Brady v Padol

[2005] NSWSC 429

CITATION:	Brady v Padol [2005] NSWSC 429
HEARING DATE(S):	10 and 11 February 2005
JUDGMENT DATE :	3 May 2005
JURISDICTION:	Equity Division
JUDGMENT OF:	Master McLaughlin at 1
DECISION:	(1). I order that the proceedings be dismissed. (2). I order that the Plaintiff pay the cost of the Defendants, such costs to be on the party and party basis. (3). I order that the Defendants be entitled to recoup from the estate of the late Effie Padol ("the Deceased") the difference between the foregoing costs which they may recover from the Plaintiff and the costs of the Defendants on the indemnity basis. (4). The exhibits may be returned.

CATCHWORDS:	Succession. Family Provision. Claim by adult grandson. Whether Plaintiff is an eligible person. Whether Plaintiff was dependent upon Deceased. Relationship between Plaintiff and Deceased. Factors warranting the making of the application. Financial and material circumstances of Plaintiff. Whether Plaintiff has been left without adequate provision for his proper maintenance, education or advancement in life. Deed of family arrangement between Defendants. Competing claims of Defendants. Distribution of estate to Defendants beneficially.
LEGISLATION CITED:	Family Provision Act 1982
CASES CITED:	Re Fulop Deceased (1987) 8 NSWLR 679 Singer v Berghouse (1984) 181 CLR 201
PARTIES:	Antony Brady (Plaintiff) Nicholas Padol (First Defendant) Elly Padol (Second Defendant)
FILE NUMBER(S):	SC 5429 of 2003
COUNSEL:	Mr. T. Bors (Plaintiff) Mr. A. Hill (Defendants)
SOLICITORS:	Hassett Dixon (Plaintiff) David M. Carson (Defendants)

LOWER COURT JURISDICTION:

- 21 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Tuesday, 3 May 2005

5429/03 - ANTONY BRADY –v- NICHOLAS PADOL and ANOR

JUDGMENT

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

2 The proceedings were instituted by summons filed by the Plaintiff, Antony Nicholas Brady, on 23 October 2003.

3 Subsequently, at the outset of the hearing, an amended summons was filed on 10 February 2005. By that amended summons the Plaintiff claims, substantively, an order for provision for his maintenance and advancement in life out of the estate and/or notional estate of his late grandmother, Effie Padol (to whom I shall refer as “the Deceased”).

4 The Deceased died on 21 May 2003. The evidence did not disclose the precise age of the Deceased at the time of her death, but she would have been aged in her eighties. She left a will dated 17 February 1994, probate whereof was on 14 July 2003 granted to Nicholas Padol and Elly Padol, the executors named in such will (who are the Defendants to the present proceedings).

5 The Deceased, who was a widow at the time of her death (her husband, Pamy Padol, having died in April 1983) was survived by her two children, Nicholas (who was born on 13 July 1944, and is presently aged 60) and Elly (who was born on 23 February 1953, and is presently aged 52).

6 By that will the Deceased gave her house property situate at and known as 30 Rickard Street, Balgowlah (“the Balgowlah property”) to her daughter, Elly Padol, the second Defendant, together with her household goods and furniture and personal possessions. The Deceased gave the residue of her estate equally between her two children, Nicholas Padol and Elly Padol.

7 Clause 5 of the will is as follows,

I DECLARE that the bequest and devise in this my Will to my daughter ELLY PADOL were made by me after extensive and careful consideration of all relevant facts and circumstances, in particular the financial position of my son and daughter, the fact that my daughter is unmarried and unemployed, has looked after me and attended to my needs on a full time basis since the death of my husband and does not own a house property or any other real property whereas my son is well established, owns a house property and is otherwise financially secured.

8 In the event, the only assets owned by the Deceased at the time of her death (as disclosed in the inventory of property) were the Balgowlah property (to which an estimated value of $900,000 was ascribed ) and furniture and contents of that property (to which an estimated value of $25,000 was ascribed). In addition, the Deceased jointly with her daughter Elly Padol held two bank accounts (totalling $7,767), to the moneys held wherein Elly Padol was entitled by survivorship.

