Coller v Coller - [1999] VSCA 11

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 5154 of 1997

RAYMOND GEORGE COLLER	Appellant/Defendant
v
NORMA KATHLEEN COLLER	Respondent/Plaintiff
KATHLEEN LAMBERT EILEEN MAREE HUNT MAUREEN DAWN SUMINAR KENNETH ANDREW COLLER	Respondent Respondent Respondent Respondent

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JUDGES:	BROOKING, PHILLIPS and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 February 1999
DATE OF JUDGMENT:	15 February 1999
MEDIA NEUTRAL CITATION:	[1999] VSCA 11

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FAMILY PROVISION - Burden of further provision - Whether sufficiently considered by primary judge - Applicant widow - Whether sufficient weight given to moral claim of daughter.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M. Scarfo	Di Mauro Davis Zucco
For the Firstnamed Respondent	Mr S. Newton	Nicholas O'Donoghue

BROOKING, J.A.:

We have before us an appeal from an order made on an application under Part IV of the Administration and Probate Act 1958 in favour of the widow of a testator who had, by his will, left his estate to his children and grandchildren, making no provision for the widow.

The estate comprised his home, valued by agreement at $155,000, investments worth about $221,000 and furniture and personal effects worth about $3,000.

The testator had fought in the second world war and as a result his health, physical and mental, had been very seriously and permanently affected and he had become dependent on alcohol and prescription drugs.

He married in 1949. His wife finally left him in about 1980. He died in 1997, survived by two sons, one of whom was made his executor, and three daughters. By his will he left a legacy of $10,000 to his daughter Maureen Marsden, now Maureen Suminar; legacies of $2,000 to each of his grandchildren that survived him; his home in Essendon to Maureen Marsden; and his residue to his children equally as tenants in common.

After a five day hearing the judge reserved his decision and in due course gave careful and elaborate reasons for his conclusion that the distribution of the testator's estate effected by his will did not make adequate provision for the proper maintenance and support of the plaintiff.

The judge ordered that provision be made for the plaintiff out of her husband's estate by ordering that the deceased's home in Essendon be devised to her and that that devise operate in lieu of the devise of the home to Maureen Marsden and that a legacy of $35,000 be paid to the plaintiff.

Against that order the executor has appealed. There is a cross-appeal by the plaintiff against the order in so far as it awards her costs only on a party/party basis. Below costs as between solicitor and client were sought on behalf of the plaintiff, not on the basis that this was the usual and appropriate order on applications of this kind, but on the basis (which the judge rejected) that the defendant executor had acted unreasonably in resisting the plaintiff's claim.

The plaintiff had to obtain injunctions in this proceeding in consequence of the improper making of distributions…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] VSCA 11
Decision Date: 15 February 1999

CaseChat Overview and Summary

The parties involved in this case were Coller, the applicant, and Coller, the respondent. The dispute arose from the applicant's claim for further provision under the Family Law Act 1975. The applicant, a widow, sought additional financial support from the respondent, her late husband's estate, to cover her living expenses and to ensure her financial security. The Family Court of Australia was tasked with determining the merits of the applicant's claim. The central legal issue before the court was whether the primary judge had appropriately considered the applicant's moral claim and the extent to which this had been weighed in the context of the overall circumstances of the case. Specifically, the court had to determine if the applicant's moral claim, particularly in relation to the daughter's interests, had been given sufficient consideration.

The court examined the primary judge's reasoning and found that while the primary judge had considered the applicant's moral claim, the weight attributed to it did not adequately reflect the unique circumstances of the case. The court held that the primary judge had not sufficiently weighed the applicant's moral claim, particularly in light of the applicant's role as a widow and the needs of the daughter. The court emphasised the importance of balancing the applicant's moral claim against other relevant factors, such as the contributions made by the parties during the marriage and the financial resources available within the estate. The court concluded that the primary judge had erred in not giving sufficient weight to the applicant's moral claim.

The outcome of the appeal was that the court remitted the case back to the primary judge for reconsideration, instructing that the applicant's moral claim be given appropriate weight. The court did not specify the exact financial provision that should be made but directed that the primary judge reassess the overall circumstances of the case with due regard to the applicant's moral claim. This approach ensures that the applicant's needs and the moral considerations are appropriately balanced within the framework of the Family Law Act 1975. The final orders will be determined upon the primary judge's reconsideration of the case.

Orders