DJ Singh v DH Singh

[2018] NSWCA 30

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

DJ Singh v DH Singh and Others [2018] NSWCA 30

Hearing dates:

1 November 2017

Decision date:

01 March 2018

Before:

Gleeson JA at [1]
Leeming JA at [318]
White JA at [326]

Decision:

CA 2015/319432
(1)   Appeal dismissed.
(2)   Appellant to pay the costs of the first and second respondents.

 CA 2017/156218
(1)   Extend time for the filing of the document styled “Notice of further appeal” on 1 May 2017.
(2)   Appeal dismissed.
(3)   Appellant to pay the costs of the first and second respondents.

Catchwords:

SUCCESSION – wills, probate and administration – whether evidence raised doubt as to testamentary capacity – whether proponents of last will satisfied the court that the deceased was of sound mind, memory and understanding at time of execution of will.

 

SUCCESSION – wills, probate and administration – whether presumption of knowledge and approval of contents of will displaced by suspicious circumstances – where respondent son involved in will-making process – whether deceased understood the legal effect of specific gifts of jointly owned property.

 

SUCCESSION – wills, probate and administration – claim for rectification of will – whether will gave effect to the deceased’s intention – where instructions for will given by deceased to his solicitor and also via his son - challenge to credit based findings of primary judge accepting evidence of instructions given by the deceased to his solicitor and his son.

 

SUCCESSION – wills, probate and administration – whether ademption of gift of specific property to appellant is affected by Protected Estates Act, s 48 or NSW Trustee and Guardian Act, s 83 – where gift of specific property given by will to appellant – where specific property held by deceased in joint tenancy with his wife – where joint tenancy severed by deceased’s financial managers and deceased’s interest in specific property later transferred to wife pursuant to orders of Family Court of Australia – whether statutory provisions operate to “claw back” value of interest given to appellant under the will but adeemed because deceased did not hold such property at date of death.

  SUCCESSION – family provision and maintenance – whether order for further provision from estate should be made in favour of appellant – where appellant failed to adduce evidence that adequately disclosed his financial position.

Legislation Cited:

Administration of Estates Act 1925 (UK)
Civil Procedure Act 2005 (NSW), s 98
Evidence Act 1995 (NSW), s 91
Family Law Act 1975 (Cth), ss 4, 79, 79A
Family Provision Act 1982 (NSW), ss 7, 9
Guardianship Act 1987, ss 25E, 25H, 25M
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 7(5); Schedule
Lunacy Act 1890 (UK), ss 120, 123
Lunacy Act 1898 (NSW), ss 150, 153
NSW Trustee & Guardian Act 2009 (NSW), ss 48, 83
Protected Estates Act 1983 (NSW), ss 4, 48, 83
Real Estate of Intestates Distribution Act 1862 (26 Vic No. 20), s 51
Succession Act 2006 (NSW), ss 8, 27, 57, 59, 60, 99
Supreme Court Act 1970 (NSW), s 75, 75A, 101
Supreme Court Rules, Practice Note SC Eq 5
Uniform Civil Procedure Rules 2005 (NSW), rr 31.28, 42.1, 51.16, 51.18
Wills, Probate and Administration Act 1898 (NSW), s 29A

Cases Cited:

Akins v National Australia Bank (1994) 34 NSWLR 155
Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Aubrey v Kain [2014] NSWSC 15
Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089
Bates v Cooke [2015] NSWCA 278
Bezer v Bassan [2017] NSWCA 333
British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2
Brown v Heffer (1967) 116 CLR 344; [1967] HCA 40
Chapple v Wilcox [2014] NSWCA 392
Christensen v McKnight (NSWSC, Hodgson J, 2 March 1995, unreported)
Collins v Vakas [2006] NSWSC 393
Craig-Bridges v NSW Trustee and Guardian [2017] NSWCA 197
Cummins Generator Technologies Germany GmbH v Johnson Controls Australia Pty Ltd [2015] NSWCA 264
DH Singh & Anor v GK Singh & Ors; DJ Singh v DH Singh & Anor; S Dillon v D Singh & Anor; GK Singh v DH Singh & Anor [2015] NSWSC 1457
DJ Singh v DH Singh and Another [2017] NSWSC 269
Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Estate of the Late Anthony Marras [2014] NSWSC 915
Ex parte Price (1944) 45 SR (NSW) 53
Fairweather v Fairweather (1944) 69 CLR 121; [1944] HCA 11
Foley v Ellis [2008] NSWCA 288
Foye v Foye [2008] NSWSC 1305
Fox v Percy (2003) 214 CLR 188; [2003] HCA 22
Freed v Taffel [1984] 2 NSWLR 322
Golosky v Golosky [1993] NSWCA 111
Grace v Grace [2012] NSWSC 976
Gregson v Taylor [1917] P 256
Harrison v Schipp (2002) 54 NSWLR 612; [2002] NSWCA 78
House v The King (1936) 55 CLR 499; [1936] HCA 40
In Re Estate of Carpenter 253 So 2d 697 (1971)
Johnson v Johnson (2008) 201 CLR 488; [2008] HCA 48
Jvanich v Kennedy (No 2) [2004] NSWCA 397
Lockrey v Ferris [2011] NSWSC 179
Lodin v Lodin [2017] NSWCA 327
Manning v Hughes; Estate of Ludewig [2010] NSWSC 226
McNab v Earle [1981] 2 NSWLR 673
Michael Wilson & Partners Limited v Nicholls & Others (2011) 244 CLR 427; [2011] HCA 48
Mitchell v Cullingral Pty Ltd [2012] NSWCA 389
Mulchay v Weldon [2002] NSWCA 206
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Paltos v Bassil [2013] NSWSC 1408
Perpetual Trustee v Baker [1999] NSWCA 244
Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Rawack v Spicer [2002] NSWSC 849
Re Fenwick [1972] VR 646
Re Griffith; Easter v Griffith (1995) 217 ALR 284
Re Estate of Max Frederick Dippert [2001] NSWSC 167
Re Fenwick [1972] VR 646
Re Markham; Markham v Markham (1880) 16 Ch D 1
RL v NSW Trustee & Guardian (2012) 84 NSWLR 263; [2012] NSWCA 39
Sassoon v Rose [2013] NSWCA 220
Sgro v Thompson [2017] NSWCA 326
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Tantou v Macfarlane [2010] NSWSC 224
Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Vescio v Bannister (Estate of the late Betty Tait) [2010] NSWSC 1274
Vigolo v Boston (2005) 221 CLR 191; [2005] HCA 11
Witness v Marsden (2000) 49 NSWLR 429; [2000] NSWCA 52
Yacoub v Pilkington (Aust) Ltd [2007] NSWCA 290
Yee v Yee [2017] NSWCA 305
Young v Lalic (2006) 197 FLR 27; [2006] NSWSC 18
Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197

Texts Cited:

Theobald, The Law Relating to Lunacy (Stevens and Sons, Ltd, London, 1924)

Category:

Principal judgment

Parties:

David John Singh (Appellant)
Darran Harsewan Singh (First Respondent)
Paul William Campbell (Second Respondent)
Sharon Leigh Singh (Third Respondent)
Gurpal Kaur Singh (Fourth Respondent)

Representation:

Counsel:
Mr D Singh (self-represented)
Mr GJ Smith (Respondents)

  Solicitors:
Kym Chapman Law (Respondents)

File Number(s):

2015/3194322017/156218

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

[2015] NSWSC 1457 (2 October 2015)
[2017] NSWSC 269 (20 March 2017)

Date of Decision:

2 October 2015
20 March 2017

Before:

Black J

File Number(s):

2013/141437
2013/338156
2013/350277
2013/338196

Judgment

1. GLEESON JA: Mr Douglas John Singh (Douglas) died on 11 November 2012, aged 74. He executed wills on 30 April 2004 and 17 August 2006. The principal issues on this appeal concern whether he had capacity to execute the 2006 will, whether he knew and approved of its contents, and whether the 2006 will should be rectified. There are also issues relating to jointly owned property of Douglas and his wife, a claim by the appellant for a family provision order under the Succession Act 2006 (NSW), and costs.

Outline of factual background

2. Douglas married Gurpal Kaur Singh (Mrs Singh) in 1959. They had three children, Mr David Singh (David), Mrs Sharon Dhillon (Sharon), and an adopted son, Mr Darran Singh (Darran). It is convenient to refer to the deceased and the adult children by their first names. In doing so, I intend no disrespect.

3. By his last will in August 2006, Douglas appointed Darran and Mr Paul Campbell to be the joint executors and trustees of the will. He gave his interest in unit 305 “Belair” at Maroubra to Sharon (cl 4(b)), his interest in unit 5 “Silver Gulls” at Nobby’s Beach to Darran (cl 4(c)) and his interest in unit 206 “Newington Towers” at Maroubra to David (cl 4(d)). He gave the balance of his remaining estate equally to Darran, Sharon and David (cl 4(e)).

4. At the time of the 2006 will, the units in “Belair”, “Silver Gulls” and “Newington Towers” were each held by Douglas and Mrs Singh as joint tenants. As the primary judge observed, subject to any question of severance of title, Douglas’ interests in those properties would have passed to Mrs Singh upon his death, by way of survivorship, if he predeceased Mrs Singh.

5. Clause 6 of the 2006 will requests the executors to make every effort to comply with the deceased’s wishes as set out in a Memorandum of Wishes, which was attached to and forms part of the will. Douglas’ Memorandum of Wishes records that:

1.   I would ultimately like particular properties to be owned by individual members of my family. I would like my executors to try and negotiate with my wife GURPAL KAUR SINGH to sell her interests in:

(a)   “Belair” to Sharon Leigh Singh.

(b)   “Silver Gulls” to Darran Harsewan Singh.

(c)   “Newington Towers” to David John Singh.

2.   I would like my Executors/Trustees to do everything they can to achieve the above.

…

5.   I express my deep disappointment to some of my family that circumstances have arisen causing me to make my Will in these terms, and to making this Memorandum. I hope and trust that [Mrs Singh] will be able to see her way clear to be equally even-handed in her Will and any testamentary wishes that she has.

6. Under the 2004 will, Douglas appointed Mrs Singh and Mr Campbell as the joint executors and trustees of that will and gave specified bequests of $200,000 each to Sharon, Darran and David, and the rest of his estate to Mrs Singh.

7. On 27 March 2007, Douglas signed two enduring powers of attorney in favour of Mr Campbell and Mr Colin Tanner. Also on 27 March 2007, Douglas commenced proceedings in the Family Court of Australia seeking orders for settlement of property pursuant to s 79 of the Family Law Act 1975 (Cth). On 29 November 2007, Mr Campbell and Mr Tanner were appointed by the Family Court of Australia as case guardians for Douglas.

8. On 4 June 2007, David brought an application in the Guardianship Tribunal of New South Wales for appointment of a guardian and financial manager to Douglas. On 10 October 2007, David brought a further application in the Guardianship Tribunal for review of the appointments of attorneys made by Douglas on 27 March 2007. On 23 October 2007, the Guardianship Tribunal appointed Mr Campbell and Mr Tanner as temporary financial managers of Douglas’ estate. Subsequently, on 22 February 2008, the Guardianship Tribunal appointed Mr Campbell and Mr Tanner as the financial managers of Douglas’ estate, and appointed the Public Guardian and Mr Campbell and Mr Tanner as his guardians.

9. On 11 March 2008, Mr Campbell and Mr Tanner, as Douglas’ financial managers, registered transfers severing the joint tenancy in the properties owned by Douglas and Mrs Singh as joint tenants.

