Conundrum 2

I’s taken me a while, but back to [2017] NSWSC 666.

You will recall that GS, a pharmacist who had been generous to many or at least relaxed in his attitude to recovering monies lent to many, died suddenly aged 65, survived by his two nieces, AC and CC, in whose favour an informal will was found.

OY disputed the validity of the will. He said he was GS’s surviving de facto partner. OY said this relationship, of many years’ standing, had been a secret.

Obviously there must have been some kind of a relationship between GS and OY. GS had advanced substantial sums of money to OY- well above the other amounts known to have been advanced by him to others – and he had given OY the means and authority to conduct his bank accounts.

To me, as a gay man, OY’s claim of there being a sexual relationship is a plausible one. On reflection, perhaps that is putting it too simply. To me it is plausible that, if there was a sexual relationship, it would have been conducted in complete secrecy in the way that OY alleged.

On the other hand, it is very easy to make up a story about someone who is dead. A court must scrutinize carefully any claims of dealings with deceased persons and especially where those claims rest entirely on the word of the surviving person who makes the claim.

Lawyers often talk about whether one judge or another is a good “draw” for their client. This preserves what in some ways must be a legal fiction, that there is some random process of selection of which judge hears a case. Often it may be that the selection of a particular judge from those available is a matter of chance, but the selection of judges itself is clearly far from being so.

In any case, it doesn’t look as Justice Slattery was a very good draw for OY. As he said at paragraph [28] of his reasons for judgment:

The Court soon began to doubt [OY]. Early in his evidence he explained how he deliberately deceived his first wife about his alleged relationship with [GS]. Without a flicker of shame he elaborated upon a cynical scheme to mislead his first wife, Ms [SK], into believing he was not with [GS] at night. His story of lying to his first wife is barely worthy of credit. But the fact that [OY] was prepared to parade such studied trickery carries its own significance. Why would one who shamelessly avowed deceit of a spouse, not practise deceit on this Court?

When I first read this, I thought “Whoah!” There seemed to be a kind of paradox  – a variant on “all men [sic] are liars” – in this case, “all closeted gay men are liars.” So is no self-confessed closeted man to be believed?

What Slattery J found “barely worthy of credit” (credit here means worthiness of being believed rather than reflecting well on the teller) was OY’s claim that he used to go to a gambling club before leaving without placing a bet to spend time with GS.  OY said he did this so that he could produce the ticket to his then wife (who had already complained that he saw too much of GS) as, in effect, an alibi.

Slattery J didn’t accept this.  I’ve inserted in bold the numbers for his reasons:

[211] (1) First, it is difficult to accept that [OY] could have kept up this pretence for years, when he claims his visits to the deceased were regular. (2) Secondly, his claimed alibi was unstable. Other people frequented the same club and would have been able to see that [OY] had left to go elsewhere. (3) Thirdly, such an alibi was likely to create quite separate domestic concerns: that he was gambling away the family’s money. He sought to answer that threat by explaining that this poker club was not one where gambling for money occurred. But that does not meet the problem that to a person being shown sign-in slips at a gambling club it may not have looked that way. (4)Finally, [OY]’s case of arranging regular assignations with the deceased behind his first wife’s back infers that the deceased was complicit in this deception. How else could the deceased believe that a married [OY]t could spend so much time with him?

[212] (4A) But that is not consistent with the deceased’s character.  All the evidence about the deceased points to a man who  (4A1) had an open and friendly nature, (4A2) had deep moral feelings and religious scruples especially about his sex life, (4A3) maintained warm relationships with family and friends and (4A4) had never been involved in fraudulent activity. But [OY] seemed comfortable to accept that the deceased was as dishonest as he was in conducting this relationship.

That’s a lot of reasons. Maybe 2 is the best, were it not that many affairs are conducted under cover of equally risky alibis.  My own skepticism would be of the elaborateness and consistency of the claimed ruse rather than its fragility – why not a variety of garden husbandly lies?   3 assumes OY’s wife did not know/believe that no money was gambled at the club.  I don’t think I would be as ready as Slattery J is to take 1 and 4 (4A4 in particular is a stretch – how can you prove such a negative?) as from the start tending to preclude the truth of OY’s account.

There’s a lot more in the judgment and the judge had plenty more reasons to which I find myself without the energy to do justice.  The thing is, unlike the rest of us who can afford a Marabar-caves sort of indeterminacy, he did have to make up his mind. That’s his job.

