Bruce v Greentree - [2015] NSWSC 1611

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Bruce v Greentree [2015] NSWSC 1611
Hearing dates: 17, 18 and 19 August 2015
Date of orders: 04 November 2015
Decision date: 04 November 2015
Jurisdiction: Equity
Before: Hallen J
Decision:
(i) Orders, pursuant to Uniform Civil Procedure Rules 2005 (NSW), rule 7.10(2)(b), that the Defendant, Irene Greentree, be appointed to represent the deceased’s estate and notional estate for the purposes of these proceedings.

(ii)    Orders that any order entered, or made, in the proceedings binds the deceased person’s estate and notional estate to the same extent as the estate and notional estate would have been bound had a personal representative of the deceased person to whom administration had been granted been a party to the proceedings.

(iii)    Orders that the application to amend the Statement of Claim be dismissed.

(iv)    Orders that the whole of the Plaintiffs’ Statement of Claim be dismissed.

(v)    Orders that the caveat lodged by the first Plaintiff on title to the land situated at and known as Folio Identifier 23/xxx, and Folio Identifier 30/xxx at Yarrowitch, in the state of New South Wales, be withdrawn within 14 days of the date of this order.

(vi)    Orders that the Plaintiffs deliver up vacant possession of the whole of the land situated at and known as Folio Identifier 23/xxx, and the whole of the land in Folio Identifier 30/xxx at Yarrowitch, in the state of New South Wales, within 28 days of the date of this order or within such other time as the Defendant agrees in writing.

(vii)    Orders that, in the event that the Plaintiffs fail, or either of them fails, to deliver up vacant possession of the land identified in Order (vi) above, in accordance with order (vi), a writ of possession be issued forthwith in favour of the Defendant.

(viii) Orders that any costs incurred by the Defendant thrown away by the dismissal of the trust claim shall be paid by the Plaintiffs.

(ix) Directs that the Exhibits be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rule 31.16A and rule 33.10), and Practice Note No SC Gen 18 (Para 26) following the determination of the costs of the proceedings.
(x)    The parties are to be heard on how the burden of costs of the balance of the proceedings is to be borne.
Catchwords:
SUCCESSION – TRUSTS – Claim for resulting and/or constructive trust in respect of two blocks of land in which the deceased and the Defendant were joint tenants – Prior to hearing, the Defendant and the court informed that Plaintiffs not continuing with trust claim – Trust claim to be dismissed
SUCCESSION – FAMILY PROVISION – The Plaintiffs, each of whom is a child of the deceased, apply for a family provision order under Chapter 3 of the Succession Act 2006 (NSW) – Proceedings not commenced within the time prescribed by the Act for the making of the application – The Defendant is the widow of the deceased and mother of the Plaintiffs – Deceased left no Will – Whole estate passes to Defendant under the operation of the intestacy rules – – No dispute as to each Plaintiff’s eligibility as a child of the deceased – Whether any actual estate – Application made to amend Statement of Claim to assert that part of proceeds of sale of jointly held property sold in June 2007 should be declared to be actual estate of the deceased – Alternatively, property that may be designated as notional estate of small value – Whether sufficient cause shown for making order extending the time for making the application – Whether adequate and proper provision not made for the Plaintiffs – Relevance of open offer made on behalf of the Plaintiffs during course of the proceedings
Legislation Cited: Evidence Act 1995 (NSW)
Family Provision Act 1982 (NSW)
Succession Act 2006 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248; (1993) 46 FCR 225
Collings v Vakas [2006] NSWSC 393
Curnow v Curnow [2014] NSWSC 896
Fiorentini v O’Neill [1998] NSWCA 79
Flathaug v Weaver [2003] NZFLR 730
Foye v Foye [2008] NSWSC 1305
John v John [2010] NSWSC 937
Kearns v Ellis (Supreme Court (NSW), Mahoney JA, 5 December 1984, unrep)
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Korda v Australian Executor Trustees (SA) Ltd [2015] HCA 6; (2015) 317 ALR 225
Mann v Starkey [2008] NSWSC 263
Martin v Martin [1959] HCA 62; (1959) 110 CLR 297
Mayfield v Lloyd-Williams [2004] NSWSC 419
Moore (bht the NSW Trustee & Guardian) v Randall [2012] NSWSC 184
Muschinski v Dodds (1985) 160 CLR 583
Napier v Public Trustee (WA) (1980) 32 ALR 153
Neale v Neale [2015] NSWCA 206
Re Buckland, Deceased [1966] VR 404
Segelov v Ernst & Young Services Pty Ltd [2015] NSWCA 156
Singh v Kaur Bal [No 2] [2014] WASCA 88
Underwood v Gaudron [2014] NSWSC 1055
Underwood v Gaudron [2015] NSWCA 269
Verzar v Verzar [2012] NSWSC 1380
Verzar v Verzar [2014] NSWCA 45
Vincent v Lewis [2006] NZFLR 812
Wheat v Wisbey [2013] NSWSC 537
Category: Principal judgment
Parties: Kim Katherine Bruce (first Plaintiff)
Paul Neville Greentree (second Plaintiff)
Irene Greentree (Defendant)
Representation:
Counsel:
Ms A Power (Plaintiffs)
Mr J E F Brown (Defendant)
Solicitors:
Leverage Solicitors (Plaintiffs)
Marsdens Law Group (Defendant)

File Number(s): 2013/272826

Judgment

The Claims

HIS HONOUR: This is a claim which, now, is only made for a family provision order, under Part 3.2 of the Succession Act 2006 (NSW) (“the Act”), out of the estate, or notional estate, of Neville James Greentree (“the deceased”). It is made by Kim Katherine Bruce and Paul Neville Greentree, each a child of the deceased.
The Defendant in the proceedings is Irene Greentree, the widow of the deceased (albeit from whom he was separated) and the mother of the Plaintiffs. She is the appropriate Defendant and consented to represent, and has represented, the estate and notional estate, throughout the proceedings. I shall make an order, pursuant to the Uniform Civil Procedure Rules 2005 (NSW), rule 7.10(2)(b) that she be appointed to represent the deceased’s estate for the purposes of these proceedings.
The Act applies in respect of the estate and notional estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (“the former Act”), which was repealed, effective from 1 March 2009. A family provision order is an order made by the court, under Chapter 3 of the Act, in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person.
That a case between children and their mother has proceeded in the way that it has, with virtually all matters put in issue (with the exception of eligibility), provides yet another example of the high level of emotion that can be generated in relation to the distribution of an estate. That the case has proceeded to judgment when the core of the Plaintiffs’ case appears to be to achieve something that would be possible by the agreement of the parties, but not by an order of the court in the proceedings, is even more regrettable.
Without any undue familiarity, or disrespect, intended, and for convenience, I shall hereafter refer to the parties and others who are identified, after introduction, either by her, or his, given name, or by the role each plays in the proceedings.

The History of the Proceedings

The proceedings were commenced by Summons filed on 10 September 2013, that is to say some 7.5 months later than the time prescribed by the Act for the making of an application for a family provision order (12 months from the date of the deceased’s death). The Plaintiffs seek an order extending the time for the making of their application in the Summons. The court may only make such an order “on sufficient cause being shown”: s 58(2) of the Act.
The Plaintiffs, by their counsel, Ms A Power, brought an application before me, as Duty Judge, for leave to file the Summons and for leave for short service thereof. I made orders granting that leave. The matter came before me, again, on 11 September 2013 in the Family Provision List.
In the Summons, the Plaintiffs sought a declaration that the Defendant held two properties, at Yarrowitch, on the northern tablelands of New South Wales, on trust for them. I shall refer, hereafter, to these properties as Lot 23 and Lot 30 respectively, or as “the Property”.
Because of the nature of the trust claim, on 15 November 2013, the court, by consent, ordered the matter to proceed by way of pleadings and ordered the Plaintiffs to file and serve a Statement of Claim, which they did on 10 January 2014. The relief sought in that Statement of Claim was similar to that which had been sought in the Summons. As well, the Statement of Claim set out the material facts upon which the trust claim was said to be based.
In broad summary, the Plaintiffs sought the following relief (in relation to the trust claim):

(a) That Lot 23 and Lot 30 are held by the Defendant on constructive, resulting and/or implied trust, for them and that she forthwith do all things necessary to convey the whole of her interest in Lot 23 and Lot 30 to them;

(b) That a sum of $33,500 is held by the Defendant on constructive, resulting and/or implied trust, for Paul; and

The Defendant filed a Defence to the Statement of Claim on 11 March 2014 and an amended Defence on 22 July 2015. In each, she denied that the Plaintiffs were entitled to any relief.
In relation to the claim for a family provision order, there was a dispute about the nature and value of the deceased’s estate and the notional estate of the deceased. I shall return to the dispute about the actual estate later in these reasons. Mr J E F Brown, counsel for the Defendant, whilst acknowledging that an interest in real property as a joint tenant, when the deceased does not sever that interest before ceasing (because of death or the occurrence of any other event) to be entitled to do so, with the result that, on the deceased’s death, the property, by operation of the right of survivorship, becomes held by another person (whether or not as trustee) or subject to a trust, may be designated as notional estate (s 76(2)(b) and s 80 of the Act), submitted, in the circumstances of this case, especially as the Plaintiffs had not commenced proceedings within the time prescribed by the Act, that the deceased’s interest should not be so designated.
Neither counsel, in submissions filed before the hearing, had referred to s 90 of the Act. In fact, the Plaintiffs’ counsel made no reference at all to the notional estate provisions of the Act in her written Outline of Submissions. It was only after this matter was raised, at the commencement of the hearing, that supplementary submissions were filed.
All of the Submissions provided to the court by counsel for each of the parties will remain on the court file.
There was also a dispute about whether the time for the making of the Plaintiffs’ application should be extended, and if it was, whether any family provision order under the Act should be made.

