Detheridge v Detheridge - [2019] NSWSC 183

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Detheridge v Detheridge [2019] NSWSC 183
Hearing dates: 17 & 18 May 2018
Date of orders: 07 March 2019
Decision date: 07 March 2019
Jurisdiction: Equity
Before: Slattery J
Decision:
Order for provision in the sum of $165,000 inclusive of costs made out of the deceased’s estate. The provision comprises a legacy of $100,000 and costs capped at $65,000. The legacy and costs will be borne by the defendant’s share of residue as to $65,000 and by Simone Detheridge’s share of residue as to $100,000. The defendant’s costs will be paid out of the estate on the indemnity basis.

Catchwords: SUCCESSION – family provision – Succession Act, Chapter 3 – deceased dies leaving three children, a daughter and two sons – the deceased’s estate comprises of a single residential house property in suburban Sydney and a one third interest in the house occupied by the daughter and used by her as a music studio – the plaintiff is the deceased’s youngest son – the defendant executor is the deceased’s eldest son – the deceased left her one third interest in the property occupied by her daughter to the daughter and thereafter gave some small legacies to her grandchildren and then gave the residue of her estate to each of her three children in equal shares – the plaintiff claims that his present financial needs are such that he should have further provision out of the deceased’s estate – the defendant and the daughter contend that their own financial needs are such that the will should remain undisturbed and no order for provision should be made - whether the plaintiff has been left without adequate provision for his maintenance, education or advancement in life – whether any further provision should be made for the plaintiff out of the estate of the deceased – if further provision should be made for the plaintiff, what is the nature and quantum of that provision.
Legislation Cited: Succession Act 2006, ss 66, 99(1)
Uniform Civil Procedure Rules 2005, Pt 42.4(1)
Cases Cited: Askew v Askew [2015] NSWSC 192
Baumgartner v Baumgartner (1987) 164 CLR 137
Baychek v Baychek [2010] NSWSC 987
Cangia v Cangia [2008] VSC 455
Drury v Smith [2012] NSWSC 1067
DW v RW (No 2) [2013] QDC 189
Evans v Levy [2011] NSWCA 125
Nudd v Mannix [2009] NSWCA 327
Singer v Berghouse (No. 2) (1994) 181 CLR 201
Sergi (bnf Solowiej) v Sergi [2012] WASC 18 Sweaney & Anor v Bailie [2017] QDC 295
Taylor v Farrugia [2009] NSWSC 801
Category: Principal judgment
Parties:
Plaintiff: Craig Richard Detheridge
Defendant: Dean John Detheridge
In the estate of the late Nancye Detheridge
Representation:
Counsel:

Plaintiff: K. Morrissey
Defendant: R. Alkadamani
Solicitors:
Plaintiff: Armando John Gardiman, Turner Freeman
Defendant: Mary Antony, Antony Lawyers

File Number(s): 2017/146470
Publication restriction: No

Judgment

Nancye Detheridge (“the testator”) died on 17 May 2016, aged 79. Her husband, John, predeceased her in 2012. She was survived by her three children: Dean, Simone, and Craig. At the time of the hearing they were respectively aged 55, 51 and 47.
By her last will, made on 30 July 2007, the testator gave the whole of her estate to her husband, John, but if he failed to survive her, she made the following gifts: (1) her one third interest in her real estate at Quirk Street, Rozelle, to Simone; (2) legacies of $10,000 each to her grandchildren; and, (3) the residue of the estate equally to Dean, Simone and Craig.
Probate of the will was granted to Dean on 9 January 2017. In these proceedings, Craig seeks an order for further provision from the estate under Succession Act 2006, s 59. He claims that he is financially far worse off than his siblings and is in need of further provision from the estate. Dean opposes the making of any order for provision. Simone supports Dean’s position. There is no notional estate.
All of the parties and witnesses to these proceedings were from the one family. They referred to one another by their first names throughout the hearing of the proceedings. Without intending any disrespect to any party or witness, the Court will do the same here. And the testator will also often be referred to as Nancye in these reasons.
Mr K Morrissey of counsel appeared for the plaintiff, Craig. And Mr R. Alkadamani of counsel appeared for the estate.
These reasons commence with a narrative of the Court’s factual findings relevant to the matters in issue between the parties. The narrative represents the Court’s findings on relevant contentious and uncontentious matters.
The affidavit and oral evidence of the parties covered a wide range of family history and family disputes. It is not necessary to set out, or resolve all these disputes in the narrative of findings, in order for the Court to decide the principal issues.
The Court comments about the credibility of witnesses in the course of this narrative of findings.

The Detheridge Family – 1960 to 2016

The testator, Nancye, married John Detheridge in 1960. Their first child, Dean, was born in 1962; their second child, Simone, was born in 1966, and their youngest child, Craig, was born in 1970.
When Craig was young, the Detheridge family lived at Beacon Hill in Sydney’s northern Beaches. He completed his Higher School Certificate at Beacon Hill High School in 1987.
After high school, Craig undertook a four year apprenticeship at North Sydney Technical College to qualify as an electrician. He studied at night and worked during the day for an electrical firm in Hornsby.

The Purchase of the Rozelle Property - 1989

In 1989, when Craig was 19 and Simone 23, John and Nancye purchased a share in a property in Quirk Street, Rozelle (“the Rozelle property”). They purchased the Rozelle property as joint proprietors with Mr Geoff Innes, a musician and a friend of Simone with whom she was flatting. Mr Innes wanted to invest in real estate with some money he had from the divorce settlement. But he needed a joint buyer with a financial capacity to assist the purchase of a residential property.
John and Nancye had already paid off the mortgage on their Beacon Hill property by 1989. They wanted to purchase another property as a future investment. So they decided to enter into a joint arrangement with Mr Innes. This arrangement had the advantage of not only providing them with an investment, but also some security for Simone, and a place that she could conduct her music business.
Nancye funded the purchase of the Rozelle property with Mr Innes. According to Craig, on tax advice, it was placed in Nancye’s name with Mr Innes. John Detheridge had a higher income than Nancye. He was still running his own fabrication business. Nancye was working part time as an advertising consultant and earned less than her husband. The purchase of the Rozelle property was structured so that Nancye, rather than John, earned any rental income. Simone says that Nancye funded the purchase of the property herself, from her own nest egg of savings. The Court does not have to resolve fully this difference of view about the past. But it is probable in my view that Nancye did put up the initial investment of $20,000 when Mr Innes put in $40,000 upon acquisition of this property.
The purchase of the Rozelle property was complete by late 1989. Soon after, Simone moved into the property with two other flatmates, Mr Innes and another friend of Simone’s. She was approximately 26 years old. I accept Simone’s evidence that Mr Innis’ two thirds interest in the house was represented, at a practical level, by him taking the benefit of two bedrooms of what is a three bedroom house and Simone having the other bedroom. Rent from these rooms went to paying off the mortgage. Simone paid regular rent to Nancye.
There was an incidental dispute in the proceedings about the extent of Simone’s initial and final share in the Rozelle property. At the time of purchase with Mr Innes, the title showed Nancye and Mr Innes as tenants in common in equal shares. But Simone maintains, and the Court accepts, that in fact, Mr Innes was a tenant in common as to two thirds of the property with Nancye having only a one third share of the property.

