Fenato v Antonello

[2006] NSWSC 763

CITATION:	Fenato v Antonello [2006] NSWSC 763
HEARING DATE(S):	24/7/06, 25/7/06
JUDGMENT DATE :	25 July 2006
JURISDICTION:	Equity
JUDGMENT OF:	Campbell J
EX TEMPORE JUDGMENT DATE:	07/25/2006
DECISION:	Joint tenancy severed. Plaintiff to receive whole estate.
CATCHWORDS:	SUCCESSION - FAMILY PROVISION AND MAINTENANCE - husband's application - husband has begun another relationship, but continues to live in a domestic relationship with testatrix and provide substantial care to her - no questions of principle - REAL PROPERTY - general principles - joint tenancy - severance - no novel question of principle
LEGISLATION CITED:	Family Provision Act 1982 Real Property Act 1900
CASES CITED:	Abela v Public Trustee [1983] 1 NSWLR 308 Corin v Patton (1990) 169 CLR 540 Fachetti v Fachetti [2004] NSWSC 898
PARTIES:	Gaudenzio Fenato - Plaintiff Rodolfo Luciano Antonello - Defendant
FILE NUMBER(S):	SC 4701/98
COUNSEL:	L Ellison SC - Plaintiff G Rundle - Defendant
SOLICITORS:	Barwick Boitano Lawyers - Plaintiff Thomas & Bisley Solicitors - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

TUESDAY 25 JULY 2006

4701/98 GAUDENZIO FENATO v RODOLFO LUCIANO ANTONELLO - ESTATE OF MARIA LUISA FENATO

JUDGMENT – Ex Tempore

1 HIS HONOUR: There are two matters in dispute in this case. One of them relates to whether there was an effective severance of a joint tenancy. The other relates to whether an order should be made under the Family Provision Act 1982 in favour of the plaintiff. While, as a matter of logic, it would be necessary to decide the question relating to severance before the question relating to the Family Provision Act 1982 can be decided, it is convenient to set out the facts by relating to both aspects of the case at the one time.

2 The plaintiff was born on 7 December 1952, thus he is now aged 53. The testatrix was born on 26 March 1953. They were both born in Italy and both migrated to Australia at a very young age. They married in New South Wales on 28 December 1974. The testatrix worked for the early part of the marriage as an industrial chemist or a laboratory technician at the BHP works in Port Kembla.

3 In the early years of their marriage they came to acquire a home, which they sold to purchase some land located at 68 Clementson Drive, West Hoxton. I will refer to that land as “the property”. It was purchased in 1981, as land which did not have a house erected on it. It is a block of some 3.715ha, or 10 acres.

4 The house was purchased using the proceeds of a home which the testatrix and the plaintiff had previously owned, and some borrowed money. Repayments of the borrowings were made from the earnings of both of them. The plaintiff contributed time and labour to the building of the house which was eventually constructed on the property, by constructing the footings and doing all the concrete work connected with it.

5 Some marital problems between the plaintiff and the testatrix began in about 1985 due to them being unable to have children. The testatrix began a program of in vitro fertilisation which was ultimately unsuccessful and which she found extremely distressing. In about 1985 she stopped working with BHP. At least part of the reason for this was that it was too far to travel from West Hoxton.

6 The plaintiff has not received any particular education, and worked in labouring positions. He began a concreting business, using as a corporate vehicle a company, Lidotill Pty Ltd. From July of 1986 to June 1990 the testatrix worked for Lidotill Pty Ltd doing the bookwork and being paid for it, however, she continued to have at least some employment as an industrial chemist or laboratory technician until the end of 1995 or thereabouts.

7 In June 1990 the testatrix was diagnosed with breast cancer. She blamed the plaintiff for her having the cancer on the ground that the IVF treatment had caused it. There is no medical evidence before me as to whether this opinion was correct, and indeed, for present purposes, it does not matter whether it was correct. What matters for present purposes is that it exacerbated the marital difficulties between them.

8 Prior to March 1993 the testatrix went to see Mr Goldstein, a solicitor, concerning a divorce. He obtained extensive details from her and prepared an application for dissolution of marriage, but the testatrix did not proceed with it. One has the impression from the evidence that around this time the testatrix was a very troubled woman, who hit out in anger at various people who were close to her.

9 In April of 1993 she converted from being a Roman Catholic to being a Seventh Day Adventist. The testatrix had been raised as a Catholic, and the testatrix’s mother strongly disapproved of this change in religious affiliation.