The Hearing

Shortly prior to the commencement of the hearing, and upon receipt of the Plaintiffs’ Outline of Submissions, the court was informed that the Plaintiffs did not intend to press the trust claims raised in the Statement of Claim. This was confirmed at the commencement of the hearing (T2.31-T2.41). The court noted that the Plaintiffs did not seek any relief in terms of Paragraphs 1, 2 and 3 of the Statement of Claim (T3.23-T3.24).
Although their counsel opposed such an order, I indicated that the Plaintiffs should pay the Defendant’s costs thrown away as a result of the dismissal of those claims. I shall make that order.
(Counsel for the Plaintiffs submitted that, in fact, there would be no costs, as the evidence advanced in respect of their trust claim would be relevant on the claims for a family provision order (T2.46-T2.47). However, whether that is so, or not, will be for a costs assessor to determine if the parties are unable to agree on the quantum of costs that are ordered to be paid, or if it is necessary to have those costs formally assessed.)
The parties agreed that the hearing would proceed solely as a claim for a family provision order out of the estate, or notional estate, of the deceased. Counsel for the Plaintiffs stated that they were seeking a family provision order that the deceased’s interest in Lot 23 and Lot 30 be designated as notional estate and that his interest, in each Lot, be transferred to them.
It was noted that if the court found that provision should be made for the Plaintiffs, and that the deceased’s interest in each of the Lots should be designated as notional estate, and transferred that interest to them, the Plaintiffs would hold the deceased’s share in the Lots, presumably as tenants in common with the Defendant. Despite suggesting that to do so would provide a recipe for further litigation, counsel for the Plaintiffs confirmed that this was the nature of the relief sought. (Some evidence on this topic will be adverted to later in these reasons.)
As stated, another matter that caused the hearing to not conclude within the estimated duration of 1 day, related to a dispute about whether, at the date of death, there was any actual estate of the deceased, a matter which I shall deal with, separately, later in these reasons. The issue, primarily, related to whether part of the proceeds of sale of a property at Rossmore, New South Wales (“the Rossmore property”), was held on trust by the Defendant for the deceased.
(The allegation of a trust in respect of the proceeds of sale had not been raised in the Statement of Claim, but the Outline of Submissions dated 14 August 2015 stated that the Plaintiffs contended for that result (Paragraph 7(c)). Some earlier notice of the Plaintiffs’ contention had been given.)
A summary of the facts upon which the Plaintiffs’ contention was said to be based is as follows. Prior to its compulsory acquisition in 2007, the deceased and the Defendant had held title to the Rossmore property as joint tenants. Following its sale, the Defendant received into her bank account the whole of the net proceeds of sale, less amounts deducted for fees, agent’s commission, rates, the amount due to discharge a mortgage, and the amount due to pay out an overdraft facility. All of the net proceeds of sale were retained by the Defendant. The deceased’s share of the sale proceeds were said to form part of the deceased’s actual estate. I shall deal with my findings on those circumstances later in these reasons.

No Grant of Administration

There has been no grant of administration made in the estate.
In Wheat v Wisbey [2013] NSWSC 537, at [29]-[60], I discussed the need for an order for administration to be made in circumstances where the deceased died intestate and where there is property of the deceased in New South Wales. It is not necessary to repeat what I said in that case. (Also see Curnow v Curnow [2014] NSWSC 896.)
In this case, subject to the Plaintiffs’ claim to which I have adverted, there appears to have been no real, and virtually no personal estate, of any value of which the deceased died seised, or possessed, or entitled to, in New South Wales, at the date of death. Accordingly, for reasons that I have previously explained, since an application has been made by persons for a family provision order in respect of the estate or notional estate of the deceased, in relation to which administration has not been granted, if an order in favour of one, or both, Plaintiffs were to be made, I would need to be satisfied that it would be proper to make an order under s 91 of the Act granting administration in respect of the notional estate of the deceased to each Plaintiff for the purposes only of permitting the application concerned to be dealt with.
In the circumstances, as I propose to dismiss the whole of the Plaintiffs’ Statement of Claim, this will not be necessary and I need say no more about it.

Background Facts

I am satisfied that the following facts have been established, and that they provide a useful background. In relation to any disputed matters, the following facts should be regarded as the findings of the court.
The deceased died, as a result of a car accident, on 18 February 2012. He was then aged 63 years, having been born in August 1948.
The deceased met Irene in 1962, they married in August 1967, and they remained married at the date of his death.
Irene was born in October 1947.
There was a dispute, about the date of separation (the Plaintiffs asserting it was in 1997) but I am satisfied that the deceased and Irene separated in about 1999. Their relationship, both before, and after, the separation, is another issue in the proceedings.
In about 1996, the deceased was kicked in the head by a horse whilst he was at Lot 23. He may have sustained a traumatic brain injury. He was in hospital for about 6 to 8 weeks and when he returned home, it was Irene who looked after him until their separation a few years later.
Even after their separation, Irene and the deceased remained in contact with each other, and their relationship was a reasonably close one, even though they did not always live together as husband and wife, and even though the deceased had a number of other short relationships.
Irene asserts that, on many occasions, the deceased returned to the Rossmore property, and that he stayed there, with her, for periods of time. There is no reason to disbelieve her evidence on this aspect since she is probably the only person who really knows how often he did return, and on what terms. She said, in cross-examination, at T90.15-T90.17:

“I mean, I was with Neville since I was 15. You know? There’s a bond there. We kept in touch, and we did see each other, yes we did. There was no hatred.”

There were three children of the marriage of the deceased and Irene, namely each of the Plaintiffs and Renee Michelle Bogic. Paul was born in December 1967; Kim was born in September 1970; and Renee was born in May 1973.
Between 2007 and 2012, the deceased lived, principally, in a granny flat on a property owned by Renee. (Renee has played no part in the proceedings, either as a Plaintiff, or as a witness. It was not suggested that she had been in court, at any time, during the proceedings.)
The deceased died intestate, no Will having been found. Section 112 of the Act provides that if an intestate leaves a spouse and issue, and the issue are all also issue of the spouse, the spouse is entitled to the whole of the intestate estate. Accordingly, Irene is solely entitled to whatever property is found to be the property of the deceased at the date of his death, by operation of the intestacy rules.
As stated, Irene has not sought a grant of administration in respect of the deceased’s intestate estate. This is hardly surprising in view of what she understood to be the nature and value of the deceased’s actual estate at the date of death. At the date of the hearing, the only actual estate of the deceased, not the subject of dispute, was a truck, which had been purchased for $23,000, in 2007, by the deceased. Irene estimated the value of the truck, as at the date of hearing, to be $6,000. She stated, in an affidavit sworn on 21 July 2015, that “Paul now uses the truck as his own”. This was accepted by Paul during the hearing.
Kim asserted that all the cattle on the Property had been sold with the proceeds being deposited into her bank account before being given to the fencer for a debt owing by the deceased.
Had the evidence been more detailed, the court may have been able to express a view on the amount of the proceeds of sale of the cattle owned by the deceased, and whether the proceeds of sale formed part of the actual estate of the deceased. However, during submissions, both counsel seemed to accept that the evidence on this topic did not enable the court to determine the quantum of any sale proceeds, or how those sale proceeds had been disbursed, or to whom.

Although no claim for any occupation fee had been sought by Irene in the proceedings, it was not in dispute that Kim, at least, had used Lot 23 and Lot 30, for her own purposes, since the death of the deceased, and that she had not paid any occupation fee to the Defendant for her use of those Lots. Although Paul denied that he had used either Lot, I do not accept his evidence on this topic. His reason for expending moneys on each Lot, after the death of the deceased, was unconvincing. Again, the evidence on this topic is not very clear.
To the extent that each of the Plaintiffs remains in occupation, I shall make an order that she, and he, should deliver up possession of each Lot to Irene and in the event that both do, or either does, not do so, a writ of possession should be issued.
As at 20 July 2015, a drive-by valuation of Lot 23 and Lot 30, together, was estimated to be between $235,000 and $255,000. At the hearing, the parties agreed that the estimated total value of the two Lots should be taken to be $245,000, with the result that, if all of the deceased’s interest were to be designated as notional estate, the gross value of the notional estate, at the date of hearing, would be $122,500. (No estimate of the value of each Lot, individually, was provided by the evidence.) The parties also agreed, however, that if both Lots were to be sold, the costs and expenses of sale were estimated to be $10,575.
(I pause to mention that, in a footnote in the Defendant’s Supplementary Submissions dated 17 August 2015, counsel referred to CGT payable on the sale of Lot 23 and Lot 30. The footnote is in the following terms:

“Calculated according 50 Div 100 of the Income Tax Assessment Act 1997. Profit on property is $119,000.00 (i.e. $245,000.00 - $126,000.00 purchase price – see Tabs 1-2 of Ex. 1 to the Affidavit of Kim Katherine Bruce sworn 6 November 2013). There is a 50% discount – $59,500.00. Pursuant to Div. 2 of the Income Tax Assessment Act 1997, CGT would form part of the defendant’s personal tax liability. Tax rates are based on a calculation of the defendant’s income of $21,840.00 (26 fortnights x $840.00 fortnightly pension income) plus the capital gain of $59,500.00 (total: $81,340.00). The applicable tax rate from 1 July 2015 is $17,547.00 plus 37c for each $1.00 over $80,000.00 i.e. $17,547.00 + (0.37 x ($81,340.00-$80,000.00)) = $18,042.80 start="46">

Apparently, counsel had not raised, or even discussed, this topic with counsel for the Plaintiffs. In any event, there was no specific evidence about whether CGT would, in fact, be payable on sale. I shall simply note the possibility that CGT may be payable if one is, or both Lots are, sold.)

Another dispute in the proceedings related to the amount of the funeral expenses paid by the Defendant (although it was not disputed that neither of the Plaintiffs had made any contribution to those expenses, although Renee may have done so).

Irene asserted that she had paid about $25,000, including the costs and expenses of a wake. She had provided a copy of some invoices relating to these expenses (with a total value of about $14,000). She acknowledged that she did not have evidence of all of the expenses, and provided, by way of two examples, an amount of $8,000 which she had paid to the Cemetery, and an amount, which was not disclosed specifically, being the costs of the wake.

Whilst there are aspects of Irene’s evidence I do not accept, I accept her evidence that the funeral and wake costs and expenses would have been in the order of $25,000. Should there be any actual estate available, she (and/or Renee) would be entitled to be reimbursed for those costs and expenses. In the result, this dispute has also become almost irrelevant.

Subject to the dispute about the nature and value of the actual estate, even if the interest of the deceased in Lot 23 and Lot 30 were to be designated as notional estate, the gross value of the notional estate is tiny.

In calculating the value of the estate and notional estate of the deceased that is available, finally, for distribution, the costs of the present proceedings should also be considered, albeit with circumspection, since the Plaintiffs, if successful, normally, would be entitled to an order that their costs and disbursements, calculated on the ordinary basis, be paid out of that estate and notional estate, whilst the Defendant, irrespective of the outcome of the proceedings, normally, would be entitled to an order that her costs, calculated on the indemnity basis, be paid out of the estate and notional estate of the deceased. In stating this, I do not forget that “the Court is required to adopt practices and procedures which seek to resolve the issues between the parties in such a way that the cost is proportionate to the importance and complexity of the subject matter in dispute” or that “[t]he Court also has power to specify a gross sum instead of assessed costs when making a costs order”: Neale v Neale [2015] NSWCA 206, per Basten JA (with whom Macfarlan and Gleeson JJA agreed), at [38].

Mr J R Marshall, the solicitor with the carriage of the matter on behalf of the Plaintiffs, estimated the Plaintiffs’ costs and disbursements, calculated on the ordinary basis, to be $36,000, inclusive of GST and upon the basis of a 2 day hearing. He estimated the Plaintiffs’ costs, calculated on the indemnity basis to be $39,475.

Mr G P Butterfield, the Defendant’s solicitor, estimated the Defendant’s costs, out of pocket expenses, and counsel’s fees, inclusive of GST, calculated on the indemnity basis and on the basis of a 2 day hearing, to be $50,000. However, in a subsequent affidavit by Mr B M Balasubramanian, the court was informed that Irene has paid $39,304 to her solicitors “in respect of the costs and disbursements of the matter”. (The source of the funds is not disclosed.) Accordingly, the balance of the amount that would be payable out of the estate, if the usual costs order in favour of the Defendant is made, will be $10,696. (If the source of these funds were other than from the estate or notional estate, Irene may be entitled to reimbursement.)

If all costs of the proceedings were to be paid out of the notional estate, if the costs and expenses of sale of the two Lots were also paid, and if CGT were payable, the net value of the balance of the notional estate available for distribution would be less than $40,000.

