Batty v Batty

[2004] NSWSC 904

CITATION:	Batty v Batty [2004] NSWSC 904
HEARING DATE(S):	19, 20 and 21 April 2004
JUDGMENT DATE:	30 September 2004
JURISDICTION:	Equity division
JUDGMENT OF:	Master McLaughlin at 1
DECISION:	(1). I order that the summons be dismissed.; (2). I order that all earlier costs orders made herein be vacated. ; (3). I make no order as to costs, to the intent that each party bear her or his own costs of the proceedings. ; (4). The exhibits may be returned.
CATCHWORDS:	Succession. - Family Provision. - Claim by adult granddaughter. - Substantial legacy given to Plaintiff by will. - Whether Plaintiff is an eligible person. - Whether Plaintiff was dependent upon Deceased. - Relationship between Plaintiff and Deceased. - Statements by Deceased. - Factors warranting the making of the application. - Financial and material circumstances of Plaintiff. - Whether Plaintiff has been left without adequate provision for her proper maintenance.- Competing claim of Defendant.
LEGISLATION CITED:	Family Provision Act 1982 (New South Wales) Testator's Family Maintenance and Guardianship of Infants Act 1916 (New South Wales)
CASES CITED:	Ball v Newey (1988) 13 NSWLR 489 Blore v Lang (1960) 104 CLR 124 Re Fulop Deceased (1987) 8 NSWLR 679
PARTIES :	Joanne Leslie Batty (Plaintiff) Brett Denis Batty (Defendant)
FILE NUMBER(S):	SC 2022 of 2002
COUNSEL:	Plaintiff in person Mr. G. E. Underwood (Defendant)
SOLICITORS:	David Kennedy, Esq (Defendant)

- 3 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Thursday, 30 September 2004

2022/02 JOANNE LESLIE BATTY - v- BRETT DENIS BATTY

JUDGMENT

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

2 By summons filed on 26 March 2002 the Plaintiff Joanne Leslie Batty claims an order for provision for her maintenance and advancement in life out of the estate of the late Marion Joyce Smillie (“the Deceased”). The Plaintiff is the granddaughter of the Deceased, the Plaintiff’s mother Marion Ruth Batty having been the daughter of the Deceased.

3 The Deceased, who was a widow, died aged 100 years on 17 October 2000. She left a will dated 20 January 1998, probate whereof was on 24 November 2000 granted to Brett Denis Batty, the executor named in such will (who is the Defendant to the present proceedings).

4 By that will the Deceased gave her jewellery, clothes and books to the Plaintiff, a legacy of $100,000 to the Plaintiff, and the sum of $15,000 to be divided equally among the Plaintiff’s three children upon each attaining the age of 30 years. The Deceased gave the residue of her estate to her grandson, Brett Denis Batty, the Defendant.

5 The inventory of property discloses the following assets:

House property situate at and known as 94 Holt Avenue, Mosman, to which a value of $975,000 was ascribed
Bank account: $16,000
Furniture, to which a value of $1,500 was ascribed.

6 Subsequently an appraisal of the Mosman property, dated 3 June 2003, indicated that the current market value of that property was about $1,150,000.

7 It will be appreciated that in estimating the value of the estate available for distribution the costs of the present proceedings should be taken into account. No estimation of her costs has been placed before the Court on behalf of the Plaintiff. It should here be recorded that the Solicitor who instituted the proceedings on behalf of the Plaintiff filed a notice of ceasing to act on 6 April 2004. Since that time the proceedings have been continued by the Plaintiff in person. At the hearing the Plaintiff appeared in person and conducted the proceedings on her own behalf.

8 The Plaintiff and the Defendant are the only two surviving children of their parents (another child, born in 1967, died shortly after birth). Their mother was the only child of the Deceased.

9 The Plaintiff was born on 27 November 1960, and is presently aged 43. The Defendant was born on 29 May 1962 and is presently aged 42. Their mother died on 1 September 1979, leaving the entirety of her estate to their father, Walter Herbert Charles Batty. He died intestate on 17 December 1980, and the Plaintiff and the Defendant upon that intestacy took the entirety of his estate in equal shares. The substantive asset in that estate consisted in a house property situate at and known as 18 Eastview Avenue, Church Point, which had been the family home of the Plaintiff, the Defendant and their parents. Another significant asset in the estate of their father was a yacht, Cabaret. Both the house property and the yacht were transmitted to the Plaintiff and the Defendant as tenants in common in equal shares. Subsequently, in circumstances to which I shall later refer in more detail, the Defendant, on 5 December 1986, transferred to the Plaintiff his interest in both the Church Point property and the yacht for $97,000.

