Akkerman v Ewins

[1999] NSWCA 386

CITATION:	AKKERMAN v EWINS [1999] NSWCA 386
FILE NUMBER(S):	CA 40824/98
HEARING DATE(S):	12 October 1999
JUDGMENT DATE:	12 October 1999
PARTIES :	RUDOLPH JOHAN AKKERMAN v GERALDINE HELEN EWINS & ANOR
JUDGMENT OF:	Handley JA at 1; Beazley JA at 11; Fitzgerald JA at 12

LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S) :	1703/97
LOWER COURT JUDICIAL OFFICER:	Master McLaughlin

COUNSEL:	R H Weinstein (Appellant) R Legg Solicitor (Respondent)
SOLICITORS:	Sydun & Co (Appellant) Burridge & Legg (Respondent)
CATCHWORDS:	FAMILY PROVISION ACT 1982 - s 9(2)-TEST FOR "INADEQUATE PROVISION" FOR "PROPER MAINTENANCE, EDUCATION AND ADVANCEMENT IN LIFE"-CLAIM BY STEP-SON-WHETHER MASTER APPLIED CORRECT TEST-WHETHER NEED ESTABLISHED
ACTS CITED:	Family Provision Act 1982
DECISION:	Appeal dismissed with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40824/98
EQ 1703/97

HANDLEY JA
BEAZLEY JA
FITZGERALD JA

Tuesday 12 October 1999

RUDOLPH JOHAN AKKERMAN v GERALDINE HELEN EWINS & ANOR

FAMILY PROVISION ACT 1982 - s 9(2) - TEST FOR “INADEQUATE PROVISION” FOR “PROPER MAINTENANCE, EDUCATION AND ADVANCEMENT IN LIFE” - CLAIM BY STEP-SON - WHETHER MASTER APPLIED CORRECT TEST - WHETHER NEED ESTABLISHED

The appellant had made a claim under the Family Provision Act 1982 for provision out of his step-mother’s estate. The Master dismissed the claim on the ground that the appellant had not established need.

HELD : dismissing the appeal: The appellant had failed to establish a case for appellate intervention.

ORDERS

Appeal dismissed with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40824/98
EQ 1703/97

HANDLEY JA
BEAZLEY JA
FITZGERALD JA

Tuesday 12 October 1999


RUDOLPH JOHAN AKKERMAN v GERALDINE HELEN EWINS & ANOR

JUDGMENT

1    HANDLEY JA: This is an appeal by a step-son from an order of Master McLaughlin dismissing his claim for provision out of his step-mother's estate out the Family Provision Act. His step-mother died on 29 December 1995 leaving a will dated October 1994 in which she left the bulk of her estate to her two daughters, made no provision for the appellant, and made modest bequests to a charity and a sister. 2    The estate was not large. The principal asset comprised a house property at Baulkham Hills which was sold for about $177,000 and there were other assets including some notional estate. The actual estate comprised $214,000 gross and there was some superannuation from Holland which passed to the appellant’s half sisters.
3    The Master found that the appellant owned his own home apparently unencumbered at Erina worth approximately $200,000. He had a 1993 Magna motor vehicle and at the date of trial had some $7,500 in his bank. His weekly income, which was part age pension and part superannuation, amounted to $330.00 a week and his weekly expenses were some $236.00 a week.
4    The appellant had his mother Mrs De Heus living with him. She was of advanced years and partly blind, and her income consisted of a blind pension or perhaps a combination of blind pension and aged pension. The appellant supported his mother who did not contribute to the food or the outgoings of the house.
5    The appellant's claim before the Master was that he should receive what the Master described as "a modest legacy", possibly referring to the claim advanced in argument by the appellant's counsel. The Master’s findings were that the appellant although not affluent was able to subsist quite adequately on a relatively small income. He said:

"There is no suggestion that he is destitute or that he is in urgent need of any financial benefit for any specific purpose. I am not satisfied that he has in any relevant sense established need with the consequence that I'm not satisfied that he has established that he has been left without adequate provision for his maintenance, education or advancement in life".

6 Mr Weinstein, counsel for the appellant, submitted that the statement by the Master that the appellant was not destitute or in urgent need of any financial benefit for any specific purpose, while correct factually did not adequately reflect the legal test under s 9(2) of the Family Provision Act. This is, if I may say so, correct. However, I am not persuaded that the error Mr Weinstein has identified in this extempore judgment invalidated the Master’s next finding that he had not been satisfied that the appellant had, in any relevant sense, established need or that he had been left without adequate provision for his "maintenance, education or advancement in life". In the latter statement the Master inadvertently omitted reference to the word proper which qualifies the expression "maintenance, education or advancement in life".
7    The evidentiary case made at the trial to establish what has been compendiously described as need to form the basis for an order under the Act was contained in the appellant's affidavit of 24 October 1996. He said in paragraph 73:

"If I am successful in these proceedings I intend to use the money to see family in Holland and to build a granny flat for my mother at the rear of my property at Erina".

8    It appeared however, that the appellant and his mother had been to Holland in May 1996 five months before the affidavit was sworn and had stayed eight weeks there seeing members of their family in that country. Despite the expenditure on this trip, at the date of the affidavit the appellant still had, in terms of paragraph 71, $20,000 with Westpac. It does not appear how his mother was able to afford the trip or whether she paid for it herself or was assisted by the appellant.
9    In the light of this evidence I have not been persuaded that the case is one for appellate intervention from this Court. Despite the error on the part of the Master in the sentence on which Mr Weinstein principally relied on a re-exercise of the discretion, or on the making of a new finding on appeal, I would reach the conclusion that the appellant had not made out a case for the intervention of the Court.
10    Many claimants of the age of the appellant who do not have access to a free amount of capital to meet the contingencies of their declining years seek to establish a case under this legislation on that basis. No such case was made here on behalf of the appellant. Indeed the evidence that I have referred to indicates that any money awarded by way of a modest legacy would not be used as a provision for future contingencies. In those circumstances I would propose that the appeal be dismissed with costs.
11    BEAZLEY JA: I agree.
12 FITZGERALD JA: I also agree and add only brief reference to one point. The difficulty with the Master's reasons which the presiding Judge has mentioned arises from the convenient but potentially inaccurate equation of "need" to the statutory test of "inadequate provision" for the appellant's "proper maintenance, education and advancement in life" in subsection 9(2) of the Family Provision Act 1982.
13    Although such shorthand is understandable the two concepts are not identical and care is necessary to ensure that when need is referred to, attention is not diverted from the legislative requirement. I agree with the orders proposed and with the presiding Judge's reasons.
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