Fulton v Fulton - [2014] NSWSC 619

Supreme Court

New South Wales

Medium Neutral Citation: Fulton v Fulton [2014] NSWSC 619
Hearing dates: 7, 8, 9, 10 April 2014
Decision date: 22 May 2014
Jurisdiction: Equity Division
Before: Hallen J
Decision:
Direct the parties to prepare Short Minutes of Order within 14 days giving effect to these reasons, and if they are not able to agree, to provide competing versions thereof.
Stand the matter over to a date convenient to the parties and the court for the making of orders and for determining the question of interest, if any, payable by the Defendants and costs in the event agreement cannot be reached.

Catchwords:
ADMINISTRATION OF ESTATE OF DECEASED - Amounts claimed by the Plaintiffs, who are named executors of the Will of the deceased to whom Probate granted, as moneys alleged to have been wrongfully withdrawn, by their brother and sister-in-law during the lifetime of the deceased, out of bank accounts conducted by him - Agreement reached at the hearing as to quantum of the amounts withdrawn but not liability of the Defendants, or any of them, to repay any part of, those amounts - Defendants assert authority, oral or in writing, given by the deceased, or otherwise that they were gifts by the deceased to them or alternatively "an advance on inheritance" - Amount that should be repaid to the estate - Whether interest on the amounts withdrawn and to be repaid should be paid, and if so, from what date and at what rate

SUCCESSION - CONSTRUCTION OF WILL - Whether the deceased intended to make dispositive provision in Will in favour of his son and daughter-in-law or whether the terms of the Clause explain reasons for making no provision for his son or otherwise
SUCCESSION - FAMILY PROVISION - Two of the Defendants make a claim for a family provision order - No dispute as to one Defendant's eligibility as a child of the deceased - Dispute as to eligibility of other Defendant who is the daughter-in-law of the deceased - Also dispute whether there are factors warranting the making of her application - Plaintiffs are the other children of the deceased and the sole residuary beneficiaries named in the Will - No provision made in the Will of the deceased for either Defendant - Estate distributed - Only actual estate may be amount ordered to be repaid - Extension of time required for making of applications - Whether family provision order should be made, and if so, the nature and quantum of the provision to be made
Legislation Cited: Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Evidence Act 1995 (NSW)
Family Provision Act 1982 (NSW)
Guardianship Regulation 2000 (NSW)
Guardianship Regulation 2010 (NSW)
Powers of Attorney Act 2003 (NSW)
Practice Note SC Gen 18
Probate and Administration Act 1898 (NSW)
Property (Relationships) Act 1984 (NSW)
Succession Act 2006 (NSW)
Succession Amendment (Family Provision) Act 2008 (NSW)
Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Aafjes v Kearney (1976) 50 ALJR 454; 8 ALR 455
Alexander v Jansson [2010] NSWCA 176
Allardice, re; Allardice v Allardice (1910) 29 NZLR 959
Amaca Pty Ltd v Novek [2009] NSWCA 50
Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656
Armagas Ltd v Mundogas S.A. (The "Ocean Frost") [1985] 1 Lloyd's Rep 1
Aubrey v Kain [2014] NSWSC 15
Axford v Gray [2013] VSC 664
Barlevy v Nadolski [2011] NSWSC 129
Bartlett v Coomber [2008] NSWCA 100
Bibby Financial Services Australia Pty Ltd v Sharma [2014] NSWCA 37
Blatch v Archer [1774] EngR 2
Blyth v Spencer; Spencer v Neville [2005] NSWSC 653
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Brandon v Hanley [2014] VSC 103
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Bristol and West Building Society v Mothew [1998] Ch 1
Brown v Faggoter [1998] NSWCA 44
Butcher v Craig [2009] WASC 164
Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748
Byrne v Macquarie Group Services Australia Pty Ltd [2011] NSWCA 68
Carega Properties SA (formerly Joram Developments Ltd) v Sharratt [1979] 2 All ER 1084; [1979] 1 WLR 928
Carstrom v Boesen [2004] NSWSC 1109
Chiu Man Fu v Chiu Chung Kwan Ying [2012] HKCFI 82
Christie v Manera [2006] WASC 287
Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241
Citibank Ltd v Liu; ABN Amro Bank Ltd v Liu [2002] NSWSC 886
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 9 ALR 93; (1976) 50 ALJR 539
Coorey v Coorey (Supreme Court (NSW), Powell J, 22 February 1986, unrep)
Craig v Silverbrook [2013] NSWSC 1687
Crossman v Riedel [2004] ACTSC 127
Curran v Harvey [2012] NSWSC 276
Day v Couch [2000] NSWSC 230
de Angelis v de Angelis [2003] VSC 432
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89
Donaldson v Lawless [2013] NSWSC 861
Evans v Levy [2011] NSWCA 125
Fairbairn v Varvaressos [2010] NSWCA 234
Fede v Dell'Arte [2010] NSWSC 1113
Fell v Fell [1922] HCA 55; (1922) 31 CLR 268
Foley v Ellis [2008] NSWCA 288
Friend v Brien [2014] NSWSC 613
Frisoli v Kourea; Frisoli v Kourea [2013] NSWSC 1166
Fry v Lukas; Brown v Fry; Estate of Honey; Application of Fry [2011] NSWSC 1329
Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep)
Janette Susan Gardiner v Raymond James Gardiner as Administrator of the Estate of the Late Dulcie Eva Gardiner [2014] NSWSC 435
Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Graziani v Graziani (Supreme Court (NSW), Cohen J, 20 February 1987, unrep)
Grey v Harrison [1997] 2 VR 359
Hamilton v Moir [2013] NSWSC 1200
Hampson v Hampson [2010] NSWCA 359
Hansen v Hennessey [2014] VSC 20
Harrison v Harrison [2011] VSC 459
Hart v Van Son [2014] NSWSC 585
Hatzantonis v Lawrence [2003] NSWSC 914
Hawkins v Prestage (1989) 1 WAR 37
Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134
Hyland v Burbidge [2000] NSWSC 12
In the Estate of Puckridge, Deceased (1978) 20 SASR 72
In re the Will of F B Gilbert (dec'd) (1946) 46 SR (NSW) 31
Kauri Timber Co (Tas) Pty Ltd v Reeman [1973] HCA 8; (1973) 128 CLR 177
Kavalee v Burbidge; Hyland v Burbidge (1998) 43 NSWLR 422
Kay v Archbold [2008] NSWSC 254
Kembrey v Cuskelly [2008] NSWSC 262
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Lewis v Lewis [2001] NSWSC 321
Lumsden v Sumner [2012] NSWSC 1440
MacGregor v MacGregor [2003] WASC 169
Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146
Manuel v Lane [2013] NSWCA 61
Marks v Marks [2003] WASCA 297
Marley v Rawlings [2014] UKSC 2; [2014] 2 WLR 213
Mayfield v Lloyd-Williams [2004] NSWSC 419
McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566
McGrath v Eves [2005] NSWSC 1006
McKenzie v Baddeley [1991] NSWCA 197
McKenzie v Topp [2004] VSC 90
Moore (by her tutor the NSW Trustee & Guardian) v Randall [2012] NSWSC 184
Neale v Neale [2013] NSWSC 983
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449
Onassis v Vergottis [1968] 2 Lloyd's Rep. 403
Palaganio v Mankarios [2011] NSWSC 61
Penfold v Perpetual Trustee [2002] NSWSC 648
Peoples v Simpson [2005] NSWSC 355
Perochinsky v Kirschner [2013] NSWSC 400
Perpetual Trustee Co Ltd v Gibson [2013] NSWSC 276
Perpetual Trustee Co Ltd v Wright; Re Will of James Paul Gee Cox Junior, Deceased (1987) 9 NSWLR 18
Petrohilos v Hunter (1991) 25 NSWLR 343
Petrucci v Fields [2004] VSC 425
Phillips v James [2014] NSWCA 4
Plunkett v Bull [1915] HCA 14; (1915) 19 CLR 544
Pogorelic v Banovich [2007] WASC 45
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
Porthouse v Bridge [2007] NSWSC 686
Re Buckland, Deceased [1966] VR 404
Re Estate of Hakim; Simons v Permanent Trustee Co Ltd [2005] NSWSC 223
Re Fulop, Deceased (1987) 8 NSWLR 679
Re Hodgson (1886) 31 Ch D 177; [1881-85] All ER Rep 931
Re O'Neil, Deceased [1972] VicRp 35; [1972] VR 327
Re Salmon, Deceased [1981] Ch 167
Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517
Ross v Collins [1964] 1 All ER 861; [1964] 1 WLR 425
Russell v NSW Trustee and Guardian [2013] NSWSC 370
Sassoon v Rose [2013] NSWCA 220
Sammut v Kleemann [2012] NSWSC 1030 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Skinner v Frappell [2008] NSWCA 296
Slack v Rogan; Palffy v Rogan [2013] NSWSC 522
Slack-Smith v Slack-Smith [2010] NSWSC 625
Smith v Woodward (Supreme Court (NSW), Macready M, 9 September 1994, unrep)
Sophron v The Nominal Defendant [1957] HCA 27; (1957) 96 CLR 469
Spina v Conran Associates Pty Ltd; Spina v M & V Endurance Pty Ltd [2008] NSWSC 326; (2008) 13 BPR 25,435
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Stiles v Joseph (Supreme Court (NSW), Macready M, 16 December 1996, unrep)
Stott v Cook (1960) 33 ALJR 447
Szypica v O'Beirne [2013] NSWSC 297
Taylor v Farrugia [2009] NSWSC 801
Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572
Thomson v Thomson [2008] VSC 375
Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757
Toth v Graham [2014] NSWSC 393
Tsivinsky v Tsivinsky [1991] NSWCA 269
Twomey v Mcdonald [2012] NSWSC 22
Verzar v Verzar [2012] NSWSC 1380
Verzar v Verzar [2014] NSWCA 45
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Vitek v Estate Homes Pty Ltd [2013] NSWSC 1764
Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep)
Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56
Watson v Foxman (1995) 49 NSWLR 315
Webb v Ryan [2012] VSC 377
Weeks v Hrubala [2008] NSWSC 162
West v Mann [2013] NSWSC 1852
White v Shortall [2006] NSWSC 1379
White & Tulloch v White (1995) 19 Fam LR 696
Wilcox v Wilcox [2012] NSWSC 1138
Zahra v Francica [2009] NSWSC 1206
Zannetides v Spence [2013] NSWSC 2032
Zirkler v McKinnon [2002] NSWSC 285
Texts Cited: Government Gazette No. 38 of 20 February 2009
J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths)
Category: Principal judgment
Parties: Graham Fulton (first Plaintiff)
Peter Fulton (second Plaintiff)
Douglas Fulton (third Plaintiff)
Allan Fulton (first Defendant)
Georgina Fulton (second Defendant)
Motorcycle Accessory Warehouse Pty Ltd (third Defendant)
Lnychstone Pty Ltd (fourth Defendant)
Representation: Counsel:
Mr R Tregenza; Mr P Macarounas (Plaintiffs)
Mr C Evatt; Ms L Evans (Defendants)
Solicitors:
Rowlandson & Co (Plaintiffs)
Thomas Booler & Co Lawyers (Defendants)

File Number(s): 2012/100646

Judgment

The Nature of the Proceedings

HIS HONOUR: This is a sad and a regrettable case. It demonstrates, once again, that contentious proceedings involving an estate and family members, "where the drama of the family rifts unfolds with all the ill-feelings, resentment and animosity between the protagonists climaxing on public display, are unavoidably destructive of what is left of the deceased's family. Win or lose, the family will most likely be torn further apart irretrievably": Chiu Man Fu v Chiu Chung Kwan Ying [2012] HKCFI 82, at [1].

The Plaintiffs, Graham Fulton, Peter Fulton and Douglas Fulton are three of the adult children of Reginald Clive Fulton ("the deceased"). The first and second Defendants are their brother, Allan Fulton, and his wife Georgina. The third and fourth Defendants are two companies, Motorcycle Accessory Warehouse Pty Ltd (to which I shall refer as "MAW") and Lynchstone Pty Ltd ("Lynchstone"), both of which are controlled by the first and second Defendants.

Throughout these reasons, I shall refer to the family members, where necessary, after introduction, by his, or her, first name. This is for convenience and to avoid confusion, since each member of the deceased's family has the surname "Fulton", and I hope it will not be thought discourteous.

The Claims

The Statement of Claim was filed on 30 March 2012. The Plaintiffs seek an accounting from, and the payment of monies found to be due to the estate of the deceased by, Allan and Georgina, and from MAW and Lynchstone, together with consequential relief. Broadly speaking, the Plaintiffs assert that Allan and Georgina each withdrew various amounts out of the bank accounts of the deceased for their own benefit and without the knowledge and approval of the deceased.