10 The Plaintiff also received testamentary benefits from her paternal grandmother, Marguerita Rosina Anne Batty (known as Rita Batty), who died on 28 January 1985, and from her great uncle, Malcolm Smillie, brother of the Deceased, who died on 8 May 1995. Rita Batty left her residence at 21 Wolseley Road, Coogee, together with its contents, to the Plaintiff and the Defendant in equal shares. That house property was sold on 2 August 1985 for $135,000 and the net proceeds of sale were divided equally between the Plaintiff and the Defendant.

11 Malcolm Smillie gave a legacy of $40,000 to the Plaintiff and a legacy of $15,000 to each of the first two children, Crystle Lindsay Wendt and Elisia Alana Wendt. Malcolm Smillie left nothing to either the Deceased or the Defendant.

12 The legacy of $100,000 given to her by the will of the Deceased has been paid to the Plaintiff. Similarly, the legacy of $15,000 to be divided equally among the three children of the Plaintiff has also been paid.

13 Since the cash funds in the estate totalled less than $16,500 and since the Defendant resides in the substantial asset of the estate (being the house property at 94 Holt Avenue, Mosman), the Defendant himself advanced $98,519 from his own funds to the Plaintiff in satisfaction of the aforesaid legacies. It would appear that those legacies were paid by instalments, the final instalments being paid to the Plaintiff in March 2002, at about the time of the filing of the summons herein.

14 The Plaintiff married Stephen Wendt on 13 March 1982, and thereupon moved into the Church Point property (where the Defendant, aged 19, was residing on his own, his parents both being deceased). Two children were born of that marriage (Crystle and Elisia), and the Plaintiff, her husband and those children remained in residence in the Church Point property until December 1993, when that property was sold by the Plaintiff for $312,000.

15 After the Plaintiff’s marriage to Mr. Wendt broke down, she commenced a de facto relationship with Steven Wood in 1994. In November of that year the Plaintiff and Mr Wood purchased the property at 1456 Wooli Road, Pillar Valley, in which the Plaintiff still resides. Of the relationship with Mr. Wood was born the Plaintiff’s third child Elouise, presently aged four. The relationship between the Plaintiff and Mr. Wood came to an end in February 2003. However, the Plaintiff has continued to reside in the Pillar Valley residence.

16 At the present time the Plaintiff’s assets consist of

A one-half interest in the Pillar Valley residence (the total value of which property is estimated to be $150,000)
Motor vehicle having an estimated value of $10,000
St. George Bank account having a minimal credit balance.

17 The Plaintiff’s liabilities are as follows:

National Visa Card – $3,019
GE Capital Finance - $2,231
Pristine Waters Council Rates - $675.

18 The Plaintiff receives a supporting parent’s benefit in an amount of $339 a week, a family allowance in an amount of $60 a week. She also receives income averaging about $30 a week from the sale of jewellery which she fabricates. She gave details of her outgoings in a total amount of almost $302 a week.

19 Apart from the Mosman property, in which he has been residing, whilst in Sydney, since the death of the Deceased, the assets of the Defendant consist of,

Moneys on deposit and in trading account with the Commonwealth Bank of Australia - $25,362
Moneys on deposit in a Bankers Trust managed fund - $87,033
A Retirement Security Plan with National Mutual Retirement Fund, having a nominal withdrawal value as at 13 June 2003 - $12,410.
Home unit at 5/30 Young Street, Cremorne, having an estimated value of $490,000
Account with e*trade Bank - ($US) $14,461

20 The home unit at 5/30 Young Street, Cremorne was purchased by the Defendant in February 1989 for $270,000. The purchase price was funded as follows:

(a) advance from Westpac Savings Bank Ltd. secured by mortgage - $65,000
(b) proceeds of sale of Defendant’s interest in the Church Point property - $97,000
(c) Benefit received from estate of Defendant’s grandmother Marguerita Rosina Anne Batty (known as Rita Batty) - $67,500
(d) Defendant’s savings $40,500

21 The Defendant discharged the mortgage on the Young Street property from his own assets on 28 May 1990.

22 The Defendant has no significant liabilities.

23 The Defendant, after moving out of the Church Point property in June 1983 (when he was aged just 21) resided for the balance of that year with the Deceased at the Holt Avenue property. The Defendant at that time was pursuing a course at the School of Hotel Administration and Catering at the Ryde College of Technical and Further Education. He graduated as a catering supervisor at the end of 1983. Thereafter he has worked overseas for extended periods. Upon his return to Sydney after the conclusion of or during the course of such periods of overseas employment the Defendant always returned to the Deceased’s residence, which he regarded as his home, even though, after he purchased the Cremorne home unit in February 1989 he on occasion stayed there also.