9 It will be appreciated that in calculating the value of the estate available for distribution the costs of the present proceedings must be taken into consideration, since the Plaintiff, if successful, will be entitled to an order for his costs out of the estate, whilst the Defendants, irrespective of the outcome of the proceedings, will be entitled to their costs out of the estate. As I understand the evidence of the plaintiff’s solicitor in this regard, the costs of the Plaintiff will total no less than about $23,000 (probably more, depending upon the quantification of Counsel’s fees). It is estimated that the costs of the Defendants will total almost $45,000.

10 On 11 August 2003 Elly Padol and Nicholas Padol entered into a deed of family arrangement. The effect of that deed was that the estate of the Deceased was divided equally between those two children of the Deceased. They entered into that deed because, as emerged from the evidence, the Deceased’s understanding of the first Defendant’s financial and material circumstances at the time when she made her will, and her description of those circumstances in clause 5 of the will, was not correct; neither was that description correct at the date of the death of the Deceased.

11 The Balgowlah property was on 6 August 2003 sold for $892,500. The net proceeds of sale, in an amount of $869,052, were thereafter divided equally between the two Defendants.

12 The Deceased was survived by her two children, Nicholas and Elly. The Plaintiff is the only child of Nicholas, and the only grandchild of the Deceased. Elly, who lived with her mother for the entirety of her life, has never married and has no children.

13 It should here be recorded that the Plaintiff, who had previously been known as Antony Nicholas Padol, changed his name to Antony Nicholas Brady, that change being endorsed upon his birth certificate on 3 October 2000.

14 The Plaintiff, who was born on 29 December 1979, is presently aged 25. He is unmarried.

15 The Plaintiff asserts that he is an eligible person in relation to the Deceased. It will be appreciated that, unless he is such an eligible person, the Plaintiff lacks the standing to bring the present proceedings and that, in consequence, his claim must be dismissed.

16 The Plaintiff asserts that he is an eligible person within paragraph (d) of the definition of that phrase contained in section 6(1) of the Family Provision Act, in that he had been partly dependent upon the Deceased and that he was the grandson of the Deceased.

17 The Defendants dispute that the Plaintiff comes within the first limb of the foregoing definition.

18 A very considerable quantity of evidence, both by affidavit and by way of oral evidence, was presented by the Plaintiff for the purpose of establishing that he had been partly dependent upon the Deceased and by the Defendants for the purpose of refuting that assertion.

19 Despite its ostensible purpose, however, much of that evidence descended into assertions and counter-assertions concerning the relationship between the Plaintiff and his father, and various incidents in the course of that relationship. The picture presented by the Plaintiff (who in this regard was supported by his mother, Jeanine Brady) was totally inconsistent with the picture presented by the first Defendant. The differences were so great that the Court could hardly recognise that it was the same household and family which were being described by the Plaintiff and his mother on the one hand and by his father on the other.

20 It is not necessary, however, for the Court to rehearse the details of each of those incidents or to express some conclusion as to the evidence which should be accepted in regard thereto. The relevance of those incidents is their bearing upon the assertion of the Plaintiff (denied by the Defendants) that the Plaintiff was partly dependent upon the Deceased. In addition, those incidents may assist in determining the credibility of the Plaintiff where his assertions of partial dependence are disputed by the Defendants.

21 It is difficult to resist the conclusion that the present proceedings, or at least a large part of the evidence presented in the proceedings by and on behalf of the Plaintiff, have been used as a vehicle by the Plaintiff and his mother to manifest their feelings and animosity against the first Defendant.

22 Essentially, it was the case for the Plaintiff, that on account of the nature of his relationship with his father, Nicholas Padol, the first Defendant, the Plaintiff in November 1997 left the family home where to that time he had been residing with his parents, and that thereafter he was intermittently provided with shelter and sustenance by his grandmother, the Deceased. Further, that from time to time the Deceased gave to the Plaintiff financial assistance, by way of cash advances in amounts of $200 or $300 at time. It was the Plaintiff’s estimation that in total he would have received between $1,500 and $2,000 from the Deceased during late 1997 and early 1998. He said that he used that money to purchase food and other necessities.

23 The Plaintiff, after finishing school and moving out of the family home in November 1997, obtained employment in a photographic studio at Gladesville.

24 In early 1998 the Plaintiff took employment in a ski shop at Jindabyne. He said that he continued to maintain telephonic contact with the Deceased on a fortnightly basis. In about July 1999 the Plaintiff injured his arm whilst skiing. It was the Plaintiff’s evidence that when he informed the Deceased by telephone of that fact she offered him financial support and her residence as somewhere to stay. He said that his grandmother gave him $500 in August 1999.

