Clayton v Clayton

[2023] NSWSC 399

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Clayton v Clayton [2023] NSWSC 399

Hearing dates:

27 – 29 March 2023

Date of orders:

20 April 2023

Decision date:

20 April 2023

Jurisdiction:

Equity

Before:

Meek J

Decision:

Plaintiff’s claim for family provision dismissed. Defendant’s cross-claim seeking declaration that Murwillumbah property held on trust for the Defendant dismissed.

Catchwords:

SUCCESSION — Family provision — Deceased directed that a substantial part of her estate being a property at Murwillumbah and the overwhelming majority of proceeds of a life insurance policy be left to her daughter and a very modest amount of proceeds to her only other child, a son — Claim by the son for further provision — Son has some mental health issues but nonetheless has generally lived independently from the deceased and had gainful employment over the past 20 years — Contested issues regarding son’s relationship status, health and capacity for work — Daughter reliant on deceased for accommodation — Daughter claimed the Murwillumbah property held on trust but in any event made a substantial contribution to the deceased’s property and welfare — Defendant provided care for deceased particularly in later years — Strong competing claim of defendant who lived with deceased for most of her life to retain provision to her of residential property gifted under Will

ESTOPPEL — Proprietary estoppel — Estoppel by encouragement — Claim by defendant that deceased’s real property held on a constructive trust

TRUSTS — Constructive trusts — Alternative trust claim by defendant arising from contributions to property — Important differences between common intention constructive trust and joint endeavour constructive trust — Requirements for each of a common intention constructive trust and a joint endeavour constructive trust discussed

PLEADING — Constructive trusts — Important to plead trust claim clearly as critical differences between a common intention constructive trust and a joint endeavour constructive trust

EVIDENCE — Competence — A lack of response by a witness per se or a nonresponsive answer to a question does not necessarily demonstrate a lack of understanding of the question nor inability to give up a comprehensible answer — The mere fact that a witness has a mental health condition does not necessarily preclude a finding of competency

PRACTICE — Consideration of legal capacity to conduct proceedings

EVIDENCE — Cross-examination — Discussion of rule in Browne v Dunn and requirements of procedural fairness — The existence of the statutory duty of legal representatives not to put their client in breach of the parties’ obligation to assist the Court to further the overriding purpose to facilitate the just, quick and cheap resolution of the real issues in the proceedings according to s 56(1)-(4) Civil Procedure Act 2005 (NSW) (CPA) might in some cases qualify principle in Browne v Dunn, as might the power of the Court to regulate cross-examination in proceedings according to s 62(1), (2), (3)(a), 4(a) and (5) CPA, subject to not detracting from the principle that each party is entitled to a fair hearing: s 62(4) CPA

EVIDENCE — Family provision — Cross-examination in family provision cases — Discussion of forensic decisions and obligations

SUCCESSION — Family provision — Notional estate provisions — Consideration of principles regarding designation of property in respect of life insurance proceeds and property said to be subject to a trust

SUCCESSION — Family provision — Consideration of principles regarding adequacy of provision and proper provision

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Conveyancing Act 1919 (NSW)

Evidence Act 1995 (NSW)

Succession Act2006 (NSW)

Supreme Court Rules (Amendment No. 337) 1999 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1

Armitage v Fraser [2020] NSWSC 979

Awad v Awad(No 2) [2020] NSWSC 25

Barns v Barns (2003) 214 CLR 169; [2003] HCA 9

Bassett v Cameron [2021] NSWSC 207

Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59

Bijkerk Investments Pty Ltd v Bikic [2020] NSWSC 1336

Birmingham v Renfrew (1937) 57 CLR 661; [1937] HCA 52

Blackett v Darcy [2005] NSWSC 65

Bowering v Bowering [2014] NSWSC 1107

Browne v Dunn (1894) 6 R 67

Bryson v Bryant (1992) 29 NSWLR 188

Cetojevic v Cetojevic [2006] NSWSC 431

Cetojevic v Cetojevic [2007] NSWCA 33

Charnock v Handley [2011] NSWSC 1408

Chief Commissioner of Stamp Duties (NSW) v ISPT Pty Ltd (1998) 45 NSWLR 639

Chisak v Presot [2022] NSWCA 100

Commercial Union Assurance Co of Australia Limited v Ferrcom Pty Ltd (1991) 22 NSWLR 389

Cooper v Atkin [2020] NSWSC 828

Craig v Silverbrook [2013] NSWSC 1687

Curtin v Curtin [2005] NSWSC 35

De Blac v Lo [2014] NSWSC 142

Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84

Evans v Levy [2011] NSWCA 125

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Galati v Deans [2021] NSWSC 1094

Galati v Deans [2023] NSWCA 13

Georgopoulos vTsiokanis [2022] NSWSC 563

Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187

Gooley v Gooley [2021] NSWSC 56

Henderson v Miles (No 2) [2005] NSWSC 867; (2005) 12 BPR 23,579

Horn v GA & RG Horn Pty Ltd [2022] NSWSC 1519

Hull v Thompson [2001] NSWCA 359

In the matter ofHojuJobs Pty Ltd [2021] NSWSC 302

Jacobsen v Jacobsen [2017] NSWSC 1590

Jelley v Iliffe [1981] 2 All ER 29

Jemmark Pty Ltd v 10 Egan Street Pty Ltd [2022] NSWSC 865

Jodellv Woods [2017] NSWSC 143

Kastrounis v Foundouradakis [2012] NSWSC 264

Koprivnjak v Koprivnjak [2023] NSWCA 2

Lloyd-Williams v Mayfield (2005) 63 NSWLR 1; [2005] NSWCA 189

Lu v Yu [2019] VSC 499

Mallitt v Gow [2022] NSWSC 1012

McDonald v Dunscombe [2018] VSC 283

Meissner v Lindsay [2016] NSWSC 790

Mobile Innovations Limited v Vodafone Pacific Limited [2003] NSWSC 309

Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 79

Nicholls v Hall [2006] NSWSC 1377

Page v Page [2017] NSWCA 141

Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4

Poletti v Jones [2015] NSWCA 107; (2015) 13 ASTLR 113

Prouten v Chapman [2021] NSWCA 207

Q (a pseudonym) v E Co (a pseudonym) [2020] NSWCA 220

R v Brooks (1998) 44 NSWLR 121

R v Medich(No 40) [2018] NSWSC 374

RA v R [2007] NSWCCA 251; (2007) 175 A Crim R 221

Robertson v McCann [2023] NSWSC 159

SammutvKleemann [2012] NSWSC 1030

Sgrov Thompson [2017] NSWCA 326

Shepherd v Doolan [2005] NSWSC 42

Shymko v Lach [2022] NSWSC 1096

Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19

Singer vBerghouse (1994) 181 CLR 201; [1994] HCA 40

Starr v Miller; Starr v Miller [2021] NSWSC 426

Stone v Stone [2019] NSWSC 233

Strang v Steiner [2019] NSWCA 143

Sun v Chapman [2022] NSWCA 132

Taupau v HVAC Constructions (Queensland) Pty Limited & Ors [2012] NSWCA 293

Taylor v Farugia [2009] NSWSC 801

The Recyclers(NSW) Pty Ltd v Ayoub [2016] NSWSC 144

Wardy v Salier [2014] NSWSC 473

West v Mead [2003] NSWSC 161; (2003) 13 BPR 24,431

Texts Cited:

Bible - New Revised Standard Version, Anglicised

Halsbury’s Laws of Australia (online)

Macquarie Dictionary, online ed

Peter Young, Clyde Croft and Megan Smith, On Equity (2009, Thomson Reuters)

Practice Note No. SC EQ 7

Ying Khai Liew, ‘Constructive Trusts and Discretion in Australia: Taking Stock’ (2021) 44(3) Melbourne University Law Review 963

Ying Khai Liew, ‘The ‘joint endeavour constructive trust’ doctrine in Australia: Deconstructing unconscionability’ (2021) 42(1) Adelaide Law Review 73

Category:

Principal judgment

Parties:

Ryan James Clayton (Plaintiff)
Rebecca Jane Clayton (Defendant)

Representation:

Counsel:
C Simpson (Plaintiff)
J Brown and C Coventry (Defendant)

Solicitors:
Somerville Laundry Lomax (Plaintiff)
McDonald & Partners – Solicitors, Barristers & Attorneys (Defendant)

File Number(s):

2022/39193

JUDGMENT

1. HIS HONOUR: The application before the Court is a family provision claim by Ryan James Clayton (the plaintiff) in respect of the estate of his mother the late Deborah May Camilleri (the deceased) who died on 13 March 2021 aged 67.

2. Rebecca Jane Clayton (the defendant) is the plaintiff’s sister and the only other child of the deceased. Within the family the defendant is known, or at least sometimes referred to, as “Bec”: CB 142.

3. The proceedings were commenced by summons filed on 10 February 2022 seeking a family provision order pursuant to s 59 Succession Act2006 (NSW) (Succession Act) for the plaintiff’s maintenance, education and advancement in life out of the estate, or such notional estate of the deceased as may be designated as such.

4. This case is in many respects very sad. Both parties have limited resources. Both have mental health issues to varying degrees. I do not know what, if any, attempts the parties have made or offers put to resolve the litigation. What I do know is that an early settlement conference ordered and held about a year ago failed to produce a mutually agreed outcome that might have provided a tolerable if not perfect solution for the parties. I must accordingly determine the case according to law.

5. It is the very sort of case which exemplifies the wisdom of the policy lying behind the Practice Note No. SC EQ 7 which provides for the Court to give directions for the purpose of making information available at the earliest practicable date so that all parties may make realistic assessment of their respective cases to encourage the early resolution of the proceedings including by referring the matter to mediation at a suitable time without the significant incurring of costs and attrition on parties financially and personally that a contested family provision case often brings.

6. I have determined that the plaintiff’s claim and the defendant’s cross-claim both be dismissed.

7. Without intending any disrespect, it is convenient to refer to various of the deceased’s family by reference to their given or familiar family names as was done by the parties.

8. Mr Simpson appeared for the plaintiff. Mr Brown appeared with Ms Coventry for the defendant. For convenience, I will refer to the submissions on behalf of the defendant as submissions by Mr Brown. However, it was evident that throughout the hearing Ms Coventry gave considerable assistance to Mr Brown (including by undertaking the cross-examination of Dr Bertucen) and her assistance to him should be properly acknowledged.

9. The parties provided written submissions prior to the hearing and on the final day of the hearing in addition to their counsel making oral submissions.

10. I will refer to the oral submissions by transcript page reference. For convenience, I will refer to the various written submission documents as follows: the plaintiff’s written opening submissions (POS); the defendant’s opening written submissions (DOS) and the defendant’s concluding written submissions (DCS).

Family details

The deceased

11. The deceased was born in Sydney in November 1953 (T 183.5-10) and is the daughter of Dorothy May Moodie (nee Butt) (Dorothy) and Francis Lynch (Francis).

12. Dorothy had at least one sibling namely Kevin Butt (Kevin).

13. Dorothy appears to have married twice or at least had several relationships. Firstly, with Francis. Subsequently, Dorothy appears to have had a relationship with or married Barrie Hector Moodie (Barrie).

14. There was no particular evidence as to if and when Dorothy and Francis died, albeit that it appears Dorothy was still alive as at May 2003: CB 178-179. Barrie died on 26 July 2021: CB 335.

15. The deceased married Ian James Clayton (Ian) in or about 1974. Ian was born in or about 1951 (CB 331) and died from bowel cancer in February 2022: CB 68.

16. The deceased had two children from that marriage namely the defendant born in late July 1976 and the plaintiff born in early December 1977.

17. The deceased divorced Ian as I will refer to below. Following his divorce from the deceased, Ian married Bronwyn Ferris in or about 1984 and has two children from that marriage namely Lauren now aged approximately 39 and Cameron now aged approximately 36: CB 331.

18. In about 1985, the deceased met Ron Camilleri (Ron). The defendant states that the deceased married Ron in or about 1991: CB 127[12]. Whilst I do not particularly doubt the defendant’s evidence in that regard, I note that the details in the deceased’s death certificate (CB 115), for which the defendant was informant, only disclose that the deceased married once namely to Ian and does not make any disclosure of a marriage to Ron. Nonetheless, there is other material which is confirmatory that a marriage existed including the Family Court order describing the deceased and Ron as husband and wife (CB 172). It is not necessary for me to make a specific finding as to whether the deceased was married to Ron as he has been provided with a notice of claim and has not sought to make a claim on the estate.