Simone Travels and Craig Establishes His Career – 1990 to 1998

Simone moved overseas to pursue her career in London and briefly lived in a rental property upon her return. She then moved out to Randwick in March 1993. Mr Innes and his new family continued to live in the Rozelle property, until his interest in it was ultimately sold to Simone, as will be explained below.
Craig says, and the Court accepts, that he always enjoyed a good relationship with both of his parents. When he resided in Sydney throughout the 1990s, he generally lived only five or ten minutes’ drive away from them. He saw them regularly and enjoyed their company.
In 1998, when Simone was 32, Geoff Innes decided he wanted to sell his two thirds share in the Rozelle property. The house was getting too small for his family. Nancye did not want to sell. She seemed to like the investment.
Simone and Mr Innes negotiated for her to purchase his two thirds share in the property, and ultimately agreed upon a purchase price of $340,000. Simone needed to raise the money to pay him out. Craig says that John and Nancye assisted Simone to apply for a loan to purchase Geoff Innes’ two thirds share in the property. Simone says that she organised the mortgage to buy out Mr Innes and that, over time, she made payments on that mortgage herself. The Court accepts her version of this. She was clearly closer to these events than Craig. It was necessary for Nancye, as a co-owner, to be a co-borrower on the mortgage, so the borrowings were structured that way.
Mr Innes’ two thirds share was transferred to Simone in August 1998. Nancye retained her one third share in the property. But Land and Property Information (“LPI”) New South Wales carried through the original error and now showed Simone and Nancye as each having a one half share in the Rozelle property. By the time of the hearing, Simone had made an application to LPI New South Wales to correct the error, so that she was shown as having acquired a two thirds share from Mr Innes. That she held a two thirds share in the Rozelle property legally and beneficially was ultimately not in dispute.
Simone says that she paid the mortgage herself. Nancye had retired by 1995. Craig says that Simone and John jointly contributed towards repaying the mortgage on the Rozelle property. Once again, I accept Simone’s account of who made these mortgage repayments.
These arrangements led to misunderstandings within the family. Craig had quite a different perception of the arrangements from Simone. Craig says that on one occasion, during a discussion between Nancye and Craig and his partner Joanne after the Rozelle property had been transferred to Simone, Nancye commented that she regarded the Rozelle property as “Simone’s house”. According to Craig, John was not entirely pleased about this characterisation. He corrected Nancye’s comment by saying, “It’s more my house than Simone’s house as I am paying for the majority of the mortgage”.
But Simone says that Craig misunderstood the situation. Simone says that her mother often said to her after 1998, “Quirk Street [Rozelle] is yours. I want to help you into the real estate game so when you have kids they will always have a roof over their heads.” In my view, there is no doubt that Simone was financially responsible for paying off the Rozelle property and that Nancye recognised Simone’s interest in the property as Simone’s beneficially.
I accept Simone’s evidence that she has made all the mortgage repayments and paid all the outgoings, repairs and maintenance on the Rozelle property, without contribution from either of her parents. Perhaps the best interpretation of John’s comment was that he was being jocular.
Dean’s evidence confirms that John Detheridge did not have an interest in the Rozelle property. Dean operated financial accounting software to assist his parents with their finances. And that means he went through their bank statements in their later years from 2007 to 2011. He confirms Simone’s account, that neither John nor Nancye were contributing to the outgoings on the Rozelle property. He says, and the Court accepts, that the bank statements that he examined in that period did not indicate that they were meeting any disbursements or any mortgage repayments, in relation to the Rozelle property. Dean also understood from Nancye that the Rozelle property belonged to Simone.
The Court accepts Dean’s evidence that John was averse to taking on substantial financial obligations. It was therefore unlikely that he would have voluntarily committed to taking on the shared mortgage obligations for the Rozelle property. It is more probable, in my view, that John and Nancye Detheridge were happy for Nancye’s name to be on the title and to be a co-borrower. But in substance, they were not taking on a significant new liability, because Simone was meeting the mortgage repayments and other outgoings.
Craig seeks to contradict Simone’s case that she had paid off the Rozelle property. He points to what he says is evidence that Simone may have had some assistance from John. But this material (a series of notes made by Nancye) really only proves what is already known: that she was closely involved in discussions about the mortgage over the Rozelle property, and that John gave some general assistance in bringing the transaction about. This material does not prove that John and Nancye made mortgage repayments.
On this issue, the Court accepts Dean and Simone’s evidence. It is to be remembered that Simone and Dean were far better able to witness who was funding the outgoings on the Rozelle property, than Craig was. At best, Craig could draw inferences based upon things that his parents told him. But in my view, those inferences are not very reliable compared to Dean and Simone’s evidence.
The Court’s findings mean that the Rozelle property should be treated in equity either as Simone’s entirely, or substantially hers, by reason of her contributions to its acquisition and her mother’s acquiescence in that situation. The Court accepts that it was always mutually intended between her and her mother that she would acquire it, provided she met its outgoings, which the Court finds that she did. It should be inferred on the principles of Baumgartner v Baumgartner (1987) 164 CLR 137, that it would be unconscionable for Nancye, or in turn her estate, to retain the benefit of the very substantial contributions that Simone made over many years to the acquisition of the one third of the Rozelle property that remained in Nancye’s name. Subject to the fairly small amount of Nancye’s initial investment in the Rozelle property, this means that each of Nancye’s three children should have been treated, more or less, as having received equal amounts under the will, through the equal division of residue.

Craig and Joanne Travel and Settle in Queensland – from 2001

Although he had studied as an electrician, Craig was very interested in music, like his sister Simone. Joanne shared this interest with him. In 2000, when Craig was 30, he and Joanne commenced a tour to perform music in concerts around Australia. Their idea was to present a musical performance that they had developed, before eventually returning to Sydney to settle down and start a family. Until Joanne and Craig started travelling around Australia, the Court accepts they saw John and Nancye about once a week. And Craig would speak to his parents on the telephone on a regular basis.
Craig and Joanne commenced their music tour as a musical duo called “The Stowaways”, doing two defined gigs per week in Sydney, Tamworth and other capital cities, and other regions throughout Australia for one to two years.
Craig and Joanne’s around-Australia trip did not go to plan. In late 2001, when Joanne and Craig arrived at the Gold Coast to visit Joanne’s parents, he began full time electrician’s work as a sub-contractor to supplement the fairly meagre income that he was earning as a musician.
Full time work led Craig and Joanne to settle down in the Gold Coast area. He and Joanne considered purchasing a property on the Gold Coast. They found that properties in Queensland were generally less expensive than in Sydney. Their objective was to buy in the Gold Coast and then, when the local market rose, as they expected it would, to sell their Queensland property in the longer term and try and move back to Sydney. They hoped they could bring with them back to Sydney enough profit for a deposit on a house, at least in outer Sydney.
A family dispute derailed this plan. Joanne and Craig did not purchase a Gold Coast property independently. Craig says that he and Joanne, “were talked in to purchasing a property with Joanne’s father and mother”. Joanne’s parents did not have the financial capacity to purchase a property on their own. So Joanne and Craig contributed to the purchase and became, what Craig claims was, equal owners with Joanne’s parents.
But this led to disaster. For reasons that are not entirely clear, a lender advised Craig and Joanne to leave their names off the title. Joanne’s parents were left as the only registered proprietors.
Joanne’s father took advantage of this situation. He sold part of Craig and Joanne’s share of the property to another family member. Joanne’s father claimed that Craig and Joanne did not own half the property, but only had a one third interest. He decided he could deal with the remaining one sixth share. The matter went to Court. The dispute was expensive. Joanne and Craig lost the benefit of any investment they had made in this property and were left with significant debt. They were unable to return to Sydney, to pursue their original music ambitions, to travel, or to start a family.
Joanne and Craig remained in Queensland after 2001. They still live there. Craig lived and worked on the Gold Coast. His work as a musician involved doing two to five gigs a week, whilst also contracting as an electrician full time until the end of 2006. It was only after 2006, that he worked full time as an electrician and casually as a musician. He has worked in these two roles all his life, generally using his earnings as an electrician to fund his passion as a musician.
But despite living interstate, I accept Craig’s evidence that he and Joanne continued to stay in contact by telephone with both Craig’s parents. They would travel down to Sydney to visit John and Nancye once or twice a year. Between those visits Nancye would often come and stay with them in Queensland for a few days. Her visits to Queensland continued even after John died in 2012.
On one of Nancye’s visits to Craig and Joanne in late 2013, Craig says that a conversation started about what had happened to Simone’s half share of the Rozelle property. According to Craig, Joanne asked Nancye if Simone had paid for all her half share of the Rozelle property. Nancye responded “no she hasn’t paid me for her half share of the property, she has promised she would organise to at the time but never did get around to it”.
This conversation is quite improbable. The Court has accepted Simone’s account of taking financial responsibility for the property. There was really no occasion for Nancye to have a conversation like this with Craig.
Craig and Joanne had borrowed money from John and Nancye on at least two occasions. The Court accepts that until a number of crises happened, in Joanne and Craig’s life, that such borrowings from John and Nancye did not occur. But while Craig and Joanne were on a music tour, their bus broke down and they urgently needed a replacement engine to continue the tour with their animals and musical equipment, and to meet their various performance commitments.