All four Defendants filed one Defence on 15 May 2012. In that document, they made some admissions of background factual matters to which I shall return. However, the Defendants did not admit that each is, or any are, liable to repay moneys to the estate of the deceased. They stated, amongst other things, that the deceased "conferred authority by direct verbal instructions or signed instructions or directions to the financial institution" pursuant to which various amounts were withdrawn and used. They also stated that the deceased gave instructions, either oral, or in written form, "on a regular basis", to have money withdrawn for uses other than paying bills and that there was no limit on the authority given.

The case was listed for 6 days commencing on 7 April 2014. Prior to that date, there were several interlocutory skirmishes between the parties that are not necessary to detail. In addition, a number of pre-trial directions hearings were held, in one of which I directed the parties to prepare a document, like a Scott Schedule, which identified the different amounts said to have been withdrawn from each of the deceased's accounts, and the use to which the amounts were put by Allan and Georgina.

I made the direction because I was informed that a schedule identifying amounts said to have been withdrawn from various accounts and paid for certain purposes (identified in alphabetical order) had been prepared by Georgina on behalf of the Defendants; had been updated; and had been served upon the Plaintiffs. (I shall return to the original schedule prepared by Georgina later in these reasons.)

I directed the Plaintiffs to respond, by stating whether they sought to press the recovery of all of the amounts identified on that schedule or only some. I did this in the hope, and the expectation, that it would narrow the nature, and extent, of the amounts in issue and would limit the cross-examination to those amounts. At the hearing, I admitted the joint Schedule, which had been prepared in compliance with the direction, as Ex. P3.

Only partial success was achieved, initially, in the use of the Schedule. In discussions with leading counsel for the Plaintiffs, at the commencement of the hearing, I stated that I was unable to understand what amounts in the Schedule the Plaintiffs continued to claim, and whether Allan and Georgina agreed that they had used some, or all, of the amounts for the benefit of anyone other than the deceased.

However, on the second day of the hearing, it became clear, by the express statement of leading counsel, that the amount of the Plaintiffs' claim was limited to $524,287. For their part, at this time, the Defendants conceded that $452,402 had been used for a number of purposes not associated with the deceased, and were amounts that had benefited one, or more, of them. However, they maintained that the amounts withdrawn for such purposes were authorised by the deceased and were used with his knowledge and consent. (I have omitted, and shall continue to omit, any reference to cents, which will explain what may appear to be mathematical errors in the calculations that follow.)

During the course of the cross-examination of Georgina, I asked some questions relating to amounts disclosed in the Schedule that seemed, clearly, to be amounts that had been paid out of one, or other, of the deceased's accounts, for the benefit of one, or more, of the Defendants. Georgina conceded that 12 specific line items had been so paid (Ex. P3, 54 ($5,500), 55 ($6,862), 66 ($40,000), 67 ($5,500), 68 ($10,667), 69 ($9,692), 70 ($100,000), 71 ($79,381), 72 ($61,000), 73 ($40,000), 108 ($60,000) and 223 ($72,000), making a total of $490,602.

(It was also accepted that the only amount that Allan had caused to be withdrawn from an account of the deceased was $72,000 (Ex. P3.223). In addition, in the submissions filed on his behalf, it was accepted that between 4 December 2009 and 11 January 2010, he had withdrawn five amounts, each of $500.)

The Plaintiffs, through leading counsel, then conceded that Ex. P3.55 ($6,862) was paid with the authority of the deceased, with the result that $483,740 was accepted by the Defendants as having been paid for the benefit of one, or more, of the Defendants out of one, or other, of the deceased's accounts.

Leading counsel for the Defendants then acknowledged that the earlier concession as to amount, made on behalf of the Defendants, was incorrect and that the conceded correct amount should be $483,740. (This left remaining the question whether the amounts had been withdrawn on the bases alleged by Allan and Georgina.)

The parties were unable to reach agreement on the difference ($40,547) between the amount claimed by the Plaintiffs ($524,287) and the amount conceded by the Defendants ($483,740). It was accepted that the Plaintiffs would bear the evidentiary onus in relation to those amounts, and that if they satisfied that onus, it would be for the Defendants to establish that the deceased had authorised them, in one or other of the ways asserted, to use the amounts for the purposes to which they were put.

On the fourth day of the hearing, during submissions, leading counsel for the Plaintiffs said that, after further consideration of oral and other evidence, the Plaintiffs' claim had been further reduced to $502,451. Bearing in mind the difference between the parties was then reduced to $18,711, I encouraged them to see if they could agree upon how that difference should be treated.

They were able to do so, following the short adjournment and it was agreed, by way of compromise, that the amount sought by the Plaintiffs, and accepted by the Defendants, as having been withdrawn from the accounts of the deceased, was $495,000. (In all these circumstances, it is unnecessary to go through, in detail, how the amount ultimately agreed upon is calculated. This left as the principal issues whether the amounts were withdrawn and used on the bases alleged by Allan and Georgina, and if not, whether the whole amount, or any part of it, should be repaid.

That is the first of the issues that will need to be decided.

At a pre-trial directions hearing held in March 2014, Allan and Georgina sought leave to file a Cross-Claim, in which each made a claim for a family provision order under Chapter 3 of the Succession Act 2006 (NSW) ("the Act"), out of the estate of the deceased. The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act1982 (NSW) ("the former Act"), which was repealed by s 5 of the Succession Amendment (Family Provision) Act2008 (NSW), effective from 1 March 2009 (s 2(1) Succession Amendment (Family Provision) Act and Government Gazette No. 38 of 20 February 2009, page 1036). A family provision order is an order made by the court in relation to the estate, or notional estate, of a deceased person, to provide, from that estate, for the maintenance, education, or advancement in life, of an eligible person.

Despite the fact that Allan and Georgina sought leave to file the Cross-Claim more than 12 months after the death of the deceased, there was no order pursuant to s 58(2) of the Act, extending the time for the making of the application, sought in the Cross-Claim filed on 24 March 2014. Nor was there any claim seeking to designate property as notional estate of the deceased (perhaps then relevant).

I raised this matter with counsel for Allan and Georgina at the commencement of the hearing and they agreed that an amended Cross-Claim would be required. On the second day of the hearing, they sought to file an amended Cross-Claim in which further relief including an order under s 58(2) of the Act (to which I shall refer in more detail) and an order designating certain identified property as notional estate. Without objection, I granted leave to file the amended first Cross Claim.

On the fourth day of the hearing, the Plaintiffs filed, without objection, an amended Defence to the amended first Cross-Claim.

Counsel for Allan and Georgina acknowledged that, in the event the court found they were not liable to repay the amount to the estate that had been agreed, they would not proceed with the claims for a family provision order and that the amended Cross-Claim should be dismissed.

Ultimately, it was also accepted by all parties, that it would only be necessary to designate property as notional estate if the amount that the court found should be repaid by the Defendants, or any of them, to the estate was insufficient to satisfy an order for provision made in favour of Allan and/or Georgina, and any costs orders that were made. As will be read, the designation of notional estate will be unnecessary.

Whether the court should extend the time for the commencement of the proceedings, whether a family provision order should be made in favour of Allan or Georgina, and the nature and quantum of any order, is another group of issues that will be necessary to decide.

At the commencement of the hearing, the Defendants also sought leave to file in court an amended Defence, on behalf of all Defendants, in which the principal amendment was in the following terms:

"25. In answer to the whole of the Plaintiffs' claim the Defendants say that the Plaintiffs and/or the estate of the late Reginald Fulton had no authority, cause or justification in commencing and continuing these proceedings because the Testator in his Final Will of 26 November 2010 made no provision for the First or any of the Defendants on the basis the First and other Defendants had been given or had taken or had used with or without authority the monies referred to in paragraphs 7(a)-(f) of the Will and the Testator did not propose to make any further provision to the First and other Defendants but waived or did not require any return or refund of the said monies and as a consequence the Plaintiffs ought not be allowed to continue with the proceedings."

The Plaintiffs opposed the amendment being made because of its lateness. However, upon the basis that no additional evidence to that already filed (that is, extrinsic evidence going to the construction of the deceased's Will) was to be relied upon by the Defendants, I permitted the amended Defence to be filed and to be relied upon. (Counsel for the Plaintiffs did not point to any prejudice to the Plaintiffs in allowing the amendment on this basis.)

I also considered that the amendment partially echoed an assertion made in the Defence that withdrawals made pursuant to the deceased's authority were "[e]xpress gifts that [the deceased] wanted made to family members so that they could purchase a business or by way of gift in advance of any inheritance". (The other matters raised in the Defence to which I have referred above were also included in the amended Defence.)

The construction of the deceased's Will is another of the issues to be decided.

Finally, it may be necessary to determine, later, how the burden of the costs of the proceedings, generally, will be borne. The parties requested me to not determine this question as part of the judgment, until after these reasons were published, upon the basis that there may be matters that could otherwise be relevant on the issue of costs. I am prepared to abide the request made by them. I shall leave the issue of costs to be argued, unless otherwise agreed, on a convenient date after the delivery of these reasons.

I shall return to this topic shortly.

Further Application at the Hearing

On Friday, 4 April 2014, one of the Defendants' counsel, Ms L Evans, forwarded to my Associate, by email, and subsequently had delivered to my Chambers, an original notice of motion and a lengthy affidavit in support thereof. The notice of motion sought an order for "the appointment of a referee". (Earlier in the week, she had sought, by letter, to have the matter restored to my List for that purpose, but I was not prepared to accept the letter as sufficient to make the application.)

At the hearing, leading counsel for the Defendants, Mr C Evatt, sought leave to file the notice of motion. Upon the undertaking given by Mr Evatt, on behalf of the Defendants' solicitors, to pay the filing fee, I granted the leave to file it in court. I then heard submissions from the Defendants' leading counsel. (I stated that I did not need to hear from leading counsel for the Plaintiffs who opposed the relief being sought.) I then made an order that the notice of motion be dismissed with costs.

I reasoned, orally, that I had made that order, bearing in mind (in no particular order of importance) that the Defendants' application had formally been made on the Friday before the case was to start; that the matter had been listed before me, many months before, for 6 days; that the amount of judicial time that could be wasted if such an application were granted was significant; that there would be delay to other litigants, whose cases had not been listed during the time allocated to this case; that the parties had endeavoured to comply, albeit in some instances, later than directed, with the directions I had made; the additional costs and delay, to the parties, that would be incurred in presenting their case before a referee; and that the whole of the matters in dispute, in any event, could not be determined by a referee, with the result that the matter would have to come back before this court.

I also had in mind, of course, s 56 of the Civil Procedure Act 2005 (NSW) and the authorities dealing with late applications that were likely to cause delay in the determination of proceedings.

Having determined to dismiss the notice of motion, the substantive hearing then continued with the reading of the affidavits and dealing with the objections (which took nearly the whole of the balance of the first day of the hearing). I do not say this critically because I am very grateful to all the legal representatives for the practical approach taken, not only to the objections to the affidavits once a few objections had been dealt with, but also for the way in which the hearing, otherwise, was conducted. The case, which had been set down for 6 days, was completed in 4 days.

Factual Background

The following facts are uncontroversial and provide a useful background.

The deceased died on 15 May 2011, aged 81 years. He had retired from his employment, as an engineering advisor for the Electricity Commission, in July 1990. Prior to that time, he had been a fitter and turner and then an engineering inspector for the Electricity Commission.

The deceased was married to Yvonne. She predeceased the deceased, having died in about March 1994. There were four children of their marriage, being Douglas, who was born in July 1960 and who is currently 53 years of age; Peter, who was born in November 1962 and who is currently 51 years of age; Graham, who was born in March 1965, and who is currently 49 years of age; and Allan, who was born in May 1972 and who is currently almost 42 years of age.

The deceased left a formally executed Will that he made on 26 November 2010 ("the 2010 Will"). This court granted Probate in common form of that Will to Graham, Peter and Douglas, as nominated executors, on 10 June 2011.

By the 2010 Will, the whole of the deceased's estate was given to the executors "on trust for those of my said sons, Douglas Fulton, Peter Fulton and Graham Fulton who survive me by thirty (30) days, and if more than one, in equal shares".