19. In or about May or June 2003, the deceased and Ron separated: CB 161[5].

20. The deceased had various employment skills. Principally, she appears to have been a bookkeeper by profession: CB 166[34]. Post-death materials describe the deceased’s usual occupation as being receptionist/secretary: CB 115 (death certificate); CB 117 (grant of probate).

21. The defendant describes the deceased as being very frugal with money: CB 166[35].

22. In June 2018, the deceased was diagnosed with pancreatic cancer (CB 130[35], 165[32]) and from that time was cared for by the defendant initially at home: CB 130[35]. The cancer metastasised to her lung: CB 115.

23. On or about 7 March 2021, the deceased was admitted to palliative care at Murwillumbah Hospital (CB 30[56]-[57]) until her passing shortly thereafter.

The plaintiff

24. The plaintiff has two children: Dylan born in 1996 and Cody born in 2000.

25. From in or about 1981 until 1992, the plaintiff had little contact with his father: CB 68. Dr Emeleus (a psychiatrist who has treated the plaintiff) records that “[h]e attempted to reconnect with his father around age 30, which did not go well, resulting in another 12 years of estrangement”: Exhibit D3-7 Currumbin Clinic Documents at Page 3. However, Dr Bertucen records that the plaintiff “finally resumed regular contact with his father only in approximately 2018; however, this was tragically curtailed by his father’s death”: CB 68.

26. It appears that from teenage years when the plaintiff had issues with alcohol and drugs his relationship with the defendant was not close – she described him as becoming “more abusive and hostile” as they grew older: CB 127[19]. This is in part confirmed in Dr Bertucen’s report, the plaintiff informed him that he “never had a great relationship” with the defendant: CB 68.

The defendant

27. Upon leaving secondary school, the defendant trained and became a hairdresser: CB 127[17].

28. The defendant appears to have had few intimate partner relationships in her life. She indicates that in her late teens she was in a relationship “which was very toxic”: CB 128[20]. The only other relationship the defendant disclosed in the evidence is with Nicholas Parkes (Mr Parkes) in 2010 – the defendant having entered into a relationship with Mr Parkes for about 6 months: CB 164[21].

Will and estate

The Wills

29. The deceased made a number of Wills during her lifetime.

30. On 24 January 2007, the deceased signed a Will (2007 Will) prepared by Piper Craig Henry Lawyers at Tweed Heads by which she appointed the plaintiff and defendant as executors: Exhibit D7 Page 42.

31. The 2007 Will gave a gift of $25,000 to the defendant and the residue of the deceased’s estate was given to the plaintiff and the defendant as tenants-in-common in equal shares. The Will, nonetheless, directed that her trustees permit the defendant to reside in such dwelling house or strata title unit in which the deceased was residing at the date of her death as a principal place of residence and to have use of the fixtures, fittings and household chattels therein without payment of rent for a term of two years from the date of her death with all payments during the period of occupation in respect of the rates, levies, taxes, insurance, electricity, telephone and repairs (such repairs not being of a structural nature) to be borne by the defendant: Exhibit D7 Page 42.

32. On 9 May 2017, the deceased signed a Will (2017 Will) by which she appointed the defendant and Lesley-Ann Watson as joint executrixes and gave the property at Rous River Way, Murwillumbah NSW 2484 (Murwillumbah property) subject to any mortgage and household contents to the defendant absolutely: cl 4, Exhibit D7 Page 40. The deceased gave the residue of her estate including any amounts sourced from a “MLC Personal Protection Portfolio” account (MLC account) to be held on trust for the plaintiff and the defendant as joint tenants in equal shares: cl 5, Exhibit D7 Page 40.

33. On 10 July 2020, the deceased sent an email to Sean Peters at Peters Lawyers to the following effect:

Hey Sean

Hope you are well?

Just checking to see if you received some changes for my new Will.

Also I would like to add some extra, but not sure if this should go in the Will or in a letter that you keep with my Will.

The reason why Rebecca Clayton is to be left my house/contents/personal jewellery/cash in my bank accounts & 90% of my MLC personal life insurance.

Rebecca Clayton is my daughter & has lived with me during the last 20 years. I have been her Carer whilst she has been unwell & in turn she has taken care of me & in return, especially during my Cancer journey.

I have my name on the Mortgage & the Loan. But Rebecca has contributed her share of her Disability Pension as well, as she contributed her $25,000 inheritance that was left to her from my Uncle’s late Estate. Together with my Carer Pension has maintained the mortgage, rates, utilities, insurances etc. I want to make sure if anything happens to me that there is enough to cover the mortgage so she has a roof over her head & can live comfortably.

So I think this is it. So how do we do this please Sean?

King [sic] regards

Deb Camilleri

34. On 20 August 2020, the deceased executed a Will apparently drafted by Peters Lawyers (August 2020 Will) which had some similarities to her final Will.

35. By the August 2020 Will, the deceased gave her interest in the Murwillumbah property free of any encumbrance and household contents to the defendant absolutely but provided that in the event that the defendant failed to survive her that the plaintiff would take the gift by way of substitution: cl 5, Exhibit D7 Page 37. The deceased directed that her executor and trustee (the defendant) hold her estate to sell and convert it into money including the deceased’s MLC account proceeds and to pay for all debts (including any mortgage over the Murwillumbah property) funeral and testamentary expenses and other fees, costs and expenses associated with the administration of her estate and to give the residue of her estate as to 10% to the plaintiff and the balance to the defendant: cl 6, Exhibit D7 Page 37.

36. On 23 September 2020, the deceased attended upon Robert Parsons (the solicitor for the defendant) (Mr Parsons) providing him with a form of unexecuted Will (which had been prepared by Peters Lawyers at Leumeah: CB 367, 370-372. Mr Parsons made a number of handwritten notations on the document, relevantly including a notation at the end of the draft document as follows (at CB 372):

*ADVISED OVERVIEW OF FPL CLAIM. HIGH RISK OF LITIGATION FROM RYAN – ADVISED DEB TO WRITE A STATEMENT PREFER STAT DEC. DETAILING WHY SHE IS [word unclear] REST + IF BULK OF ESTATE TO REBECCA RYAN HASN’T BEEN A GOOD SON REBECCA + HER HAVE LIVED TOGETHER FOR A LONG [word unclear but could be “time”] SHARE EVERYTHING. REBECCA CARER [word unclear] DIAGNOSIS

37. On 24 September 2020, the deceased made her last Will (last Will), probate of which was granted to the defendant on 13 August 2021: CB 110[6], [7]; 117.

38. Pursuant to the deceased’s last Will the defendant was appointed as executrix and, relevantly, the deceased directed that her estate be held on a trust for sale and conversion into money to enable payment of debts, funeral and testamentary and other expenses associated with her death and the administration of her estate and gave the proceeds of her MLC account as to 10% to the plaintiff and 90% to the defendant: cl 9, CB 102-103, 119-120. The deceased gave the residue of her estate including any inheritance that she might receive from her stepfather Barrie to the defendant: cl 9(c), CB 103, 120.

MLC policy

39. On or about 14 September 2007, the deceased took out a life insurance policy with MLC Ltd (MLC). The MLC policy documents indicate that the life insurance policy was housed by MLC under a product name described as “MLC Personal Protection Portfolio”. The deceased was the policy owner. The type of life cover was described as “Life Cover Standard” (policy): Exhibit JP-2.

40. The actual terms of the life cover policy are not in evidence. Mr Simpson sought to identify the terms by reference to a Product Disclosure Statement (PDS): T 192-193.

41. The PDS indicates that the PDS distinguished between Personal Protection Portfolio (PPP) available outside super and life cover super available inside super through the MLC Super Fund. The description of the PPP (at page 8) describes a summary of the life cover as being “[t]o provide a lump sum payment if you die or you’re diagnosed with a terminal illness” and distinguishes between Life Cover Plus (the highest level of insurance) and Life Cover Standard (the standard level of insurance).

42. Further, part of the PDS (page 13) describes various of the benefits, features and options of life cover insurance. There is reference to another part of the PDS which provides a summary of the terms and conditions for lump-sum insurances (page 54).

43. On that page of the PDS, there is a heading in a middle column described “Life Cover Benefit” which states as follows:

If you die while Life Cover insurance is in force, we will pay the Life Cover Benefit. It is paid to:

• to each Nominated Beneficiary (according to their share of the benefit), or

• your personal legal representative (your estate) if there is no Nominated Beneficiary, or

• the policy owner if they are someone else.

44. On 26 March 2019, the deceased signed a beneficiary nomination form nominating the defendant to receive 100% of the policy benefit (policy benefit): Exhibit JP-2.

45. On 20 August 2020, the deceased signed a further beneficiary nomination form readjusting the allocation of policy benefit such that she nominated the defendant to receive 90% of the policy benefit and the plaintiff to receive 10% of the policy benefit. The 2020 Review Schedule relating to the policy indicates that premiums of $386.65 were paid in respect of the policy monthly. The policy involved a Stepped Premium which was inflation linked and included an additional policy fee: Exhibit JP-2.

46. On 26 August 2020, MLC sent to the deceased an acknowledgement letter recording the deceased’s revised preferred beneficiary nomination: Exhibit JP-2.

47. On 1 June 2021, the defendant’s solicitors emailed MLC providing a certified copy of the deceased’s Will. On the same day, Sara Morovic (a claims consultant at MLC) responded to the email indicating that the claim had been finalised by MLC and accepted effective as at the date of the deceased’s death (13 March 2021) and indicating that the benefit payable was the amount of $360,136. The email indicated each beneficiary would be required to complete or provide certified ID and bank account details in order to release the funds: Exhibit JP-2.

48. On 13 July 2021, MLC sent to the defendant a claim payment letter confirming that the sum of $324,122.40 had been transferred into the defendant’s account to reflect the benefit payment: Exhibit JP-2.

49. On 13 July 2021, the defendant’s solicitors sent an email to the plaintiff’s solicitors addressing a number of matters and relevantly stating as follows (at CB 99):

As of the date of this email probate has not been granted and no assets have been distributed; with the exception of the MLC Fund.

MLC advised our firm that they would distribute direct to the beneficiaries in accordance with the terms of the policy and the nominated beneficiaries. The executor has advised us that that distribution of the MLC fund has already occurred. We note that your client was aware of this process and provided necessary forms to MLC to enable the distribution. Our client has advised that her share of the distribution has been placed into a separate bank account and will not be further dealt with until your client’s claim is resolved; please advise if this is acceptable to you.

We confirm that no further distribution of the estate will take place until your client’s claim is resolved either by mutual agreement, or in accordance with an order from the Supreme Court of New South Wales.

50. There is no specific indication of what, if any, response there was received to that email.

51. On 25 March 2022, MLC sent a letter to the plaintiff noting that a sum of $36,013.60 had been issued as a cheque to reflect the benefit payment to him. It is not entirely clear where the cheque was sent although the letter recorded an address for the plaintiff in Burleigh Street in Burleigh Town, Queensland: Exhibit JP-2. Nonetheless, the plaintiff in his affidavit affirmed on 8 February 2022 stated that the proceeds had been paid directly to the nominated beneficiaries being himself as to 10% and the defendant as to 90%: CB 31[62].

Mortgages over property

52. The amount due on the mortgage over the Murwillumbah property as of the date of the deceased’s death (RAMS Home Loan) was $301,138.27: Exhibit JP-1. Proximate to the time of the hearing (14 March 2023), the defendant indicated that the mortgage amount was approximately $101,000: CB 334[8]. The defendant used proceeds from the amount paid to her from MLC (approximately $324,000) to pay down the mortgage on the Murwillumbah property.

53. The precise amount of proceeds used to pay down the mortgage is unclear. The above figures suggest it was approximately $200,000 ($301,138.27 – $101,000). The joint schedule (Exhibit JP-1) refers to a figure of about $224,000. I will adopt that figure which has been agreed upon by the parties for the purposes of this judgment. The defendant’s updating affidavit discloses that she understands the effect of what she has done is to lend money to the estate to pay its liability and asserts that the funds used were her personal funds subject to any claim for notional estate: CB 334[9], [10].

The estate

54. Pursuant to a pre-trial direction the parties prepared an agreed schedule of assets, liabilities, costs and expenses. The schedule was tendered and became Exhibit JP-1. The details are summarised as follows.