A second loan was to help fund the litigation that erupted between Craig and Joanne on the one side, and Joanne’s parents on the other. I accept Craig’s evidence that he and Joanne had no choice but to defend the litigation, which had been commenced against them by Joanne’s parents. Otherwise, they would have lost their property entirely and been committed to the bank for the mortgage. It is understandable that John and Nancye assisted Craig and Joanne in these trying circumstances.
Craig says, and the Court accepts, that both loans (for the engine and for the litigation) were paid back in full. Despite the case that Dean and Simone made, Craig is not to be criticised for creating stress for his parents in relation to these loans. They were obviously the product of genuine emergencies. The funds were urgently needed and could not be found elsewhere. The criticism that Dean has fielded against Craig and Joanne on these grounds, in my view, is not made out.
But how and why Craig accumulated such excessive debt levels is a different question. It is not explained by these two incidents. It seems to be evidence of long term living beyond his and Joanne’s means.

Nancye Becomes Unwell – June 2014

In mid June 2014, Nancye began to complain that she was feeling unwell. Dean and Simone took her to Mona Vale Hospital for a check-up and some respite care. On 22 June 2014, she had a stroke and was admitted to Mona Vale Hospital. I accept that Dean and Simone visited her daily there.
Dean soon telephoned Craig and told him that Nancye had had a stroke and had been admitted to hospital, but her condition was stable. Craig and Joanne took time off from work and flew down to visit Nancye at the hospital. After about two months at Mona Vale hospital, Nancye was transferred to the Acacia nursing home in Marrickville. Between them, Simone and Dean selected a nursing home in the western suburbs of Sydney, because it was close to both of them and enabled them to visit Nancye more regularly.
Craig seems to have been less directly consulted about the choice of nursing home and he was unhappy about his siblings’ choice. He has been critical of this choice in his affidavit. Because he was more remote from the decision-making about this important accommodation choice for their mother, he clearly felt disempowered and was disposed to dislike their choice. It is not possible to make a decision here about the quality of the Acacia nursing home. But Simone and Dean did not strike the Court as people who would deliberately place their mother in what they regarded as second-rate nursing home accommodation.
Dean disputes that the Acacia Centre in Marrickville is a “very basic” nursing home. He says it, “was the best care our family could afford”. And the efforts to which they went (described elsewhere in these reasons) to maximise the rental return from the Beacon Hill property tend to suggest they were trying to turn Nancye’s property to account, to provide her with the highest quality of affordable care. Simone and Dean’s financial positions have been demonstrated. Neither of them could afford to dip into their own pockets to fund Nancye’s nursing home care. Craig did not offer to provide funds himself.
Dean says, and the Court accepts, that the Acacia Centre is within walking distance to cafes and was a more “upmarket” nursing home, than others Dean had reviewed. But a critical element in Dean and Simone’s decision about selecting this nursing home was that it was only ten minutes’ drive from Dean’s home and fifteen minutes from Simone’s. These were obviously important considerations, given that Dean and Simone were visiting several times a week each.
Dean is critical of the amount of time that Craig spent with his mother when she was in Sydney. He has sought to base his case on the visitor’s book at the nursing home. But such records are not fully reliable. Craig says he did not always sign the visitor’s book. He also explains that some of the limited time he could spend with his mother was because he had spent much of the week, while he was down in Sydney, clearing out the Beacon Hill house. Therefore, the adverse inferences that Dean seeks to draw about only short visits by Craig to his mother when he was in Sydney for longer periods are doubtful. But the Court accepts that Craig visited his mother when she was in the nursing home far less often than Dean and Simone did.
Once Nancye was at the Acacia nursing home, Dean and Simone say they settled into a regular visiting routine of two to three times a week. Nancye’s health improved. But the stroke that she had suffered had impaired her speech. She never really recovered from this, which was distressing for the family.

Nancye’s House is Cleared – August 2014 to Early 2015

Shortly after Nancye’s hospitalisation August 2014, a dispute arose about what should happen to Nancye’s belongings in her house at Beacon Hill. Dean, who was Nancye’s attorney, wanted to rent out the Beacon Hill property. But Nancye’s belongings needed to be moved out first. Simone and Craig have advanced quite different versions of what happened during this period.
This issue occupied perhaps an unnecessarily large amount of time during the hearing, given that the market value of these items could not be significant compared to the size of the estate. But the issue illustrates a little about the overall credibility of the parties and the hostility between Craig and his other siblings. And as the issue became of importance to the parties, the Court should make some observations about it.
Craig is critical of the way that Dean handled the administration of his mother’s financial affairs, particularly after she had a stroke and to some extent before that. But the Court accepts Dean’s evidence that, with Nancye’s express permission, he undertook the sale of a number of items that belonged to John and Nancye. These included heavy equipment from John’s fabrication business and Nancye’s motor vehicle. All of these items were sold with Nancye’s permission.
According to Craig, after Nancye was moved into a nursing home, Dean and Simone packed away their parent’s belongings so they could rent out the house to pay for Nancye’s nursing home care. But Craig was upset about this. According to him, “Dean had organised for a man to come and collect all of mum and dad’s remaining items, including all the furniture to go to the tip rather than their furniture be sold and the money put towards mum’s care”. The result, according to Craig, was that he and Joanne arranged for the furniture and personal effects to be put in storage at their expense until they could fly down to Sydney to go through the items.
Craig complains that, by the time he made these arrangements, Simone had already been through the house and taken a number of items that she wanted. A few months later, according to Craig, Joanne and he returned to Sydney to go through the items that had been left in storage. Craig says that he contacted Dean and Simone to offer them access to these items, but in the end neither of them wanted anything from the storage facility.
Simone has a rather different story. She says that with Dean’s permission as the person holding Nancye’s power of attorney, in the week 25 to 31 August 2014, she organised to pack up all Nancye’s belongings and place them in boxes. She says that she did this methodically, cleaning each room as she emptied it out. She says that she cleaned out all the white goods and cupboards and travelled every day over to Beacon Hill to pack everything up.
She says that at the end of that week, on 30 August 2014, Craig and Joanne arrived at the Beacon Hill house, whilst she and Dean were loading furniture and a washing machine onto a van that Simone had hired. Simone denies that this material was “going to the tip”. The Court accepts Simone’s account in part, because she did later try and retrieve some of the whitegoods, conduct that is hardly consistent with someone who was prepared to consign all of this material to the garbage tip.
Simone says that when she went into the house on 30 August, she found Joanne cutting open the 30 boxes that had been taped and stacked. Simone says she challenged Joanne’s right to do this. Joanne and Craig say that Joanne was opening the boxes to try and retrieve a sentimental photographic gift to Nancye.
In the end, Simone says that Craig and Joanne took control of the belongings. She says they “loaded up two full trucks of the furniture and items that belonged to my parents” together with another trailer full of Nancye’s belongings. That Saturday evening, 30 August 2014, Simone says she left the Beacon Hill property, taking what she regarded as the important papers, jewellery and photographs and other sentimental items of significance.
Craig disputes that he and Joanne loaded up two full vans and a trailer. He says that all they had was a used car and a trailer. Perhaps the precise form of motor transport that was used does not matter. What does matter, is that a readily identified quantity of material was placed in storage.
Simone understood that all the property was going to be taken to “a storage unit which had been paid for from mum’s account and not as the plaintiff alleges paid by him”. But in December 2014, when Simone tried retrieving some of the whitegoods, she discovered that the storage unit was under Joanne’s name. Simone could not get access to it. This came as a surprise to Simone, who regarded the furniture as belonging to the estate and needing to be accounted for the benefit of the estate.
Simone says that neither she nor Dean knows what happened to the furniture, beds, fridge, piano, boxes of books, numerous bookshelf ornaments and other items, or what happened to any monies received from their sale.
And Dean’s story tends more to confirm Simone’s account. Dean says he tried to sell Nancye’s furniture through second hand furniture shops and placed ads in the online sales platform Gumtree. But after spending many hours commuting between Ashfield and Beacon Hill, and taking photographs, this began to prove unviable and unnecessarily time consuming.
Dean reached the view that much of the material John and Nancye had accumulated over decades was essentially unsaleable and needed to be put in a Skip for removal. This is where Joanne intervened. Despite it being disputed, I accept Dean’s account that he had a conversation with her to the following effect:

“Joanne:   I can sell it on EBAY and recoup money.
Dean:   That has not been my experience and my efforts have proved quite the contrary.
Joanne:   I insist. I do this sort of thing a lot. I will organise the transport and storage of the remaining items.
Dean:   That’s fine by me. You can use mum’s credit card to pay for both the transport and storage. If no action is taken to process the items out of storage, I will ultimately cease the payments from mum’s credit card.”