25 The Plaintiff returned to Sydney from Jindabyne in October 1999 and obtained employment in a liquor store at North Sydney. It was the Plaintiff’s evidence that, although he maintained telephonic contact with the Deceased thereafter, problems with his motor car made it difficult for him to travel from where he was staying (at Maroubra and later at Granville) in order to visit her at Balgowlah.

26 In November 2000 the Plaintiff (who in the preceding month had changed his surname from Padol to Brady) departed Australia for France, where he remained until May 2001. During that period his only contact with the Deceased was two separate telephone calls to her, of less than a minute in duration on each occasion. After his return to Australia in May 2001 the Plaintiff’s sole contact with the Deceased until her death some two years later was one telephone call.

27 In August 2002 the Plaintiff purchased an investment property at Queanbeyan for $78,000, receiving financial assistance in that purchase from the First Home Owners Grant. Some four months later, in December 2002, the Plaintiff purchased a second investment property at Queanbeyan for $93,000.

28 In October 2003 the Plaintiff purchased an investment property in Claremont, a suburb of Hobart, in Tasmania, for $98,000, funding that purchase with a loan of $120,000 from the Commonwealth Bank of Australia, through it subsidiary, Colonial.

29 The Plaintiff in about March 2004 established his own business, Brady Domestic Industrial and Maintenance, which subcontracts the Plaintiff’s services as a labourer on construction sites. Evidence was given by the Plaintiff concerning the financial circumstances of that business, and his earnings as such a subcontractor for building work.

30 At the present time the Plaintiff’s assets consist of:

9/52 Trinculo Street, Queanbeyan, having a present estimated value of $150,000.

30/18 Booth Street, Queanbeyan, having a present estimated value of $160,000.

7/123A Abbotsfield Road, Claremont, Tasmania, having a present estimated value of $120,000.

31 The various loans which the Plaintiff obtained in order to acquire the foregoing investment properties have all been consolidated, and the Plaintiff now owes Colonial a total of $391,811, upon which amount he pays variable interest accruing at the rate of 6.57 percent per annum, being represented by monthly payments of about $2,200. The foregoing valuations of the Plaintiff’s properties were obtained by Colonial at the time when the Plaintiff consolidated the various mortgage debts on those properties.

32 In addition to his foregoing indebtedness to Colonial the Plaintiff has a liability of $2,224 to Teachers’ Credit Union for a loan which he took out in about 2000. In January 2005, the Plaintiff was in default under the arrangements for that loan, that default being in respect to an outstanding amount of $749.

33 In July 2004 the Plaintiff purchased a Holden utility motor vehicle, for the purposes of his labouring business. In December 2004 he purchased another Holden utility motor vehicle for $15,000, trading in the previous motor vehicle and obtaining a loan from the Commonwealth Bank to meet the balance ($10,000) and associated costs and insurance. That loan is for a period of four years, each monthly payment being in the sum of $398.

34 The Plaintiff owes $1,570 on a Citibank credit card (which has a credit limit of $7,000), $12,033 on a Commonwealth Bank Mastercard (which has a credit limit of $12,000) and $6,565 on a Commonwealth Bank Visa Card (which has a credit limit of $7,000). He uses the lastmentioned credit card to pay all business expenses.

35 The Plaintiff pays a total of about $6,100 a year in respect to council rates and strata levies on the three investment properties which he owns. Each of those three investment properties is currently leased. From the Trinculo Place property he receives rent of $180 a week, from the Booth Street property he receives rent of $160 a week and from the Hobart property he receives rent of $150 a week, receiving a total income by way of rent from those properties in the sum of $490 a week.

36 The Plaintiff presently resides in a home unit at Coogee, which he shares with its owner, to whom he pays rent of $100 a week. According to the Plaintiff he has weekly expenses (including his rent, household outgoings, and other personal outgoings) totalling $443 a week. From his labouring business the Plaintiff in the period from 1 July 2004 until January 2005 earned about $23,000 gross (being about $880 gross a week). It is difficult to estimate with any accuracy the Plaintiff’s net income, especially from his labouring business. Although required to produce his income tax returns, the Plaintiff did not do so, attempting to explain his failure to comply with the notice to produce by saying, “I have lost them”. He produced only some income tax assessments.