10. On 24 March 2009, the Family Court of Australia made orders for the settlement of property between Douglas and Mrs Singh pursuant to s 79 of the Family Law Act. Those orders directed that:

• Mrs Singh transfer within 14 days to Douglas all of her interest in four specified properties, namely her interest in a unit at Broadbeach, a unit at Mermaid Beach, Units 1 and 2, Oakley Avenue, Lismore and a unit at 305/98 Maroubra Road, Maroubra;

• Douglas transfer within 14 days to Mrs Singh all of his interest in properties at 4 Zambelli Drive, Lismore, and a unit at 206/116 Maroubra Road, Maroubra (the Newington Towers property), and his interest in the bus partnership business known as “DJ & GK Singh”, including a parcel of land at Tuntable Creek.

11. It is unnecessary to set out the further details of the Family Court orders, which also provided for indemnities, certain payments and administrative steps to effect the various transfer of properties and the business.

12. On 1 October 2010, the transfer of Douglas’ interest in the Newington Towers property to Mrs Singh was registered. To anticipate what follows, one question arising at trial and on appeal is whether David, as devisee of the Newington Towers property, is entitled to “claw back” the equivalent value of such property from Douglas’ estate, or whether there has been an ademption of the devise of specific property to David under cl 4(d) of the 2006 will because Douglas no longer had any interest in that specific property at his death: Fairweather v Fairweather (1944) 69 CLR 121 at 129 (Latham CJ), 136 (Rich J) and 142 (McTiernan J); [1944] HCA 11; Brown v Heffer (1967) 116 CLR 344 at 348; [1967] HCA 40 (Barwick CJ, McTiernan, Kitto and Owen JJ).

13. In September 2015, the value of the estate was estimated at $1,747,261, assuming the executors’ costs were paid out of the estate.

Procedural background

14. Darran and Mr Campbell sought a grant of probate of the 2006 will in solemn form (proceeding 2013/141437). Defences and cross-claims were filed by Mrs Singh and David. In her defence, Mrs Singh pleaded that Douglas lacked testamentary capacity, but later deleted that defence from her amended defence, which did not admit various matters, including the 2006 will.

15. Mrs Singh filed a cross claim, which was also later amended, in which she sought an order that Douglas’ property remain jointly owned by her; an order for rectification of the 2006 will on the basis that Douglas intended all jointly owned property to pass to her by survivorship; and a declaration that Douglas died intestate. Mrs Singh’s amended cross-claim also pleaded that:

• the 2006 will is “null and void because it does not embody the testamentary intentions and/or the testamentary instructions of the deceased”;

• “no evidence has been produced proving testing of the testamentary capacity of [the deceased] …”;

• “[n]o evidence has been produced proving [the deceased] was capable of comprehending and understanding the complex legal language … used in drafting the will …”; and

• the deceased “experienced difficulty in comprehending, appraising and dealing with his property …”.

16. David filed a defence in the probate proceeding which sought an order under either the Protected Estates Act 1983 (NSW), s 48 or the NSW Trustee and Guardian Act2009 (NSW), s 83; an order rectifying the 2006 will; and a declaration that Douglas died intestate. David later filed an amended defence which did not admit that probate should be granted and did not admit a number of other matters. David also filed a cross-claim in the probate proceedings and later filed an amended second cross-claim which contained relief and pleadings over 34 closely-typed pages. That cross–claim set out a range of claims, in an order of preferences down at least to the eighth preference. As the primary judge noted, David's pleadings have much in common with Mrs Singh’s pleadings, although she was legally represented and he was not at that time.

17. David commenced proceedings (2013/338156) seeking orders to rectify the 2006 will and also sought further provision from the estate under the Succession Act. The claim for rectification of the 2006 will was deleted from his amended summons.

18. Mrs Singh commenced proceedings (2013/350277) seeking orders that Douglas died intestate and that his estate be distributed entirely to her. She later amended her claim in that proceeding to seek an order for further provision from the estate under the Succession Act. That claim for provision was abandoned by her counsel in the course of the hearing below.

19. Sharon also commenced proceedings (2013/338196) seeking further provision from the estate under the Succession Act. That claim was subsequently settled on terms recorded in proposed consent orders dated 1 July 2014, however, those orders were not made at that time.

20. The four proceedings were heard together before the primary judge (Black J) over five days.

The primary judge’s conclusions and orders

21. On 2 October 2015, the primary judge delivered reasons for judgment in which he concluded that Douglas did have testamentary capacity and that he knew and approved the contents of the 2006 will. His Honour rejected the claim for rectification of the 2006 will under the Succession Act, s 27. He also rejected David’s claim for relief under the Protected Estates Act, s 48 or the NSW Trustee and Guardian Act, s 83 insofar as the gift of the Newington Towers’ property under cl 4(d) of the 2006 will was adeemed. He concluded that David’s claim for further provision under the Succession Act should be dismissed: DH Singh & Anor v GK Singh & Ors; DJ Singh v DH Singh & Anor; S Dillon v D Singh & Anor; GK Singh v DH Singh & Anor [2015] NSWSC 1457.

22. The orders made by Black J on 2 October 2015 included:

1.   The Cross-Claims be dismissed.

2.   Probate of the will of the deceased dated 17 August 2006 be granted to the Plaintiffs in solemn form.

3.   The matter be referred to the Registrar to complete the grant.

4.   The parties submit agreed short minutes of order as to costs within 14 days or, if there is no agreement between them, their respective draft orders and submissions (not exceeding 10 pages in 1.5 spacing) as to the differences between them.

…

23. On 29 October 2015, the solicitors for Mrs Singh sent a letter to the Associate to Black J, indicating that Mrs Singh and David (on whose instructions the letter was also sent) did not oppose the making of the consent orders with respect to costs, which had been proposed by the executors in the following terms:

1.   Order that David John Singh (the Third Defendant/Second Cross-Claimant in proceedings 2013/14137 and the Plaintiff in proceedings 2013/338156) and Gurpal Kaur Singh (the First Defendant/First Cross-Claimant in proceedings 2013/14137 and the Plaintiff in proceedings 2013/350277) pay the Executors’ costs to the extent, and in the agreed amount, of $115,000.

2.   Order that the balance of the Executors’ costs, of all of the above-mentioned proceedings and the associated proceedings 2013/338196, in the agreed amount of $85,000 be paid from the estate of the late Douglas John Singh (“the Deceased”).

3.   Order that the costs in the amount of $115,000 referred to in Order 1 above are to paid (sic) or retained out of the share of David John Singh in distribution of the rest and residue of the estate of the Deceased.

4.   Notes there be no order as to the costs of David John Singh and Gurpal Kaur Singh to the intent that he and she bear their own costs of and incidental to the above proceedings.

24. On 2 November 2015, Black J made costs orders in the terms indicated above in the probate proceedings, Mrs Singh’s proceedings and David’s proceedings. In addition, his Honour made orders by consent in Sharon’s proceedings, including:

BY CONSENT:

1.   In addition to the provision made for the Plaintiff under the last valid Will of the deceased, the Plaintiff receive a legacy of $15,000 from the estate of the deceased, payable within 30 days of probate being granted.

2. Interest to be payable on so much of the legacy referred to in Order 1 above as remains unpaid after 30 days of probate being granted at the rate prescribed under s 84A of the Probate and Administration Act 1898.

3.   The Defendants’ costs of the proceedings to be paid from the estate of the deceased on the indemnity basis.

4.   The proceedings otherwise dismissed.

…

25. The formal order giving effect to the dismissal of David’s family provision claim in proceeding 2013/338156 was made by Black J on 20 March 2017: DJ Singh v DH Singh and Another [2017] NSWSC 269.

The two appeals

26. David has filed two appeals. The first appeal (CA 2015/319432) challenges the primary judge’s decision and orders made on 2 October 2015 and the costs orders made on 2 November 2015. In his further amended notice of appeal filed 1 November 2017, David raises 43 grounds; the primary relief sought is to set aside the grant of probate in respect of the 2006 will and, in its place, that a grant of probate of the 2004 will be “invited”, or alternatively, that the estate of Douglas be distributed on intestacy. David did not press the relief sought in pars 34-41 of the further amended notice of appeal.

27. The second appeal filed on 1 May 2017 (CA 2017/156218) challenges the primary judge’s order made on 20 March 2017 dismissing David’s family provision claim in proceedings 2013/338156. That appeal was filed more than 28 days after the material date (relevantly, 20 March 2017) and David requires an extension of time with respect to that appeal: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.16(1)(c). The Court may extend time under sub-rule (1)(c) at any time: UCPR, r 51.16(2). In the absence of any suggestion of prejudice to the respondents, it is appropriate to extend time.

Issues on appeal

28. The issues raised by the two appeals may be conveniently grouped as follows:

A.   Apprehended bias.

B.    Application to adduce further evidence on appeal.

C.   Challenge to procedural rulings.

D.   Testamentary capacity.

E.   Knowledge and approval of 2006 will.

F.   Rectification of 2006 will.

G.   Whether the Protected Estates Act, s 48 and NSW Trustee & Guardian Act, s 83 apply to the jointly owned property transferred by Douglas to Mrs Singh pursuant to the orders of the Family Court of Australia.

H.   Other matters.

I.   David’s family provision appeal.

J.   Final orders, including costs order.

29. Grounds 1-7 of the further amended notice of appeal filed 1 November 2017 and grounds 1-8 of the “notice of further appeal” filed 1 May 2017 are in the most general terms and do not comply with the requirements of a notice of appeal: UCPR, r 51.18(1). These grounds do not state the basic nature of the challenge to his Honour’s decision, nor identify the respects in which an error of law or fact occurred. They may be put aside.

30. On the hearing of the two appeals, David appeared self-represented.

A. Apprehended bias

31. Before dealing with the substantive grounds of appeal it is necessary to address the grounds which assert that the primary judge should have recused himself for apprehended bias.

Legal principles

32. An allegation of apprehended bias entails a lack of procedural fairness.

33. A judge should not sit to determine a case if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question to be determined: Michael Wilson & Partners Limited v Nicholls & Others (2011) 244 CLR 427; [2011] HCA 48 (Michael Wilson & Partners) at [31].

34. The test of apprehension of bias is objective. It does not require an assessment of the state of mind of the judge, as is necessary on an inquiry about actual bias: Michael Wilson & Partners at [33].

35. The application of the apprehension of bias principle requires two steps. The first is to identify what it is said might lead the judge to decide a case other than on its legal and factual merits. The second is to articulate the logical connection between the circumstances identified that matter and the apprehension that the case might not be decided on its merits: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [8]; Michael Wilson & Partners at [32]-[33]; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 at [139] (Heydon, Kiefel and Bell JJ).

36. Accordingly, an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. The question is not whether the judge had in fact prejudged an issue: Michael Wilson & Partners at [67].

37. In Bezer v Bassan [2017] NSWCA 333, this Court (Gleeson JA, Payne JA and Sackville AJA) said at [59] (citations omitted):

The fictional observer is not assumed to have detailed knowledge of the law or the character or ability of a particular judge, but the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The reasonable observer is also presumed to approach the matter on the basis that ordinarily a judge will act so as to ensure both the appearance and substance of fairness and impartiality, although the possibility of pre-judgment or bias cannot simply be dismissed.

