Campbell v Campbell

[2010] NSWSC 863

CITATION:	Campbell v Campbell [2010] NSWSC 863
HEARING DATE(S):	3 August 2010
JUDGMENT DATE :	6 August 2010
JUDGMENT OF:	Ball J
DECISION:	1. That, in place of any gift given to the plaintiff under a will of the deceased, the plaintiff receive 50 per cent of the proceeds of sale of the house at Gladesville after deducting the costs of sale and the costs of these proceedings from the sale price. 2. The plaintiff’s costs on a party/party basis be paid out of the proceeds of sale of the Gladesville property. 3. Liberty to apply on three days’ notice.
CATCHWORDS:	FAMILY PROVISION - adult child - no appearance by defendant - plaintiff's circumstances deteriorated subsequent to execution of last will - will did not make adequate provision.
LEGISLATION CITED:	Family Provision Act 1982
CATEGORY:	Principal judgment
CASES CITED:	Re Fulop Deceased (1987) 8 NSWLR 679 Singer v Berghouse (No. 2) [1994] HCA 40; (1994) 181 CLR 201 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
PARTIES:	Mark Hunter Campbell (Plaintiff) Archie Campbell (Defendant)
FILE NUMBER(S):	SC 2009/290108
COUNSEL:	D Roberts (Plaintiff) No appearance (Defendant)
SOLICITORS:	Georgiou & Co (Plaintiff) No appearance (Defendant)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BALL J

6 AUGUST 2010

2009/290108 MARK CAMPBELL v ARCHIE CAMPBELL

JUDGMENT

1 This is an application pursuant to s 7 of the Family Provision Act 1982 (FPA) by an adult son that provision be made for him out of the estate of his father, Archibald Campbell (the deceased). The plaintiff was born in 1965. He recently learned that he had been adopted by his parents. He has an older brother, the defendant, who was born in 1955. There are no other beneficiaries of, or claimants against, the estate.

2 On the evidence before me, it appears that the deceased made his last will in 1998. By that will, he left 10% of his estate to the plaintiff and 90% to the defendant. He also appointed the defendant as executor. The only real asset of the estate consists of a house in Gladesville, which has an estimated value of $900,000. It appears that the defendant has lived in that house for the whole of his life – with his parents while they were both alive, with his father after his mother’s death and now alone.

3 Despite repeated attempts, the plaintiff has had virtually no contact with the defendant since their father died. They saw one another at their father’s funeral and it appears spoke once over the telephone. In addition, the plaintiff’s wife saw the defendant once at the Gladesville property. On that occasion, the defendant provided her with a copy of two wills made by the defendant – the one by which the deceased left the defendant 90 per cent of his estate and one made two years earlier by which the deceased left 40 percent of his estate to the plaintiff and 60 percent to the defendant. The plaintiff gave evidence that he has repeatedly tried to telephone and visit the defendant, but that, on each occasion, the telephone rang out or noone answered the door. At one stage, the plaintiff became so concerned that he arranged for the police to visit the property at Gladesville to determine whether anything had happened to the defendant. The police apparently spoke to the defendant on that occasion.

4 The defendant has made no attempt to obtain a grant of probate or to administer the estate of the deceased. As a result, letters of administration were granted to the plaintiff on 29 December 2009, solely for the purpose of making an application under the FPA. Attempts were made by the plaintiff’s solicitor on a number of occasions to serve the defendant personally with the summons in this matter. However, on each occasion, noone answered the door. As a result, on 27 October 2009, an order was made that service be effected by posting the summons and supporting documents to the defendant and affixing a sealed envelope containing those documents to the front door of the Gladesville property. The documents were served in accordance with that order. However, there was no appearance by the defendant at the hearing of this matter.

5 The plaintiff was not aware until July 2009 that he had been adopted. It appears that he had a close relationship with his adoptive parents, particularly his father. The deceased was a tugboat master and the plaintiff frequently used to go to work with him.

6 After finishing school in 1981, the plaintiff trained as a chef at Ryde Catering College. He left home in about 1985 at the age of 20, although he maintained regular contact with his parents. At about that time, the defendant was made redundant from his employment and, so far as the plaintiff is aware, has not been in employment since.

7 The parties’ mother died in 1993. In 1995, the plaintiff met his current wife and they married in 1996. The plaintiff and his wife maintained close relations with the deceased and, in fact, the deceased gave the plaintiff’s wife away at their wedding ceremony. The plaintiff and his wife visited the deceased frequently and took him and the defendant meals from time to time.

8 In 1998, the deceased gave the plaintiff the sum of $100,000 towards the acquisition of their family home.

9 The plaintiff and his wife have two children – Nathan, who was born in 1999 and Jack, who was born in 2002.

10 The deceased retired in 1998. His health declined in 2008 and, in July 2008, he died at the age of 76.

11 The plaintiff worked in a number of jobs from 1985 to January 2009. He was temporarily unemployed in 2005. At that time, the deceased lent him $2000 to help pay for Nathan and Jack’s school fees. In January 2009, the plaintiff was retrenched from his position as international sales and business development manager in the export division of Goodman Fielder Limited. He was unemployed for approximately a year. He then found a position with Australian Bakels as a sales manager. However, he was made redundant from that position on 1 July 2010.