37 It was the evidence of the Plaintiff that since 21 January 2005 he has not been able to find contract work as a labourer. The construction site where he was working at Granville has now been completed, and although he is currently available for work he has not been successful in securing a contract.

38 The Plaintiff was to commence work on 14 February 2005 as a mobile lending manager at the Newtown Branch of Wizard Home Loans. That employment would be remunerated on a commission basis, and the Plaintiff has been advised by Wizard Home Loans that upon a standard home loan of about $300,000 he would receive commission of about $1,200. It was the evidence of the Plaintiff that for the first two weeks, whilst undergoing the Wizard Home Loan training course on a full-time basis, he would not receive any remuneration. Further, that in the ensuing six weeks after the completion of the course he would not receive remuneration, until contracts upon which he would be entitled to commission began to settle. The Plaintiff gave evidence concerning various outgoings which would be associated with his work with Wizard Home Loans. It was the Plaintiff’s evidence that once he embarks upon his work with Wizard he would not be able to continue labouring work throughout the week, although he would still be available to work at weekends if such labouring jobs were then available.

39 The Plaintiff has enrolled in a Bachelor of Business in Property course at the University of Western Sydney, that course to commence in March 2005. The Plaintiff gave evidence concerning the various costs in respect to that university course.

40 The Plaintiff summarised his financial circumstances as follows:

Assets - $430,000

Liabilities - $433,339

Rental income - $490 a week

Outgoings - $560 a week

41 The claim of the Plaintiff must be approached in the light of the competing claims upon the testamentary bounty of the Deceased. Those competing claims are the claims of the Defendants. It will be appreciated that the second Defendant, Elly Padol, was the chosen principal object of the testamentary beneficence of the Deceased.

42 The first Defendant has since March 2001 been living in a de facto relationship with Jill Dyson. Since that time the first Defendant has been largely supported by Ms Dyson. They conjointly own their residence at 30b Tyndall Street, Mittagong, which they purchased as joint tenants in, I gather, 2003, for $605,000. That purchase was funded by a contribution from the first Defendant of his entire share of the proceeds of sale of the Deceased’s Balgowlah residence in an amount of about $435,000. The Mittagong property is subject to a mortgage of $220,000, the mortgage repayments being $1,177 a month. Those payments are met by Ms Dyson, who also pays all outgoings in respect to the Mittagong property including municipal rates, insurance and home maintenance, without any contributions from the first Defendant.

43 Ms Dyson is an occupational therapist by profession, having graduated as such from the New South Wales College of Occupational Therapy in 1962. Since that time she has carried on practice as an occupational therapist, apart from a period of twelve years whilst she was bringing up her family. She carries on her professional practice through the vehicle of a company, Arnette Holdings Pty Limited, of which she is the sole director and sole shareholder and by which company she is employed.

44 The first Defendant, who is a marketing consultant and freelance writer by occupation, has not worked in any full-time capacity since mid-2003. However, Arnette Holdings Pty Limited pays him fees for his assistance in keeping the books and records of that company. For the year ended 30 June 2004 he received $12,398 for those services, which amount was used by the first Defendant in reducing his credit card indebtedness. That debt presently stands in an amount of about $20,000.

45 The first Defendant suffers form diabetes and sleep apnoea. That latter condition causes him to sleep for considerable periods during the daytime. As well as insulin injections for his diabetes, the first Defendant takes eight different medications every day. The cost of those medications is about $200 a month until what is known as “the safety net” is reached (which generally happens in about the middle of each financial year). I gather that thereafter there is no cost to the first Defendant for his medications.

46 During the year ended 30 June 2004, Ms Dyson received a gross salary of $45,000. In addition, she receives income from property owned by her at 6/10 Helemon Street, Braddon, Australian Capital Territory and at 23 Banksia Street, Bowral. The Braddon unit is encumbered by a mortgage, upon which an amount of about $300,000 is presently outstanding and for which Ms Dyson makes monthly payments of $1,541. That property is presently let on a periodical tenancy at $340 a week (about $1,360 a month). Until recently it had been vacant for a period of seven weeks, between tenancies. The Bowral property, which is collateral security for the Braddon unit, is presently let on a periodical tenancy at $280 a week.