From which you’ll probably realise that Justice Slattery totally dismissed OY’s claim, and upheld CC’s claim for repayment of all monies paid to or taken by Okan, with interest.  OY’s story was just that: the story OY had to tell if, following GS’s sudden death, he was to avoid having to repay the money he had already received from GS and hang on to the money he opportunistically grabbed by continuing to use after GS’s death his capacity to operate GS’s accounts. That OY had obtained monies on such a scale and authority to operate GS’s accounts in this way was not to be attributed to any sexual relationship between them, but rather that (at [312]) OY was an “intuitive and manipulative individual” who well understood and was close enough to take advantage of GS’s generosity.

So much (so far as the monies obtained by OY and his company in GS’s lifetime were concerned) for any credit in heaven which GS professed a hope to attain on account of funds unrepaid at his death.

Nieces and intestacy

Why, asked CC (rhetorically), would she seek to forge a will as OY claimed she had when, as GS’s nieces, she and AC stood to benefit anyway under what looked like otherwise being intestacy?

It is possible that this emerged during submissions as a result of a remark by the judge himself.  As he said at [688]:

the Court did raise the hypothesis in submissions that [GS]’s nieces would take on [GS]’s intestacy. But in the course of preparing these reasons it is clear that hypothesis was based on an erroneous assumption as to the present State of New South Wales law at the time of the deceased’s death. The nieces or nephews of an intestate in New South Wales have no entitlements; the State of New South Wales would be entitled to his estate: Succession Act, Parts 4.3 and 4.5.

I think his Honour’s first instincts were better than his afterthought.

This is the contents page to parts 4.3 and 4.5 of the Succession Act (part 4.4 deals with indigenous families) to which his Honour refers:

PART 4.3 – DISTRIBUTION AMONG RELATIVES
Note

   127.    Entitlement of children
   128.    Parents
   129.    Brothers and sisters
   130.    Grandparents
   131.    Aunts and uncles
   132.    Entitlement to take in separate capacities

   PART 4.5 – ABSENCE OF PERSONS ENTITLED

   136.    Intestate leaving no persons entitled
   137.    State has discretion to make provision out of property to which it becomes entitled

If you go by the contents listing alone, there is no section which, going by the headings, deals with the entitlements of nephews or nieces.  However, section 129 is as follows:

129 Brothers and sisters

(1) The brothers and sisters of an intestate are entitled to the whole of the intestate estate if the intestate leaves:

(a) no spouse, and

(b) no issue, and

(c) no parent.

(2) If no brother or sister predeceased the intestate leaving issue who survived the intestate, then:

(a) if only one survives-the entitlement vests in the surviving brother or sister, or

(b) if 2 or more survive-the entitlement vests in them in equal shares.

(3) If a brother or sister predeceased the intestate leaving issue who survived the intestate:

(a) allowance must be made in the division of the estate between brothers and sisters for the presumptive share of any such deceased brother or sister, and

(b) the presumptive share of any such deceased brother or sister is to be divided between the brother’s or sister’s children and, if any of these children predeceased the intestate leaving issue who survived the intestate, the deceased child’s presumptive share is to be divided between the child’s children (again allowing for the presumptive share of a grandchild who predeceased the intestate leaving issue who survived the intestate), and so on until the entitlement is exhausted.

If I am reading this aright, contrary to his Honour’s observations, nieces and nephews (and for good measure any intersex children of siblings) do have entitlements under intestacy in the event that their parents had an entitlement but predeceased the intestate person.  Siblings have an entitlement if a person dies without parents, spouse or issue.

If GS died without leaving a will, under s 129(1), GS’s parents having predeceased him and he dying single and childless, his brother would have been entitled to the whole of his estate. GS’s brother having predeceased him, under s 129(3)(b), that brother’s daughters, ie, AC and CC,  his nieces, would have been entitled to share that brother’s presumptive share equally.

Postscript

In response to a complaint from GS’s family,  understandably aggrieved that his name has been dragged through the mud of accusations by OY which have been proven to be false, I  have removed GS and OY’s names from the body of this post and the previous post on this case.  I have also scrubbed any identifying names from the comments to that post.

Post post script

Meanwhile the case has gone on, including a pretty furious (and dismissed) application by CC that OY’s solicitor and barrister pay her costs.  As a lawyer myself, I hate that sort of application – I suppose out of self-interest.  The application was dismissed basically on the grounds that it was not up to OY’s solicitors and counsel to prejudge the truthfulness of OY’s instructions to them.  See [2019] NSWSC 584 at [47] and [48}.

You might have thought that, as a barrister herself, CC could have recognized this before bringing the application.

