Blair v Noble

[2000] NSWSC 1106

CITATION:	BLAIR v NOBLE [2000] NSWSC 1106
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 3190 of 1999
HEARING DATE(S):	01/12/2000
JUDGMENT DATE:	1 December 2000
PARTIES :	Stephen Blair v David Noble (Estate of John Robert Blair) & Ors
JUDGMENT OF:	Master Macready at 1

COUNSEL :	Mr C.M.Simpson - Plaintiff Mr M. Wals - 1st Defendant Mr J. Wilso - 2nd Defendant
SOLICITORS:	Mr Stephen Teece - Plaintiff Mr Norris Stuart-Jones - 1st defendant Mr J. Lynch - 2nd defendant
CATCHWORDS:	Family Provision. Claim by a son with disabilities requiring the provision for him of accommodation. Order made in favour of the son. - No matter of principle.
DECISION:	Para 28

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

FRIDAY 1 DECEMBER 2000

3190/99 STEPHEN BLAIR v DAVID NOBLE - ESTATE OF JOHN ROBERT BLAIR & ANOR

JUDGMENT

1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late John Robert Blair. He died on 29 October 1998 aged sixty-nine years. The deceased was survived by his de facto wife, Maneenet Urasi, who was the second defendant in the proceedings, the former wife, Elizabeth Blair and four adult children. 2 The plaintiff is the second eldest of the plaintiff's four children having been born on 12 February 1954, and is now aged forty-six. The proceedings were instituted within time. 3 The deceased made his last will and testament on 27 October 1998 two days before he died. He appointed the first defendant executor and gave the whole estate to him on trust. Firstly, he was to pay the proceeds of his retirement pension to his de facto wife, and secondly, a further $150,000 by way of legacy to her. Thirdly, he directed his executor to hold an amount of $120,000 to invest and pay the income to the plaintiff Stephen Blair during his life, and after his death amongst his grandchildren equally. 4 There then followed a life interest in $30,000 to a son, Bruce Blair with residue to his children, and then there followed five specific legacies to various friends of the plaintiff, and then there was a residuary bequest for the estate to be held amongst the grandchildren. 5 The situation in the estate has been cleared up in some respects now compared to when the matter first came before the Court. The estate consisted of a number of different assets, most of which have now been realised and reduced to cash. 6 Indeed, in the executor's affidavit of 1 December, Mr Noble has identified a net amount held in banks and term deposits of $340,056. For the purposes of the present exercise I will add back in two amounts, the first is the costs paid on account to the defendants' solicitors of $6,560 and the second is the partial distribution to the deceased's de facto wife of $26,617. 7 As a result of some further work after the commencement of the case, it is apparent that there are preference shares held in a company called Golden Resource Developments of some $12,500 having a value of $14,750. 8 There are also 30,000 shares in Canada Land Limited which are apparently worth five cents, giving a value of some $1,500 which makes a total distributable estate of $397,867. 9 The second defendant was joined on the express basis that only one set of costs would be allowed. Costs have been estimated for the plaintiff at $19,222, and the first defendant $10,500, and the second defendant $19,050. Allowing on the basis of one set of costs at $40,000, one has an available estate of $357,867. The High Court has recently in Singer v Berghouse (1994) 81 CLR 201 set out the two stage approach that the Court must take. At page 209 it said the following:

"The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably, be made and making an order could disturb the testator's arrangements to pay creditors."

