Dowsley v Noonan

[2003] NSWSC 214

CITATION:	Dowsley v Noonan [2003] NSWSC 214
HEARING DATE(S):	25, 26 February 2003
JUDGMENT DATE:	27 March 2003
JURISDICTION:	Equity Division
JUDGMENT OF:	Master McLaughlin
DECISION:	(1). I order that the amended summons be dismissed.; (2). I order that the Plaintiff pay the costs of the Defendants, such costs to be on the party and party basis.; (3). I order that the First Defendant be entitled to be paid out of the estate of the late Faye Iris Noonan ("the Deceased") the difference between the costs of the First Defendant on the indemnity basis and the amount of the aforesaid costs which he may recover from the Plaintiff.; (4). The exhibits may be returned.
CATCHWORDS:	Succession - Family Provision - Claim by adult daughter - Financial and material circumstances of Plaintiff - Whether Plaintiff has been left without adequate provision for her proper maintenance - Competing claims of other beneficiaries - Practical effect of provision claimed by Plaintiff would be to dispossess youngest child of testator of his residence.
LEGISLATION CITED:	Family Provision Act 1982 Testator's Family Maintenance and Guardianship of Infants Act 1916
CASES CITED:	Blore v Lang (1960) 104 CLR 124 Singer v Berghouse (1994) 181 CLR 201
PARTIES :	Lisa Michelle Dowsley (Plaintiff) Christopher John Noonan (First Defendant) Jason Noonan (Second Defendant)
FILE NUMBER(S):	SC 4189/01
COUNSEL:	R.W. Tregenza (Plaintiff)
SOLICITORS:	Adams & Partners, Lawyers (Plaintiff) Victor A. Bizannes, Solicitor (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Thursday, 27 March 2003

4189/01 LISA MICHELLE DOWSLEY -v- CHRISTOPHER JOHN NOONAN

JUDGMENT

1 MASTER: These are proceedings under the Family Provision Act 1982.

2 By summons filed on 27 August 2001 the Plaintiff, Lisa Michelle Dowsley, claims an order for provision for her maintenance, education and advancement in life out of the estate or notional estate or both of her late mother, Faye Iris Noonan (to whom I shall refer as “the Deceased”).

3 The Deceased (who was a widow) died on 15 February 2001, aged 66. She left a will dated 29 September 2000, probate whereof was on 3 April 2001 granted to Christopher John Noonan, the executor named in such will (who is the First Defendant in the present proceedings).

4 By that will the Deceased gave her house property at 36 Pearson Street, Wentworthville, together with the contents thereof, to her youngest son Jason David Noonan, and gave the residue of her estate as to 50 percent thereof to the Defendant and the other 50 percent thereof to her other son Michael John Noonan.

5 The assets of the estate consisted of the house property at Wentworthville (to which an estimated value of $250,000 was ascribed in the inventory of property), together with money in bank accounts and on fixed deposit (totalling almost $80,000).

6 The house property has a present estimated value of $420,000.

7 In calculating the value of the estate available for distribution it will be appreciated that the costs of the present proceedings must be taken into account. Whatever be the outcome, the Defendant, in carrying out his duty to uphold the terms of the will of the Deceased, will be entitled to his costs out of the estate. The Plaintiff, in the event that she be successful in her claim, will also be entitled to an order for her costs out of the estate. It has been estimated that the costs of the Plaintiff will total about $30,000, whilst those of the Defendant will total about $16,500.

8 As a result of the transfer to Jason of the house property at Wentworthville in November 2001 (after the commencement of the proceedings), he has been joined as the Second Defendant to the proceedings, and for such purpose an amended summons was filed by the Plaintiff on 29 August 2002. The Defendant has also effected a partial distribution of the residue of the estate by paying the sum of $30,000 to each of his brother Michael and himself.

