Chester v Cowin (No 2)
[2025] NSWSC 74
•17 February 2025
Supreme Court
New South Wales
Medium Neutral Citation: Chester v Cowin (No 2) [2025] NSWSC 74 Hearing dates: On the papers Date of orders: 17 February 2025 Decision date: 17 February 2025 Jurisdiction: Equity Before: Hmelnitsky J Decision: [28]
Catchwords: COSTS – Party/Party – Exceptions to general rule that costs follow the event – Offers of compromise/Calderbank offers – Whether plaintiffs’ rejection of offer of compromise unreasonable
SUCCESSION — Family provision — Nature of orders — Orders for provision – Right to occupy house until youngest child finishes school
Legislation Cited: Probate and Administration Act 1898 (NSW)
Cases Cited: Calderbank v Calderbank [1976] Fam 93
Chester v Cowin [2024] NSWSC 1554
Texts Cited: Nil
Category: Consequential orders Parties: Geraldine Ann Chester (First Plaintiff)
Matthew Wilson (Second Plaintiff)
Mitchell Wilson (Third Plaintiff)
CW (not his real name) by his tutor Geraldine Ann Chester (Fourth Plaintiff)
TW (not her real name) by her tutor Geraldine Ann Chester (Fifth Plaintiff)
Penelope Jayne Cowin (Defendant)Representation: Counsel:
Solicitors:
S Brennan (Plaintiffs)
R Size (Defendant)
AKC Legal (Plaintiffs)
Bryson Kelly (Defendant)
File Number(s): 2023/158098
JUDGMENT
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These are my reasons for making orders to give effect to the conclusions I reached in Chester v Cowin [2024] NSWSC 1554, to which I will refer as the principal decision. I will use the same naming conventions as in those reasons. I will also deal with the question of costs.
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In the principal decision, I said at [53] and [55]:
“[53] …I am satisfied that Geraldine and the two youngest children have not been left adequate provision because the estate does not allow them to continue to live in the Reindeer Place property. In my view, it is appropriate to make an order for further provision by granting them the right to occupy the house until such time as neither child is still in secondary school. However, I am not persuaded that they should be entitled to remain in the property at no cost to Geraldine...
…
[55] In the circumstances, the right of Geraldine and the two younger children to occupy the property should be subject to the following conditions:
(a) that Geraldine pays a fee equal to one-third of the market rental for the property;
(b) that Geraldine is solely responsible for the upkeep and maintenance of the property while ever she has the right to occupy the property. This includes the payment of insurance, rates, tax and utilities; and
(c) that Geraldine is entitled to allow Matthew and Mitchell to continue to live in the property while ever she has the right to occupy the property.”
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I directed the parties to bring in agreed short minutes of order to give effect to these conclusions or, failing agreement, to make brief submissions as to the orders for which they contend. I also directed the parties to make submissions about costs.
Orders to give effect to my conclusions
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The parties say that I should make orders for the Reindeer Place property to be transferred to the first plaintiff and the defendant as tenants in common in equal shares but have otherwise been unable to agree short minutes to give effect to my conclusions.
Should the property be transferred?
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As matters stand, no-one has taken any steps to comply with any of the formalities associated with obtaining a grant of administration of the estate, which needs to occur irrespective of the orders made in relation to the plaintiffs’ claims. As I mentioned at [12]-[13] of the principal decision, the estate owns shares and potentially other assets that cannot be dealt with until that occurs. Those shares will probably need to be sold in order for the estate to realise cash for the purpose of meeting at least some of the costs associated with these proceedings.
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The conclusion I reached was that Geraldine and her two younger children should have a temporary right of occupation, subject to payment of a modest rent and subject to meeting costs associated with the upkeep of the property in the meantime. As I said at [59], I could not see why the administration of the estate should not proceed subject to the right of occupation. But whether and on what terms the title to the property should be dealt with subject to the plaintiffs’ rights is a matter that, in the ordinary course, would be resolved by those responsible for the administration of the estate.
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In all of these circumstances, it is appropriate for one of the parties to be appointed as administrator of the estate generally, so as to allow for all of the assets of the estate, apart from the Reindeer Place property, to be realised and distributed in accordance with the laws of intestacy, the property being subject to the further provision I propose to order.
