Gibbs v Scott

[2004] NSWSC 680

CITATION:	Gibbs v Scott [2004] NSWSC 680
HEARING DATE(S):	28/07/2004
JUDGMENT DATE:	29 July 2004
JURISDICTION:	Equity Division
JUDGMENT OF:	Master Macready at 1
DECISION:	Paragraph 52
CATCHWORDS:	Family Provision. Claim by a son of deceased's brother. Estate of deceased left to a close friend of deceased. Legacy ordered for plaintiff.
PARTIES :	Barry Gibbs v Christopher Scott Cameron
FILE NUMBER(S):	SC 4137/2003
COUNSEL:	Mr J. Anderson for plaintiff Mr L. Ellison for defendant
SOLICITORS:	Jackson Smith for plaintiff Hancock Alldis for defendant

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

THURSDAY 29 JULY 2004

4137/03 - BARRY GIBBS v CHRISTOPHER SCOTT CAMERON

JUDGMENT

1 MASTER: This is an application under the Family Provision Act 1992 in respect of the Estate of the late Marcia Mary Gay, who died on 20 November 2002 aged sixty-two years. The deceased was a single person who had no children of her own. The plaintiff is the son of the deceased’s brother, and claims to be an eligible person as he resided with the deceased for a period, and was partly dependent upon her.

2 The defendant is the executor of the estate and is the son of the deceased’s principal beneficiary, who was a friend of the deceased.

3 The last will of the deceased was made on 6 November 2002 and, apart from a gift of some personal items, the estate passed to Angeline Vera Cameron, who the deceased described in her will as her friend.

4 Apart from cash of $2,799.83, the only asset in the estate is the deceased’s house at 1 Station Street, Arncliffe, which the parties agree has a value of $530,000 as at the time of the trial.

5 There are costs involved to date in this matter which will impact upon what is the distributable estate. The plaintiff’s costs are estimated at $35,500, and those of the defendant at $35,000.

6 In the event that the summons is dismissed the defendant will not seek an order for costs against the plaintiff, and this offer is made on the basis that they do not wish to cause the plaintiff, in his difficult personal situation, any further financial stress. However, if the case were dismissed the plaintiff’s financial situation is such that he probably will not be able to pay his own costs.

7 It is necessary to refer to a little of the history of the family in order to set the scene for the matter. The deceased was born in 1940 and her friend, Angeline Vera Cameron, was born on 8 October 1945. The plaintiff, a son of the deceased’s brother, was born on 1 December 1959. In 1966 the plaintiff’s parents moved away from Sydney to Brisbane. The next year Christopher Scott Cameron, the defendant, who is the son of Angeline, was born.

8 It was in 1968 the plaintiff and his younger sister, Linda, came to live with the deceased for about twelve months. The evidence from them is it was about this period, and the mother has given evidence it was for somewhere between six and twelve months.

9 At that stage the plaintiff was nine years of age. They were both enrolled in the local Catholic school and received their education there, presumably for most of the year. In 1970 Angeline Cameron, who had obviously been looking after the children, commenced her employment and she has worked since that time.

10 In 1971 Angeline, her husband and her children, moved into the deceased’s house at Arncliffe and lived there thereafter, except for a period of about three months, when they moved out, in about 1973 or 1974. During 1973 the plaintiff and his sister came to live with the deceased, and also at that stage the Camerons for a period of somewhere between one and two months. After this their parents came back to Sydney and they moved back to live with their parents.

11 In 1980 the deceased made a will in which she left the whole of her estate to Angeline Cameron and her husband. In 1983 the plaintiff’s father committed suicide. After leaving school in 1974-1975 the plaintiff had travelled around Australia fruit picking for about ten years, and from 1983 to 1984 he resumed contact with the deceased.

12 In 1986 the plaintiff moved to Victoria where he met his wife the next year. Back in Sydney in 1989 Christopher Cameron moved out of home, leaving his father and mother living there with the deceased. His father died on 30 October 1990.