The 2010 Will went on to provide, in Clause 7:

"7. I have not made provision for my son Allan Fulton because:-

(a) (i) in or about 1996, I paid about $40,000.00 shortfall under the mortgage of his Quakers Hill property;

(ii) in or about 2000, I paid about $60,000.00 to stock and renovate his mower shop at Douglas Road, Quakers Hill;

(iii) in or about June 2004, I paid about $20,000.00 to discharge his and his wife Georgina Fulton's indebtedness to her mother Jan Ashended [sic]

and have otherwise financially assisted him

(b) (i) on or about 18 February, 2010, he withdrew the sum of about $72,000.00 from my Maritime Credit Union account, and

(ii) on or about 14 May, 2009 and 27 May, 2009 he withdrew sums of about $9,000.00 and $6,862.50 respectively from my passbook account no [411] with Commonwealth Bank of Australia (CBA)

without my authority, consent or knowledge and applied the moneys for his own use and benefit and contrary to my interests thereby causing loss to me and distress, pain and suffering to me and my family.

(c) between on or about 23 June 2009, and 14 January, 2010, his said wife Georgina Fulton withdrew sums totalling about $41,505.80 from my said passbook account no [411] with CBA;

(d) between on or about 26 September, 2009 and 27 January, 2010 his said wife Georgina Fulton withdrew sums totalling about $95,600.00 from my passbook account no [720] with CBA;

(e) between on or about 16 July, 2009 and 16 February, 2010 his said wife Georgina Fulton withdrew sums totalling about $457,406.77 from my cash investment account no [516] with CBA

without my authority, consent or knowledge and applied the moneys for her and his own uses and benefits and contrary to my interests thereby causing loss to me and distress, pain and suffering to me and my family;

(f) for some months prior to in or about February 2010, he and his said wife, Georgina Fulton, endeavoured to make arrangements to have me admitted to a Nursing Home for no good reason, medical or otherwise, and contrary to my best interests without my authority, consent or knowledge thereby causing me distress and anxiety."

In the Inventory of Property disclosed to the court under s 81A of the Probate and Administration Act 1898 (NSW), a copy of which Inventory was placed inside, and attached to, the Probate document, the property owned solely by the deceased at the date of death was disclosed as consisting of real estate at West Pennant Hills ("the West Pennant Hills property") ($1,000,000), shares in IAG ($2,800), cash in bank ($35,927), proceeds of two Life Policies ($86,681) and a car ($20,000). The estimated, or known, gross value of the deceased's estate, at that time, was $1,145,408.

There were no liabilities at the date of death disclosed in the Inventory of Property. However, in an affidavit sworn 3 April 2014, Graham disclosed that funeral expenses and estate liabilities and debts paid out of the deceased's estate were $22,911.

In the same affidavit, Graham swore that the gross value of the deceased's estate, at that time, was $1,271,238 and that, after the payment of the debts, funeral and testamentary expenses ($22,911), the net value of the estate was $1,248,327. (Naturally, this estimate did not include any amount found to be repayable by any of the Defendants to the estate.)

Graham also stated, in that affidavit, that the whole of the then known deceased's estate had been distributed to Peter, Douglas and Graham. (There was also one distribution, of $20,000, made to a trust account in relation to the payment of legal expenses in this litigation). The first distribution ($32,296) was made to each of Peter, Douglas and Graham on 27 July 2011 and then a second distribution was made, in differing amounts, in October 2012. In total, it appears that Peter has received $523,014; that Douglas has received $182,296; and that Graham has received $523,015.

Each gave evidence, on which he was not cross-examined, of what he had done with the proceeds of the distribution. Because of these distributions, it was said that there is no actual estate out of which any order for provision may be made, although it appeared to be accepted that there could be property able to be designated as notional estate, out of which property, an order for provision may be made in favour of Allan and/or Georgina (if she is an eligible person and if there are factors which warrant the making of her application).

In stating this, leading counsel made clear that the Plaintiffs were opposing an order designating any distributed property as notional estate. He submitted, in my view correctly, that, if an order for the repayment of money by the Defendants to the estate is made, the amount repaid will form part of the actual estate of the deceased. It is that amount which could be used to satisfy any orders for provision and costs that may be made for either or both of Allan and Georgina.

In calculating the value of the deceased's estate, actual and notional, finally available, the costs of the present proceedings should also be considered, since, if successful, normally, applicants for a family provision order will be entitled to an order that his and her costs and disbursements, calculated on the ordinary basis, be paid, whilst the administrators representing the estate in the proceedings, irrespective of the outcome of the proceedings, normally, will be entitled to an order that their costs, calculated on the indemnity basis, be paid out of the estate and/or notional estate, of the deceased.

In this case, the costs of the proceedings, so far as they relate to the Plaintiffs' claims for an accounting, and repayment, of funds to the estate of the deceased, will also be relevant, since, if the Plaintiffs are successful in that respect, unless a different costs order is made, they may be able to recover costs from the Defendants, with the result that there will remain the difference between costs calculated on the ordinary, and costs calculated on the indemnity, basis, that will be borne by the estate. If they are unsuccessful, unless a different costs order is made, the estate will be liable to pay the Defendants' costs, calculated on the ordinary basis. Their own costs of those proceedings, calculated on the indemnity basis, will also be payable out of the estate.

The Defendants' solicitor, Mr M Joukhador, in an affidavit sworn on 9 April 2014, estimated the Defendants' costs and disbursements of the whole proceedings, including counsels' fees, calculated on the ordinary basis, to be about $139,400 (inclusive of GST).

The Plaintiffs' solicitor, Ms V Rowlandson, in an affidavit sworn on 10 April 2014, estimated the Plaintiffs' costs and disbursements of the proceedings seeking a family provision order, including counsels' fees, calculated on the indemnity basis, to be $12,000 (inclusive of GST). She estimated their costs of the balance of the proceedings, calculated on the ordinary basis, at $128,678 (inclusive of GST). The total costs of the Plaintiffs of the whole proceedings are $140,678.

It may be necessary for an assessor to determine, unless the parties are able to agree, what proportion of costs should be treated as costs of the Plaintiffs' proceedings and what amount should be referable to the claims made by Allan and Georgina for a family provision order. This will not be an easy task since much of the evidence is relevant to both aspects.

I ask the parties to consider this aspect, and costs generally, in due course, in the hope that further costs and disbursements will be avoided. That over $280,000 has already been incurred in costs demonstrates the good sense of doing so.

The parties agreed that the only eligible person who has commenced proceedings under the Act is Allan. (The Plaintiffs disputed Georgina's eligibility.) Of course, each of the Plaintiffs, as a child of the deceased, is also an eligible person, but none has made any application for a family provision order. Accordingly, I may disregard his interests. However, as a beneficiary named in the Will of the deceased, the court will not disregard his interests. Later in these reasons, I shall refer to his competing claim as a beneficiary.

(There was a reference to the children of Allan and Georgina, who also lived in their home whilst the deceased lived there, but it was accepted that they were not eligible persons within the meaning of the Act. In any event, and without this concession, there was no evidence to satisfy me that each was, or may be, an eligible person within the meaning of the Act.)

Other Background Facts

To the extent that any of what follows is subject of dispute, I am satisfied of the following additional background facts.

Allan is married to Georgina. She was born in July 1973 and is currently 40 years of age.

Graham is married to Anna. They were married in October 1988.

Peter was married in 1992 and divorced in 1997.

Douglas is married to Wendy. He has lived in Queensland since about 1992 and continues to live there with his family.

Following Yvonne's death, the deceased lived alone at the West Pennant Hills property until about 1998, or stayed with his mother on occasions, in her home. In about 1998, Peter moved into the West Pennant Hills property with the deceased. The deceased lived there continuously, until about mid-2009, and returned to live there in February 2010, although, on occasions during this, and other, periods, prior to February 2010, he stayed with Allan and Georgina.

Peter continued to live in the West Pennant Hills property until the deceased's death and thereafter. More recently, it was necessary for him to vacate the West Pennant Hills property so that it could be sold (which it was, for a sale price of $1,138,206).

Between about July 2009 and February 2010, renovations were carried out to the West Pennant Hills property, particularly to the bathroom, the laundry and the kitchen. A newer, larger, and quieter, split system air conditioner was installed in the lounge room as well. All of the deceased's sons assisted with the renovations, although some appear to have done more than others.

(There was a dispute about how the costs of the renovations to the West Pennant Hills property were paid, but it is no longer necessary to decide that dispute in light of the agreed amount claimed by the Plaintiffs and accepted by the Defendants as having been withdrawn from the deceased's accounts and used for the benefit of one or more of them.)

It was during the period of the renovations that the deceased moved in with Allan and Georgina, first to their home in Schofields, and then to their home in Quakers Hill. He did not stay with them all the time but moved between their home, and the West Pennant Hills property. Allan estimated that, between May 2009 and February 2010, the deceased spent about 85 per cent of the time at his, and Georgina's, home.

When the renovations to the West Pennant Hills property were mostly completed, the deceased moved out of Allan and Georgina's home back to his own home. This occurred on about 16 February 2010. (I shall return to the circumstances surrounding the deceased's return to the West Pennant Hills property.) He did not again return to visit, or to stay at, their home. In fact, he appears to have had no contact with either of them after about 20 February 2010 until his death about 15 months later.

MAW is a registered Australian proprietary company, limited by shares. Allan and Georgina is each a director of MAW. The share structure of MAW is disclosed as having 40,006 issued ordinary shares, for which $396,005.94 has been paid. Lynchstone owns all of these shares.

Lynchstone is a registered Australian proprietary company, limited by shares. Allan and Georgina is each a director of Lynchstone. The share structure of Lynchstone is disclosed as having 100 issued ordinary shares, for which $100 has been paid. Allan and Georgina each, legally and beneficially, owns 50 ordinary shares in Lynchstone.

In about September 2009, Allan and Georgina purchased MAW.

Lynchstone used to trade as Motorcycle Accessory Warehouse and All Seasons Mower Barn. The name of the business has been changed. However, they remain businesses conducted by, or on behalf of, Allan and Georgina.

Only the Financial Statements for the years ended 30 June 2009, 2010 and 2011 of Lynchstone were tendered (Ex. D5).

By Transfer dated 7 August 2008, Allan and Georgina purchased, as joint tenants, a property at Quakers Hill for $262,500. As stated above, in about April 2009, the deceased went to live in their home.

Events before the deceased's death involving the deceased

In June 2009, the deceased was an account holder in a number of different accounts (which I shall identify simply by the last three digits of the account number), being, relevantly, account no. 411, account no. 538, account no. 720, account no. 645 and account no. 616. He was also the holder of an account with a Credit Union, being account no. 044.

On 4 December 2009, the deceased executed a General Power of Attorney in which he appointed Peter and Allan to be his Attorneys and permitted them to "exercise the authority conferred on them by Part 2 of the Powers of Attorney Act2003 to do on my behalf anything I may lawfully authorise an attorney to do". The attorneys' authority was subject to any additional details specified in Part 2 of the General Power of Attorney.

Importantly, the General Power of Attorney also provided that:

(a) It was given with the intention that it would continue to be effective if the deceased lacked capacity through loss of mental capacity after its execution (Clause 2);

(b) It was to operate immediately (Clause 3);

(d) The attorneys were authorised "to give reasonable gifts as provided by section 11(2) of the Powers of Attorney Act 2003" (Clause 5); and

(e) The attorneys were authorised "to do any act which confers a benefit on my attorneys, including, but not limited to, meeting the attorney's reasonable living and medical expenses as provided by section 12(2) of the Powers of Attorney Act 2003" (Clause 6).

Clas Olaf Einberg, a solicitor, provided the Certificate under s 19 of the Powers of Attorney Act 2003 (NSW). He confirmed, in the Certificate attached to the Power of Attorney, that he had explained its effect to the deceased who "appeared to understand".

Each of Peter and Allan accepted his appointment as an attorney and as an enduring guardian on 4 December 2009. It is not suggested that Peter involved himself as an attorney in the conduct of the affairs of the deceased thereafter. (It is not necessary to set out the contents of the Appointment of Guardian given under Regulation 4 of the Guardianship Regulation 2000 (NSW), which Regulation has now been repealed and replaced by the Guardianship Regulation 2010 (NSW).)

On 19 June 2009, the deceased provided to Georgina a written "Authority to Operate Accounts" 411, 538, 720 and 645. (While accounts 411 and 538 had been typed onto the form, the reference to accounts 720 and 645 appears to have been added in handwriting, presumably by a bank officer.) The Authority permitted Georgina to operate the accounts using electronic equipment, and directed the Bank to recognise, and act upon, the authority until written notice was received by the branch of the Bank at which the accounts were conducted, of the cancellation thereof, or of the death of the deceased. The Bank was not "obliged to enquire into the circumstances of any instructions given to it" in accordance with the Authority.

In about February 2010, the deceased instructed Coleman & Greig Lawyers, at Parramatta, to act on his behalf. (The firm had acted for the deceased in relation to other matters for a number of years prior to that time.)