10 In August of 1993 the plaintiff and the testatrix separated. Relations between them were such that the plaintiff thought it would be better if he were not living in the same house as her. He started to live in a rented property at Kemps Creek which is about 6 km away from the property. However, he returned to the property daily to assist his wife. By that time she was quite ill. She was unable to walk without the aid of a walking stick or a wheelchair and she did not attend to the management and upkeep of the property.

11 During the time that he was coming back to the house in a regular way, the plaintiff did various tasks to assist the testatrix. He was not the only person who helped her, but he did provide her with significant help.

12 Also in 1993, Lidotill Pty Ltd obtained a loan of about $80,000 through the Commonwealth Bank. This was to pay some company debts, and also to refinance a Fairlane Ghia motor vehicle which Lidotill Pty Ltd owned, and maintained, but which was used exclusively by the testatrix.

13 In 1994 the plaintiff’s condition deteriorated and she became extremely ill. A friend who she knew through the Seventh Day Adventist Church, Gina Siracusa, began to stay with her for five to ten days at a time. Also in 1994 the testatrix’s parents, with whom there had been close to a rupture following her change of religion, found out that she was terminally ill, and provided significant practical assistance to her in coping with that illness, notwithstanding their ongoing disapproval of her religious views.

14 It was also in 1994 that the testatrix began a relationship with Mr Alwyn Dines. He was unemployed, lived in the property with the testatrix, and was assisted in paying various of his expenses by the testatrix.

15 In the course of 1995 the testatrix’s mother and Ms Siracusa did significant work in helping the testatrix to cope with the illness. The plaintiff also assisted her.

16 About two years after the plaintiff moved out of the property he commenced a relationship with Ms Lorraine Riseborough with whom he has been in a relationship ever since.

17 It was in July of 1995 that Ms Riseborough first became acquainted with the testatrix. The plaintiff did not try to keep his relationship with Ms Riseborough quiet from the testatrix.

18 On 1 November 1995 the plaintiff and the testatrix executed a document which, on its face, effected a severance of the joint tenancy in the property. It is a document which was a Real Property Act1900 dealing on the appropriate printed form, rather than some informal document. It said that they, as joint tenants, transferred the property to themselves as tenants in common in equal shares. Their signatures on the document were witnessed.

19 In his original affidavit the plaintiff said:

“We purchased the property as joint tenants, however, in about early 1995 we changed this to tenants in common at the insistence of Luisa.”

20 Although that portion of his original affidavit was not read, in cross-examination it very promptly got back into evidence again and the plaintiff agreed that what he had said in that portion of the affidavit was correct.

21 The plaintiff gave evidence, on which he was not cross-examined, that he did not understand why she wished to change to a tenancy in common nor was he aware of the implications of such a change but that he agreed to it to keep the peace. It was the testatrix who attended the paperwork and all of the formalities which were required to effect a change on the title. The document effecting the severance has never been registered, though stamp duty on it was paid by the solicitor who was acting for the testatrix, and who is now acting for the defendant, on 10 November 1995.

22 From the trust ledger of the solicitor’s trust account, I infer that in November of 1995 she was contemplating selling the property, and had taken some preliminary legal steps towards doing that. However, that was another intention which did not proceed.

23 In 1996 Ms Siracusa was injured in an accident and became unable to visit the testatrix. This cast a somewhat larger burden on the testatrix's mother, who started taking the testatrix back to stay with her at her Wollongong home for periods of a week or so. Sometimes the testatrix’s mother took her to Wollongong so that the testatrix could have a period in Wollongong Hospital. However, she continued to return to the property periodically.

24 In February of 1996 the plaintiff returned to live at the property. He did this after the testatrix had requested him to do so, in late 1995. The plaintiff says that the testatrix made this request because her health was declining and she was having some problems with Mr Dines.

25 The accommodation on the property includes a main house and another residential place, described as being like a granny flat, which is referred to as the “entertainment area” and is detached from the house but quite close to it. In April of 1996 the plaintiff and Ms Riseborough both began living at the property, living in the entertainment area.

26 Ms Riseborough was working full-time at that stage and was away from the property from 6:00 am to 6:00 pm Monday to Friday. Even so, the two of them provided both practical assistance and comfort and support to the testatrix. They often ate with her, they talked to her to provide her with company, they assisted with her shopping and they kept the house clean. Ms Riseborough in particular assisted the testatrix by driving her to functions and to hospitals.