55. As at the date of death:

Assets & liabilities

Asset

Value

Murwillumbah property

(Subject to defendant’s / cross-claimant’s claim for Trust)

$650,000.00

Westpac Banking Corporation

Account No. 032XXX XXXXX X

Account No. 734XXX XXXXX X

Account No. 734XXX XXXXX X

$33,192.54

$964.47

$18.72

Total

$684,175.73

Liabilities

Origin Energy

$435.54

Go Mastercard

$1,468.70

Rams Home Loan No. 005579537

$301,138.27

Total

$303,042.51

Total net value

$ 381,133.22

Potential Notional Estate

MLC Personal Protection Portfolio

Policy No. 3602-1202Y

$360,136.00

56. As at 13 March 2023:

Assets & liabilities

Asset

Value

Murwillumbah property

(Subject to defendant’s / cross-claimant’s claim for Trust)

$850,000.00

Funds retained in defendant’s / cross-claimant’s solicitors trust account

$13,638.72

Total

$863,638.72

Liabilities

Rams Home Loan No. 005579537

$101,000.00

Debt to Defendant

$224,000.00

Total net value

$ 538,638.72

Potential Notional Estate

Amount Received by defendant from MLC	$324,122.40
Amount received or to be paid to plaintiff	$36,013.60.

57. The estimated costs and expenses of real property that is or may be required to be sold is as follows:

Item	Amount
Conveyancing Costs & Disbursements	$2,200.00
Agents Commission and advertising	$25,000.00
Total	$27,200.00

58. As at 15 March 2023, the Murwillumbah property has an appraised market rent between $680 and $720 per week: Elders Real Estate Appraisal at CB 107.

59. Despite the direction for the preparation of an agreed schedule, Mr Simpson, without disputing the “figures”, sought to contend that the net value of the estate was other than as set out above.

60. First, he contended that to the extent that the defendant claims that the estate is indebted to her for the sum of $224,000 (being the sum that she contributed to the mortgage from the proceeds she received from the policy benefit), it fails to take into account a benefit she has received from living at the property rent free for two years since the deceased’s death which benefit he estimates as being a sum of approximately $70,000, based on the above-mentioned appraisal: POS [32], [34]. Mr Brown disputed that: DCS [39].

61. I do not think that it is appropriate to factor into the calculation of the net estate a sum of $70,000 in lost rental income. That is because subject to the family provision claim the defendant has an entitlement to live in the property. Further, if the property were to be rented the estate would be liable to pay tax on whatever rental income was received from renting the Murwillumbah property and, in any event, the defendant would incur a rental expense in having to live elsewhere.

62. Secondly, Mr Simpson submitted that the proceeds of the policy benefit ought to added to the value of the estate in an undefined way as either estate or notional estate: POS [33]-[34], [60].

63. I do not consider that that is an appropriate way of analysing the matter. Whilst it is the case that in the initial administrator’s affidavit the defendant included 90% of the proceeds of the policy benefit as being an asset of the estate (CB 111[10]), it is clear that the proceeds of the policy benefit were not paid to the defendant as the legal personal representative of the estate as such but rather to the plaintiff and the defendant respectively in their capacities as nominated beneficiaries. The proceeds of the policy benefit stand outside the estate subject to the notional estate claim.

64. Thirdly, Mr Simpson analysed the net estate on the basis of the sale of the property and cost of the proceedings including making adjustments for the plaintiff’s costs: POS [35]-[36], [60]. Whilst some account clearly must be taken of the effect of costs in the proceedings it is far from clear to me that the analysis that Mr Simpson has performed gives a reliable figure for the net estate. In any event, the analysis proceeds on the basis that the net estate includes the proceeds of the policy benefit.

Costs

65. The plaintiff’s solicitors are acting for him on a contingency basis such contingency being a condition of a successful outcome defined as settlement of the case, an award by a Court or a financial resolution of the case: CB 89[4]. The plaintiff’s solicitor, Nathan Job (Mr Job), indicates that his firm will only charge the plaintiff for the professional fees in the event of a successful outcome but he will be liable to pay all out-of-pocket expenses including charges, expenses, disbursements or payments to a third party incurred irrespective of the outcome: CB 89[5]. There are no uplift factors included in the calculation of the plaintiff’s costs nor is there any agreement that provides for such an uplift factor: CB 90[6]. As matters presently stand, having regard to an amount of $13,410.35 which the plaintiff has already paid by way of disbursements, as at 9 March 2023, there were no other identified disbursements: CB 89.

66. The estimated costs of each party calculated on the ordinary and on the indemnity basis inclusive of GST are as follows:

Party	Ordinary Basis	Indemnity Basis
Plaintiff	$79,610.00	$108,410.00
Defendant	$70,000.00	$100,000.00
Total	$149,610.00	$208,410.00

67. The costs of the parties that have been paid out of the estate of the deceased or otherwise are as follows:

Party	Costs paid	Amount paid from estate
Plaintiff	$13,410.35	$Nil
Defendant	$Nil	$Nil
Total	$13,410.35	$Nil

Some formal matters

68. The application for the family provision order was filed within time (on 10 February 2022): Summons at CB 1.

69. On 14 February 2023, Ron was served with a notice of claim by registered post: CB 323-326.

Issues

Trust claim

70. The defendant filed a cross-claim on 20 May 2022 seeking a declaration that the Murwillumbah property was held by her as executrix of the deceased’s estate on trust for the defendant’s benefit (personally) absolutely: CB 11.

71. It is well established that a person may not be, at the same time, sole trustee and sole beneficiary of a trust over property: Chief Commissioner of Stamp Duties (NSW) v ISPT Pty Ltd (1998) 45 NSWLR 639 at 648 per Mason P.

72. Notwithstanding that basal principle, if the Court ultimately decided in favour of the cross-claimant’s trust claim, appropriate relief could be fashioned to give effect to the finding that the cross-claimant was beneficially entitled to the Murwillumbah property. That issue has not arisen, however, as I have determined that the cross-claim be dismissed.

73. The trust claim was pleaded to the following effect (CB 11-12):

1. In or about 2003, the deceased orally represented to the defendant that in the event that the defendant paid all her income to the deceased and they shared their expenses the deceased would leave to the defendant all her real property on her death (Representation);

2. in reliance upon the agreement the defendant paid to the deceased effectively all of her income until the deceased’s death which income the deceased used to pay her mortgage and other liabilities;

3. in about 2003, the deceased orally represented to the defendant that if she paid the sum of $25,000 being the inheritance the defendant received from the estate of her great-uncle Kevin the deceased would leave her real estate to the defendant upon her death (Continued Representation);

4. the defendant paid the $25,000 inheritance to the deceased’s Westpac mortgage account;

5. from 2003 until the deceased’s death, the deceased and the defendant equally shared all their expenses including mortgage repayments on each of the properties owned by the deceased up to the time of her death and the defendant continued to grant the deceased free access to all of the defendant’s bank accounts which money the deceased used as her own;

6. in reliance upon the representations from about 2010 to 2015 the defendant assisted the deceased to substantially renovate the Campbelltown villa (see below) and the defendant shared with the deceased the costs of such work and provided personal exertions in carrying out such works; and

7. in 2016, defendant provided “equal input” into the layout, design and decor of the Murwillumbah property which was built.

74. The defendant, apart from the claim of a trust arising by virtue of an estoppel, puts the claim alternatively on the basis of a form of common intention constructive trust that from 2003 they would live together and buy property, share expenses and that upon the deceased’s death the defendant would receive the whole of the deceased’s real property and estate: CB 12-13.

75. The defendant claims that she has suffered detriment in reliance on the representations in that she gave her income to the deceased for 18 years, gave the deceased the sum of $25,000 in 2003 and allowed the deceased unfettered access and control of the defendant’s bank accounts: CB 13[17].

76. The defendant’s claim of a trust was relevantly disputed it being asserted that the defendant did not suffer any detriment as she was doing no more than contributing to her costs of accommodation and living expenses in the home of the deceased, which costs and expenses she would have incurred in any event: CB 17[3].

77. The plaintiff relevantly did not admit the allegations regarding the Representation, the Continued Representation and reliance, and denied the defendant’s allegations of detriment: CB 17.

78. More particularly, the plaintiff asserts that the deceased did in fact leave the Murwillumbah property to the defendant in her last Will and that, accordingly, there is no equitable or other basis for the Court to intervene by imposing a constructive trust or any other remedial measure and that the property forms part of the deceased’s estate and is subject to the plaintiff’s family provision claim: CB 18.

79. I address specifically my findings regarding the trust claim below.

Agreed issues in dispute

80. Pursuant to pre-trial directions, the parties provided an agreed list of issues in dispute as follows:

1. Whether, as claimed in the cross-claim, the Murwillumbah property is held by the defendant as executrix of the estate of the deceased on trust for the defendant absolutely?

2. If the Court determines that the Murwillumbah property is not part of the Estate, whether, having regard to the matters identified in the Succession Act, any part of the property can be designated notional estate?

3. Alternatively, what is the amount and characterisation of payments made by the defendant to the deceased’s mortgage?

4. Whether the proceeds of the MLC policy held by the deceased are part of the actual or notional estate of the deceased?

5. Whether (as contended by the plaintiff) there should be any offsetting for rental charges in respect of the defendant’s occupation of the Murwillumbah property from the date of death or whether those charges should otherwise be taken into account?

6. Whether adequate provision for the proper maintenance, education or advancement in life of the plaintiff has not been made by the deceased for the plaintiff in the Will?

7. If not, should the Court make such an order for provision out of the deceased’s estate and/ or notional estate having regard to the matters identified in the Succession Act?

Real issues

Cross-examination decisions and obligations

81. Without being exhaustive, it is said that the objectives of cross-examination may include:

1. to elicit facts favourable to the cross-examiner’s case;

2. to confirm facts given in chief;

3. to show that the witness is not credible which may include examination, prior inconsistent statements, bias, corruption and lack of veracity;

4. to put the cross-examiner’s case to the witness so that it may be known and commented upon; and

5. to force the witness to qualify a generalisation: Halsbury’s Laws of Australia – Evidence, Cross-examiner (online) at [195-7890].

82. Cross-examination is not a test of willpower or cleverness. It is the opportunity for the relevant party to expose flaws, qualifications or doubts about the other side’s evidence in order to persuade the Court to accept or reject evidence. It enables the Court to have a full opportunity to evaluate the parties’ opposing cases: Gooley v Gooley [2021] NSWSC 56 (Gooley) at [1152] per Sackar J.

83. Clearly, questions of onus of proof will impact upon decisions for cross-examination.

84. However, the decision to cross-examine is not dictated solely by questions of onus of proof. It is also impacted by questions of fairness to witnesses as established by the decision of the House of Lords in Browne v Dunn (1894) 6 R 67 (Browne v Dunn).

85. In Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1, Hunt J stated at 16C-E as follows:

It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn (1894) 6 R 67.

86. In West v Mead [2003] NSWSC 161; (2003) 13 BPR 24,431 (West v Mead), Campbell J (as his Honour then was) noted (in the context of the obligation of procedural fairness) that the circumstances in which the rule in Browne v Dunn will require matters to be put to a witness in cross-examination will depend upon the nature of the pre-trial preparation there has been, and whether that pre-trial preparation has been sufficient to give notice to a witness of the submission ultimately intended to be put to the Court: at [98].

87. Further, his Honour noted that even where there has been an exchange of affidavits or statements, the rule in Browne v Dunn will require a cross-examining counsel to put to a witness the implications which counsel proposes to submit can be drawn from the evidence if those implications are not obvious from the evidence, or from other pre-trial procedures, or the course of the case: at [99].

88. For the purposes of the application of the rule in Browne v Dunne the case that a party is called upon to meet may be made evident by written opening submissions: e.g. Meissner v Lindsay [2016] NSWSC 790 at [80] per Robb J.

89. The consequences of a failure to cross-examine may vary in any given case depending on the relevant circumstances: Starr v Miller; Starr v Miller [2021] NSWSC 426 at [366]-[367] per Hallen J; Gooley at [1147]-[1158]. A trial judge is not required to accept evidence merely because it is unchallenged. The fact that evidence is unchallenged may provide a cogent reason for its acceptance. However, ultimately, it depends upon the nature of the evidence including, for example, whether the unchallenged evidence is ex facie illogical or inherently inconsistent: Taupau v HVAC Constructions (Queensland) Pty Limited & Ors [2012] NSWCA 293 at [130] per Beazley JA (as her Excellency then was), with whom Basten (as his Honour then was) and Macfarlan JJA agreed, citing Hull v Thompson [2001] NSWCA 359 at [21] per Rolfe AJA (Sheller JA and Davies AJA agreeing).

