Curnow v Curnow - [2014] NSWSC 896

Supreme Court

New South Wales

Medium Neutral Citation: Curnow v Curnow [2014] NSWSC 896
Hearing dates: 24 March 2014; 16 and 17 June 2014 (further submissions with leave)
Decision date: 07 July 2014
Jurisdiction: Equity Division
Before: Hallen J
Decision:
Direct the parties, within 14 days, to bring in Short Minutes of Order giving effect to these reasons and any agreement reached between them as to the designation of property as notional estate.
Stand the matter over to a convenient date to be arranged at the time of delivery of these reasons.

Catchwords: SUCCESSION - FAMILY PROVISION - Application by three Plaintiffs for a family provision order under the Succession Act 2006 - One Plaintiff is the stepdaughter of the deceased and the other two are children of the deceased - Order sought out of the notional estate of the deceased - The Defendant the widow of the deceased - Deceased died intestate - No grant of administration - No dispute as to each Plaintiff's eligibility - No dispute as to factors warranting the making of the stepchild's application - Whether to make a family provision order in each case - If order for provision made, nature of order for each Plaintiff - Competing claim of the Defendant - Widow a beneficiary of her mother's estate - Provision made for each Plaintiff - How that provision to be met to be first determined by Defendant
Legislation Cited: Civil Procedure Act 2005 (NSW)
Family Provision Act 1982 (NSW)
Legal Profession Act 2004 (NSW)
Practice Note SC Eq 7
Probate and Administration Act 1898 (NSW)
Property (Relationships) Act 1984 (NSW)
Succession Act 1981 (Qld)
Succession Act 2006 (NSW)
Succession Amendment (Family Provision) Act 2008 (NSW)
Transport Accident Act 1986 (Vic)
Cases Cited: Akkerman v Ewins [2003] NSWCA 190
Alexander v Jansson [2010] NSWCA 176
Allardice, In re; Allardice v Allardice (1909) 29 NZLR 959
Allen (Deceased), In re; Allen v Manchester [1922] NZLR 218
Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656
Aubrey v Kain [2014] NSWSC 15
Bartlett v Coomber [2008] NSWCA 100
Baychek v Baychek [2010] NSWSC 987
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Butcher v Craig [2009] WASC 164
Cabban v Cabban [2010] NSWSC 1433
Cameron v Cameron [2009] SASC 27
Carega Properties SA (formerly Joram Developments Ltd) v Sharratt [1979] 2 All ER 1084; [1979] 1 WLR 928
Christie v Manera [2006] WASC 287
Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241
Collins v McGain [2003] NSWCA 190
Commissioner of Stamp Duties (Queensland) v Livingston [1964] UKPCHCA 2; (1964) 112 CLR 12; (1965) AC 694
Crossman v Riedel [2004] ACTSC 127
de Angelis v de Angelis [2003] VSC 432
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89
Doshen v Pedisich [2013] NSWSC 1507
Edgar v Public Trustee for the Northern Territory [2011] NTSC 05
Estate of Terry [2012] NSWSC 927
Flathaug v Weaver [2003] NZFLR 730
Foley v Ellis [2008] NSWCA 288
Freeman v Jaques [2006] 1 Qd R 318
Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep)
Gardiner v Gardiner [2014] NSWSC 435
Golosky v Golosky [1993] NSWCA 111
Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Graziani v Graziani (Supreme Court (NSW), Cohen J, 20 February 1987, unrep)
Grey v Harrison [1997] 2 VR 359
Hampson v Hampson [2010] NSWCA 359
Hawkins v Prestage (1989) 1 WAR 37
Heyward v Fisher (Court of Appeal (NSW), 26 April 1985, unrep)
Hitchcock v Pratt [2010] NSWSC 1508
Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134
Hyland v Burbidge [2000] NSWSC 12
Kay v Archbold [2008] NSWSC 254
Kossert v Margaret Gerda Ruggi As Executor of the Will of Peter Korps (No 2) [2012] WASC 191
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Luciano v Rosenblum (1985) 2 NSWLR 65
MacGregor v MacGregor [2003] WASC 169
McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566
McGrath v Eves [2005] NSWSC 1006
McKenzie v Baddeley [1991] NSWCA 197
McKenzie v Topp [2004] VSC 290
McLeod v Johns (1981) 1 NSWLR 347
Magill v Magill [2006] HCA 51; (2006) 231 ALR 277
Manuel v Lane [2013] NSWCA 61
Marks v Marks [2003] WASCA 297
Marshall v Carruthers; Marshall v Marshall [2002] NSWCA 47
Mayfield v Lloyd-Williams [2004] NSWSC 419
Morris v Smoel [2014] VSC 32
Neale v Neale [2013] NSWSC 983
Ng v Neville Mark Morgan; Selena Natanie Ng v Morgan; Commonwealth Bank of Australia v Neville Mark Morgan in his capacity as Administrator of the estate of the late Dell Smith [2014] NSWSC 536
Justyn Marcus Ng v Neville Mark Morgan & Anor; Selena Natanie Ng v Morgan; Commonwealth Bank of Australia v Neville Mark Morgan in his capacity as Administrator of the estate of the late Dell Smith (No 2) [2014] NSWSC 677
O'Loughlin v O'Loughlin [2003] NSWCA 99
Official Receiver in Bankruptcy v Schultz [1990] HCA 45; (1990) 170 CLR 306
Palaganio v Mankarios [2011] NSWSC 61
Phillips v James [2014] NSWCA 4
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
Puckridge, Deceased, In the Estate of (1978) 20 SASR 72
Re Buckland, Deceased [1966] VR 404
Re Bull [2006] VSC 113
Re Coventry, Deceased [1979] 3 All ER 815
Re Estate of Bridges (1975) 12 SASR 1
Re Estate Harriett Cassel [2000] NSWSC 294
Re Fulop, Deceased (1987) 8 NSWLR 679
Ross v Collins [1964] 1 All ER 861; [1964] 1 WLR 425
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Slack v Rogan; Palffy v Rogan [2013] NSWSC 522
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Stiles v Joseph (Supreme Court (NSW), Macready M, 16 December 1996, unrep)
Szypica v O'Beirne [2013] NSWSC 297
Taylor v Farrugia [2009] NSWSC 801
Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757
Turner v Perpetual Trustees Australia Ltd [2001] ACTSC 56
Verzar v Verzar [2012] NSWSC 1380
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Union-Fidelity Trustee Co of Australia Ltd v Montgomery (1976) 1 NSWLR 134
Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep)
West v Mann [2013] NSWSC 1852
White and Tulloch v White (1995) 19 Fam LR 696
Wilcox v Wilcox [2012] NSWSC 1138
Williams v Aucutt [2000] 2 NZLR 479
Texts Cited: J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths)
Uniform Succession Laws: Intestacy [2007] NSWLRC 116
Category: Principal judgment
Parties: Alana Marie Curnow (first Plaintiff)
Jake Howard Curnow (second Plaintiff)
Kristy Anne Jean Curnow (third Plaintiff)
Deborah Shireen Curnow (Defendant)
Representation: Counsel:
Mr R Wilson SC
Mr L Ellison SC
Solicitors:
Turnbull Hill Lawyers (Plaintiffs)
Barwick Boitano Lawyers (Defendant)

File Number(s): 2012/312464

Judgment

The Claim

HIS HONOUR: These reasons for judgment deal with proceedings commenced by three Plaintiffs, each of whom applies for a family provision order under Chapter 3 of the Succession Act2006 (NSW) ("the Act"). The first Plaintiff, Alana Marie Curnow, applies upon the basis that, as a stepchild, she was a person who was a member of the household of Grant Howard Curnow ("the deceased") and was wholly, or partly, dependant upon him at that, or other, particular time. The second Plaintiff, Jake Howard Curnow, applies as a child of the deceased, as does the third Plaintiff, Kristy Anne Jean Curnow.

The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is an order made by the court, under Chapter 3, in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person.

The Plaintiffs commenced the proceedings by one Summons filed on 9 October 2012, that is, within the time prescribed by s 58(2) of the Act (not later than 12 months after the date of the death of the deceased). An amended Summons, seeking an additional order under s 91 of the Act (an order for a grant administration in respect of the estate of the deceased to the applicant for the purposes only of permitting the application concerned to be dealt with) was filed, without opposition, on 20 February 2014.

The deceased died intestate, no will, or other testamentary instrument, having been located. The Defendant named in the Summons is Deborah Shireen Curnow, the second wife of the deceased. I shall deal with the circumstances of her being named as a Defendant later in these reasons.

Without intending to convey undue familiarity, with no disrespect intended, and for convenience, I shall refer, hereafter, to the parties and family members, after introduction, by his, or her, given name.

The matter proceeded, initially, with the reading of the evidence filed in the proceedings; then, an objection to one part of an affidavit was made and ruled upon; the cross-examination of each of the parties then occurred; and, finally, senior counsel for each of the parties made oral submissions to supplement the written submissions that will remain with the court papers.

The proceedings, then, had to be adjourned for reasons to which I shall refer later. In order to save costs, and as there was to be no further cross-examination of witnesses, I ordered that the balance of the evidence be given, unless there was dispute by the tender of a document that stated agreed facts. I shall refer to the document later also.

Formal Matters

The following facts are uncontroversial.

The deceased died as a result of a motorcycle accident on 13 October 2011. He was then aged 56 years, having been born in December 1954.

Alana is a child of Michelle Webb (who the deceased married in October 1988). Jake and Kristy are children of the deceased and Michelle. The deceased and Michelle separated in June 1998 and a divorce order was made in 1999, following which Michelle and all of the Plaintiffs moved to Queensland. There was no contact between them and the deceased between that date and about 2002, following which they resumed contact, both face to face, by telephone, and through social media (Facebook).

The deceased and Deborah met in 1998 and were married in January 2003. Deborah was then aged 44 years, having been born in October 1959. She is currently 54 years of age.

As stated, previously, this court has not granted Letters of Administration on intestacy of the deceased's estate.

Although there is no Inventory of Property disclosed to the court under s 81A of the Probate and Administration Act 1898 (NSW), Deborah swore an affidavit, in March 2014, in which she disclosed that the "assets in Grant's estate at the date of his death" were one ordinary share in National Australia Bank ($34), one ordinary share in Wesfarmers ($42), unpaid annual and long service leave ($26,540), and the proceeds of an insurance payout for the motorcycle that was damaged in the accident ($14,150). The total gross value of the deceased's actual estate was said to be $40,767. (I have omitted any reference to cents and shall continue to do so. This may appear to result in minor mathematical miscalculations.)

It is also clear that, at the date of his death, the deceased and Deborah held certain property as joint tenants, which property passed to her by survivorship. The property consisted of real estate at Merrylands ("the Merrylands property") (the total value of which was $900,000), a yacht (the total value of which was $90,000), furniture and household effects (the total value of which was $25,000) and moneys in bank ($33). It follows that the gross value of the deceased's "interest" in the jointly held property was $507,516 (calculated as one half of the total value of each jointly held asset).

In addition, the deceased was a person who was a member of, or a participant in, a superannuation fund, as a result of which, following his death, property became held by Deborah ($191,375) because she was the deceased's nominated beneficiary. She received that amount into her bank account in September 2012.