On 17 February 2010, the deceased wrote to the Bank at which he held some accounts in the following terms:

"Please supply my Son Graham Fulton with statements on saving accounts April '09 to Feb '10 and any investments I may have with ### Bank.

I would request you cancel Internet Banking."

On 20 February 2010, the deceased signed a document headed "Revocation of Power of Attorney", pursuant to which he "revoked the Power of Attorney dated 'unknown' appointing Peter Fulton and Allan Fulton". The attesting witness to the deceased's signature on this document was Anna.

(It appears that the draft of these documents was obtained from Wendy, and it was Douglas who brought the draft documents with him when he drove from Queensland and gave them to Anna on about 20 February 2010. In this regard, it appears that paragraph 28 of the deceased's affidavit, which was read, is incorrect.)

The Revocation of Power of Attorney and the Revocation of Guardianship was delivered to Georgina on the afternoon of 20 February 2010. Allan was not there at that time, but Georgina gave him the documents when he returned later in the day.

On the evening of 20 February 2010, a meeting took place between the Plaintiffs and Allan at the West Pennant Hills property. Although the deceased was present at the time, he did not participate in the meeting but remained in the next room. (I shall return to the evidence of the discussions at this meeting later in these reasons.)

Allan sent a letter dated 21 February 2010 to Mr Einberg, the solicitor, which letter was in the following terms:

"Please find attached the papers that were handed to my wife on Saturday night, revoking power of attorney and guardianship on behalf of my father Reginald. Please also find a copy of the letter issued by Dr Angus Cottee on 17th February 2010 determinating [sic] my father incapable of making correct decisions due to his dementia deteriorating.

I seek your guidance to remove me from being Power of Attorney and Guardianship as signed early December 2009, and also my wife from the papers attached, I would presume that these papers are not a legal or binding document as the letter from Dr Cottee states he is incapable of making correct decisions. My father only signed these papers and did not fill them out.

There has been an accusation made against me that you have $70,000 against my name on the will (trust account) from a matter in 2002-2004. Could you clarify this for me as I do not understand and have never been informed by my father of this statement.

Could you also clarify for my Father and Brothers that there is indeed no money or trust account being held with Coleman & Greig.

My primary concern is for my father's well being as discussed with you prior to you going on holidays.

I await your return from holidays to discuss this and other issues that have been raised.

Please do not hesitate to contact me on xxx xxx xxx."

Anna drafted a letter dated 22 February 2010, which the deceased sent to the Bank at which the four bank accounts were held, in the following terms:

"My family is trying to organise my finances. I would appreciate if you can supply all copies of bank accounts, statements or term deposits (past and present) from January 2009 to present. Please provide these to my son Graham Fulton. DOB xx/03/65.

I have attached a copy of the bank statements (Acc No. [616]) you provided my son Graham with on Friday 19 February, and request traces to be put on all the amounts I have highlighted, so we can provide these to my Solicitor Coleman and Greig as soon as possible.

Also attached is a legal document for Revocation of Power of Attorney. New Power of Attorney papers will be drawn and provided to you by my Solicitors.

Would you please check all accounts have the correct correspondence details being myself, Reginald Clive Fulton, xxx xxxx Road, West Pennant Hills, NSW 2125. Please make these changes accordingly.

If you need to question any of these requests, please do not hesitate to contact my son Graham on xxx xxxx/xxx xxxxx xxx."

A letter, in similar terms, was also prepared by Anna and taken by her to another Bank and the financial institution at which the deceased held accounts.

By letter dated 24 March 2010, Coleman & Greig responded to Allan in the following terms:

"As you know we act for your father who has asked that we respond to your letter of 21st February, 2010.

Firstly our client has asked us to advise that your suggestion that he is incapable of revoking the Power of Attorney which he signed some time ago is refuted. In response to your letter our client has undergone further medical assessment and we have specific advice and certification to the effect that your father is capable of revoking or making a new Power of Attorney whereby your brothers jointly will have Power to manage his affairs. The new Power will be capable of being exercised by any two of your three brothers.

Our client also intends to amend his Will.

Your father is aware that considerable funds have been withdrawn from his accounts at various institutions. He now asks that you provide (within 14 days from the date of this letter) a complete accounting of all monies taken from his accounts by you or with your consent. When that accounting is to hand your father will consider what steps should be taken in relation to repayment of the amounts taken.

If the accounting is not made available within 14 days our client will have no alternative but to take further action in relation to the matter."

Allan sent a letter dated 6 April 2010 to Coleman & Greig, which letter was (relevantly) in the following terms:

"In [r]esponse to your letter dated 24 March 2010, I have attached... an accounting record for the information that I still have available or can recall as I have handed several documents already to Douglas, Peter and Graham on 20th February 2010 when I attended a meeting at my father's home. At that meeting my father did not attend but was sleeping in the next room. I was indeed there for several hours and he did not want to sit and discuss the matters at hand. At that meeting many receipts and paperwork were handed over for purchases made for my father or by my father, whilst living with us. On many occasions he would go home with $5000 - $6000 cash as requested by dad. The last such withdrawal was done to my knowledge on the afternoon of 18th February 2010 when he indeed called me and asked me where he had left it. Many purchases were also made by Peter and Graham and they were either reimbursed by me or my father and I presumed he would have given them the money. I at no stage would have had any of those receipts as my father had his own collection of receipts for expenses.

My father's attitude towards daily bills eg phone, electricity, council rates, house insurance, water bills... was relaxed e.g electricity bill notification of intended disconnection was evident in 2009. Peter can certainly clarify this matter for you.

The agreement between us was for the interest to be paid 12 monthly at a rate of 6.6% and paid in October each year. This agreement was not formally written but agreed that it be discussed at a later time. I never had any intentions that the incorrect thing would be done by my other siblings at any stage, instead I have been accused of so many incorrect things and would like to take this time to clarify these matters:

(a) I have attached my mortgage documents from my bank showing my loan amount on my land and construction loan, I previously explained to Douglas, Peter and Graham my repayments and they did not believe me...

(b) as requested in my previous letter to you it indeed need[s] to be clarified that there is no Money held in trust with Coleman & Greig as my father had previously told Douglas, Peter and Graham.

(c) $70,000 that is being held against my name with your firm.

...

On many occasions the money and spending habits were indeed discussed with Peter, my father would get into arguments with him or myself if we did indeed not buy him what he wanted. When Peter and myself both told him that there was no need for the many things that he wanted, as previously discussed with you, he would then turn to Graham to help him."

(Allan gave evidence that the agreement referred to in the letter was an agreement between him and Georgina of the one part, and the deceased of the other. It related to the payment of interest on the amounts, which totalled $280,000, withdrawn from the deceased's bank account, which were used by Allan and Georgina to purchase the motorcycle business. It was acknowledged that they paid no interest, at any time, to the deceased in accordance with the alleged agreement.)

Coleman & Greig responded to Allan's letter dated 6 April 2010 by letter dated 20 April 2010 in the following terms:

"You will recall that Mr Fulton asked for a complete accounting of all monies taken from his accounts by you or with his consent. Regrettably your letter does not provide that accounting.

It appears from investigations carried out on your father's behalf that the following amounts have been withdrawn from his accounts.

Amounts withdrawn by Allan Fulton

Maritime Credit Union
$72,000.00
Passbook Account [411]
$15,862.50
$87,862.50
$87,862.50

Amounts withdrawn by Georgina Fulton

Passbook Account [411]
$ 41,505.40
Passbook Account [720]
$ 15,600.00
Cash Investment Account [616]
$468,650.57
$525,755.97
$525,755.97
Total amounts withdrawn
$613,618.47

Documentary evidence as to the withdrawal of these amounts by you is available.

There have been a number of other withdrawals but to-date there is no evidence as to by whom the amounts were withdrawn.

In relation to the amount referred to above my client now seeks the following:-

a. An acknowledgment of your indebtedness in relation to these amounts;

b. A proposal for payment of interest on the amount outstanding so that he can be compensated for the ongoing loss in this regard. That interest should be capitalised from time to time;

c. A proposal for repayment of the amount owning or at least a significant proportion thereof;

d. That you provide adequate security for the debt so that he can be certain that it will be repaid in due course; and

e. That you pay all legal costs incurred in connection with these matters.

Mr Fulton has no desire to commence proceedings for recovery but will have no alternative but to do so if a proposal satisfactory to him in relation to the matters referred to above cannot be negotiated quickly. As Mr Fulton has no real understanding of your present financial situation he will leave it to you to make the first suggestion as to how these matters might be addressed.

Please let us have a response within fourteen (14) days from the date of this letter."

The next letter was one dated 8 June 2010 from MJD Legal, solicitors then acting for Allan and Georgina, in the following terms:

"Upon review of the correspondence presented by your firm on behalf of your client and addressed to Allan and Georgina Fulton it appears that your client is making a claim for money.

Firstly, it would be of benefit to understand what amount you claim to have been 'taken from his accounts' (your letter of the 20th April 2010). It would be encumbered [sic] upon you to avoid generalisation and provide details of the account that you refer to, and to the amounts that Allan and Georgina Fulton had completed this task having done so with whatever information that was available to them at the time. You are aware that your client has access to all the records. Unexplainably, in response, you make the assertion that Allan and Georgina Fulton did 'not provide that accounting' (your letter of the 20th April 2010).

As you would no doubt be aware, a Court would insist that an account be undertaken in this situation. I would suggest, in light of the situation so far, that an independent accountant be appointed to complete a full audit and trace of the accounts and money in question. I suggest that this person be given the unrestricted power to complete the brief and within a reasonable period of time. It would be only fair and proper that the cost be borne equally.

If there is no acceptance of this arrangement then clearly there is opposition to the request and or to the sharing of the costs. I shall allow no more than 48 hours for a response in respect of this aspect. Time is of the essence.

Secondly, I note that your client admits to giving 'his consent' to drawing down money from his accounts (your letter of the 20th April 2010). Your client also gave authority by way of a Power of Attorney (your letter of 24th March 2010). What is puzzling is that your client now makes the claim for money without explaining why. Kindly note that the Power of Attorney was not returned to Allan and Georgina Fulton as requested through my office.

I am sure you understand that it is odd for any person to give authority to access their account and then claim a return of that money. It is possible that your client is questioning what happened to that money (whatever that total may be)? If that is the issue then all the more reason why a full audit should be conducted. Is your client electing not to admit or instruct you of the existence of an agreement reached between him and his son Allan?

Thirdly, there is the issue regarding the mental capacity of your client. I am of the view, based on the information presented to me by Allan and Georgina Fulton, and which I understand is supported by medical documents in their possession (copies of which you have retained), that your client may not have had the capacity to revoke the Power of Attorney and nor to execute a new Power of Attorney.

This concern, in my view, gives rise to the possibility that other members of the family (refer to your letter of the 2nd June 2010) may be creating undue friction by raising unjustifiable claims when in fact the Guardianship Board should be controlling the financial affairs of your client."

Coleman & Greig responded in a letter dated 24 June 2010. Importantly, on behalf of the deceased, they agreed to the appointment of an independent Accountant, jointly instructed to complete an audit of the accounts in question to trace the funds as far as possible.

Then, in a letter dated 1 July 2010, MJD Legal, relevantly, wrote:

"It has come to my attention that the core dispute between the family members relates to that which can be referred to as the 'inheritance received in advance'. If that is the case then it is fair to assume that the claim can be limited to that amount which I understand is $280,000.00."

It is unnecessary to go into further details relating to the appointment of the independent Accountant except to say that it did not occur. On 14 October 2010, Coleman & Greig wrote, relevantly, stating:

"Your clients have had ample time to consider the proposed brief and their delay in responding is unacceptable.

In the circumstances, my client has instructed me to commence legal proceedings. Please advise if you have instructions to accept service of court documents."

There is other correspondence passing between the lawyers to which it is not necessary to refer.

The deceased did not commence proceedings against Allan and Georgina prior to his death.

On 17 September 2010, the deceased signed an Enduring Power of Attorney in which he appointed Graham and Douglas to be his attorneys. Otherwise, the Enduring Power of Attorney was in the same terms as the Power of Attorney executed in favour of Peter and Allan in December 2009, other than it being necessary for the attorneys to act jointly.

John Joseph Cotter, a solicitor, provided the Certificate under s 19 of the Powers of Attorney Act. He confirmed, in the Certificate attached to the Power of Attorney, that he had explained its effect to the deceased who "appeared to understand". There is no evidence of Graham and Douglas exercising any powers as attorneys of the deceased subsequently.

Also, on 17 September 2010 the deceased appointed Peter, Graham and Douglas as his guardians in the event that he became incapable of managing his affairs. Each accepted his appointment on the same date. There is no evidence that any of them exercised any powers of guardianship over the deceased subsequently.

