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Supreme Court 2 April 2003

Straede v Eastwood & Anor

[2003] NSWSC 280

Traffic & driving
FORFEITURE ACT FORFEITURE RULE RELEVANT CONDUCT IMMORALITY OTHER BENEFICIARIES OPPOSE ORDER PRINCIPLES DISCUSSED.

Citation: Straede v Eastwood & Anor [2003] NSWSC 280
Court: Supreme Court of New South Wales, Equity Division
Date: 2 April 2003
Judge(s): Palmer J

Background

The plaintiff was driving his wife to work one morning when he made a misjudgment and overtook a car across unbroken double lines near the crest of a hill. A collision occurred and his wife was killed. He was charged with dangerous driving causing death under the Crimes Act 1900 (NSW), pleaded guilty, and was sentenced to two years imprisonment (served by periodic detention), with the sentencing judge characterising the event as a serious error of judgment rather than an abandonment of driving responsibility.

Because the plaintiff had caused his wife's death, the forfeiture rule applied automatically. That rule prevents a person who unlawfully kills another from benefiting from the deceased's estate. The plaintiff applied to the Supreme Court under s.6 of the Forfeiture Act 1995 (NSW) for a modification order that would allow him to take the interests passing to him under his wife's will, and to retain jointly held land that would otherwise have devolved to her estate.

The application was opposed by several of the deceased's relatives, represented by the second defendant. Those opposing the order sought to place before the court evidence that the plaintiff and his wife had, for approximately twenty years before her death, lived in a "ménage à trois" arrangement, arguing that this conduct was morally relevant to the court's discretion. The co-executor (first defendant) took a neutral position.

  • Whether the forfeiture rule should be modified under s.6 of the Forfeiture Act 1995 (NSW) to allow the plaintiff to benefit from his wife's estate and jointly held property.
  • Whether the plaintiff's "conduct" for the purposes of s.5(3)(a) of the Forfeiture Act extended to the nature of the marital relationship, including alleged immorality, during the years preceding the wife's death.
  • Whether the needs of other beneficiaries and the deceased's wishes were relevant considerations in the exercise of the court's discretion.
  • What costs order should be made, and in particular whether the second defendant's costs should be borne by the estate.

Decision

On the central question of whether the forfeiture rule should be modified, the court granted the modification in full. The sentencing judge had characterised the plaintiff's driving as a serious error of judgment rather than a deliberate or reckless act, and the plaintiff had an unblemished character, had been devoted to his wife (who had a physical disability requiring his daily assistance), and had received strong support from the wife's own family. Those factors weighed heavily in favour of modification.

On the relevance of the plaintiff's conduct during the marriage, the court held that "conduct" under s.5(3)(a) of the Forfeiture Act is confined to conduct bearing on the circumstances in which the deceased was killed and on the culpability of the offender. The nature of the marital relationship over the preceding twenty years had no connection to how the accident occurred or to the degree of the plaintiff's culpability. That evidence was therefore irrelevant to the statutory inquiry.

The court also held that the needs of other beneficiaries and the deceased's own wishes were not relevant considerations in the circumstances of this case. The modification was assessed primarily by reference to the nature of the offending conduct and the offender's personal circumstances.

On costs, the court declined to make a finding that the second defendant's participation was unreasonable. It accepted that some competent lawyers might reasonably have believed the marital conduct evidence was relevant to the court's discretionary exercise, and that the second defendant also raised points on will construction and jurisdiction that were not obviously without merit.

Orders Made

  • The forfeiture rule was modified in full as sought in paragraphs 1, 2 and 3 of the Amended Summons, permitting the plaintiff to receive the benefit of jointly held property and interests under the deceased's will.
  • The plaintiff was ordered to pay his own costs of the application.
  • The first defendant (co-executor) was awarded costs out of the estate on an indemnity basis.
  • The second defendant was awarded costs out of the estate on a party/party basis.

Key Takeaways

  • Under s.5(3)(a) of the Forfeiture Act 1995 (NSW), the "conduct" the court must consider is conduct that bears on the circumstances of the killing and the offender's culpability. Conduct during the marriage that has no connection to those matters is not relevant to the statutory inquiry.
  • A conviction for dangerous driving causing death does not preclude a full modification of the forfeiture rule, particularly where the offending is characterised as an error of judgment rather than deliberate or reckless conduct, and the offender's character and relationship with the deceased are strong mitigating factors.
  • The needs of other beneficiaries and the wishes of the deceased are not automatically relevant considerations in every Forfeiture Act modification application; their relevance depends on the circumstances of the particular case.
  • In applications under the Forfeiture Act, a plaintiff seeking an indulgence from the court will generally be required to pay their own costs, rather than having those costs borne by the estate.
  • Where an opposing party raises arguments that, while ultimately unsuccessful, could reasonably have been considered arguable by competent lawyers, costs out of the estate on a party/party basis may be an appropriate outcome, drawing on the analogous approach taken in Family Provision Act litigation.

Legislation and Cases Referenced

Legislation:
- Forfeiture Act 1995 (NSW), ss.3, 4, 5, 6
- Crimes Act 1900 (NSW), s.52A(1)(c)
- Family Provision Act 1982 (NSW)
- Jurisdiction of Courts (Foreign Land) Act 1989 (NSW), s.4
- Property (Relationships) Act 1984 (NSW)
- Wills, Probate and Administration Act 1898 (NSW)

Cases:
- Beresford v Royal Insurance Company Ltd [1937] 2 KB 197
- Dunbar v Plant [1997] 4 All ER 289
- Re K (deceased) [1985] 1 Ch 85
- Lenaghan-Britton v Taylor (unreported, NSWSC, 26 May 1996, Hodgson CJ in Eq)
- S-T v J [1997] 3 WLR 1287
- Vasiljev v Public Trustee [1974] 2 NSWLR 497