The judgment also deals at [118] to [137] with an eyebrow-raising aspect of conduct of the case by CC which put OY unnecessarily to additional costs, though not (so his Honour had already held in the main trial when the issue was raised in relation to CC’s credibility) deliberately.  CC incurred an adverse costs for this, though not (because not deliberate) on the indemnity basis.

 

 

 

A conundrum

Maybe we are all unusual people, if you can only look closely enough, but GS, who for many years conducted a pharmacy in Sydney’s south west,  must have stood out.

From the late 1980s, GS, who graduated as a pharmacist in 1973 when he was about 25, owned and ran a pharmacy at XX.  GS never married and you’d have to say that the pharmacy really must have been his life.   He befriended many of his customers, including the local “down and outs” from the caravan park nearby whom he would often invite in after hours to spend time with him after the pharmacy had closed.

GS was the “go to” man amongst his fellow shopkeepers at XX for making up a float at the start of the trading day.  He lent many people money, but if they didn’t pay him back was apparently content to leave that as something which would rest on their consciences or probably souls (he was devoutly religious) if they failed to repay him.  He told a friend “If I die and they owe me the money maybe God will put that in my credit to cover my sins.”

GS was a heavy smoker, and it seems that other aspects of his shopkeeping lifestyle were quite unhealthy.  In 2013, aged 65, he died suddenly at the pharmacy.

GS’s older and only brother, his father and his mother had predeceased him in 1980, 1979 and 1992.  He was survived by AC and CC , his brother’s daughters.  GS had told his nieces that they would find a will in his house.

GS had lived since 1983 in a house in Strathfield first owned by his father and later by him.  He was a bit of a hoarder.  His nieces and family friends set about tidying things up in the hope that the will would surface in the process.

A document later admitted to probate as a informal will was found in George’s bible (which was on the table next to his bed), folded around an old photo of AC and CC.  This appointed CC (who is a barrister by profession) as his executor and left GS’s estate of about $6 million to her and AC equally.

But there was another claimant.

OY claimed he had met George in 1999 when OY was 17 and GS about 51.  OY said he had been in a sexual relationship with GS from that time and was in a de facto relationship with GS at the time of GS’s death.  OY said that the document found in the bible must have been planted there and was not a will.  He said that probate of the will should be revoked, in which case (on his contentions) he would take the entire estate as de facto “widower” on intestacy.

As a fall-back OY claimed family provision on the basis of his asserted relationship with GS.  As a fall-back or parallel claim to that, OY also said that money which he had received from George in George’s lifetime was a gift rather than money that OY had to pay back. This was about $386K less payments by OY or his company in GS’s lifetime of about $82K – a net amount of $304K.

OY had also taken money out of GS’s accounts after GS’s death using means of operating these accounts which GS had given him.  Even if you are authorised to take money from someone’s accounts while they are alive, that authority ceases on their death and any money taken out after usually has to be repaid to the estate.  One way or another (as the heir on intestacy or by means of provision in a greater amount) OY sought to resist having to repay these post-mortem amounts, of about $206K.  OY had made a further $7-8K of withdrawals from GS’s accounts which were reversed by the bank when it stopped the account at CC’s request.

AC and CC knew about OY, because in 2011 GS had told them that he had lent upwards of $100K to OY for a tyre business on Canterbury Road in Lakemba.  AC and her husband had visited the business and met OY not long after that.  You could not blame AC and CC for feeling some disquiet about this, let alone about the full picture which came to light after GS’s death, not only of the substantial amounts which had passed in his lifetime, but also the post-mortem withdrawals from his accounts.

But OY’s claim of a 14-year homosexual relationship with their uncle came as a complete shock to them.  As far as they were aware, although unmarried, GS had had a number of girlfriends in his life.  There was a bit more mystery over the circumstances in which GS had harboured in his home from 2005 to 2008 a (since deceased) married mother-of-five sex worker with a drug problem whom he had met on Canterbury Road.

To CC and AC OY’s claims were not only a shock but a calumny.

OY for his part maintained that his relationship with GS was secret for cultural reasons.  (OY’s cultural background is Turkish; GS’s was Greek.)  He rubbed salt in to the wound (so far as AC and CC were concerned) by claiming that GS was dismissive of and said disparaging things about them.

By the time the matter came to trial, it emerged that if OY was telling the truth, he had his own cultural reasons for keeping his relationship with GS secret, including two marriages of his own.  For good measure, witnesses claimed that even when married he was seen consorting with other women.

There was no evidence from anyone, even OY, of either GS or OY having any other same-sex relationship.