24 Whilst residing with his grandmother the Defendant was never charged any rent or occupation fee, although he did contribute to the telephone expenses, but not to any other household expenses. He assisted the Deceased with gardening, vacuuming, heavy housework, and the like, as well as with shopping. When he had the use of a motor car it was the practice of the Defendant to drive the Deceased to her various appointments. The Deceased attended to the Defendant’s laundry and cooking, and provided all the food for the household whilst the Defendant was residing with her.

25 In recent years the Defendant has been living and working as a chef in the United States of America. His current earnings as a chef in America are $US 30,000 (gross), being in a net amount of about $US 20,000. In addition, the Defendant receives rental income from the Neutral Bay apartment in a net amount of about $12,000 a year. The Defendant, who does not own any property in America, does not pay for his accommodation. He works as a chef for wealthy families who supply him with accommodation free of charge. When he is not in employment he stays with friends, whom he does not pay for his accommodation.

26 A great deal of evidence (especially that of the Plaintiff) was devoted to the nature of the respective relationships between each party and the Deceased, and also the relationships between the Plaintiff and the Defendant. (In regard to the former there was much evidence concerning the circumstances in which the Deceased, at the behest of one or other of her grandchildren, was in the closing stages of her life moved between various nursing homes in Sydney and in Grafton.) The views of the Deceased herself concerning the relationships between herself and each of her two grandchildren emerge not only from the terms of her will, but also from a letter dated 31 March 1986 addressed by the Deceased to the Plaintiff and headed “Letter to be handed to Joanne after my death” (Annexure JB2 to the affidavit of the Plaintiff sworn 7 April 2003). That letter is in the following terms,

My dear Joanne,

For years you and Brett have been at odds with one another. This has caused me a lot of unhappiness, as you are both very dear to me. Since Wal and Ruth died the friction has increased and, since Rita’s death, it has been much worse. I have tried my hardest to help, without any success.

You both want to live in your parent’s home but this has been impossible, and Brett decided he would be the one to vacate the house.

The share of the contents of your home and Rita’s home in my mind, has been very one sided, and that is why I changed my will. It was not done in anger Jo but after a lot of thought believe me.

I hope I will have the happiness of seeing you and Brett at peace before I die.

Your ever loving Narn.

27 The foregoing letter from the Deceased is admissible in evidence pursuant to section 32 of the Family Provision Act.

28 It was quite apparent from the evidence and, indeed, it was conceded by each of the parties, that the Plaintiff and the Defendant had always had a difficult relationship. That relationship deteriorated even further after the deaths of their parents and as a consequence of the Church Point family home (which devolved upon the Plaintiff and the Defendant equally, consequent upon the intestacy of their father) becoming the residence not only of the Defendant, but also of the Plaintiff, her husband and their two children. The Defendant departed the Church Point property as a result of interpersonal difficulties between himself and the Plaintiff and her family. Although the Defendant was the co-owner with the Plaintiff of that property, in which he had resided with his parents for all his life, it was his evidence that he was, in effect, made to feel a stranger and an interloper in his own home.

29 Details of the difficult relationship between the Plaintiff and the Defendant are not of any particular significance in the present claim of the Plaintiff. I would, however, record that the various threats which the Defendant asserted had been made to him by the Plaintiff were, indeed, hardly disputed by the Plaintiff – such as threats that she would burn down the Holt Avenue house if it was left to the Defendant by the Deceased, that she would kill the Defendant, that she would stab him to death with a knife. The prolix and discursive fashion in which the plaintiff conducted the hearing of the present proceedings, and especially in which she purported to cross-examine the Defendant, make it appropriate that the following salutary admonition of Windeyer J in the High Court of Australia in Blore v Lang (1960) 104 CLR 124 at 137 should constantly be kept in mind,

The jurisdiction under the Testator’s Family Maintenance Act [the statutory predecessor to the Family Provision Act ] is to provide for deserving persons according to their requirements, not to reward past services. This is sometimes overlooked and evidence concerning the present and probable future requirements of the applicant is subordinated to or submerged in evidence of past services to the testator. Allegations and denials concerning episodes in the past are then likely to become emphasised at the expense of evidence directed to the central issues in the case.