Deborah also set out the deceased's liabilities that have been paid out of the deceased's actual estate. These were funeral expenses ($7,000), memorial service expenses ($1,888), legal costs ($16,396), private mooring, registration fees and costs of inspections of the yacht ($3,800), and renovations to the Merrylands property ($9,185). The total amount expended, therefore, was $38,270.

Deborah submits that, as a result of the expenses paid, there is no actual estate from which an order for provision may be made for any of the Plaintiffs. This is not entirely accurate, since the sum of $1,949 is held in an account in the name of the estate. However, it is clear that this amount is insignificant taking into account the claims made.

To the extent that it is relevant, bearing in mind the expenses that have been paid, s 113 of the Act deals with a spouse's entitlement on intestacy and is relevant where there is a spouse and any issue who are not issue of the spouse and the intestate. Pursuant to that section, Deborah became entitled to the deceased's personal effects, a statutory legacy (as defined in s 106 of the Act) (more than $350,000), and one-half of the remainder (if any) of the deceased's estate. Accordingly, Deborah is entitled to the whole of the deceased's actual estate. By the operation of the intestacy rules, no part of the deceased's estate passes to Jake or Kristy. (Alana, as a stepchild of the deceased, is not a person entitled on intestacy.)

The Merrylands property, at the date of death, was subject to a debt (approximately $461,000) secured by registered mortgage. By Transmission Application, registered in the NSW Land and Property Information Office in November 2012, the deceased's interest in the Merrylands property was transmitted to Deborah absolutely and beneficially.

Deborah accepts that the proceeds of the superannuation fund ($191,375), one half share of the net estimated value of the Merrylands property ($221,856), and one half of the estimated value of the yacht ($45,000), is the total value ($458,231) of property that may be designated as notional estate of the deceased.

There was no dispute, in the circumstances of the case, that Deborah, as the holder of the property forming the actual estate and, also, of the property that may be designated as notional estate, was the appropriate person to represent the estate. In the circumstances, the following orders are appropriate and should be made:

"Order, pursuant to Uniform Civil Procedure Rules 2005 (NSW) ('UCPR'), rule 7.10(2)(b), that the Defendant be appointed to represent the deceased's estate and notional estate for the purposes of these proceedings.

Order that any order subsequently entered or made in the proceedings binds the deceased person's estate to the same extent as the estate would have been bound had a personal representative of the deceased person been the Defendant in the proceedings."

Deborah was informed of the intention of the Plaintiffs to make an application for a family provision order by letter dated 4 October 2012 sent by their current solicitors to her. (She could not, however, remember receiving the letter (a copy of which was Ex. P2 in the proceedings).) Any response to the letter did not form part of the evidence read at the hearing.

Since there is no dispute that the actual estate is insufficient to satisfy any order for provision made in favour of any of the Plaintiffs, and any order for costs, a question that was raised in the proceedings is whether a designating order should be made in respect of the property, outlined above, that may be designated as notional estate. However, the question no longer needs to be dealt with in these reasons because the parties sensibly agreed, during the hearing, that, in the event a family provision order by way of lump sum was made for any of the Plaintiffs, Deborah would like the opportunity to satisfy that order. Therefore, the parties requested that the only relevant additional order to be made was one, pursuant to s 66(2) of the Act, granting liberty to any party to apply, in these proceedings, for consequential and ancillary orders for the purpose of, or with respect to, giving effect to, and implementing, any family provision order made in favour of any of the Plaintiffs. Because of the orders that I propose, an order as sought by Deborah may be made.

In calculating the value of the estate, actual and notional, finally available, the costs of the present proceedings should also be considered, since the Plaintiffs, if successful, normally, will be entitled to an order that her, and his, costs and disbursements, calculated on the ordinary basis, be paid, whilst Deborah, as the person representing the estate in the proceedings, irrespective of the outcome of the proceedings, normally, will be entitled to an order that her costs, calculated on the indemnity basis, be paid out of the estate and/or notional estate, of the deceased.

The Plaintiffs' solicitor, Ms M K Windeyer, estimated their costs and disbursements of the proceedings, including senior counsel's fees ($24,200), calculated on the ordinary basis, to be about $55,900 (inclusive of GST and upon the basis of a two day hearing). That amount includes an uplift factor, of the type referred to in s 324 of the Legal Profession Act 2004 (NSW), of 25%.

(The Plaintiffs' estimated costs and disbursements, calculated on the indemnity basis, including an uplift factor, were estimated to be $73,500.)

In the event that the Plaintiffs, or any of them, were unsuccessful, Deborah did not seek an order that she, he, or they, should pay her costs of the proceedings. She simply sought an order that there be no order as to the Plaintiffs' costs. (Of course, if they are unsuccessful, I assume that they will not be required to pay any, or all, costs to their own solicitors because they have entered a costs agreement providing that the payment of some, or all, of the legal costs, is conditional on the successful outcome of the matter to which those costs relate.)

Deborah's solicitor, Mr F J Boitano, estimated Deborah's costs and disbursements of the proceedings, including senior counsel's fees ($35,000), calculated on the indemnity basis, to be $85,000 (inclusive of GST and upon the basis of a two day hearing).

I shall refer, later in these reasons, to Practice Note SC Eq 7 and the general rules on costs in an estate or notional estate with a value of less than $500,000.

It follows that, if orders for costs are made out of notional estate, and if the costs estimates prove accurate ($140,900), the net value of the deceased's property that may be designated as notional estate will be about $317,331. (I have simply referred to the gross value of the property that may be designated as notional estate since, after the payment of the expenses identified, there is only $1,949 available for distribution out of the actual estate.)

The parties agreed that the only eligible persons who have commenced proceedings under the Act are the Plaintiffs. Of course, Deborah, as the wife of the deceased is also an eligible person, but she has not brought any proceedings. However, as a beneficiary entitled on intestacy, the court will not disregard her interests. Later in these reasons, I shall refer to her competing claim as a beneficiary.

There is evidence that the former wife of the deceased, Michelle, has been served with a notice, in the manner and form prescribed by the regulations or rules of court, of the Plaintiffs' application, and of the court's power to disregard her interests and that she has not commenced proceedings. (She, of course, is their mother.)

There is also evidence that a similar notice has been served upon Kailah Ng, who is said to be another stepchild of the deceased. She is Deborah's child by her first marriage to Ching Hung Ng, whom she married in January 1983. There was a divorce order made in July 1987. I was informed from the bar table, without objection, that Kailah was aware of the proceedings and did not wish to make a claim.

(There are two other children of the marriage between Deborah and Ching Hung Ng, being Justyn Ng and Selena Ng, to whom reference will be made later in these reasons.)

In the circumstances, I may disregard the interests of each of Michelle and Kailah as a person by, or in respect of whom, an application for a family provision order may be made but who has not made an application.

Other Agreed Facts

I have mentioned that the deceased died in a motorcycle accident in October 2011. The deceased and Deborah had travelled to Philip Island, in Victoria, for a holiday. Whilst riding his motorcycle, on which Deborah was the pillion passenger seated behind him, apparently, a collision occurred when a large four-wheel drive vehicle struck the motorcycle. (I say "apparently" because Deborah has no independent memory of the collision.) The deceased died as a result of injuries sustained in the collision and Deborah was severely injured. (I shall refer to the injuries sustained, and the disabilities from which she suffers, later in these reasons.)

On 15 December 2011, Deborah received $110,227 by way of lump sum payment from the Transport Accident Commission of Victoria. This amount was paid pursuant to the Transport Accident Act 1986 (Vic), which establishes a compensation scheme for those who are injured, or dependants of those who die, as a result of a transport accident.

Deborah and Mr Boitano provided some evidence that the lump sum was not compensation for the injuries that Deborah had sustained but, rather, was the death benefit payable, under s 57 of the Transport Accident Act, to the surviving partner of a person who dies as a result of a transport accident. As the surviving spouse, Deborah also is entitled to receive periodical payments of $1,908 per fortnight. These payments will cease in October 2016.

Deborah has not, as yet, made her own application for compensation under the Transport Accident Act for permanent impairment to her, that she may receive once her condition stabilises. The evidence of Mr Boitano is that it is not known, yet, whether she will be able to make a claim because the extent of her injuries and disabilities are not completely known and because her condition has not yet stabilised. There was other evidence that the current statutory caps are pain and suffering ($497,340) and pecuniary (economic) loss ($1,119,060).

In addition, Deborah gave evidence that, on 10 February 2014, she received from the Transport Accident Commission of Victoria, "an interim payment of $14,750, as a result of the accident", which amount "will be ultimately deducted from any lump sum I receive".

Deborah says that she has used most of the money she has received to date from the Transport Accident Commission of Victoria to live on and to pay her medical expenses since the collision. She also stated "most of my medical expenses are paid for by TAC". In fact, her entitlement to medical expense coverage will continue whether or not she has a successful claim for compensation.

At the date of the deceased's death, Deborah owned a property situated at Wentworthville in Sydney. In late May 2013, contracts for the sale of that property were entered into. The sale price was $360,000. After the payment of the debt secured by registered mortgage on that property ($239,188), the net proceeds of sale ($107,263) were paid into the trust account of Deborah's solicitors. Mr Boitano gave oral evidence that, of this sum, $12,800 remains held in his firm's trust account.

Deborah's mother, Vera Edna Dell Morgan ("Vera"), died on 16 February 2011. She left a Will dated 4 September 1968. This court granted Letters of Administration with the Will annexed to Neville Mark Morgan (referred to as Mark in the present proceedings) and Deborah on 15 September 2011. (The Public Trustee of Queensland, referred to in the Will as the Public Curator of Queensland, the executor, renounced probate.)

Deborah is an equal joint residuary beneficiary, with Mark, who is her brother, of the whole of Vera's estate. However, two of Deborah's children, Justyn and Selena, commenced separate proceedings for a family provision order out of the estate or notional estate of their grandmother, Vera. Slattery J heard each of those proceedings, together, in late August and early September 2013, and his judgment, in each case, was reserved.

The reasons for judgment of Slattery J in that matter has now been published, and bears the medium neutral citation Justyn Marcus Ng v Neville Mark Morgan; Selena Natanie Ng v Morgan; Commonwealth Bank of Australia v Neville Mark Morgan in his capacity as Administrator of the estate of the late Dell Smith [2014] NSWSC 536.

His Honour found:

"Over time and with hard work [Vera] had astutely built up real estate investments in Sydney, using her professional skills as a nurse. She left an estate with a net value of over $2.5 million."

Leaving aside the orders to be made in relation to costs, his Honour concluded, at [203]:

"In my view the appropriate provision out of the deceased's estate is for them each to be given a half interest in 89 Bowden Street, free of any mortgage liability. That will be the order for provision of the Court. In Selena's case that will come with the condition of repayment of the estate discussed earlier in these reasons."

Earlier, at [129], his Honour had noted that, when the court granted Letters of Administration on 15 September 2011, the estimated value of 89 Bowden Street was $850,000.

Slattery J dealt with the issue of costs, in that matter, in a subsequent judgment, the medium neutral citation of which is Ng v Morgan; Ng v Morgan; Commonwealth Bank of Australia v Neville Mark Morgan in his capacity as Administrator of the estate of the late Dell Smith (No 2) [2014] NSWSC 677. His Honour concluded:

"Selena must pay 15 per cent of the estate's costs of all the family provision proceedings but not the possession proceedings. The estate should deliver 89 Bowden Street to Selena and Justyn free of all encumbrances not just the Commonwealth Bank's mortgage. The estate should pay 80 per cent of Justyn and Selena's costs of all possession issues in the proceedings. The estate should reimburse Justyn but without interest, for all share sale proceeds that he contributed to the estate, so that it could meet the Bank's mortgage liability. And the estate's costs in relation to the forgery issue are fixed under Succession Act, ss 66 and 99 in the sum of $38,000."