It is extremely unfortunate that over $85,000 has been incurred in the costs of these proceedings in what appears to be a small estate (if there is one), and a tiny notional estate if property is designated as such. As has been said, “the court should set its face against litigation in which an estate is unnecessarily consumed in costs”: Fiorentini v O’Neill [1998] NSWCA 79.

In saying this, I am not, necessarily, suggesting that the costs and disbursements on each side are unreasonable. However, the court allowed the parties every opportunity to resolve the proceedings, including holding a settlement conference, at a time when the costs and disbursements would not have been as large as they have turned out to be. Even during the hearing, when each party made her, or their, open offer, (to which I shall refer) the court suggested that they should again consider trying to resolve the proceedings. This did not lead anywhere. A further opportunity was given to them, after the conclusion of the Plaintiffs’ evidence, when it was clear that the matter would have to proceed the next day. Again, no settlement was reached.

I was requested to not deal with the question of costs in these reasons as there may need to be evidence and submissions made on how the burden of the costs of the proceedings should be borne. Counsel for the Defendant even foreshadowed an application for indemnity costs upon the basis that the proceedings had been brought for an improper purpose (based upon the answers given by each of Kim and Paul, to which reference will be made): Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248; (1993) 46 FCR 225.

The Plaintiff identified the parties and Renee as the only eligible persons. As I have said, Renee has played no part in the proceedings. Nor has she commenced any proceedings seeking a family provision order out of the estate or notional estate of the deceased. The court is entitled to disregard the interests of any person by, or in respect of, whom an application for a family provision order may be made (other than a beneficiary of the deceased person’s estate) but who has not made an application if notice of the application, and of the court’s power to disregard the interests, is served on the person concerned, in the manner and form prescribed by the regulations or rules of court, or the court determines that service of any such notice is unnecessary, unreasonable or impracticable in the circumstances of the case.

On the third day of the hearing (the hearing not having commenced until about 3:00 p.m. on 17 August 2015), counsel for Irene filed an affidavit deposing to service of the prescribed form of notice upon Renee. Counsel for each of the parties also indicated, from the bar Table, that she, and he, had been instructed that Renee was fully aware of the proceedings and wished to play no part in them.

I am satisfied that Renee has been notified of the proceedings. In the circumstances, in determining each Plaintiff’s application for a family provision order, the Court shall disregard her interests as a person by, or in respect of whom, an application for a family provision order may be made, but who has not commenced proceedings for a family provision order. However, the court is not entitled to disregard the interests of Irene as the sole beneficiary entitled on intestacy.

Kim was married in 2000, and was divorced, in May 2015. She has the sole parental responsibility of their three children, Lilian, who was born in January 2003, Holly who was born in August 2004, and Gabriel who was born in November 2006.

Paul is married, but he and his wife, Vanessa, separated in about March 2014. They are in the process of negotiating a property settlement. They have two children, Ashley, who is 18 years of age, and Matthew, who is 13 years of age. Ashley has finished her schooling whilst Matthew attends High School in Taree.

At some time between 1991 and 1993, Paul purchased a property that has been described in the proceedings as Lot 24, which is adjacent to Lot 23 and Lot 30.

Lot 23 and Lot 30

In about December 1994, the deceased and Irene purchased Lot 23 as joint tenants for $100,000. There was a two storey house on this property. Included in the sale, were 65 cattle and 2 bulls.

A copy of the Transfer, which is dated 23 December 1994, reveals that both the deceased and Irene signed it.

The deceased and Irene purchased Lot 30, as joint tenants in 1996, for $26,000. A copy of the Transfer, which is dated 23 December 1996, reveals that they did not sign the original, which was signed by a solicitor, Mr M Fitch.

Lot 30 is adjacent to Lot 23, and since the date of the purchase of Lot 30, the two Lots have been run as one agricultural property. The parties described the two Lots together as “the Farm” or “the Property”.

There is a dispute about the source of the purchase price of Lot 30. Paul asserted that the deceased used money to which Paul was entitled, being the proceeds of sale of cattle that he owned to fund the purchase. The Defendant stated that she used a credit card to fund at least $22,000 of the purchase price. On this topic, I am satisfied that I should accept the evidence of Irene for the following reasons.

On 7 November 2012, solicitors on behalf of Kim filed a caveat on title to Lots 23 and 30. The nature of the estate or interest claimed was an “equitable interest by virtue of maintenance and improvements to land and as potential beneficiary to deceased proprietor Neville James Greentree”.

I note that Paul did not lodge a caveat on the title to either Lot, in which caveat he asserted that he had paid, directly or indirectly, the purchase price of Lot 30. Even the caveat that was lodged by Kim does not refer to the payment of the purchase price as giving rise to a relevant estate or interest in either Lot.

Also, of course, Paul has not proceeded with any claim that either Lot is, or both Lots are, held on resulting trust for him.

The Registrar-General sent a Notice of Caveat dated 14 December 2012 to Irene. Subsequently, in 2013, Irene gave instructions to lodge a Lapsing Notice. Subsequently, notice thereof was given to Kim.

On 11 September 2013, by consent, I made an order extending the operation of the caveat until Friday 11 October 2013. On 8 October 2013, the former Registrar of the Equity Division, made an order, by consent, “Without admissions, and on the Plaintiffs giving the usual undertakings as to damages”, extending the operation of the caveat “until further order of the court”.

In the circumstances, it will be necessary to make an order requiring Kim to withdraw the caveat, or make an order removing the caveat. There is simply no basis for the caveat to be maintained and I shall make an order that it is to be withdrawn.

The Open Offers

I should mention, because of its relevance, the open offer that was made on behalf of each of the parties, respectively, during the course of the hearing, prior to the cross-examination of any party.

The Defendant’s counsel, first, made an “open offer”, which offer was in the following terms (T20.30-T20.40):

(i)   The Plaintiffs’ Statement of Claim be dismissed;
(ii)   The caveat over Lot 23 and Lot 30 lapse;
(iii)   All prior costs orders be vacated;
(iv)   That there be no order as to costs, to the intent that the Plaintiffs, and the Defendant, would pay their, or her, own costs, respectively, of the proceedings; and
(v)   The Plaintiffs to vacate Lot 23 and Lot 30 and hand over any keys to the Defendant’s solicitors within 14 days.

After obtaining instructions, the Defendant’s offer was followed by an “open offer” made on behalf of the Plaintiffs in the following terms (T22.05-T22.21):

(i)   The Plaintiffs’ Statement of Claim be dismissed;
(ii)   Paul to enter into a Lease with Irene of Lot 23 and Lot 30, for a term of 2 years, with a monthly rental payable to her, of $150, with him to pay the costs and expenses of maintaining those Lots;
(iii)   On the expiration of the lease term, Irene to sell Lot 23 and Lot 30 to Paul at a price determined by the average of two valuations of the Lots, such valuations to be obtained at that time;
(iv)   All prior costs orders be vacated; and
(v)   That there be no order as to costs to the intent that the Plaintiffs, and Irene, would pay their, or her, own costs, respectively, of the proceedings.

Each offer was rejected.

It can be seen from each of the above offers, that the heart of the controversy between the parties does not seem to go to the lack of provision made for each Plaintiff, but relates to how the ownership of Lot 23 and Lot 30 should be held, and for whom. The Plaintiffs’ counsel acknowledged as much when she stated, at T12.38-T12.39, before either offer was made, that they “are here in an attempt to transfer the Property, not for any sum of money”. It is also supported by other evidence of each of the Plaintiffs.

During cross-examination, the following questions were asked of, and answers were given by, Kim (T53.41-54.02):

“Q. You were in Court earlier today when your counsel made an open offer that the judge took down?
A. Yes, I was.
Q. That was made with your express consent to make that offer?
A. It was.
Q. What that shows is that these proceedings are all about you retaining the property?
A. Correct.
Q. It’s not about your need. It’s about retaining the property?
A. It’s about keeping Dad’s property in the family, yes.”

Kim later agreed that she understood that she had instructed counsel to make the open offer on her, and on Paul’s, behalf, and that no part of the offer included any provision for her. The following question was asked by the court, and answered by Kim (T60.31-T60.34):

“Q. …what I really am troubled about is that the offer as I have a note of it doesn’t really provide you with anything?
A. It’s not about me.”

(Although counsel for Irene objected after the question was asked and the answer given, I did not reject the question which, in my view, was asked to enable me to understand, and to clarify, the evidence given by Kim to which I have referred.)

Irene’s counsel asked Paul some questions about his purpose in bringing the proceedings. The following exchange occurred (T71.37-T72.08):

“Q. These proceedings are really about you wanting your mother’s property, isn’t it?
A. No, it’s not.
Q. You were always happy for your mother to have the property after your father’s death, weren’t you?
A. I thought if there was an opportunity for the grandchildren to receive the property inheritance I thought that was an ideal situation, for Mum to receive a small income off the property and in turn obviously pass it down to the grandchildren.
Q. And that’s your preference today, isn’t it?
A. It passes to the grandchildren?
Q. Or to you?
A. No, it’s definitely the grandchildren the priority.
Q. So that’s what these proceedings are all about, is it?
A. It is.
Q. It’s not about your financial need?
A. No, it’s about my father’s grandchildren.”

The evidence of each Plaintiff is important in the case being advanced on behalf of Irene as to the Plaintiffs’ real reasons for bringing the proceedings, and to the lack of “need” for provision out of the estate. The answers may also be relevant to how the costs of the proceedings should be borne.

The Rossmore Property and its Proceeds of Sale

The deceased and Irene purchased the Rossmore property, as joint tenants, in 1978 for $26,000. A copy of the Transfer, which is dated 11 August 1978, reveals that they did not sign it and that it was signed by a solicitor, identified as Mr J J Puleo. (Irene gave evidence that the Rossmore property was purchased in 1974. I shall rely upon the date in the Transfer as the date around which the deceased and Irene became the registered proprietors of the Rossmore property. It appears to have been owned by them for about 29 years before its sale.)

The Rossmore property comprised five acres. At the time of its purchase, there was no house built on the property. The deceased and Irene lived in a shed, which had no power, water, or electricity, connected, for about 18 months. However, over a period of time, the deceased and Irene’s father, built a house, which became the family home.

Irene says, and I accept, that she borrowed money to enable the house to be completed and furnished. In addition, in about 1985, she received a redundancy payout of $11,000, which amount she used to pay for work done to complete the building of the house.

For a number of years, whilst the family was living on the Rossmore property, Irene sold plants which she grew in a nursery that she had established. She conducted the nursery from the Rossmore property on weekends from that time until about 2000.

The Rossmore property was compulsorily acquired by the Minister Administering the Environmental Planning & Assessment Act 1979 (NSW) in about June 2007. A copy of the Transfer, which is dated 8 June 2007, reveals that the deceased and Irene signed the Transfer.

There is in evidence, a copy document, dated 4 November 2006, signed by the deceased, addressed to the solicitors acting for the deceased and Irene on the sale of the Rossmore property, authorising and directing the solicitors to distribute the sale proceeds to satisfy, “agents (sic) commission, legal fees on sale, outstanding council and water rates… the amount owing to Westpac Banking Corporation to discharge the mortgage, in payment to the Commonwealth Bank Quirindi to discharge the overdraft… to a maximum limit of $20,000, [and to pay] the balance to Irene Greentree”.