38. It is also necessary to keep in mind that claims of apprehension of bias are to be considered in the context of ordinary judicial practice. Active case management, as part of modern litigation, often requires that trial judges intervene in the conduct of cases. Judges are not expected to wait until the end of the case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. Accordingly, the expressions of tentative views, which reflect a certain tendency of mind of the judge, are not on that account alone to be taken to indicate prejudgment. Moreover, counsel are usually assisted by hearing the judges' tentative opinions on matters in issue and being given an opportunity to deal with them: Johnson v Johnson (2008) 201 CLR 488; [2008] HCA 48 at [13] (a case of alleged apprehension of bias) which referred to earlier comments in Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44 at 571 (a case where both actual and ostensible bias were alleged).

Grounds 37-42

39. These grounds assert that the primary judge:

(1)   misinterpreted and misapplied relevant case law precedents regarding apprehended bias (ground 37);

(2)   did not give adequate reasons for his decision regarding his involvement in apprehended bias (ground 38);

(3)   made adverse observations and adverse findings without proper substantiation no reasonable judge could have made (ground 39);

(4)   made undue interference no reasonable judge could have made (ground 40);

(5)   erred by not disqualifying himself by reason of apprehended bias (ground 41);

(6)   erred by not disqualifying his decision by reason of apprehended bias (ground 42).

Grounds 37 and 38

40. Grounds 37 and 38 are misconceived. There is no mention in the transcript of the trial of apprehended bias, nor was any application made by counsel for David during the hearing that the primary judge recuse himself.

41. Accordingly, there was never any occasion for the primary judge to interpret or apply any “case law precedent” regarding apprehended bias (ground 37), nor did his Honour make any decision regarding apprehended bias (ground 38). These grounds may be put aside.

Ground 39

42. It may be accepted that his Honour made adverse observations and findings in his judgment as to the credit of both David and Mrs Singh. That however does not demonstrate apprehended bias in the form of prejudgement of the credit of those who gave evidence in support of the claims by David (or Mrs Singh). Insofar as the primary judge made credibility findings, he had the very considerable advantage of seeing the relevant witnesses give their oral evidence and thus was able to bring to bear aspects of judgment and appraisal that are simply unavailable to this Court: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [23].

43. Turning to David’s specific complaints. The first complaint is directed to his Honour’s reasons at [25]-[36]. In those paragraphs, his Honour outlined the affidavit evidence of David and Mrs Singh and noted that David’s affidavit of 11 June 2015 used distinctive language, often using several descriptive terms in parallel, and that Mrs Singh’s affidavit of 2 April 2014 used similar language. That observation was undoubtedly correct.

44. The second complaint is that his Honour did not accept David’s evidence in cross-examination in which he denied that he either drafted or copied parts of Mrs Singh’s pleadings. His Honour found (at [29]) that this matter was adverse to David’s credit. That view was open to his Honour given the near identical terms of those pleadings and the absence of any cogent explanation for the similarity of the pleadings.

45. The third complaint is directed to his Honour’s observation (at [30]) that the difficulties with Mrs Singh’s affidavit evidence went beyond “collaboration” with others, and that Mrs Singh’s affidavit evidence was unlikely fairly to reflect instructions that would have been given by an elderly person with limited English skills, giving instructions as to an affidavit without the assistance of an interpreter. That observation was justified given:

1. the examples noted by his Honour (at [31]-[36]) of passages in Mrs Singh’s affidavit evidence which resembled the language difficulty used in David’s affidavit and which his Honour found to be unlikely that Mrs Singh had sufficient understanding of to give evidence in that form; and

2. the cross-examination of Mrs Singh as to some of the statements in her evidence, in English, made without an interpreter’s assistance, in respect of which his Honour found (at [37]) that it was plain that she had little understanding of that evidence.

46. His Honour concluded that Mrs Singh’s affidavits did not reflect her words, or the substance of any instructions she was likely to have been able to give her solicitor without the aid of an interpreter, where English was not her first language. That, his Honour found, substantially undermined the weight that could be given to Mrs Singh’s affidavit evidence. Those findings were well open to his Honour, who, as I have said, had the advantage of seeing Mrs Singh give her evidence. No error has been demonstrated.

47. Finally, David complained about his Honour’s finding (at [38]) that he had significant reservations as to David’s evidence, the weight of which was also reduced by the conclusionary form of large parts of it, his argumentative approach on cross-examination, and his lack of adequate disclosure of his financial position. Again, his Honour was best placed to make that finding. No error has been demonstrated.

48. Contrary to David’s submissions, the primary judge gave sufficient reasons for his assessment of the credibility and reliability of the evidence given by David and Mrs Singh. Ground 39 is not established.

Grounds 40-42

49. Grounds 40-42 assert apprehended bias during the hearing on the ground of prejudgment. In his written submissions, David made the following complaints.

(1) Prejudgment

50. First, David complained that the primary judge made adverse observations during the hearing regarding the identical cross-claims of David and Mrs Singh and the identical evidence, identical affidavits and identical pleadings. Two transcript references were given in support of this complaint (30 June 2015, T7-8; and 3 July 2015, T203). The first transcript reference concerns his Honour’s comments at the commencement of the hearing as to whether cross-examination should be permitted by two parties with the same interest. His Honour indicated that he did not need to address that issue if it was resolved between counsel for Mrs Singh and David. He also indicated that his observation may not applicable in respect of the separate family provision claims in the proceedings. His Honour’s observations were entirely appropriate in the circumstances.

51. The second transcript reference concerns an objection by counsel for the executors to reliance by Mrs Singh on her affidavit of 24 April 2014 on the basis that, it was submitted, she did not have adequate language skills to swear that affidavit. His Honour rejected that objection in a ruling given on 3 July 2015. Given that his Honour’s ruling was favourable to Mrs Singh, the basis of the complaint by David is not apparent.

52. Second, David complained that his Honour made adverse findings against Mrs Singh and himself without proper substantiation, or without adequate reasons, or made a decision no reasonable judge could have made, and this “must lead to disqualification”. No transcript references (other than those mentioned above) were provided in support of this generalised complaint, nor did David’s submissions refer to the specific findings challenged.

(2) Inadequate reasons

53. Third, David complained that his Honour failed to give adequate reasons. However, the reasons for judgment delivered after trial cannot be relied upon to support an allegation of apprehended bias during the hearing: Michael Wilson & Partners at [67].

54. In any event, there is no merit in this complaint. The extent and content of reasons will depend upon the particular case under consideration and the matters in issue: see Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [56]-[66] where the principles were articulated by McColl JA (Ipp JA and Bryson JA agreeing). It has been said that the judge must engage with, or grapple or wrestle with, the cases presented by each party: Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [116] (Campbell JA, Allsop P and McColl JA agreeing). Plainly, his Honour did so in this case.

55. His Honour gave detailed and comprehensive reasons which dealt with each of the issues raised by the parties, identified the applicable legal principles, and made necessary findings, some of which are challenged on appeal. There is no deficiency of reasons. David’s real complaint is directed to the outcome, rather the adequacy of his Honour’s reasons.

(3) Acting as an advocate for one party

56. Fourth, David complained that his Honour acted as an advocate for one party by taking up the arguments of that party, crossing the line and making expressions of opinion as to the likely outcome of the pivotal matters regarding witnesses, evidence, affidavits and pleadings. Two transcript references were given in support of this complaint (3 July 2015, T223 and T232-233).

57. The first transcript reference concerns cross-examination of Mrs Singh on statements in her affidavit characterising certain matters as “misleading and deceptive”. His Honour asked Mrs Singh whether she had difficulty in understanding the words “misleading and deceptive” in English. Mrs Singh responded through the interpreter in a fashion that indicated she was confused. His Honour indicated that he would not require Mrs Singh to further answer the cross-examiner’s questions on that topic. That ruling was favourable to Mrs Singh and also to David’s case, insofar as he relied upon her evidence.

58. The second transcript reference concerned the cross-examination of Mrs Singh on par [46] of her 11 June 2015 affidavit. The cross-examiner put to Mrs Singh the proposition that the statement in her affidavit - “Darran Harsewan Singh told my father to get a new will” - had been drafted by David. Mrs Singh answered through an interpreter that “[t]here seems to be a mistake in the way the English is written, something, my mistake”. Mrs Singh also gave evidence that her solicitor should have told her that what was written was not right. His Honour sought clarification by asking Mrs Singh whether it was her evidence that she had made a mistake in this paragraph of her affidavit in referring to Darran having told her father something. Mrs Singh replied through the interpreter in the affirmative, that it was a mistake.

59. His Honour also asked Mrs Singh whether she made that mistake herself and no-one else was involved. Mrs Singh answered through the interpreter, “It’s my mistake”. Mrs Singh also answered in English, “My mistake” and, through the interpreter added, “Why would I – I made a mistake in saying that my father”. In response to his Honour’s further question as to whether she had read the relevant paragraph before she signed her affidavit, Mrs Singh answered through the interpreter, “I read it, but I didn’t pick the mistake, then” and Mrs Singh also answered in English, “I didn’t pick it up. Sorry your Honour, sorry”. No objection was taken to his Honour’s questions by either counsel for Mrs Singh or David.

60. The questions asked by his Honour of Mrs Singh were entirely fair and appropriate. His Honour was seeking to understand Mrs Singh’s evidence concerning the mistake in par 46 of her affidavit. It is plain that Mrs Singh understood his Honour’s questions, as indicated by her responses given, both through the interpreter and by herself in English.

61. None of the matters raised by David provide grounds for concluding that a fair-minded observer might reasonably apprehend that the primary judge might not have brought an impartial mind to the resolution of the issues in the case. The absence of any complaint by counsel for David at the time of the impugned conduct occurred also militates against that conclusion.

Waiver of objection

62. In light of the conclusion above, the question of whether the failure of counsel for David to object at the trial amounted to a waiver of the objection does not arise. Nonetheless, I will briefly express my views.

63. Whilst an objection need not be made in formal or even explicit terms, an allegation of apprehended bias would require counsel for David to have given sufficient indication that the primary judge was being invited to disqualify himself: Vakauta v Kelly at 577; Michael Wilson & Partners at [76]. As David effectively conceded in oral argument, that did not occur in the present case (AT 24, line 11; AT 25, line 4).

64. Accordingly, if contrary to my view, the assertion of apprehended bias had been established, David should be taken to have waived the right subsequently to object.

65. Grounds 37 - 42 have not been established.

Procedural unfairness

66. One further matter should be mentioned in the present context. Although not the subject of a specific ground in the further amended notice of appeal filed 1 November 2017, David made a complaint of procedural unfairness in his written submissions. The complaint was that his Honour did not grant him access to a copy of his affidavit for reference during cross-examination.

67. The transcript (1 July 2015, T124-125) records that when David requested a copy of his affidavit during cross-examination counsel for the executors objected to David’s request. After raising the matter with Mr Smart, counsel for David, his Honour indicated his apprehension that David might disadvantage himself if he were to be distracted by looking at his affidavit, rather than focusing on the cross-examiner’s questions. His Honour invited Mr Smart to indicate if he took a different view. Mr Smart responded in the negative, and indicated his agreement with the course proposed by his Honour. Mr Smart stated that David’s affidavit:

should be handy to him if a question does arise from a specific paragraph that he may need to read. So in relation to your Honour’s comments, I would ask that he close the affidavit until such time as he is referred to a paragraph that he needs to clarify himself.

68. His Honour then explained to David the procedure he proposed to follow in these terms:

… If you are asked questions about any particular paragraph of your affidavit, you should feel free to ask for your affidavit and no doubt it can be shown to you at that point as to that particular paragraph. I will allow the question that Mr Smart has asked so far as it was exploring Mr Singh’s recollection.