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That however does not quite deal with all of the issues that are likely to arise. The parties contemplate that the property will need to be sold once the right of occupation comes to an end. I agree. I have given some thought to making an order creating what would, in effect, be a testamentary trust for sale. On this approach, the property would be transferred into the name of Penelope as trustee for herself and Geraldine in equal shares, subject to the right of occupation, with the obligation to sell the property at the conclusion of the right of occupation. The difficulty with this approach is that Penelope would then be on title and would need to deal with third parties in relation to all of the matters for which Geraldine will be liable during the right of occupation, such as rates and utilities.
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The approach adopted by the parties involves orders that the property be transferred into the names of Geraldine and Penelope and that, at the conclusion of the right of occupancy, the property be sold. I am content to approach this matter in this way, given the general agreement of the parties that this should occur. The parties will hold the property subject to the right of occupation and subject to the obligation to sell the property when that right comes to an end. Should either Penelope or Geraldine die in the meantime, the other will continue to hold the property subject to the obligation to sell it at the conclusion of the right of occupancy.
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It will also be appropriate to make orders for Penelope to be appointed as administrator of the estate. I will dispense with the formal requirements for the appointment of administrators, including for the payment of a bond, under the Probate and Administration Act 1898 (NSW). I will also make orders for the Reindeer Place property to be transferred into the names of Penelope and Geraldine and for it to be sold at the conclusion of the right of occupation.
Other issues in dispute
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The issues now dividing the parties are as follows. First, Penelope says that Geraldine’s obligation to pay an occupation fee should be “backdated” to the date of their father’s death in 2022. Secondly, Penelope seeks a variety of orders in relation to the maintenance, upkeep and inspection of the property during the period of Geraldine’s right of occupation, including what occurs on default. Thirdly, the parties are in dispute as to how to arrive at an appropriate rate for the occupation fee.
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For completeness, Penelope submits that I should make these orders:
“1. Provision be made from the Estate of the Late Malcolm Edward Chester (the Estate) for the first plaintiff (Geraldine), fourth plaintiff ([CW]) and fifth plaintiff ([TW]) in terms set out herein.
2. The property at 10 Reindeer Place, Werrington, NSW (the Property) be transferred into the names of Geraldine and the defendant (Penelope) as tenants in common in equal shares.
3. Subject to any order the court may make as to costs, the balance of the Estate be distributed to Geraldine and Penelope in equal shares.
4. Geraldine, [CW] and [TW] be granted a right to occupy the Property (the Right to Occupy) from 25 May 2022 until [CW] and [TW] finish high school (the Occupation Period) on terms set out herein.
5. Upon the end of the Occupation Period or earlier termination of the Right to Occupy, unless the parties agree otherwise, the Property is to be sold, and the net proceeds of sale are to be distributed to Geraldine and Penelope in equal shares.
Terms of Right to Occupy
6. Within one year of the date of these orders, Geraldine shall arrange for such repairs and maintenance as are necessary to bring the dwelling on the Property into a state of good and serviceable repair (including but not limited to addressing the existing problems with the roof, bathroom and floorboards of the Property).
7. Upon Geraldine complying with the previous order and thereafter until Geraldine vacates the Property, Geraldine shall ensure that the dwelling on the Property is properly maintained and kept in a state of good and serviceable repair.
8. During the Occupation Period and thereafter until Geraldine vacates the Property, Geraldine is to permit Penelope, or an agent appointed by Penelope, to inspect the Property for the purpose of determining whether Geraldine has complied with orders 6 and 7.
9. During the Occupation Period and thereafter until Geraldine vacates the Property, Geraldine shall ensure that the dwelling on the Property is insured with an appropriate level of building insurance and shall provide a copy of each policy of insurance for the Property to Penelope.
10. During the Occupation Period and thereafter until Geraldine vacates the Property, Geraldine shall be responsible for the cost of repairs, maintenance, insurance, council rates, utilities and other such costs as would ordinarily be paid by a homeowner.
11. During the Occupation Period and thereafter until Geraldine vacates the Property, Geraldine is to pay to Penelope a fee equal to one third of the market rent for the Property calculated and payable on terms as per orders 13-17 below (the Rental Fee).
12. Should Geraldine fail to comply with any of the terms set out in orders 6-11 above, the Right to Occupy shall immediately terminate.
Calculation of Rental Fee
13. Within one week of the date of these orders, the parties are jointly to instruct Lynette Savage to provide a report as to the market rent of the Property:
a. between 26 May 2022 and 30 June 2022 (2022 Rent);
b. between 1 July 2022 and 30 June 2023 (2023 Rent)
c. between 1 July 2023 and 30 June 2024 (2024 Rent); and
d. between 1 July 2024 and the date of the report (2025 Rent).