Relevantly, his Honour then made the following orders:

"2. The Plaintiffs receive provision out of the estate of the deceased by way of a devise of the realty at 89 Bowden Street, Ryde ('the realty') being the whole of the land contained in Folio Identifier 18/111/4346 such property to be received by the Plaintiffs as tenants in common in equal shares free of any mortgage or other encumbrance (including land tax).

3. The Plaintiffs have the right to reside in the realty from the death of the deceased.

4. The benefit passing to Selena Ng under order 2 herein is charged with the payment to the Executors of -

(a) $38,000.

(b) Interest on $38,000 from 9 November 2011 until the date of payment pursuant to the rates fixed under Civil Procedure Act, s.100.

5. The costs of Justyn Ng on the ordinary basis are to be paid out of the estate of the deceased.

6. 85% of the costs of Selena Ng on the ordinary basis are to be paid out of the estate of the deceased.

7. Selena Ng to pay 15% of the costs of the Defendants of both family provision proceedings herein on the indemnity basis.

8. The Defendants' costs on the indemnity basis are to be paid out of the estate of the deceased.

9. In respect of proceedings 2013/135797 (the possession proceedings):

(a) The Defendants (in the proceedings herein) pay 80% of the costs of the Plaintiffs (in the proceedings herein) on the ordinary basis, and

(b) The Defendants (in the proceedings herein) are to account to Justyn Ng for all share sale proceeds he paid to the estate for the purposes of the reduction of the Commonwealth Bank mortgage, such moneys accounted for to be free of interest."

It follows, from the above, that Deborah's financial resources are not known with certainty. Obviously, they will include the provision made for her in Vera's Will, although the quantum of that provision cannot be calculated with precision.

It was for this reason that following the conclusion of the hearing, I stood the matter over, part heard, and made the following notation by consent of the parties:

"Notes the parties are to provide a statement of agreed facts as to the entitlement of the Defendant to property out of her mother's estate and the Defendant's entitlement, or potential entitlement, to damages and/or compensation sustained as a result of the accident in which the deceased died and in which she was injured."

On 16 June 2014, senior counsel for Deborah, Mr Ellison, (who had also appeared for her in the hearing before Slattery J), provided additional submissions in respect of Deborah's entitlements to damages and compensation as a result of the accident and in respect of the value of her share of Vera's estate. (I have incorporated some of what he included in relation to the potential entitlements to damages/compensation above.)

Relevantly, Mr Ellison's submissions, which I marked as Ex. D2, contained the following summary of information in relation to Vera's estate:

"Excluding [the property at] 89 Bowden [Street] which passes to the successful Plaintiffs in specie, ... the above figures [in relation to Vera's estate] total -

(a) Assets $ 2,154,886

(b) Liabilities $ 1,196,229

(c) Net estate $ 958,657

Deborah will receive half the above net amount, calculated as $479,328.00 less 50% Capital Gains Tax."

On 17 June 2014, senior counsel for the Plaintiffs, Mr Wilson, sent an email to my Associate to the effect that, even though the Plaintiffs were not involved in the proceedings before Slattery J, they accepted that Mr Ellison's submissions accurately reflected the effect of Slattery J's judgment. He also stated that in the circumstances, each of the Plaintiffs maintained her, or his, claim to a legacy of $50,000 out of the notional estate together with their costs on the ordinary basis. I marked the email as Ex. P5.

I will refer, again, to Mr Ellison's submissions later in these reasons.

The Statutory Scheme - The Act

Introduction

Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. Although I have set out most of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is equally important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions in the application.

The former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008 (NSW). A new Chapter 3 was added to the Act, which dealt with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. Importantly, this should not be taken to mean that the Act confers upon those persons a statutory entitlement to receive a certain portion of a deceased person's estate. Nor does it impose any limitation on the deceased's power of disposition by his, or her, Will. It is only if the statutory conditions are satisfied that the court is empowered, under the Act, to alter the deceased's disposition of his, or her, estate, to produce a result that is consistent with the purpose of the Act. Even then, the court's power to do so is discretionary.

Section 58(2) of the Act provides that an application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the court otherwise orders on sufficient cause being shown. There is no dispute that these proceedings were commenced within time.

Grant of Administration

As has been noted above, there has been no grant of administration in respect of the deceased's estate. A preliminary question, namely whether it is necessary for there to be a grant of administration in this estate, before the Plaintiffs' application can be dealt with, was debated during oral submissions, so I shall deal with it.

(I should mention that senior counsel for Deborah stated in his written submissions: "The Defendant does not oppose the making of such [an] order if the court is otherwise satisfied." No other submissions, in writing, were made, by either senior counsel regarding the making of an order for administration.)

Section 59 of the Act simply states that the court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person upon being satisfied of certain things to which I shall turn later in these reasons. For present purposes, it need only be said that there is no requirement, in s 59, that a grant of administration is a pre-condition of the power to make an order.

In s 3 of the Act, "deceased person" is defined as "including any person in respect of whose estate administration has been granted". The use of the word "including", suggests that the phrase is not limited to only such a person. In this regard, the Act differs from the former Act, which, in s 7, specifically referred to "a deceased person in respect of whom administration has been granted". This wording in the former Act meant that the court had no power to make an order under that section unless and until there had been a grant of administration.

"Estate" is not defined in the Act, although under s 6 of the former Act, it was defined "in relation to a person dying leaving a will, includes property which would, on a grant of probate of the will, vest in the executor of the will or, on a grant of administration with the will annexed, vest in the administrator appointed under that grant". There is no reason to think that the definition would not be equally applicable to the Act.

"Notional estate" of a deceased person is defined in s 3 of the Act to mean property designated by a notional estate order as notional estate of the deceased person. "Notional estate order" means an order made by the court under Chapter 3 designating property specified in the order as notional estate of a deceased person. A person's rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act.

Section 55 of the Act sets out the circumstances in which "administration is granted in respect of the estate of a deceased person". In s 3 of the Act, "administration" is defined by reference to s 55 of the Act. That section provides, in sub-s (1), that "administration" is granted in respect of the estate of a deceased person in certain specified events including where "probate of the will of the deceased person is granted in New South Wales or granted outside New South Wales but sealed in accordance with s 107(1) of the Probate and Administration Act1898" or where "letters of administration of the estate of the deceased person are granted in New South Wales ... whether for general, special or limited purposes".

In Hitchcock v Pratt [2010] NSWSC 1508, Brereton J wrote, at [43]:

"... I would not have dismissed the proceedings on the ground that there was no relevant grant in New South Wales. A grant was not previously a precondition to the institution of proceedings, although one had to be obtained before an order was made [Leue v Reynolds (1986) 4 NSWLR 590]. Under the current legislation, not even that is necessary. And even if it were, a grant under s 91 could be made prior to any family provision order."

Respectfully, I agree that a grant of administration is not required at the time an application for a family provision order is made. Section 58(1) of the Act specifically provides that an application for a family provision order may be made whether or not administration of the estate of the deceased person has been granted (my emphasis). (However, there is a note to s 58(1) that administration may be granted for the purposes of an application for a family provision order under s 91.)

Also important to note, is that there is no requirement in s 59 of the Act that there be a grant of probate as a condition on the power to make an order.

Section 91 of the Act, in fact, provides:

"Grant of probate or administration to enable application to be dealt with

(1) This section applies if an application is made by a person for a family provision order, or notional estate order, in respect of the estate of a deceased person, or deceased transferee, respectively, in relation to which administration has not been granted.

(2) The Court may, if it is satisfied that it is proper to do so, grant administration in respect of the estate of the deceased person or deceased transferee to the applicant for the purposes only of permitting the application concerned to be dealt with, whether or not the deceased person or deceased transferee left property in New South Wales.

(3) The granting of administration under the Probate and Administration Act 1898 does not:

(a) prevent the Court from granting administration under this section, or

(b) unless the Court otherwise orders, affect any previous grant of administration under this section.

(4) The provisions of the Probate and Administration Act 1898 apply to a grant of administration under this section, and to the legal representative of the estate, in the same way as they apply to a grant of administration under that Act and the legal representative of any estate for which such a grant has been made."

Thus, under s 91, the court may, if it is satisfied that it is proper to do so, grant administration in respect of the estate of the deceased person for the purposes only of permitting the application concerned to be dealt with (my emphasis). The application referred to is for a family provision order and for a notional estate order.

Section 91 does not provide for the making of a grant for the purposes of an application for a family provision order or for a notional estate order before such an application is made: Estate of Terry [2012] NSWSC 927, per White J, at [12]. Importantly, the section is different from s 41A of the Probate and Administration Act1898, which provided for a grant to be made "in order to permit an application to be made under the Family Provision Act1982". It is to be remembered, also, that s 7 of the former Act specifically required there to be a grant of an administration before the court could make an order under that section: Cabban v Cabban [2010] NSWSC 1433.

Thus, it seems to me, the Act differentiates between "when an application is made" (the date of the filing of the Summons) and "when the application ... is dealt with" (the date of making a family provision order or notional estate order, whether by agreement of the parties, or following a contested hearing).

The common prerequisite for s 91 to apply, at either date, is that there is an estate of a deceased person, or deceased transferee, respectively, in relation to which administration has not been granted. However, the use of the word "permitting" in s 91, in my view, is important. The word usually means "authorising", "allowing" or "not preventing". What follows in the sub-section avoids the need for there to be real and personal estate which the deceased died seised or possessed of, or entitled to, in New South Wales, a pre-requisite to the court having jurisdiction to grant administration: s 40 Probate and Administration Act.

The court is not given any guidance about how to exercise the power in s 91. Not unnaturally, the section does not provide any criteria by reference to which the court should be satisfied. No requirements are prescribed by the Act to assist the court to determine if it is proper to grant administration in respect of the estate of the deceased or deceased transferee, to the applicant, solely for the purpose of permitting the application concerned to be dealt with.

Nor is it useful to purport to lay down an exhaustive list of the criteria by reference to which an application ought to be determined. Whether the court is satisfied that it would be proper will be fact specific and determined on its own merits.

There are several matters, in my view, that might be relevant at the time the application under s 91 is being considered, including whether:

(a) a family provision order or notional estate order in favour of the applicant is to be made;

(b) administration is required to facilitate dealing with the real and personal estate which the deceased died seised or possessed of or entitled to in New South Wales, or the property the subject of the notional estate order to give effect to the family provision order which is to be made; and

Section 91 would be an unnecessary inclusion in the Act if a grant were not required for the purposes of the application that has been made being dealt with. Yet, the discretion given to the court ("may, if it is satisfied that it is proper to do so") should be noted. The discretion suggests that there may be cases when it would not be proper to do so.

I have considered whether the court could be satisfied that it would be "proper to do so" if there were only property of the deceased that could be the subject of a notional estate order. There may be such occasions since s 91 applies to both an application for a family provision order or for a notional estate order.

There is one other matter that I consider relevant to the determination of whether a grant of administration is necessary. Section 72 of the Act, relevantly, provides:

"A family provision order takes effect, unless the Court otherwise orders, as if the provision was made:

(a) in a codicil to the will of the deceased person, if the deceased person made a will, or

(b) in a will of the deceased person, if the deceased person died intestate."