As a result of this conversation, Joanne did organise the transport and storage. Dean says, and Craig disputes, that Nancye’s credit card was used to pay for both. The Court prefers Dean’s evidence on this. The property in storage became less important in Dean’s mind than organising Nancye’s accommodation and getting the Beacon Hill house rented.
But in December 2014, Simone rang Dean saying that Joanne had denied her access to the items in storage. Dean raised this with Craig, who then referred him onto Joanne. I accept Dean’s evidence he had the following conversation with Joanne on this subject:

“Dean:   Hi Jo, Simone wants to pick up some stuff from the storage (at SMoothMoves). Can you please send SmoothMoves an email giving Simone and I permission to access the items and let us know when done. (10 Dec 2014)
Joanne:   Hi Dean, we’ll b (sic) driving back down & will be there around midday on Tuesday 23rd to unload stuff too. Will be better for Simone to access it with us then. All the stuff is packed very tightly, the fridge is right at the back. We’ll see u, Anna, Nancy and everyone on Xmas day at your place.
Dean:   I’ll not ask again Jo…Give Simone permission to enter our storage!!!! Dean
Joanne:   I’m too busy to bother with all this fuss and no respect or gratitude over the storage that was destined for the tip! Not one thank you or phone call to discuss anything with me…No appreciation whatsoever!! So as I said before, its tightly packed & we’ll b (sic) there in 1 week Tuesday morning and we’ll all go through it altogether, not individually, so meet there then bright and early. And that’s final. (15 Dec 2014)”

Dean says he instructed the storage company to cease deducting storage fees from Nancye’s credit card. Craig says he and Joanne paid for the monthly storage. They have annexed some evidence of such payments.
Dean’s hunch about the saleability of much of this property was correct. About a year later he spoke to Craig about the property in storage:

“Dean: When is the money you received from the sale of mum’s property going to be put into mum’s account?
Craig: We lost money on the process so no money will be returned to mum”

The Court generally prefers Simone and Dean’s account of these events over Craig’s. Joanne and Craig admit that they did ultimately appropriate these items of property for themselves. There is no evidence of any accounting back in the estate from their sale, a circumstance more consistent with Simone’s account. Craig says that the absence of any accounting was because Joanne and Dean had abandoned the property. But that is somewhat unlikely: after all, Simone was going to the trouble of packing things up in boxes. Why would she do that if it was all just destined for the tip?
But Simone’s account does also show that she made considerable effort on her mother’s behalf to get involved in the cleaning, the sorting of valuable from disposable items, the organisation of packing materials and the packing of all these belongings. Dean undertook most of the legal and paperwork on behalf of Nancye as his mother’s attorney. Simone says, and the Court accepts, that she wanted to do as much as she could to the packing and cleaning up to make her contribution.
I do not accept the plaintiff’s statement that “Joanne and I were left to do the majority of the cleaning and clearing out of the house that weekend”. The Court accepts Simone statement that she had already been working for about five days before Craig and Joanne came down.
I am also satisfied that in cooperation Dean and Simone dealt with Nancye’s new motor vehicle appropriately and then sold it for the benefit of her estate and an A-frame camper.
And Craig’s complaint about Dean and Simone not returning to the storage unit in 2015 to go through the goods is well explained. The disagreements that arose in December 2014, in which Simone was surprised to find Craig and Joanne had taken complete control of these goods put Dean and Simone in the difficult position of having to seek permission for access to goods which were under Dean’s control as attorney. The situation was so unpleasant that Simone and Dean did not want to engage with Craig and Joanne any further about it.
This episode illustrates much about the Detheridge family dynamics and assists the Court in assessing the evidence of these various family members. Craig’s move to Queensland in 2001 had separated him from other family members more than just physically. His outlook became quite different. He appeared to the Court to have developed hostility and suspicion towards his siblings, clouding the reliability of his evidence about them. While Simone and Dean’s evidence is not entirely accepted either, their accounts were generally reasonable and backed by the probabilities that should be inferred from objective facts.
And Craig’s evidence shows little appreciation of the stress that Nancye’s stroke had placed upon Dean and Simone. At a distance, Craig is critical of Dean and Simone’s efforts for his mother. But Craig’s evidence lacks any demonstrated long-term willingness on his part to abandon his own obligations in Queensland, come to New South Wales and pitch in to do what he could on a day-to-day basis for his mother. This decision not to do so was a matter for him. Of course he had his own day-to-day obligations in Queensland. He was entitled to honour those obligations and to stay in Queensland. But that decision did place the practical day-to-day burden of administering Nancye’s affairs upon his siblings.
Dean was employed full time when Nancye had her stroke. He had to juggle visiting his mother in hospital, trying to organise her transition to a nursing home and the next stage of her life and clearing out the house of its furniture so that the Beacon Hill property could be rented. The Court accepts this was a difficult cumulative burden for Dean.
Dean tried to make his mother’s assets go as far as they could to support her future needs. His and Simone’s means were limited. He did not know much about Craig’s financial position. To him, the obvious solution was to quickly prepare the Beacon Hill property for rental so that it could generate enough income to keep Nancye in the nursing home. Dean made the decision not to sell the house, but to rent it in part because, as Nancye’s attorney, he held out the hope that she may one day become well enough to return home.
The rental income from Beacon Hill was indeed used to fund Nancye’s medical treatment, speech therapy after her stroke, housing repairs and water rates and insurance, legal fees and ultimately her funeral expenses. These expenses would have had to be funded by the children if they had not been met in this way out of the rent.
I accept that Dean made Craig well aware that the property was going to be placed on the market for rental as soon as was convenient. Craig did not dispute the wisdom of those plans. And he was right not to do so: there did not seem to be many practical alternatives. Dean made an open offer to Craig and Simone to take anything that they wished from the house.
In response to this open offer, Simone took some couches and a washing machine and Craig did take two van loads full of furniture. Dean says, and the Court accepts, that he personally took no items of value for himself. His and Ana’s house lacked the space to accommodate them.

The Children’s Assistance to and Contact with John and Nancye

Craig was a qualified electrician working in that capacity all his life. When he was in Sydney he says, and the Court accepts, that he regularly performed free of charge the electrical work needed on the Beacon Hill property. He undertook similar work at the Rozelle property not long after Nancye purchased it in 1989. It is doubtful that he did much electrical work at the Rozelle party after that. Craig would also service his mother’s car when she drove up to visit them in Queensland. Simone tends to discount the amount of this kind of work that Craig undertook, but in my view it was significant.
Craig says that his visits to Sydney, and Nancye’s visits to him in Queensland, were an enriching time. He says, and the Court accepts, that he (and Joanne) would take Nancye out to places she wanted to visit and they would go sightseeing. When in Sydney, they visited friends and took Nancye out to dinner. Simone says that these were only “limited visits to Sydney”. But Craig is in a better to position to estimate how often he visited Sydney and when he was in Sydney how often he saw his parents. On that issue, I regard him as the more reliable witness.
This continued even whilst Nancye was in the Acacia nursing home. Craig says, and the Court accepts, that when he and Joanne visited Sydney he would take Nancye out to parks or the beachside to get her out of the nursing home. Dean and Simone visited Nancye in the nursing home as well and more regularly, taking her shopping, on family outings and to special occasions.

The evidence in these proceedings sets up something of a contest between Craig and his siblings about the amount of time and attention they respectively gave to John and Nancye during their lives and especially after John’s death. Prior to 2007, it is difficult to distinguish among the children on this basis. In my view Craig was reasonably attentive to his parents before 2001, the year he left on his around-Australia music adventure, which ultimately had him end up in Queensland. In 2003, Simone moved to London and lived there until 2007. Nancye came to London in 2006, to be with Simone for the birth of her son, Sol. After Simone returned from London she saw her mother often, as Nancye enjoyed seeing her grandchildren and giving support to her daughter by volunteering to babysit Sol and Simone’s daughter Roxi, who was born in 2009.
It is inevitable that after 2007, with Craig and Joanne in Queensland and the other siblings close to John and Nancye in Sydney, that Craig saw less of his parents than did his siblings. It also follows in my view that Dean and Simone were able to do more for their mother on a day-to-day basis after 2007 than was Craig.
The Court accepts Simone’s evidence that she had a very close bond with her mother. Dean always got on very well with his mother and became even closer to her after John died. But what is also clear, in my view, is that Nancye tried to keep communications open with all her children however often she saw them and to maintain as much harmony as she could among them, despite their differences.
Craig strongly disputes Simone’s allegation that there was any rudeness to Nancye (and her partner after John died) when they visited Queensland. He says this was a happy visit. He disputes Nancye would have made any complaints about the visit to Simone. The Court accepts that Nancye appears to be quite happy during this visit from the photographs that are tendered. It is otherwise not necessary to resolve this dispute other than to say that Simone’s account seems to the Court to be less likely given that Nancye did stay with Craig and Joanne for a few days. This is a matter on which it is more likely that Craig is accepted.
The Court starts in assessing its exercise of jurisdiction this case with these matters in mind. It is to be accepted that Nancye had a more frequently reinforced day-to-day relationship with her daughter and son Dean, than she did with Craig. But she was not estranged from Craig. She had as good a relationship with him, as their living interstate from one another allowed.

