Jans v Public Trustee

[2002] NSWSC 628

CITATION:	Jans v Public Trustee [2002] NSWSC 628
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	SC 2898/01
HEARING DATE(S):	2 July 2002
JUDGMENT DATE:	2 July 2002
PARTIES :	Gunter Detlef Jans (Plaintiff) Public Trustee (Defendant)
JUDGMENT OF:	Campbell J

COUNSEL :	G A Moore (Plaintiff) L Ellison (Defendant)
SOLICITORS:	Gibsons Lawyers (Plaintiff) P J Whitehead (Defendant)
CATCHWORDS:	SUCCESSION - EXECUTORS AND ADMINISTRATORS - application under Forfeiture Act 1995 - Court's role when parties agree what orders should be made
LEGISLATION CITED:	Forfeiture Act 1995
DECISION:	Forfeiture Rule modified

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

TUESDAY 2 JULY 2002

2898/01 GUNTER DETLEF JANS v PUBLIC TRUSTEE

JUDGMENT – Ex Tempore

1 HIS HONOUR: This is an application under the Forfeiture Act 1995. It is made by Gunter Detlef Jans concerning the circumstances in which he came to kill his wife. The defendant is the executor of Mrs Jans’ estate. Mr Jans was born on 6 March 1945. He married his wife in 1975 and they lived together first at a house at Canley Vale and then in a house at Yagoona until 12 March 1999, the day on which Mr Jans killed his wife.

2 In view of the fact that the parties to this application have reached an accommodation between themselves, I will not go into all the details that would ordinarily be involved in such an application. Suffice to say that the findings made by Grove J in sentencing Mr Jans are in evidence before me, without objection; I shall adopt them. It is relevant that Grove J imposed a penalty of a good behaviour bond for four years. It is relevant that though Mr Jans had been charged with murder, the Crown accepted a plea of guilty to manslaughter as discharging the indictment for murder, on the ground that the plaintiff had available to him a partial defence of diminished responsibility.

3 The Act requires the court in effecting any modification of the forfeiture rule to have regard to certain specified matters set out in s 5(3) of the Forfeiture Act 1995. These are the conduct of the deceased person, the effect of the application of the rule on the offender or any other person, and such other matters as appear to be material.

4 The circumstances outlined in the sentencing remarks of Grove J adequately describe for present purposes what needs to be said concerning the conduct of the offender and the conduct of the deceased person.

5 It is relevant to the present application that the effect of the application of the forfeiture rule on Mr Jans would be effectively to deprive him of a house. He has disclosed his financial position in an affidavit sworn on 26 May 2002.

6 He is presently aged 57 and works as a maintenance assistant at the University of Sydney and has a gross salary of $36,531 per annum. If he retires at age sixty he will receive a lump sum superannuation payment of a little over $200,000 or a pension of $815.78 per fortnight. Apart from this contingent entitlement a superannuation is the only asset of any substance. He has a half interest in a house at Yagoona, some furniture and white goods and a coin collection said to be worth approximately $3000. Whilst he has about $15,000 in a bank account it will be largely absorbed by the liability to pay costs in these proceedings.

7 The house is presently subject to a mortgage of a little over $8000, plus if the forfeiture rule were to be allowed to run its course Mr Jans would be approaching his retirement with, effectively, no assets apart from his superannuation.

8 The other people whose situation needs to be taken into account are the three children of Mr and Mrs Jans. They were the beneficiaries under their mother's will. It is they who will bear the effective burden of any modification of the forfeiture rule which takes place. They are all over eighteen. They have all had the benefit of advice. They consent to the making of the orders which I now propose. That seems to me to be a most important consideration in the exercise of the court's discretion. It is necessary for the court's discretion to be exercised in a case such as this, as it is only by the court forming the view that justice requires the effect of the rule to be modified that the rule can be displaced at all. However, it seems to me that the opinion of the people who are financially affected by the application of the rule are highly material.

9 The Act requires an application from forfeiture modification orders to be made within twelve months from the date of the death of the deceased person. Mrs Jans, as I said, died 12 May 1999. The present summons was not filed until 24 May 2001. However, the evidence does show that as early as 6 July 2000 there was a letter to the Public Trustee from the plaintiff's former solicitors which referred to previous correspondence, thus it appears, comparatively soon after the expiration of the year, discussion was underway between the respective parties about the application under the Forfeiture Act, and indeed, though the evidence is not complete in this respect it may have been the case that that discussion started before the expiration of the twelve months. Again, in circumstances where the parties have agreed on the appropriate orders to make, it seems to me appropriate to extend the time for making a forfeiture modification order.

10 I grant leave to the plaintiff to apply for relief under the Forfeiture Act 1995 outside the twelve month period established under s 7 of that Act, and extend the time for making application to 1 June 2001.

11 By consent the plaintiff, the defendant, and the three children of the plaintiff and Mrs Jans, I make orders in accordance with short minutes of order which I initial and date today's date and place with the papers.

**********

Last Modified: 07/22/2002