Thus, the applicant in favour of whom a family provision order is made, receives that benefit as the result of the creation of rights pursuant to the making of the order. That result is reached because the order takes effect as if it had been made in a codicil to the will of the deceased, or in a will if the deceased died intestate: also see, Union-Fidelity Trustee Co of Australia Ltd v Montgomery (1976) 1 NSWLR 134, at p 141; McLeod v Johns (1981) 1 NSWLR 347, at p 349.

In addition, as was pointed out in Official Receiver in Bankruptcy v Schultz [1990] HCA 45; (1990) 170 CLR 306, at 315-316, (referring to s 41 of the Succession Act1981 (Qld), which deals with the claim for maintenance and support):

"The wide powers conferred by s 41 and the manner in which sub-s. (10) is expressed strongly suggest that the effect of an order under the section is not to change the benefits to be expected from the right to due administration arising pursuant to the will, but to superimpose upon the duty of due administration a judicial order made pursuant to statute. In other words, a new and independent obligation is created which has an impact upon the way in which the executor administers the estate pursuant to his or her existing duty, by compelling him or her to comply with the terms of the court's order. Each beneficiary's right to due administration is made subject to the terms of the order in the sense that the order governs the executor's actions to the exclusion of any inconsistent direction contained in or derived from the will."

Clearly, an applicant who obtains a family provision order has the right to seek orders giving effect to the family provision order against the executor or administrator of the deceased's estate to whom probate or administration has been granted because of the effect of s 72. As a person then beneficially entitled to part of the deceased's estate, he or she does not have a proprietary interest in the property which is the subject of the family provision order but possesses a right to have the estate duly administered: Commissioner of Stamp Duties (Queensland) v Livingston [1964] UKPCHCA 2; (1964) 112 CLR 12; (1965) AC 694.

However, as provided for in s 72, the court has power to make an order that a family provision order not have the effect set out in (a) and (b) of that section. Thus, in a case where an order under s 91 is not sought or made, but where the holder of property that may be designated as notional estate is a party to the proceedings, the court may need to make an "otherwise order" under s 72, thereby permitting the Plaintiff to proceed against the holder of property designated as notional estate in the event that the family provision order were not satisfied. (The matter could otherwise be dealt with by the making of an order of the type set out in [21] above.)

Practically speaking, an issue regarding whether an order under s 91 should be made does not arise very often. The cases where there is only notional estate are reasonably rare. Then, an order is made, for the purposes of the proceedings, that the holder of the property sought to be designated as notional estate is to be joined as a party to the proceedings and that any order, and any judgment or order subsequently entered, or made, in the proceedings, binds the deceased person's estate to the same extent as the estate would have been bound had a personal representative of the deceased person been a party to the proceedings.

Usually, as in this case, it is the holder of the property sought to be designated as notional estate, who is a Defendant in the proceedings.

In summary, then, in a case where there is an application for a family provision order in respect of the estate of a deceased person, or deceased transferee, or a notional estate order, in relation to which administration has not been granted:

(a) Where there is real and personal estate of which the deceased person dies seised, or possessed of, or entitled to, in New South Wales, at the date of death, a grant of administration is required before an application for a family provision order can be dealt with and it would be proper to make an order under s 91.

(b) In any other case, where there is no such real or personal estate, if:

(i) the holder of the property the subject of the application for a notional estate order is a party to the proceedings;

(ii) a family provision order and a costs order is made in favour of the applicant;

(iii) a notional estate order is, or may be, made in respect of the property the subject of the application for a notional estate order for the purposes of a family provision order, or for the purposes of an order that the whole, or part, of the costs of proceedings in relation to the estate or notional estate of a deceased person be paid out of the notional estate of the deceased person;

(iv) an order is made that the holder of the property the subject of the notional estate order, or that person agrees, to satisfy the family provision and costs orders; and

(v) the court makes an order that the family provision order not take effect as set out in s 72(a) or (b),

then, it may not be "proper" to make a s 91 grant.

In stating my view, there is much to be said for the view expressed by Young J (as his Honour then was) in Re Estate Harriett Cassel [2000] NSWSC 294, at [8] - [10], although in that case, he was speaking of the former Act:

"The grant under s41A is not a grant entitling the grantor to administer the estate in any way at all. It is a grant purely to get over the barrier that would otherwise prevent an application being made under the Family Provision Act.

Accordingly, what usually occurs in this sort of case is that a grant is made to the plaintiff who is about to bring proceedings under the Family Provision Act. The Court, when hearing those proceedings, then needs to appoint a person to represent the estate under Pt 8 r16, or some other rule under Pt 8.

All this seems rather pointless. A grant is made purely to remove the barrier to the Family Provision Act claim. It does not provide for the administration of the estate, provide authority for anyone to enquire as to the deceased's assets or the identity or wishes of the beneficiaries. It is left to the plaintiff to make a series of applications, (1) to the Probate Court for a grant; and (2) to the Equity Court for directions as to who should be a representative defendant. These costly applications confer no real benefit on anyone. It may well be that s41A should be amended or the Family Provision Act amended so as to permit applications to be made without a grant, provided that the Court is able to appoint a person to represent the estate."

In the present case, since Deborah has been made a party to the proceedings and because she has agreed to satisfy any family provision order and costs order made in favour of any of the Plaintiffs, before a notional estate order is made, it is not necessary, to grant administration under s 91.

If there is any difficulty in giving effect to, or implementing, the family provision order in favour of each Plaintiff that I propose to make, I would then be prepared to make an order in favour of each Plaintiff under s 91.

Eligibility

The key provision is s 59 of the Act. The court must be satisfied, first, that an applicant is an eligible person within the meaning of s 57(1) (s 59(1)(a)). In New South Wales, there is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made.

Relevantly, in this case, Alana relies upon the category of eligibility referred to in s 57(1)(e) of the Act, namely that she is a person who was, at any particular time, wholly, or partly, dependent on the deceased, and who was, at that particular time, or at any other time, a member of the household of which the deceased was a member.

It can be seen, from the sub-section, that there are two limbs. The first is a relationship of dependence, whether wholly or partial, upon the deceased; the second is being "a member of the household of which the deceased person was a member". The language in the sub-section is reflective of the person's status, as well as her, or his, relationship to the deceased. There is no age limit placed on such a person making an application.

It is unnecessary to discuss the section in any further detail, as there is no dispute, and I am otherwise satisfied from Alana's evidence, that she is an eligible person within the meaning of the Act. It appears from that evidence that the deceased treated her as his child, even to the extent of contacting her to make arrangements to see Jake and Kristy "as he would not contact my mother".

Relevantly, in this case, Jake and Kristy rely upon the category of eligibility referred to in s 57(1)(c) of the Act. There is no dispute that each is "a child of the deceased" and an eligible person within the meaning of that term in the Act.

Accordingly, each applicant is an eligible person within the meaning of the Act and has the status to bring her and his claim.

The language of each of the relevant sub-sections is expressive of the person's status, as well as her or his relationship to the deceased. There is no age limit placed on an eligible person making an application.

Factors Warranting the Making of the Application

In this case, Alana, as a person who is an eligible person by reason only of paragraph (e) of the definition of "eligible person" in s 57(1), must satisfy the court that, having regard to all the circumstances of the case (whether past or present), there are factors which warrant the making of the application (s 59(1)(b)).

The Act does not specify the "factors which warrant the making of the application". As Pembroke J noted, in Wilcox v Wilcox [2012] NSWSC 1138, at [16], "[n]o legislative assistance is given as to the intended scope or meaning of this enigmatic requirement".

However, in considering the meaning of what he described as "this poorly conceived and clumsily expressed subsection" in the former Act (which did not form part of the Draft Bill produced by the Law Reform Commission), M McLelland J said, in Re Fulop, Deceased (1987) 8 NSWLR 679, at 68 (approved in substance by the Court of Appeal in Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241), that the factors are factors which, when added to facts which render the applicant an eligible person, give him, or her, the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased.

I have dealt with the meaning of the phrase in other cases, the most recent of which is Doshen v Pedisich [2013] NSWSC 1507. I note that Slattery J, in Ng v Morgan, at [174], agreed with the view that I had expressed in that, and other, cases.

Again, there is no need to discuss the section further as there is no dispute, and I am otherwise satisfied, that there are factors warranting the making of Alana's application. These include the nature and duration of their relationship and how the deceased regarded Alana.

Inadequacy of Provision

It is only if eligibility and, as is necessary in the case so far as it relates to Alana, factors warranting the making of the application are found, that the court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is this mandatory legislative imperative that drives the ultimate result and it is only if the court is satisfied of the inadequacy of provision, that consideration is given to whether to make a family provision order (s 59(2)). Only then may "the Court ... make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made".

Allsop P in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656, commented, at 658 [6]:

"... the expression of the task in s 59 is subtly different from the previous legislation. A prohibition against making an order unless satisfied of circumstances of an evaluative character, is different in emphasis from a permission to make an order if satisfied of circumstances of an evaluative character... The exercise of power to make the order is conditioned on the Court being satisfied of certain things in s 59(1). The order that may be made is described in s 59(2). The two elements are described in s 60(1)(b) as 'whether to make [an] ... order and the nature of any ... order.' Section 60(2) provides a detailed body of considerations for the task in s 59."

Basten JA, at 662-3 [26], put the differences this way:

"As appears from the language of the relevant provisions set out at [66]-[67] below, the Succession Act differs from the Family Provision Act in three significant respects. First, although both conferred similar powers on the court, the conditions of their exercise differ. The Family Provision Act required that the court 'shall not make an order ... unless it is satisfied that' the provision made by the testator is 'inadequate': s 9(2). The Succession Act provides that the court 'may ... make a family provision order ... if the court is satisfied that' the testator has not made 'adequate provision' for the applicant: s 59(1). The changes in language may have been intended to remove double negatives, but there is a resultant change in emphasis. The apparent effect is to widen the discretion vested in the court. That which could satisfy a court that the provision made is 'not adequate', for the purposes of the Succession Act, might not have been sufficient to remove the prohibition under the Family Provision Act, which operated in the absence of affirmative satisfaction that the provision was 'inadequate'. There may well be no bright line boundary between adequacy and inadequacy."

Barrett JA, at 677-8 [82] - [86], said:

"The court's task under the new legislation is in substance the same as that under the old. Three differences relevant to the kind of case under discussion may, however, be noted (I leave to one side as irrelevant to such cases the extension of the s 60(2) criteria to the question of 'eligible person' status); and two postulated differences may be rejected.

First, the Succession Act provisions direct attention, upon the initial inquiry into adequacy, to provision made by the deceased's will and the intestacy laws. The former legislation referred merely to provision 'out of the estate' but it was clear that the operation of the intestacy laws was to be taken into account in deciding what provision was available 'out of the estate': see, for example, Smilek v Public Trustee [2008] NSWCA 190.

Second, the Succession Act confines attention, upon that initial inquiry, to provision made by the will and the intestacy laws. There is no reference to provision made during the deceased's lifetime. In this respect, there is a departure from the Family Provision Act approach under which provision made in favour of the eligible person "either during the person's lifetime or out of the person's estate" was to be examined upon the initial inquiry into adequacy.

