Christie v Nolan

[2001] NSWSC 760

CITATION:	Christie v Nolan [2001] NSWSC 760
FILE NUMBER(S):	SC 1233/99
HEARING DATE(S):	31 August 2001
JUDGMENT DATE:	31 August 2001
PARTIES :	James Basil Christie v Irene Valerie Nolan
JUDGMENT OF:	Master McLaughlin

COUNSEL :	B. J. Sharpe (Plaintiff) P. Blackburn-Hart (Defendant)
SOLICITORS:	R A Davies (Plaintiff) Lane & O'Rourke (Defendant)
LEGISLATION CITED:	Family Provision Act 1982
CASES CITED:	Bosch v The Perpetual Trustee Company Limited [1938] AC 463 Re Buckland deceased [1966] VR 404 Hughes v National Trustees Executors Agency Company of Australasia Limited (1979) 143 CLR 134 Schubert v Johnsen (1999) NSWSC 1202 Tripet v Delis (2000) NSWSC 130
DECISION:	1. I order that the summons be dismissed; 2. I order that the plaintiff pay the costs of the defendant such costs to be on the party and party basis.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Friday, 31 August 2001

1233/99 JAMES BASIL CHRISTIE -V- IRENE VALERIE NOLAN – ESTATE OF FRANCES THOMASENE CHRISTIE

JUDGMENT

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

2 By summons filed on 29 January 1999 the plaintiff, James Basil Christie, claims an order for provision for his maintenance and advancement in life out of the estate of his late mother, Frances Thomasene Christie, (to whom I shall refer as “the deceased”).

3 The deceased died on 12 July 1998, being then aged ninety-eight years. She left a will dated 29 October 1993, probate thereof was granted to the defendant, Irene Valerie Nolan, the executor named in the said will, on 24 September 1998.

4 The plaintiff and the defendant are two of the four surviving children, of the deceased. The effect of the will is that each of those surviving children, other than the defendant, receives a legacy of $50,000. The residue of the estate passes to the defendant.

5 At the date of death of the deceased the assets in the estate total slightly in excess of $1.513 million. At the present time the assets total almost $1.941 million.

6 The plaintiff is presently seventy-two years of age, having been born on 2 January 1929. He is a retired engineer. The evidence discloses that the plaintiff had a close and affectionate relationship with the deceased. The plaintiff married in 1953. There are four children of that marriage.

7 The youngest child of the plaintiff is Michael Stephen, who was born on 7 November 1970 and who is presently thirty years of age. Michael at an early age was diagnosed with spastic paraplegia. He has during his life required surgical treatment on a number of occasions. He suffers a degree of physical disability but no intellectual or mental disability. Michael, despite his physical problems, has achieved much in his life to the present time.

8 He was educated at Oakhill College, he attended the North Sydney TAFE, he completed an advanced certificate course in computer data processing. He has been employed as computer operator and in early 1992 was appointed to a permanent position as an administrative service officer for the Australian Taxation Office. He remained employed by the Australian Taxation Office until 23 June 1999, when the work which he was performing was outsourced to private enterprise and he was retrenched.

9 Shortly thereafter, on 4 August 1999, Michael commenced employment at IBM where he remains currently employed.

10 Michael lived at home with the plaintiff and his mother until December 1994, when for a period of eleven months he lived independently with a friend. He subsequently returned home and remained there until he moved out again in October 1997. Since that time Michael has been living in rented accommodation at Burwood.

11 The plaintiff's own financial and material circumstances can be described only as comfortable. The plaintiff and his wife jointly own their residence at Beecroft, to which there is ascribed a value of $460,000. The plaintiff and his wife had other assets either conjointly or separately which, including the house property, total in excess of $1 million. The plaintiff has already received payment of his legacy under the will of the deceased and that legacy is included in the totality of the assets to which I have just referred.

12 The plaintiff's present income is about $48,000 a year before tax, consisting of a pension of almost $31,000, together with dividends on shares and investments. Until very recently the plaintiff's wife has been employed as a librarian. However, she has either very recently retired or is about to retire. In her employment her most recent earnings have been an amount of $45,000 a year. She also has three superannuation policies to which she is entitled, in value totalling a little over $200,000.

13 Essentially, the claim of the plaintiff is grounded upon a most commendable desire on the part of the plaintiff to give financial assistance to his youngest son Michael by way of assisting and enabling Michael to purchase a residence. The plaintiff has carefully set forth in his affidavit evidence the calculations by which he has worked out that in order to assist Michael to purchase a house property costing $350,000 the plaintiff would need, in addition to the legacy which he received out of the estate of the deceased, a further sum of $115,250. It is essentially in such an amount for the purpose of assisting Michael to acquire a residence that the plaintiff brings the present claim.

14 The plaintiff, as a son of the deceased is an eligible person within paragraph (b) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such he has the standing to bring the present proceedings.

15 It should be noted that the defendant also and each of the other two surviving children of the deceased is an eligible person in relation to the deceased. However, Michael, the son of the plaintiff and a grandson of the deceased, is not an eligible person in relation to the deceased.

16 I have had the benefit of receiving written submissions from Counsel for the respective parties. Those written submissions will be retained in the Court file.