14. Within four weeks of receiving the report from Ms Savage, Geraldine is to pay to Penelope one third of the 2022 Rent, 2023 Rent, 2024 Rent and 2025 Rent.
15. From the date of the payment referred to in order 14 until 30 June 2025, the fee payable by Geraldine is to be one third of the 2025 Rent.
16. From 1 July 2025 until the date that Geraldine vacates the Property, the fee payable by Geraldine for each new financial year is to be determined by adjusting the fee paid during the previous financial year by the percentage annual movement of rental prices in Sydney over the previous financial year reported in the Consumer Price Index quarterly release published by the Australian Bureau of Statistics.
17. From the date of the payment referred to in order 14 until the date that Geraldine vacates the Property, Geraldine is to pay the fee to Penelope by transferring one twelfth of the fee into an account nominated by Penelope on the last day of each month.
Costs
18. Geraldine’s costs incurred up to and including 23 January 2024 be paid out of the Estate on the ordinary basis.
19. Penelope’s costs incurred up to and including 23 January 2024 be paid out of the Estate on the indemnity basis.
20. Penelope’s costs incurred from 24 January 2024 be paid by Geraldine on the indemnity basis.
21. Geraldine’s costs incurred from 24 January 2024 be paid by Geraldine.”
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The plaintiffs submit that I should make these orders:
“1. Provision be made from the Estate of the Late Malcolm Edward Chester for the First, Fourth and Fifth Plaintiffs in terms set out herein.
2. The House at 10 Reindeer Place, Werrington, NSW, be transferred into the names of the First Plaintiff and the Defendant as Tenants-in-Common in equal shares.
3. The Plaintiffs are granted the right to occupy the House until both the Fourth and Fifth Plaintiffs finish high school.
4. After the right to occupy is exhausted, the house shall be sold with the First Plaintiff and Defendant receiving equal share of net proceeds.
5. During the period of occupation, the First Plaintiff shall be responsible for payment of council rates, utility fees, building insurance, building maintenance, upkeep of property and such other costs as would ordinarily be paid by a home owner.
6. The house shall be kept in a reasonable state of repair and the First Plaintiff may cause improvements or additions to be made to the property for the purposes of improving its amenity or value.
7. During the period of occupation, the First plaintiff shall remit to the Defendant’s nominated bank account rental payments to the value of one third of the market rent of the property once per calendar month.
8. The market rent of the property as at the date of these Orders has been agreed between the parties as being [estimated at $456.00] per week, and one third of same is [estimated at $152.00]. On a yearly basis and dividing by 12, monthly payments are therefore [estimated at $660.48]
9. The market rent shall be reviewed annually and applied to the December payment by reference to the Sydney Housing component of the Consumer Price Index published by the Australian Bureau of Statistics.
10. The reference date for calculations is September 2024 and the index given for that date is 153.4. The yearly adjustment will [be] made by multiplying [estimated at $660.48] by the Index for the current year and dividing by the Index given for the reference date (153.4), the result of which will be the monthly rent.
11. Rental payments are payable in respect of each month from December 2024 until the month when the First Plaintiff either vacates the house in anticipation of its sale or vacates it after the sale date but before settlement, as may be arranged with the purchaser.
12. Balance of the Estate be distributed to the First Plaintiff and Defendant in equal shares.
13. Should the First Plaintiff breach any of these orders, in particular by failing to pay rent, the Defendant has liberty to apply to this Court for review of the Orders on 7 days notice.”
Backdating
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Geraldine says that it would be illogical to require her to pay for the occupation of the property between May 2022 and the date of judgment. I disagree that such an outcome would be illogical. There is no reason why an order on those terms could not be made.
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However, there is a good reason why such orders should not be made here: the parties have to date taken no steps whatsoever to have the estate administered. As such, the parties have been acquiescing in Geraldine’s continuing occupation of the property without dealing with the question of rent on behalf of the estate. Because I do not know precisely how or why this situation has come about and why it has persisted for so long, I do not propose to disturb it.
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The effect of my principal judgment is that Geraldine should now be entitled to continue in occupation, as of right, but subject to the conditions I identified. I propose to make orders that will require Geraldine to pay for the occupation only from the date of the orders.
The terms of the right to occupy
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There is a clear need for Geraldine’s right of occupation to be identified with some care. Her interests, and that of the two younger children, will not be served by orders that leave the parties in a state of uncertainty as to the extent of their obligations and the consequences of non-compliance.