Attention may, however, still be given to provision made in favour of the applicant during the deceased's lifetime. That is now one of the factors to which regard may be had under s 60(1)(b) when the court is deciding whether to make a family provision order and the nature of the order: see s 60(2)(i). Under the Succession Act, therefore, provision made by the deceased while living thus has a continuing relevance with altered emphasis. Such provision is no longer something to be taken into account in deciding whether adequate provision has been made; but it may be taken into account in deciding whether an order should be made and the nature of the order.

The third difference to be noted is the Succession Act's more comprehensive catalogue of matters that may be taken into account in formulating an order for provision. Section 9(3) of the Family Provision Act empowered the court to 'take into consideration' matters there stated in 'determining what provision (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person'. Section 60(1)(b) of the Succession Act allows the court to 'have regard to' the matters set out in s 60(2) 'for the purpose of determining ... whether to make a family provision order and the nature of any such order'. The Succession Act lists a greater number of such matters than did the Family Provision Act."

Relevantly to this case, other than by reference to the provision made by the operation of the intestacy rules in relation to the estate of the deceased, s 59(1)(c) of the Act leaves undefined the norm by which the court must determine whether the provision, if any, is inadequate for the applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the court to the provision actually made on intestacy, on the one hand, and to the requirement for maintenance, education and advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education and advancement in life of the applicant.

In Grey v Harrison [1997] 2 VR 359, at 366-367, Callaway JA observed:

"There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight."

It was said in the Court of Appeal (by Basten JA) in Foley v Ellis [2008] NSWCA 288, at [3], that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254, at [126], White J said that the assessment of what provision is proper involved "an intuitive assessment". Stevenson J has described it as "an evaluative determination of a discretionary nature, not susceptible of complete exposition" and one which is "inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific": Szypica v O'Beirne [2013] NSWSC 297, at [40] (citing Manuel v Lane [2013] NSWCA 61, at [9], per Emmett JA, speaking in relation to s 20 of the Property (Relationships) Act 1984 (NSW)).

Under s 59(1)(c) of the Act, the time at which the court gives its consideration to the question of inadequacy of provision is the time when the court is considering the application.

"Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89, at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime".

Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act.

The term "maintenance" usually refers to a provision for the supply of the necessaries of life. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at 228-229, said, of the words "maintenance", "support" and "advancement":

"'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education."

In Alexander v Jansson [2010] NSWCA 176, Brereton J (with whom Basten JA and Handley AJA agreed), at [18], stated:

"'Proper maintenance' is not limited to the bare sustenance of a claimant [cf Gorton v Parkes [sic] [1989] 17 NSWLR 1], but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility."

In J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths), at 542, the learned authors comment upon the difference between the concepts of maintenance and advancement:

"The essential difference between 'maintenance' and 'advancement' is that 'maintenance' denotes a periodical payment or a payment which could validly be made periodically, whereas 'advancement' denotes a definite unique outlay for a specific purpose. Recipients of maintenance must, practically speaking, be infants, but adults may be recipients of an advancement.

An advancement can never be made of a sum of money which the person to whom it is made can immediately pocket, but it must be made with a view to the establishment of that person in a business or profession, or otherwise in some definite way for that person's benefit, the whole essence of an advancement being the immediate payment of a tolerably large sum for an immediate benefit to one beneficiary."

In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, Murphy J noted, at 505:

"Provision for advancement may, for example, extend to retraining or the gaining of a qualification which could advance and perhaps enable an applicant to maintain himself or herself."

In In the Estate of Puckridge, Deceased (1978) 20 SASR 72, at 77 King CJ said:

"The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an earlier period of life in the members of the family: Blore v Lang [(1960) 104 CLR 124] per Dixon CJ at p. 128."

Master Macready (as his Honour then was) in Stiles v Joseph (Supreme Court (NSW), Macready M, 16 December 1996, unrep) said, at 14-16:

"Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application ... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses the financial assistance which an applicant may need for his or her maintenance and advancement in life in the following terms:- If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that ... [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need. (at 541)

In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of ... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274...

In Certoma, The Law of Succession In New South Wales (2nd Ed) at 208, it is said:

'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, an income-producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.'

The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995) ... notes ... that:

'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'"

In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J, at [114] noted:

"In the context of the Act the expression 'advancement in life' is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase 'advancement in life' has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the 'maintenance and support' of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support."

In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said:

"The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)."

In McCoskerv McCosker [1957] HCA 82; (1957) 97 CLR 566, Dixon CJ and Williams J stated, at 575:

"The presence of the words 'advancement in life' in the ... Act in addition to the words 'maintenance and education' is not unimportant. ... 'Advancement' is a word of wide import."

The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, whereas "proper" prescribes the standard, of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127, per Buss JA, at 145 [72], [77].

These words were considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463, at 476:

"The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances."

Dixon CJ and Williams J, in McCosker v McCosker, at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word "proper", that:

"It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."

In Goodman v Windeyer, Gibbs J said, at 502:

"[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards."

In Vigolo v Bostin, at 228, Callinan and Heydon JJ said:

"[T]he use of the word 'proper' ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of the kind which was made here...The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."

Santow J pointed out, in Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep), that "adequate" and "proper" are independent concepts. His Honour said, at 12:

"'Adequate' relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. 'Proper' depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied ..."

In Palaganio v Mankarios [2011] NSWSC 61, at [72], White J observed that the question of what provision for a person's maintenance, education or advancement in life is "proper" and the question of whether the provision made by the deceased was "adequate" for that person's maintenance, education or advancement in life involve value judgments on which minds can legitimately differ, and that there are no definite criteria by which the question can be answered.

His Honour further observed, in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522, at [123]:

"The question of what level of maintenance or advancement in life is 'proper' depends on all of the circumstances of the case 'including the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty' (Singer v Berghouse (1994) 181 CLR 201 at 210)."

Until recently, it was unanimously thought that there are two stages of the determination. The first stage, provided for by s 59(1)(c), has been described as "the jurisdictional question": Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201, at 208-209. At this stage, the court will consider whether it can make an order for provision for the maintenance, education or advancement in life of a particular applicant. The court does this by determining whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased and/or by operation of the intestacy rules, for the applicant. If it is not so satisfied, then the court is precluded from making a family provision order. At this stage, the court has regard to, among other things, the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased and the circumstances and needs of the other beneficiaries or potential beneficiaries: see McCosker v McCosker, at 571-572; Singer v Berghouse, at 209-210; Vigolo v Bostin, at [16], [75], [112]; Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757, at [70].

Whether an applicant has a 'need' or 'needs' is also a relevant factor at the first stage of the enquiry. It is an elusive concept to define, yet, it is an element in determining whether "adequate" provision has been made for the "proper" maintenance, education and advancement in life of the applicant in all of the circumstances: Collins v McGain [2003] NSWCA 190 (Tobias JA, with whom Beazley and Hodgson JJA agreed).

In Collins v McGain, Tobias JA said:

"42. Further, there can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focussed. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies.

...

47. As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is 'proper maintenance etc' of the eligible person. It is because of that context that, in the present case, the 'proper maintenance etc' of the appellant required consideration of a need to guard against the contingency to which I have referred."

In Devereaux-Warnes v Hall (No 3), at [81] - [84], Buss JA said, in respect of the first stage of the process:

"The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources: see Singer (at 227) per Gaudron J.

'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc: see Gorton v Parks (1989) 17 NSWLR 1 (at 10-11) per Bryson J.

The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other: see Hunter (at 575) per Kirby P.

Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc: see Singer (at 227) per Gaudron J. Compare Gorton (at 6-11) per Bryson J; Collicoat v McMillan [1999] 3 VR 803 at [38], [47] per Ormiston J."

"Need", of course, is a relative concept: de Angelis v de Angelis [2003] VSC 432, per Dodds-Streeton J, at [45].

As Callinan and Heydon JJ emphasised, in Vigolo v Bostin, at 231 [122], the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. The whole of the context must be examined.

In the event that the court is satisfied that the power to make an order is enlivened (in this case, it is satisfied that the applicants are eligible persons, that, in the case of Alana, there are factors warranting the making of an order, and that adequate provision for the proper maintenance, education or advancement in life of the applicants has not been made), then the court determines whether it should make an order and, if so, the nature of any such order, having regard to the facts known to the court at the time the order is made.

The second stage of the process arises under s 59(2) and s 60(1)(b) of the Act. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that the decision made at the second stage involves an exercise of discretion in the accepted sense. The fact that the court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour.

In relation to the terms of the sub-section, there is something to be said for the view expressed by Russell LJ, in Ross v Collins [1964] 1 All ER 861; [1964] 1 WLR 425, at 432, with whose speech Lord Diplock in Carega Properties SA (formerly Joram Developments Ltd) v Sharratt [1979] 2 All ER 1084; [1979] 1 WLR 928, at 931, agreed:

"Granted that 'family' is not limited to cases of a strict legal familial nexus ... It still requires, it seems to me, at least a broadly recognisable de facto familial nexus. This may be capable of being found and recognised as such by the ordinary man-where the link would be strictly familial had there been a marriage or where the link is through adoption of a minor, de jure or de facto, or where the link is 'step-', or where the link is 'in-law' or by marriage. But two strangers cannot, it seems to me, ever establish artificially for the purposes of this section a familial nexus by acting as brothers or as sisters, even if they call each other such and consider their relationship to be tantamount to that. Nor, in my view, can an adult man and woman who establish a platonic relationship establish a familial nexus by acting as a devoted brother and sister or father and daughter would act, even if they address each other as such, and even if they refer to each other as such and regard their association as tantamount to such. Nor, in my view, would they indeed be recognised as familial links by the ordinary man."

Also, in my view, the word "family" does not have the same meaning as the term "member of the household".

As stated, Alana is the stepdaughter of the deceased. At the age of two, Michelle and the deceased married and, thereafter until 1998 (between the ages of 2 and 12 years of age, Alana lived with the deceased and her mother in the family home. Alana did not retain any relationship of significance with her biological father. She changed her name to Curnow and, for all intents and purposes, the deceased was her father.

For a period of two years from 1999 until about 2002, following the separation and divorce of the deceased and Michelle, Alana had no contact with the deceased. Apart from this period, Alana maintained a fairly close relationship with the deceased up until his death. She kept in contact with him face to face, when possible, and contacted him by telephone and social media every few weeks. I am satisfied that she had a reasonably close relationship with the deceased.

Jake is the son of the deceased. He lived in the home of the deceased and Michelle from his birth in 1990 until 1998 when his parents separated. He then went with Michelle to live in Queensland and he had no contact with the deceased until 2002. Thereafter, he maintained a fairly close relationship with the deceased up until his death seeing him regularly during holidays and otherwise keeping in contact by telephone and by way of social media.

Kristy is the daughter of the deceased. She lived with the deceased and Michelle from her date of birth in 1992 until 1998 when her parents separated. She had no contact with the deceased from 1999 until 2002 but thereafter maintained a reasonably close relationship with him up until his death seeing him regularly during holidays and otherwise keeping in contact by telephone and by way of social media.

Although there was some dispute about the regularity of contact, I am satisfied that each had a reasonably close relationship with the deceased and that the distance between them was geographical rather than emotional.

(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate

There is no definition of the words "obligations" or "responsibilities" to which the sub-section refers in the Act. Importantly, the Act does not expressly refer to, or identify, any "moral duty". Yet, one might conclude that what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities.