9 The Deceased had been married only once, to John Raymond Noonan, who died in 1997. The Deceased was survived by her four children, being Michael John (who is now aged thirty-seven); Lisa Michelle, the Plaintiff (who was born on 19 January 1969 and is now aged thirty-three); Christopher John, the First Defendant (who was born on 4 May 1970 and is now aged thirty-two); Jason David (who is now aged twenty-six).

10 The Plaintiff as a child of the Deceased is an eligible person within paragraph (b) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such she has the standing to bring the present proceedings. The only other eligible persons in relation to the Deceased are her three other children. The Deceased’s husband died in June 1997.

11 The Plaintiff resided with her parents throughout her school days. She continued to live in the family home at Wentworthville after she left school in 1984. She departed the parental home for the first time in 1987, to reside with her then fiancé. However she returned home six months later. The Plaintiff married her present husband Gary Dowsley in 1989, whilst she was still an apprentice hairdresser. She qualified as a hairdresser in 1991.

12 On account of a back injury the Plaintiff gave up her hairdressing career for a period of about four years, during which time she was employed as a teller by Westpac.

13 In about October 1997 the Plaintiff and another hairdresser acquired their own hairdressing salon, firstly at Abbotsbury, and subsequently at Cecil Hills. Each of the Plaintiff and her partner contributed $10,000 towards the establishment of that business. The Plaintiff has subsequently (I gather, in recent times) sold her interest in the hairdressing business for $11,000. The Plaintiff now devotes most of her time to her responsibilities as wife and mother. However, she works on Saturdays on a casual basis, receiving $20 an hour. In addition, she receives a Social Security supplement, being a family allowance/family benefit in the sum of $108 a fortnight.

14 The Plaintiff and her husband have two children, being Benjamin (who was born on 9 December 1997 and is presently aged five) and Kyle (who was born on 2 November 2001 and is presently aged one).

15 The Plaintiff and her husband reside in a house property at 5 Burdett Crescent, Blacktown which was purchased $145,000 in 1997, and which has a present value of $300,000. That house property is subject to a mortgage upon which an amount of $116,000 is presently outstanding. That house property is the home of the Plaintiff, her husband and their two children.

16 The Plaintiff and her husband are also co-owners of a house property situate at and known as 81 Stephen Street, Blacktown. The other co-owners of that house property are the parents of the Plaintiff’s husband. There was some dispute as to the beneficial interest held by those co-owners. The evidence in this regard given by the Plaintiff and that given by her father-in-law were somewhat inconsistent. It is clear, however, that the legal interest of the co-owners is such that the Plaintiff and her husband as joint tenants are the registered proprietors as to an 80 percent interest in that property, whilst her parents-in-law, as joint tenants, have a 20 percent interest, and that the Plaintiff and her husband as joint tenants and the Plaintiff’s parents-in-law as joint tenants hold their respective interests as tenants in common. Nevertheless, it was asserted on behalf of the Plaintiff that that legal ownership did not reflect the beneficial ownership and that, in fact, the beneficial ownership of the Stephen Street property is that each of the four co-owners has a one fourth interest in that property, in consequence of the contributions which were made (especially in relatively recent times) by the Plaintiff’s parents in law.

17 The Stephen Street property is occupied by the parents-in-law of the Plaintiff as their residence. They do not pay any rent or occupation fee to the Plaintiff or her husband. However, they are responsible for all outgoings. The mortgage repayments on that property are met by the Plaintiff and her husband. An amount of about $71,000 is presently outstanding on that mortgage. The Stephen Street property is presently valued at $280,000.

18 In very recent times, and since the institution of the present proceedings, the Plaintiff and her husband have purchased the house property situate at and known as 7 Burdett Crescent, Blacktown, which is located next door to their matrimonial home. The purpose of that purchase was as a negatively geared investment. That property was purchased on 20 January 2003 for $298,500. The entirety of the purchase price was funded by way of a refinancing of the mortgage on the Stephen Street property. The property at 7 Burdett Crescent is now rented out for $240 a week.

19 In addition to the three pieces of real property of which they are the sole owners or the co-owners, the Plaintiff and her husband have the following assets:

Hyundai motor vehicle (having an estimated value of $10,000).