27 From the time the property had been purchased the plaintiff used it to carry out various small scale agricultural activities. In October 1996 he changed the nature and scope of those activities. He formed a partnership with Ms Riseborough known as the Otanef Stud Cattle Partnership, which purchased some stud cattle and ran them on the property. That business has continued, though with some changes in the way it operates, to the present day.

28 On the 22 December 1996 the testatrix made her last will. She had only one sibling, her brother Rodolfo. That will appointed Rodolfo as sole executor.

29 The testatrix had a quarter interest in a block of flats in Wollongong. That block of flats is one which had originally been acquired by her parents, but they in effect gave away half of their interest in it so that the testatrix received a one quarter share, and Rodolfo received another quarter share. The will gave the testatrix's interest in the block of flats to such of her parents as survived her. It gave the half share of the property at West Hoxton to the testatrix’s trustee upon trust for sale with the net proceeds to be given 10% to the Italian Seventh Day Adventist Church, 90% to two nieces who are the daughters of Rodolfo.

30 The will gave a specific legacy to the plaintiff. It was a legacy of any interest the testatrix might have had in the land purchased by the plaintiff or other assets purchased by him, in Italy, any interest or shares that she had in Lidotill Pty Ltd, and any money owed to her by Lidotill Pty Ltd. That gift was subject to him paying any monies owing to the Commonwealth Bank of Australia under any mortgage over the home. The mortgage that was referred to there was the mortgage that secured the loan that Lidotill Pty Ltd had obtained of $80,000, which was, it seems, supported by a third party security over the home. The plaintiff had at all relevant times made the repayments on that particular loan, and in March of 1997 he undertook sole responsibility to the bank for it.

31 I say here that the reference to any interest which the testatrix had in the land or other property in Italy is something which arose from the fact that the plaintiff had, at one stage, withdrawn $50,000 from their joint funds, gone to Italy, and some land had been purchased. The testatrix had the impression, it seems, that she had an interest in that land, but it turns out that she was mistaken – the land was purchased by the plaintiff’s brother, and the plaintiff has allowed his brother, who is still in Italy, to farm it, without any payment, since then. The land cost, it seems, $45,000. While the $45,000 was described as a loan to the brother, it appears from the plaintiff’s evidence that the land provides the brother’s sole means of support and the brother would be unlikely to have a practical capacity to repay it. There were no other assets that had been purchased by the plaintiff in Italy in which the testatrix had any interest.

32 While the testatrix had, at the date of the will, some shares in Lidotill Pty Ltd, those shares were transferred to the plaintiff before her death, and in any event, as I will mention later, are of little practical value.

33 The gift of any money she was owed by Lidotill Pty Ltd relates to a loan which appears in the books of Lidotill Pty Ltd, which showed the testatrix as being owed a sum of money, which, at the date of her death was of the order of $19,000. That loan arose from Lidotill Pty Ltd’s accountant having prepared accounts on a basis which showed the profits as distributed in the way which was most tax effective each year but which left amounts which those accounts showed as having been paid as dividends to the testatrix still owed by the company to her. There is some evidence which suggests, in a fairly imprecise way, that the debt may have been released prior to the death of the testatrix, in exchange for her receiving title to the Fairlane Ghia car which Lidotill Pty Ltd owned. However, I am not satisfied that the factual basis for there having been a release is adequately made out. Thus, while the gift of the debt to the plaintiff is one which was effective, the value of the debt will depend on the capacity of Lidotill Pty Ltd to pay it. I am not satisfied, for reasons that will later appear, that Lidotill Pty Ltd has the capacity to pay anything like its actual value, and in any event any funds which Lidotill Pty Ltd could acquire from its own assets to pay the debts could only come, in large part, from realising a debt which the plaintiff himself owes to Lidotill Pty Ltd. Thus, for all practical purposes, the fact that the testatrix’s will gave him that debt is not something which would reduce any need which the plaintiff could otherwise establish.

34 There was a residuary gift under the will to Alwyn Dines.

35 Around the time the will was made the testatrix’s relationship with Alwyn Dines was entering its last phases. He moved out of the property around Christmas of 1996.

36 In March 1997 the testatrix resigned as a director of Lidotill Pty Ltd. At the same time she transferred the shares which she had held in Lidotill Pty Ltd to the plaintiff.