The solicitors acting on the sale of the Rossmore property wrote a letter, dated 19 June 2007, addressed to Irene, regarding the completion of the sale. It disclosed that, after paying all of the costs and expenses of sale ($29,855), legal costs on sale ($2,600), paying outstanding rates ($25,796.32), discharging the debts secured on the Rossmore property ($302,112.69), and on Lot 23 ($13,363.03), “the sum of $899,619.87 was credited to your account with St George Bank… in accordance with your instructions”. An additional amount of $6,628.97 was paid to Irene’s account from the proceeds of sale a short time later.

Accordingly, it appears that the total amount paid from the proceeds of sale of the Rossmore property, directly to Irene, was $906,248.84. In addition, $269.40 was paid to the solicitors “on Account of payment of fees and expenses in Relation to your Family Law file”. It follows that about $906,500 of the proceeds of sale was paid to, or on behalf of, Irene.

The Plaintiff’s Application for Leave to File an amended Statement of Claim

In a letter dated 17 April 2014, addressed to the Defendant’s solicitors, the Plaintiffs’ solicitors wrote:

“We note that your client, in her affidavit sworn 6 March 2014, deposes at paragraph [88] that she held the balance of the sale proceeds of the marital home (511 Bringelly Road, Rossmore NSW) (“Rossmore Property”), being $899,169.87 in her bank account and from 2007 onwards paid various sums to the deceased during his lifetime in the amount of $153,400.
The plaintiffs consider that half of the balance of the sale proceeds of the Rossmore Property (being $449,584.94), minus the amounts already paid to the deceased during his lifetime ($153,400), being $296,184.94 (plus interest) was held by your client on trust for the deceased at the time of the deceased’s death, and therefore forms part of the deceased’s estate. The sum of $296,184.94 (plus interest) should therefore be accounted for and included in an updated administrator’s affidavit.
Should this amount not be properly accounted for and included in an updated administrator’s affidavit, we are instructed to seek an account of the estate.”

It follows that the Plaintiffs contend that about $453,250 forms part of the actual estate of the deceased. It may be that the contention is limited to that amount, less the total of the amounts paid by Irene to, or on behalf of, the deceased, identified in the letter referred to above ($153,400). If this interpretation of the Plaintiffs’ claim is correct, the amount contended by them as forming part of the actual estate of the deceased, at the date of death, is about $300,000.

As stated earlier, no claim was made in the Summons, or in the Statement of Claim, in respect of the part of the proceeds of sale of the Rossmore property that had been paid to Irene, which was contended to be subject to a trust in favour of the deceased.

Kim, however, in her affidavit sworn 9 September 2013, in support of her application for leave for short service of the Summons, had asserted that, to her knowledge, “the deceased never received any of the proceeds from the sale of the Rossmore property”.

It was not until 6 June 2014, that the Plaintiffs filed a notice of motion, but no affidavit in support, in which they sought the following relief:

“1.   Order that an account be taken, in common form, of the assets of the estate of the late Neville James Greentree (‘the deceased’).
2.   Order that an account be taken, in common form, of all moneys received, held and disbursed by the defendant in respect of all of the sale proceeds of the property situated at and known as xxx Rossmore, New South Wales (folio identifier 5/xxx) (‘Rossmore property’).
3.   Reserve liberty to the plaintiffs to seek an account on a wilful default basis in relation to Order 2.
4.   A declaration that the defendant held, and continues to hold, the sale proceeds of the Rossmore property on trust for the deceased.
5.   A declaration that the sale proceeds of the Rossmore property form part of the estate and/or notional estate of the deceased.
6.   An order that the defendant pay into her solicitors’ trust account the amount held to form part of the deceased’s estate under Order 5, together with interest.
7.   Costs.”

I dealt with the notice of motion, initially, on 10 June 2014, and directed the Plaintiffs to serve any affidavit evidence upon which they intended to rely in support of the notice of motion by 7 July 2014. I stood the matter over to 18 July 2014.

No affidavit was filed by the Plaintiffs in support of the notice of motion in accordance with the directions. It would seem that they intended to rely upon Irene’s evidence that she had received, and retained, all of the net proceeds of sale of the Rossmore property following its sale.

On the return date of the notice of motion, I was not satisfied that there was a basis for the making of any of the orders sought by the Plaintiffs in the notice of motion. However, in order to ensure that the court, and the parties, were fully informed of the property that may have formed part of the deceased’s estate, or notional estate, at the date of death, Irene was ordered to file and serve, by 8 August 2014, an affidavit, which was to include evidence of the monies received, held, and disbursed, by her, in respect of the Rossmore property. In addition, I granted leave to the Plaintiffs to inspect any documents referred to in that affidavit that they wished to inspect by 12 September 2014.

On 31 October 2014, I ordered that the Plaintiffs’ notice of motion filed on 6 June 2014 be dismissed, and that the costs of the notice of motion be costs in the cause. The Plaintiffs made no application for leave to appeal the order to dismiss the notice of motion.

The Plaintiffs also said nothing more about the trust claim raised in the notice of motion at any of the subsequent directions hearings, or, so far as I am aware, in any correspondence addressed to the Defendant’s legal representatives. (There was a suggestion from the bar Table that the matter had been discussed by counsel for the Plaintiffs with the then counsel for the Defendant, but I do not take this into account.)

It was only in the Outline of Submissions, and then at the commencement of the hearing, that counsel for the Plaintiffs informed the court that the Plaintiffs wished to re-agitate the contention that part of the proceeds of sale of the Rossmore property formed the actual estate of the deceased and sought leave to file an amended Statement of Claim.

Irene’s counsel opposed the amendment of the Statement of Claim.

The Plaintiffs’ counsel identified the following amendments in a document that I marked as Ex. C:

“1.   A declaration that the defendant holds the properties comprised in certificate of title folio identifiers 23/xxx and 30/xxx upon constructive, resulting and/or implied trust for the plaintiffs.
2.   An order that the defendant forthwith do all things necessary to convey the whole of her interest in the properties comprised in certificate of title folio identifiers 23/xxx and 30/xxx to the plaintiffs;
3.   A declaration that the defendant held half of the sale proceeds of the matrimonial home (the property situated at 511 Bringelly Road, Rossmore NSW (folio identifier 5/xxx)(“Rossmore property”) on resulting or implied trust for the late Neville James Greentree, and now holds those sale proceeds on trust for his estate.
~~A declaration that the defendant holds the sum of $33,500 on resulting, constructive or implied trust for the second plaintiff.~~
4.   ~~Further or alternatively to Orders 1 and 2, a~~An order …
…
~~8. Interest pursuant to section 100 of the~~ ~~Civil Procedure Act 2005~~ ~~(NSW) on the amount in Order 3.~~

In Ex. C, the material facts relied upon in support of the assertion of the trust were:

“40   In or about August 1978, the deceased and the defendant purchased the Rossmore Property as joint tenants.
41   In or about 2007, the Rossmore property was sold.
42   In or about June 2007, the sale proceeds of the Rossmore property in the amount of $899,619.87 were paid into the defendant’s bank account.
43   The defendant therefore holds half of the sale proceeds of the Rossmore property on resulting or implied trust for the estate of the deceased.”

As the matter was in its second full day, and as the facts in Paragraphs 40, 41 and 42 were not the subject of any substantial dispute, I considered that it would facilitate the just, quick and cheap resolution of the real issues in the proceedings if I marked the proposed amended Statement of Claim as an exhibit (Ex. C) and dealt with whether to grant leave to the Plaintiffs to file it as part of these reasons.

I permitted each counsel to provide submissions on the question of leave to amend the Statement of Claim in order to avoid further delay. Each party did so and I have carefully considered them.

I have already referred to the written authority and direction, dated 4 November 2006, signed by the deceased, and addressed to Messrs Caldwell Martin Cox, the solicitors acting on the sale of the Rossmore property. There does not seem to be any dispute that the solicitors acted in accordance with this authority and direction.

There were no family law proceedings commenced by either the deceased, or Irene, for an order for the dissolution of their marriage, or in respect of any adjustment of property interests of the parties to the marriage, or either of them.

At the hearing, Kim sought to read an affidavit to which was annexed certain “without prejudice” correspondence passing between the solicitors for each of the deceased and Irene relating to the negotiations for the settlement of the property of the parties to the marriage.

Counsel for Irene objected to the paragraphs of the affidavit relating to the correspondence, and the correspondence itself, relying upon s 131(1) of the Evidence Act 1995 (NSW) which, relevantly, provides that evidence is not to be adduced of (a) a communication that is made between persons in dispute, in connection with an attempt to negotiate a settlement of the dispute; or (b) a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.

I formed the view that s 131(1) did not apply because of the exception provided in s 131(2)(c) of the Evidence Act. I considered that some evidence had been partly disclosed with the express or implied consent of the persons in dispute, and that full disclosure of the evidence was reasonably necessary to enable a proper understanding of the other evidence that had already been adduced. Accordingly, I permitted the evidence to be read.

The copy correspondence commenced with a letter dated 25 March 2008, sent by the solicitors acting for the deceased and concluded with a File Note dated 6 January 2009 of the deceased’s solicitors. It is accepted that the copy correspondence disclosed no concluded agreement having been reached between Irene and the deceased.

Relevantly, in the first letter, there was a settlement proposal made by the solicitors acting for the deceased. The offer made was to the effect that “the net sale proceeds of the Rossmore property, currently retained by you, are to be paid as follows: a. $500,000 to be paid to the [deceased] and b. the remainder to be retained by you. [Irene] to transfer to the [deceased] the whole of their right, title and interest in the Walcha property”.

Importantly, the settlement proposal did not assert that the net sale proceeds, retained by Irene, were held on trust, as to the whole, or part, for the deceased. Nor was it asserted that the deceased, as the beneficiary of any trust, was entitled to the whole, or part, of the net proceeds of sale.

In relation to this letter, Irene gave evidence that the deceased was with her when she received the letter. In cross-examination, she gave the following evidence, at T95.44-T96.24:

“And when he came home, he’d been in the property for two day and when he come home, he saw the letter, he picked it up, and he put it in the bin. He said, ‘I don’t want anything to do with that.’ He said, ‘I did that because I was cranky more than anything.
…
Q. Then you say the deceased said he wasn’t proceeding with it and he’d sent it because he was angry?
A. It - he said he didn’t want to proceed. He said he was angry with himself, more than anybody else, for losing the house.”

(In her affidavit, Irene had stated, in relation to the letter, that “[h]e ripped the letter out of my hand and scrunched it up and said to me words to the effect of ‘It’s not going to happen ever. I was angry.’”)

The next relevant letter is one dated 10 June 2008, from Irene’s solicitors to the deceased’s solicitors, in which the following passage appears:

“…on 10th instant, [Irene] indicated she has heard from your client who has told her that he does not want to proceed further but simply wants to secure the two properties he has an interest in (which we understand are at Walcha)…”

There is a letter dated 11 September 2008, from the deceased’s solicitors to Irene’s solicitors, noting “our client… still wishes to finalise property matters between the parties”.

