of $22,478). That amount will, in any event, be more than sufficient to effect the necessary repairs costing about $60,000 (which is the extent of the claim of the plaintiff).

38 It follows from the views which I have just expressed, that I am not satisfied that the plaintiff has established that she has been left without adequate provision for her proper maintenance and advancement in life (see Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-209 per Mason CJ, Deane and McHugh JJ). That conclusion is of itself sufficient to determine the present proceedings.

39 However, even if (contrary to the conclusion which I have just expressed) I were of the view that the plaintiff had established that she had been left without such adequate provision, and that, in consequence, she had established an entitlement to an order for provision (be it in an amount of $60,000 or in some lesser amount), that entitlement must be considered in the context of the competing claims upon the testamentary bounty of the deceased. The only such competing claims are those of the defendants, each of whom is, under the will of the deceased, entitled to receive an amount equal to that which the plaintiff will receive under that will.

40 Evidence has been placed before the Court concerning the financial and material circumstances of each of the defendants.

41 Exhibit A sets forth details of the assets and liabilities of Charles and also additional information concerning moneys which he had received from his father and details of certain investments.

42 Charles's present assets consist of a house property situate at 21 Honeywell Boulevard, Mirrabooka, Western Australia (having an estimated value of $80,000), a superannuation entitlement of $13,700, a BT Hi-Yield Cash Management Trust ($8,000), EquitiLink Trust Investment ($11,500), Commonwealth Bank Savings Account ($600).

43 Charles has a HECS debt owing to the Australian Taxation Office in an amount of $3,850.

44 Charles is presently aged thirty-seven. He is not married. His occupation was described as that of legal word processing, for which he receives a current annual salary of $37,000.

45 As has already been recorded, Charles was in a de facto relationship with Faridah Mohamed from August 1988. That relationship came to an end in February 1994, a few months before the death of the father of the parties, and about three years before the death of the deceased.

46 Gloria resides with her husband and their three children (aged 17, 15 and 12) in the house property at Dianella, which is registered in her name and is unencumbered. The present value of that property is about $190,000. Gloria and her husband also own an investment property in Perth, which they purchased in April 1996 for $120,500. Of that amount they provided the sum of $65,500 towards the purchase price, the balance of $55,000 being advanced by way of loan from BankWest, secured by mortgage.

47 Apart from those two pieces of real property the assets of Gloria consist of shares ($15,000) and investments in various cash management trusts and similar trusts (totalling $84,246).

48 In addition to the mortgage loan in an amount of $55,000 owing to BankWest, Gloria also owes what is described as an equity loan to BankWest in an amount of $6,000, and has a credit card indebtedness of $4,000.

49 Gloria is not in employment. She receives an income of about $5,000 a year from her investments.

50 Gloria's husband, who is aged 64 and who suffers from acute arthritis, will be retiring from full-time employment at the end of 1999. He presently earns an income of about $18,000 net a year. Details of Gloria's financial and material circumstances are set forth in Exhibit 1.

51 I am not satisfied that the competing claims of the defendants upon the bounty of their mother would have the effect of reducing, or even extinguishing, any order for provision an entitlement to which the plaintiff might otherwise have established.

52 I have already observed that the present proceedings were instituted after the expiration of the eighteen month limitation period provided in section 16(1) of the Family Provision Act.

53 The plaintiff was aware of the existence of such a limitation period, as a consequence of the advice given to her by Tress, Cox and Maddox (albeit in the context of her father's estate, rather than her mother's estate). She received that advice in January 1997, more than eight months before the expiry of the limitation period in respect to her mother's estate. I have already expressed my opinion concerning the dishonourable conduct of the defendants in deciding, upon the death of their mother, that they would no longer abide by the terms of the direction given by their father. Equally dishonourable in my view was the conduct of Gloria in lulling the plaintiff into a sense of false security concerning what she would receive from her father's estate, so that the plaintiff failed to give consideration to whether or not she should within time institute a claim against her mother's estate.

54 Whatever one might think of the morality of the conduct of the defendants, I do not consider that that conduct of itself was sufficient cause for the plaintiff not instituting within time proceedings against the estate of her mother, especially as she had been expressly advised of a limitation period under the Family Provision Act, and had received that advice long before the expiry of that limitation period. Also before the expiry of that limitation period the plaintiff had become aware that the defendants did not intend to honour the wishes of their father for the benefit of the plaintiff.

55 Accordingly I would not, in any event, be disposed to make an order extending time for the institution of the present claim of the plaintiff. (Indeed, since I am not satisfied that sufficient cause has been shown for the application not having been made within time, I consider that I am precluded by subsection (3) from proceeding to an exercise of the discretion given by subsection (2) of section 16.) That conclusion of itself is also sufficient to dispose of the present proceedings.

56 I summarise as follows my foregoing views.

57 I am not satisfied that the plaintiff has established an entitlement to a benefit in an amount of $60,000 (or in any other amount), in addition to her entitlement of a one third interest in the estate of the deceased which she receives under her late mother's will.

58 If, however, and contrary to the conclusion which I have just expressed, the plaintiff were to have established such an entitlement, then I do not consider that any such entitlement would have been reduced, or extinguished, by reason of the competing claims of Gloria and Charles upon the estate of their late mother.

59 However, in any event, the plaintiff is out of time in bringing the present claim. I am not satisfied that the circumstances which I have already outlined concerning the awareness of the plaintiff of the relevant limitation period, and concerning the conduct of the defendants in relation to the estate of their late father are such as to enliven the discretion vested in the Court by subsection (2) of section 16 to extend the limitation period or to overcome the prohibition against the exercise of that discretion contained in subsection (3) of that section. That conclusion of itself is also sufficient to dispose of the proceedings.

60 It follows, therefore, that the claim of the plaintiff must be dismissed.

61 I make the following orders:

1. I order that the summons be dismissed.

2. I order that the plaintiff pay the costs of the defendants, such costs to be on the party and party basis, and that the defendants be entitled to retain out of the estate of the late Paula Flora Manasseh ("the deceased") the difference between such costs and the costs of the defendants on the indemnity basis.

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LAST UPDATED: 03/11/1999