The deceased's prior Wills

In Paragraph 7 of the amended Cross-Claim, which was not admitted by the Plaintiffs in their amended defence to the amended Cross-Claim, the Defendants state:

"7. Under the terms of a will that existed prior to June 2009 there was to have been a distribution of the deceased's estate such that cash or the proceeds of any bank accounts were to go to the first and third cross-defendants, and any property remaining was to be distributed to the first cross-claimant and the second cross-defendant. By the terms of the earlier will, the first cross-claimant and the second cross-defendant were appointed the executors of the deceased's estate."

A copy of the Will referred to in that Paragraph was produced on the fourth day of the hearing. It was one made by the deceased in November or December (the month is indecipherable) 1998 (Ex. P4) and did, indeed, provide a devise of the West Pennant Hills property to Peter and Allan as tenants in common in equal shares, and bequeathed the residue of the estate to Douglas and Graham as tenants in common in equal shares.

The deceased had also made a Will on 4 December 2009 ("the 2009 Will"). Relevantly, it appointed Peter and Allan as executors and trustees and then gave "the whole of my estate to my executor on trust to be divided into four equal parts to be held as four separate trusts which collectively are to be called 'Fulton Trusts'". Each trust identified one son as "the Primary Beneficiary" and included family members of that Primary Beneficiary as other beneficiaries. The identified son was to be the trustee of the trust. What followed was, in general terms, standard clauses for a testamentary discretionary trust, including one which provided that at any time up to the Vesting Date (as identified), the trustee had power to "pay to, or apply for the maintenance, education or benefit of, any of the beneficiaries of that trust then living or in existence, the whole or any part of the capital of each separate trust, or of the income for any financial year for each separate trust, as my trustee thinks fit": Clause 3(f) of the 2009 Will.

However, Clause 4 of the 2009 Will provided:

"IN spite of the forgoing provisions as to the formation of the Fulton Trusts, my executors may with the consent of the person named as Primary Beneficiary of any of those trusts transfer that part of my estate which would otherwise have been held under that trust or any asset forming part thereof to the person named as Primary Beneficiary absolutely."

It follows, relevantly, in the case of Allan, that he and Peter could exercise the power in Clause 4 of the 2009 Will, and transfer to Allan, with his consent, an equal one-quarter share of the deceased's estate. I shall return to the significance of the 2009 Will later in these reasons.

There is no dispute that Georgina attended with the deceased at the office of the solicitors at the time the 2009 Will was prepared. She accepted that she had been present for part of the time during which discussions between the solicitor and the deceased took place. I shall return to her evidence on this topic later in these reasons.

The deceased's affidavit

In most disputes involving estates, the state of mind, desires and prejudices of the central figure, the deceased himself, his relationship with family members and the reasons for changes in testamentary dispositions, are all crucial matters that the court needs to examine carefully. Usually, the evidence of those matters is not available and the court is left to examine those matters by way of second hand and, often, partisan evidence.

In this case, even though the deceased is dead, there is evidence of some of those matters in an affidavit that the deceased made on 24 December 2010. The Defendants' leading counsel objected to me reading that affidavit but I overruled the objection and allowed it to be read.

It is clear that an affidavit may be used if the deponent is unavailable for cross-examination because he is dead: Uniform Civil Procedure Rules 2005 (NSW), rule 35.2(3). The affidavit is also admissible under s 100 of the Act in relation to the claims for a family provision order to which I shall refer later in these reasons.

However, affidavit evidence, however good, which, for whatever reason, is not subject to cross-examination when cross-examination is required, will always be discounted, as appropriate, if the affidavit is used with leave without cross-examination. The degree to which it will be discounted may depend on various factors, including the circumstances that lead to cross-examination being dispensed with, the nature of the evidence and its centrality and degree of significance to the case. The degree of discount appropriate will be judged according to all the circumstances of the case: Re O'Neil, Deceased [1972] VicRp 35; [1972] VR 327, per Anderson J, at 333 - 334; Citibank Ltd v Liu; ABN Amro Bank Ltd v Liu [2002] NSWSC 886, per Hamilton J, at [5].

Relevantly, the deceased's affidavit included:

"8. In about June 2009, I went to the West Pennant Hills sub branch of the Commonwealth Bank, where I banked, and asked if I could get someone else to go in to the bank for me because it was becoming more and more inconvenient for me to attend the bank to do my banking

9. I spoke with a gentleman bank officer (whose name I cannot recall) who said to me words to the effect, 'You can delegate the authority out' and then he gave me a form called 'Commonwealth Bank Authority to Operate' to complete and return

10. My discussion with the bank officer included a conversation in words to the effect,

Bank officer: 'The authority allows the person you nominate to stand in your place and authorise payment of your bills and debts.'

Me: 'Would only the person I nominate be the one who could draw money from my account?'

Bank officer: 'Yes, only the person nominated as being authorised to draw on your money could access the money your account'.

11. On or about 19 June 2009, I completed the Authority to Operate in favour of Georgina, so she could pay my bills ...

12. At the time I gave Georgina authority to operate my account and pay my bills I was living with her and Allan. This was because my wife had died and my mother had recently died, and I though I should live with family. I asked Georgina to operate my account as I considered it was convenient for her to have the authority and I trusted her and Allan.

13. After the Authority had been signed, I would pass on to Georgina the bills I wanted her to pay on my behalf. On some occasions, I received reminders in the mail to pay overdue utility bills, that I thought had already been paid by Georgina, but had in fact not been paid.

...

24. Once I was back at my own home, Graham came over to my house to pay a visit. Although I cannot recall the exact words he used, I recall that Graham explained to me that Georgina and Allan had taken my money. Whilst I did not believe him at first, after a couple of days I started to see the logic in what Graham was saying. I invited him to come over to my house again (although it is possible I went to his place because I still drove at the time) and we had a further discussion in words to the following effect:

Graham: 'Every time I tried to see you Georgina would try and get rid of me.'

Me: 'Why?'

Graham: 'Because I know what's going on'

Me: 'What do you mean?'

Graham: 'She was knocking your bloody money off'.

25. It took me a while to work out what was going on but once I put two and two together and Graham's neighbour, who I think is an accountant, helped trace where all my money had gone, I realised Georgina and Allan had stolen my money.

26. Around this time, I was at home and I recall Georgina coming over to my house. We had a conversation to the following effect:

Me: 'Now that I am back home and looking after myself, I think I can manage my own money and so I am going to cancel the bank authority.'

Georgina: 'Why are you doing this, don't you trust me?'

Me: 'I know what is going on, I don't like it so I'm stopping it. You only had access to my money to use it for my benefit. So the money you've spent that hasn't been spent on me, I want it bank.'

Georgina: 'No, fat chance, you won't get it back, it was spent on you.'

Me: 'No it wasn't, not all of that money was used on me, I'm going to go to my solicitor.'

Georgina: 'Fine, I will go see my solicitor too'.

27. I then started to worry about what had happened. After I thought it all over, and once it had all sunk in, it really broke me up so I decided to talk to my solicitor. I called Coleman & Greig and arranged an appointment with Clas Einberg.

28. Clas subsequently prepared a Revocation of Power of Attorney and a Revocation of Power of Guardianship ...

29. Clas also wrote to Georgina and Allan to let them know that I had instructed him to revoke the Power of Attorney.

30. Around the same time, Graham or Peter (I cannot recall who exactly) took me to the Commonwealth bank to cancel the Authority.

31. Had I known or suspected at the time that I granted the Authority in favour of Georgina, and the Power of Attorney in favour of Allan, that Georgina and Allan had previously accessed money from my bank account and used it for their own use, or that they would or might use the Authority or Power of Authority to benefit themselves, I certainly would not have given Georgina the Authority to operate my bank accounts and I would not have made Allan my attorney."

Parts of what has been quoted, as well as other parts of the affidavit, are not seriously in dispute between the parties and I have referred to such matters earlier. To the extent that there is a dispute about what is alleged by the deceased, for example, in respect of paragraph 31 of the affidavit, I shall weigh it with the other evidence, remembering that the deceased has not been cross-examined about what he has alleged.

Credit of the Witnesses

I turn now to the credit of each of the parties, as there remain some important factual matters in dispute between them. In this regard, it is necessary for me to state my views on the credit of each of the witnesses to enable me to then set out the disputed evidence that I accept.

In this case, some of the evidence is in the form of conversations, said to have been had, with the deceased. That evidence, relied upon by both parties, is admissible and material. Of course, it is necessary to bear in mind the inherent shortcomings of such hearsay evidence. I have borne in mind that the court must exercise caution in determining whether to accept that evidence, and, if accepted, carefully consider the weight to be attached to it. Also, as stated, the version of events spoken of by the deceased to the deponent cannot be tested by cross-examination.

Thus, I keep in mind the need for careful scrutiny to which evidence should be subjected in such circumstances (Plunkett v Bull [1915] HCA 14; (1915) 19 CLR 544, per Isaacs J at 548-9), and whilst there is no absolute legal requirement for it, I should look for some corroboration (Re Hodgson (1886) 31 Ch D 177; [1881-85] All ER Rep 931, at 931; Day v Couch [2000] NSWSC 230; Weeks v Hrubala [2008] NSWSC 162, at [20]).

Bryson AJ, in Zahra v Francica [2009] NSWSC 1206, said:

"In these proceedings the plaintiff makes claims against the deceased's estate and the facts that he alleges depend for proof very largely upon his own evidence. In approaching his evidence and making findings on a matter he alleges, I bear in mind the need for careful scrutiny to which evidence in such a case should be subjected. This need is well established and was stated clearly by Isaacs J in Plunkett v Bull (1915) 19 CLR 544. Two more modern statements appear in the judgment of McLelland CJ in Eq in Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 at 789 in a passage which was cited with approval in the judgment of Sheller JA in Eggins v Robinson (2000) NSWCA 61 at [26]:

... in a claim based on communications with a deceased person the court will treat uncorroborated evidence of such communications with considerable caution, and will regard as of particular significance any failure of the claimant to bring forward corroborative evidence which was, or ought to have been, available."

Although in a different context, what was written by Whelan J in Webb v Ryan [2012] VSC 377, at [22], referring to the difficulties in assessing evidence, in such circumstances as the present, is apt:

"An important matter which may arise in these kinds of cases is the difficulty of assessing evidence concerning things allegedly said by a person who is dead. The court can never be certain it knows all the circumstances, and more often than not one may be sure that the court knows few of them. It is impossible to hear what the other party to the conversation, the deceased, says about it. There is a significant risk of reconstruction. There are dangers in relying on evidence of what may have been a casual observation made to a person who at the time had no reason to remember the exact words used. In the light of these concerns, a substantial burden is placed upon an applicant whose case relies upon such evidence. Such evidence must be very carefully examined."

I also remember what was said by Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56, at [48]:

"... When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-2)."

The credibility of a witness and his, or her, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas S.A. (The "Ocean Frost") [1985] 1 Lloyd's Rep 1, per Robert Goff LJ, at 57.

I have also found what Lord Pearce, in his dissenting speech in Onassis v Vergottis [1968] 2 Lloyd's Rep. 403, at 431, useful:

"Credibility involves wider problems than mere 'demeanour' which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness, and motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process and in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part."

Also, I refer to what McLelland CJ in Eq said in Watson v Foxman (1995) 49 NSWLR 315, at 319:

"Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions of self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience."

Section 140 of the Evidence Act 1995 (NSW) should also be considered. It provides:

"(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defence, and

(b) the nature of the subject-matter of the proceeding, and

(c) the gravity of the matters alleged."

Ordinarily, the more serious the consequences of what is contested in litigation, the more a court will have regard to the strength and weakness of evidence before it in coming to a conclusion. As was stated in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449, at 449-450, which was decided before the Evidence Act was enacted:

"The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct."

However, as has recently been reaffirmed by the Court of Appeal in Bibby Financial Services Australia Pty Ltd v Sharma [2014] NSWCA 37, at [205], s 140(2) provides for no new principle but simply reflects the principles stated in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, that there should be clear and cogent proof of serious allegations. The section does not change the standard of proof, but merely reflects the perception that members of the community do not ordinarily engage in serious misconduct.

I also remember the following statement in Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517, at 521, per Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ:

"Proof of fraud should be clear and cogent such as to induce, on a balance of probabilities, an actual persuasion of the mind as to the existence of the fraud".

The allegations made by the Plaintiffs against Allan and Georgina are serious. Essentially, they amount to dishonesty.

With these principles in mind, I turn to the evidence of specific witnesses.