Finally, there is a letter dated 17 October 2008 from Irene’s solicitors to the deceased’s solicitors that states “the parties have agreed that your client will retain the 2 properties at Walcha and our client pay your client $25,000 in full and final settlement of a matrimonial property settlement between the parties. Would you please confirm there is agreement…”.

Kim stated that in about late 2010, the deceased said to her that he “really [had] to organise a property settlement with your mum”. However, there is no evidence of any steps, subsequently taken by him, to do so. It is clear also, from this conversation that the deceased did not consider that he had reached any binding agreement with Irene as to the adjustment of interests in the matrimonial property.

In Irene’s affidavit sworn 6 March 2014, she says that she “held the $899,619.87 in my bank account as the Deceased gambled any money he had. He would ask me for money from time to time and I would give it to him”.

In cross-examination, Irene gave the following evidence (at T109.16-T109.38):

“Q. So you consider that as from 2007 you were entitled to all of those monies?
A. That was the agreement, and it wasn’t my agreement. That was his decision, not mine.
…
Q. And you considered that to be all yours?
A. Well that’s what he wanted. I didn’t force him into that, that’s exactly what he wanted.”

Irene also gave evidence of the circumstances in which she gave the deceased money (at T110.07-T110.35):

“Q. … You say, ‘During the periods when Neville was not working, I would frequently give him money as and when he asked for it.’
A. Yes, I did.
Q. You don’t know where I got that figure from?
A. Well he just asked me, ‘I need money to go up the property,’ I’d give him $500. There was no problem with money.
Q. So do you know the total amount you gave him or an approximate amount?
A. No, not really. Whenever Neville wanted money I just gave it to him. That’s just the relationship we had.
Q. And you have
A. And if it had been the other way around, he would have done it for me.
Q. Because the money was essentially shared between you? It was both of yours?
A. Yeah, whenever he wanted money, Neville could have that money but he never asked for a lot of money. He was just happy to get that property - what--
Q. But he didn’t get that property.
A. Because he was so deep in debt. When the house was sold that was his main thing in life that that property be sold - that be paid for. That’s all he wanted. Nothing else.”

She added, at T111.38-T111.45:

“Q. You gave him that money when he asked for it. Or you gave him those sums of money as and when he asked for it because the money had come from the sale of your home, hadn’t it?
A. That’s right.
Q. Yes. So, in effect, the money was for both of you to use as and when you needed it.
A. It was there if he needed it.”

Following the conclusion of her cross-examination, I asked the following questions, and Irene answered as follows (T121.32-T121.39):

“Q. At any time after the money was placed into your account, did you have any discussion with the deceased about how you could spend that money?
A. He told his solicitor to put it into my bank account, that was my money for whatever I wanted, and if I wanted to buy another house, then that was the money for it.
Q. Did he say that to you?
A. Yes.”

In answer to questions from the Bench, Irene earlier had stated, at T109.01-T109.07:

“Q. Was any part of the agreement that you and your husband reached that you would retain the net proceeds of sale of the Bringelly property?
A. Correct.
Q. Was any part of the agreement that you would transfer to him either lot 23 or lot 30?
A. No. Thank you, your Honour.”

Whether to Grant Leave to Amend

For the following reasons, I have concluded that leave should not be granted to amend the Plaintiffs’ claim, principally because it is futile to do so.

The claim asserted at the hearing was different from the claim made in the notice of motion, which, it will be noted, sought a declaration that the whole of the proceeds of sale of the Rossmore property were held on trust. There was no basis for such a claim to be made.

At the hearing, the Plaintiffs seemed to limit their claim simply to the proposition that the deceased was a joint registered proprietor in the Rossmore property and without more, that, upon its sale, he was entitled to one half of the net proceeds of sale.

The Plaintiffs’ counsel could not point to any evidence of the reasons why the deceased had not, during his lifetime, made any such claim (other, than perhaps, a claim for money in the letter from his solicitor), or why he had not pursued any such claim, if he had not intended Irene to have the beneficial interest in the whole of the proceeds of sale that was paid to her, or on her behalf.

It will be noted that the proceeds of sale were paid into Irene’s bank account, or paid on her behalf, in June 2007, that is to say over four years before his death; about 4 years from the date of the letter from his solicitors; and about 3 years from the date when the correspondence passing between the deceased’s and Irene’s solicitors ceased. This seems to be more than enough time to have commenced proceedings for a one half share of the proceeds of sale, proceedings which the deceased did not ever commence or, for that matter, even threaten. (He would have had every reason to commence such proceedings if his relationship with Irene was as portrayed by the Plaintiffs or if he had the conversations with Kim about which she gave evidence.)

As is obvious from the Plaintiffs’ submissions, they did not rely upon an express trust. To do so, they would have had to establish that the deceased, as the person creating the trust, should be taken to have intended to do so. As was written in Korda v Australian Executor Trustees (SA) Ltd [2015] HCA 6; (2015) 317 ALR 225, by French CJ at [7]: “Certainty of intention is one of the three certainties necessary to an express trust - the others being certainty of subject matter and certainty of object.”

The basis of the Plaintiffs’ claim was a resulting trust. It was submitted that as Irene had given no consideration for the transfer of the deceased’s share of the proceeds of sale into her bank account, she held the chose in action on resulting trust for the deceased.

In Singh v Kaur Bal [No 2] [2014] WASCA 88, Murphy JA, with whom Pullin and Newnes JJA agreed, expressed a similar view, at [36]:

“When all the joint tenants combine to sell the estate of which they are joint holders, the purchaser acquires the whole of that estate. In that circumstance, the sale itself, does not, unless something more appears, sever the joint tenancy, and the joint tenants, in effect, convert their joint tenancy of real property (the land) into a joint tenancy of personal property (the proceeds of sale): In Re Allingham [1932] VicLawRp 66; [1932] VLR 469, 472; Public Trustee v Grivas [1974] 2 NSWLR 316, 320; Abela v Public Trustee [1983] 1 NSWLR 308, 314; Scott v Scott [2009] NSWSC 567 [59] - [60]. See also Ex parte Railway Commissioners for NSW [1941] NSWStRp 7; (1941) 41 SR (NSW) 92, 95; Re Commonwealth Bank of Australia [2009] NSWSC 81; (2009) 14 BPR 26,819 [13] - [15].”

Counsel for the Plaintiff relied upon Napier v Public Trustee (WA) (1980) 32 ALR 153, in which Aickin J (with whom Mason, Murphy and Wilson JJ agreed) wrote, at 158:

“The law with respect to resulting trusts is not in doubt. Where property is transferred by one person into the name of another without consideration, and where a purchaser pays the vendor and directs him to transfer the property into the name of another person without consideration passing from that person, there is a presumption that the transferee holds the property upon trust for the transferor or the purchaser as the case may be. This proposition is subject to the exception that in the case of transfers to a wife or a child (including someone with respect to whom the transferor or purchaser stands in loco parentis) there is a presumption of advancement so that the beneficial as well as the legal interest will pass. Each of the presumptions may be rebutted by evidence. It is, however, well established that no presumption of advancement arises in favour of a de facto wife: see Rider v Kidder; Soar v Foster and Allen v Snyder.
As Dixon CJ said in Wirth v Wirth: ‘Where a purchase was made in the name of a stranger who provided none of the purchase money the law was clear from a very early time that a resulting trust was presumed and the stranger could take beneficially only if he proved affirmatively that it was so intended.’” [Citations omitted]

The legal effect of the payment of the whole of the proceeds of sale of the Rossmore property into the bank account in Irene’s sole name was the vesting of the right and title in her when the deposit was made: Segelov v Ernst & Young Services Pty Ltd [2015] NSWCA 156, at [117]-[118].

Then, the presumption of a resulting trust would apply only if there was evidence that Irene had supplied no consideration for the transfer of the deceased’s interest in the proceeds of sale to her, or there was otherwise no explanation for the transfer of those proceeds to her. Here, there was no such evidence produced by the Plaintiffs.

In this case, there is evidence of the deceased’s, and of Irene’s, intention, to treat their joint interests in the proceeds of sale as severed, by the deceased, in writing, authorising and directing the solicitors acting on the sale of the Rossmore property to deposit the balance of the proceeds of sale, after payment of identified liabilities, into the bank account held in Irene’s sole name, without any limitation, and Irene consenting to this course, since she was receiving the whole of the balance of the proceeds of sale.

Irene also gave evidence, which I accept, of the deceased’s intention to gift to her the whole of his share of the balance of the proceeds of sale. Importantly, the direction and authority was to pay the balance of the proceeds of sale to the account held in her sole name. There is no evidence to suggest that, thereafter, the deceased was permitted to, or did, operate this account, or that Irene operated the account for the convenience of the deceased, or at his direction. Had it not been intended for Irene to be the legal, as well as the beneficial, owner of the money placed into her account, it is difficult to explain why the deceased allowed her to exercise complete control over the money placed into her bank account.

When counsel for the Plaintiffs was asked the basis upon which the claim was to be made, she submitted (T128.29-T128.35) that the proceeds of sale, as to one half, were held upon trust, for the deceased, arguing that the contention was based on Irene’s evidence that “[i]t was his if he needed it”. Irene’s affidavit evidence, which was put to her in cross-examination, was that “[d]uring the periods where [the deceased] was not working, I would frequently give him money as and when he asked for it”. It was not submitted that there was any contract between them in this regard.

Taking this evidence at its highest, even if Irene were to be regarded as holding some part of the deceased’s share of the proceeds of sale for his benefit, a passage in Muschinski v Dodds (1985) 160 CLR 583, by Brennan J, at 604-607 is apposite:

“A gift in return for assurances, though not amounting to a contract, is a gift on terms and the terms of the assurances express the terms on which the donor intends to make the gift and the donee’s understanding of the terms on which it is made. Subject to some few exceptions, a donor has a right to regulate the disposal of his gift. That principle is applicable as well to gifts inter vivos as to testamentary gifts, though the rules relating to the effect of a donor’s regulation of the property given have found more frequent expression in cases involving testamentary gifts where the regulation is expressed in the dispositive provisions of the will.
An assurance by a donee that he will use or devote the property given or its income for a particular purpose, or will hold it for a particular object, or will do a particular thing when given ‘in return for’ a gift may therefore take effect as if the donor made the gift upon the terms of the assurance. Accordingly, the donee may take the property given either as a trustee or beneficially and, if beneficially, he may take it subject to defeasance if the assurance should not be fulfilled or subject to a personal obligation to fulfil the assurance or subject to a charge securing fulfilment of the assurance (particularly if it involves the payment of money)… A condition annexed to a gift may be of either of two kinds: a condition involving a forfeiture or non-fulfilment or a condition creating merely a personal obligation to fulfil it. A donee who takes a gift to which a condition of the latter kind is annexed incurs an equitable obligation to perform the condition.
A condition which creates a personal obligation may be enforced in equity by an order for compensation or, where appropriate, by a decree of specific performance.
Whether a condition is such that its non-fulfilment involves forfeiture of the property given depends upon the intention of the donor communicated to the donee at the time when the latter accepts the property, that is, the intention which the donee reasonably understands to be the donor’s intention from what the donor has said or done.” [Citations omitted]

To the extent that there was any obligation on Irene to have used part of the funds for the benefit of the deceased when he required her to do so, there is evidence that Irene performed that obligation, by providing money to the deceased, from time to time, whenever he needed it, from the proceeds of sale.