37 I have mentioned the work which the plaintiff and Ms Riseborough did for the testatrix during her illness. There is evidence from Ms Siracusa – who still saw the testatrix, even though Ms Siracusa could not travel to actually stay at the property – that the testatrix told her that she wanted to change the will and to leave everything to the plaintiff. She gives an account of a conversation in which the testatrix said:

“He is the only one who has worked hard. Especially now he has such a good lady in Lorraine.”

38 Ms Siracusa specifically said in her evidence that a statement to that effect was made in the presence of the testatrix’s mother. The testatrix’s mother gave evidence in the case, and did not contradict Ms Siracusa’s evidence that that statement had been made.

39 The assistance which the plaintiff provided to the testatrix is also confirmed by a neighbour who lived across the street from the property, Mirko Klickovic. He had known the plaintiff since about 1982, and had become a close friend of both the plaintiff and the testatrix. He gives evidence that on more than one occasion the testatrix said to him:

“I can always rely on Goody to help and when I’m in Wollongong I have no need to worry about property.”

40 There is also evidence from an old friend of the testatrix, Valda Jenkins, that the testatrix told her how grateful she was for the assistance she got from the plaintiff, and for the substantial assistance which Ms Riseborough provided to the testatrix.

41 On 5 July 1997 the testatrix died, in hospital, aged only 44.

42 The will was granted probate on 30 March 1998 and on 18 November 1998 the plaintiff filed a summons seeking provision under the Family Provision Act 1982.

43 Apart from the time when Ms Riseborough moved away from the property to a home unit in Liverpool for a period, because she was fearful of another man who was living in the property, the plaintiff and Ms Riseborough have lived at the property ever since.

44 Around October of 2004 the plaintiff filed a notice of death with the Land Property Information Service, and became the sole registered proprietor of the property. That situation caused an earlier hearing, which had been fixed before the Master for 21 October 2004, to be adjourned. Once he became the registered proprietor of the whole of the property, the plaintiff used it as security for a borrowing of $410,000 from Novasure Pty Ltd.

45 Until approximately October of 1996 the testatrix bought the food that was used in the household, but the plaintiff paid all household expenses and outgoings in relation to the property, including insurance, telephone, electricity, land taxes, rates and also petrol. It was from October 1996 until she died, that is a period in the order of nine months, that the testatrix contributed towards payment of those particular expenses.

46 The first question which needs to be decided is whether there was an effective severance of the joint tenancy. It is clear that equity will impose a trust on Real Property Act 1900 land held by the legal owners as joint tenants if the joint tenants actually agree to terminate the joint tenancy. Thereafter, their beneficial entitlement will be as tenants in common:

“the legal joint tenants will hold as trustees for themselves as tenants in common in equal shares. Where such an agreement is made, there is valuable consideration in that each party agrees to relinquish the beneficial interest of a joint tenant in the common property, including the right of accretion by survivorship, in return for the share of a tenant in common.” (Per Deane J Corin v Patton (1990) 169 CLR 540 at 574)

47 The execution of the severance document amounts, in my view, to an effective severance of a joint tenancy in equity. As Rath J said in Abela v Public Trustee [1983] 1 NSWLR 308 at 315:

“1. Severance is effected by agreement to sever the joint tenancy.
2. The agreement need not be specifically enforceable or even binding as a contract at law.
3. Subsequent repudiation of the agreement does not affect its operation of severance.
4. Severance may also be effected by conduct of the joint tenants not evidencing an agreement to sever but showing a common intention that the joint tenancy shall be severed.”

See also Fachetti v Fachetti [2004] NSWSC 898 at [5]-[6].

48 In the present case even though the plaintiff may not have appreciated all the implications of severance of a joint tenancy, by his execution of the document, in my view, he agreed to do whatever it was that his wife was asking him to do. The fact that he was doing it for the sake of peace does not in any way detract from the fact that he agreed to do it.

49 Thus, thereafter, their legal interests as joint tenants were held on trust for the two of them as equitable tenants in common. Even if it were the case that the testatrix changed her mind about wanting a severance – an inference Mr Ellison SC, for the plaintiff, asks me to draw – that would not alter the effectiveness of the severance effected on 1 November 1995. I do not, in any event, draw that inference.

50 Upon the death of the testatrix the plaintiff became the sole holder of the legal interest in the property, but he held it as to one half for his wife's estate, in the eyes of equity. That equitable interest is therefore part of her actual estate upon death.