Nancye Expresses Her Testamentary Intentions

The parties have very different recollections of Nancye’s discussions with them about her testamentary intentions, especially with respect to the Rozelle property.
Craig says that on several occasions both Nancye and John told him of their wishes as to the division of their property after they died. His recollection is that they said to him that all their assets, including the interest in the Rozelle property, would be divided equally between their three children.
Somewhere between February and April 2014, Craig says that Nancye told Joanne and Craig that she had completed a new will. Craig’s account of this is that Nancye “seemed happy” and “had a relieved smile”. Craig alleged that Nancye said to him on this occasion, “I have done my will” and “it’s all fixed up now”. This seems strange: there is no evidence of Nancye making a will in early 2014. Her last well was made in July 2007.
Simone says that the position within the family was “all very clear” as to both John and Nancye’s wishes. Her recollection is that both parents said “many times” that the Beacon Hill property and any money in accounts would be split three ways equally but that Nancye’s share in the Rozelle property was always to go to Simone.
The Court prefers Simone’s account of these discussions. Everything the Court has heard in evidence about Nancye and John show they were sensible reasonable people who wanted to treat their children fairly and as equally as possible. It is hardly consistent with that character that Nancye would want to put Simone in a position where she had to negotiate to buy back one third of the house in which she was living with her young family and which she had paid off herself. Nancye clearly had enough insight to see this would cause unnecessary stress to Simone, and she did not seem like the kind of person who would treat her daughter that way.
Moreover, Nancye’s long-term conduct is hardly consistent with the position that Craig takes about the Rozelle property. Nancye had long acquiesced in a position as a passive investor in the property between 1989 and her death. Over a period of 25 years, she had not displayed the slightest inclination to sell her one third share of the Rozelle property or to place any pressure on Simone to acquire it.
Added to these considerations, the Court accepts Simone’s evidence that sometime in 2012, after John’s death, Nancye organised an appointment for her and Simone to go and see Nancye’s solicitor for him to explain to Simone that the Rozelle property would be bequeathed to Simone in Nancye’s will and would not form part of Nancye’s residuary estate. That is what the will had long said. Indeed there was discussion about transferring the property to Simone during her lifetime to make the position crystal clear. But the clarity of the provisions of the will and the avoidance of stamp duty and capital gains tax prevented any action being taken at that time.
Why did Nancye do this? It was in my view part because Joanne was asking many questions about the Rozelle property. Nancye, consistent with her character, wanted to put Simone’s mind at ease about this important issue.
Craig’s account of Nancye’s testamentary intentions is not accepted. It is not consistent with a common sense view of the Nancye Detheridge that the Court has tried to understand from the evidence in this case.

The Present Value of the Estate

According to Dean’ s affidavit sworn 6 April 2018, the nature and value of the estate is at present:

The Beacon Hill property             $ 1,350,000

One third of Quirk Street, Rozelle         $ 333, 333

Cash  $ 34, 443

Total  $ 1,717,776

The legacies of $10,000 have each already been distributed to Simone’s two children, and to Dean’s step-son.
Craig did not initially accept the estate’s estimate of the value of the Rozelle property. He commissioned kerbside appraisals, which suggest a total value of $1,500,000, one third of which is $500,000.
From the gross value of the estate, the selling costs of the Beacon Hill property (including agent’s commission, repairs and legal costs) of about $50,000 should be deducted. The defendant’s legal costs of the proceedings are $86,361. This gives total defendant’s costs and other outgoings of $136,361.
The parties’ estimates of the available estate for distribution did not differ greatly.

The defendant’s estimate of the estate value       $1,717,776

Less costs and deductions               $ 136,361

Available estate                  $1,581,415

This is to be contrasted with the position put forward by the plaintiff.

The plaintiff’s estimate of the estate value       $1,884,443

Less costs and deductions               $ 136,361

Available Estate                  $1,748,082

These differences are not so great in my view that they make any real difference to the Court’s exercise of jurisdiction under the Succession Act s 59.

The Plaintiff’s Current Personal and Financial Position

Craig and his partner Joanne claim they have combined net assets of approximately $70,000 including superannuation but not including their legal costs in these proceedings, which are estimated to be $132,000 on the indemnity basis. Their estimated assets are a little over $1,000,000 but their liabilities are a little over $900,000.
Craig is a self-employed electrician and a part time musician. Joanne helps out at home with the books for his music business and also performs with him occasionally. Their net combined annual income is around $96,000, and does not cover their expenses. They say, and the Court accepts, they were badly affected by the April 2017, south east Queensland floods.
Craig’s motor home was destroyed in the Queensland floods. But the parties heavily dispute how much it was worth before those floods. It is ultimately not necessary for the Court to decide this issue. What is clear enough is that the motor home was of no value after the floods.
Craig and Joanne have a property at Eagleby and another at Luscombe in Queensland. Craig and Joanne’s property at Eagleby is a strata titled unit/town house of some 220 m² in size, considerably smaller than a freestanding house with surrounding land.
The Eagleby property was only a few metres away from the rising flood waters. Craig and Joanne’s tenants were evacuated along with everyone else in the area. The Court accepts that the property has lost value since the flooding.
Dean offers views about the value of these properties and about the value of Craig’s motor home before the floods. But Dean has had very little exposure to these properties or the motor home.
The market value of these properties is disputed. But the dispute matters little because it is only in the range of $50,000 to $100,000 for each property and the difference is dwarfed by Craig and Joanne’s debt levels.
Craig says that he has had no equity in his properties and is obliged to use credit cards and personal loans to fund personal expenditure, thereby encountering high interest rates. He says his home mortgage has always been to just pay off his property, rather than to obtain personal loans at a more favourable interest rate. This can be accepted given his high debt levels. But the fact is Simone has substantial debt, even if it is partly for personal expenses.
Craig and Joanne are heavily in debt. They currently have joint debts of just over $900,000, owed to St George Bank (approximately $750,000) secured over their Luscombe and Eagleby properties, together with credit cards and other personal loans. A combination of litigation, floods in Queensland and other misfortunes have all contributed to this situation. The Court accepts that he and Joanne have got to the stage that they cannot afford to pay off the principal of any of their mortgage or credit card debts and are barely able to meet their interest payments. To pay off his debt he says he needs $700,000. Craig also claims that he needs a contingency fund for emergencies of $200,000.
Craig has other needs. Both Joanne and Craig need significant dental work which they estimate will cost about $15,000. Their 1998 4 wheel drive Mitsubishi motor vehicle needs repairs that will cost about $10,000. These repairs are worth more than the market value of the car. He believes a more reliable car would be a better solution. He has tried to purchase a new car for $35,000 to $45,000.
Joanne and Craig need a new stove and dishwasher. Their current stove and dishwasher are broken and are more than 10 to 15 years old. He estimates the cost of the new stove and dishwasher would be $2,500.
Their property was very badly affected by flood damage in the recent Queensland floods in early 2017. To repair flood damage he estimates would cost $35,000. A summary of Craig’s financial needs is as follows.
The cost of Craig’s overall financial needs are identified in his affidavit evidence, and include:

Reduction of debts  $912,000

Contingencies (estimated)                  $160,000

Dental repairs  $ 40,000

Motor vehicle costs and appliances             $ 29,000

Repairs to Flood damage                  $ 80,000

Present Circumstances and Financial Position of Dean and Simone

Dean’s Situation. The defendant, Dean is 55 years of age. He is married with a joint annual income with his wife of around $112,000. They hold joint assets of about $163,000.
Dean completed his High School Certificate and then studied electrical engineering at Sydney University. He completed all but his final year of engineering and so did not graduate. Dean and his wife Ana have not been able to acquire their own home during their working lives. They live together in rented accommodation. They sometimes have a student rent a spare room in their accommodation, to defray their rental costs. Dean has a 27 year old stepson but he is no longer dependent upon Ana and Dean.
Dean is currently employed full time as a software designer with Fujitsu Australia where he has worked for the last eleven years. His employment prospects are not secure in the medium term. Fujitsu in recent years has been sending offshore as many of its Australian jobs as it can, as part of wider cost saving measures. As a result of technological developments Dean believes that his particular job is more susceptible to being displaced in this was than it has been in the past.
Dean does not receive any financial assistance from any other source.
Dean has a number of health challenges. He is blind in one eye. He needs to visit an optometrist twice a year to revise his prescription glasses. He would like to acquire a glass eye when that is financially feasible for him.
Dean broke his right leg badly in 1998, which causes him to limp. Two orthopaedic screws were placed in his leg, which he would like to have removed when finance permits him to do so.
Dean and his wife Ana have combined assets of $162,956. Their principal asset is superannuation of $123,000. They have been able to save just under $24,000 in a number of Commonwealth Bank accounts. But apart from these items, their sole assets are all depreciating, such as a 20 year old motor vehicle, a trail bike and various furniture, appliances, computers and personal effects of not great value. The Court accepts Dean has no other interest in companies or trusts.
But Dean and his wife have managed their debt levels carefully. They do not have any liabilities. They seem to have been able to achieve this through careful household management of income and outgoings, which is explained in more detail in the following paragraphs. The fact they have succeeded in this management is evident from the lack of credit card or other debt that they bear.
Dean and his wife’s after tax monthly income is $9,326 per month (being $4,826 per month for Dean and $4,500 for Ana).
But it is not necessary to set out all their monthly living expenses, other than to identify some of the larger ones and to note that the rest appear to be reasonable. They estimate that their total living expenses are $8,812 per month. Their principal monthly outgoings are rent of $2,800 per month, groceries and food $1,200 per month, health fund outgoings of $500 per month, petrol and motor vehicle expenses of $700 a month. They calculate a slight surplus of income over expenditure.
Dean’s presently identified quantifiable financial needs are approximately $241,000. This figure is made up the following way. Dean says he needs a contingency fund for emergencies of $80,000. He has medical expenses. He needs a replacement glass eye for $3,000 and the removal of two screws from his right leg, not covered by his healthcare fund of $3,000. His Toyota Corolla is twenty years old and has structural rust. He wants a reliable SUV estimated to cost $30,000. He does not have money sufficient for a deposit to purchase real estate, so he and his wife no longer have to rent accommodation. He says he would need $100,000 to $250,000 for a deposit so that repayments on the acquisition of a home would be affordable for him.
The overall picture that Dean and Ana’s situation presents is one of a struggling couple who have not been able to get ahead to acquire any property but who have nevertheless sought to live frugally and within their means.
Simone’s Situation. Dean and Craig’s sister, Simone, is a single mother with 2 children aged 11 and 9 at the time of the hearing. She is the principal carer for her two children. She is the sole income earner for her household and she receives no child support from the children’s father. She is in receipt of Centrelink Family A and B payments. She and her children are presently in good health.
She practises as a musician and has done so for over 35 years and has been a singing teacher for some 25 years. Simone has worked for nearly all the top performing arts schools in Sydney and London. She writes and lectures on vocal courses.
She started her own singing school about 10 years ago. She presently uses the Rozelle property as a studio for teaching and composing music. The advantage of this for her is that she can work and still be close to her children. But the decision to use the Rozelle property in this way was forced upon her by circumstances beyond her control. The external studio that she rented for the singing school became too expensive. She borrowed money from Nancye’s estate to soundproof the front room at the Rozelle property, from which she now runs the school.
Her singing school also performs at corporate events, weddings and charity occasions. Her income from these activities after expenses is $36,000 net per year. Various challenges were mounted to her income figures but none of them were successful. She owns a two thirds interest in the Rozelle property. Apart from her interest in the Rozelle property, Simone has a Toyota motor vehicle worth about $10,000, studio equipment worth $3,000 and household furniture and other effects of $5,000. She has a mortgage over the Rozelle property with a current balance just under $290,000 and credit card liabilities of $8000. There was a dispute about the value of her two thirds interest in the Rozelle property but this was resolved during the hearing.
Simone’s current after-tax monthly income is $2,500-$3,000, a figure which is partly comprised of Centrelink payments. She has given an estimate of her monthly expenditure which is substantially in excess of this sum. It is to be doubted that her expenditure can possibly be that high ($7,845.13), otherwise her debt levels would be spiralling out of control. She says and the Court accepts she has been able to budget to try and make ends meet and control her expenditure to live within her income and make some headway in reducing debt. But the Court infers from the fact that her credit card balance is currently $8,000 that keeping her debt under control, with the limited income that she has, is difficult.
Simone has a number of substantial looming financial obligations. Apart from her mortgage and re-draw loan and the credit card balance, she anticipates many other demands upon her financial resources. Simone’s two children are approaching high school age. She would ideally like a schooling fund to cover fees at independent schools, uniforms and enough to cover school books and excursions each year. This would total a substantial sum, as the figures below show:

School fees: two schools at $30,250 per year equals $60,500 multiplied by 6, totalling $363,000;

Uniforms of $3,000 per annum by two being $6,000 for six years, therefore $36,000; and

School books and excursions: being approximately $2,000 each per year multiplied by two, being $4,000, and over six years $24,000.

These calculations are distorted because they do not discount for the net present value the sums being sought to meet expenditure over a six year period. But even if discounting is done and the gross figure of over $420,000 is reduced, the result would still be a substantial sum.
Simone also says she needs a house maintenance fund. The Court accepts that the Rozelle property needs substantial repairs. It has smashed bedroom windows, loose balcony railings, an unfinished bathroom and a very old kitchen. Some $10,000 she estimates would cover those costs. On top of that, an inside paint job for the Rozelle property would be $15,000. And replacing the wooden flooring which currently has splinters and broken floor boards, she estimates would cost about $20,000.

The residence on the Rozelle property was built in the mid-Victorian era and now has high maintenance costs. The kitchen is too small even to house a dishwasher. The property is susceptible to termite damage and needs regular inspections and anti-pest re-sprays of about $3,500 per year. And with recent heavy rainstorms in Sydney the ceiling skirting boards have come away and some $5,000 is required to replace those. All of this amounts to what Simone describes as house maintenance fund of $92,500.
Finally, Simone says she needs a car fund. Her existing motor vehicle was badly damaged in August 2014, about the same time that her mother’s stroke occurred. It was eventually repaired after Simone borrowed her mother’s car but is now worth about $10,000. She says she needs a further $20,000 towards a new vehicle.

Based on all of these estimates, Simone has set out a table of her future needs, as follows:

Item or Fund

Cost

Funds to pay off existing Debt:

$300,000

Schooling Fund for Two Children High School Years:

$423,000

House Repair & Maintenance Fund:

$92,500

Car Fund:

$20,000

Total of the Extent of My Needs:

$835,500

Less My Share Under the Will (According to Craig’s Affidavit):

$460,000

Total Outstanding Debt Balance:

$375,500

This table is approached cautiously. The Court is not prepared to infer that Simone has immediate financial needs of this order. The table represents undiscounted expenditure over six years, on the basis that it might be incurred immediately, which is clearly incorrect. Some of the estimates may be too high. They are not quotations. The evidence is acceptable in litigation such as this provided the amounts are treated as what they are – general estimates. That being said, many of the figures advanced do not seem unreasonable.
With these caveats Simone’s table is useful. It shows expense of her anticipated financial needs over the next six plus years and how even with the amount that she is likely to receive under the will, there will be a shortfall from those needs. That is an important lesson from the table. The extent of the shortfall however is debatable.
It can be seen from this review that Craig’s current financial situation is less favourable than either of his siblings.

Applicable Legal Principles

As a son of the testator Craig is an “eligible person” and is able to bring the claim he now makes. The real issue here is whether an order for provision should be made in his favour. The test of whether provision should be made in any particular case is set out in Succession Act, s 59(1)(c):-

“(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that:

…

(c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.”

There are many judicial statements summarising the operation of what is said to be a two-step provision. For example, in Singer v Berghouse (No. 2) (1994) 181 CLR 201, (at 209), the High Court of Australia said of the test under the previous legislation:-

“The first question is, was the provision (if any) made for the applicant "inadequate for [his or her] proper maintenance, education and advancement in life"? The difference between "adequate" and "proper" and the interrelationship which exists between "adequate provision" and "proper maintenance" etc. were explained in Bosch v Perpetual Trustee Co8. The determination of the first stage in the two stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to 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.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder9, where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors.”