It was not put to Irene in cross-examination that she had not done so. Even if she had not done so, there is no evidence of any communication, by the deceased to her, at the time the proceeds of sale of the Rossmore property were paid into her bank account, that she would forfeit his share of the proceeds of sale, if she did not fulfil the obligation. Nor is there any evidence of any communication by the deceased to Irene that she had not fulfilled the obligation.

Finally, counsel for the Plaintiffs did not point to any reasons why the allegation of the trust, as to one half of the proceeds of sale, had only been made, for the first time, in April 2014, over two years after the death of the deceased.

The presumption of advancement should also be considered. As is known, the presumption only applies to transfers and purchases made by people who stand in particular relationships, one of which is that of husband and wife. Then, equity infers that any benefit provided for one party at the cost of the other has been provided by way of “advancement”. The consequence is that the equitable estate follows the legal estate and is at home with the legal title; there is an absence of any reason for assuming that a trust arose.

As it was put in Martin v Martin [1959] HCA 62; (1959) 110 CLR 297, at 303:

“The presumption is in her case that the beneficial ownership went with the legal title. It is called a presumption of advancement but it is rather the absence of any reason for assuming that a trust arose or in other words that the equitable right is not at home with the legal title.”

The operation of the presumption of advancement may be rebutted by evidence of the actual intention, at the time of the transfer, by the husband to the wife. Evidence also may be given to support the presumption of advancement. In this case, evidence in support of the presumption was given.

Since I accept Irene’s evidence in regard to their relationship, even after their separation, I am satisfied that the presumption of advancement is applicable.

Whichever way one approaches the matter, it appears that the deceased intended Irene to have the legal and beneficial interest in the whole of the balance of the proceeds of sale, once it was deposited into her bank account. It follows that any presumption of a resulting trust in favour of the deceased does not arise.

Having reached this conclusion, to the extent necessary, I shall take into account that the whole of the proceeds of sale of the Rossmore property did pass to Irene during the lifetime of the deceased.

The result is that, other than the truck, which Paul has retained, the return of which truck is not sought by Irene, there is no actual estate of the deceased. Consequently, the Plaintiffs’ claim is limited to property that may be designated as notional estate. As stated, the gross value of the notional estate, if so designated, is one half of the value of Lot 23 and Lot 30, or $122,500.

Plaintiffs’ Evidence Regarding the Delay in Commencing Proceedings

The evidence of each of the Plaintiffs on this topic was scant.

In Paragraph 116 of Kim’s affidavit sworn 6 November 2013, she stated:

“Since Dad died Paul and I have been trying to communicate with mum about Dad’s estate. I know that my brother Paul has offered to buy the farm from mum but she has refused to sell to him. As Dad did not make a will, we have been waiting to see if mum would appoint herself as administrator as they still owned the farm jointly.”

Importantly, Kim gave no evidence, in any affidavit, that she did not know before the end of the prescribed period, that the prescribed period to bring her application for a family provision order was 12 months from the date of the deceased’s death.

In cross-examination, Kim admitted that she had seen a solicitor in November 2012 in relation to the caveat that was lodged on title to Lot 23 and Lot 30, and also about her rights to make a claim for a family provision order. She said that she could not recall being told that she had a time limit within which to make an application: T45.39-T45.41. (She did not, however, specifically assert that she had not been told.)

There was no evidence from the solicitor who Kim had retained, about the advice that had been given to Kim about her rights to apply for a family provision order, or advice about the time within which her application for such an order should be made. One might have thought that Kim, as an applicant for an order that the time for the making of her application be extended, in circumstances where she had seen a solicitor within the period of 12 months from the date of the deceased’s death, would produce some evidence about what she was, or was not, advised in relation to her claim for a family provision order. In the circumstances, one would have expected her to call the solicitor to give evidence, or at least to have provided evidence of any contemporaneous diary notes of conversations recorded, or advice given, prepared by the solicitor to be produced to the court. She did neither.

It was not put to Paul, or to Kim, that there had been any conversation between them about the time within which proceedings were required to be commenced under the Act. Whilst I suspect that there would have been such a conversation, I am unable to make a finding that Kim had been told, by Paul, of the prescribed period for making a claim for a family provision order.

Paul’s evidence on the topic was a little more detailed, and was given in the following paragraphs of his affidavit sworn on 6 November 2013:

“94. I attempted to talk to mum about Dad’s estate and offered to buy the farm but she repeatedly asked me to hold off. She said words to the effect:
‘Just wait until a year has passed after his death. I don’t want to talk about it again until then.’

I was aware that I had to act quickly because of the 12 month limitation period on making an application but she kept putting me off and refusing to discuss it.
…
97.   After a few months after Dad’s death I wondered what was going to happen to the Farm as it was in Mum’s name as well. Mum told me she was intending to sell it. She said to me:
‘It’s cursed and I’m getting rid of it.’
I replied:
‘It’s Dad’s farm and he’d want it to come to us. I’d like to buy it outright. Dad would have liked it to stay in the family.’
Mum said:
‘No, I’m selling it through an agent.’
98.   My sister Kim was upset about the Farm being sold. She said to me:
‘I can’t sit back and watch her sell it. Dad would be horrified. He wanted us kids to have it. I’m going to do something about it.’
99.   Mum rang me a month or so later because Kim had put a caveat on the property. She was angry. She said:
‘I’ll destroy you two pair of bastards. I’ve got enough money to destroy you. I’ve got too much money for you to take me on.’
I replied:
‘Half of that was Dad’s. Even the death certificate says you are separated. Everyone knows that. So don’t even go there. Don’t ever speak to me like that again. I asked you to do something about the property as it was falling apart. Now look what has happened.’”

It seems clear, from this evidence, that Paul had actual knowledge of the time period imposed by the Act for bringing an application for a family provision order and his need to “act quickly”.

It seems clear, also, that he was not making any headway in discussions with Irene, or as was submitted by his counsel, “communications [between the Plaintiffs and the Defendant] were made extremely difficult. [Paul] offered to buy Lots 23 and 30 but [Irene] rejected this offer”.

Kim lodged the caveat to which reference is made in November 2012. The conversation with Irene, in which she said “just wait a year”, occurred about one month later, that is in about December 2012, or perhaps, in January 2013. The deceased had died in February 2012.

In those circumstances, the reasons for not bringing the claim within the period prescribed by the Act are not entirely clear.

Nor did either Plaintiff provide any explanation at all for not having commenced proceedings between February 2013 and September 2013. Neither gave evidence of any conversation with Irene in which she encouraged her, or him, not to commence proceedings during this period.

Irene gave no specific evidence of prejudice if an order were to be made to extend the time for the making of the application.

Credibility of Each of the Parties

There were many factual issues that depend on the acceptance, or rejection, of some of the evidence in this case. In respect of some of these matters, it is fair to say that none of the parties emerged unscathed. The principal matters related to the financial and material resources of each.

In Collings v Vakas [2006] NSWSC 393, a case decided under the former Act, Campbell J (as his Honour then was) stated at [66]-[68]:

“Before the Court can make an order in the plaintiff’s favour, it needs to be satisfied that she was left, at the testator’s death, without adequate provision for her maintenance, education or advancement in life. It is clear that she owns no real estate (unlike her brothers), and that she has ongoing family responsibilities.
However, before a court can be satisfied that a plaintiff has been left without adequate provision, the court needs to be persuaded that it has been presented, at least in broad outline, with the whole picture concerning the plaintiff’s financial situation. In the present case, even though there are two elements of the plaintiff’s financial situation about which I am satisfied (that she owns no real estate, and has family responsibilities), when another crucial element of the plaintiff’s financial situation (namely, her income and expenditure) is not satisfactorily proved, it is not possible to conclude that she has been left without adequate provision.
In these circumstances, the plaintiff’s claim is dismissed.”

A similar approach was taken by McLaughlin AsJ in Foye v Foye [2008] NSWSC 1305, in which his Honour wrote:

“14. It cannot be emphasised too strongly that it is incumbent upon an applicant for provision to disclose to the Court as fully and as frankly as possible all details of that applicant’s financial and material circumstances. Where an applicant is living with a spouse or partner, that obligation extends also to the circumstances of such spouse or partner. It is quite inappropriate for an applicant to fail … to set forth the financial and material circumstances of his wife, and then to say that he was not asked to provide any information concerning her finances. Whether or not he is expressly requested to provide such information, an applicant has an obligation to place that information before the Court.
15. Neither the Court nor the Defendant should be required to embark upon a search for information which [the applicant] himself had an obligation to provide frankly and voluntarily in support of his claim. If he chooses not to inform the Court of the details of the finances of the wife with whom he is living, then the Court is entitled to draw appropriate inferences from that omission.
…
41. I have already referred to the obligation of an applicant for provision to place before the Court as fully and as frankly as possible all information concerning the applicant’s financial and material circumstances. I have also referred to the fact that it is not the responsibility of the Defendant to elicit evidence concerning those circumstances which the applicant herself fails to provide voluntarily.”

This view was also stated in Mann v Starkey [2008] NSWSC 263, in which White J, at [25], noted:

“It has often been said that an applicant for provision must make a full and frank disclosure of his or her ‘financial and material circumstances’ (e.g. Fraser v Venables (Supreme Court of New South Wales, McLaughlin M, 30 September 1998, unreported); BC9805011; Draper v Nixon [1999] NSWSC 629 at [35]; Bennett v Bennett [2001] NSWSC 987 at [23]; Ernst v Ryf [2001] NSWSC 1167 at [37]; Van Ooyen v O’Driscoll [2002] NSWSC 445 at [55], [56]; Zaleski v Patterson [2005] NSWSC 54 at [42]; Troy v Slede [2005] NSWSC 1080 at [20]; Wheatley v Wheatley [2006] NSWCA 262 at [26]).”

It seems to me, also, that where a person whose interests would be affected by the making of an order, puts forward her, or his, financial resources, as a competing claimant, that person has the same obligation to disclose to the court fully and accurately those financial resources. That must be so where, as here, the value of the property that may be designated as notional estate of the deceased is tiny and the competing claimants on the bounty of the deceased are several.

In respect of Kim, it is clear that she did not disclose fully, or accurately, her financial and material circumstances. In particular, she failed to identify, in an affidavit sworn on 13 August 2015, all of her income. She accepted, in cross-examination, that she had not included, as part of her income, the receipt of about $900 per fortnight in Centrelink payments (being a Newstart allowance and two different family allowances).

This omission resulted in her affidavit evidence, that her gross monthly income was around $1,000, and her net monthly income was around $800, being wrong. She endeavoured to explain that the paragraph relating to income was limited to her remuneration from paid employment. However, whilst this may have seemed an innocent, and initially attractive, explanation, for the omission, it was not convincing because the paragraph immediately following in her affidavit referred to the child support that she received from her former husband.

As stated, Kim is 45 years of age, having been born in September 1970, and Paul is 47 years of age, having been born in December 1967.

(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant

The Plaintiffs gave some evidence of their contributions, especially in relation to the running of the cattle on Lots 23 and 30.

During her childhood, Kim says that she helped out on the Property, including “drenching, feeding, needling, herding and checking the wellbeing of the cattle, as well as maintenance around the property such as fencing, post digging and pasture improvement”.