90. Nonetheless, according to the ordinary conventions of the adversarial system, when a party does not cross-examine on evidence relating to a significant issue in a case, that party is taken to concede the point: Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187 (Goodrich) at [117] per Ipp JA (Mason P at [1] and Tobias JA at [126] agreeing).

91. On the other hand, it has been said that a cross-examiner’s job is not to make out a party’s case for her (or him). If the evidence is insufficient, it may be perfectly sensible for a cross-examiner not to provide an opportunity for the party to overcome the deficiencies: Evans v Levy [2011] NSWCA 125 (Evans v Levy) at [41]-[43] per Young JA (Campbell JA and Sackville AJA agreeing) .

92. Thus, where there is an absence of evidence from the party on a particular issue, the Court is entitled to take the view that if a witness could have given the Court appropriate details and evidence, but has not done so even though legally represented, then the Court can assume that the person involved is not in a position to go any further than she (or he) did: Evans v Levy at [43] citing Commercial Union Assurance Co of Australia Limited v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418-419 per Handley JA.

93. Parties to civil proceedings are under a duty to assist the Court to further the overriding purpose to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56(1), (3) Civil Procedure Act 2005 (NSW) (CPA).

94. The effect of the overriding purpose upon forensic decisions made regarding the calling of evidence, reading of affidavits and cross-examination arises from time to time in litigation.

95. Such a principle has been in operation in this Court since at least 1 March 2000, at least five years prior to the 2005 civil procedure reforms: Supreme Court Rules (Amendment No. 337) 1999 (NSW) at [8], [9] (see e.g. Mobile Innovations Limited v Vodafone Pacific Limited [2003] NSWSC 309).

96. Legal representatives are under a related duty not to put their client in breach of that obligation: s 56(4) CPA. The existence of this duty is not remote from the operation of the principle in Browne v Dunn and might well in some cases qualify the principle in Browne v Dunn. I consider that there will be times in which the Court can properly expect counsel to cross-examine on the real issues in the proceedings so as to assist the Court to further and achieve the overriding purpose.

97. Further, the effect of the power of the Court to regulate cross-examination in proceedings (pursuant to s 62(1), (2), (3)(a), 4(a) and (5) CPA) might in some cases qualify the principle in Browne v Dunn, subject not to detracting from the principle that each party is entitled to a fair hearing: s 62(4) CPA.

Cross-examination in family provision proceedings

98. The plaintiff in a family provision claim has the onus of establishing the threshold jurisdictional issues in relation to eligibility: ss 57 and 59(1)(a).

99. Eligibility “jurisdictional” questions are different from the question which arises under s 59(1)(c): Page v Page [2017] NSWCA 141 at [38]-[41] per Leeming JA.

100. A decision under s 59(1)(c) Succession Act as to whether adequate provision has been made for the proper maintenance, education and advancement in life of an eligible applicant is an evaluative decision in the sense that the Court must undertake an evaluative exercise in balancing all of the principles and factual considerations: e.g. Chisak v Presot [2022] NSWCA 100 at [61] per White JA (Macfarlan and Gleeson JJA agreeing); Sun v Chapman [2022] NSWCA 132 at [5]-[13] per Leeming JA and at [115] per White JA; Cooper v Atkin [2020] NSWSC 828 at [203] per Hallen J.

101. The decision under s 59(1)(c) is one to which various pieces of evidence from both parties are apt to contribute and which need to be assessed and evaluated.

102. Whilst it is in one sense correct to say that decisions regarding eligibility and decisions regarding adequacy of provision both involve an onus of proof in the sense of the plaintiff establishing to the Court’s satisfaction that affirmative answers ought be given, the decision under s 59(1)(c) involves an assessment of factors to which each of the parties and their legal representatives will need to make important decisions in respect of an evidentiary burden, regarding what evidence is adduced, objected to and tested.

103. In contradistinction to an applicant, beneficiaries (who are not making a claim) are entitled to elect not to make disclosure about their financial resources and needs. A beneficiary may remain silent about her financial resources and needs, and simply look to the Court to not disregard the deceased’s freedom of testamentary disposition and the deceased’s preferable disposition to her as the sole beneficiary, regardless of her financial position or needs: Jodell v Woods [2017] NSWSC 143 at [29]-[30] per Hallen J citing Sammut v Kleemann [2012] NSWSC 1030 at [137]-[140] per Hallen J.

104. However, s 61(1) Succession Act provides that a beneficiary’s interests cannot be disregarded in determining an application for a family provision order.

105. Family provision proceedings quintessentially involve important choices for counsel in cross-examining. It is a matter for counsel using their professional expertise to assess what matters need to be put before the Court and in what detail: Blackett v Darcy [2005] NSWSC 65 at [53] per Young CJ in Eq (as his Honour then was).

106. It is very awkward for a judge in family provision proceedings when there is a significant issue which is not tested in cross-examination: Nicholls v Hall [2006] NSWSC 1377 at [19] per Young CJ in Eq (as his Honour then was).

107. In many, if not most, family provision applications questions of financial needs and competition for their satisfaction out of the estate are prominent because of the limited scale of the resources available: Lloyd-Williams v Mayfield (2005) 63 NSWLR 1; [2005] NSWCA 189 (Lloyd-Williams v Mayfield) at [29]-[31] per Bryson JA (Giles JA and Stein AJA agreeing). Exceptional cases exist where the estate or potential notional estate is so large that the beneficiary who might bear the burden of any order for provision does not put financial circumstances in issue or even if they are put in issue the reality is that an order will not have any significant adverse effect on the wellbeing of such beneficiary: Lloyd-Williams v Mayfield at [31].

108. However, exceptional cases aside, in most family provision cases there is a significant issue as part of the Court’s overall evaluative assessment under s 59(1)(c) for the Court to be enabled to properly understand the impact that a shifting of property resources away from a beneficiary in favour of an applicant will have on each of those respective parties. I consider that in most cases the Court ought to be able to properly expect cross-examining counsel to address that issue so as to enable the Court to have a full opportunity to evaluate the parties’ opposing cases (Gooley at [1152]) and to assist the Court to further and achieve the overriding purpose of the litigation.

The focus of the dispute

109. In the written opening submissions, there was a particular emphasis on the Murwillumbah property. Indeed, Mr Simpson stated that “the focus of the dispute seems to be whether the Murwillumbah property should be sold”: POS [7].

Defendant’s competing claim to retain the Murwillumbah property

110. The defendant, in her first substantive affidavit in chief (4 April 2022), provided some detail regarding her sharing of expenses with the deceased and contributions to the deceased’s property: CB 129[29], 133[62]. However, she did not provide any significant detail regarding her claim to retain the deceased’s estate other than stating that she would like to be free of debt and able to have a roof over her head. She indicated that, with the exception of receiving an inheritance, there is no possibility of her ever owning her own home and that she would be renting for the rest of her life and be dependent on rent assistance and other subsidies: CB 135[77], [80].

111. However, in July 2022, the defendant provided more detail regarding her financial arrangements with the deceased in respect of living expenses and contributions to the real property or homes in which the deceased and the defendant lived: CB 161-166.

112. Finally, in her updating affidavit, the defendant indicated that she would need the $70,000 sum (in her projected savings) to draw on to buy new items or maybe a newer car in the future indicating that it was her only nest egg: CB 336[23]. The defendant stated that she has no intention to otherwise sell her home (in context, a reference to the Murwillumbah property) stating that it is “a wonderful place where I can remember my mum and all the happy times we had together”: CB 335[16]. She further indicated that it was her desire to receive the (Murwillumbah) property and continue the payment of the balance of the mortgage: CB 335[10].

113. The defendant asserted that she would never be able to work and had no ability to ever raise a small capital fund, which evidence was received but limited under s 136 Evidence Act 1995 (NSW) (Evidence Act) to her belief regarding those matters: CB 335[18], [20].

114. In his written opening, Mr Simpson submitted that the Murwillumbah property should be sold intimating that there was no good reason why the defendant required such accommodation. He stated (in the POS):

7. … It is a three or four bedroom house that the defendant has only lived in since December 2017. Since the deceased’s death, the defendant has lived there alone and has no children or other dependants. She recently inherited $189,000 from another estate. The plaintiff says there is no reason the house cannot be sold and adequate alternative accommodation secured by the defendant which is more in keeping with her needs. This would allow some further provision to be made for the plaintiff.

…

90. Total provision in the order of $300,000 would most likely require the sale of the Murwillumbah property. The defendant does not, in her evidence, refer to any reason why she needs to remain in the house the deceased owned, or why a townhouse or unit would not be appropriate. Her evidence does not countenance any alternative to her staying in the house. Provision for the plaintiff of that order would leave the defendant with about $450,000 from the estate plus the $189,000 she inherited, a total of about $639,000 (excluding the costs consequences of the cross-claim, which the plaintiff submits should not be taken into account for these purposes).

115. Mr Simpson submitted that his proposal for provision for the plaintiff would not leave the defendant without accommodation. Rather, he submitted that the defendant would have the means to purchase accommodation it just would not be the 3-to-4-bedroom house which she shared with her mother but could be a two-bedroom townhouse or apartment: T 205.

Absence of cross-examination

116. After the evidence was complete and during the course of submissions, I noted that Mr Simpson did not cross-examine the defendant on her claim to retain her accommodation.

117. Mr Simpson submitted (T 205–206) that:

1. the defendant had not effectively set up any competing case as there was no evidence to the effect that she had a medical condition which would prevent her from moving out of the house or whether she had material stored in other rooms or whether she needed to stay in a single-storey house or that the house could not be effectively sold because of certain matters;

2. as no such matters were pleaded or put in evidence by the defendant accordingly, he had no need or obligation to cross-examine to test the effect of any competing claim of the defendant to retain the benefits given to her;

3. that to expect him to cross-examine the defendant would in substance be reversing the onus requiring him to prove that she did not have a need to stay in the house;

4. in a family provision claim he simply bore the onus of proving his client’s (the plaintiff’s) need and adequacy of provision and that if the defendant wished to set up a case of competing needs, she bore the onus of that; and

5. to require him to challenge the defendant’s case of a competing need to retain the property that is left to her would place an unfair burden on the cross-examiner.

118. Whilst it is true that the defendant did not in pre-hearing affidavits go into detail regarding the characteristics of the Murwillumbah property and discuss potential alternatives to the Murwillumbah property and why they might be satisfactory or not satisfactory, the forensic framework of the case at the commencement of the hearing very clearly set up as an issue the defendant’s claim to retain the entirety of the Murwillumbah property without it being sold.

119. Fundamentally, the defendant’s case against sale of the Murwillumbah property was set up by the cross-claim that sought a declaration that the entirety of the property was held on trust for the defendant.

120. Further, the defendant’s case against sale of the Murwillumbah property was reinforced by her evidence that she had no intention to sell the Murwillumbah property and that it was her desire to receive the property and continue to pay the balance of the mortgage and that it was a wonderful place where she could live. I understand that a corollary of her position is that other accommodation was not sought nor a desirable alternative.

121. I consider that Mr Simpson’s opening submission that “the focus of the dispute seems to be whether the Murwillumbah property should be sold” (POS [7]) struck closely to the heart of a critical issue in the matter, in the sense that an award of the level of provision which the plaintiff is seeking ($300,000 or more) would inevitably require sale of the Murwillumbah property.

122. The defendant’s opening submissions that the Court should make the declaration of trust sought regarding the Murwillumbah property or in the alternative should not disturb the testamentary freedom enjoyed by the deceased given the contributions of the defendant reinforced the forensic tension regarding the issue as to whether the Murwillumbah property was in some way quarantined from being available to meet a claim for provision or otherwise able to be sold: see e.g. DOS [66].

123. It is evident that the estate had extremely limited cash funds ($13,000) and the defendant did not have available to her other funds which might provide a source of payment to the plaintiff without sale of the Murwillumbah property.

124. First, she has a sum of $100,000 which had been placed in the defendant’s solicitor’s trust account and earmarked in a practical sense for paying legal costs. However, it would be wrong to say that that fund was readily available to her without claims on it. If an order was made for provision to the extent that she used any part of that fund to discharge an order for provision she would be without those funds to pay for legal costs.

125. Secondly, the defendant has paid down a sum of $224,000 on the mortgage of the Murwillumbah property. That money is gone other than any possibility that it might be redrawn. There was no evidence about terms or conditions that might apply to permit the defendant to redraw on the mortgage. Even if the defendant were able to redraw the mortgage the extent of financial pressure that might place on her to continue to meet mortgage repayments was not explored.