I found each of the Plaintiffs to be an honest and straightforward witness. Each gave his recollection of events, in my view, truthfully and clearly. Each was specific about what he could, and what he could not, remember, and did not depart, in his oral evidence, from the account, given in his affidavit(s). I accept the accuracy, and reliability, of the evidence of each.

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

The deceased did not have any legal obligation to Georgina, as a daughter-in-law, imposed upon him by statute or common law. However, it may be that such an obligation or responsibility would arise from Georgina's dedication as the wife of the deceased's son, and as mother to the deceased's grandchildren by his son, or by what she did to assist the deceased over many years prior to the death of the deceased.

However, as stated earlier, it is difficult to conclude, that such an obligation or responsibility would arise where the marriage of the son and daughter-in-law subsisted at the date of death, and in circumstances of provision being made for the son of the deceased.

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

I have earlier dealt with these matters. The maximum gross value of the undistributed actual estate would be the amount found to be repayable to the estate by one or more of the Defendants, including interest thereon.

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

The joint financial position of Allan and Georgina appears as follows:

Schedule of Assets

Asset
Value (est)
Quakers Hill property (joint):
$750,000 - $800,000
Registration No UXX XXX (Allan):
$ 3,000
Registration No VXXX (Allan):
$ 400
Registration No AXXXX (joint):
$ 8,500
ANZ Cheque account (joint):
$ 41
Westpac Business One (Lynchstone):
$ 9,724
Westpac Business Cash (Lynchstone):
$ 3,835
ANZ Business Overdraft (Lynchstone):
$ 788
Stock in trade (Lynchstone):
$138,914

Schedule of Liabilities

Newcastle Permanent Mortgage (joint):
$298,772
Newcastle Permanent Mortgage (joint):
$236,387
Citibank Credit Card (Georgina):
$ 9,372
BankWest MasterCard (Georgina)
$ 10,974
Westpac MasterCard (Allan):
$ 3,490
ANZ Business One (Lynchstone):
$ 5,860
ANZ Business Overdraft (Lynchstone):
$ 34,211
Australian Taxation Office Debt:
$ 12,312
Creditors stock in trade (Lynchstone):
$ 49,719

Each receives an income of $3,900 per month and the family's monthly expenditure as is follows:

Food:
$ 800
Mortgage:
$3,345
Credit cards:
$ 800

It follows that they appear to have a surplus of income over expenditure.

It is clear that each has an earning capacity.

Georgina asserts their "needs include" the legal fees payable in these proceedings; costs and expenses associated with looking after their son, Aaron, who is aged 14 years and to provide for their daughter, Vanessa, who wishes to join in the family business and who is currently pursuing a career in business management; and to provide for exigencies of life.

Of course, it is to be remembered that the legal fees have been incurred as a result of the institution of the proceedings and by reason of their defence of those proceedings.

Graham gave evidence of his assets as follows:

Quakers Hill property:
$650,000 - $700,000
Sydney Olympic Park unit:
Purchase Price of $595,000 (deposit of $59,500 paid, with balance due, upon completion, in 2015)
Vehicles:
$18,000
Home furniture, contents and fittings:
$15,000
TWU Superannuation Entitlements
$45,000

While Graham's average net income, as a truck driver, between March 2010 and December 2012 was approximately $1,500 per week, he gave evidence that he has been unable to work since December 2012 as a result of being diagnosed with, and receiving treatment for, aneurisms and haemochromotosis. Between December 2012 and about October 2013, he said that he "lived off [his] savings".

In about October 2013, he began receiving Centrelink benefits of approximately $463 per fortnight.

Graham says that he is "no longer able to obtain employment as a ... truck driver" as he has "not been certified as suitable for a licence". I accept that his earning capacity has diminished and that he is unlikely to obtain work as a truck driver in the foreseeable future. Overall, however, perhaps he retains some earning capacity.

Graham gave evidence that he owes $15,650 in credit card debt and that he has weekly liabilities as follows:

Electricity and gas:
$112
Phone and internet charges:
$ 59
Council and water rates:
$ 58
School fees:
$ 69
Credit card repayments:
$295
Home and contents insurance:
$ 27
Vehicle registration and insurance
$ 68
Foxtel:
$ 20
After school sporting activities
$ 13
Medibank Heath Fund
$ 74
Petrol
$ 80
Groceries
$330

He also gave evidence that his financial position is affected by having "three dependants", namely, his wife, Anna, and two daughters aged 18 years and 13 years respectively.

Anna is currently not employed and has not been employed since 2003. She receives approximately $463 per fortnight in Centrelink benefits, together with approximately $264 per fortnight in Family Tax Benefit Part A and B entitlements for the younger of their two daughters.

I accept that Anna's earning capacity is limited.

Peter works as an electrical fitter and has been employed by his current employer for 35 years. He gives evidence that his gross weekly income is $1,140 and his net weekly income after tax ($200), child support repayments ($179) and club membership ($2), is approximately $757.

There is no evidence that Peter lacks earning capacity.

Peter's assets include his home, in Riverstone (about $500,000), contents, (about $10,000), and motor vehicles (about $10,500). He has no liabilities.

Peter gives evidence that his additional weekly outgoings total approximately $503, as follows:

Fuel and vehicle registration and insurance:
$137
Gas, water and electricity bills:
$ 60
Phone bill:
$ 27
Home insurance:
$ 32
Council rates:
$ 27
Food:
$150
Pet food:
$ 30
Newspapers and magazines
$ 19
Private Health Insurance:
$ 19

Douglas is a mechanic. He owns his own business, which was purchased, in 2012, for $80,000. He gives evidence that his "income is variable". He says that, before October 2012, he was earning approximately $2,000 per week but that since January 2014, his earnings have been "approximately $200 to $250 per week".

Douglas gives evidence that rental obligations for his business are $1,844 per month, that "in order to make a profit, [he] need[s] to take at least $1,000 per week", and that he is currently "trading at a loss". He says that "if [business] does not pick up soon, [he] will probably need to close the bike shop and find alternative employment".

During the course of the hearing, Douglas was offered some casual contract work in Queensland.

I accept that, notwithstanding the concerns for the viability of his business, Douglas retains an earning capacity.

Douglas' wife, Wendy, is employed on a part-time basis and earns approximately $300 per week.

Douglas' assets were disclosed as follows:

Terranora property:
$480,000
Vehicles:
$82,000
Savings in bank account:
$1,000

Douglas gave evidence that he has current debts of approximately $256,000 comprising:

Home loan:
$200,000
Business loan:
$40,000
Loan in respect of payment of legal fees:
$24,000

Douglas also disclosed ongoing liabilities as follows:

Electricity bills (for home and business):
$1,200 per quarter
Council rates:
$2,000 per year
Telephone bills:
$800 per quarter
Vehicle registration:
$2,300 per year
Water bills:
$500 per year
Fuel:
$170 per week

Of course, the position of each of the Plaintiffs has been improved by the distributions made to him. In the case of Douglas, there will be further distributions to be made to him.

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

Allan and Georgina are cohabiting. I have dealt with their financial circumstances. (It is unnecessary to consider the financial circumstances of their children.)

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

There is no evidence of any physical, intellectual or mental disability of either Allan or Georgina.

I have earlier referred to the medical condition of Graham. That is set out in more detail in a letter dated 31 October 2013 from Dr Mark Dexter which includes:

"...Mr Fulton was recently admitted to Westmead Public Hospital to undergo a neurointerventional stenting procedure to treat his left frontal recurrent aneurysm. Unfortunately it was not possible to treat the aneurysm in this way.

Mr Fulton will now require major open brain surgery to repair the aneurysm, that being a craniotomy, repair of the aneurysm and a reconstructive cranioplasty, by myself. I have organised for Mr Fulton to be admitted to Westmead Private Hospital on the 19th November to undergo the surgery. It should be noted however that this is major intracranial surgery which carries with it risk of death.

I understand that Mr Fulton drives large vehicles in his line of work and he will not be able to drive any vehicle for a full 12 months post surgery. In addition he will not be fit for duties in any capacity for 3-6 months post surgery which will be assessed during his recovery."

There is no evidence of any physical, intellectual or mental disability of either Douglas or Peter.

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

I have earlier noted that Allan was born in May 1972 and is currently almost 42 years of age whilst Georgina was born in July 1973 and is currently 40 years of age.

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

Allan and Georgina give evidence of the contribution of each to the conservation and improvement of the West Pennant Hills property and otherwise to the welfare of the deceased (and previously to the welfare of Yvonne). Overall, there is no need to disbelieve this evidence, as there is no substantial dispute about it.

(i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate

Georgina gives evidence of the following provision made for Allan and her during the deceased's lifetime. Omitting amounts referred to as in dispute in these proceedings, that provision included:

(a) In 1996, the repayment of a "substantial amount" towards the mortgage debt secured on their Schofields property;

(b) In 2001, the payment of "several thousand dollars" for stock in a shop at Quakers Hill;

(c) The amount lent to Jeanette, which he did not seek to be repaid upon the basis that Jeanette did not seek to recover any amounts from Allan and Georgina.

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

I have earlier referred to the three Wills of the deceased and to the deceased's affidavit.

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

Whilst the deceased's funds may have been used to assist in maintaining Allan and Georgina, I am not satisfied, other than in respect of amounts specifically admitted as having been paid by the deceased for their benefit, that each was being maintained, either wholly or partly, by the deceased.

I do not consider that using the deceased's funds for maintenance, without his approval, constitutes "being maintained by the deceased".

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

There is no person who is liable to support Allan or Georgina, other than, perhaps, each other.

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

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

In In re the Will of F B Gilbert (dec'd) (1946) 46 SR (NSW) 318, Jordan J, at 321, wrote (in relation to the Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW)):

"Section 3(2) of the Act provides that the Court may refuse to make an order in favour of any person whose character or conduct is such as to disentitle him to the benefit of such an order. I think that this means character or conduct relevant to the purposes which the Act is intended to serve, for example, misconduct towards the testator, or character or conduct which shows that any need which an applicant may have for maintenance is due to his or her own default."

More recently, in Collicoat v McMillan [1999] 3 VR 803, at 817, Ormiston J wrote in relation to the manner in which an applicant's behaviour towards the deceased is to be considered:

"... Ordinarily each of the persons who have a statutory right to make application are entitled to have their position considered by a testator but their behaviour (right or wrong) towards the testator may only provide a basis for measuring appropriately the testator's obligation to make provision for each of those applicants. Their sins are irrelevant except insofar as a testator might properly take exception to their behaviour."

In Hampson v Hampson [2010] NSWCA 359, Campbell JA (with whom Giles JA and Handley AJA agreed) recently noted, at [80]:

"The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad-brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge."

I am satisfied, having regard to the totality of their relationship, that, but for the conduct of Allan and Georgina in the period from about August 2009 to February 2010 in withdrawing funds from the deceased's accounts, Allan was a loving and dutiful son and that Georgina was a loving and dutiful daughter-in-law.

There was no criticism of either so far as his, or her, conduct related to the deceased, other than in respect of the matters the subject of the Plaintiffs' claims.

However, the conduct of each, in relation to funds withdrawn from his account, in my view, is a very relevant matter as conduct that the deceased was properly entitled to take into account.

Allan and Georgina had no contact with the deceased after 20 February 2010 until his death. I have no doubt that this was because of the events the subject of the Plaintiffs' claims. It is also a matter to be taken into account, as is their conduct in putting the deceased to some cost in having to retain lawyers to recover the funds. In the events that occurred, no proceedings were instituted before the deceased's death, but as has been observed, there was significant correspondence between the lawyers relating to the moneys that had been withdrawn.

The relationship of the party siblings, as I indicated at the outset, is clearly such that they no longer get on with each other (although there is no suggestion of conflict between the Plaintiffs).

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

Although there was some criticism of each of the Plaintiffs, in his treatment of the deceased by Allan and Georgina, I am satisfied that the conduct of each towards the deceased was satisfactory. In relation to Peter, I do not forget that he lived in the West Pennant Hills property from 1998.

There is no evidence that the deceased considered the conduct of each as such to restrain the amplitude of provision that he made. In this regard, I have earlier mentioned that, until the 2010 Will, the deceased divided his estate, broadly speaking, equally between his four sons.

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

This is not relevant.

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

There is no other matter that I consider relevant.

Determination

In my view, subject to what I shall say hereunder in regard to the claims for provision, the Plaintiffs have satisfied me that the whole of the amount of $495,000 should be repaid to the estate. I am not satisfied that the deceased conferred authority to Allan, or to Georgina, to use any of these funds for his, her, or their, own benefit. Nor do I accept that he gave instructions orally, or in writing, in respect of these amounts or that he made a gift of the amounts to one, or both, of them. To the contrary, I find that he did not do so. I cannot accept the evidence of Allan or Georgina when taken with the evidence overall.