From 1997, she farmed the Property with the deceased, operating as a partnership, with all profits made being re-invested. She says that she and the deceased had a motto that “farm money pays for farm things”. Irene denies that the deceased was in partnership with either Plaintiff and that each Plaintiff financed their own operations and retained the revenue for themselves.

In 2005, Kim asserts that she was doing all of the cattle running and property management due to the deceased working on rebuilding the house that had burnt down on the Property. Irene denies that the house was rebuilt after the fire. From 2007, Kim visited the Property at least every 4 weeks to check on the cattle, and more frequently when the cows were calving. She was responsible for taking the steers to ‘fat sales’ and the cows to ‘store sale’.

Kim says she has paid “most of the council rates, general maintenance, phone etc” for the Property since 2006 until the deceased’s death. Kim annexed to her affidavit, a copy of one Rate Notice, issued on 3 February 2012, addressed to “NJ & I Greentree”, requesting payment of $155.77 by 9 March 2012. There is no evidence that she paid this amount.

Irene also annexes a copy of several rate notices, including the one annexed to Kim’s affidavit, issued between February 2012 and July 2014.

In relation to financial contributions, Kim says that she contributed about $10,000 to complete the external fencing on the Property in February 2012. She also paid $600 for the installation of a solar electric fence. In August 2013, she contributed $1,500 to the diggings of the dams. She has made other purchases, over the years, to maintain the Property and the cattle. Overall, she accepts that she and the deceased made equal contributions to the expenditure on the Property. I am satisfied that she has used the Property for her own purposes as well. She did not identify the benefits she received, if any, in using the Property.

Paul says that he assisted the deceased on the Property from a young age. In about 1983, the deceased gave Paul some cattle to run on one of the leased properties and they travelled out to both properties nearly every weekend. They bought and sold cattle at sales, repaired fences, tended to sick animals, calved, drenched, and undertook other activities associated with running the cattle.

Paul says that from about 1995 until the deceased’s death, he and the deceased “had a partnership with respect to cattle”. Since that time, Paul ran Lots 23, 24 and 30, “with the deceased and… Kim visiting and assisting when they can.” He states that “[t]here is always work to be done: fixing cattle yards, moving stock, mustering, and continual maintenance 52 weeks of the year.” He did not identify the benefits he received, if any, operating in this way.

The work Paul said that he performed on the Property since 1996 included:

“(a)   At least 8 hours per week doing general maintenance;
(b)   Animal husbandry of both [the deceased’s] and Kim’s cattle including difficult births, prolapsed uteruses, masculation of steer calves, drenching and vaccinations;
(c)   Rescue of cattle from dams and fence wire;
(d)   Euthanizing dying cows;
(e)   Repairing common road and financing same solely;
(f)   Stock rotation of cattle from paddock to paddock;
(g)   Mustering of cattle on horseback, including use of horsefloat and dogs;
(h)   Provision of my Stud Angus bulls for [the deceased’s] and Kim’s cows.”

From 1997 until June 2013, Paul says that he contributed at least $79,395 to the Property in out of pocket expenses, not including labour. (This, on average, would equate to about $5,000 per year. I do not know whether he would have had to pay more than that sum for using the Property with Lot 24.)

The income generated by “the partnership” was not the subject of evidence by either Kim or Paul.

(i) any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate

I have earlier stated that each of the Plaintiffs receives nothing out of the deceased’s estate as a result of the operation of the intestacy rules. In any event, there is negligible property in the actual estate of the deceased.

Paul acknowledges that he received 15 steers from the deceased in 1991, when he bought Lot 24. He estimated their worth to be $6,000. As previously stated, Paul retains the truck which he claims was “broken down, unroadworthy and required expensive repairs” when given to him.

Irene asserts that she and the deceased assisted Paul, financially, when he purchased his property in 1993, and that they were the guarantors of funds borrowed which were secured by mortgage. They also bought 3 cattle grids and fencing for Paul’s property. They were also the guarantors on a property Paul purchased at St Clair in about 1995 or 1996.

There is no evidence of any provision made for Kim during the deceased’s lifetime, although she has used Lot 23 and Lot 30.

(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person

The statutory language permits the court to take into account the deceased’s expression of testamentary intention, even though not incorporated in a properly executed will. There is no such Will.

The deceased is alleged to have said to Kim, on several occasions, particularly in the last 5 years of his life, words to the effect:

“I’m leaving you everything… I want you to have the Farm. It’s for you kids and the grandkids.”

In about late 2010, the deceased is alleged to have said to Kim:

“I really have to organise a property settlement with your mum. It has been 15 years since we separated and I want to settle things so that I can leave things to you all.”

In 2010, Kim bought a will kit for the deceased. He asked her to write the will for him, saying “[y]ou know what I want. The farm stays in the family with you kids. You can write it out for me.” Kim refused to write the will.

Paul also refers to having had similar conversations with the deceased. He says that, on several occasions, the deceased said to him, “[t]he Farm belongs to you kids, I’m leaving it to you kids when I go” and he once said “[t]he cattle are yours anyway, we run it as yours and your children’s”.

When some cattle were missing, Paul had the following exchange with the deceased:

“Me: ‘What happened to the cattle Dad?’
Deceased: ‘It’ll all be yours one day anyway. So don’t worry about it.’”

There is no evidence of any reasons why the deceased did not see a solicitor, or retain the solicitors who had acted for him, to prepare a Will for him.

Irene says that at no point did the deceased mention to her that it was his intention to leave Lot 23 or Lot 30 to the Plaintiffs.

Irene refers to the incident when the deceased was accused of stealing cattle from Paul and the following conversation:

“[Paul]:   ‘You are nothing but a fucking cattle thief. You should be dead.’
Deceased:   ‘Well as far as you and I am concerned, I am.’
…
The Deceased then said to me:   ‘That oxygen thief. He will never be in my Will.’”

(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so

The deceased did not maintain either Plaintiff other than as set out above.

(l) whether any other person is liable to support the applicant

Kim is separated from her husband and receives $1,000 per month in child support. He pays for some of the other expenses for their children.

Paul is also separated from his wife. She has no obligation to support him.

(m) the character and conduct of the applicant before and after the date of the death of the deceased person

An evaluation of “character and conduct” may be necessary, not for the sake of criticism, but to enable consideration of what is “adequate and proper” in all the circumstances. Importantly, the Act does not limit the consideration of “conduct” to conduct towards the deceased.

I am satisfied that there is no relevant conduct of either Plaintiff that impacts on the determination of what provision should be made for her and him out of the estate of the deceased. I have earlier referred to the nature of the relationship of each with the deceased and the contribution financially, and towards the deceased’s welfare.

There is no conduct by the Plaintiffs after the death of the deceased that is relevant although it is clear that any relationship between each and Irene no longer exists.

(n) the conduct of any other person before and after the date of the death of the deceased person

The conduct of Irene and her relationship with the deceased is relevant. Kim and Paul each state that the deceased moved out of the Rossmore property in 1997 and never returned. I have earlier stated that I do not accept this evidence. To the contrary, as stated, I am satisfied that despite their separation, they maintained a reasonably close and harmonious relationship.

Kim deposes to a conversation she had with the deceased where he told her, “I rang your Mum and said to her ‘If you don’t take your name off the Farm I’ll take you to Court’. She said ‘Leave me alone. I hope you die.’” I do not accept that the conversation allegedly reported by the deceased occurred, or if it did, I do not think that it demonstrated the true nature of Irene’s attitude towards him generally.

Kim adds that following their separation, the deceased and Irene had “a strained and acrimonious relationship” and did not reconcile.

Irene, unsurprisingly, paints a different picture of her relationship with the deceased and also of the relationship between each of the Plaintiffs and him. I have previously mentioned the incident whereby the deceased received a head injury and Irene cared for him when he returned from hospital. From this period onwards, Irene would accompany the deceased to the Property for 3 days at a time about once per month. Prior to the deceased’s accident, they would visit the Property for 3 days at a time every few weeks. Kim and Paul deny that Irene ever visited the Property.

Irene admits that the deceased left her for another woman in about 2000, and then again in 2002. However, she says, and I accept, that he returned to reside at the Rossmore property, albeit not permanently, after each occasion. Irene also asserts that even while he was living with other women, he continued to return to the Rossmore property and they “maintained the marital relationship” (T90.47).

I have earlier stated, based on other evidence I accept, that it is likely that the deceased and Irene separated in 1999 but continued to see each other until his death. As such, I do not accept Kim’s evidence that the deceased did not enjoy Irene’s company and that “everyone thought they disliked each other”. (There was no evidence supporting the latter assertion.)

As discussed previously, Irene retained the proceeds of sale from the Rossmore property and would give money to the deceased when he asked for, or if he needed, it. I have identified the correspondence in which the Plaintiffs appear to accept the amount given to him.

(o) any relevant Aboriginal or Torres Strait Islander customary law

This factor is not applicable.

(p) any other matter the court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered

I have earlier referred to the fact that Irene received the whole of the proceeds of sale of the Rossmore property and that she inherits the deceased’s interest in Lot 23 and Lot 30 by survivorship.

Determination

I have set out many of the principles that apply in a case such as this in Underwood v Gaudron [2014] NSWSC 1055. I do not repeat what I said in that case, an appeal from which was dismissed: Underwood v Gaudron [2015] NSWCA 269.

I am satisfied that each of the Plaintiffs is an eligible person within the meaning of s 57(1)(c) of the Act as each is a child of the deceased. Accordingly, each has the status to make a claim for a family provision order under the Act.

Section 58(2) of the Act imposes a limitation period, requiring that an application for a family provision order “must be made not later than 12 months after the date of death”. There is a proviso, namely that the court may “otherwise order” on “sufficient cause” being shown.

In John v John [2010] NSWSC 937, at [44] Ward J (as her Honour then was) considered that sufficient explanation given for the failure to commence proceedings in time was “a threshold requirement” that had to be met before considering the other discretionary factors. In addition, prejudice suffered by the estate is not, by itself, the relevant touchstone, but it is a factor. The statutory discretion is unfettered and no guidance is given as to its exercise.

Neither of the Plaintiffs, in my view, provided any satisfactory reason for not commencing the proceedings within time. The conversation asserted by Paul with the Defendant, in which she said “Just wait until a year has passed”, taking into account the nature of the relationship between them, and also the fact that Kim had lodged a caveat, does not provide a basis for concluding that each of the Plaintiffs ought not to have commenced proceedings based upon that conversation.

As importantly, neither provided any reason, let alone any sufficient reason, for the further delay in commencing proceedings, between the expiration of the 12 month period and when the proceedings were commenced some 7 months later.

Nor is this a case where the Plaintiffs, who, hitherto, had understandably, not wished to litigate against their mother, eventually decided that proceedings were appropriate and necessary. The lodgement of the caveat by Kim made clear that she wished to enforce what was thought to be her legal, or equitable, rights in relation to Lot 23 and Lot 30.

Irene was not put on notice, given within the statutory time period, of the Plaintiffs’ intention to make a claim. Paul’s conversations with Irene related to the sale by her of Lot 23 and Lot 30.