30 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claim of the Plaintiff.

31 The Plaintiff asserts that she is an eligible person within paragraph (d) of the definition of the phrase contained in section 6(1) of the Family Provision Act, in that, she was partly dependent upon the Deceased and is a grandchild of the Deceased.

32 It should here be recorded that the only persons who might possibly be an eligible person in relation to the Deceased are the Plaintiff and the Defendant. There are no other eligible persons in relation to the Deceased.

33 Whilst there is no doubt that the Plaintiff, as a grandchild of the Deceased, satisfies the first limb of that definition, the Defendant disputes that the Plaintiff was partly dependent upon the Deceased. It will be appreciated that, unless she can establish such partial dependency, the Plaintiff is not an eligible person in relation to the Deceased. Unless she be an eligible person, she lacks the standing to bring the proceedings and in consequence her claim must be dismissed.

34 The dependency relied upon by the Plaintiff consisted of the following matters.

35 Firstly, the Defendant submitted that the Deceased was more like a mother to her than a grandmother. Even if a relationship of such nature could be established, that would constitute no more than a degree of emotional dependence. Such authorities as Ball v Newey (1988) 13 NSWLR 489 establish that more than an emotional dependence is required.

36 Each of the Plaintiff’s grandparents paid for the Plaintiff’s twenty-first birthday party and for her wedding. However, those facts do not constitute more than what could be described, in the words of Counsel for the Defendant, as “one-off gifts”.

37 Dependency of the nature referred to in paragraph (d) of the foregoing definition denotes more than occasional gift or benefits. The Plaintiff was residing in the family home with her parents until she was aged 19 and then with her father until she was aged 20. When she left the family home she was in employment and she was residing with (and subsequently, from March 1982, married to) her husband Stephen Wendt. I do not consider that such one-off gifts can be regarded as constituting dependency by the Plaintiff upon the Deceased.

38 Further, the Deceased provided the Plaintiff with $2,200 to go on a trip to Switzerland in November 1990. That gift does not constitute dependency, as the trip was in the nature of a holiday. Neither do I consider that the alleged gifts of regular amounts of $40 a month by the Deceased to the Plaintiff (an allegation disputed by the Defendant) can be regarded as establishing dependency of the Plaintiff upon the Deceased, or the payment by the Deceased of other small bills of the Plaintiff which were subsequently repaid by her. Those advances can properly be categorised as loans.

39 The Plaintiff also relied, for establishing dependency upon the Deceased, upon the fact that from August 1994 to January 1995 the Plaintiff, and her de facto husband Steven Wood resided with the Deceased in the Holt Avenue property. From the beginning of that year the Plaintiff and her family had been residing in rented accommodation at Clareville. The owner of that property wished to resume his occupation thereof, and in consequence the Plaintiff and her family departed that rented accommodation. At that time the Plaintiff and Mr. Wood were desirous of acquiring a residence in the country. The purchase of the Pillar Valley property was settled in January 1995.

40 There was a conflict of evidence as to whether the Plaintiff had requested that the Deceased allow herself and her family to reside in the Holt Avenue property or whether the Deceased had initiated the invitation. Whichever it be, however, it is clear that that residence for a period of about five months was only in the nature of a temporary accommodation. Throughout that period the Plaintiff and Mr. Wood were each in receipt of unemployment benefits, their children were receiving social security benefits, the Plaintiff and Mr. Wood purchased their own food. There is no suggestion that the Plaintiff and Mr. Wood were destitute, or that they were dependent upon the accommodation at the Holt Avenue property for shelter for themselves and the Plaintiff’s children.

41 They occupied the Holt Avenue residence only as a matter of convenience during the period between their departure from the rented accommodation at Clareville and the purchase of a permanent home at Pillar Valley. It was not a situation of necessity, where the Plaintiff might have been dependent upon accommodation with the Deceased for the Plaintiff’s own day-to-day living. There is no suggestion that, had the owner of the Clareville property not wished to resume occupation of his own property, the Plaintiff and her family would not have continued to reside in those rented premises. Similarly, there is no suggestion that, if the Deceased had not allowed the Plaintiff and her family to reside in the Holt Avenue property, they would have found themselves deprived of shelter for that period of five months. When they left the Holt Avenue property they were able to enter into residence in a property which the Plaintiff and Mr. Wood purchased.