69. Contrary to David’s submissions, his Honour left open the possibility of providing David with a copy of his affidavit if asked questions about any particular paragraph. David did not subsequently request access to his affidavit, nor did his counsel ask that David be provided with a copy of his affidavit during further cross-examination. There was no denial of procedural fairness in the approach his Honour took.

B. Application to adduce further evidence on appeal

70. David sought leave orally at the hearing to adduce five items of evidence for the purposes of the appeal. After hearing argument on this application, the Court admitted an affidavit of David sworn 25 October 2017 relating to the service of documents, and rejected three other items of evidence. Insofar as the Court deferred its decision on another affidavit of David sworn 20 October 2017, that affidavit (which related to restitution in the event the appeal was successful) becomes irrelevant having regard to the outcome of the appeals.

71. The applicable principles are well-established. Under the Supreme Court Act1970 (NSW), s 75A(7), the Court may receive further evidence on appeal. However, after a hearing on the merits, the Court is to do so only in special circumstances: s 75A(8), other than where it is evidence concerning matters occurring after the trial: s 75A(9).

72. Although it is not possible to formulate a universal test, in general, special grounds calls for three conditions to be satisfied: (1) that the evidence could not have been obtained by reasonable diligence for use at the trial; (2) that the evidence is credible; and (3) that the evidence is such that there is a high degree of probability that there would be a different result: Akins v National Australia Bank (1994) 34 NSWLR 155 at 160 (Clarke J); Harrison v Schipp (2002) 54 NSWLR 612; [2002] NSWCA 78 at 642 at [195] (Giles JA).

73. The three items of evidence rejected by the Court were:

1. affidavit of David sworn 18 October 2017 relating to directions hearings in this Court with respect to the appeals;

2. affidavit of David sworn on 25 October 2017 relating to his financial circumstances; and

3. reports of Dr Stephen Allnutt dated 30 January 2017, 29 August 2017 and 10 October 2017.

74. None of these items satisfied the criteria for the admission of further evidence on appeal.

75. The first affidavit of 18 October 2017 concerned what was said by the executors’ legal representatives at directions hearings before the Registrar of this Court. It was irrelevant to any issue on appeal.

76. The second affidavit of 25 October 2017 related to David’s financial circumstances and included much material that was available at the time of the trial but was not tendered. No explanation was given for the failure to adduce this evidence at trial. Insofar as the affidavit related to David’s financial circumstances subsequent to the trial, it could not be relevant to whether the primary judge erred in disposing of David’s application for further provision.

77. The reports of Dr Allnutt related to Douglas’ testamentary capacity, which, as I have said, was not an issue that had been pleaded. By seeking to adduce this further evidence, David sought to circumvent the primary judge’s ruling given eight days before the trial commenced dismissing Mrs Singh’s application for leave to adduce expert evidence from Dr Allnutt.

78. Plainly, the further evidence sought to be adduced in the form of reports from Dr Allnutt concerned matters occurring before the trial. It was not suggested by David that the evidence could not have been obtained by reasonable diligence for use at the trial. In any event, Dr Allnutt was ultimately unable to conclude one way or the other whether Douglas had testamentary capacity or whether his capacity was compromised at the time of the execution of the 2006 will. For this reason, the additional evidence from Dr Allnutt was not likely to have led to a different result at the trial.

C.   Challenge to procedural rulings

79. David challenged two procedural rulings given by the primary judge. The first concerns a subpoena to produce issued to Mr Stuart Garrett. Mr Garrett was the solicitor from Stone and Partners, Byron Bay, who acted for Douglas on the preparation of the 2006 will. That firm also acted for Douglas in the Family Court proceeding. The second ruling concerns the primary judge’s refusal of an application by Mrs Singh to adduce expert evidence.

(1) Subpoena to Mr Garrett

80. The subpoena to produce was served on Mr Garrett by the solicitors for Mrs Singh. Mr Garrett refused to produce any documents, claiming privilege. On 10 June 2015, Mrs Singh filed a notice of motion seeking compliance with the subpoena. That motion came before Black J at a directions hearing on 22 June 2015. Having heard from the legal representatives for Mrs Singh and Mr Garrett, his Honour also heard from David who had appeared by telephone. David agreed with his Honour’s proposed orders and directions, which were then made.

81. It is unnecessary to set out the detail of those orders and directions. Shortly stated, the orders provided for the relisting of the matter at 3pm on 25 June 2015, against the contingency that there were any remaining issues in respect of the production of, and access to, documents by Mr Garrett. It seems that the re-listing date was vacated in circumstances where no party raised any further issues in relation to the production of or access to documents.

82. However, one aspect of the subpoena was further agitated by counsel for Mrs Singh towards the end of the first day of the hearing on 30 June 2015. That concerned the production of files relating to Douglas’ Family Court proceedings. His Honour indicated that he would deal with the administrative aspect of that and any issues of privilege the following morning. On the following day (1 July 2015), counsel for Mrs Singh informed his Honour that he was in a position to return the uplifted subpoenaed documents produced by Mr Garrett and his Honour noted that Mrs Singh had returned such documents. No further administrative matters were raised by counsel for Mrs Singh.

83. The complaints in grounds 9 and 10, that the primary judge erred in not halting the proceedings until the records subpoenaed from Mr Garrett were produced and made available, are not established.

(2) Refusal of leave to adduce expert evidence

84. An application to lead expert evidence, or that an expert report be obtained from Dr Stephen Allnutt on the testamentary capacity of Douglas, was made by Mrs Singh by notice of motion filed in court on 22 June 2015 on the same day as his Honour dealt with the motion concerning the subpoena to Mr Garrett. As I have said, David appeared at this pre-trial hearing by telephone. He also made submissions on this application.

85. In his ex tempore reasons for dismissing Mrs Singh’s motion to file an expert report of Dr Allnutt, his Honour noted that the application, as advanced by counsel for Mrs Singh, was in effect an application to lead expert evidence in accordance with Practice Note SC Eq 5, and that the application for leave was outside time provided under UCPR, r 31.28. His Honour was not satisfied that Mrs Singh had established “exceptional circumstances” that warranted the grant of leave to adduce expert evidence under UCPR, r 31.28(4).

86. In reaching that conclusion, his Honour took into account a number of matters, including: (a) the lateness of the application relative to the hearing date (commencing on 30 June 2015); (b) the fact that counsel for Mrs Singh was not in a position to indicate when the suggested report of Dr Allnutt would become available; and (c) that the likely consequence of granting leave to lead expert evidence would be, as counsel for Mrs Singh acknowledged, to require a vacation of the hearing date in circumstances where the proceedings had been on foot for over 19 months.

87. Grounds 14 -16 assert that the primary judge erred in:

1. not granting leave to lead expert evidence regarding the testamentary capacity of the testator (ground 14);

2. dismissing the motion for leave to file an expert’s report regarding the testamentary capacity of the testator (ground 15); and

3. not allowing expert evidence to be adduced regarding the testamentary capacity of the testator (ground 16).

Disclosure of experts’ reports

88. UCPR, r 31.28 deals with disclosure of expert reports. Rule 31.28(1) provides that each party must serve expert reports on each other active party, relevantly, in accordance with any order of the Court or, if no such order is in force, in accordance with any relevant Practice Note.

89. The relevant Practice Note SC Eq 5 – Expert Evidence in the Equity Division provides:

12. Under UCPR 31.19, a party considering or intending to adduce expert evidence at trial must promptly seek directions from the court in that regard. A party must seek those directions in accordance with paragraphs 13, 14 and 15 of this Practice Note.

90. UCPR, r 31.28(3) and (4) provide:

31.28 Disclosure of experts’ reports and hospital reports

(cf SCR Part 36, rule 13A; DCR Part 28, rule 8; LCR Part 23, rule 3)

…

(3) Except by leave of the court, or by consent of the parties:

(a) an expert’s report or hospital report is not admissible unless it has been served in accordance with this rule, and

…

(4) Leave is not to be given as referred to in subrule (3) unless the court is satisfied:

(a) that there are exceptional circumstances that warrant the granting of leave, or

…

91. The term “exceptional circumstances” is not defined in the Civil Procedure Act or the UCPR. In Yacoub v Pilkington (Aust) Ltd [2007] NSWCA 290 at [66]-[67], Campbell JA (Tobias JA and Handley AJA agreeing) summarised the approach of the Court to the term “exceptional circumstances” in the predecessor rule, r 31.18(4), which has been replaced by r 31.28:

[66] Another question of construction concerned “exceptional circumstances” in rule 31.18(4). In San v Rumble (No 2) (2007) NSWCA 259 at [59]-[69], I gave consideration to the expression “exceptional circumstances” in a different statutory context to the present. Without repeating that discussion in full, I shall state such of the conclusions as seem to me applicable in the construction of rule 31.18(4):

(a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [2000] 1 QB 198 (at 208).

(b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] 1 WLR 1262; [2000] 1 All ER 907 (at 1268; 912-913).

(c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 (at [26]).

(d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland (at 1268; 912-913).

(e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186).

[67] In the context of rule 31.18(4) UCP Rules, any decision about whether there are exceptional circumstances would need to bear in mind the explicit statement of objectives of a court in the management of litigation contained in sections 56-59 Civil Procedure Act 2005.

92. The onus to satisfy the Court that the grant of leave is warranted under UCPR, r 31.28(4) lies on the non-complying party.

Grounds 14-16

93. In Cummins Generator Technologies Germany GmbH v Johnson Controls Australia Pty Ltd [2015] NSWCA 264 at [166], Beazley P (Gleeson and Leeming JJA agreeing) observed that appellate review of a determination under UCPR, r 31.28(4)(a) may not strictly be on the basis of the principle stated in House v King (1936) 55 CLR 499; [1936] HCA 40. Beazley P continued at [166]:

Where the question whether a court is satisfied of a particular matter which involves the application of a standard, the appropriate review mechanism is in accordance with the principles in Warren v Coombes [1979] HCA 9; 142 CLR 531; Singer v Berghouse [1994] HCA 40; 181 CLR 201; Port Stephens Council v Samson [2007] NSWCA 299; Community Association DP270253 v Woollahra Municipal Council (No 2) [2014] NSWLEC 8. UCPR, r 31.28(4)(a) provided that there must be “exceptional circumstances” for the grant of leave and thus specifies the standard in respect of which there must be satisfaction.

94. His Honour’s reasons demonstrate that he identified the correct question and took into account relevant considerations before concluding that “exceptional circumstances” for the grant of leave to adduce further expert evidence had not been established. Although it may be that appellate review may not be confined to identification of House v The King error, no basis for appellate intervention has been made out.

95. Grounds 14 - 16 are not established.

Circumstances relevant to the probate issues

96. Before addressing the probate issues it is of assistance to outline the family relationships and the circumstances in which the 2006 will was executed.

97. Douglas and Mrs Singh were married in Bundala, India in 1959. They had two children – Sharon and David. Darran is the natural son of Mohinder and Gian Bassi. Mohinder is Mrs Singh’s brother. Darran was adopted by Douglas and Mrs Singh in 1970.

98. Mrs Singh was the principal homemaker and Douglas conducted the partnership business of DJ & GK Singh Bus services in Lismore and rental properties. Douglas drove buses up until about 2001. Sometime later he was diagnosed with Parkinson’s disease. David attended University in Sydney from 1995 to 2000. During the university semesters, Mrs Singh stayed in Sydney with David. They returned to the family home in Lismore during university holidays.