47 According to Ms Dyson, the income from her employment, as well as the rental income she receives from the Braddon unit and the Bowral property are insufficient to cover mortgage payments on those properties and the living expenses of the first Defendant and herself. When she commenced to live with the first Defendant in March 2001, Ms Dyson had a personal share portfolio worth about $84,000. Since that time she has been obliged to sell various parts of that portfolio, to help fund mortgage payments and the living expenses of the first Defendant and herself. At the present time Ms Dyson’s share portfolio has a market value of about $36,000.

48 Details of the financial circumstances of Arnette Holdings Pty. Limited have been placed before the Court. They reveal that at 30 June 2004 that company had a total deficit of $3,735. The most recent income tax return of that company discloses that for the year ended 30 June 2004 it made a loss of $23,566.

49 After the sale of the Balgowlah property and the division of the proceeds of that sale between the two Defendants a home unit situate at and known as 6/1-7 Gloucester Place, Kensington was acquired by them for the sum of $422,000, as a residence for the second Defendant. That home unit is owned by the Defendants as joint tenants. The second Defendant has resided in that home unit since October 2003.

50 The second Defendant, who since 1998 has suffered from epilepsy and who has impaired vision, has not worked since she was aged in her mid to late-twenties, when she gave up her employment in order to stay at home and look after her mother who, on account of a middle ear condition, was experiencing problems with her balance. The second Defendant’s sole income is a disability pension of $850 a month. She has been receiving that pension since November 1997. From about May 2002 until her mother’s death a year later the second Defendant also received a part-carer’s allowance, to supplement her pension. Details of the second Defendant’s outgoings and expenses, totalling $830 a month, are set forth in her affidavit evidence.

51 The second Defendant’s assets are,

6/1-7 Gloucester Place, Kensington (half interest) - $210,000

Personal and household effects - $5,000

ANZ Access account - $1,000

David Jones shares - $2,720

Coles Myer shares - $3,500.

52 The second Defendant does not own a motor car, and uses public transport unless she is driven by the first Defendant.

53 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.

54 I have had the benefit of receiving a written outline of submissions and a chronology from Counsel for the respective parties. Those documents will be retained in the Court file.

55 It is necessary for the Plaintiff, at the outset, to establish that he is an eligible person in relation to the Deceased. If he is not an eligible person, then he does not have the standing to bring the present proceedings and his claim must be dismissed.

56 The Plaintiff asserts that he is an eligible person in that, not only was he a grandson of the Deceased, but he had been partly dependent upon the Deceased. That asserted dependency consisted of accommodation and occasional financial benefits.

57 The Plaintiff asserted that in late 1997 and early 1998 for intermittent periods (usually for only one or two nights at a time, but on occasion for up to a week) he was residing in the Balgowlah property with his grandmother, the Deceased, and his Aunt Elly, the second Defendant. He estimated that those periods would have totalled “about two months or so”. The Court does not have the benefit of the Deceased’s evidence concerning that assertion. However the assertion was disputed by the second Defendant, who was at all times in residence at the Balgowlah property and was the constant and devoted companion of her mother, the Deceased. The second Defendant rarely, if ever, left the Balgowlah property except in the company of the Deceased. It was the evidence of the Plaintiff that throughout the periods whilst he was residing in the Balgowlah property in late 1997 and early 1998 it was necessary for the second Defendant to give up her bedchamber to the Plaintiff, and that throughout those periods the second Defendant slept with the Deceased. The second Defendant absolutely denied that the Plaintiff ever stayed overnight in the Balgowlah property, and, further, that the second Defendant had ever given up her bed and slept in the Deceased’s bed.

58 Because of the total conflict between the evidence of the Plaintiff and the evidence of the second Defendant concerning those allegations, it is necessary for me to express a view concerning the credit of those two witnesses.

59 I was not favourably impressed by the Plaintiff as a witness. At times his demeanour was not at all impressive whilst he was giving his evidence, for example, concerning the incident in November 1997 when he said that he had been taken to the Ryde Hospital by ambulance. (I would also here observe that the hospital records of the Ryde Hospital certainly do not support the Plaintiff’s version of that incident.) It was quite apparent that the Plaintiff had, to say the least, been less than frank with the appropriate Government authorities in obtaining a First Home Owners Grant in order to purchase the Queanbeyan property. He purchased the Queanbeyan property as an investment, although for him to qualify for the grant it should have been his residence. In the first twelve months of his ownership he resided therein for a period of two weeks and later for one night. The Plaintiff’s participation in misleading documentation concerning his employment by IMP Coatings and his failure to declare cash earnings to the Taxation Office all reflect poorly upon the Plaintiff’s credit.