In particular, I cannot be satisfied that the deceased authorised Allan to withdraw the amount of $72,000 from his account in the way stated by Allan. There is simply no satisfactory basis to come to the conclusion contended for by Allan on this topic. Of particular significance is Allan's failure to bring forward corroborative evidence that was, or ought to have been, available, namely the authority letter to which he made reference.

In relation to the amounts withdrawn by Georgina, I note that the Authority to Operate did not contain any power to confer a benefit. I am not satisfied that the deceased, otherwise, authorised her to withdraw any of the amounts totalling $420,500 that she did. The deceased's affidavit contained the statement that the deceased "completed the Authority to Operate in favour of Georgina so she could pay my bills". I have earlier referred to the specific lack of responsive evidence by Georgina on this topic. It is also logical that he might do so in the circumstances.

Taking all of the evidence into account, I accept the statement of the deceased that he provided the Authority to Operate the accounts to Georgina so that she could pay his bills or to enable her to withdraw amounts he asked for, from which he could pay his bills or other expenses. None of the amount of $420,500 was used for those purposes.

Thus, I am satisfied that all of the withdrawals and distributions made by Allan or Georgina to themselves, or for their benefit, were made without the informed consent of the deceased. I am not satisfied that the amounts were gifts by the deceased to Allan or Georgina. In this regard, I refer, in particular, to Allan's evidence regarding the amounts "we borrowed".

Subject to what I shall now turn, Allan and Georgina should repay the whole amount of $495,000 to the estate.

In relation to the terms of the 2010 Will, on its proper construction, I find that the deceased did not intend to waive, or to not require, the return of the amounts to which he referred. Rather, his intention was to explain that he was not making provision for Allan because of Allan's conduct, which conduct, so far as the deceased was concerned, was unfilial.

Nor am I satisfied that the deceased intended to provide an advance on his inheritance to Allan by the contents of the 2010 Will. Nor did he intend to waive, or not require, the return, or repayment of the money as suggested in the amended Defence. To the contrary, I consider that the deceased's intention, until he made the 2010 Will, was to divide his estate, broadly speaking, equally between his four sons. His testamentary intention changed as a result of Allan's, and Georgina's, conduct in withdrawing funds from his accounts, which withdrawals I am satisfied he did not consent to or otherwise authorise.

In other words, the deceased was identifying, in the 2010 Will, what he regarded as conduct disentitling Allan to the benefit of any provision from his estate. Clearly, the conduct to which he referred had an important influence on the manner in which he was leaving his estate. He was also endeavouring to explain, in the 2010 Will, the reasons for the change of testamentary intentions from the 2009 Will.

The 2010 Will and the affidavit that he made, thereafter, in my view, explained the deceased's motives in doing what he did. Each also explained his state of mind so far as Allan and Georgina were concerned. The relevant paragraph of the 2010 Will was not intended to be a dispositive provision to either Allan or Georgina. To construe an explanation providing reasons why provision is not made as constituting a form of provision is not a tenable reading of Clause 7 of the Will.

I turn then to the claims for a family provision order.

Being an "eligible person" is a necessary precondition to the court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. In this case, there is no dispute that Allan, as a child of the deceased, is an eligible person within the meaning of s 57(1)(c) of the Act.

There is a dispute that Georgina is an eligible person. Whilst she was a member of the household of which the deceased was a member, I am not satisfied that she was wholly, or partly, dependent upon the deceased. As I have stated, the unauthorised withdrawal of funds used for her, or her family's, benefit, does not make her dependent, wholly or partly, upon the deceased.

In the case of Georgina, not being satisfied that she is an eligible person, means that her claim for relief under the Act must be dismissed.

Had I been satisfied that she was an eligible person, I would not have found factors warranting the making of her application. In this regard, I note that she was not identified, by the deceased, in either of the 1998 Will or in the 2009 Will as a beneficiary, although in the latter, as a spouse of Allan, she may have been a discretionary object.

Nor was she a substitute beneficiary named in the 1998 Will.

I note also that in the Will, Clause 7 commences: "I have not made provision for my son Allan Fulton because ...". This, too, demonstrates that the deceased did not regard Georgina as a natural object of testamentary bounty. Had he done so, one would think that she would have been included in this opening paragraph.

A daughter-in-law is not, usually, regarded as a natural object of testamentary bounty, particularly in circumstances where the marriage of the son and daughter-in-law subsists at the date of death and in circumstances where the benefit of provision made for the son will, at least indirectly, assist the daughter-in law. It may be different if the applicant is a widowed daughter-in-law: see, for example, Petrucci v Fields [2004] VSC 425.

Thus, having not found Georgina to be an eligible person, and, in any event, no factors warranting the making of her application, her claim must be dismissed. There is no need to consider whether there should be an order extending the time for the making of her application.

In relation to Allan, I next turn to the order seeking an extension of time. Although the evidence on this issue is weak, particularly on the question of not knowing of the period prescribed by the Act for making the application, I am satisfied that sufficient cause to extend the time for the making of Allan's application for a family provision order has been established.

Had Allan been told about the period prescribed by the Act for the making of the claim, there would have been no reason not to file a Cross-Claim, making that claim. The costs of filing the Cross-Claim and for producing the affidavit in support thereof would not have been sufficiently great to prevent him doing so. As the case has proceeded, comparatively little time has been spent on this aspect.

In circumstances where I propose to order the repayment of the agreed amounts withdrawn, there will be actual estate out of which provision may be made. Then, no specific prejudice has been pointed to by any of the Plaintiffs (each limiting the prejudice to the circumstances surrounding the making of an order designating distributed property as notional estate).

I do not regard the "presumptive prejudice" relied upon as being relevant. None of the Plaintiffs suggested that the quality of justice available had deteriorated, or that any witness had been lost, or that recollections had faded. To a great extent, the Plaintiffs have produced a volume of contemporary banking records to establish the substantive case against the Defendants.

Nor do I consider that the there is any unconscionable conduct, in the relevant sense, on Allan's part. His explanation regarding other issues being of concern to him, to Georgina, and to their legal representatives, is I think an understandable one and I accept it.

Finally, since I consider that a family provision order, in favour of Allan, should be made, the strength of his claim is relevant. On balance, I consider that justice would be best served by extending the time and, in all the circumstances, I propose to make an order, sufficient cause having been shown, extending the time for the making of Allan's application for a family provision order.

Having established eligibility and that the time for the bringing of the proceedings should be extended to the date of the filing of the amended first Cross-Claim, relevantly, the first question for determination is whether, at the time the court is considering the application, adequate provision for the proper maintenance or advancement in life, of Allan has not been made by the Will of the deceased. Whether such provision has been made requires an assessment of his financial position, the size and nature of the deceased's estate, the relationships between him and the deceased and other persons who have legitimate claims upon his bounty and the circumstances and needs of those other persons: see Tobin v Ezekiel, at [70]; McCosker v McCosker, at 571-572; Singer v Berghouse, at 210; and Vigolo v Bostin, at [16], [75] and [112].

Using the yardstick of prudent and intelligent conduct on the part of Allan, his claim would have to be dismissed. However, I have considered all of the matters I am required to consider, and I am satisfied that the deceased did not make adequate provision for the proper maintenance and advancement in life of Allan by the 2010 Will. No provision was made in the 2010 Will for him. Whilst his and Georgina's conduct after mid 2009 does not paint either in the most favourable light, the deceased should not have ignored the nature and extent of their relationship in the many years prior thereto.

Also, I am required to consider the question at the date of hearing. If an order is made requiring Allan and Georgina to repay the amount of $495,000, at least part of the reason for omitting Allan entirely from his testamentary beneficence, will be eroded (albeit that this was not achieved during the lifetime of the deceased).

In coming to this conclusion, I also have taken into account the legitimate claims upon the bounty of the deceased of Graham, Douglas and Peter and the obligation and responsibility that the deceased felt, to provide for each.

It is also clear that Allan has some "needs". As stated above, "need" in the context of the Act is not determined by reference only to minimum standards of subsistence. Nor is it limited to whether the applicant has, at the date of hearing, an immediate need for financial assistance with respect to his maintenance and advancement in life. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies.

Allan and Georgina's financial position will alter significantly upon the repayment of $495,000. In effect, the value of their assets will not exceed their liabilities. The repayment of the whole amount will probably require the sale of their home. In this regard, I cannot forget that they have a child who resides with, and who is dependent upon, them. Thus, judged by quantum and looked at through the prism of Allan's financial and material circumstances, it can be seen that adequate provision for his proper maintenance or advancement in life was not made by the 2010 Will, or by the operation of the intestacy rules, in relation to the estate of the deceased, or both.

Had I concluded that Georgina was an eligible person and that there were factors warranting the making of her application, I would have found, as a matter of discretion, that no provision ought to be made for her out of the estate of the deceased. In this regard, I have considered all of the matters to which I have referred as well as the competing claims of the Plaintiffs and, also, of Allan.

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

I must also consider, in coming to the determination of adequate and proper provision, Allan's conduct and the fact that he did not see the deceased for the last 15 months of his life. I must also consider the competing claims of the Plaintiffs. In my view, these matters reduce, but do not extinguish entirely, the obligation of the deceased to make some provision for Allan.

Doing the best I can, and taking into account all of the matters that I am required to consider, having considered that I should order Allan and Georgina to repay the amount to the estate of $495,000, from the amount repaid, Allan should receive a lump sum of $320,000. (That amount, but for the repayment that must be made, would have enabled Allan to pay his share of the existing joint debts that have been identified and some part of the costs and disbursements that he will, undoubtedly, be required to bear.)

Subject to the agreement of all of the Plaintiffs and of Allan in respect of whom a family provision order is made, the lump sum by way of provision may be set off, as it were, with the result that the amount to be repaid to the estate should be $175,000 together with any interest to be paid. If agreement cannot be reached, the whole amount should be repaid to the estate before the lump sum is paid to Allan.

As stated, Georgina's claim should be dismissed.

In relation to interest, I am of the view that some interest on the amount repayable by Allan and Georgina should be paid. But as a matter of discretion, I consider that interest should be calculated only on the lump sum of $175,000, from the date of the deceased's death, until the date of repayment. The rate of interest should be agreed upon, or if not agreed, I shall decide the issue. (I have taken into account, as a form of indirect provision for Allan, that no interest is to be paid between early 2010 and the date of death of the deceased.)

No interest should be paid on the lump sum payable to Allan by way of family provision order since its payment will be dependent upon the repayment of $495,000 plus interest by Allan and Georgina to the estate.

I shall allow the parties an opportunity to consider these reasons and to make further submissions on the form of orders, the rate of interest and the burden of costs if agreement cannot be reached. I direct the parties to prepare Short Minutes of Order giving effect to these reasons, and if they are not able to agree, to provide competing versions thereof within 14 days. I shall stand the matter over to a date convenient to the parties and the court for the making of orders and determining the question of the rate of interest and costs.

If possible, agreement should be reached on the calculation of interest, at least up to the date of the making of orders, and costs and, if it is at all possible, perhaps, agreement could be reached on the quantum of costs also. This may avoid further disputes at a later time. I shall stand the proceedings over for any argument as to costs to a convenient date.

There should also be an order that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rule 31.16A and rule 33.10), and Practice Note SC Gen 18 (Para 26) following the determination of the costs of the proceedings.