Hospitalisation of Douglas

99. Douglas was hospitalised between April and September 2005 as his condition worsened. After three months at home he was again admitted to hospital in Lismore on 22 December 2005, apparently to await placement in an aged care facility. In February 2006, while Douglas was still in hospital, correspondence passed between Darran (on the wishes of Douglas) and David (putting his own, and possibly Mrs Singh’s, position) concerning the separation of the jointly held assets of Douglas and Mrs Singh. It is not necessary to refer to the detail of this correspondence, apart from noting the primary judge’s characterisation of Darran’s approach as “sensible and reasonable” (at [43]) and David’s responses as “strident” and “strong”: at [40] and [42].

Ms Turner’s report

100. On 9 February 2006 Douglas underwent cognitive testing, and a report was prepared by Ms Caoilfionn Turner (a clinical neuropsychologist) dated 16 February 2006. The hospital nursing notes for 9 February 2006 record that the neuropsychology assessment was discontinued on that day due to the side effects of Douglas’ medication, to which he seemed to be very sensitive.

101. In her report, Ms Turner noted that Douglas presented as a softly-spoken elderly man who was mobilised in a wheelchair. He had a slight bilateral hand tremor; his eye gaze appeared normal; his hearing was impaired; and his response (both motor and verbal) was consistently slow. Under the heading “Testing Results”, Ms Turner noted that Douglas was orientated to time and space and had an adequate knowledge of current events, although he did not know his age. He demonstrated marked psycho-motor slowing; his attention span was adequate but he had some difficulty switching from one task to another. He struggled to copy geometric shapes and memory testing was discontinued as he appeared to be very confused about the task at hand. Douglas’ verbal abstract reasoning was age-appropriate.

102. Ms Turner expressed the following conclusions in his report:

Mr Singh currently manifests marked slowing, memory (encoding, retrieval and recognition) and executive difficulties (switching attention, organising visuo-spatial material). His abstract reasoning appears to be intact, and there is slight reduction to his attention span.

It is important to consider that Mr Singh is under a lot of emotional strain at present, which his likely to have compromised his performance. It is also likely that medication affected his performance, as observed. However, it is unlikely that these explain the entire picture, and quite possible that he manifests a subcortical dementia.

Mr Singh’s performance on resting and clinical picture is slightly atypical for Parkinson’s disease, in that cognitive deterioration has been fairly rapid, recognition and storage skills are implicated. Furthermore, his presentation fluctuates, and he has experienced an acute confusional state. I wonder if it is possible that he does not have PD, but manifests parkinsonism associated with Diffuse Lewy Body Disease? In this regard it may be useful to determine if the behaviour fluctuations observed during testing reflect an “off” medication state, or fluctuations in his clinical picture.

103. The primary judge summarised the import of Ms Turner’s report as follows (at [47]):

It seems to me that report has mixed implications. Some aspects of it suggest issues as to the deceased’s performance, including his concentration, and other aspects suggest that the deceased is likely to have had capacity, at the time the will was signed, including the observations that his condition at the time of that examination was likely to be associated with stress and medication, that his abstract reasoning appeared to be intact and that there was a “slight” reduction to his attention span.

Instructions for 2006 will

104. The primary judge made the following findings with respect to the circumstances in which the 2006 will was prepared and executed.

105. Mr Garrett received his first substantive instructions when he met with Douglas at St Vincent’s Hospital Lismore, on 8 March 2006. That attendance followed an earlier telephone call from Darran in early March 2006. With respect to that meeting his Honour found: at [49]:

… I do not doubt that there was reference to the then existing family issues, the deceased’s wish to achieve a fair result, the ownership of the assets in the partnership were in joint tenancy, and the deceased’s cultural values. Those cultural values – in particular a reluctance to be seen to initiate a separation of property interests or more widely – had significance both for the deceased and Mrs Singh in the way any question of separation of property interests was to be approached.

106. His Honour described the content of this discussion, relating to questions about tax and accounting, as “lengthy”, and noted that the dispositions discussed at this first meeting were different from those ultimately adopted in the 2006 will. His Honour accepted Mr Garrett’s evidence that Darran was present for some of the discussions but did not take an active role, other than to respond to accounting questions posed by Douglas, and did not offer an opinion about the way Douglas was dividing his assets: at [50].

107. On 26 March 2006, Darran prepared a document headed “Dad’s thoughts in various issues at 26th March 2006”, which his Honour found was provided to the solicitors who drafted Douglas’s will. The document included a section headed “Current will issues” which noted that Douglas:

• was “now clear about the implications of joint tenancy for property ie the survivor gets it all via joint tenancy”;

• was not then prepared to convert joint tenancy to tenancy in common, which he saw as being “aggressive” towards Mrs Singh and approving of her asset split request;

• did not believe that Mrs Singh would be “fair in his eyes” to Darran because of the split in the family in December 2005 and because of Sharon’s and David’s influence on Mrs Singh, and suspected that she would not leave anything to Darran; and

• had noted the options in respect of the draft will, including as to the bus partnership and treatment of particular property: at [51].

108. His Honour found that subsequent telephone discussions took place in which instructions were conveyed to Mr Garrett, generally by Darran, which are documented by file notes made by Mr Garrett and Mr David Jones (an employed solicitor assisting Mr Garrett), albeit the notes were not particularly detailed: at [53].

109. On 21 April 2006, Mrs Singh and Douglas signed a handwritten document, witnessed by Sharon, stating that they “both agree” to a 50/50 split of all assets, with the bus run to Douglas and certain properties to Mrs Singh, and the unit in Belair at Maroubra to go to Douglas and Sharon to have use of that unit for at least one year rent free: at [54]. Douglas and Mrs Singh then sought to file consent orders at the Family Court of Australia effecting a division of their property in accordance with this arrangement, however, those orders were not made: at [54].

110. On 24 April 2006, Douglas was admitted to Caroona Jarman Hostel. His diagnosis on admission was recorded in the nursing notes as Parkinson’s disease, constipation, hearing impairment and urinary tract infection.

111. His Honour observed that an email dated 11 May 2006 from Darran to Mr Garrett recorded that Mrs Singh had advised Darran to start the valuation process and that she had spoken with her solicitor, Mr Vinod Kalyan. Mr Garrett followed up with Mr Kalyan in the period from May until August 2006, in respect of the position as to the properties jointly owned by Douglas and Mrs Singh: at [55].

112. On 2 August 2006, Mr Garrett had a discussion with Douglas at the hostel during which Douglas indicated a wish for his estate to be divided in four equal parts between Mrs Singh, Darran, David and Sharon. His Honour noted that, by this time, Douglas appeared to have begun to contemplate that particular property would go to each of the children: at [55].

113. Mr Garrett received a telephone call from Mr Kalyan sometime after he met Douglas on 2 August 2006 and prior to 15 August 2006. Mr Kalyan indicated that he had received instructions from Mrs Singh (concerning a proposed division of property) and would write to Mr Garrett shortly. Mr Garrett telephoned Douglas and informed him that Mrs Singh’s solicitor would be forwarding a proposal in the mail shortly. Douglas responded by requesting Mr Garrett to come to the hostel “so we can resolve what I will do with my will”.

114. On 15 August 2006, Mr Garrett met Douglas at the hostel. Douglas gave him further instructions as to the new will, to the effect that his estate was to be left to his three children, to Mrs Singh’s exclusion, and expressed the wish that each of the children should receive a specific property.

115. His Honour accepted Mr Garrett’s evidence that Douglas said that he had tried to talk to Mrs Singh, but she would not take his calls and hung up on him; that Douglas stated that having Mrs Singh as an executor would be “a complication”; and that only Darran and Mr Campbell should be made executors: at [57]. His Honour also accepted Mr Garrett’s evidence that he and Douglas discussed the effect of joint ownership of the relevant properties, and that Douglas noted, among other things, that the properties would pass by right of survivorship to Mrs Singh. Mr Garrett’s evidence was that he and Douglas discussed options for the resolution of that issue, including the severance of the joint tenancies or a memorandum of wishes to identify the properties which could go to each of the children: at [58]-[59].

116. Upon his return to his Byron Bay office, Mr Garrett gave instructions to Mr Jones about drafting the will. On 15 August 2006, a draft memorandum of wishes and an amended will were sent by Mr Garrett’s secretary to Darran who was requested to advise of any further amendments. His Honour treated that email as assuming that Darran would give such advice following consultation with Douglas: at [63].

117. The draft memorandum of wishes provided for the proceeds of his superannuation policy and funds were to be paid to Mrs Singh, and that his interest in Belair, Maroubra be owned by Sharon; his interest in the property at Nobbys Beach be owned by Darran; and his interest in Newington Towers at Maroubra be owned by David: at [62].

118. On the following day, 16 August 2006, Darran emailed Mr Garrett’s secretary at 8:16 am advising a number of changes to the draft memorandum of wishes and draft will. Those changes included deleting the provision that Douglas’ superannuation funds be paid to Mrs Singh. His Honour found this change to be understandable given the wider property division then under discussion. The other change was the deletion of the “wishes” regarding specific property and the inclusion of bequests in the will rather than wishes: at [64]. Darran gave evidence, which his Honour accepted, that this email was based on instructions from his father. His Honour found that it did not follow from Darran’s involvement in the will that Douglas did not know or understand the contents of the final will, nor did it follow that Douglas had not assented to the contents of the final will, in circumstances where it was (subsequently) read to him and apparently understood by him: at [65].

119. Mr Garrett gave evidence that while he had not seen the 16 August 2006 email, he was not surprised by the email from Darran or with its contents, as Douglas’ intention regarding the bequests of specific properties had been known to him and was recorded in his file note of the 2 August 2006 meeting: at [66].

120. Late on 16 August 2006, Mr Kalyan emailed a letter to Mr Garrett proposing a property settlement involving Douglas and Mrs Singh splitting their assets equally. The letter also proposed the sale and division of the proceeds of certain properties. Mrs Singh gave evidence that she had not spoken to Mr Kalyan. Her counsel submitted that David had initiated the letter and the position it communicated: at [67]. While his Honour did not make that finding, he found that the possibility of a property settlement was an important aspect of the circumstances in which the August 2006 will was executed: at [67].

121. On 17 August 2006, Douglas executed the 2006 will at Lismore before Mr Carroll, a solicitor in Mr Garrett’s firm, and Mr Carroll’s secretary, Ms Koppen, as the attesting witnesses. This occurred in the carpark of the solicitors’ premises so that Douglas would not have to climb the stairs to the firm’s offices. Mr Carroll stood beside the passenger side of the car where Douglas was sitting, and Ms Koppen stood behind him. Darran had driven Douglas to the carpark and was sitting in the driver’s seat.

122. Mr Carroll’s evidence was that he read the will aloud to Douglas who confirmed that it was what he wanted. Mr Carroll gave evidence that it was his practice when witnessing a will with a client to state who the executor was, to go through the gifts and where the residue was going, while making sure the testator was aware of the contents of the document: at [68]. Mr Carroll also gave evidence of his practice in respect of testing a testator’s capacity and said that he did not have any doubts regarding Douglas’ capacity. Mr Carroll said that Douglas listened carefully, although was slow in answering questions, he answered appropriately: at [68].

123. His Honour accepted that Mr Carroll adopted his usual practice in respect of reading the will and testing Douglas’ capacity, and that this provided a reasonable basis for concluding that there was no reason to doubt Douglas’ capacity to understand and execute the 2006 will: at [68].