Household furniture and personal effects.

20 The Plaintiff’s husband is employed as a business manager by Muir’s Motors at Ashfield, and presently receives an annual salary of $35,500. In addition, he receives a commission of the nature which he described in his oral evidence. On average that commission is at least equal to the amount of his base salary, probably more. In consequence, therefore, his income from his employment can be treated as being in an amount of at least $5,900 a month, and probably more. In addition, his remuneration includes a superannuation component.

21 Apart from the moneys which they owe in respect to the mortgages on the various pieces of real property, the only significant liabilities of the Plaintiff and her husband are credit card indebtednesses. According to the Plaintiff, she and her husband conjointly owe about $18,000-$19,000 upon various credit cards.

22 When cross-examined concerning her needs the Plaintiff said that she would like her husband to be able to reduce the hours upon which he worked, which she said totalled between seventy and eighty hours a week, and that she would like to be able to reduce the payments which she needs to make on some of her bills (by which I gathered she was referring to the various mortgage repayments and credit card debts). She also said that she wants “to get what is rightfully mine, because I’m a natural child, too”. The Plaintiff said that she was entitled to one quarter of the estate, and that the estate should be evenly divided between herself and her three brothers.

23 In approaching the claim of the Plaintiff the Court must also consider the competing claims of the other beneficiaries named in the will of the Deceased and of any other persons who have a claim upon the testamentary beneficence of the Deceased. The First Defendant (to whom I shall refer as Christopher) is content to abide by the terms of the will, as also (according to the oral evidence of the First Defendant) is his brother Michael. It should here be recorded that no affidavit evidence was placed before the Court by Michael. Christopher said that Michael had informed him that he was content to adopt a neutral stance, and to leave the present claim to be determined by the Court.

24 Jason gave evidence, both by affidavit and under cross-examination. His only significant asset is the Wentworthville house, which has been his home for the entirety of his life, and in which he continues to reside. He also owns a motor vehicle, being a 1980 Nissan Victor (which has an estimated value of about $6,000), a computer (to which he attributes a value of $400), together with the furniture and contents of his residence.

25 Jason, who was formerly a truck driver, is presently employed as a security officer. That employment is what he described as a casual position, although when he is working he works full-time.

26 Evidence was placed before the Court by Jason himself, and also by two medical practitioners who have treated him, concerning Jason’s various physical and mental problems, including dyslexia and attention deficit syndrome, and difficulties which he has in reading and spelling. Jason is unmarried, and stated that he does not expect ever to marry, because of his ongoing medical problems.

27 Although Jason agreed under cross-examination that the Wentworthville house, which in a commodious residence, is larger than his requirements demand, he also expressed a desire to continue to reside therein, especially since he is totally familiar with that house, which has been his home for the entirety of his life. He also gave evidence of the results of inquiries which he had made concerning the cost of acquiring some other residence (be it a house or a town house) in Wentworthville. That is the locality in which he desires to continue to reside, that being an area with which he is completely familiar.

28 It should here be recorded that there was placed before the Court a very considerable quantity of evidence, essentially of an anecdotal nature, concerning the relationship of the Plaintiff with each of her parents, and also with her three brothers. Much of that evidence was largely irrelevant to the present claim of the Plaintiff. It is unnecessary for me to make findings in respect to most of that evidence (for example, in respect to the allegations made by the Plaintiff that she had been sexually abused by her father when she was a child, or the alleged incident where, according to Jason, the Plaintiff perpetrated a hoax by way of a false bomb scare). Suffice it to say that it would appear to be fair and accurate to describe the relationship between the Plaintiff and the Deceased as being volcanic (that being the phrase used on behalf of the Defendant) rather than vigorous (that being the description given on behalf of the Plaintiff).