12 The plaintiff’s wife works as a legal secretary approximately 2 days per week.

13 The plaintiff’s and his wife’s principal asset is their home at North Ryde which is estimated to be worth $850,000. They also own a Ford Territory motor vehicle worth approximately $30,000 and the plaintiff has superannuation totalling $80,000. The house is the subject of a mortgage of $495,000. The plaintiff also has a 2007 Holden Calais estimated to be worth $34,000, but in respect of which there is a lease liability of $42,000. The plaintiff and his wife also have credit card debts totalling approximately $34,000.

14 The plaintiff’s position has deteriorated substantially since the deceased made his will in 1998 and, indeed, since the deceased died. He has suffered from depression and anxiety, which appear to be associated with his father’s death, his unemployment and the difficulties in dealing with his brother. He is taking medication for those conditions. He is currently unemployed and his prospects of future employment are uncertain. It took him a year to find his job with Australian Bakels and that employer elected not to renew his employment contract at the end of a 6 month probationary period.

15 There was little evidence concerning the defendant’s financial position. It appears that he is unemployed and has been for about 25 years. The likelihood is that he has received and continues to receive unemployment benefits.

16 Whether an order should be made under s 7 of the FPA raises two questions. The first is whether the plaintiff has been left without adequate provision for his proper maintenance, education and advancement in life. The second is, assuming he has, what provision, if any, should be made for him: Singer v Berghouse (No. 2) [1994] HCA 40; (1994) 181 CLR 201, Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191. The assessment is to be made having regard to the circumstances as they exist at the time the order is made: FPA s 7.

17 Section 9(2) of the FPA relevantly provides that the court should not make an order under s 7 unless the court is satisfied that the provision made by the deceased is inadequate for the proper maintenance, education and advancement in life of the claimant. As McClelland CJ in Eq pointed out in Re Fulop Deceased (1987) 8 NSWLR 679 at 679, the word “proper” in FPA s 9(2) connotes a standard that is appropriate to all the circumstances of the case. Section 9(3) sets out the circumstances that the court may consider. Those circumstances were summarised by McClelland CJ in Eq in these terms:

“(a) the nature and quality of the relationship between the plaintiff and the deceased, (b) the character and conduct of the plaintiff; (c) the nature and extent of the plaintiff’s present and reasonably anticipated future needs, (d) the size and nature of the estate of the deceased, (e) the nature and relative strength of the claims to testamentary recognition by the deceased of those taking benefits under the will of the deceased, and (f) any contribution, financial or otherwise, direct or indirect, by the plaintiff to the property or welfare of the deceased.” (ibid)

It is clear, however, that the court should consider any other matter which it considers relevant in the circumstances: s 9(3)(d).

18 In my opinion, the plaintiff has not been left with adequate provision for his proper maintenance, education and advancement in life, although I doubt that that was the position at the time the deceased made his will.

19 In my opinion, adequate provision would be an amount which is sufficient to make it reasonably likely that the plaintiff will be able to keep his current home. The deceased had a close relationship with the plaintiff. He was obviously concerned to ensure that the plaintiff had a satisfactory place to live. It was for that reason the deceased gave the plaintiff $100,000 in order to enable him to acquire his first home. In my opinion, the terms of the 1998 will are to be explained on the basis that the deceased believed that no further provision was necessary. However, given the plaintiff’s current circumstances, that is no longer true. I think that the amount that the plaintiff requires in order to have good prospects of retaining his current home is an amount necessary to reduce very substantially, if not eliminate, the current mortgage over that home.

20 In my opinion, the estate is sufficiently large to enable a provision of that type to be made. It is true that an order that provision be made in that amount will necessitate that the Gladesville property be sold with the result that the defendant will need to look for alternative accommodation. However, the likelihood is that that is something that will have to happen in any event in order to permit the plaintiff to obtain the legacy due to him under the will.

21 The defendant has had the benefit of living at the Gladesville property throughout his adult life. There is no evidence to suggest that he made particular contributions to the property or to the deceased’s welfare. Indeed, the evidence is that, up until shortly before the deceased’s death, the deceased lived a very independent life. Unlike the plaintiff, the defendant has no dependants. It appears that he has chosen to live a solitary life and that his needs can be met provided he has adequate accommodation and continues to receive whatever benefits are currently paid to him.

22 In these circumstances, I think an appropriate order is that the plaintiff receive, in place of any entitlement under any will of the deceased, 50 per cent of the proceeds of sale of the house at Gladesville after deducting the costs of sale and the costs of these proceedings.

23 Mr Roberts, who appeared for the plaintiff, submitted that the plaintiff’s costs should be paid from the estate on a solicitor/client basis. I am not prepared to make an order in those terms. I accept that the plaintiff has incurred considerable costs in trying to serve the defendant. However, it seems to me that the defendant would have been entitled to contest these proceedings. If he had done so, that would have involved additional costs; and if the plaintiff had been successful in those circumstances, I do not think he would have recovered costs other than on the usual basis.

24 In those circumstances, the orders I make are:

1. That, in place of any gift given to the plaintiff under a will of the deceased, the plaintiff receive 50 per cent of the proceeds of sale of the house at Gladesville after deducting the costs of sale and the costs of these proceedings from the sale price.

2. The plaintiff’s costs on a party/party basis be paid out of the proceeds of sale of the Gladesville property.

3. Liberty to apply on three days’ notice for further orders to give effect to these orders.

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