60 The Second Defendant, who is now aged 53, although suffering from ill health and being in receipt of a disability support pension, gave her evidence frankly and, in my estimation, truthfully. I prefer the evidence of the second Defendant to that of the Plaintiff concerning the assertions of the Plaintiff that he was provided with accommodation by the Deceased in the Balgowlah property. I do not accept that the Plaintiff spent the periods which he alleged in that property or that, throughout those periods, the second Defendant gave up her bedchamber to the Plaintiff and slept with the Deceased.

61 But even if (contrary to the conclusion which I have just expressed) the Plaintiff did spend the alleged periods in the Balgowlah property, I am not satisfied that occasional overnight stays over a period of several months constitute dependency of the Plaintiff upon the Deceased.

62 It is quite apparent that the Deceased was a loving and devoted grandmother to the Plaintiff. It is equally apparent that the Plaintiff was prepared to accept any financial assistance which occasionally the Deceased gave to him. However, the Plaintiff chose to go his own way, especially after he left the parental home in November 1997. His contact with the Deceased after he went to Jindabyne in early 1998 was limited to telephonic communication. He hardly saw the Deceased from that time onwards. Even when he returned to Sydney in January 2000 he did not visit the Deceased. From the time when he departed for France in November 2000 until the death of the Deceased more than two and half years later the Plaintiff’s contact with his grandmother was limited to two telephone calls of less than one minute each, and a single call (at the behest of his mother) after his return to Australia. Express requests by the Plaintiff’s father that he should contact his grandmother were either positively rejected or merely ignored.

63 There was placed before the Court by the Defendants an impressive body of evidence from relatives and friends of the Deceased recounting statements by the Deceased that the Plaintiff had not been in contact with her and expressing her distress at that failure on the part of the Plaintiff.

64 I do not consider that any relatively small instances of financial assistance which may have been given by the Deceased to the Plaintiff can in any way constitute partial dependency of the Plaintiff upon the Deceased. It is quite apparent that from the time when the Plaintiff went to work at Jindabyne in early 1998, he chose to follow his own life, without manifesting any interest in his grandmother. There was certainly no degree of dependence upon her. The relationship between the Deceased and the Plaintiff cannot in any way be equated to a relationship where, for example, a mother dies and the grandmother takes over the role of surrogate mother to a grandchild.

65 I am not satisfied that the Plaintiff has established that he was partly dependent upon the Deceased. That being so, I am not satisfied that the Plaintiff is an eligible person in relation to the Deceased. It follows, therefore, that the Plaintiff does not have the standing to bring the present proceedings, and that, in consequence, his claim must be dismissed.

66 But even if, contrary to the view which I have just expressed, I were to be satisfied that the Plaintiff is an eligible person, it would be necessary for him to establish, pursuant to section 9(1) of the Act, that there are factors which warrant the making of the present application.

67 In considering the meaning of what he described as “this poorly conceived as 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.

68 In the instant case, I am not satisfied that the Plaintiff has established that he was such a natural object of testamentary recognition by the Deceased. She was clearly an affectionate grandmother to the Plaintiff. It cannot be said that the Plaintiff manifested an equivalent affection for or interest in the Deceased.

69 There was no explanation whatsoever for the Plaintiff’s virtual lack of contact with his grandmother from the time when he went to France in November 2000 until the death of the Deceased in May 2003.

70 Any suggestion that the Deceased might have been regarded by the Plaintiff as being in the role of a surrogate parent cannot be sustained. I am not satisfied that there are factors which warrant the making of the present application. It follows, therefore, that the Plaintiff’s claim cannot succeed.

71 But even if, contrary to the conclusions which I have just expressed, I were to be satisfied that there were such factors warranting the making of the application, nevertheless the Plaintiff must establish relevant need. As was recognised by the High Court of Australia in Singer v Berghouse (1984) 181 CLR 201 at 208, as being the first stage in the two-stage process then identified by the High Court, an applicant must establish that he has been left without adequate provision for his proper maintenance, education or advancement in life.