51 The assets of the estate at the time of death consisted of a half interest in the property at West Hoxton, a quarter share in property in the Wollongong flats, and some superannuation. It has been agreed that the half interest in property at West Hoxton is now worth $725,000, that the quarter share in the flats is worth $332,500, and I accept evidence that the superannuation is worth $38,000. That gives a total of $1,095,500. There was, as well, the debt owed to the plaintiff by Lidotill, but for the reasons I have already given it can be left out of account in treating it as part of the distributable part of the estate which could affect any amount of division that might be made in order of the plaintiff's favour.

52 The only outstanding liability of the estate is a possible liability for the cost of these proceedings. The estimate of the defendant's costs of the entire hearing is $73,150 including GST. The estimate of the plaintiff’s costs is $155,000. Each of those amounts is on a solicitor/client basis and neither amount has been assessed. The total of those amounts is $228,000. That is the maximum amount of costs which the estate could possibly be required to bear.

53 The plaintiff’s assets are a half interest in the property at West Hoxton worth $725,000, a half share in a tractor and some implements worth some $15,000, some livestock which he owns in his own right worth $8,000, some IAG shares worth $5,800, and long service leave worth $14,690. In addition he has superannuation policies totalling about $29,500 and a life policy valued at $9,600. The superannuation of course is not able to be turned into cash at the moment, and while the life policy would have a surrender value,that value would be bound to be well below its face value. He also has the loan owed by his brother – of negligible value for the reasons earlier given. Finally he has some land in Italy, left to him after the testatrix’s death by his mother. That land, valued in 2001 at $20,000, is occupied by the plaintiff’s brother without payment of rent.

54 The operations of Lidotill relate to the concreting business which the plaintiff carries on. The company made profits of the order of $20,000 in the 2004 tax year, and a loss of a little over $2,000 in the 2005 tax year. The balance sheet as at 30 June 2005 shows it as having net assets of a little over $73,000. By far the largest asset was a debt of $242,000 owed to it by the plaintiff. Its realisable assets seem to amount to some concrete equipment with a value of $3,000 and three vehicles worth between them less than $22,000. There is no valuation of the shares of the company but in my view the valuation would be unlikely to exceed the net asset value shown in the balance sheet, and may be considerably less. The last concreting job the company did was three weeks ago because, as the plaintiff says, there is no work.

55 There is no balance sheet of the partnership in evidence, and no formal valuation of the plaintiff’s interest in the partnership. The partnership is one which has made a loss in every single year it traded since it began in 1996. It has made a loss in the tax year ended June 2005 of a little over $90,000. It trades in cattle, and as at 30 June 2006 owed William Inglis Stock Agents of the order of $95,000. It has around 220 head of cattle at the moment, in which the plaintiff's interest would be valued at around $80,000.

56 The plaintiff has liabilities, arising from the borrowing made from Novasure, the debt to William Inglis, and various expenses of running the partnership. I am satisfied that his expenses, overall, exceed his income, and that the only way that he has been able to fund his expenses is by drawing on his overdraft facility or, once the Novasure loan was obtained, that loan.

57 In some ways the evidence which the plaintiff presented concerning his financial situation was not very satisfactory. He was unable to say what income he currently receives. However, it is clear that he only has two sources of income, namely Lidotill, and the partnership. From Lidotill he receives wages and, in the years when it makes a profit, a dividend. The wages which he received in the 2005 tax year were $24,241. The partnership, being not profit making, would not provide any income to him.

58 There was an exhaustive cross-examination of Ms Riseborough concerning the affairs of the partnership. She acts as its bookkeeper and has a far better grasp of its finances than does the plaintiff. The cross-examination established that she maintains books of the partnership meticulously. She maintains a book identifying all the cash receipts and payments of the partnership, and also the trading and incurring of expenses on account with William Inglis. It is these books that are the basis of the partnership tax returns which are in evidence. While the cross-examination showed that there were some respects in which some details of the evidence which was given as part of the plaintiff's case concerning the financial affairs of either the plaintiff or Ms Riseborough may be incorrect in some matters of detail, it did not alter the broad picture. The broad picture is that between them their expenses exceed their income.

59 The plaintiff has expressed some optimism in evidence that the partnership might be about to have a financial turnaround. Ms Riseborough took the view that it was unlikely to be profitable as long as it continues in its present location, but may be profitable if it moves location. She at any rate is considering selling the property, and certain of her own assets, and buying some acreage in the Orange/Bathurst area. There has been no evidence before me which shows that any such venture would be a financially feasible one.