126. In the above circumstances, it was self-evidently important to assist the Court to work out the comparative financial impacts upon each of the plaintiff and the defendant of any order for provision to understand the potential impacts of sale of the Murwillumbah property.

127. On the third (and final) day of the hearing, Mr Simpson sought to read an affidavit of his instructing solicitor, Mr Job, affirmed 26 March 2023 (the day before the hearing commenced) annexing a number of online searches for properties being one- and two-bedroom units and a detached duplex in the Murwillumbah and Tweed Heads region, such searches conducted through the website The affidavit annexed searches of four properties being relevantly a two-bedroom one-bathroom unit at Tweed Heads for $520,000, a one-bedroom one-bathroom apartment with parking at Tweed Heads for $450,000, a two-bedroom one-bathroom unit at Tweed Heads West with a price guide of $450,000-$470,000 with parking and a two-bedroom one-bathroom duplex semidetached property at Murwillumbah with garage for $500,000.

128. Mr Brown objected to the reading of the affidavit: T 165. Mr Simpson indicated that the evidence was relevant as to what property was available to either the defendant or the plaintiff (T 166.34, 167.30), not merely updating evidence in relation to the plaintiff’s accommodation.

129. Mr Simpson, following further discussion about the admissibility of the affidavit, specifically indicated that it was relevant as to the defendant’s position noting that it had always been the plaintiff’s case that the house will inevitably need to be sold and that if the Court were to come to a conclusion that the provision of the amount sought by the plaintiff should be awarded that inevitably the defendant would have to find other accommodation but she had not put on any evidence as to why she could not live elsewhere or what might impede that or why she needed [to live in] the particular house she is in: T 168.1-10.

130. I admitted the affidavit noting that in any event the defendant would be able to be cross-examined on the material: T 168.22-23.

131. There was not time for the defendant to swear any responding affidavit or otherwise respond to that material. If Mr Simpson wished to put a submission that the Murwillumbah property should be sold as the defendant has, as an option, the availability of other accommodation such as units referred to in Mr Job’s affidavit, as a matter of fairness such material needed to be put to the defendant.

118. Mr Simpson ultimately submitted that instead of living in a $850,000 house the defendant could live in a $600,000 or $550,000 townhouse as a single person and there is no reason why that would not be adequate for her: T 207.

119. I infer there were proper forensic reasons for Mr Simpson not cross-examining the defendant in relation to conversations said to support the Representation and Continuing Representation. That is because, as Mr Simpson correctly submitted, there was no evidence from the defendant regarding discussions with the deceased in 2003 in support of the Representation and Continuing Representation.

120. However, the forensic decision not to challenge the defendant (in relation to the family provision claim) on her claim to retain the Murwillumbah property arising from contributions she had made to it and her having no intention to otherwise sell her home and a desire to stay there as it is “a wonderful place” and would evoke happy memories for her (CB 335[16]) was more problematic.

121. The Court would have been assisted by further evidence understanding the impact upon the defendant of the sale of the Murwillumbah property including testing what other accommodation options might appropriately be available to her.

Evidence

Affidavits

136. On the hearing, each of the plaintiff and defendant read and relied upon substantive affidavits only from themselves.

137. There were formal affidavits read on each side. The plaintiff read an affidavit (as to costs) of his solicitor, Joshua Allan. The defendant read affidavits (as to service of notice of claims and death of Ian) of Mr Parsons, solicitor, and an affidavit (as to costs) of Mr Job. None of those solicitors were required for cross-examination.

138. The plaintiff in his updating affidavit provided a report from a psychiatrist, Dr Bertucen. Although Dr Bertucen did not swear an affidavit he was required for cross-examination in the proceedings and was cross-examined via audio visual facility on the third day of the hearing.

Documentary evidence

139. Each party, apart from affidavit evidence, adduced documentary material. The documentary material included bank account records, medical documents in the form of reports from a psychologist and psychiatrists and documents from a mental health clinic. There were other materials including account statements from a mortgage lender (RAMS) and materials subpoenaed from an employer of the plaintiff (Ausdrill).

140. During the hearing, Mr Brown and those assisting him played on a computer three thumb drives of four videos which were shown to the plaintiff during cross-examination via the footage being displayed on a screen set up on the bar table directed to the witness box and viewable by the plaintiff and myself. The thumb drives, with the exception of the video from the final footage being tendered only from a timing of 20 minutes and 54 seconds, became Exhibit D4: T 124.

141. On the morning of the final day of the hearing, the parties tendered a bundle of documents from a subpoena issued to MLC including the form of PDS. Those documents become Exhibit JP-2: T 145.

Plaintiff’s production under a notice to produce

142. On or about 14 March 2023, the defendant’s solicitors served on the plaintiff’s solicitors a form of notice to produce in relation to various matters bearing upon his financial circumstances including account statements in relation to banking arrangements and credit cards, tax returns and assessments, financial documents in relation to companies, registration papers for motor vehicles, superannuation accounts, cost agreements, insurance policies (including BUPA health insurance), rental agreements and employment records: Exhibit D5.

143. Late in the evening on 14 March 2023, Mr Job responded to Mr Parsons regarding the notice to produce asserting that the return date for the notice to produce (seven days) was “absurdly short” but, notwithstanding that, the plaintiff would endeavour to produce what he could prior to the hearing: Exhibit P1.

144. Subsequently, on 21 March 2023, Mr Job emailed a letter to the defendant’s solicitors referring to the notice to produce confirming that there had been production to the Court of “those documents which our client was able to provide in the absurdly short timeframe provided, and further noting that our client was again admitted to the Currumbin clinic on Monday, 20 March 2023”. The letter continued stating: “[w]e are instructed our client is not expected to be discharged from Currumbin Clinic until Saturday, 25 March 2023 and accordingly we do not expect our client to be in a position to provide any further documents prior to the commencement of the hearing on 27 March 2023”: Exhibit P1.

145. Materials from the production were collated by the defendants and tendered in the proceedings: Exhibit D3-7 (Notice to Produce documents Tab). The entirety of the documents produced were (T 87):

1. a statement for the Westpac account ending 708 – 21 February 2023 (closing balance $80,000);

2. statements for the Westpac account ending 955 – 28 February 2022 to 28 February 2023 (closing balance $8,283.04);

3. statements for the Westpac account ending 338 – 30 November 2022 to 31 January 2023 (closing balance $1,792.42) coupled with an additional printout up to 15 March 2023 disclosing further transactions;

4. 7 tax returns for the financial years ended 30 June 2014 to 30 June 2021 (with the exception of the financial year ended 30 June 2017);

5. 6 company financial statements for Coastal Abundance Pty Ltd (Coastal Abundance) for the financial years ended 30 June 2015 to 30 June 2021 (with the exception of the financial year ended 30 June 2017);

6. 7 company tax returns for Coastal Abundance for the financial years ended 30 June 2014 to 30 June 2021 (with the exception of the financial year ended 30 June 2017); and

7. costs agreements with Somerville Laundry Lomax dated 21 September 2021 and 17 November 2022 and counsel’s costs agreement.

146. The plaintiff failed to produce any documents in relation to:

1. his personal National Australia Bank (NAB) accounts: T 87, 112;

2. bank statements for Coastal Abundance: T 35, 87;

3. credit card statements: T 87, 88, 124;

4. registration papers for motor vehicles: T 87, 90;

5. superannuation accounts for two years prior to the notice: T 42, 87;

6. insurance policies including BUPA Health insurance from 1 January 2021 to the date of the notice: T 87, 88 cf T 35);

7. any rental agreement in respect of the unit at Peacock Place Burleigh Waters: T 87, 90;

8. employment records including materials regarding his employment with Ausdrill: T 87.

147. The plaintiff, when pressed in cross-examination regarding production under the notice to produce, was not sure if he had seen the notice to produce. He asserted that “I just had a couple of things on an email that said I had to produce bank accounts, registration papers” (T 91) and “[t]here was a couple of little things on my email that said you've got to have a bank account, business, personal and any bank accounts, business or personal and rego papers, that's all I can think of that was on there”: T 92.

148. The email from Ms Anderson to the plaintiff dated 15 March 2023 attached the notice to produce (as well as an authority to MLC and various subpoenas). In relation to the notice to produce the email said “please review the documents sought and provide us with what you can”: Exhibit D5. There was no qualification in relation to the email suggesting that only a “couple of little things” as suggested by the plaintiff were being sought.

149. The plaintiff indicated “I’m guessing so” in response to a question that the only reason why he knew he had to produce bank statements was because he had opened the notice to produce attached to the email: T 92.

150. In relation to whether his memory was refreshed by the fact that to know what to produce he had to open the email he said (at T 93):

A. I can tell you, I can tell you that I was quite overwhelmed with thinking that I have to do this, but then I was understanding that you subpoenaed everything from these people anyway, so I didn't have to give you everything, because you were getting it directly from them anyway. I thought that's what a subpoena was.

151. Evidence regarding the plaintiff’s superannuation was not entirely clear. He asserted that he sent some superannuation documents to his lawyers. However, it appeared that there was another superannuation account that he has through Ausdrill: T 89-90. In either case, no superannuation statements from any account held by the plaintiff were produced pursuant to the notice to produce (T 87) nor tendered in evidence on his behalf.

Fact finding

152. In assessing the evidence in the proceedings, I have approached and weighed the evidence having regard to objective surrounding facts which are either undisputed or established by contemporaneous documents and the inherent probabilities of life as they bear upon the events: see e.g. In the matter of Hoju Jobs Pty Ltd [2021] NSWSC 302 at [77] per Williams J at citing, inter alia, Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at 129 per Gleeson CJ, Gummow and Kirby JJ.

153. Ultimately, there was quite a large body of documentary material tendered in the proceedings. I have had particular regard to contemporaneous documentary material including title searches and certificates for the purposes of establishing a number of the facts in the matter.

154. The background facts that I set out should be regarded as findings of the Court unless qualified or otherwise indicated.

155. However, in dealing with certain of the contested issues I have separately addressed those issues below when addressing issues regarding the credit and reliability of the parties and various witnesses.

Competence and credit issues

Competence to give evidence

156. A person is presumed to be competent to give evidence unless the contrary is shown: s 12 Evidence Act; R v Brooks (1998) 44 NSWLR 121.

157. A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability), the person does not have the capacity:

1. to understand a question about the fact; or

2. to give an answer that can be understood to a question about the fact; and

3. that incapacity cannot be overcome: s 13 Evidence Act.

158. A lack of response per se or a nonresponsive answer to a question does not necessarily demonstrate a lack of understanding of the question nor inability to give up a comprehensible answer: The Recyclers (NSW) Pty Ltd v Ayoub [2016] NSWSC 144 (Ayoub) at [17]-[20] per Stevenson J.

159. The law distinguishes between competency to give sworn evidence or unsworn evidence and the provisions of s 13 Evidence Act address that distinction.

160. No party bears the onus of proving competence or lack of competence: R v Medich (No 40) [2018] NSWSC 374 (Medich) at [33] per Bellew J.

161. The issue is one for determination by the Court on the balance of probabilities: Medich at [33] and Ayoub at [24] both citing RA v R [2007] NSWCCA 251; (2007) 175 A Crim R 221 at [11] per Harrison J (McClellan CJ at CL and Howie J agreeing).

162. The fact that a witness suffers from a challenging mental condition may in any given circumstances be relevant or highly relevant to assessing competency. However, the mere fact that a witness has a mental health condition for example bipolar affective disorder or major depressive disorder does not necessarily preclude a finding of competency: Ayoub at [33]-[35].

163. Further, the fact that a person with any of those diagnoses might find answering questions in Court to be stressful or challenging does not per se preclude a finding of competency: Ayoub at [55].

164. Competency to give evidence may need to be monitored during the hearing and at times dealt with on a question-by-question basis: Ayoub at [55].

Capacity to give instructions

165. A person under legal incapacity includes a person who is incapable of managing his or her affairs: r 7.13 Uniform Civil Procedure Rules 2005 (NSW) (UCPR). The expression “person under legal incapacity” is defined in s 3 CPA and means any person who is under a legal incapacity in relation to the conduct of legal proceedings.

166. A person under a legal incapacity may not commence or carry-on proceedings except by his or her tutor: r 7.14(1) UCPR.

167. An application for appointment of a tutor may be made by the Court of its own motion: r 7.18(6) UCPR. Where the Court forms the view that a tutor is required, the Court may stay the proceedings unless and until a tutor has been appointed.

168. The principles regarding the test of whether a person is capable of managing his or her own affairs have been set out by Sackar J in Bowering v Bowering [2014] NSWSC 1107 (Bowering).