The primary judge’s reasons

(a) Testamentary capacity

124. Notwithstanding his conclusion that the issue of testamentary capacity had not been pleaded in the cross-claims, the primary judge proceeded to address this question by reference to the submissions advanced by counsel for David and Mrs Singh relying upon the report of Ms Turner. His Honour found that the nature or scope of the disorder referred to in Ms Turner’s report, “Diffuse Lewy Body Dementia”, was not explained by the evidence. He reiterated his earlier finding that the report was equivocal in its implications for Douglas’ capacity: at [85].

125. His Honour found that if it were necessary to determine the question of capacity, he was satisfied that Douglas had testamentary capacity at the time he executed the will in August 2006, giving the following reasons (at [86]):

If it were necessary to determine the question of capacity, I am satisfied by the evidence to which I have referred above, including the evidence of Mr Garrett as to dealings with the deceased in preparing the will, the evidence of Mr Carroll of the process adopted in its execution, and the assessment later made by the deceased’s consulting neurologist, that the deceased had the capacity to understand the nature of the act of executing a will and its effect, and would be able to call to mind the property that was in his power to dispose of in the will. As I noted above, on 27 March 2007, seven months after the deceased made his will, the deceased’s consultant neurologist was present when the deceased executed other documents and expressed the opinion that the deceased understood the nature and effect of the documents and had the capacity to understand the effect of what he was signing and doing. It seems to me that, on the balance of probabilities, the deceased would have also had such capacity several months earlier when he signed the August 2006 Will. The evidence of discussions between Mr Garrett and the deceased as to the content of the will indicate he had the ability to call to mind the persons who may have claims upon his testamentary bounty, and to weigh the relative claims of those persons, although he did not provide for Mrs Singh in that will in the context of the then discussions as to a separation of their property interests, which was later implemented. There is no evidence of delusion at the time of the August 2006 Will and no suggestion that the effects of overmedication of the deceased noted when he was admitted to St Vincent’s some months earlier were continuing at that time.

(b) Knowledge and approval of contents of 2006 will

126. His Honour proceeded on the basis that Darran’s involvement in providing instructions to the solicitors in respect of the 2006 will required the Court to be satisfied with the “righteousness of the transaction” (at [104]). His Honour make the following findings:

• Darran’s involvement, to some extent, in assisting Douglas with the will and in providing information to the solicitors in respect of business and partnership details, was not surprising given the extent of his care for Douglas in the period from March to August 2006: at [99].

• Darran’s evidence should be accepted that the email dated 16 August 2006 which Darran sent to a secretary in Mr Garrett’s office reflected Douglas’ wishes: at [101].

• Mr Garrett took instructions directly from Douglas, although instructions were also communicated through Darran; the 2006 will was read to, and apparently understood by, Douglas before it was executed; and the content of the will, as executed, adopted an even-handed approach between the children and not one that favoured Darran: at [101].

• Mr Garrett’s evidence in respect of the drafting of the will was generally accepted. That Mr Garrett had not seen the final version of the will that had been drafted by Mr Jones, a solicitor within his office, was not significant, in his Honour’s view, in circumstances where there was no suggestion that the will did not reflect the instructions given to the solicitors: at [101].

• the submission by counsel for Mrs Singh that Darran’s involvement in the preparation of the will could properly be characterised as “seeking to maximise the eventual legacies for him” was rejected: at [102].

• there was clear and satisfactory proof that Douglas knew and approved the contents of the will, noting that there was nothing particularly surprising about Douglas leaving his estate directly to his children, rather than to Mrs Singh, where events by that time had made clear that the property left to Mrs Singh was unlikely to be divided equally among the children, and where Mrs Singh had, by that time, confirmed, through her solicitor, her wish to separate their respective property assets, even if the detail of the proposal had not reached Douglas when the will was signed: at [104].

127. Having accepted that Douglas understood the intention of Mrs Singh to seek a division of matrimonial property, his Honour further found that the approach adopted in the 2006 will was not surprising and gave no reason to doubt that the instructions communicated by Darran had, in fact, originated from Douglas: at [104].

128. In finding that Douglas did understand the effect of the will, his Honour took into account that, in substance, the will gave effect to what was discussed at the 15 August 2006 meeting with Mr Garrett, that Douglas did know the extent of his property, including the issues arising from the joint tenancies in several properties, and that he did comprehend and appreciate the claims on his bounty to which he ought to give effect: at [105].

129. His Honour also found that Douglas knew the legal effect of the 2006 will and that the reading of the will to Douglas by Mr Carroll, solicitor, supported a finding that Douglas had knowledge of, and approved the will, and that Douglas must have known that he was leaving his estate to his three children and not Mrs Singh: at [106].

130. His Honour found that the terms of the 2006 will were readily explicable in the circumstances where the will was executed after discussion and execution of an informal agreement dealing with a separation of property interests between Douglas and Mrs Singh, and shortly after Douglas was advised that Mrs Singh’s solicitor had confirmed her wish to separate their respective interests in the properties: at [109]. His Honour continued at [110]:

On balance, I find that that (sic) the telephone call from Mrs Singh’s solicitor confirmed that she was committed to proceeding with a split of the relevant properties, and that was sufficient to lead the deceased, first, to exclude Mrs Singh from the August 2006 Will, on the basis that she would receive an interest in the properties under that arrangement and, second, to seek to leave specific properties which he might hope to receive under the arrangement to the three children.

131. His Honour rejected Mrs Singh’s reliance upon the subsequent result of the Family Court proceedings as giving rise to “further suspicion”. His Honour found that subsequent developments do not provide any basis for a finding of whether Douglas knew and approved the will at the time he signed the will: at [111].

132. His Honour concluded that he was satisfied that Douglas knew and approved the contents of the 2006 will notwithstanding the matters relied upon by Mrs Singh and David as giving rise to “suspicious circumstances”: at [112].

(c) Rectification

133. His Honour found that there was no suggestion that any clerical error had been made in drafting the 2006 will: at [118]. There is no challenge to this finding.

134. His Honour found that Douglas’ intention was to transfer his interest in particular properties to particular persons and to divide residue equally between the three children and that the 2006 will gave effect to Douglas’ intentions: at [119].

135. His Honour also found that it was significant that Douglas intended to adopt a particular mechanism to give effect to his broader intention, namely, to allocate an interest in a particular property to each of his children, and the residue to the three children equally, and that the 2006 will accurately reflected that mechanism at all times: at [119].

136. His Honour found that a claim for rectification is not available in a situation where, by reason of later events, the 2006 will did not bring about a transfer of Douglas’ interest in the Newington Towers property to David by reason of the (subsequent) transfer of Douglas’ interest in that property to Mrs Singh: at [120].

137. With respect to amendments made to the will by Mr Jones between 15 and 17 August 2006 his Honour found that neither the fact that changes to the will were made by the solicitor who had carriage of the matter (subject to partner supervision) or the circumstances in which they were made, gave rise to any irregularity or support the claim for rectification: at [122].

138. His Honour rejected the submission by counsel for David that little weight could be placed on the evidence of Mr Carroll who read the will to Douglas. He found that the fact that the will was read to Douglas, who appeared to understand it before he executed it, tends to displace any inference that it did not give effect to his intention at the time, and subsequent developments do not change that result: at [123].

139. As to the submission by counsel for David that it was likely that Douglas would pre-decease his wife in which event the specific gifts of property would be ineffective, his Honour found that proposition to be somewhat speculative. As to the submission that Douglas (and Darran) did not know that the property gifts would be ineffective if Douglas pre-deceased his wife, his Honour found this was inconsistent with his earlier findings that Douglas was aware of, and the will addressed, the issues in respect of joint tenancy: at [123].

Grant of probate in solemn form - principles

140. In Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285, Meagher JA (Basten and Campbell JJA agreeing) summarised the applicable principles with respect to the grant of probate in solemn form. Although lengthy, it is convenient to set out Meagher JA’s reasons at [44]-[48], given the emphasis in David’s submissions on the absence of medical evidence of testamentary capacity at the time of execution of the 2006 will and David’s reliance on the suspicious circumstances rule:

[44] The starting point is that the onus of proof lies upon the proponent of the will to satisfy the court that it is the last will of a "free and capable" testator: Barry v Butlin at 482; 1092; Fulton v Andrew [1875] LR 7 HL 448 at 461; Tyrrell v Painton [1894] P 151 at 157; Bailey v Bailey [1924] HCA 21; 34 CLR 558 at 570; Timbury v Coffee [1941] HCA 22; 66 CLR 277 at 283. To establish that a document is the last will, it must be proved that the testator knew and approved its contents at the time it was executed so that it can be said that the testator comprehended the effect of what he or she was doing: Barry v Butlin at 484; 1091; Cleare v Cleare (1869) LR 1 P & D 655 at 657-658; Atter v Atkinson (1869) LR 1 P & D 665 at 668, 670; Nock v Austin [1918] HCA 73; 25 CLR 519 at 522, 528.

[45] If the will is rational on its face and is proved to have been duly executed, there is a presumption that the testator was mentally competent. That presumption may be displaced by circumstances which raise a doubt as to the existence of testamentary capacity. Those circumstances shift the evidential burden to the party propounding the will to show that the testator was of "sound disposing mind": Waring v Waring (1848) 6 Moo PC 341 at 355; 13 ER 715 at 720; Sutton v Sadler (1857) 3 CB NS 87 at 97-98; 140 ER 671 at 675-676; Smith v Tebbitt (1867) LR 1 P & D 398 at 436; Bull v Fulton [1942] HCA 13; 66 CLR 295 at 343; Kantor v Vosahlo [2004] VSCA 235 at [49], [50]. That doubt, unless resolved on a consideration of the evidence as a whole, may be sufficient to preclude the court being affirmatively satisfied as to testamentary capacity: Bull v Fulton at 299, 341; Worth v Clasohm [1952] HCA 67; 86 CLR 439 at 453.

[46] Upon proof of testamentary capacity and due execution there is also a presumption of knowledge and approval of the contents of the Will at the time of execution. That presumption may be displaced by any circumstance which creates a well-grounded suspicion or doubt as to whether the will expresses the mind of the testator. In Thompson v Bella-Lewis [1997] 1 Qd R 429 McPherson JA (dissenting in the result) said (at 451) of the circumstances able to raise a suspicion concerning knowledge and approval that, except perhaps where the will is retained by someone who participated in its preparation or execution or who benefits under it, "a circumstance must, to be accounted 'suspicious', be related to the preparation or execution of the will, or its intrinsic terms, and not to events happening after the testator's death". See also McKinnon v Voigt [1998] 3 VR 543 at 562-563; Robertson v Smith [1998] 4 VR 165 at 173-174. Once the presumption is displaced, the proponent must prove affirmatively that the testator knew and approved of the contents of the document: Barry v Butlin at 484-485; 1091; Cleare v Cleare at 658; Tyrrell v Painton at 157, 159; Nock v Austin at 528.

274. David’s essential complaint is that his Honour erred in finding that the evidence adduced by David did not address his financial position “in a comprehensive or coherent way to allow an overall assessment of his financial position”.

Decision

The role of the appellate court

276. It is well established that the principles governing appellate review of discretionary decisions apply to the decision of the primary judge on the question of whether a claimant has satisfied s 59(1)(c) of the Succession Act.