10   As directed by the High Court I turn firstly to the situation of the plaintiff. The plaintiff as I stated before is forty-six years of age, and perhaps it is worth noting some of the history in relation to his relationship with the deceased. He left school in 1973 and started studying law and commerce at the University of New South Wales. He started helping at that time his father with a number of things in his father's business. His father was by this stage carrying on a business of surveying and some land development. 11   Ultimately, he graduated in law in 1976 but did not wish to pursue that career. He moved to Brisbane and lived there and pursued other interests in Community Radio. His father in 1978 assisted him with a loan of some $6,000 which enabled him to buy a share in a house there. When that was sold, the plaintiff travelled to Europe. The deceased did not require that loan to be repaid. He was overseas from 1981 for some five years, and kept in continuous contact with his father. He saw him when his father travelled to Rome. 12   In 1986 the plaintiff came back to Australia and started working in the Promotions Technology Industry. He and his father still kept in close association. For instance, they travelled to the Silk Road to China at the expense of the deceased and also did some flying lessons together. 13   In 1992 the plaintiff was diagnosed with a suspected brain tumour, and in the course of a biopsy only part of his brain was functioning, the plaintiff suffered irreversible left side hemiplegia and severe post-operative psychological trauma. He was discharged in a wheelchair with a very poor prognosis, and a life expectancy of some three months. He sold his share in the house that he had, used the proceeds to meet his expenses and to supplement his disability pension. 14   He has continued to live in Melbourne and it is because of the illnesses from which suffered that he has not yet been able to return to what limited work is available to him. 15   There is medical evidence as to the plaintiff's condition, and it is clear that his disability in a physical sense makes it difficult for him to live other than in a house which has special requirements. He also has difficulties in the psychological sense and has great difficulty in coping because of the unfortunate incident that occurred when he was operated on some years ago. 16   His present situation is that he is renting a one-bedroom unit for which he pays $120 a week. This is in a first-storey block of twelve units at Brunswick in the suburbs of Melbourne. It is unsuitable for him because it does not have the appropriate assistance in the bathroom and kitchen that his disability requires. 17   He currently has very few assets. He has some $800 in the bank, and a camper-van worth $3,500. He has liabilities of some $3,000 or $4,000. He has outgoings which stretch the amount that he receives from his disability allowance. 18   The evidence clearly establishes a close relationship between the deceased and his son, notwithstanding that distance separated them at times. It is necessary, of course, for the plaintiff to demonstrate to the Court that he has been left without proper and adequate provision for his maintenance, education and advancement in life. 19   In this case his difficulties are obvious, and it is quite appropriate that there should be some advancement in life provided for him. Clearly, he needs to have a home in which he can live, and which he can have modified to suit his special disabilities. This is, I would have thought, the minimum he should have. 20   There is evidence before me that there is an appropriate place in Brunswick where he could live among his friends, and that would cost him in the area of $145,000. There is also a need to modify such a house, hence modifications would be in the order of $10,000. 21   It is also necessary to have regard to the financial situation of others who have a claim on the bounty of the deceased. I will leave aside for the moment the de facto wife of the deceased, and deal with the other persons. None of them have filed any evidence as to their financial circumstances. This is despite the defendant executor having properly requested them to do so. He has kept them fully informed of the nature of the case that is being made by the plaintiff. 22   There is some evidence in the plaintiff's original affidavit which sets out the situation of his brothers and sisters. His brother, Bruce, apparently is a self-employed builder who owns a rural property in Queensland. His sister, Deborah, is a part-time university lecturer who owns her own home and a family holiday house at Tweed Heads in the north of New South Wales. His brother, Matthew, is self-employed as a builder, and conducts a successful building business in and around Sydney. He owns his own home, and a commercial property in the Hunter Valley. His mother, Elizabeth Blair is a self-supporting retiree and living in her own house at Terrigal in New South Wales. 23   Members of the family have been given appropriate notice and they have made no claim. Given the absence of evidence in assessing the claim, I can regard the claims of the other members of the family as ones where they do not wish the Court to take into account their financial circumstances. 24   The other person who the Court has to take into account is the situation of the deceased's de facto wife, Maneenet Urasi. She was born in Thailand and first came to Australia in 1990 after marrying an Australian, George Ferguson, who she met in Thailand. George Ferguson died in 1993 and after his death she returned to Thailand. This was because she had no friends and was unable to support herself. The deceased was a friend of she and Mr Ferguson. The deceased met her in May 1993 in Thailand. A friendship developed between them, and at the request of the deceased she came back to Australia to live with him. They lived together as husband and wife at a property at Eastwood during 1994, until the death of the deceased in October 1998. 25   During that time the deceased had heart surgery. The second defendant cared for him after his discharge from hospital, and otherwise looked after him. It is clear that they had a good relationship. She worked with the deceased in his business and assisted him, and contributed any wages that she had to the household. 26   Under the provisions of the will she was to receive his superannuation. That provision eventually came to her from outside the provisions of the will, and she received from the trustee $107,000. She has expended part of that in assisting her family in Thailand by the purchase of assets in her own name. She has had some distribution, slightly in excess of $25,000 in respect of the legacy she is entitled to of $150,000. Given her position and the assistance that she provided to the deceased, there should be no reason why there should be any interference with her legacy. The estate, fortunately, is just large enough to accommodate what the plaintiff submits is a proper provision. 27   In the circumstances, I am satisfied it is appropriate that the plaintiff receive provision by way of absolute legacy out of the estate of the deceased in the sum of $155,000, such provision to be in lieu of the provision which is provided for under the terms of the will of the deceased. 28   Accordingly, the orders that I make are as follows:

I order that the plaintiff, in lieu of the provisions in par 3(c) of the will of the deceased, receive a legacy of $155,000, and I will provide for the burden of that legacy with an appropriate order.

29   The appropriate order is that the legacy in cl 3(b) of the will and the legacy to the plaintiff already ordered shall be paid prior to any legacies referred to in pars 3(d) to 3(i) of the will. The legacies in par 3(d) to 3(i) of the will can be paid from the funds remaining after the allowance for costs. 30   I order that the plaintiff's costs on a party and party basis, and one set of the defendants' costs on an indemnity basis to be paid or retained out of the estate.

(At this stage counsel addressed on the question of costs)

31   MASTER: When the second defendant was joined on 9 November, it was joined on the basis that the defence would be allowed one set of costs out of the estate, and it would be a matter to be determined at the trial as to how that costs order would be borne by the defendants. 32   I have now had more detailed evidence as to what has transpired since this matter commenced. It is apparent that the work for preparation of the second defendant's affidavit is fairly substantial. It was a detailed affidavit that had to be done with interpreters, and that was not done by the first defendant, the executor. It was in fact done by the solicitors for the second defendant. It seems to me that there would be no reason why the costs in relation to the preparation and advice in relation to that affidavit should not be properly allowable out of the estate as should the executor's costs who have obviously had other matters to do, including corresponding with other beneficiaries. 33   It seems to me that ultimately one gets to the situation by the beginning of October when there is no further information coming forward to the second defendant as to the position of the estate. She had handwritten notes that the deceased made two days before he died showing other assets, but nothing was filed apart from the affidavit of the first defendant on 26 May referring to the application for probate with little detail. 34   I think probably it is inappropriate to make the order on the basis that there should be one set of costs. What I propose to order is that the first defendant's costs be paid in lieu of the costs order for the defendants that I have already made, and that the first defendant's costs are payable out of the estate on an indemnity basis. 35   I order that the second defendant's costs of and in connection with the preparation of affidavits to be filed on behalf of the second defendant, and any advice in respect thereof together with the second defendant's costs from 9 October 2000 to be paid out of the estate on an indemnity basis.

oOo

Last Modified: 01/10/2001