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I therefore consider it appropriate for many of the orders sought by Penelope to be made. This includes orders that Geraldine be required to bring the property up to a standard of repair and requiring her to give reasonable access to Penelope in order to inspect the property. Although those are matters that tend to treat Penelope as a lessor of the property (which she is not), they seem to me to be essential to ensure that the property is maintained in a state appropriate for Geraldine and the children to continue in occupation and to preserve the value of the property pending its ultimate sale.
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So far as the consequences of non-compliance are concerned, Penelope’s draft orders propose that (among other defaults) Geraldine’s failure to maintain the property, to meet ongoing expenses such as rates, or to pay the fee associated with her continued occupation will result in an immediate loss of her right to occupy the property. In my view, breach of any of the conditions should not result in an immediate loss of the right to occupy. The orders should provide that only defaults lasting in excess of three continuous months should, absent agreement between Geraldine and Penelope, result in the loss of the right of occupation.
Calculation of the occupation fee
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The parties are broadly agreed as to the process by which the fee is determined but the plaintiffs submit that I should specify the amount in the final orders. The difficulty with that approach is that it will be necessary for the amount to be determined and adjusted from time to time, which would be difficult if the amount were otherwise enshrined in an order. I will therefore make orders as proposed by Penelope, adjusted in the light of my conclusion in respect of backdating payments.
Costs
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On 23 January 2024, Penelope’s solicitor wrote to the solicitor for the plaintiffs ahead of a mediation scheduled to occur on 4 March 2024. The letter contained a thorough explanation of the issues in dispute and the matters that were likely to be – and which were in fact – relevant to resolving the rights of the parties. The letter contained an offer of compromise, the gist of which was as follows:
Geraldine be granted a right to reside in the property until her youngest child turns 18;
Geraldine pays half the market rent during that time; and
Geraldine and Penelope jointly have the rights and responsibilities of the “landlord”, and that Geraldine also has the rights and responsibilities of the “tenant”, under the standard form residential tenancy agreement published by the NSW Government.
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The offer, which was expressed to be open for a period of 14 days and which referred to Calderbank v Calderbank [1976] Fam 93, was not accepted.
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Penelope argues that Geraldine has not done better than the offer and that her rejection of it was unreasonable. Her proposed costs orders are set out above at [12].
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Penelope’s argument is quite persuasive. The offer was reasonable. As she pointed out in written submissions filed in support of her proposed costs orders:
“It is respectfully submitted that Geraldine has obtained an outcome less favourable than the offer. The terms of the offer in substance reflect the terms of the judgment. Implicit in the Court’s conclusions at J[56]-[57] was the need to balance the otherwise equal interests of Penelope and Geraldine in the Property. The offer sought to balance those interests by requiring Geraldine to pay half the market rent whilst requiring Penelope to be responsible for half of the expenses ordinarily incurred by a landlord. The judgment struck this balance in a different way by requiring Geraldine to pay one third of the market rent whilst absolving Penelope from responsibility for the expenses. The only substantive difference between the outcomes under the judgment and offer is that, if the Court adopts the usual approach as to costs, Geraldine will now receive substantially less from the residue of the Estate due to the costs being paid from the Estate. In other words, if Geraldine had accepted the offer, she would have obtained the right to reside in the Property on roughly the same terms as the terms under the judgment and received substantially more from the residue of the Estate.”
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Nonetheless, and although this issue is quite finely balanced, I am not able to conclude that it was unreasonable of the plaintiffs to reject the offer such as to attract the principles in Calderbank v Calderbank. Even though it is true to say that the offer sought to reach a very similar result to that which I have found to be appropriate, the fact that it did so in a slightly different way makes it difficult for me to be confident that the plaintiffs would have been better off accepting the offer. I do not know what the costs associated with the upkeep of the property will be, nor do I know what the market rent for the property would be. It may also be that some of the maintenance work can be done by Geraldine’s two older sons, who are apprentice tradespeople.
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It is regrettable that the estate will bear the costs of this litigation. If the plaintiffs had accepted the offer, they would have been able to continue in occupation and there would also have been a generous distribution to both sisters from the residue of the estate. That will no longer be the case.
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There is much force in Penelope’s submission that the offer was an appropriate way to preserve the approximate $140,000 in cash and shares making up the residuary. Nonetheless, given my inability to determine with sufficient accuracy whether (apart from costs) the offer represented a better result than what I have found, I decline to make the costs orders sought by Penelope. Instead, I will order that both parties pay their own costs.