This factor requires a balancing of potentially competing obligations as between an applicant and a beneficiary.

Merely being the stepdaughter of the deceased does not, necessarily, give rise to any obligation or responsibility, to make adequate provision for the applicant's proper maintenance or advancement in life. Leaving aside that relationship, the deceased did not have any legal obligation to Alana. It is to be remembered that the "step" relationship is one of affinity, not blood.

Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal obligation to Jake or Kristy, as an adult, imposed upon him by statute or common law.

Yet, an obligation or responsibility, to make adequate provision for the proper maintenance, education or advancement in life, is recognised in the case of a child. In Flathaug v Weaver [2003] NZFLR 730, at 737, the origin of the obligation which underpins the Act's recognition of the duty owed by a parent to a child was put in this way:

"The relationship of parent and child has primacy in our society. The moral obligation which attaches to it is embedded in our value system and underpinned by the law. The Family Protection Act recognises that a parent's obligation to provide for both the emotional and material needs of his or her children is an ongoing one. Though founded on natural or assumed parenthood, it is, however, an obligation which is largely defined by the relationship which exists between parent and child during their joint lives."

The fact that an applicant was financially independent of the deceased, for many years, before the deceased's death, is a relevant consideration in determining the extent of any obligation or responsibility owed. This factor may require a balancing of potentially competing obligations as between different applicants, or as here, as between each of the applicants and Deborah, as the beneficiary entitled on intestacy.

The deceased did not have any legal obligation to Deborah, as his wife, imposed upon him by statute, common law or otherwise. However, it is clear that, upon his death, he did have such an obligation, the nature of which I have discussed earlier.

(c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered

I have dealt with these matters earlier in these reasons. The net value of the deceased's estate and notional estate is small.

(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate

A consideration of this matter calls for a comparison of the financial resources of each applicant, and of Deborah as a competing claimant.

Alana resides with her de facto partner, Thomas, her two children from a previous relationship (Liana, aged 11 and Hayley, aged 6) and her and Thomas' child, Theon, aged 1.

Alana is currently employed as a shift manager at a hotel. She earns $1,996 per fortnight. Alana gave evidence that, in future, she hopes to pursue a career as a police officer. Thomas is employed as a security guard. His gross fortnightly income, as at February 2014, was disclosed to be $1,100. In her oral evidence, Alana confirmed that Thomas' income is within this range but said that it "fluctuates". In any event, it is clear that each has a continuing earning capacity.

Their joint fortnightly expenditure was disclosed, in an affidavit sworn 18 March 2013, to total $3,001 comprising:

Rent
$900
Groceries and household items
$600
Education, school uniforms, school excursions and camps
$ 82
Telephone charges
$140
Electricity charges
$140
Loan repayments
$657
Car Insurance and Registration
$ 77
Vehicle fuel and repairs
$160
Clothing
$ 50
Entertainment and gifts
$175
Medical and dental expenses
$ 20

Thus, their joint income exceeds their expenditure by $95 per fortnight.

Alana and Thomas have both accumulated superannuation. Alana has $8,000 and Thomas has $14,000. Additionally, they jointly own the following assets:

Nissan Patrol
$25,000
Furniture and personal effects
$25,000
Jewellery
$ 5,000

Alana's liabilities were said to include:

Personal loan
$25,000
Credit card loan
$ 3,000
Certagy Ezi-Pay retail payment plan
$ 400

Thomas also has an individual liability, in the form of a personal loan, of $17,290.

Alana also gave evidence that she has sold four items of property, over the last 5 years, valued at over $1,000. The property sold (including a horse, a horse float, and two motor vehicles) had a combined value of $64,990.

It is unnecessary to consider the financial resources of any of the children with whom Alana lives.

Jake resides with his de facto partner, Cassie.

Jake works as a paramedic, earning $2,300 gross per fortnight ($1,400 net). Cassie has a fortnightly income of $1,000. I am satisfied that Jake and Cassie each have a continuing earning capacity.

Their fortnightly expenditure was said to be $1,640, leaving a surplus of income over expenditure of about $760 per fortnight. The expenditure disclosed was as follows:

Rent
$605
Groceries and household items
$200
Medications
$ 60
Education
$100
Electricity
$ 60
Car Registration
$ 40
Vehicle fuel and repairs
$230
Clothing
$100
Entertainment
$200
Internet expenses
$ 45

The assets owned by Jake, outlined in an affidavit affirmed 21 March 2014, totalled $21,559 and comprised:

1999 Holden Commodore Wagon
$3,000
Money in bank
$8,000
Superannuation
$8,559
Furniture and personal items
$2,000

His only liability was said to be approximately $16,000 in the form of a HECS (Higher Education Contribution Scheme) loan.

Cassie's assets total $7,300, including a car ($7,000) and money in bank ($300). She also has a HECS debt of $16,000.

Kristy is employed casually at a hotel. She gave evidence that she works about 25 hours per week and that her average gross fortnightly income is $1,200.

She also receives Centrelink benefits, including Youth Allowance and Rent Assistance. These benefits, together, total about $416 per fortnight. Kristy was at one stage, but is no longer, eligible for a Centrelink Study Allowance. She does, however, hope to return to university study in the future.

Notwithstanding her eligibility for various benefits, I accept that Kristy has a continuing earning capacity.

Kristy's fortnightly expenditure comprises:

Rent
$233
Groceries and household items
$150
Medications
$ 10
Education
$ 60
Water rates
$ 20
Telephone charges
$ 40
Electricity charges
$ 50
Loan repayments
$338
Car Insurance and Registration
$ 77
Vehicle fuel and repairs
$190
Clothing
$100
Entertainment and gifts
$130
Medical and dental expenses
$ 20

With expenses totalling $1,418 per fortnight, Kristy is left with a surplus of income over expenditure of $198 per fortnight.

Kristy outlined her assets as follows:

Money in bank
$ 400
2007 Toyota RAV4
$15,000
Furniture and personal effects
$ 2,500
Jewellery
$ 200

Her liabilities were said to include a personal loan ($19,500), a Centrelink debt ($5,000) and a HECS debt ($40,000).

While Kristy shares rented accommodation with two friends and splits rental and utility expenses with them, the financial situation of each of her friends is not, otherwise, relevant to her financial circumstances.

Deborah owns the following assets:

Merrylands Property
$900,000
Yacht
$ 90,000
Furniture and household effects
$ 25,000
Money in bank
$ 1,335
Money in Trust Account (sale proceeds from Wentworthville Property)
$ 12,837
Superannuation
$ 48,755

(Of course, the bulk of these assets have passed to her by survivorship.)

As indicated earlier, Deborah is also a beneficiary of the estate of her late mother, Vera. As outlined above, after the orders made by Slattery J are taken into account, Deborah's entitlement is $479,328, less capital gains tax.

I have earlier referred to Deborah having received, in December 2011, a lump sum death benefit payment of $110,227 from the Transport Accident Commission of Victoria. Deborah's evidence is that she has "used most of that money to live on and to pay ... medical expenses since the collision".

Deborah may be entitled to compensation in her own right for the injuries she sustained as a result of the accident. I have dealt with some of the evidence about these matters earlier.

I should note that Deborah gave no evidence of the value of her claim. According to Mr Ellison's further submissions, "it is not known when Deborah's permanent impairment will be able to be assessed" and, therefore, the possibility that she will receive further compensation is indeterminable at this stage.

It was also contended that the Plaintiffs could have had Deborah cross-examined and then put on evidence of the value of her claim, a contention that I do not accept.

In all the circumstances, I do not propose to give the possibility of compensation much weight in the assessment of Deborah's financial resources.

Deborah was also the nominated beneficiary of the deceased's superannuation fund at the date of his death. In September 2012, she received $191,375 as the nominated beneficiary. Deborah says that the superannuation money has been wholly expended. She gave evidence that "[b]etween August and October 2012 [she] made 10 deposits totalling $140,000 into" the account of a man she knew as "Brian". She also says that she provided some money to her daughter, Kailah, who lives overseas. That amount was said to be "in excess of $15,000".

During cross-examination, Deborah was taken to copies of her bank records, which were tendered as Ex. P3 and Ex. P4, respectively, in the proceedings. The records detail several significant withdrawals during 2012, including withdrawals of $10,000 on 19 September, of $9,000 on 20 September, of in excess of $109,000 on 10 October, of $30,032 on 17 October, of $11,000 on 18 October, of $12,032 on 22 October, and of $44,108 on 25 October. Some of the transfers appear to be between Deborah's different accounts.

It was put, by senior counsel for the Plaintiff's that Deborah had, in fact, transferred $160,000 internationally to "Brian" in addition to those amounts transferred directly to Kailah, or to others for Kailah's benefit, whilst she was aware of the proceedings commenced by Alana, Jake and Kristy.

Deborah gave evidence that she could not recall the details of the transactions but accepted that $160,000 could have been transferred. She said, in respect of that proposition: "I could have. I actually cannot tell you that for sure". This does not provide a strong basis for concluding, as was submitted, that I should simply treat the amount as having been spent and therefore, completely irrelevant to my consideration of the claims by each of the Plaintiffs.

(I should say that I am not critical of Deborah's evidence in this regard because her medical condition may explain her inability to remember what had occurred. More significant, is the fact that there is no evidence given to demonstrate what steps were taken by her, or others on her behalf, to explain the transactions to which I have referred.)

Deborah says that she has "used the balance of [the deceased's] superannuation payment to live on" and says that her "expenses have been quite high because of [her] injuries and rehabilitation". (However, in this regard, I note her entitlement to have her medical expenses paid.)

Deborah also received an insurance payment of $7,762 in respect of a further motor vehicle accident in 2013 involving a Holden Barina that she owned. There is no evidence about whether that money has been expended.

Deborah is currently not employed. In submissions, it was put, by senior counsel for Deborah, that her "poor physical and mental health" render Deborah "unemployable". I accept, notwithstanding the evidence that, before the accident, Deborah was, at one time, a Chief Executive Officer and, at a later time, involved in the management of an importing and exporting wholesale business, with a substantial earning capacity, that Deborah now has virtually no capacity to earn an income. (I deal with her medical issues later.)

Deborah's current income is, therefore, limited to the periodical payment of $1,908 per fortnight made by the Transport Accident Commission pursuant to the Transport Accident Act, to her, as the deceased's surviving partner. As stated, the submissions indicate that that the periodical payments will cease on 13 October 2016.

(e) if the applicant is cohabiting with another person - the financial circumstances of the other person

This sub-section permits account to be taken of the financial circumstances relating to cohabitation.

I have dealt, earlier, with the financial and material circumstances of the person with whom Alana and Jake each cohabit.

As outlined above, the persons with whom Kristy cohabits are merely flatmates and there is no relationship that makes his and her financial circumstances relevant.

(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated

Each of Alana, Jake and Kristy enjoys good health. There is no physical, intellectual or mental disability that is in existence when the application is being considered or that may reasonably be anticipated.

It is necessary to deal with Deborah's condition in some detail.

Deborah sustained significant injuries as a result of the accident in which the deceased was killed. Her evidence on this topic was as follows:

"36. I was severely injured in the collision. I have no independent memory of the collision or the events immediately before impact.

37. I suffered a closed head injury, including occipital subdural haematoma, and multiple fractures including a fractured pelvis and left femur.