169. It has been said that the Court in addressing questions of capacity to instruct has an important role to play in protecting the interests of a clearly vulnerable person: Bowering at [59]. That role is even more important where the application to appoint a tutor is opposed even by the party’s own legal representatives.

170. In Bowering, having regard to the circumstances of that case and the second defendant’s chronic psychiatric condition, Sackar J determined that he was vulnerable and potentially agreeable and/or apathetic and was concerned to ensure that decisions made by him in relation to the proceedings were being properly made. In the circumstances of that case, his Honour ordered that a tutor be appointed for the second defendant.

Competence and capacity of the plaintiff

171. The plaintiff was called to give evidence on the afternoon on the first day of the hearing. The cross-examination proceeded and during the course of the cross-examination, at close to 2:30 PM that afternoon, the plaintiff began to weep when questioned regarding discussions with his late mother.

172. Mr Brown, the cross-examiner, indicated to the plaintiff that if he would like to take a moment he could pause. I adjourned briefly to enable the plaintiff to have some time to see if he could calm himself.

173. The matter resumed. The cross-examination proceeded. Notwithstanding that, the plaintiff still at times wept. I further permitted the plaintiff to leave the witness box and go outside the Court and then addressed counsel. With the consent of Mr Brown, I requested Mr Simpson to go outside to speak with the plaintiff to make a forensic decision as to whether he considered that the plaintiff was able to return to the witness box and for Mr Simpson to report back to the Court. The Court adjourned for a further time. Upon the resumption, at close to 3:15 PM, Mr Simpson requested an adjournment until the following morning which adjournment was not opposed. I asked both counsel to consider a number of issues and, in particular, the competence of the plaintiff to continue to give evidence particularly in light of the medical evidence to which I refer below.

174. Ultimately, overnight the plaintiff was able to speak by telephone to Dr Emeleus. Dr Emeleus conducted an urgent clinical review and prepared a short-written report that evening, which report was the following morning (the second day of the hearing) tendered by Mr Simpson and marked as Exhibit A1.

175. In substance, the report indicated that in consultation with Dr Emeleus the plaintiff and she were both of the view that it was in the best interests of his mental health to proceed to give evidence “because leaving this matter unresolved is causing him significant and ongoing distress”. Dr Emeleus, in the report, requested that consideration be given to allowing the plaintiff regular planned breaks, to have cold water available, and that if he felt himself becoming overwhelmed to allow him to request a short break.

176. Whilst I had a concern regarding the plaintiff’s capacity to conduct the proceedings, Mr Brown submitted that he ought to be allowed to continue to cross-examine the plaintiff at least for a short period of time. Ultimately, that was not opposed by Mr Simpson.

177. It became evident that part of Mr Brown’s purpose in seeking some small amount of time to cross-examine the plaintiff at that stage was to confront the plaintiff with a series of videos recording his activities on 18 and 19 March 2023 (Exhibit D4), with the intent at least initially of demonstrating that the plaintiff did not suffer from a lack of competence or incapacity, and if such competence existed, more particularly (as I refer to below) for the purpose of eventually demonstrating that the plaintiff’s health and capacity to work was not severely inhibited.

178. As events transpired, the plaintiff continued to give evidence on the second day and on the third and final day of the hearing.

179. Ultimately, neither counsel suggested that the plaintiff was incompetent to give evidence.

180. Overall, my assessment was that the plaintiff was competent to give evidence. He was capable of understanding questions asked of him, was capable of giving a comprehensible answer and the mere fact that the plaintiff may have found answering the questions stressful and has some mental health issues stemming from anxiety did not preclude a finding of him being competent to give evidence: Ayoub at [17]-[20], [33]-[35], [55].

181. There was a second issue that I raised with counsel being the plaintiff’s capacity to give instructions to conduct the proceedings.

182. On the third day of the hearing, whilst the plaintiff was being cross-examined regarding messaging on a dating app, he became unresponsive again: T 152. The evidence was

Q. Just to be clear, on Bumble you have chat between people before you actually share details, is that correct?

A. I'd rather not talk about any of it.

183. That answer per se was not an indication that he could not understand the question or give a comprehensible answer. The plaintiff sat in the witness box with his head down, unresponsive, for a period of well over a minute and a half. I adjourned the matter to again allow him to compose himself.

184. Following the conclusion of the plaintiff’s cross-examination, Mr Simpson did not wish to re-examine the plaintiff. He sought and I permitted a short adjournment to assess the plaintiff’s capacity to continue to give instructions: T 154-155.

185. On the assumption of the hearing no application was made by Mr Simpson to adjourn the proceedings or to intimate that the plaintiff was other than capable of continuing to give instructions.

Credit and reliability of the plaintiff

186. The initial presentation of the plaintiff on the first day of the hearing was a degree troubling.

187. Nonetheless, as the hearing progressed, and the plaintiff was confronted with video material and otherwise cross-examined, I was satisfied that the plaintiff was both competent to give evidence and had an opportunity to be able to assess his evidence over a period of three days.

188. The plaintiff presented at times whilst being cross-examined with a relatively “flat” demeanour. In Prouten v Chapman [2021] NSWCA 207, Meagher and Leeming JJA commented at [12] that for many decades judges have been conscious of the limitations of their ability to discern anything meaningful from the demeanour of a witness citing the remarks of Ipp JA (Mason P and Tobias JA agreeing) in Goodrich Aerospace at [23]-[25], who collected statements by Sir Thomas Bingham, Lord Devlin, Browne LJ, MacKenna J and Sir Richard Eggleston QC to support the proposition that “it is no wonder that judges and jurists of the highest eminence have expressed deep scepticism about the reliability of demeanour findings.”

189. Ipp JA remarked that “[w]itnesses may be dishonest about only parts of their evidence. Nothing is more deceitful than half the truth. Care must be taken to differentiate between assessing whether a witness is being honest or deceitful, and whether a truthful witness is giving accurate or inaccurate testimony”: Goodrich Aerospace at [20].

190. I am particular mindful of the dangers of assessing demeanour in a context in which a witness has some mental health issues.

191. In particular, to assess the plaintiff’s evidence I have had regard to prior inconsistent statements, other contemporaneous documentary materials, the defendant’s evidence which I generally accept and the inherent probabilities of events being as deposed by the plaintiff.

1. a transaction that took effect or is to take effect on or after the deceased person’s death.

621. Where a transaction takes effect on or after a person’s death there is no further requirement to prove the intent with which the transaction was entered into or to go into issues regarding whether the deceased had a moral obligation to make adequate provision for an eligible person which was substantially greater than the moral obligation of the deceased to enter into the transaction: see s 80(2) Succession Act.

622. Fifthly, by reason of the s 83(1)(a) Succession Act, the Court must not make an order under s 80 unless satisfied that, inter alia, the relevant property transaction disadvantaged the deceased’s estate or the eligible person’s entitlement to apply for a family provision order.

623. Sixthly, by s 87 Succession Act, the Court must not make a notional estate order unless it has considered various matters including the importance of not interfering with reasonable expectations in relation to property, the substantial justice and merits involved in making or refusing to make an order and any other matters it considers relevant in the circumstances.

624. The reasonable expectations to be considered in relation to the property under s 87(a) Succession Act are those of the defendant but by the same token the Court should also consider the reasonable expectations of the deceased and also possibly the reasonable expectations of the plaintiff: Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4 at [105] per Beazley P (as her Excellency then was), with whom Meagher JA agreed.

625. Seventhly, when determining what property should be designated as notional estate, the Court must have regard to the matters enumerated in s 89(1)(a)-(e) Succession Act and must not designate as notional estate property that exceeds that which is necessary: s 89(2).

626. Further, if, as a result of a relevant property transaction or of a distribution from the estate of a deceased person or from the estate of a deceased transferee, property becomes held by a person as a trustee only, the Court must not designate as notional estate any property held by the person other than the property held by the person as a trustee as a consequence of any such relevant property transaction or distribution: s 89(3).

627. Finally, property may be designated as notional estate under s 80 if it is property that is held by, or on trust for a person by whom property became held as the result of a relevant property transaction, whether or not the property was the subject of the relevant property transaction: s 80(3)(a) Succession Act; Charnock v Handley [2011] NSWSC 1408 at [180]-[196] and, particularly [191] per Hallen AsJ (as his Honour then was).

Notional estate claim regarding the Murwillumbah property

628. Ultimately, in light of the findings I have made regarding the trust claim it is not necessary to make a finding on this issue. However, should I be incorrect in relation to the trust claim I briefly address the claim that the Murwillumbah property is liable to be designated as notional estate.

Plaintiff’s submissions

629. Mr Simpson submitted that a promise to leave an asset by Will does not take the asset outside the reach of Ch 3 of the Succession Act: citing Barns v Barns at [32]-[33] per Gleeson CJ, at [115] per Gummow and Hayne JJ, Curtin v Curtin [2005] NSWSC 35 at [36]-[39] per Palmer J, and Delaforce at [34]-[35] per Handley AJA: POS [40]-[42], T 200.

630. Mr Simpson submitted that the Murwillumbah property, even if held on trust for the defendant, is nonetheless liable to be designated as notional estate for the following reasons (POS [43]):

1. the making of the promise or representation by the deceased is an act within the meaning of s 75(1) Succession Act;

2. the disposition that thereby occurred on the death of the deceased is a transaction within the meaning of s 80(2)(c) Succession Act;

3. the property is property within the meaning of s 80(3)(a) Succession Act;

4. the vesting of the whole of the beneficial interest in the property in the defendant, relative to the contributions she made, disadvantaged the estate within the meaning of s 83(1)(a) Succession Act;

5. the property may be designated as notional estate under s 78(1) Succession Act for the purposes of the Court making a family provision order or a costs order; and

6. for the purpose of s 88(b) Succession Act, the Court must assume that the property in respect of which a family provision order can be made includes the notional estate as well as the actual estate. Were it otherwise no notional estate order could ever be made, except perhaps as to costs, because the question of what provision for an eligible applicant’s maintenance, education or advancement in life is proper, and whether the provision, if any, made is adequate, can only be assessed having regard to the assets available, citing Wardy v Salier [2014] NSWSC 473.

Defendant’s submissions

631. Mr Brown submitted that if the Court finds that a trust existed on the basis of the cross-claim that the property could not be designated as notional estate as “the estate has no financial interest in the property” and the defendant gave “proper” consideration: DOS [63].

632. Other than the above, Mr Brown did not provide detailed submissions regarding the operation of the notional estate provisions of the Succession Act or otherwise expressly address the notional estate submissions of Mr Simpson regarding the Murwillumbah property.

Discussion

633. As I have indicated, in light of the findings I have made regarding the trust claim it is not necessary to make a finding on this issue.

634. The submission that the making of a promise or representation by the deceased is an act within s 75(1) Succession Act requires more analysis. Section 75(1) has several parts.

635. The way Mr Simpson puts the notional estate claim requires addressing the question of whether a promise affecting the deceased’s real property may constitute an act resulting in property being held by another person or subject to a trust.

636. There is caselaw that supports the proposition that a promise by a deceased resulting in the beneficial interest in property being subject to a constructive trust may amount to an “act” for the purposes of s 75(1): De Blac v Lo [2014] NSWSC 142 (De Blac v Lo) per Stevenson J at [94]-[95]. However, other than cases involving the exercise of a power of appointment of a disposition in relation to property, the making of a Will or omission to make a Will per se does not constitute such an act: s 75(3).

637. There is a second aspect to s 75(1) namely that whether what has happened can be characterised as a “relevant property transaction” depends on whether or not “full valuable considerable” was “not given” to the Deceased for that promise: De Blac v Lo at [96].

638. Neither counsel addressed submissions to that issue.

639. The onus of establishing that full valuable consideration was not given lies on the party asserting that proposition. However, where that party establishes a prima facie case of inadequacy of the valuable consideration given, the evidential burden will pass to the other party to establish that consideration was given, and the extent of that consideration: in Kastrounis v Foundouradakis [2012] NSWSC 264 (Kastrounis) at [99] per Hallen AsJ (as his Honour then was); De Blac v Lo at [98].

640. The expression “full valuable consideration” has been construed to mean such valuable consideration as amounts to, approximates, or is broadly commensurate with, or is a fair equivalent of, the value of that for which it is given: Kastrounis at [95], De Blac v Lo at [99].