ORDERS
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The orders of the Court are as follows:
Order that the defendant be appointed as administrator of the estate of the late Mr Malcolm Chester (Estate).
Direct that the formal requirements under the Probate and Administration Act 1898 (NSW) pertaining to the defendant’s appointment as administrator of the Estate, including the requirement for a bond to be executed under s 64, be dispensed with.
Order that provision be made from the Estate for the first plaintiff, fourth plaintiff and fifth plaintiff (the Relevant Plaintiffs) in terms set out herein.
Order that the whole of the Estate, but for the property at 10 Reindeer Place, Werrington NSW (the Property), be distributed to the first plaintiff and defendant in equal shares.
Order that the Property be transferred into the names of the first plaintiff and the defendant as tenants-in-common in equal shares.
Order that the Relevant Plaintiffs be granted a right of occupation of the Property from the date of these orders until three months after the fourth and fifth plaintiffs have completed secondary school or, alternatively, until the Relevant Plaintiffs vacate the Property at some earlier date either voluntarily or by termination (the Occupation Period).
Order that the Property be sold at the end of the Occupation Period and that the net proceeds of sale be distributed to the first plaintiff and defendant in equal shares.
Order that the first plaintiff be subject to the following terms during the Occupation Period:
Within one year of the date of these orders, the first plaintiff shall arrange for such repairs and maintenance as are necessary to bring the Property into a state of good and serviceable repair (including but not limited to addressing the existing problems with the roof, bathroom and floorboards). The first plaintiff may improve the Property.
Upon the first plaintiff complying with order 8(a) and thereafter until the end of the Occupation Period, the first plaintiff shall ensure that the Property is properly maintained and kept in a state of good and serviceable repair.
During the Occupation Period, on at least 7 days’ notice, the first plaintiff is to permit the defendant, or an agent appointed by the defendant, to inspect the Property for the purpose of determining whether the first plaintiff has complied with orders 8(a) and 8(b). Such inspections shall not occur more than twice in each calendar year, unless by agreement between the first plaintiff and the defendant and unless, after one year of the date of these orders, a breach of these orders is identified during an inspection, in which case an inspection is permitted once every month thereafter until the breach is rectified or until the right of occupation is terminated.
During the Occupation Period, the first plaintiff shall ensure that any dwelling on the Property is insured with an appropriate level of building insurance and shall provide a copy of each policy of insurance for the Property to the defendant.
During the Occupation Period, the first plaintiff shall be responsible for the cost of repairs, maintenance, insurance, council rates, utilities and other such costs as would ordinarily be paid by a homeowner.
During the Occupation Period, the first plaintiff is to pay to the defendant a fee equal to one-third of the market rent for the Property, calculated and payable on terms as per order 9 below (the Occupation Fee).
Should the first plaintiff fail to comply with any of the terms set out in orders 8(a) to 8(f) above for a period of more than three continuous months, the right of occupation shall immediately terminate, subject to any agreement otherwise between the first plaintiff and the defendant.
Order that the Occupation Fee payable by the first plaintiff to the defendant be calculated and paid in the following way:
Within one week of the date of these orders, the parties are to jointly instruct Ms Lynette Savage to provide a report as to the monthly market rent of the Property as at the date of these orders (the 2025 Rent).
The Occupation Fee is to be paid in arrears on the last day of each calendar month during the Occupation Period. In respect of the month of February 2025, the Occupation Fee shall be prorated on the 2025 Rent for the number of days between the date of these orders and the last day of the month.
The Occupation Fee is to be paid into an account nominated by the defendant.
The Occupation Fee for the period 1 March 2025 to 30 June 2025 shall be one-third of four months’ value of the 2025 Rent.
From 1 July 2025 until the end of the Occupation Period, the Occupation Fee payable by the first plaintiff for each new financial year is to be determined by adjusting the fee paid during the previous financial year by the percentage annual movement of rental prices in Sydney over the previous financial year reported in the Consumer Price Index quarterly release published by the Australian Bureau of Statistics.
In the case that the Relevant Plaintiffs vacate the Property before the last day of any month, the Occupation Fee for that month shall be prorated on the relevant fee amount (either calculated in accordance with orders 9(b) or 9(e)), for the number of days between the last day of the previous month and the date on which the Relevant Plaintiffs vacate the Property.
Order that each party bears their own costs.
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Decision last updated: 19 February 2025
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