**********

Decision last updated: 22 May 2014

Medium Neutral Citation:	Fulton v Fulton [2014] NSWSC 619
Hearing dates:	7, 8, 9, 10 April 2014
Decision date:	22 May 2014
Jurisdiction:	Equity Division
Before:	Hallen J
Decision:	Direct the parties to prepare Short Minutes of Order within 14 days giving effect to these reasons, and if they are not able to agree, to provide competing versions thereof. Stand the matter over to a date convenient to the parties and the court for the making of orders and for determining the question of interest, if any, payable by the Defendants and costs in the event agreement cannot be reached.
Catchwords:	ADMINISTRATION OF ESTATE OF DECEASED - Amounts claimed by the Plaintiffs, who are named executors of the Will of the deceased to whom Probate granted, as moneys alleged to have been wrongfully withdrawn, by their brother and sister-in-law during the lifetime of the deceased, out of bank accounts conducted by him - Agreement reached at the hearing as to quantum of the amounts withdrawn but not liability of the Defendants, or any of them, to repay any part of, those amounts - Defendants assert authority, oral or in writing, given by the deceased, or otherwise that they were gifts by the deceased to them or alternatively "an advance on inheritance" - Amount that should be repaid to the estate - Whether interest on the amounts withdrawn and to be repaid should be paid, and if so, from what date and at what rate SUCCESSION - CONSTRUCTION OF WILL - Whether the deceased intended to make dispositive provision in Will in favour of his son and daughter-in-law or whether the terms of the Clause explain reasons for making no provision for his son or otherwise SUCCESSION - FAMILY PROVISION - Two of the Defendants make a claim for a family provision order - No dispute as to one Defendant's eligibility as a child of the deceased - Dispute as to eligibility of other Defendant who is the daughter-in-law of the deceased - Also dispute whether there are factors warranting the making of her application - Plaintiffs are the other children of the deceased and the sole residuary beneficiaries named in the Will - No provision made in the Will of the deceased for either Defendant - Estate distributed - Only actual estate may be amount ordered to be repaid - Extension of time required for making of applications - Whether family provision order should be made, and if so, the nature and quantum of the provision to be made
Legislation Cited:	Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW) Evidence Act 1995 (NSW) Family Provision Act 1982 (NSW) Guardianship Regulation 2000 (NSW) Guardianship Regulation 2010 (NSW) Powers of Attorney Act 2003 (NSW) Practice Note SC Gen 18 Probate and Administration Act 1898 (NSW) Property (Relationships) Act 1984 (NSW) Succession Act 2006 (NSW) Succession Amendment (Family Provision) Act 2008 (NSW) Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Aafjes v Kearney (1976) 50 ALJR 454; 8 ALR 455 Alexander v Jansson [2010] NSWCA 176 Allardice, re; Allardice v Allardice (1910) 29 NZLR 959 Amaca Pty Ltd v Novek [2009] NSWCA 50 Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 Armagas Ltd v Mundogas S.A. (The "Ocean Frost") [1985] 1 Lloyd's Rep 1 Aubrey v Kain [2014] NSWSC 15 Axford v Gray [2013] VSC 664 Barlevy v Nadolski [2011] NSWSC 129 Bartlett v Coomber [2008] NSWCA 100 Bibby Financial Services Australia Pty Ltd v Sharma [2014] NSWCA 37 Blatch v Archer [1774] EngR 2 Blyth v Spencer; Spencer v Neville [2005] NSWSC 653 Bondelmonte v Blanckensee [1989] WAR 305 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Brandon v Hanley [2014] VSC 103 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 Bristol and West Building Society v Mothew [1998] Ch 1 Brown v Faggoter [1998] NSWCA 44 Butcher v Craig [2009] WASC 164 Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748 Byrne v Macquarie Group Services Australia Pty Ltd [2011] NSWCA 68 Carega Properties SA (formerly Joram Developments Ltd) v Sharratt [1979] 2 All ER 1084; [1979] 1 WLR 928 Carstrom v Boesen [2004] NSWSC 1109 Chiu Man Fu v Chiu Chung Kwan Ying [2012] HKCFI 82 Christie v Manera [2006] WASC 287 Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241 Citibank Ltd v Liu; ABN Amro Bank Ltd v Liu [2002] NSWSC 886 Collins v McGain [2003] NSWCA 190 Cooper v Dungan (1976) 9 ALR 93; (1976) 50 ALJR 539 Coorey v Coorey (Supreme Court (NSW), Powell J, 22 February 1986, unrep) Craig v Silverbrook [2013] NSWSC 1687 Crossman v Riedel [2004] ACTSC 127 Curran v Harvey [2012] NSWSC 276 Day v Couch [2000] NSWSC 230 de Angelis v de Angelis [2003] VSC 432 Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89 Donaldson v Lawless [2013] NSWSC 861 Evans v Levy [2011] NSWCA 125 Fairbairn v Varvaressos [2010] NSWCA 234 Fede v Dell'Arte [2010] NSWSC 1113 Fell v Fell [1922] HCA 55; (1922) 31 CLR 268 Foley v Ellis [2008] NSWCA 288 Friend v Brien [2014] NSWSC 613 Frisoli v Kourea; Frisoli v Kourea [2013] NSWSC 1166 Fry v Lukas; Brown v Fry; Estate of Honey; Application of Fry [2011] NSWSC 1329 Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep) Janette Susan Gardiner v Raymond James Gardiner as Administrator of the Estate of the Late Dulcie Eva Gardiner [2014] NSWSC 435 Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Graziani v Graziani (Supreme Court (NSW), Cohen J, 20 February 1987, unrep) Grey v Harrison [1997] 2 VR 359 Hamilton v Moir [2013] NSWSC 1200 Hampson v Hampson [2010] NSWCA 359 Hansen v Hennessey [2014] VSC 20 Harrison v Harrison [2011] VSC 459 Hart v Van Son [2014] NSWSC 585 Hatzantonis v Lawrence [2003] NSWSC 914 Hawkins v Prestage (1989) 1 WAR 37 Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 Hyland v Burbidge [2000] NSWSC 12 In the Estate of Puckridge, Deceased (1978) 20 SASR 72 In re the Will of F B Gilbert (dec'd) (1946) 46 SR (NSW) 31 Kauri Timber Co (Tas) Pty Ltd v Reeman [1973] HCA 8; (1973) 128 CLR 177 Kavalee v Burbidge; Hyland v Burbidge (1998) 43 NSWLR 422 Kay v Archbold [2008] NSWSC 254 Kembrey v Cuskelly [2008] NSWSC 262 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Lewis v Lewis [2001] NSWSC 321 Lumsden v Sumner [2012] NSWSC 1440 MacGregor v MacGregor [2003] WASC 169 Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146 Manuel v Lane [2013] NSWCA 61 Marks v Marks [2003] WASCA 297 Marley v Rawlings [2014] UKSC 2; [2014] 2 WLR 213 Mayfield v Lloyd-Williams [2004] NSWSC 419 McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 McKenzie v Baddeley [1991] NSWCA 197 McKenzie v Topp [2004] VSC 90 Moore (by her tutor the NSW Trustee & Guardian) v Randall [2012] NSWSC 184 Neale v Neale [2013] NSWSC 983 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 Onassis v Vergottis [1968] 2 Lloyd's Rep. 403 Palaganio v Mankarios [2011] NSWSC 61 Penfold v Perpetual Trustee [2002] NSWSC 648 Peoples v Simpson [2005] NSWSC 355 Perochinsky v Kirschner [2013] NSWSC 400 Perpetual Trustee Co Ltd v Gibson [2013] NSWSC 276 Perpetual Trustee Co Ltd v Wright; Re Will of James Paul Gee Cox Junior, Deceased (1987) 9 NSWLR 18 Petrohilos v Hunter (1991) 25 NSWLR 343 Petrucci v Fields [2004] VSC 425 Phillips v James [2014] NSWCA 4 Plunkett v Bull [1915] HCA 14; (1915) 19 CLR 544 Pogorelic v Banovich [2007] WASC 45 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 Porthouse v Bridge [2007] NSWSC 686 Re Buckland, Deceased [1966] VR 404 Re Estate of Hakim; Simons v Permanent Trustee Co Ltd [2005] NSWSC 223 Re Fulop, Deceased (1987) 8 NSWLR 679 Re Hodgson (1886) 31 Ch D 177; [1881-85] All ER Rep 931 Re O'Neil, Deceased [1972] VicRp 35; [1972] VR 327 Re Salmon, Deceased [1981] Ch 167 Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 Ross v Collins [1964] 1 All ER 861; [1964] 1 WLR 425 Russell v NSW Trustee and Guardian [2013] NSWSC 370 Sassoon v Rose [2013] NSWCA 220 Sammut v Kleemann [2012] NSWSC 1030 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Skinner v Frappell [2008] NSWCA 296 Slack v Rogan; Palffy v Rogan [2013] NSWSC 522 Slack-Smith v Slack-Smith [2010] NSWSC 625 Smith v Woodward (Supreme Court (NSW), Macready M, 9 September 1994, unrep) Sophron v The Nominal Defendant [1957] HCA 27; (1957) 96 CLR 469 Spina v Conran Associates Pty Ltd; Spina v M & V Endurance Pty Ltd [2008] NSWSC 326; (2008) 13 BPR 25,435 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stiles v Joseph (Supreme Court (NSW), Macready M, 16 December 1996, unrep) Stott v Cook (1960) 33 ALJR 447 Szypica v O'Beirne [2013] NSWSC 297 Taylor v Farrugia [2009] NSWSC 801 Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572 Thomson v Thomson [2008] VSC 375 Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757 Toth v Graham [2014] NSWSC 393 Tsivinsky v Tsivinsky [1991] NSWCA 269 Twomey v Mcdonald [2012] NSWSC 22 Verzar v Verzar [2012] NSWSC 1380 Verzar v Verzar [2014] NSWCA 45 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Vitek v Estate Homes Pty Ltd [2013] NSWSC 1764 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56 Watson v Foxman (1995) 49 NSWLR 315 Webb v Ryan [2012] VSC 377 Weeks v Hrubala [2008] NSWSC 162 West v Mann [2013] NSWSC 1852 White v Shortall [2006] NSWSC 1379 White & Tulloch v White (1995) 19 Fam LR 696 Wilcox v Wilcox [2012] NSWSC 1138 Zahra v Francica [2009] NSWSC 1206 Zannetides v Spence [2013] NSWSC 2032 Zirkler v McKinnon [2002] NSWSC 285
Texts Cited:	Government Gazette No. 38 of 20 February 2009 J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths)
Category:	Principal judgment
Parties:	Graham Fulton (first Plaintiff) Peter Fulton (second Plaintiff) Douglas Fulton (third Plaintiff) Allan Fulton (first Defendant) Georgina Fulton (second Defendant) Motorcycle Accessory Warehouse Pty Ltd (third Defendant) Lnychstone Pty Ltd (fourth Defendant)
Representation:	Counsel: Mr R Tregenza; Mr P Macarounas (Plaintiffs) Mr C Evatt; Ms L Evans (Defendants) Solicitors: Rowlandson & Co (Plaintiffs) Thomas Booler & Co Lawyers (Defendants)
File Number(s):	2012/100646

Maritime Credit Union	$72,000.00
Passbook Account [411]	$15,862.50
$87,862.50	$87,862.50

Passbook Account [411]	$ 41,505.40
Passbook Account [720]	$ 15,600.00
Cash Investment Account [616]	$468,650.57
$525,755.97	$525,755.97
Total amounts withdrawn	$613,618.47

Asset	Value (est)
Quakers Hill property (joint):	$750,000 - $800,000
Registration No UXX XXX (Allan):	$ 3,000
Registration No VXXX (Allan):	$ 400
Registration No AXXXX (joint):	$ 8,500
ANZ Cheque account (joint):	$ 41
Westpac Business One (Lynchstone):	$ 9,724
Westpac Business Cash (Lynchstone):	$ 3,835
ANZ Business Overdraft (Lynchstone):	$ 788
Stock in trade (Lynchstone):	$138,914

Newcastle Permanent Mortgage (joint):	$298,772
Newcastle Permanent Mortgage (joint):	$236,387
Citibank Credit Card (Georgina):	$ 9,372
BankWest MasterCard (Georgina)	$ 10,974
Westpac MasterCard (Allan):	$ 3,490
ANZ Business One (Lynchstone):	$ 5,860
ANZ Business Overdraft (Lynchstone):	$ 34,211
Australian Taxation Office Debt:	$ 12,312
Creditors stock in trade (Lynchstone):	$ 49,719

Quakers Hill property:	$650,000 - $700,000
Sydney Olympic Park unit:	Purchase Price of $595,000 (deposit of $59,500 paid, with balance due, upon completion, in 2015)
Vehicles:	$18,000
Home furniture, contents and fittings:	$15,000
TWU Superannuation Entitlements	$45,000

Electricity and gas:	$112
Phone and internet charges:	$ 59
Council and water rates:	$ 58
School fees:	$ 69
Credit card repayments:	$295
Home and contents insurance:	$ 27
Vehicle registration and insurance	$ 68
Foxtel:	$ 20
After school sporting activities	$ 13
Medibank Heath Fund	$ 74
Petrol	$ 80
Groceries	$330

Fuel and vehicle registration and insurance:	$137
Gas, water and electricity bills:	$ 60
Phone bill:	$ 27
Home insurance:	$ 32
Council rates:	$ 27
Food:	$150
Pet food:	$ 30
Newspapers and magazines	$ 19
Private Health Insurance:	$ 19

Terranora property:	$480,000
Vehicles:	$82,000
Savings in bank account:	$1,000

Home loan:	$200,000
Business loan:	$40,000
Loan in respect of payment of legal fees:	$24,000

Electricity bills (for home and business):	$1,200 per quarter
Council rates:	$2,000 per year
Telephone bills:	$800 per quarter
Vehicle registration:	$2,300 per year
Water bills:	$500 per year
Fuel:	$170 per week