641. Whether full valuable consideration is given is a question of fact and involves no exercise of discretion. The Court should determine the question applying a commonsense approach and “avoiding finely balanced mathematical computations involving the value of normal exchanges of support in the domestic sense”: Kastrounis at [95] citing Jelley v Iliffe [1981] 2 All ER 29.

642. In the absence of submissions on the matter, there were difficulties which arise including determining the time at which “full valuable consideration” is required to be given and whether that is at the time that the promise is given or agreement made (e.g. De Blac v Lo at [103]) or at the time that the trust is taken to have attached to the property.

643. In Horn v GA & RG Horn Pty Ltd [2022] NSWSC 1519, I addressed the issue of the time at which a constructive trust arises in the context of a claim of a proprietary estoppel. I stated at [1268]-[1270]:

1268. Leaving aside cases where the intervention of third party interests might need to be considered, Equity recognises in an estoppel context that the relevant constructive trust comes into existence from the time the conduct which gives rise to the trust occurs, namely, when the plaintiff acts in reliance on the promise or expectation such that it later became unconscionable or unconscientious for the promisor or the inducer of the expectation to resile from it: E Co [a pseudonym] v Q [a pseudonym] (No 4) [2019] NSWSC 429 (E Co v Q)at [607]-[615] (especially [615]) per Ward CJ in Eq (as her Honour then was) citing inter alia McNab v Graham (2017) 53 VR 311; [2017] VSCA 352 (McNab v Graham) per Tate JA at [107].

1269. On occasion, the intervention of third party interests might lead to a different conclusion: E Co v Q at [615] citing Parsons v Bain (2001) 109 FCR 120; [2001] FCA 376 per Black CJ, Kiefel J, has her Honour then was, and Finkelstein J at [15].

1270. Such dating it is not a matter of a Court engaging in ‘backdating’ the trust arbitrarily. Rather, it is a matter of the Court declaring, as with all applications of the maxim nunc pro tunc, the appropriate date on which that which ought to have been done is to be regarded as having been done. Once so declared, the effect of the maxim is that it was done at that time: McNab v Graham at [109]; E Co v Q at [608].

644. In light of the above-mentioned difficulties, I do not propose to further speculate on the notional estate claim regarding the alleged trust, suffice it to say that it is not self-evident to me that the relevant property transaction took effect on the deceased’s death as submitted.

Notional estate claim regarding the life insurance policy

645. Ultimately, in light of the findings I have made regarding the trust claim it is not necessary to make a finding on this issue. However, should I be incorrect in relation to the trust claim I briefly address the claim that the proceeds of the policy benefit are liable to be designated as notional estate.

Plaintiff’s submissions

646. Mr Simpson submitted that the policy benefit proceeds the defendant received (being approximately $324,000) is property the subject of a “relevant property transaction”.

647. In this regard, Mr Simpson referenced:

1. the sum of $100,000 in the defendant’s solicitor’s trust account (on account of costs); and

2. what he described as the “chose in action” being the debt owed by the estate as apparently claimed by the defendant (CB 335[10]) in the sum of “approximately $200,000” paid to reduce the mortgage: T 195.

648. Mr Simpson submitted that the “circumstance” that the deceased had failed to exercise a power to substitute the plaintiff as a person to whom money was payable under the life insurance policy on the deceased’s death, being something that she was “entitled” to do constituted the basis of a relevant property transaction for the purposes of s 75 Succession Act: s 76(2)(d)(i) Succession Act: T 194. I noted that conceptually there was another circumstance that might engage the notional estate provisions being the failure of the deceased to exercise a power to surrender or otherwise deal with the life insurance policy (see s 76(2)(d)(ii)). Mr Simpson accepted that proposition: T 194.

649. Mr Simpson submitted that the relevant property transaction consisting of the circumstances described in s 76(2)(d) was deemed to have been entered into immediately before and to take effect on, the deceased’s death: s 77(2) Succession Act.

650. There may be cases in which a relevant property transaction consisting of circumstances described in s 76(2)(d) in respect of a life insurance policy is deemed to have taken place on the occurrence of what is described as “some other event” in s 76(2)(d) in which case the entry of the relevant property transaction is dated to the occurrence of the “other event” resulting in the person no longer being entitled to exercise the relevant power: s 77(2). However, that is not the case here.

651. Mr Simpson then submitted that the jurisdiction of the Court to make a notional estate order designating property specified in the order as notional estate of the deceased was enlivened as the transaction (by force of s 77(2)) took effect on the deceased’s death and, accordingly, was a transaction to which s 80 Succession Act applies: s 80(2)(c).

652. Mr Simpson submitted the defendant received a greater proportion of the proceeds of the life policy than the plaintiff. The defendant is a person and by whom property became held as a result of the relevant property transaction and, accordingly, property held by the defendant may be designated as notional estate whether or not the property she holds was the actual subject of the relevant property transaction: s 80(3)(a) Succession Act.

Defendant’s submissions

653. Mr Brown did not dispute the above-mentioned analysis: T 195.

654. Further, Mr Brown did not dispute that such a relevant property transaction disadvantaged the deceased’s estate pursuant to s 83(1)(a) Succession Act: T 195. Alternatively, a finding could be made that the transaction disadvantaged the plaintiff as an eligible person entitled to apply for a family provision order: s 83(1)(a) Succession Act.

655. The area of dispute that Mr Brown raised in relation to a designating order with respect to the proceeds of the life policy related to the matters to be considered by the Court before it makes (if at all) a notional estate order, namely:

1. s 87 factors (the importance of not interfering with reasonable expectations in relation to property; the substantial justice and merits involved in making or refusing to make the order; and any other matter the Court considers relevant to the circumstances); and

2. s 89 factors.

Plaintiff’s reply

656. Mr Simpson submitted that there had been an apparent breach of the defendant’s undertaking in accordance with the email dated 13 July 2021 to hold the policy benefit proceeds she had received from MLC in a separate bank account until the plaintiff’s claim was resolved: POS [31], CB 99. Mr Brown disputed that any such undertaking had been sought or proffered (CB 97, 99): DCS [40]. It is technically true that there is no specific indication of what if any response there was received to that email.

657. Further, Mr Simpson submitted that little weight should be given to the first matter namely the importance of not interfering with the defendant's reasonable expectations in relation to property. He indicated that this was not a situation such as a joint tenancy where one person dies and there has been a long-term holding between the two but, rather, here there was simply a payout under an insurance policy which could just as well have been paid to the estate, owned by the deceased, and which in substance the defendant only has an interest because it had been left to her either by Will or by a nomination to take effect on the deceased’s death: T 196.

658. Mr Simpson submitted that the substantial justice and merits of the case depended essentially upon the overall assessment of the plaintiff’s family provision claim: T 196.

Discussion

659. The parties addressed submissions to the first six steps of what I have described regarding the notional estate provisions above.

660. No particular submissions were addressed to the s 89 factors which are factors which the Court must have regard to.

661. In the absence of submissions in particular regarding those factors I do not propose to further speculate on the notional estate claim regarding the proceeds of the policy benefit.

The family provision claim

Plaintiff’s submissions

662. Mr Simpson submitted the plaintiff had a close and loving relationship with the deceased and that they lived with, or in close proximity to, each other, for most of the plaintiff’s life, with daily telephone calls until she became ill and multiple instances of close contact and assistance given by the plaintiff to the deceased up until the deceased’s death: POS [54]-[55].

663. The defendant says the plaintiff’s relationship with the deceased was close when he was younger, but it deteriorated over the years; and especially so once the deceased became unwell. She says his contact was not regular and the assistance he gave involved “minor gestures”: CB 130[36], 133[60]. The defendant acknowledges that the plaintiff on one occasion took the deceased to a chemotherapy appointment: CB 130[36]. The defendant says she would always try and encourage the plaintiff to come and visit when the deceased was unwell and let him know that the deceased was hurt by the fact that he did not visit much or support her with care. She recalls on one occasion the plaintiff stated, “I don't come down because I'm busy living my life” and on another occasion he said “why would I come down when all she does is go and lay down anyway”: 133[60]. The defendant was not challenged on that evidence.

664. Mr Simpson accepts that the deceased in her final months was unhappy with what she perceived as a lack of care from the plaintiff. However, he explains this by reference to COVID-19 imposed limitations on the plaintiff’s ability to visit the deceased and the deceased’s illness coinciding with a severe downturn in the plaintiff’s mental health. He says that there is no evidence that the deceased was aware of the latest mental health problems, and did not take account of that in the making of her last Will: POS [56], [59], [80a,c].

665. In final submissions, Mr Simpson hesitated to describe the relationship between the plaintiff and the deceased as “close” but nonetheless indicated that they were together and interacting up until the last year or so before the deceased’s death: T 201.

666. Mr Simpson submitted that the following factors supported a claim on the estate including:

1. an applicant’s inability to earn or limited means of income citing Armitage v Fraser [2020] NSWSC 979 at [151] per Hallen J; and

2. an applicant’s lack of reserves to meet demands particularly of ill health and the need for financial security and a fund to protect against the ordinary vicissitudes of life citing Taylor v Farugia [2009] NSWSC 801 at [58] per Brereton J (as his Honour then was): POS [57]-[58].

667. Mr Simpson drew attention to:

1. the plaintiff’s limited funds being the remains from the sale of his Carrara townhouse and $36,600 in superannuation with no material liabilities: POS [62];

2. medical needs noting the plaintiff’s out-of-hospital treatments have only limited coverage via Medicare and are not otherwise covered by his private health insurance: POS [72]; and

3. the plaintiff’s contributions to the deceased’s property and financial support (as I have outlined above CB 34[80]): POS [75]-[76].

668. In general terms, Mr Simpson submitted that the plaintiff’s essential needs are for secure accommodation, a sum to assist him in meeting day-to-day any regular expenses including the costs of his mental health treatment and a buffer or a sum for contingencies: POS [88].

669. Mr Simpson accepted that the estate is insufficient to allow provision for the plaintiff to purchase a one-bedroom unit in the Gold Coast in the order of $500,000-$650,000 and suggested provision of about $300,000 (including the $36,100 he already has): POS [89]. I will address this further below.

Defendant’s submissions

670. Mr Brown submitted that the Court must question the plaintiff’s explanations regarding his recent financial downfall. In this regard, he refers to the plaintiff’s admission evidence that he had funds in excess of that referred to in his updating affidavit and made reference to the plaintiff’s overseas holidays in 2019: DCS [14.13].

670. Mr Brown submitted that the plaintiff’s excuses regarding non-production of documents and the disclosure regarding the NAB accounts are troubling and the Court cannot be satisfied that the plaintiff has truly provided disclosure of the proper position of his financial circumstances: DCS [16].

671. Mr Brown submitted that there is nothing preventing the plaintiff from working (including with Ausdrill) and that he appears to have enjoyed a long working career albeit with a small period (of nonemployment): DCS [14.11].

672. Mr Brown submitted that the building up of the deceased’s estate was only possible with the defendant. He provided some analysis of the various purchases which he contends would not have been possible without the joint endeavour of the defendant: DCS [17]-[29].

Determination of the family provision claim

674. The deceased’s estate is essentially cash poor. Its value is overwhelmingly constituted by the value of the Murwillumbah property at $850,000. There is approximately $13,639 in cash. The net estate is agreed to be approximately $538,638. Whilst there is debate over the proper characterisation of the cash payment made by the defendant in the sum of $224,000, that sum, on the findings I have made, stands outside the estate: s 60(2)(c).

675. It is important to have regard to the way that the plaintiff’s case was put.

676. Mr Simpson accepted, as noted above, that the estate is insufficient to allow provision for the plaintiff to purchase a one-bedroom unit in the Gold Coast in the order of $500,000-$650,000 and suggested that provision of about $300,000 including the $36,100 [$36,013] he already had (from the policy benefit) would with his existing savings put him in striking distance of being able to purchase a unit with a loan (assuming his mental health improved and he was able to qualify for a loan) or if his mental health did not improve would provide him with a substantial cash sum to supplement his income particularly if he was required to go on to the disability support pension: POS [89].

677. That opening submission was confirmed in the final submissions: T 203.24-49.

Consideration of the claim

678. In determining whether to make a family provision order and the nature of any such order the Court may have regard to a number of other matters which in any given case may be relevant to assessment of whether adequate provision has been made: s 60(2) Succession Act.

679. The operation of s 60(2) has been helpfully explained by Hallen J in Mallitt v Gow [2022] NSWSC 1012 at [222]-[224]:

222. The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of each of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed are, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender.