Whether the two-step test operated with the same full vigour in the current legislation has been recently discussed in the Court of Appeal: Evans v Levy [2011] NSWCA 125. But such considerations are not an issue in this case, which is a very clear one on the question of whether or not adequate provision has been made for Craig once he has been shown to be an eligible person.
Some other authorities have explained in more detail the meaning of the words in the legislation "adequate", "proper", and "advancement in life". Some of these authorities have been conveniently collected in the decision of Hallen AsJ in Drury v Smith [2012] NSWSC 1067, (at [153], [154], [155], [158] and [160]), which relevantly provides:-

“[153] Master Macready (as his Honour then was) in Stiles v Joseph (NSWSC, 16 December 1996, unreported) 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.'"

[154] 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."

[155] 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)."

…

[158] Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 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 if life must be considered in the light of 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."

…

[160] In Vigolo v Bostin [2005] 221 CLR 191, 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 a 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 use 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."”

That leaves the Court to decide what provision, if any, should be made for the plaintiff in this case.

Consideration

Mr Morrissey argues on behalf of Craig, that: (1) his share of one third of the residue under the will is not adequate provision for him out of the estate; (2) proper provision should be made for him given his current financial and personal circumstances by way of an order for provision further to the provision under the will, of $200,000 and an order for the payment of his costs on the ordinary basis which are estimated to be of the order of $80,000; and (3) the Court can mould relief to afford Craig adequate provision without disturbing the gift to Simone of one third of the Rozelle property (with an agreed value of $500,000). Mr Morrissey submits this can be achieved the following way: if the gift to Dean of his share of residue is reduced by $50,000, and the gift to Simone of her share of residue is reduced by $230,000, then $280,000 is released, from which the claimed order for further provision for Craig can be funded.
In final submissions, Craig accepted that Simone’s security in the Rozelle property should not be disturbed by any orders that the Court may make in these proceedings. That was not the position Craig took in the evidence initially filed in the proceedings. But Mr Morrissey appropriately and realistically refined his case into this final form in light of the evidence of the obvious financial needs of Dean and Simone. He ultimately did not contend that in any order the Court might make that it should deprive Simone from receiving the remaining one third interest in Rozelle property that she does not already own and would receive under the will.
Mr Morrissey’s submissions raise the questions that the Court needs to address and in the order that Mr Morrissey presented them.
(1) Was Craig left Without Adequate Provision? Craig submits there is no issue that he had a close and loving relationship with both his parents throughout the whole of their lives. In my view this submission is to be accepted. Although the Court has regard to all the factors set out Succession Act, s 59 the Court’s analysis in this case is more centred upon Craig’s financial position and the financial position of the estate and other beneficiaries.
A starting point for analysis is what Craig already receives under the will and what his financial position will be without any order for provision. If the proceeds of sale from the Beacon Hill property are $1,350,000, less Craig’s estimate of the costs and other deductions from the sale of $136,361, the net proceeds for distribution will be $1,213,639. Divided three ways this leaves each of Dean, Simone and Craig with a present entitlement to residue of $404,546. Given Craig’s present financial circumstances and the wider circumstances of the estate and the other beneficiaries, is this adequate provision?
Craig’s financial position is in my view considerably less advantageous than that of his siblings.
Looking at the position of other beneficiaries Craig contends that if Simone receives the remaining one third of the Rozelle property under the will she will own real property worth about $1,500,000 in value. Deducting her loan over the Rozelle property, of $290,000, she now has equity in real estate in excess of $1,200,000, a position that Craig submits is far more comfortable than either himself or Dean.
The estate rejects Craig’s analysis. It submits that no order for provision should be made in Craig’s favour.
In my view, it is difficult to escape the conclusion that Craig has been left without adequate provision from Nancye’s estate. His and Joanne’s debt levels are so high, that their overall net asset position is highly vulnerable to changes in asset values and interest rates. Because of these factors his position is far more vulnerable than that of Dean or Simone.
Mr Alkadamani made the point that the residue from the estate Craig will receive will enable him to pay off his more expensive debt and reduce his monthly outgoings. There is some truth in this but in my view he will still be left vulnerable to misfortune and market forces.
The reason for Craig being in the position that he is substantially but not entirely his own fault. He has managed his financial life less prudently than either Dean or Simone. He has suffered the misfortune of litigation with Joanne's parents, that was not of his choosing. And again later in life he has suffered the devastation of the recent Queensland floods. But neither of these events on their own really accounts for the size of his debt burden, which must be the product of years and years of failing to get his debt levels under control. Dean and Simone are remarkable for their good husbandry of their limited financial resources, in comparison to Craig.
But whatever are the causes of the current situation and however reasonable it might be for Dean and Simone to be unsympathetic to a financial position that Craig to a considerable extent created for himself, the Court is nevertheless required to look at the matter objectively and in accordance with community standards. In my view, Craig has been left, when the matter has been viewed as a whole and in accordance with community standards without adequate provision.
(2) What is Adequate Provision for Craig? Craig argues that adequate provision is a further $200,000 plus a sum of $80,000 to cover his costs of these proceedings. His claim was constructed with some care so as to minimise the impact on the residue of the estate otherwise benefiting Dean. Upon this construction of Craig’s claim, Simone bears more of the burden of an award to him because she is receiving the remaining one third of the Rozelle property in addition to a one third share of residue and has more assets than either Dean or Craig.
The startling problem is that the claims that Craig makes for adequate provision in his affidavit evidence and in final submissions cannot possibly come out of the estate without damaging the stability of Dean and Simone’s future financial lives with the funds they are otherwise entitled to from the estate. Figures in excess of a further $500,000, if awarded to Craig, would completely neuter Simone and Dean’s financial future. Simone would have no opportunity to pay off her current debt obligations. Dean would have no prospect of being able to save for a deposit on a house.
Mr Morrissey put his case with some skill and therefore scaled back the claim in final submissions to the one identified above. But even that claim, in my view, places too heavy a burden upon Simone and Dean.
At yet another level the way final submissions were put raises the question of whether, given Craig’s debt levels, after the payment of his costs that $200,000 would be of much use at all. But the submission was put in part, appropriately recognising that some relief from Craig and Joanne’s overall debt burden may give them an opportunity to make some decisions to rationalise the situation and get ahead. But given the competing claims upon Nancye’s bounty from Craig and Simone, in my view even the figure which was put in final submissions is too high. But what is an appropriate figure?
(3) How can the Court mould relief to give Craig adequate provision? Craig says that his proposed structure for provision from the estate will provide him with adequate provision and still provide reasonable provision for Dean and Simone.
I do not agree. The reality is that if the gift to Simone of the one third Rozelle property is preserved, as it should be, any increase in Craig’s share of residue must come from a deduction of Simone or Dean’s share. Neither of them can readily afford such a reduction. To reduce Simone’s share by the amount proposed would still leave her with substantial debt levels on her mortgage and no additional funds for her future expenditure expectations. She can barely satisfy these expectations on the residue that she is currently receiving.

Dean’s position is not dissimilar. Substantially reducing his share of the residuary estate will destroy any prospect that he has of saving for a home in the future.
The choice in this case is very difficult. The Court is well aware of Dean and Simone’s argument that no further provision should be made: (1) because it will barely alleviate Craig’s parlous debt situation; and (2) because of its impact on Dean and Simone.
One has the sense from Dean and Simone’s submissions against provision of any kind that for them the case has the overtones of rewarding a prodigal son and overlooking their frugality. But in the exercise of this jurisdiction the Court must look more objectively and more broadly and, in my view, a factor that weighs heavily in the balance is Craig’s desperate financial position: affording him some chance to take control of his substantial debt is important at this point of his life.
But balanced against that is the need to ensure whatever relief is given does not greatly damage Simone and Dean’s financial position. For these reasons the Court has concluded that the Court should make an award, but do so in circumstances where costs are capped and the provision made is more conservative than that which Craig submitted was appropriate. The legal basis for capping a costs order is considered in the next paragraphs.
The Court has a broad costs discretion associated with making orders for provision under Succession Act, Chapter 3. Under Succession Act, s 99(1) the Court may order that “the costs of proceedings under this Chapter [Chapter 3] in relation to the estate…of a deceased person…be paid out of the estate…in such manner as the Court thinks fit”. An order that a party’s legal costs be paid from the estate, in conjunction with the order for provision and as part of that order, is in my view within the broad power to make orders in relation to costs “in such manner as the Court thinks fit”. This conclusion is supported by the broad power to make ancillary orders that the Parliament has conferred on the Court under Succession Act, s 66 to give effect to family provision orders:

“66 Consequential and ancillary orders
(1) The Court may, in addition to, or as part of, a family provision order, make orders for or with respect to all or any of the following matters for the purpose of giving effect to the family provision order:
…
(l) any other matter the Court thinks necessary.
..”