72 At the age of 25 the Plaintiff is the owner of three pieces of real estate, two at Queanbeyan and one in Tasmania. Even though each of those properties is subject to a mortgage, nevertheless, each is an income producing property. In addition, the Plaintiff has been in receipt of income from his work as a labourer on building sites and he is able to embark on what appears to be a financially remunerative career with Wizard Home Loans. He regularly goes on skiing and other holidays about four times a year. I am not satisfied that the Plaintiff has been left without adequate provision for his maintenance, education or advancement in life. It follows, therefore, that the present claim of the Plaintiff cannot succeed.

73 But even if, contrary to each of the foregoing conclusions which I have just expressed, the Plaintiff were to have established that he was entitled to an order for provision out of the estate of the Deceased, any such entitlement must be approached in the context of the competing claims upon the testamentary bounty of the Deceased. Those competing claims can have the effect of reducing, or even extinguishing, any order for provision an entitlement to which the Plaintiff might otherwise have established. They cannot enhance the claim of the Plaintiff, which must be established upon its own merits.

74 The Deceased recognised a very significant competing claim in the person of her daughter Elly, the second Defendant.

75 The fact that Elly Padol subsequently entered into a deed of family arrangement with her brother Nicholas, the first Defendant, does not derogate from the propriety of the testamentary provisions made by the Deceased, which essentially left the Balgowlah property and its contents to the second Defendant, who was the Deceased’s unmarried daughter and constant companion and who herself suffered from health problems. Had the Defendants not entered into a deed of family arrangement, I would not have contemplated the possibility of disturbing the testamentary provisions in favour of the second Defendant.

76 The Court must, however, approach the application of the Plaintiff in the light of the circumstances which exist at the present time, and thus the Court must not disregard the deed of family arrangement. The residential unit at Kensington, which is now the home of the second Defendant, is owned by herself conjointly with the first Defendant. The competing claim of the second Defendant requires that she have at least a residence. Any order for provision in favour of the Plaintiff should not disturb the entitlement of the second Defendant to that residence.

77 In consequence of the deed of family arrangement, Elly Padol is now the owner of a residential property at Kensington, whilst the first Defendant has expended the major part of the amount which he received under that deed, almost $435,000, on the purchase of his present residence at Mittagong in the Southern Highlands of New South Wales. The second Defendant, now aged 60, is essentially unemployed. I would not be disposed to interfere with the present residential arrangements of the first Defendant.

78 If follows from the foregoing that I consider that the competing claims of the two Defendants are such as would have effect of totally extinguishing any order for provision an entitlement to which the Plaintiff might otherwise have established.

79 In the light of my foregoing conclusions, it is unnecessary for me to proceed to a consideration of whether either the Mittagong property, in which the first Defendant has an interest and in which he resides, or the Kensington residence of the second Defendant, which is owned by the Defendants conjointly, should be designated as notional estate of the Deceased. However, were it necessary for me to do so, I would not be disposed to make such an order, which would have the effect of depriving the Defendants of their respective residences.

80 I summarise as follows my foregoing conclusions.

81 I am not satisfied that the Plaintiff was ever partly dependent upon the Deceased. In consequence, he is not an eligible person in relation to the Deceased, and his claim must be dismissed.

82 Even if (contrary to my foregoing conclusion) the Plaintiff is an eligible person, I am not satisfied that there are factors which warrant the making of the present application.

83 Even if (contrary to my foregoing conclusions) there are factors which warrant the making of the present application, the Plaintiff has not established relevant need, in that the Plaintiff has not established that he has been left without adequate provision for his maintenance, education or advancement in life.

84 Even if (contrary to each of my foregoing conclusions), the Plaintiff were to have established relevant need, nevertheless the competing claims of the Defendants, and especially that of the second Defendant, are such that I would not be prepared to disturb the testamentary provisions of the Deceased (as altered by the deed of family arrangement).

85 In the light of my foregoing conclusions it is not necessary for me to consider whether either or both of the Mittagong residence of the first Defendant and the Kensington residence of the second Defendant should be designated notional estate of the Deceased. However, were it necessary for me to do so, I would not be disposed to make such an order.

86 It follows from the foregoing that the claim of the Plaintiff must be dismissed.

87 I make the following orders:

(1). I order that the proceedings be dismissed.

(2). I order that the Plaintiff pay the cost of the Defendants, such costs to be on the party and party basis.

(3). I order that the Defendants be entitled to recoup from the estate of the late Effie Padol (“the Deceased”) the difference between the foregoing costs which they may recover from the Plaintiff and the costs of the Defendants on the indemnity basis.

(4). The exhibits may be returned.

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