In Moore (bht the NSW Trustee & Guardian) v Randall [2012] NSWSC 184, White J, at [39], wrote that the expression, “sufficient cause means sufficient explanation, or sufficient justification or excuse, for the application not having been made within the prescribed period”. That is to say, the sufficient cause or reason to which s 58(2) is directed is that for allowing an application to be made out of time: Verzar v Verzar [2014] NSWCA 45, per Meagher JA, at [24].

Here, sufficient cause has not been established. On that basis, the application could be dismissed without further consideration of the circumstances of the claim. However, because the parties spent so much time at the hearing debating the other issues, I shall deal with them, albeit, briefly.

The fact that the Plaintiffs’ claim is so weak as to justify dismissal only fortifies my conclusion. Furthermore, the statement of their counsel and the evidence given about the open offer demonstrates that this is so. The provision sought, by reference to the Plaintiffs’ open offer, does not appear to be provision to satisfy any “need” that was said to be unable to be met from her, and his, own resources, respectively, but for the stated purpose of keeping Lot 23 and Lot 30 “in the family”, or for “providing for the deceased’s grandchildren”. The context in which each open offer was made is also important – during the hearing when each party would have understood its effect.

The Act does not permit orders to be made to provide for the support of third persons that an applicant, however reasonably, wishes to support, where there is no obligation of the deceased to support such persons: Re Buckland, Deceased, [1966] VR 404, at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532, at 537; Mayfield v Lloyd-Williams, [2004] NSWSC 419, at [86]. Here there is no evidence of any obligation on the part of the deceased to provide for any of his grandchildren. There was no evidence that any of them is an eligible person within the meaning of that term in the Act.

Additionally, as set out above, neither Plaintiff fully, and accurately, disclosed all of her, and his, financial and material circumstances, respectively. In relation to Kim, the service of her updating affidavit so close to the hearing did not provide any reasonable opportunity to Irene to satisfy herself that it disclosed Kim’s current position. In relation to Paul, I have concerns that he did not disclose the true value of the real estate that he owns.

In reaching my conclusion, I am also not satisfied that the lack of any provision made for each Plaintiff, respectively, is inadequate, when one considers the competing claim of Irene and the nature and value of the property sought to be designated as notional estate. Even though she and the deceased were separated at the date of the deceased’s death, I am satisfied that he regarded her as a person with a competing claim on his bounty. (I have not forgotten, in this regard, my conclusion that she retained his share of the proceeds of sale of the Rossmore property and that I shall not regard her as a competing financial claimant on the bounty of the deceased.)

Even if I had been satisfied that the Plaintiffs had established that the provision made for her, or him, respectively, was inadequate then, as a matter of discretion, I would not exercise my discretion to make an order in her, or his, favour. In this regard, it is to be remembered that the task of the court is to make a determination “according to the feeling and judgment of the fair and reasonable man in the community, the spokesman of which is, and must be, the court itself” (Kearns v Ellis, Supreme Court (NSW), 5 December 1984, unrep, per Mahoney JA, at 8), I am of the view that no family provision order for either Plaintiff should be made.

Furthermore, as a matter of discretion, I am not satisfied that the deceased’s interest as a joint tenant in Lot 23 and Lot 30, which could be designated as notional estate, should be designated as such. Each Lot was owned by the deceased and Irene for many years prior to the deceased’s death. The importance of not interfering with her reasonable expectations, as surviving joint tenant, and the substantial justice and merits involved in making a designating order, when considered at the date of the hearing, lead to the view that such a designating order should not be made.

In view of the conclusions to which I have come, it is unnecessary to determine whether the Plaintiffs also have established “special circumstances” within the meaning of that term in s 90 of the Act (if that section is applicable, about which there is dispute).

In the event that no designating order is made, there is no estate, or notional estate, out of which to make an order for provision for each of the Plaintiffs.

Section 63 of the Supreme Court Act 1970 (NSW), provides that “the Court shall grant, either absolutely, or on terms, all such remedies as any party may appear to be entitled to, in respect of any legal, or equitable, claim brought forward in the proceedings so that, as far as possible, all matters in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of those matters avoided”.

As the whole of the Plaintiffs’ proceedings will be dismissed, there is no basis for either of the Plaintiffs to continue in occupation of each Lot and an order that each is to vacate each Lot within 28 days, or such other time as the Defendant agrees in writing, should also be made.

In the circumstances, the court:

(i) Orders, pursuant to Uniform Civil Procedure Rules 2005 (NSW), rule 7.10(2)(b), that the Defendant, Irene Greentree, be appointed to represent the deceased’s estate and notional estate for the purposes of these proceedings.

(ii) Orders that any order entered, or made, in the proceedings binds the deceased person’s estate and notional estate to the same extent as the estate and notional estate would have been bound had a personal representative of the deceased person to whom administration had been granted been a party to the proceedings.

(iii) Orders that the application to amend the Statement of Claim be dismissed.

(iv) Orders that the whole of the Plaintiffs’ Statement of Claim be dismissed.

(v) Orders that the caveat lodged by the first Plaintiff on title to the land situated at and known as Folio Identifier 23/xxx, and Folio Identifier 30/xxx at Yarrowitch, in the state of New South Wales, be withdrawn within 14 days of the date of this order.

(vi) Orders that the Plaintiffs deliver up vacant possession of the whole of the land situated at and known as Folio Identifier 23/xxx, and the whole of the land in Folio Identifier 30/xxx at Yarrowitch, in the state of New South Wales, within 28 days of the date of this order or within such other time as the Defendant agrees in writing.

(vii) Orders that, in the event that the Plaintiffs fail, or either of them fails, to deliver up vacant possession of the land identified in Order (vi) above, in accordance with Order (vi), a writ of possession be issued forthwith in favour of the Defendant.

(viii) Orders that any costs incurred by the Defendant thrown away by the dismissal of the trust claim shall be paid by the Plaintiffs.

(ix) Directs that the Exhibits be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rule 31.16A and rule 33.10), and Practice Note No SC Gen 18 (Para 26) following the determination of the costs of the proceedings.

(x) The parties are to be heard on how the burden of costs of the balance of the proceedings is to be borne.

*********

Amendments

05 November 2015 - Quote in Paragraph 143 amended from "and equitable obligation" to "an equitable obligation"

Decision last updated: 05 November 2015

Medium Neutral Citation:	Bruce v Greentree [2015] NSWSC 1611
Hearing dates:	17, 18 and 19 August 2015
Date of orders:	04 November 2015
Decision date:	04 November 2015
Jurisdiction:	Equity
Before:	Hallen J
Decision:	(i) Orders, pursuant to Uniform Civil Procedure Rules 2005 (NSW), rule 7.10(2)(b), that the Defendant, Irene Greentree, be appointed to represent the deceased’s estate and notional estate for the purposes of these proceedings. (ii) Orders that any order entered, or made, in the proceedings binds the deceased person’s estate and notional estate to the same extent as the estate and notional estate would have been bound had a personal representative of the deceased person to whom administration had been granted been a party to the proceedings. (iii) Orders that the application to amend the Statement of Claim be dismissed. (iv) Orders that the whole of the Plaintiffs’ Statement of Claim be dismissed. (v) Orders that the caveat lodged by the first Plaintiff on title to the land situated at and known as Folio Identifier 23/xxx, and Folio Identifier 30/xxx at Yarrowitch, in the state of New South Wales, be withdrawn within 14 days of the date of this order. (vi) Orders that the Plaintiffs deliver up vacant possession of the whole of the land situated at and known as Folio Identifier 23/xxx, and the whole of the land in Folio Identifier 30/xxx at Yarrowitch, in the state of New South Wales, within 28 days of the date of this order or within such other time as the Defendant agrees in writing. (vii) Orders that, in the event that the Plaintiffs fail, or either of them fails, to deliver up vacant possession of the land identified in Order (vi) above, in accordance with order (vi), a writ of possession be issued forthwith in favour of the Defendant. (viii) Orders that any costs incurred by the Defendant thrown away by the dismissal of the trust claim shall be paid by the Plaintiffs. (ix) Directs that the Exhibits be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rule 31.16A and rule 33.10), and Practice Note No SC Gen 18 (Para 26) following the determination of the costs of the proceedings. (x) The parties are to be heard on how the burden of costs of the balance of the proceedings is to be borne.
Catchwords:	SUCCESSION – TRUSTS – Claim for resulting and/or constructive trust in respect of two blocks of land in which the deceased and the Defendant were joint tenants – Prior to hearing, the Defendant and the court informed that Plaintiffs not continuing with trust claim – Trust claim to be dismissed SUCCESSION – FAMILY PROVISION – The Plaintiffs, each of whom is a child of the deceased, apply for a family provision order under Chapter 3 of the Succession Act 2006 (NSW) – Proceedings not commenced within the time prescribed by the Act for the making of the application – The Defendant is the widow of the deceased and mother of the Plaintiffs – Deceased left no Will – Whole estate passes to Defendant under the operation of the intestacy rules – – No dispute as to each Plaintiff’s eligibility as a child of the deceased – Whether any actual estate – Application made to amend Statement of Claim to assert that part of proceeds of sale of jointly held property sold in June 2007 should be declared to be actual estate of the deceased – Alternatively, property that may be designated as notional estate of small value – Whether sufficient cause shown for making order extending the time for making the application – Whether adequate and proper provision not made for the Plaintiffs – Relevance of open offer made on behalf of the Plaintiffs during course of the proceedings
Legislation Cited:	Evidence Act 1995 (NSW) Family Provision Act 1982 (NSW) Succession Act 2006 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248; (1993) 46 FCR 225 Collings v Vakas [2006] NSWSC 393 Curnow v Curnow [2014] NSWSC 896 Fiorentini v O’Neill [1998] NSWCA 79 Flathaug v Weaver [2003] NZFLR 730 Foye v Foye [2008] NSWSC 1305 John v John [2010] NSWSC 937 Kearns v Ellis (Supreme Court (NSW), Mahoney JA, 5 December 1984, unrep) Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Korda v Australian Executor Trustees (SA) Ltd [2015] HCA 6; (2015) 317 ALR 225 Mann v Starkey [2008] NSWSC 263 Martin v Martin [1959] HCA 62; (1959) 110 CLR 297 Mayfield v Lloyd-Williams [2004] NSWSC 419 Moore (bht the NSW Trustee & Guardian) v Randall [2012] NSWSC 184 Muschinski v Dodds (1985) 160 CLR 583 Napier v Public Trustee (WA) (1980) 32 ALR 153 Neale v Neale [2015] NSWCA 206 Re Buckland, Deceased [1966] VR 404 Segelov v Ernst & Young Services Pty Ltd [2015] NSWCA 156 Singh v Kaur Bal [No 2] [2014] WASCA 88 Underwood v Gaudron [2014] NSWSC 1055 Underwood v Gaudron [2015] NSWCA 269 Verzar v Verzar [2012] NSWSC 1380 Verzar v Verzar [2014] NSWCA 45 Vincent v Lewis [2006] NZFLR 812 Wheat v Wisbey [2013] NSWSC 537
Category:	Principal judgment
Parties:	Kim Katherine Bruce (first Plaintiff) Paul Neville Greentree (second Plaintiff) Irene Greentree (Defendant)
Representation:	Counsel: Ms A Power (Plaintiffs) Mr J E F Brown (Defendant) Solicitors: Leverage Solicitors (Plaintiffs) Marsdens Law Group (Defendant)
File Number(s):	2013/272826