42 I am not persuaded that the fact that the Deceased allowed the Plaintiff and her family to have temporary accommodation at the Holt Avenue residence can properly be regarded as constituting dependence by the Plaintiff upon the Deceased.

43 I am not satisfied that the Plaintiff was at any time dependent upon the deceased. That being so, the Plaintiff has not satisfied the second limb of the foregoing definition. In consequence, she is not an eligible person. Thus the Plaintiff does not have the standing to bring the present proceeding and her claim must be dismissed.

44 If, however (and contrary to the view which I have just expressed), the Plaintiff were to establish that she was dependent upon the Deceased and thus that she was an eligible person in relation to the Deceased, she must still, pursuant to section 9(1) of the Act, establish that there are factors which warrant the making of her present application.

45 The Plaintiff relied upon what she described as a loving and close relationship with the Deceased, who she said was more of a mother to her than a grandmother. She pointed to the fact that whilst the Plaintiff was residing in Grafton she made frequent and regular visits to the Deceased in Sydney.

46 However, it should be recognised that the present is not a case where a grandmother accepts the role of a mother to a grandchild who loses one or both of her own parents at an early age. In the instant case the Plaintiff was aged respectively 19 and 20 at the times of the deaths of her mother and of her father. The nature of the relationship between the Plaintiff and the Deceased does not constitute anything above and beyond the normal relationship between a granddaughter and a loving and generous grandmother.

47 It is appropriate here to observe that an order for provision is not made as a reward for good conduct on the part of an applicant. Neither is such an order withheld as punishment for perceived bad conduct on the part of an applicant.

48 I am not satisfied that the Plaintiff has established that there are factors of the nature contemplated by section 9(1) which warrant the making of the present application. In considering the meaning of what he described as “this poorly conceived and clumsily expressed subsection (which formed no part of the Draft Bill produced by the Law Reform Commission)” McLelland J (as he then was) said in Re Fulop Deceased (1987) 8 NSWLR 679 at 681 that the factors referred to in section 9(1) are factors which, when added to facts which render the applicant an eligible person, give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by the testator.

49 In the instant case, the Plaintiff was not such a natural object of the testamentary recognition of the Deceased. But, in any event, it must not be overlooked that the Deceased by her will gave to the Plaintiff the not inconsiderable legacy of $100,000.

50 It is in this regard relevant that the Plaintiff had been well provided both from the estates of her own parents (indirectly from that of her mother and directly from that of her father) and from the estates of her paternal grandmother and her maternal great uncle. It was a matter of the Plaintiff’s own choice that in December 1993 she sold the Church Point property and subsequently removed to her present establishment at Pillar Valley. The legacies which she received from her paternal grandmother (almost $76,000) and from her great-uncle ($40,000) were used by her to buy out the Defendant’s half interest in the Church Point property and in the yacht (which latter asset was subsequently sold by the Plaintiff for $75,000). Had the Plaintiff retained the Church Point property she would be living in a residence now worth well over one million dollars (probably in the vicinity of 1.5 to 1.6 million dollars).

51 It was a matter entirely of the Plaintiff’s own choice that she disposed of the Church Point property, which (together with the yacht Cabaret) she acquired as to one half interest from her father’s estate and as to the other one half interest by paying to the Defendant $97,000. If she had not chosen to sell that property she would have been in a situation where she had received an extremely valuable property at a cost to her of only $97,000. (Indeed, upon another approach it might be said that she had acquired the Church Point property for only $22,000, since the payment by her of $97,000 was for the Defendant’s interest in both the house property and the yacht, and the Plaintiff subsequently sold the yacht for $75,000.)

52 It was the stated desire of the Plaintiff that she should have a larger house in which to bring up her youngest child Elouise. The Plaintiff said that the legacy of $100,000 was not sufficient for her needs. In this latter regard, I would, however, make several observations. Apart from generalised references to the cost of education of children, the Plaintiff did not identify any specific needs which would require a larger house in which to bring up her youngest child, let alone any quantification of any such needs. Further, it must not be overlooked that the present is a claim by the Plaintiff, not a claim by her daughter Elouise. Further, although the Plaintiff said that “$100,000 really doesn’t go very far”, the Plaintiff did not offer any adequate explanation (and, indeed, did not offer any explanation at all) as to what she had done with that legacy, the final instalments of which she had received only in early 2002. It should also not be overlooked that the Plaintiff has not sought any child support from Elouise’s father, and has offered no explanation for her failure to do so.