38. I spent a long time in hospital. I have required extensive rehabilitation to regain any mobility. For a long time subsequent to the accident I relied on a wheelchair or double crutches to mobilise because the function in my left leg was very limited. The subdural haematoma has left me with some long- and short-term memory loss. I also have difficulty concentrating on complex tasks. I require the assistance of a carer to undertake basic day-to-day chores such as cooking and cleaning. I now use only one crutch to mobilise as I am unable to walk without the support."

In a report dated 7 November 2012, Dr A J Walker provided the following details of Deborah's injury sustained as a result of the accident:

"Ambulance officers arrived 1 - 2 hours post-impact, the report states initial Glasgow Coma Scale score was 9-10/15, indicating reduced level of consciousness. ...repeat scan (14/10/11) showed small right subdural haematoma, small amount of subarachnoid blood and right posteromedial temporal lobe haematoma. Other injuries were femur and patella fractures, requiring surgery; and left popliteal dissection. Post traumatic amnesia (PTA) on the Westmead PTA scale was estimated to be 27 days, consistent with a very severe traumatic brain injury..."

The report continued:

"Neuropsychological assessment [conducted in November 2012]... results indicate that [Deborah] is recovering well in some areas, but shows significant difficulties as follows:

- New learning and memory is reduced, whereby [Deborah's] ability to take in and retain new information is well below expected levels...

- Higher level cognitive skills such as problem solving, planning, organisation, self monitoring and judgement are reduced...

- Concentration to verbal and visual information is mildly reduced...

- Information processing speed is mildly reduced...

- Some verbal skills are mildly reduced..."

In an addendum to the report, dated 15 January 2013, Dr Walker provided the following evidence:

"Neuropsychological test performances demonstrate that [Deborah] has significant cognitive impairments, particularly in planning and organisation, judgement, problem solving, self-monitoring and new learning and memory, such that she has a cognitive disability as a result of the brain injury incurred... While modest improvements may continue, she will have long term cognitive disability."

Associate Professor R Stark, a neurologist, prepared a report on Deborah's condition in August 2013. That report detailed some of Deborah's "ongoing symptoms" including headaches, reduced cognitive skills, unsteadiness on her feet, an "impaired sensation on the dorsum of the left forearm", "impaired power in the left arm", "neck pain in the high cervical region", "lower back pain", "orthopaedic problems with the left leg", numbness and poor sleep patterns.

The report also contained the following assessment:

"On tests of power [Deborah] was a little tentative with all muscle groups in the left arm but I was not convinced of any neurogenic weakness there. In the left leg power was limited because of the orthopaedic injuries to her femur and knee. Reflexes were all symmetrical and within normal limits and plantar reflexes were normal. There was an area of reduced sensation over the dorsum of the left forearm, probably in the distribution of the posterior cutaneous nerve of the forearm, a branch of the radial nerve. There was also an area of reduced sensation on the dorsum of the left foot, extending on to the dorsolateral aspect of the shin, consistent with involvement of branches of superficial peroneal nerve. The skin grafts and other surgical scars around the left thigh and knee were noted. She walked with crutches avoiding taking much weight on the left foot and had a wheelchair with her."

In addition to the physical injuries sustained, Associate Professor Stark noted that Deborah "says that her personality has changed a bit; she can have a 'short fuse' and is not as quick to think as she was before."

In August 2013, Mr E J Anstee also compiled a report in the context of providing Deborah with plastic and reconstructive surgery. Mr Anstee described Deborah's injuries as follows:

"- A fracture of the left femur which was openly reduced and internally fixed. Multiple operations were eventually performed with a bone graft [from the hip to the left femur] eventually applied.

- A fracture of the left patella openly reduced and internally fixed.

- An injury to the right arm with nerve damage managed conservatively.

- A closed head injury managed by pressure release.

[Deborah] said she had a total of 16 operations. She has gone on to make a reasonable though far from complete recovery from her multiple injuries."

Mr Anstee said that Deborah's "current complaints" included leg and back pain, "extensive scarring", neck pain, headaches, restricted mobility, poor memory, reduced concentration, spinal damage, occasional dizziness and "difficulty finding appropriate words". He added that Deborah "regarded herself as a high performer in her previous job and does not see herself in that light now". He said that her personal relationships had suffered a "[m]assive adverse affect from scarring".

Finally, in December 2013, orthopaedic surgeon Mr P L Moran prepared another report regarding Deborah's condition. His conclusion was that the "collision and its injuries have led to a devastating loss of physical competency ... [and that] the prognosis for further significant recovery is poor."

(I note, in passing, that Slattery J, at [190], accepted that Deborah was very badly injured in the motorcycle accident in October 2011; that she would not return to the workforce; that she had significant cognitive and memory problems as a result of the accident, and had required rehabilitation.)

(g) the age of the applicant when the application is being considered

Alana was born in February 1986 and is 28 years of age. Jake was born in October 1990 and is 23 years of age. Kristy was born in August 1992 and is 21 years of age.

(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant

There is no evidence that any of Alana, Jake or Kristy made any direct contributions to the acquisition, conservation and improvement of the estate of the deceased. There may have been some contribution towards the deceased's welfare.

By contrast, there is some evidence that Deborah contributed financially to the building up of the deceased's estate. This evidence is detailed later in these reasons.

(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person

There is evidence of two witnesses, neither of whom was cross-examined, namely Martin Betcher and Gloria Holland, each of whom wrote that he, and she, was told by the deceased that he had made provision for his previous wife and children and that they were not entitled to anything else, or that he had paid a high maintenance to his former wife to provide for, and support, his children and he believed that they had already received their share of any inheritance from him.

(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so

Alana, Jake and Kristy were not being maintained, either wholly or partly, by the deceased at the time of his death. However, it is clear that, at other times, the deceased did maintain each.

(l) whether any other person is liable to support the applicant

There is no person with a liability to support Alana, Jake or Kristy.

(m) the character and conduct of the applicant before and after the date of the death of the deceased person

An evaluation of "character and conduct" may be necessary, not for the sake of criticism, but to enable consideration of what is "adequate and proper" in all the circumstances. Importantly, the Act does not limit the consideration of "conduct" to conduct towards the deceased.

In the circumstances of this case, there is no aspect of "character and conduct" in relation to any of the applicants that I consider relevant.

(n) the conduct of any other person before and after the date of the death of the deceased person

There is no suggestion that the relationship of the deceased and Deborah was not a close one, or that she was not a loving spouse of the deceased. I am satisfied that their relationship, (a marriage of nine years, and about 13 years in total), was a close, strong and loving one. The fact that there was no caring for children is unimportant, in this case, in view of the age of each of the deceased and Deborah when they met and the duration of the relationship.

There was also some evidence raised regarding the contribution Deborah made to the estate of the deceased during his lifetime. Deborah says that she earned more than the deceased and that the deceased was "dependent upon [her] for most of the costs of living and the payment of [the] mortgage [on the Merrylands property]". In her oral evidence, Deborah maintained "the bulk of the money that my husband and I started with was from me. I had properties. My husband had nothing ... [e]xcept for his work".

Deborah also gave evidence that she had borrowed money secured over her Wentworthville property, to enable the purchase of the yacht in both names and that she had provided other moneys that were required.

(I do not consider that she made a substantial direct contribution to the building up of the deceased's superannuation, since Deborah's relationship with the deceased did not commence until about 1998, and they were married in 2003, at each of which times, the deceased had been a teacher for many years. However, after the marriage, I accept that she may have made an indirect contribution to the superannuation if the deceased made any direct financial contribution to it from his wages.)

(o) any relevant Aboriginal or Torres Strait Islander customary law

This is not relevant.

(p) any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered

This sub-section permits, but does not require, a wide-ranging inquiry into events and incidents, great and small, at the time of the deceased's death or since.

In this case, there is no other matter that I consider relevant.

The Submissions

Mr Wilson SC submitted that each of the Plaintiffs "enjoyed a good relationship with the deceased"; that "each has demonstrated a financial need"; that her and his assets, respectively, were of modest value, and that "each has made out a case for a $50,000 legacy which could be used to help them with their immediate debts and provide a small buffer for the future".

Mr Ellison SC submitted that, since Deborah has expended a significant amount on what he described as "legitimate expenses" and all that is left is her interest in the real property, no provision should be made for any of the Plaintiffs. (I do not know whether the transfer of significant amounts overseas falls into the category of legitimate expenses.) He submitted her reason why she had nothing left of the moneys she received was relevant, but more important was the competing financial position of each of the Plaintiffs. He submitted that each claim should be dismissed.

Determination

Being an "eligible person" is a necessary precondition to the court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. In this case, there is no dispute that each of the Plaintiffs is an eligible person within the meaning of that term in the Act.

There is also no dispute that each applicant commenced her, or his, proceedings within the time prescribed by the Act, and, in relation to Alana, that she has established factors warranting the making of her application.

Having established eligibility, where necessary, factors warranting the making of her application, and that the proceedings were commenced within time, relevantly, the first question for determination is whether, at the time the court is considering the application, adequate provision for the proper maintenance or advancement in life, of each applicant, has not been made on intestacy. Whether such provision has been made for each requires an assessment of her, or his, individual financial position, the size and nature of the deceased's estate, the relationship between each applicant and the deceased, other persons who have legitimate claims upon the bounty of the deceased, and the circumstances and needs of those other persons: see Tobin v Ezekiel [2012] NSWCA 285; 83 NSWLR 75, at [70]; McCosker v McCosker, at 571-572; Singer v Berghouse, at 210; and Vigolo v Bostin, at [16], [75], [112].

There is no doubt that each of Alana, Jake and Kristy is not entitled to any provision on intestacy. That is, however, not determinative of the application. Of course, the fact that each is not entitled to receive any provision out of the estate or notional estate of the deceased, may enable the court the more readily to find that inadequate provision has been made: Turner v Perpetual Trustees Australia Ltd [2001] ACTSC 56, per Gray J, at [8]. However, the court is still required to consider all of the circumstances.

It is clear, in my view, that each of Alana, Jake and Kristy has some immediate "needs". As stated above, "need" in the context of the Act is not determined by reference only to minimum standards of subsistence. Nor is it limited to whether the applicant has, at the date of hearing, an immediate need for financial assistance with respect to her, or his, maintenance. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The term is also used in the in the sense of what was necessary for the applicant's "proper maintenance, education and advancement in life": Akkerman v Ewins [2003] NSWCA 190, per Tobias JA, with whom Beazley and Hodgson JJA agreed.

The fact that each is currently able to survive on the income she or he receives is of significance when one considers the competing claims of Deborah.

Having considered the matters I am required to consider, I am satisfied that adequate provision for the proper maintenance, education or advancement in life of each of Alana, Jake and Kristy has not been made by the operation of the intestacy rules in relation to the estate of the deceased.

In coming to this conclusion, I also have taken into account Deborah's legitimate claims upon the bounty of the deceased and the obligation and responsibility that the deceased had to provide for her. However, whilst older, and not in good health, she is in a stronger financial position than each of them and it will only be improved when she receives her share of her mother's estate.

The more difficult question then arises, namely what provision "ought to be made for the maintenance, education or advancement in life" of each of Alana, Jake and Kristy, having regard to the facts known to the court. This involves "an instinctive synthesis that takes into account all the relevant factors and gives them due weight": Grey v Harrison. It is not a scientific, or arithmetic, exercise.

I respectfully agree with the submission made on behalf of the applicants, that each should receive "a small capital sum which will enable them to pay off immediate debts". The size of the notional estate will not enable a significant buffer for the future to be provided.