17 On behalf of the plaintiff it has been submitted that where, as here, there is a large estate, the Court is entitled to exercise a greater latitude in approaching the claim of the plaintiff. In this regard the plaintiff has relied upon the decision of the Privy Council in Bosch v The Perpetual Trustee Company Limited [1938] AC 463 and the decision of the Supreme Court of Victoria in Re Buckland deceased [1966] VR 404.

18 The plaintiff, correctly in the circumstances of this case, points to the fact that the size of the estate is sufficient to accommodate any claim which might be made upon it by the plaintiff. The plaintiff also points to the fact that the entitlement of the defendant, which can be regarded as a competing claim upon the testamentary bounty of the deceased, is such that, in the light of the defendant's own financial and material circumstances, it would not have the effect of reducing, let alone extinguishing, any order for provision an entitlement to which the plaintiff might otherwise have established.

19 Essentially, however, the Court must consider whether the very commendable desire on the part of the plaintiff to assist in acquiring a house property for his youngest son Michael constitutes a need on the part of the plaintiff which should be recognised by the Court by the making of an order for provision in favour of the plaintiff.

20 Reliance has been placed by the plaintiff upon the decision of the High Court of Australia in Hughes v National Trustees Executors Agency Company of Australasia Limited (1979) 143 CLR 134, in particular upon the passage from the judgment of Gibbs J (as he then was) at 147. His Honour, in considering the case of an adult son said, at 147, that in some instances a special claim on the part of an adult son may be found to exist for various reasons. His Honour said:

"He may have suffered a financial disaster; he may be unable to obtain employment; he may have a number of dependants who rely on him for support which he cannot adequately provide from his own resources. There are no rigid rules; the question whether adequate provision has been made for the proper maintenance and support of the adult son must depend on all the circumstances".

21 The plaintiff submits that in the instant case the reference to dependants “who rely upon him for support which he cannot adequately provide from his own resources” would accommodate the situation of the plaintiff's son Michael.

22 There has been placed in evidence an affidavit sworn by Michael himself, setting forth details of his financial and material circumstances and of his career history to the present time. He states in that affidavit that when the Australian Taxation Office made him redundant he received a redundancy payment of about $21,000, of which he spent $20,000 to buy a Mitsubishi Mirage motor car. His assets include that motor vehicle, together with amounts in various bank accounts totalling a little over $80,000 and shares having a present value of a little under $8,000.

23 Michael has no liabilities. His present annual income consists of his salary, which after tax and superannuation is in amount of a little over $34,000. In addition, he receives interest from bank accounts, totalling about $1,800, and dividends from shares in an amount of $140. That gives a total of almost $36,000 a year income.

24 There has also been placed in evidence a report from Dr Kevin Lowe, who is a consultant physician and consultant in rehabilitation medicine. In that report Dr Lowe considers the likely deterioration in Michael's mobility in his mid to late forties.

25 Dr Lowe states in the penultimate paragraph of his report:

"I do not anticipate that there would be significant impact on his earning capacity as he currently works in an area that does not require good gross motor function. Deterioration in his mobility is not going to influence his intellectual functioning.”

26 It is very greatly to Michael's credit that he has been able to make his own way in life and that he is presently financially and materially independent on the plaintiff.

27 I have been taken by Counsel for the defendant to two unreported decisions of Master Macready, being Schubert v Johnsen (1999) NSWSC 1202 and Tripet v Delis (2000) NSWSC 130, each of which is relevant to a claim of the nature of that presently before the Court, where a significant part of the need relied upon by an applicant in a claim under the Family Provision Act related to the perceived responsibility for that applicant to look after a child of the applicant.

28 It has been submitted on behalf of the plaintiff in the instant case that the fact that Michael is not legally dependent upon the plaintiff does not detract from the fact of what might be described as the moral dependency which the plaintiff recognises in respect to Michael.

29 Nevertheless, I have reached the conclusion in the instant case that, apart from the commendable desire of the plaintiff to assist Michael in the acquisition of a house property, the plaintiff has not established any need. To allow the plaintiff's claim merely on account of his desire to assist in the acquisition of a house property for Michael would be in effect to allow a claim by Michael himself, he not being an eligible person in relation to the deceased.

30 Whilst I can have considerable sympathy for and understanding of the reasons which have caused the plaintiff to bring the present proceedings, it is my conclusion that to allow the present claim would be simply to accede to a claim which the Act does not recognise.

31 I propose, therefore, to dismiss the summons of the plaintiff.

32 (Mr Blackburn sought costs. Mr Sharpe submitted there should be no order for costs).

33 MASTER: I will have it recorded that after seeking instructions, Counsel for the defendant has made an application for costs. Normally the costs in cases such as this follow the event, so that the defendant is always entitled to an order for her own costs out of the estate. Where the plaintiff has been unsuccessful the defendant is entitled to an order for costs against the plaintiff. Since the defendant has seen fit to make such an application, I propose to accede to it.

34 I make the following orders:

(1). I order that the summons be dismissed;

(2). I order that the plaintiff pay the costs of the defendant such costs to be on the party and party basis.

35 The Exhibits may be returned.

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Last Modified: 05/19/2003