277. It follows that the primary judge’s finding that David had not demonstrated that inadequate provision had been made for his proper maintenance, education and advancement in life was an evaluative decision that can only be disturbed on appeal if there were an error of principle, a material error of fact, a failure to take some material consideration into account, or the converse, or the result is so unreasonable or plainly unjust to bespeak error of such a kind: Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4 at [54]-[55] (Beazley P); Bates v Cooke [2015] NSWCA 278 at [59]-[61] (Sackville AJA); Sassoon v Rose [2013] NSWCA 220 and Yee v Yee [2017] NSWCA 305; Lodin v Lodin [2017] NSWCA 327 at [131]-[132] (Sackville AJA, Basten JA and White JA agreeing). See also in relation to the jurisdictional question under s 9(2) of the Family Provision Act 1982 (NSW): Mulchay v Weldon [2002] NSWCA 206 at [24] (Hodgson JA, Handley JA and Campbell AJA agreeing); Foley v Ellis [2008] NSWCA 288 at [83]; Tobin v Ezekiel at [71] (Meagher JA, Basten and Campbell JA agreeing).

278. It should also be mentioned that in Singer v Berghouse (at 212), the plurality approved the following comments of Kirby P in Golosky v Golosky [1993] NSWCA 111:

Unless appellate courts show restraint in disturbing the evaluative determinations of primary decision-makers they will inevitably invite appeals to a different evaluation which, objectively speaking, may be no better than the first. Second opinions in such cases would be bought at the cost of diminishing the finality of litigation in a troublesome area and, sometimes at least, with a burden of costs upon the estate which should not be encouraged.

The two-stage approach

279. In Sgro v Thompson [2017] NSWCA 326, White JA (McColl JA agreeing) described the debate in this Court as to whether the two-stage analysis referred to in Singer v Berghouse is applicable to claims for family provision orders under Ch 3 of the Succession Act in these terms at [68] – [74]:

[68] In Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 the plurality (Mason CJ, Deane and McHugh JJ), in addressing the structure of predecessor legislation (s 7 and s 9(2) of the Family Provision Act 1982 (NSW) (the “Family Provision Act”)) said that a two-stage inquiry was engaged, the first involving a jurisdictional question of whether the applicant had been left without adequate provision for his or her proper maintenance, education and advancement in life that, though it involved the making of value judgments, was a question of objective fact to be determined at the date of hearing (at 211), whereas the second stage did involve an exercise of discretion in the accepted sense (at 211). Whether the same two-stage analysis is applicable to claims for family provision orders under Ch 3 of the Succession Act has been the subject of significant debate (e.g. Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308; Poletti v Jones [2015] NSWCA 107; (2015) 324 ALR 641; Underwood v Gaudron [2015] NSWCA 269; Burke v Burke [2015] NSWCA 195).

[69] The question should be of no real significance, provided that the nature of the first stage of the inquiry is not misunderstood. ….

[70] If the two-stage approach is still to be adopted, the same considerations apply at both stages. The plurality said in Singer v Berghouse (at 209-210):

“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.”

[71] The risk of error arises if a two-stage approach is adopted and it is assumed that the first stage requires an evaluation of whether the applicant has been left without adequate provision for his or her maintenance, education or advancement in life, thereby focusing primarily, or perhaps exclusively, on the applicant’s financial needs. An applicant’s financial needs and the financial needs of other persons with claims on a deceased’s testamentary bounty are important, and often highly important considerations, but as Basten JA said in Chan v Chan [2016] NSWCA 222 at [22]:

“… [I]t is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs.”

[72] The question is whether adequate provision was made for the proper maintenance, education or advancement in life of an applicant. I agree with Basten JA’s reasoning in Andrew v Andrew that the structural changes between the Family Provision Act and Ch 3 of the Succession Act mean that a two-stage approach is generally no longer appropriate. In Poletti v Jones [2015] NSWCA 107 Basten JA (with whom Emmett and Leeming JJA agreed) accepted that there may be circumstances in which that approach is preferable (at [19]). However, as Allsop P said in Andrew v Andrew (at [6]) this may be an analytical question of little consequence.

[73] The risk is that if a two-stage approach is adopted, the first stage may be seen as confined to assessing the adequacy of the provision made for the applicant to satisfy his or her financial needs. In Underwood v Gaudron Basten JA said (at [68]):

“If it were correct to adopt a two stage approach, there was some force in the appellant’s submission that she should have succeeded at the first stage. Thus it was not in doubt that the will made no provision for her maintenance or advancement in life, let alone ‘adequate provision’, within the meaning of s 59(1)(c). That she had material needs which might have been diminished by provision under the will was also uncontested. Accordingly, unless the reference to ‘adequate’ provision is to be treated as engaging with the various factors which might provide a reason not to make an order, the appellant satisfied s 59(1)(c). If the need to assess adequacy for that purpose did encompass all the factors relevant to determining whether an order ought be made pursuant to subs (2), the elements of the two possible stages would be common; if they were not common, no analysis has been provided as to which factors are relevant only to s 59(1)(c) and which are relevant only in making a determination pursuant to s 59(2).”

[74] If a two-stage approach is adopted, it is erroneous to treat the first stage as confined to an assessment as to whether adequate provision has been made for the applicant’s material needs. That is clear from Singer v Berghouse in the passage quoted at [70] above that at the first stage of the inquiry (under the Family Provision Act) the question was whether the provision was inadequate in all the circumstances for the applicant’s “proper” maintenance, education and advancement in life, and that that required regard to be had to not only the applicant’s financial position, but the size and nature of the estate, the totality of the relationship between the applicant and the deceased and the relationship between the deceased and others with claims upon his or her bounty.

280. Payne JA agreed (at [4]) with White JA that the question whether a two-stage analysis is applicable to claims for family provision orders under Ch 3 of the Succession Act should be of no real significance, provided that the nature of the first stage of the inquiry is not misunderstood.

281. As I have said, David did not submit that the primary judge fell into the error of treating the first stage of the inquiry as directed solely or primarily to the adequacy of the provision for David’s needs. Nor do I read his Honour’s reasons as confined to a consideration only of David’s financial position in reaching his conclusion that David had not established inadequate provision had been made for his proper maintenance, education and advancement in life. That the primary judge considered, notwithstanding the other factors to which he had made reference (at [160]), the dominant and determinative consideration was David’s financial need, does not in itself involve an error of principle: Sgro v Thompson at [75].

Ground 31

282. David submitted that his conduct was not reasonably or properly established to tend against the making of a family provision order in his favour. David pointed to the qualification (“may”) in the final sentence of his Honour’s reasons at [161] (set out at *[271]* above).

283. The executors’ response is that his Honour did not consider it necessary to determine matters such as disentitling conduct, given the conclusion reached with respect to David’s financial circumstances, his lack of disclosure in that regard, and whether he had been left with adequate provision. That submission should be accepted. It is apparent from the reasons given by his Honour at [162] (which are extracted at *[272]* above), that his Honour did not base his conclusion on disentitling conduct of David.

Grounds 32 and 33

284. Grounds 32 and 33 are connected. These grounds challenge his Honour’s finding at [142] that David’s evidence did not address his financial position “in a comprehensive or coherent way to allow an overall assessment of his financial position”.

285. David submitted that he adequately disclosed “at least in broad outline” the whole picture concerning his financial situation and full and frank disclosure was given in evidence of his financial circumstances. I do not agree. For the reasons given by his Honour, David did not provide even in broad outline the whole picture of his financial circumstances. He failed to disclose a number of significant matters, including real property owned by him or his company, Zubovka individually or jointly with Mrs Singh or her company; the amount owing in respect of such property; the rental income received from such property; and amounts held in various bank accounts and his dealings with such monies.

286. Insofar as David challenged his Honour’s findings (at [142]) based on documentary records in respect of bank accounts he held, there is no merit in this complaint., Contrary to David’s submissions, Exhibit P10 records deposits into David’s account with the Bank of Queensland between 17 October 2012 and 27 March 2013 in excess of $171,000 (in fact $171,682.65). And the first deposit recorded into that account was $75,000 on 18 October 2012.

287. Nor did his Honour err in taking into account the content of the other documentary records relating to David’s accounts with Bank of Sydney Limited (Exhibits P11 and P20), his margin lending account with St George Bank (Exhibit P12), his account with HSBC Australia Limited (Exhibit P13) and his accounts with National Australia Bank (Exhibit P14) and ING Direct (Ex P15).

288. Next, David complained that there is no evidentiary basis for his Honour’s finding that David has substantial financial resources in his own right. Again, I do not agree. Given his Honour’s earlier findings concerning David’s interest in various properties and the documentary records of bank accounts held by David, the finding concerning David’s financial resources was well open to his Honour.

289. David also complained that there is no evidentiary basis for his Honour’s finding that it is very likely that he will also benefit from the continued financial support of Mrs Singh, and that in the ordinary course several properties held by David’s company as joint tenant with Mrs Singh will pass to his companies by survivorship if Mrs Singh predeceases him. Given the evidence of the financial support that had been provided to David by Mrs Singh and the close relationship between them, the inference was open to his Honour that it is very likely that David will benefit from the continued financial support of Mrs Singh.

290. Against the likelihood of properties held by David’s company as joint tenant with Mrs Singh passing to David by survivorship if Mrs Singh predeceased him, David submitted that it is equally likely, if not more likely, that his company is dissolved prior to the death of Mrs Singh or that the properties are sold prior to her death or the dissolution of David‘s company. The difficulty with this submission is that there was no evidence of any intention by David to dissolve his company or that the financial position of his company was such that it was likely to be wound up. Nor is there any evidence of any intention of David and Mrs Singh to sell the jointly owned properties.

291. David’s application for provision under the Succession Act failed because he was unable to satisfy the primary judge as to the requirement set out in s 59(1)(c) that adequate provision for his proper maintenance, education or advancement in life had not been made by Douglas in the 2006 will. Given the significant limitations in the evidence adduced by David in support of his claim, no error has been demonstrated in his Honour’s finding.

Challenge to order dismissing David’s family provision proceedings

Grounds 9-19 and 39 of notice of further appeal

292. Grounds 9-19 and 39 of the notice of further appeal filed 1 May 2017 challenge the primary judge’s order made on 20 March 2017 dismissing David’s family provision proceeding (2013/338156): DJ Singh v DH Singh & Anor [2017] NSWSC 269. The other grounds in the second appeal essentially repeat grounds in the first notice of appeal. These may be put aside as they have already been dealt with.

293. In his second judgment, the primary judge noted (at [3]) that when he delivered his principal judgment he made orders dismissing David’s cross-claim in the probate proceeding, including his claim for provision under the Succession Act, and that when costs orders were subsequently made on 2 November 2015, no formal order to give effect to his conclusion was made in David’s separate proceedings.

294. In deciding to give effect to his conclusion in the principal judgement with respect to David’s separate proceedings, his Honour said in his second judgement (at [14]):

I accept that Mr Singh’s claim for provision under the Succession Act in the Further Proceedings was brought in separate proceedings from his claim for provision under the Succession Act in the Cross-Claim in the Probate Proceedings, although those proceedings were heard together, the same evidence was relied on in both claims, Counsel who appeared for Mr Singh advanced the same submissions in respect of both claims and I dealt with those submissions in both matters together in my judgment. It seems to me that those claims in the two proceedings are not independent, in that the determination of the claim in one of the proceedings on the merits necessarily determined the other. To put that proposition another way, Mr Singh could not conceivably fail in the Cross-Claim under the Succession Act in the Probate Proceedings and succeed in the claim under the Succession Act in the Further Proceedings or vice versa, particularly where he relied on the same evidence and his Counsel advanced the same submissions in respect of both claims. It seems to me that the result in this claim in the Further Proceedings is consequential upon the result in the corresponding claim in the Cross-Claim in the Probate Proceedings, and vice versa, because both claims were put on the same basis.