Nor do I consider that each should receive the same lump sum. Alana has children to support but also has the financial assistance of a de facto partner. Whilst their income is only slightly in excess of their expenditure, I note that $175 per fortnight is estimated for "entertainment and gifts". Alana's liabilities total $28,400.

In my view, Alana should receive a lump sum of $33,500, which will enable her to pay all of the liabilities and provide a modest lump sum for exigencies of life.

Jake is probably in the best financial position of the three Plaintiffs. He and his de facto partner, Cassie, have an income that exceeds their expenditure by a substantial fortnightly amount. I note, also, that their expenditure includes $200 per fortnight on "entertainment". Jake's only liability is an HECS debt of $16,000.

In my view, Jake should receive a lump sum of $20,000, which will enable him to pay off his debt and provide a modest capital sum for exigencies of life.

Kristy is probably the worst off of the three Plaintiffs, because she does not have the financial assistance of a de facto partner and currently receives the least amount comparatively, by way of income. Her debts are the most significant, totalling $65,500.

In my view, Kristy should receive a lump sum of $50,000, which will enable her to repay her HECS debt and Centrelink debt. Alternatively, she may pay part of each of her debts, and retain a portion of the lump sum for exigencies of life.

In summary, then, the total amount that Deborah will have to meet, out of property that may be designated as notional estate, other than in respect of costs, for the Plaintiffs will be $103,500.

No interest should be paid on any of the lump sums if each is paid within 2 months of the date of the delivery of reasons for judgment; otherwise, interest at the rate prescribed by s 84A(3) of the Probate and Administration Act, calculated from 56 days from the date of these reasons being delivered until the date of payment, should be paid.

Subject to any submissions on costs, the Plaintiffs should receive their costs, calculated on the ordinary basis. It is probably unnecessary to make an order for Deborah's costs, although, if the parties wish such an order to be made, I am prepared to make it.

In order to give the parties an opportunity to consider these reasons, and to enable Deborah to decide the manner in which she will satisfy the orders for provision and costs, I direct the parties, within 14 days, to provide to my Associate, proposed Short Minutes of Order, reflecting these reasons. If I receive agreed Short Minutes of Order, I shall make the orders in Chambers. I shall stand the matter over to a convenient date to the parties and to the Court in case agreement cannot be reached. In that event, competing versions of orders should be provided to my Associate within that period.

The Short Minutes of Order reflecting these reasons and any agreement reached between the parties as to the designation of property as notional estate should deal with costs also if possible. In this way, the precise amount will be able to be designated as notional estate, or otherwise, to be calculated precisely.

**********

Decision last updated: 07 July 2014

Medium Neutral Citation:	Curnow v Curnow [2014] NSWSC 896
Hearing dates:	24 March 2014; 16 and 17 June 2014 (further submissions with leave)
Decision date:	07 July 2014
Jurisdiction:	Equity Division
Before:	Hallen J
Decision:	Direct the parties, within 14 days, to bring in Short Minutes of Order giving effect to these reasons and any agreement reached between them as to the designation of property as notional estate. Stand the matter over to a convenient date to be arranged at the time of delivery of these reasons.
Catchwords:	SUCCESSION - FAMILY PROVISION - Application by three Plaintiffs for a family provision order under the Succession Act 2006 - One Plaintiff is the stepdaughter of the deceased and the other two are children of the deceased - Order sought out of the notional estate of the deceased - The Defendant the widow of the deceased - Deceased died intestate - No grant of administration - No dispute as to each Plaintiff's eligibility - No dispute as to factors warranting the making of the stepchild's application - Whether to make a family provision order in each case - If order for provision made, nature of order for each Plaintiff - Competing claim of the Defendant - Widow a beneficiary of her mother's estate - Provision made for each Plaintiff - How that provision to be met to be first determined by Defendant
Legislation Cited:	Civil Procedure Act 2005 (NSW) Family Provision Act 1982 (NSW) Legal Profession Act 2004 (NSW) Practice Note SC Eq 7 Probate and Administration Act 1898 (NSW) Property (Relationships) Act 1984 (NSW) Succession Act 1981 (Qld) Succession Act 2006 (NSW) Succession Amendment (Family Provision) Act 2008 (NSW) Transport Accident Act 1986 (Vic)
Cases Cited:	Akkerman v Ewins [2003] NSWCA 190 Alexander v Jansson [2010] NSWCA 176 Allardice, In re; Allardice v Allardice (1909) 29 NZLR 959 Allen (Deceased), In re; Allen v Manchester [1922] NZLR 218 Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 Aubrey v Kain [2014] NSWSC 15 Bartlett v Coomber [2008] NSWCA 100 Baychek v Baychek [2010] NSWSC 987 Bondelmonte v Blanckensee [1989] WAR 305 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Butcher v Craig [2009] WASC 164 Cabban v Cabban [2010] NSWSC 1433 Cameron v Cameron [2009] SASC 27 Carega Properties SA (formerly Joram Developments Ltd) v Sharratt [1979] 2 All ER 1084; [1979] 1 WLR 928 Christie v Manera [2006] WASC 287 Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241 Collins v McGain [2003] NSWCA 190 Commissioner of Stamp Duties (Queensland) v Livingston [1964] UKPCHCA 2; (1964) 112 CLR 12; (1965) AC 694 Crossman v Riedel [2004] ACTSC 127 de Angelis v de Angelis [2003] VSC 432 Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89 Doshen v Pedisich [2013] NSWSC 1507 Edgar v Public Trustee for the Northern Territory [2011] NTSC 05 Estate of Terry [2012] NSWSC 927 Flathaug v Weaver [2003] NZFLR 730 Foley v Ellis [2008] NSWCA 288 Freeman v Jaques [2006] 1 Qd R 318 Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep) Gardiner v Gardiner [2014] NSWSC 435 Golosky v Golosky [1993] NSWCA 111 Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Graziani v Graziani (Supreme Court (NSW), Cohen J, 20 February 1987, unrep) Grey v Harrison [1997] 2 VR 359 Hampson v Hampson [2010] NSWCA 359 Hawkins v Prestage (1989) 1 WAR 37 Heyward v Fisher (Court of Appeal (NSW), 26 April 1985, unrep) Hitchcock v Pratt [2010] NSWSC 1508 Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 Hyland v Burbidge [2000] NSWSC 12 Kay v Archbold [2008] NSWSC 254 Kossert v Margaret Gerda Ruggi As Executor of the Will of Peter Korps (No 2) [2012] WASC 191 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Luciano v Rosenblum (1985) 2 NSWLR 65 MacGregor v MacGregor [2003] WASC 169 McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 McKenzie v Baddeley [1991] NSWCA 197 McKenzie v Topp [2004] VSC 290 McLeod v Johns (1981) 1 NSWLR 347 Magill v Magill [2006] HCA 51; (2006) 231 ALR 277 Manuel v Lane [2013] NSWCA 61 Marks v Marks [2003] WASCA 297 Marshall v Carruthers; Marshall v Marshall [2002] NSWCA 47 Mayfield v Lloyd-Williams [2004] NSWSC 419 Morris v Smoel [2014] VSC 32 Neale v Neale [2013] NSWSC 983 Ng v Neville Mark Morgan; Selena Natanie Ng v Morgan; Commonwealth Bank of Australia v Neville Mark Morgan in his capacity as Administrator of the estate of the late Dell Smith [2014] NSWSC 536 Justyn Marcus Ng v Neville Mark Morgan & Anor; Selena Natanie Ng v Morgan; Commonwealth Bank of Australia v Neville Mark Morgan in his capacity as Administrator of the estate of the late Dell Smith (No 2) [2014] NSWSC 677 O'Loughlin v O'Loughlin [2003] NSWCA 99 Official Receiver in Bankruptcy v Schultz [1990] HCA 45; (1990) 170 CLR 306 Palaganio v Mankarios [2011] NSWSC 61 Phillips v James [2014] NSWCA 4 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 Puckridge, Deceased, In the Estate of (1978) 20 SASR 72 Re Buckland, Deceased [1966] VR 404 Re Bull [2006] VSC 113 Re Coventry, Deceased [1979] 3 All ER 815 Re Estate of Bridges (1975) 12 SASR 1 Re Estate Harriett Cassel [2000] NSWSC 294 Re Fulop, Deceased (1987) 8 NSWLR 679 Ross v Collins [1964] 1 All ER 861; [1964] 1 WLR 425 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Slack v Rogan; Palffy v Rogan [2013] NSWSC 522 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stiles v Joseph (Supreme Court (NSW), Macready M, 16 December 1996, unrep) Szypica v O'Beirne [2013] NSWSC 297 Taylor v Farrugia [2009] NSWSC 801 Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757 Turner v Perpetual Trustees Australia Ltd [2001] ACTSC 56 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Union-Fidelity Trustee Co of Australia Ltd v Montgomery (1976) 1 NSWLR 134 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) West v Mann [2013] NSWSC 1852 White and Tulloch v White (1995) 19 Fam LR 696 Wilcox v Wilcox [2012] NSWSC 1138 Williams v Aucutt [2000] 2 NZLR 479
Texts Cited:	J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths) Uniform Succession Laws: Intestacy [2007] NSWLRC 116
Category:	Principal judgment
Parties:	Alana Marie Curnow (first Plaintiff) Jake Howard Curnow (second Plaintiff) Kristy Anne Jean Curnow (third Plaintiff) Deborah Shireen Curnow (Defendant)
Representation:	Counsel: Mr R Wilson SC Mr L Ellison SC Solicitors: Turnbull Hill Lawyers (Plaintiffs) Barwick Boitano Lawyers (Defendant)
File Number(s):	2012/312464

Rent	$900
Groceries and household items	$600
Education, school uniforms, school excursions and camps	$ 82
Telephone charges	$140
Electricity charges	$140
Loan repayments	$657
Car Insurance and Registration	$ 77
Vehicle fuel and repairs	$160
Clothing	$ 50
Entertainment and gifts	$175
Medical and dental expenses	$ 20

Nissan Patrol	$25,000
Furniture and personal effects	$25,000
Jewellery	$ 5,000

Personal loan	$25,000
Credit card loan	$ 3,000
Certagy Ezi-Pay retail payment plan	$ 400

Rent	$605
Groceries and household items	$200
Medications	$ 60
Education	$100
Electricity	$ 60
Car Registration	$ 40
Vehicle fuel and repairs	$230
Clothing	$100
Entertainment	$200
Internet expenses	$ 45

1999 Holden Commodore Wagon	$3,000
Money in bank	$8,000
Superannuation	$8,559
Furniture and personal items	$2,000

Rent	$233
Groceries and household items	$150
Medications	$ 10
Education	$ 60
Water rates	$ 20
Telephone charges	$ 40
Electricity charges	$ 50
Loan repayments	$338
Car Insurance and Registration	$ 77
Vehicle fuel and repairs	$190
Clothing	$100
Entertainment and gifts	$130
Medical and dental expenses	$ 20

Money in bank	$ 400
2007 Toyota RAV4	$15,000
Furniture and personal effects	$ 2,500
Jewellery	$ 200

Merrylands Property	$900,000
Yacht	$ 90,000
Furniture and household effects	$ 25,000
Money in bank	$ 1,335
Money in Trust Account (sale proceeds from Wentworthville Property)	$ 12,837
Superannuation	$ 48,755