29 In this regard, however, it is appropriate to set forth the following salutary admonition of Windeyer J in the decision of the High Court of Australia in Blore v Lang (1960) 104 CLR 124 at 137, where His Honour, concerning the statutory predecessor of the Family Provision Act, being the Testator’s Family Maintenance and Guardianship of Infants Act 1916, said,

The jurisdiction under the Testator’s Family Maintenance Act is to provide for deserving persons according to their requirements, not to reward past services. This is sometimes overlooked and evidence concerning the present and probable future requirements of the applicant is subordinated to or submerged in evidence of past services to the testator. Allegations and denials concerning episodes in the past are then likely to become emphasised at the expense of evidence directed to the central issues in the case.

30 I have had the benefit of receiving a written outline of submissions from Counsel for the Plaintiff, together with a chronology from each of the legal representatives of the respective parties. Those documents will be retained in the Court file.

31 In performing the first stage in the two stage process identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201, at 208, it is necessary to establish whether the Plaintiff has been left without adequate provision for her proper maintenance. No provision was made for the Plaintiff by the will of the Deceased. Nevertheless, the Court must look to the financial and material circumstances of the Plaintiff.

32 It is abundantly clear from the fact that the Plaintiff and her husband own or have an interest in three residential properties, one of which is income producing (although all three are subject to mortgages), and one of which was purchased in very recent times, since the institution of the present proceedings, that the Plaintiff has not established need. Indeed, this fact was conceded by the Plaintiff’s husband during the course of his cross-examination, when he said that upon his current income he and the Plaintiff meet their mortgages, and when he agreed that, in any event, if they had any problems they could sell one of the properties if it became necessary.

33 The attitude of the Plaintiff appeared to be that she regarded herself as being entitled to one fourth of the estate of the Deceased, irrespective of her needs. This was despite the fact, to which the Plaintiff agreed under cross-examination, that her financial situation was significantly better than that of Jason. The Plaintiff considered that the practical consequence of her acquiring one fourth of the estate, being that her brother Jason would be dispossessed of the residence which has been the home for the entirety of his life, could be addressed by Jason acquiring some smaller property.

34 The foregoing approach of the Plaintiff is of course totally wrong. It is for the Plaintiff to establish her case upon its own merits. Then, the competing claims of other beneficiaries or persons who have a claim upon the testamentary beneficence of the Deceased may have the effect of reducing, or even extinguishing, an order for provision an entitlement to which the Plaintiff might otherwise have established. The circumstances of those other beneficiaries can in no way enhance the claim of the Plaintiff.

35 I am not persuaded that the Plaintiff has established any relevant need, to the extent that she has been left without adequate provision for her proper maintenance.

36 The foregoing conclusion is, of itself, sufficient to dispose of the claim of the Plaintiff.

37 But even if (contrary to my foregoing conclusion) I were satisfied that the Plaintiff had established relevant need, then I would not be disposed to make an order for her provision the effect of which would be to dispossess Jason (whose medical and psychological problems are not to be disregarded) from his lifetime home. The Plaintiff and her husband and their children are secure in their residence. They own the house next door, which they can sell if they are in any financial difficulties. They also have an interest of at least one half in the house in which the Plaintiff’s parents-in-law are residing. It is not for the Plaintiff to tell Jason where or in what style of residence he should live.

38 The competing claim of Jason is such that, even if the Plaintiff had established the first stage in the two stage process identified in Singer v Berghouse, I would not be prepared, in the circumstances of this case, to make an order designating the Wentworthville house as notional estate, and making provision for the Plaintiff out of that notional estate.

39 It follows, therefore, that the Plaintiff’s claim must be dismissed.

40 I make the following orders:

(1). I order that the amended summons be dismissed.

(2). I order that the Plaintiff pay the costs of the Defendants, such costs to be on the party and party basis.

(3). I order that the First Defendant be entitled to be paid out of the estate of the late Faye Iris Noonan (“the Deceased”) the difference between the costs of the First Defendant on the indemnity basis and the amount of the aforesaid costs which he may recover from the Plaintiff.

(4). The exhibits may be returned.

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Last Modified: 07/10/2003