53 The Plaintiff has not established that she has been left without adequate provision for her proper maintenance.

54 It follows that, as the Plaintiff cannot establish that there are factors warranting the making of the application, then, pursuant to section 9(1) of the Act, her claim must be dismissed.

55 But, even if (contrary to the view which I have just expressed) the Plaintiff were to establish that there were factors which warrant the making of the application, her claim must be approached in the light of the competing claim of the Defendant upon the testamentary bounty of the Deceased. It should be appreciated that the Plaintiff must establish her own claim upon its own merits. Her claim cannot be enhanced by the financial and material circumstances of the Defendant. However, the competing claim of the Defendant upon the testamentary bounty of the Deceased may have the effect of reducing, or even extinguishing, an order for provision an entitlement to which the Plaintiff might otherwise establish.

56 It must be recognised, not only by the terms of her will but also by such statements as her letter to the Plaintiff, that the Deceased in making her testamentary dispositions was attempting to achieve a degree of equality between her two grandchildren, which equality, in the Deceased’s view, had been displaced by the significant benefit which, in the circumstances, the Plaintiff received in respect to the Church Point property (which had been the family home of herself and the Defendant and their parents). That the Plaintiff chose to dispose of that property at the time when she did is not a matter for which either the Deceased or the Defendant can be held responsible.

57 The Defendant has out of his own pocket paid the substantial part of the legacies of $100,000 to the Plaintiff and $15,000 to her children, since the other assets in the estate of the Deceased, apart from the Holt Avenue property, were not sufficient to meet those legacies. Any order for provision which might be made in favour of the Plaintiff would of necessity require either that the Defendant sell the Holt Avenue property or that he liquidate some of his other personal assets. If the Defendant is desirous of retaining the Holt Avenue property as his residence when he ultimately returns from the United States of America, where he is presently in employ, then any order for provision which might be made in favour of the Plaintiff would need to be met out of the Defendant’s own pocket.

58 I consider that the gift by the Deceased of $100,000 to the Plaintiff was, in all the circumstances, a generous, but not inappropriate, benefit for her. But, even if she had not received such a legacy under the terms of the will of the Deceased, the Plaintiff would not, in my conclusion, have been entitled to an order for provision out of the estate of the Deceased.

59 I summarise, as follows, my foregoing conclusions.

60 The Plaintiff was not dependent upon the Deceased and thus is not an eligible person within paragraph (d) of the definition of that phrase contained in section 6(1) of the Family Provision Act.

61 Even if (contrary to the conclusion which I have just expressed) the Plaintiff be an eligible person in relation to the Deceased, there are no factors warranting the making of the present application.

62 But if (contrary to the conclusion which I have just expressed) there are such factors, the Plaintiff has not been left without adequate provision for her proper maintenance. The legacy of $100,000 is more than adequate to make such provision. The fact that the Defendant received a greater benefit from the will of the Deceased cannot enhance the claim of the Plaintiff. The benefit which the Defendant received must be viewed in the context of the benefit which the Plaintiff had earlier received from the estate of her late father and the subsequent acquisition by her of the Defendant’s interest in the Church Point property and the yacht.

63 Any order for provision which might be made in favour of the Plaintiff would have the practical consequence of requiring the Defendant either to sell the Holt Avenue property, or to meet the order for provision out of his own personal funds.

64 For the foregoing reasons the claim of the Plaintiff must be dismissed.

65 During the course of the hearing Counsel for the Defendant stated that his client was seeking an order for the dismissal of the proceedings; and that, if such an order be made, the Defendant sought that the earlier costs orders in favour of the Defendant be vacated and that each party should bear her or his own costs of the proceedings.

66 In the light of the foregoing attitude of the Defendant concerning costs, I make the following orders:

(1). I order that the summons be dismissed.
(2). I order that all earlier costs orders made herein be vacated.
(3). I make no order as to costs, to the intent that each party bear her or his own costs of the proceedings.
(4). The exhibits may be returned.

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Last Modified: 10/15/2004