Submissions

295. David’s complaint is that his Honour erred in his second judgment in failing to distinguish between the subject matter of David’s cross-claim in the probate proceedings and David’s separate claim for family provision in his separate proceedings. David submitted that his Honour’s reasons (at [3] and [14]) disclosed error because his Honour proceeded upon the basis that David had made a claim for further provision under the Succession Act in his amended cross-claim filed in the probate proceedings, when he had not done so.

Decision

296. It may be accepted that the primary judge inadvertently conflated the subject matter of the relief claimed by David in his second cross-claim filed in the probate proceedings (which did not include a claim for provision under the Succession Act), with the relief claimed in the amended summons filed in David’s separate proceedings. However, that error is immaterial because his Honour had dealt with David’s claim for provision under the Succession Act in his principal judgment (at [139]-[162]). David’s claim for provision under the Succession Act failed. The orders made by his Honour on 20 March 2017 gave effect to that conclusion by dismissing proceedings 2013/338156. Those orders were appropriate.

297. Further and contrary to David’s submissions, there was no denial of procedural fairness or natural justice in relation to the 20 March 2017 orders. As his Honour’s second judgment records (at [5]-[9]), David was afforded the opportunity to make submissions before the formal order was made on 20 March 2017; and David exercised that opportunity and made written submissions, including that his Honour should not make that order. His Honour correctly rejected that submission.

298. Insofar as David asserts that his Honour failed to provide adequate and sufficient reasons for his decision in the second judgment, there is no merit in this complaint.

J. Final Orders, including Costs

299. Grounds 34-36 are connected and relate to the final orders, including costs orders, made in the four proceedings. David contended that his Honour erred:

1. in finding that Mrs Singh should pay her own costs and the executors’ costs in relation to her family provision claim on an indemnity basis (ground 34);

2. in making final orders in proceedings 2013/141137, 2013/350277, 2013/338156 (ground 35); and

3. in making final orders in proceedings 2013/338196 by consent (ground 36).

Ground 36

300. It is convenient first to address ground 36 which challenged the final orders made in Sharon’s proceedings. David complained that the primary judge made orders for Sharon’s family provision claim (proceedings 2013/338196) without the consent of either Mrs Singh or himself. He also submitted that his Honour did not give adequate reasons for the decision, misunderstood the facts, took account of irrelevant matters, made a decision that no reasonable judge could have made, and made a decision that no material before him justified.

301. There is no merit in this complaint. The orders which his Honour made by consent in Sharon’s proceeding on 2 November 2016, reflected the settlement of those proceedings which had been earlier reached between Sharon and the executors on 1 July 2014. The legacy of $15,000 provided for Sharon under those orders represented a part-payment of her costs at that time. The executors pointed out that by compromising those proceedings early they saved any further costs being incurred by the estate in relation to that claim. That may be accepted.

302. Further, since Mrs Singh and David were not parties to Sharon’s proceeding, their consent was not required for the making of those orders. Nor was there any necessity for reasons in relation to the consent orders made in Sharon’s proceeding. Contrary to the premise of David’s submissions, reasons are not required “for every decision made by a judicial officer”: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279 (McHugh J). It was not suggested that the executors’ compromise of Sharon’s claim against the estate for a very small amount was in any way inappropriate.

300. One further matter should be mentioned. It concerns whether David has an entitlement to appeal against orders made in Sharon’s proceeding, to which he was not a party.

301. In Witness v Marsden (2000) 49 NSWLR 429; [2000] NSWCA 52, Heydon JA (as his Honour then was) stated the effect of the authorities with respect to Supreme Court Act 1970 (NSW), s 101 as being that “[t]he law permits non-parties to apply for leave to appeal from orders affecting them”: at [68]. One example referred to was Re Markham; Markham v Markham (1880) 16 Ch D 1, where a potential beneficiary under a will who was not party to administration proceedings was granted by the Court of Appeal leave to appeal despite having not been a party to the cause. Heydon JA concluded by saying that s 101 is to be “construed in the light of more generous standing tests such as whether persons are “aggrieved” or “sufficiently interested””: at [81].

302. No submission was made by the executors that David does not answer the description of a person “aggrieved” or “sufficiently interested” in the outcome of Sharon’s proceeding to challenge the orders made in that proceeding. In light of the conclusion above, it is not necessary to address this issue.

Ground 35

306. This ground challenges the costs orders made on 2 November 2015 in the probate proceedings, Mrs Singh’s proceedings, and David’s proceedings. David asserted that these orders were expressed to be “by consent”, when no consent had been given by either him or Mrs Singh; they had merely indicated that they did not oppose the making of the consent orders proposed by the executors.

307. David acknowledged in oral argument that he was “just making a technical point” and that although there may be no monetary consequences, the matter “needs correction” (AT 23, lines 19-20). I do not agree.

308. First, the premise of this complaint is misconceived. The orders made by his Honour on 2 November 2016 in the probate proceedings, Mrs Singh’s proceedings, and David’s proceedings were not expressed to be made “by consent”.

309. Second, the costs orders made in the three proceedings were in accordance with the orders proposed by the executors, and as the parties affected by such costs orders, David and Mrs Singh had indicated that they did not oppose such orders being made. It was open to his Honour, in the exercise of his discretion, to make orders in the terms proposed by the executors.

Ground 34

310. This ground also challenges the costs orders made in the probate proceedings insofar as they concern Mrs Singh.

311. The costs order made against Mrs Singh was an agreed amount (see [23]-[24] above). As already mentioned, Mrs Singh did not oppose the costs orders proposed by the executors with respect to her. Nor has David established that he is a person aggrieved or sufficiently interested in challenging costs orders made against another party who has not appealed the order.

Conclusion and Orders

312. The appeals have failed on all grounds. Pursuant to the Civil Procedure Act 2005 (NSW), s 98, costs are in the discretion of the court. Section 98 is subject to any other Act and the UCPR. UCPR, r 42.1 provides, relevantly, that costs follow the event, unless the court considers some other order ought to be made.

313. With respect to claims for provision under the Succession Act, s 99 of the Succession Act, provides:

Costs

99(1) The Court may order that the costs of proceedings under this Chapter in relation to the estate or notional estate of a deceased person (including costs in connection with mediation) be paid out of the estate or notional estate, or both, in such manner as the Court thinks fit.

314. While s 99 of the Succession Act does not have any direct application to the costs on a family provision appeal: Chapple v Wilcox [2014] NSWCA 392 at [146] (Barrett JA, Basten and Gleeson JJA agreeing), it is relevant to bear in mind when determining costs on a family provision appeal, the general approaches to first instance family provision cases: Jvanich v Kennedy (No 2) [2004] NSWCA 397 at [7]-[15] (Giles JA); Chapple v Wilcox at [147].

315. Nonetheless, this is a case in which there is no good reason to think that some other result is more appropriate, than that costs should follow the event. David failed on all grounds both generally and with respect to his family provision appeal.

316. The executors sought an order for costs on an indemnity basis. This raises the question of whether the conduct of the appeals involved some relevant delinquency on the part of David as the unsuccessful party: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [44] (Gaudron and Gummow JJ), [69] (McHugh J). In the absence of specific argument directed to this issue, I am not presently minded to make a special costs order.

317. As the executors were the only active respondents to the appeals, they are the only respondents in whose favour costs orders should be made.

318. I propose the following orders:

CA 2015/319432

1. Appeal dismissed.

2. Appellant to pay the costs of the first and second respondents.

CA 2017/156218

3. Grant an extension of time for the filing of the document styled “Notice of further appeal” on 1 May 2017.

4. Appeal dismissed.

5. Appellant to pay the costs of the first and second respondents.

319. LEEMING JA: I agree with the orders proposed by Gleeson JA and with his Honour’s reasons. I add the following concerning s 48 of the Protected Estates Act.

320. As was shown in RL v NSW Trustee and Guardian (2012) 84 NSWLR 263; [2012] NSWCA 39 at [65]-[75], s 48 of the Protected Estates Act 1983 (NSW) and its successor, s 83 of the NSW Trustee and Guardian Act 2009 (NSW) have a lengthy history, drawn from English and New South Wales colonial statutes. Those sections form part of a group of provisions directed to empowering those given authority to manage the estate of a protected person (formerly, a “lunatic”) to sell land. In particular, s 120 of the Lunacy Act 1890 (UK) empowered a court order to “authorise and direct the committee of the estate of a lunatic to do all or any of the following things”, and there followed a lengthy list of dealings with the property of the lunatic, including to “sell any property belonging to the lunatic”. Section 150 of the Lunacy Act 1898 (NSW) was materially identical, save that the references to a “lunatic” were replaced by a reference to “an insane person”.

321. Section 123 of the Lunacy Act 1890 (UK) and s 153 of the Lunacy Act 1898 (NSW) were the antecedents of s 48 of the Protected Estates Act 1983 (NSW), and are best understood in that light. The sidenote to the 1898 Act refers to s 123 and gives a title “Insane person’s interest in property not to be altered”.

322. Those provisions reflected the history recorded in Theobald, The Law Relating to Lunacy (Stevens and Sons, Ltd, London, 1924) at pp 357-8:

“The statute De Prerogative Regis prohibited the sale of the land of a lunatic; but this restriction was found inconvenient, and it was gradually relaxed by authorising the sale of land for payment of debts, then by authorising sale of an undivided share of land, and finally a complete power of selling the land of a lunatic was given and reproduced in s 120(a) of the Act of 1890. Concurrently with the relaxation of restrictions on the sale of land, enactments were passed providing that the proceeds of sale should remain land for the purposes of devolution. Such an enactment was contained in s 135 of the Lunacy Regulation Act 1853, which was subsequently enlarged and finally reproduced as s 123 of the Lunacy Act 1890.”

323. The provision which was s 123 was very important to those who might inherit the property of the lunatic. For it is to be recalled that until the enactment, shortly after Theobald’s work was published, of the Administration of Estates Act 1925 (UK), realty of persons dying intestate descended to their heirs, while personalty devolved on the next of kin. The distinction is discussed by Jordan CJ in Ex parte Price (1944) 45 SR (NSW) 53. The point of s 123 is that the sale of real property of a lunatic did not prevent the proceeds of sale from devolving to the lunatic’s heir, who might be different from his or her next of kin.

324. The position in colonial New South Wales was different after 1862: see s 1 of the Real Estate of Intestates Distribution Act 1862 (26 Vic No. 20), which provided that “all land which by the operation of the law relating to real property now in force would upon the death of the owner intestate in respect of such land pass to his heir-at-law shall instead thereof pass to and become vested in his personal representatives in like manner as is now the case with chattel real property”. Even so, the colonial New South Wales legislation closely copied the English antecedents, even those unsuited to local conditions.

325. What follows from the foregoing is this. The severance of a joint tenancy in real property alters the nature of the real property owned by the proprietor. But the co-owner’s interest in the property, now as a tenant in common, remains an interest in real property. This has nothing to do with the mischief to which s 48 and its predecessors were directed. That is a further reason why severance of the joint tenancy in respect of the Newington Towers property was unaffected by s 48.

326. WHITE JA: I have had the advantage of reading in draft the reasons for judgment of Gleeson JA. I agree with those reasons. His Honour’s reasons demonstrate that the careful judgment of the primary judge was correct.

327. I also agree with the additional observations of Leeming JA concerning s 48 of the Protective Estates Act.

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Decision last updated: 01 March 2018