223. The section also does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical.

224. A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1)”.

680. I agree with those comments.

681. I have referred above to the nature and duration of the relationship between the deceased and each of the plaintiff and the defendant and the defendant’s conduct: s 60(2)(a), (m). I accept the defendant’s evidence (in which she was not challenged) that the plaintiff’s contact was not, particularly in later years, as regular as suggested by the plaintiff: CB 130[36], 133[60].

682. Mr Simpson refrained from describing the relationship between the plaintiff and the deceased as “close” but nonetheless indicated that they were together and interacting up until the last year or so before the deceased’s death: T 201.

683. The deceased expressed her relationship with the defendant in extraordinarily endearing terms stating “I have been the most blessed mother to have had such a special daughter that means the world to me and I love that her very much”: handwritten letter dated 18 August 2020. That assessment of their relationship was not challenged by Mr Simpson.

684. Without focussing to any great degree on childhood years, during their adult lives by and large the plaintiff has lived apart from the deceased. Whilst he renovated the deceased’s garage in the Currumbin Waters duplex into a bedroom and moved in so that he could rent out his Palm Beach unit and try to save money, he did not live there for long. However, that was almost 20 years ago.

685. On the other hand, for the last 20 years the defendant has lived the entirety of that period with the deceased.

686. It is clearly the case that at the time when the deceased needed particular help the defendant devoted herself to care of the deceased. Whilst I accept that at some times in 2018 when the plaintiff was admitted to the Currumbin Clinic his ability to interact with the deceased was somewhat limited, I do not accept that over those last number of years the plaintiff’s mental health conditions precluded him from providing the sort of companionship and even moral support that the deceased craved. She was hurt by that: handwritten letter dated 23 September 2020. Clearly, for the first half of 2019, the plaintiff chose to travel rather than remain close to the deceased at that time.

687. Both the plaintiff and the defendant are adults. There were no formal obligations which the deceased owed to the applicant at the time of her death: s 60(2)(b). The nature and extent of the deceased’s responsibilities to the applicant must be considered in that light. The plaintiff even during episodes of mental health issues did not particularly seek the company or support of the deceased in dealing with those issues. The defendant on the other hand was highly dependent upon the deceased during the years of living together.

688. The deceased’s letters dated 18 August 2020 and 23 September 2020 describe in the deceased’s own terms her assessment of her moral obligation and responsibility to the plaintiff and the defendant as well as foreshadowing her testamentary intentions: s 60(2)(b), (j). That assessment is connected to the reasons for why the deceased left the Murwillumbah property and contents to the defendant as well as “a good proportion of my MLC life insurance”. That assessment was not challenged by Mr Simpson, and I consider it a powerful consideration in assessing the plaintiff’s claim and defendant’s competing claim to retain the benefits given to her.

689. The plaintiff has had available financial resources to him over a lengthy period of time. He has gone in and out of relationships which in part explain why he does not own real property currently: s 60(2)(d). He currently has accommodation. He does not describe that accommodation as being unsatisfactory in any particular terms.

690. Whilst Mr Simpson kept alive a possibility of provision to enable a plaintiff to purchase accommodation, the main claim pressed was essentially a claim for a fund for contingencies. The defendant, on the other hand, has a distinct requirement for accommodation as well as a fund to cover the vicissitudes of life. Beyond the testamentary provision given to her and the receipt of the policy benefit it is clear beyond argument that she has no real capacity to save in a way to enable her to purchase any accommodation or build a fund: s 60(2)(d).

691. As I have found above, I do not accept that the plaintiff is incapacitated for work: s 60(f). I do not regard the plaintiff’s prognosis as being as poor as Dr Bertucen suggested. I do not accept that the plaintiff’s mental health is as chronically debilitating as would generally preclude him being engaged in employment.

692. I find that the plaintiff would generally be able to hold down employment albeit that there may be some small or very minor periods not extensive in any given year in which he is unable to work.

693. On the other hand, as I have found above, the likelihood is that the defendant will not be able to recover full health nor be likely to obtain any lasting form of part-time work.

694. I accept that the plaintiff has made some contribution to the maintenance and improvement of the deceased’s property: s 60(2)(h). The main factors in this regard are that he renovated the garage of the Currumbin Waters property to a large bedroom including installing carpet, a built-in wardrobe and external doors and landscaping the outdoor areas and maintaining the lawn and he landscaped the outdoor areas of the Pottsville property and maintained the lawn. The works done in relation to the Currumbin Waters property were at least initially to benefit the plaintiff.

695. Without minimising the plaintiff’s contributions in this regard, comparatively speaking it seems to me that they pale in comparison to the nature of the defendant’s contributions.

696. The defendant in my assessment over a period approaching 18 years made a very substantial contribution to the maintenance and improvement of the deceased’s real property. Whilst I have found against the defendant’s trust claim, it is undeniable that the defendant contributed to expenses and gave what she had out of her pension income.

697. I find that she gave a substantial part of her income over to the deceased for the purpose of maintaining and improving the properties that they lived in. It was not a giving away out of her poverty (cf Luke 21:1-4 Bible - New Revised Standard Version, Anglicised). But this was no minor financial contribution by her. Even though she obtained a benefit from being able to live with the deceased and have accommodation she nonetheless gave over to the deceased much of what limited income she had.

698. Whilst the defendant obtained a benefit from being able to live with the deceased and have accommodation that way, she was also dependent upon the deceased’s financial resources and in that sense clearly being maintained by the deceased: s 60(2)(k).

699. The plaintiff was given some minor inter vivos provision by the deceased during her lifetime: s 60(2)(i). Whilst it was no doubt gratefully received, I do not regard it as being a compelling matter against the plaintiff’s claim for provision.

700. Mr Simpson acknowledged both the plaintiff and the defendant have strong “needs”, noting that aside what they may receive from the estate, both parties are in poor financial positions and suffer poor health, with limited or uncertain future earning prospects: POS [6]. Mr Simpson acknowledged that the defendant has lived with the deceased for many years and cared for the deceased throughout her illness: POS [59].

701. Mr Simpson submits that the plaintiff could not sustain a job due to the deterioration in his mental health and was out of work for just over a year. He did not qualify for benefits and spent over half of his savings from selling his dwelling on his living expenses as well as continuing expenses relating to his mental health: POS [26].

702. That submission finds some support in the plaintiff’s initial affidavit at CB 28[49], [50]. However, the difficulty that I have with the submission is twofold.

703. First, the plaintiff did not in his affidavit evidence accurately disclose the extent of his savings. Notwithstanding that the plaintiff’s updating affidavit was sworn a little over three weeks prior to the commencement of the hearing, Mr Simpson adduced from the plaintiff the fact that he has additional bank accounts with funds totalling approximately $10,500.

704. Secondly, as regards spending, the materials disclose an equally available alternative explanation and one I find which is that the plaintiff simply chose to travel and spend some portion of the funds available to him in that manner. It is clear that in early 2019 seemingly for a period of no less than 3.5 months (between at least 1 February 2019 and 16 May 2019) the plaintiff travelled extensively including to destinations in Bali, the Mediterranean, Greece, Malta and Italy: Exhibit D3-7 (Facebook Documents Tab).

705. The failure of the plaintiff to provide his NAB accounts and any credit card statements stymied to some degree examination of his spending habits and the extent of his resources. He had an obligation of full and frank disclosure: see e.g. Stone v Stone [2019] NSWSC 233 at [162]-[166] per Hammerschlag J (as his Honour then was).

706. The plaintiff failed in his duty of disclosure in his initial affidavit to properly disclose that he was cohabiting with Taryn and provide an assessment of her financial resources: s 60(2)(e).

707. I was concerned on the hearing that a claimed fund of about $264,000 ($300,000 less $36,013) to enable the plaintiff to possibly purchase accommodation but in any event to have a fund would potentially have the effect of jeopardising the defendant’s existing accommodation or significantly impacting upon her position: T 204-205.

708. That led to the debate regarding cross-examination obligations which I have referred to above.

709. In my opinion, there was insufficient engagement by Mr Simpson with the reality of the strengths of the defendant’s claim to retain the benefits the deceased gifted to her and to which she has contributed from her financial resources as I have noted above. A claim to make provision of about $264,000 for the plaintiff required in my estimation an active engagement with the impact that would have on the defendant and her ability to purchase accommodation.

710. At the time the hearing commenced, there was no evidence of the cost of one- or two-bedroom units which might potentially be options for the defendant in the Murwillumbah area. Indeed, the cheapest form of accommodation identified by the plaintiff in any area remotely close to where the parties live commenced at $550,000 (negotiable).

711. The plaintiff’s principal need was for a fund for contingencies. He has a fund currently in the order of at least $100,000. The plaintiff did not properly disclose in his evidence his NAB accounts until the hearing commenced. Had I been confident that I could comfortably rely upon the plaintiff’s evidence I may have proceeded on the basis that the disclosure that the plaintiff made albeit late of the monies in NAB bank accounts was the full extent of his resources.

712. However, as I have noted above, there are aspects of the plaintiff’s evidence which do not make me comfortable in concluding that the plaintiff has properly disclosed his position in relation to material considerations in the case.

713. The plaintiff’s failure to make a full and frank disclosure has, in the case in which there is a limited property over which the parties are contending, impeded the Court in discharging its function to make the evaluative judgment required by s 59(1)(c) Succession Act.

Finding

714. Overall, I am not persuaded that the plaintiff has been left with inadequate provision having regard to all the above considerations. Without detracting from what I have already stated above, powerful considerations against the plaintiff’s claim include:

1. the failure of the plaintiff to fully put before the Court details of his financial position and documents in a way to enable a full assessment of his true financial resources and spending;

2. the fact that the plaintiff for his adult life has generally lived independently from the deceased and had gainful employment over the past 20 years;

3. the fact that the plaintiff is capable of being generally employed and that his mental health issues do not preclude in my estimation him from continuing to earn adequate income to live perhaps other than for very minor periods in a year;

4. the fact that the plaintiff even as recently as 16 February 2023 had ad hoc employment doing some handyman jobs (Exhibit D6 at page 22) and shortly thereafter, on or about 21 February 2023, seemingly had available an opportunity for “[a] lot more money for less work” (Exhibit D6 at pages 30-31);

5. the fact that the plaintiff has a fund of at least $100,000 available to him as a form of contingency fund to cover unforeseen expenses and some periods of unemployment, he also claims to have $36,000 in superannuation;

6. the defendant’s desire to remain in the Murwillumbah property which was not tested in a way to enable me to adequately assess the impact upon her of sale of the Murwillumbah property;

7. the fact that prima facie an order for provision in the amount sought for the plaintiff to enable the plaintiff to potentially obtain accommodation or have a fund (particularly if coupled with a costs order in the plaintiff’s favour) would significantly impact and likely jeopardise the defendant’s ability to remain in accommodation;

8. the defendant’s very significant contribution to the maintenance and improvement of the deceased’s property over a period approaching 18 years;

9. the fact that the defendant has already contributed $224,000 from the policy benefit proceeds to reduce the mortgage on the Murwillumbah property and that it is still encumbered by a mortgage of $101,000 which if the plaintiff’s claim is dismissed the defendant will still need to service;

10. the frailties of the defendant’s own physical and mental health;

11. the fact that in all likelihood the defendant will not be able to ever hold down even part-time employment for any length of time enabling her to save or build a fund of money; and

12. the defendant’s very considerable care for the deceased in her remaining years prior to the deceased being admitted to hospital shortly prior to her passing.

715. Whilst I have agonised to a great degree in assessing the matter, I have come to the conclusion that the appropriate order is for the plaintiff’s claim to be dismissed.

Conclusion

716. In the above circumstances, the orders of the Court are to dismiss the claim and cross-claim.

717. The orders of the Court are:

1. I dismiss the plaintiff’s claim.

2. I dismiss the cross-claim.

718. I have a tentative view that the appropriate costs order is that each party bear their own costs of the proceedings. I direct the parties’ legal representatives to inform my Associate by 4:00 PM 26 April 2023 if they wish to contend for any different costs order than that. Should they not do so, that will be the costs order that I make.

719. If they wish to contend for a different costs order:

1. The matter is stood over to 9:30 AM on 11 May 2023 to enable the parties to address on the question of costs.

2. In the event that the parties are able to agree on the question of costs they have liberty to provide my Associate with proposed orders in that respect.

3. In the event the parties are unable to agree on the question of costs they should provide a short outline of submissions and any affidavits by 4:00 PM on 10 May 2023.

**********

Amendments

19 June 2023 - Bank account numbers redacted in paragraphs [55] and [568]

Decision last updated: 19 June 2023