Costs inclusive family provision orders have been made in cases which require them: see Taylor v Farrugia [2009] NSWSC 801, (at [70] and [71]). As Brereton J explained in Taylor v Farrugia (at [70]), such orders may be very useful where the alternative may leave the parties vulnerable for example to movements in the value of properties, which may be productive of injustice. The parties at the hearing were given notice that the Court may take this course.
And it is well settled that the Court can make orders for capping costs in family provision cases, based on the express powers conferred under Uniform Civil Procedure Rules 2005 (“UCPR”), Pt 42.4(1) and the Civil Procedure Act 2005: see Nudd v Mannix [2009] NSWCA 327 (“Nudd”), (at [26] and [27]); and Baychek v Baychek [2010] NSWSC 987 (“Baychek”), (at [17]). The discretion to cap costs in family provision cases is exercised in other jurisdictions: see, for example, Sweaney & Anor v Bailie [2017] QDC 295; Askew v Askew [2015] NSWSC 192 (“Askew”), (at 126); Sergi (bnf Solowiej) v Sergi [2012] WASC 18 (at [51]); DW v RW (No 2) [2013] QDC 189; Cangia v Cangia [2008] VSC 455.
Moreover Ball J noted in Baychek, (at [25]), some relevant considerations to the exercise of cost capping jurisdiction as follows:

“In fixing costs as a cap rather than as a substitute for an assessment, it seems to me that the court should take into account the same matters that it takes into account in determining an appropriate cap. That is, what the court must be satisfied of is that the costs are excessive having regard to matters such as the nature of the case, the size of the estate and the amount that the costs applicant has recovered and could reasonably be expected to have recovered at the time proceedings were commenced. If the court is satisfied that the costs are excessive, then it will need to determine what amount to fix. But, as I have said, the nature of that enquiry seems to me to be no different from an enquiry concerning what amount to fix as a cap.”

This Division’s own practice notes recognize costs capping orders may sometimes appropriately be made in family provision cases - see Practice Note No. SC Eq 7, which states:

“24. Orders may be made capping the costs that may be recovered by a party in circumstances including, but not limited to, cases in which the net distributable value of the estate (excluding costs of the proceedings) is less than $500,000.”

As Rein J said of this Practice Note in Askew, (at [126]), although the value of the estate is of particular relevance, estates of over $500,000 may also be subject to a costs capping order.
Returning to the issue of appropriate provision, taking into account these matters, the Court has tried to fix the sum which will give some useful relief to Craig, pay most of his costs and not too greatly impair Dean and Simone’s financial positions. The Court has decided to make an order for provision by way of a legacy from the estate to Craig in the sum of $100,000. In addition to Craig’s existing share of residue this will give him a real opportunity to take control of his debt situation. It will not provide him with much more.
Mr Morrissey was prepared to submit that the plaintiff’s costs should be kept within an amount of $80,000, when he was seeking a legacy of $200,000 for Craig. The Court, in determining costs orders in family provision cases, will consider the overall justice of the case: Singer v Berghouse (1993) 114 ALR 521, at p 522, per Gaudron J. It is proper and proportionate in my view, given the lesser amount Craig has recovered by way of a legacy from the estate, to cap his costs in the total amount of $65,000.
This award of this legacy will be borne as to $100,000 by Simone’s share of residue and as to $65,000 by Dean’s share of residue. There are no easy choices in this case. But in my view this is the most fitting exercise of the Court’s jurisdiction.

Conclusions and orders

For these reasons he Court makes the following orders and directions:

Make an order for provision in favour of the plaintiff out of the estate of the late Nancye Detheridge in the sum of $100,000;

Order that the plaintiff’s costs be capped in the total sum of $65,000 be paid out of the estate on the ordinary basis;

Order that the orders for a legacy and costs be borne as to $100,000 by Simone’s share of residue of the estate and as to $65,000 by Dean’s share of residue of the estate;

Order that the defendant’s costs be paid out of the estate on the indemnity basis;

Direct that if any party seeks a special costs order that such party should notify the Court and the other party of that party’s intention to seek such an order before 2 April 2019; and

Both parties are granted liberty to apply up to 2 April 2019 to put any submissions as to costs or as to other matters to give effect to these orders.

**********

Amendments

25 March 2019 - [34] first line, "John and Joanne" changed to "Craig and Joanne"

[38] first word, "Simone" changed to "Joanne"

[43] first line, "John and Joanne" changed to "Craig and Joanne"

[147] last line, "Christine once she" changed to "Craig once he"

03 April 2019 - [180]- "Craig" to "Dean"

[181(3)] - "Craig" to "Dean"

Decision last updated: 03 April 2019

Medium Neutral Citation:	Detheridge v Detheridge [2019] NSWSC 183
Hearing dates:	17 & 18 May 2018
Date of orders:	07 March 2019
Decision date:	07 March 2019
Jurisdiction:	Equity
Before:	Slattery J
Decision:	Order for provision in the sum of $165,000 inclusive of costs made out of the deceased’s estate. The provision comprises a legacy of $100,000 and costs capped at $65,000. The legacy and costs will be borne by the defendant’s share of residue as to $65,000 and by Simone Detheridge’s share of residue as to $100,000. The defendant’s costs will be paid out of the estate on the indemnity basis.
Catchwords:	SUCCESSION – family provision – Succession Act, Chapter 3 – deceased dies leaving three children, a daughter and two sons – the deceased’s estate comprises of a single residential house property in suburban Sydney and a one third interest in the house occupied by the daughter and used by her as a music studio – the plaintiff is the deceased’s youngest son – the defendant executor is the deceased’s eldest son – the deceased left her one third interest in the property occupied by her daughter to the daughter and thereafter gave some small legacies to her grandchildren and then gave the residue of her estate to each of her three children in equal shares – the plaintiff claims that his present financial needs are such that he should have further provision out of the deceased’s estate – the defendant and the daughter contend that their own financial needs are such that the will should remain undisturbed and no order for provision should be made - whether the plaintiff has been left without adequate provision for his maintenance, education or advancement in life – whether any further provision should be made for the plaintiff out of the estate of the deceased – if further provision should be made for the plaintiff, what is the nature and quantum of that provision.
Legislation Cited:	Succession Act 2006, ss 66, 99(1) Uniform Civil Procedure Rules 2005, Pt 42.4(1)
Cases Cited:	Askew v Askew [2015] NSWSC 192 Baumgartner v Baumgartner (1987) 164 CLR 137 Baychek v Baychek [2010] NSWSC 987 Cangia v Cangia [2008] VSC 455 Drury v Smith [2012] NSWSC 1067 DW v RW (No 2) [2013] QDC 189 Evans v Levy [2011] NSWCA 125 Nudd v Mannix [2009] NSWCA 327 Singer v Berghouse (No. 2) (1994) 181 CLR 201 Sergi (bnf Solowiej) v Sergi [2012] WASC 18 Sweaney & Anor v Bailie [2017] QDC 295 Taylor v Farrugia [2009] NSWSC 801
Category:	Principal judgment
Parties:	Plaintiff: Craig Richard Detheridge Defendant: Dean John Detheridge In the estate of the late Nancye Detheridge
Representation:	Counsel: Plaintiff: K. Morrissey Defendant: R. Alkadamani Solicitors: Plaintiff: Armando John Gardiman, Turner Freeman Defendant: Mary Antony, Antony Lawyers
File Number(s):	2017/146470
Publication restriction:	No

Item or Fund	Cost
Funds to pay off existing Debt:	$300,000
Schooling Fund for Two Children High School Years:	$423,000
House Repair & Maintenance Fund:	$92,500
Car Fund:	$20,000
Total of the Extent of My Needs:	$835,500
Less My Share Under the Will (According to Craig’s Affidavit):	$460,000
Total Outstanding Debt Balance:	$375,500