The matter was heard over 21 days in early 2016 before Justice Slattery. It took his Honour over a year to deliver his decision:  [2017] NSWSC 666.

That seems a long time, even if his Honour was off on leave for some of it, though the reasons are certainly lengthy.

If you’re the kind of person who likes to skip to the end of the book to find out the ending, or to look up the endings of TV serials on the internet (I am that kind of person) you can find out more there. Otherwise, you’ll have to wait until I have the energy to write another post.

Postscript:  May 2019

In response to a complaint from GS’s family, I am pseudonymising this post and the further post on this subject .

In  December 2018 OY was convicted in the District Court of fraud.  It’s not clear to me what exactly this was for: I presume at the least it was for withdrawals made by OY without authority from GS’s account after GS’s death.

SSO, Dutoit, not Argerich but Wang

On Saturday to the SOH to hear the SSO, conducted by Charles Dutoit.

The program was:

Stravinsky, Funeral Song
Beethoven, Piano Concerto No 1
de Falla, 2 suites from The Three-cornered Hat and
Ravel, La Valse.

For the concerto, Martha Argerich, originally slated to appear (for the third time for the first time in Sydney) was (yet again) a late scratching, this time replaced by Yuja Wang. Wang has probably been able to make a bit of a career out of stepping in when MA has cancelled.

Because of the Argerich factor, the SSO had hiked up the prices. In response, and bearing in mind the MA-no-show risk, I pegged down my seating reserve. At about the same price for my usual rear-stalls spot I was in Box Y at the side of the stage, diagonally behind YJW’s left shoulder.

Empty seats were conspicuous in the more expensive areas. Had I paid such top dollar, I too would have been tempted to return my ticket, which is just about the only recourse the orchestra allows. If there was a chance to buy tickets at a now reduced price (or to trade “up”, as I might have) they certainly weren’t advertising it.

What that really means is that the orchestra toughs it out on the laziness tax against everyone else who has paid the premium price on what was always (as the orchestra surely knew) a chancy prospect. That included me, and to be frank I felt a bit grumpy about that.

I wouldn’t want always to sit at the side, but it does have some benefits. There is a loss of balance and in particular of the frontal projection from the violins and the soloist/s. The gain is that you are much closer and the sound comes to you directly rather than bounced around the hall, so that what you do hear you hear much more clearly. And there is a big gain for the woodwind – often missing in action even in the rear stalls. Once you adjust for the diminished front it is like seeing and hearing the orchestra in cross-section.

This was particularly rewarding in the Stravinsky – a recently rediscovered early work for which I was totally unprepared. The big surprise was the obvious influence of Wagner. Alex Ross in the New Yorker gives the most succinct list of the Wagnerian elements (which are not confined to Siegfried’s Funeral March).

From my cross-sectional vantage point the bit I most liked was a kind of undulating accompaniment figure which emerges at about 6:30 in the youtube version (there is more than one) of last year’s second performance conducted by Gergiev in Leningrad/St Petersburg.

The Gergiev version sounds different from Dutoit and the SSO’s as I recall it, especially in mood, which in Sydney was more sombre than the recording comes across. There is surely an intrinsic interest in hearing different approaches to such a “new” work. It would be nice if the SSO’s performance could be available for a while on ABC “Classic” FM’s “Listen Again” facility. Given that P&M is already up there, I can only presume there is some rights obstacle to this.

In the Beethoven, what I was particularly able to see was how Dutoit energised the orchestral accompaniment figures, especially in the first movement. I was also in a good spot for Mr Celato’s clarinet solo in the middle movement. This movement was probably the high point of the Beethoven. People behind me said it was very slow. I honestly wouldn’t know. What with the clarinet and all I was most of all feeling how Mozartean it was.

It wasn’t the best spot to hear the piano sound, but when it came to the encores, starting with the Prokofiev Toccata, I had an extraordinary view of every muscle and bone in Yuja Wang’s back courtesy of her (almost) backless dress. It was like an anatomy lesson or one of those films of the inside of a big pipe organ at work. Wang’s other encores were the Rachmaninov Vocalise and the Horowitz variations on the gypsies’ song in Carmen.

I enjoyed The Three Cornered Hat without being particularly blown away by it – I’d say that’s the work rather than the performance, which was predictably brilliant. La Valse, for me, is more compelling and made a great finale.

Afterwards I spoke to a couple (well, friends, but two of them) who, like me, had also come the week before for Pelléas et Mélisande. They enjoyed this concert more and I expect that is the taste of most of the SSO public. As for me, it is the Debussy which is still resonating most and I expect it to do so for a while.