60 There is another complication in the present case. Notwithstanding the plaintiff's comparatively young chronological age, his prospects of earning an income in the future have a serious cloud over them. From at least 1998 he has suffered sleep apnoea, which interferes with his sleep and causes him to be sleepy in the daytime. In 2004 he was also diagnosed as suffering from osteoporosis, left renal artery stenosis, high blood pressure and high cholesterol. He has also been diagnosed as suffering a degenerative disease of the cervical spine. He continues to have the ability to do a day’s work as a concreter but doesn’t work every day, and when he does work he becomes tired and suffers back pain. The long term financial future of a labourer in that physical condition is uncertain.

61 I accept the plaintiff’s evidence that he can not afford to purchase the other half interest in the property, and that he is too old to qualify for a loan and doesn’t have enough money in his own name. At present it provides not only his home, but also the base from which he conducts all his income raising activities.

62 The plaintiff is clearly an “eligible person” under the Act, both by virtue of being the testatrix’s husband, and also by virtue of living in a domestic relationship with her at the time of her death. Even if it were the case that wise financial counselling would suggest that the plaintiff would be better off in not persisting with the cattle raising venture, he has, in my view, established that he has been left without adequate provision for his maintenance and advancement in life. The very fact that he has continued to live at the property for over nine years since his wife’s death, apparently without being disturbed by the defendant, is, in a way, a practical recognition that he has no adequate place elsewhere to go.

63 The sort of need which a spouse has traditionally been recognised in cases like the present to have includes a need to have a place to live, a need to have some security in income, and a buffer against contingencies. That approach is appropriate in the present case. In my view, the proper provision for the plaintiff is that he ought receive the whole of the estate. The case has been run on the basis that there are no competing claims which are able to cut down any need he might establish. That way of running the case is, with respect, the correct way.

64 I am conscious that making an order which gives the plaintiff a benefit including the testatrix’s share in the Wollongong property will result in the plaintiff receiving an asset which was never part of the matrimonial assets, in the sense of the assets that they used in the course of their marriage, and an asset to the purchase of which he has not contributed. Nonetheless, the test to be used in connection with a family provision application is whether, from those assets which a testatrix had, she has disposed of them in a way which has made proper provision for the maintenance and advancement in life of the eligible claimant. If she has not, the whole of the testatrix’s assets can be called on, to whatever extent is necessary, to put the plaintiff into a position of having been given proper provision.

65 I am also conscious that, from the time of the separation, the marriage was not one which involved any physical relationship. Nonetheless, the plaintiff was still a carer, who provided a real service to the testatrix. In saying that, I am not suggesting that awards under the Family Provision Act 1982 are rewards for good conduct. The fact that the testatrix chose to keep the marriage on foot, after taking some serious steps towards terminating it, and her expressions of gratitude to friends, show that there was a very real relationship, even though not a conventional marriage relationship, to the end.

66 I order that in lieu of provision made for him under the will of the testatrix the plaintiff receive the whole of the estate.

67 In light of that order, there is no utility in making any orders on the cross-claim.

68 I have given consideration to whether any special costs order ought be made, to take account of the fact that the plaintiff has not succeeded in opposing the cross claim which the defendant put on, relating to whether there had been an effective severance of joint tenancy. While the costs of actual preparation of court documentation and affidavits which went only to the cross claim would be quite small by comparison with the total costs, the fact remains that it was the conduct of the plaintiff, in causing the notice of death to be registered shortly before the hearing which had been fixed for 21 October 2004, which caused that hearing to be adjourned. To some extent, the conduct of the plaintiff was explicable, in that after he had signed the document effecting severance he handed it to the testatrix and never saw it again, and it was not until the time of the 2004 hearing that it became apparent that it was still in existence, and indeed, it seems, in the custody of the defendant’s solicitors. Even so, it was the plaintiff’s conduct which was the effective cause of the adjournment of the 2004 hearing.

69 In all these circumstances, the appropriate costs order is to order that the costs of the defendant on an indemnity basis be paid from the estate, including any costs relating to the adjournment on 21 October 2004. As the plaintiff is receiving the net estate, there is no occasion for making an order in the plaintiff's favour.

70 I order that the costs of the defendant which have been ordered to be paid from the estate be a first charge on any residue which there is in the estate, and be charged secondly against the quarter share in the flat property at 4 First Street Wollongong.

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