13 On 25 May 1991 the plaintiff married Kerry, the mother of his children. The child had been born on 2 August 1988. When she was born she suffered severe brain damage and suffers from cerebral palsy.

14 On 13 September 2002 the deceased was admitted to hospital and she made her last will on 6 November that year. She died on 20 November 2002 aged sixty-two years. The plaintiff offered to pay for the deceased’s funeral but this offer was refused. Some time later he paid some $3,000 for a headstone for the deceased and her mother.

15 The plaintiff will be an eligible person if he was at some time part of the household and partly dependent upon the deceased. There is no issue he was part of the household and, given his age of nine years on the first occasion, and the fact his parents contributed nothing towards his support, he would have been dependent upon the deceased. Clearly, he is an eligible person.

16 However, it is necessary under section 9(1) of the Family Provision Act that the Court shall first determine whether there are factors warranting the making of the application. This expression has been dealt with by courts on a number of occasions. In Re Fulop Deceased (1987) 8 NSWLR 679 at 681 McLelland J, as he then was, described that expression in the following terms:

“Secondly, the subsection appears to be premised upon a distinction between ‘factors which warrant the making of the application’ on the one hand, and circumstances which would justify the making of an order granting the application, on the other; otherwise the subsection would be pointless. This means that in a particular case the Court might determine that there are ‘factors which warrant the making of the application’ within the meaning of the subsection, and yet go on to decide that the application should fail. Since the subsection applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by section 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (of the Wills Probate and Administration Act 1898, section 61B), whereas the classes affected by section 9(1) (former spouses, and some time dependent grandchildren or household members) are as such not generally so regarded. This suggests that the ‘factors’ referred to in the subsection are factors which when added to facts which render the applicant an ‘eligible person’ give him or her status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. That the subsection is directed at a plaintiff’s status as applicant in some such sense as this perhaps finds some support in the statutory direction to the Court, in the event that it determines the preliminary question adversely to the plaintiff, not to go on to determine the application, but ‘refuse to proceed with the determination of the application’.”

17 In Churton v Christian (1988) 13 NSWLR 241, the Court approved this statement. Priestley JA at page 252, after setting out and approving the statement, added:

“To this I would add that although the classes affected by section 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers, as, in their particular circumstances, natural objects of testamentary recognition.”

18 These principles have been applied at first instance for many years. There has been in recent times further attention to this matter in the Court of Appeal in the case of Brown v Faggoter, a decision given on 13 November 1998, which is a decision of Sheller JA, Sheppard AJA and Fitzgerald AJA. Fitzgerald AJA, who seemed to suggest that an application might be warranted if the application has reasonable prospects of success, gave the main judgment. This seems to be a somewhat different and perhaps easier test than that which the Court of Appeal approved in Churton v Christian. I will consider the matter on both bases, given that there may be some flux in the state of the law in this regard.

19 It is necessary to look at the extent and nature of the relationship between the plaintiff and the deceased. As I have earlier indicated in the chronology, when I touched on these matters, there was a period of six months to a year when the plaintiff and his sister lived with the deceased. They speak of their clothes and school uniforms having been purchased and it is plain from the evidence there was absolutely no support by the parents of the plaintiff.

20 They talk about receiving occasionally lollies and treats and obviously took part in the church life in which the deceased was involved. The deceased took them to the movies, which were typical of the movies that one remembers from those days, took them to the zoo, and, for instance, hired musical instruments for the plaintiff to do his music at school.

21 The children were fetched back to Brisbane by their father and he then obviously had an argument with the deceased. What that was about is not clear but it also seems that the plaintiff’s father was a somewhat violent man who had some mental illness problems. Certainly I have the feeling that the family in which the plaintiff and his sister were brought up was somewhat dysfunctional in terms of where they lived, how they were supported and matters of that nature. For instance, when they returned to Brisbane after this period they lived in seven different houses over a period of about two years.

22 Once again there was the living together for one to two months in 1973 with the principal beneficiary, Mrs Cameron, and she spoke of the children arriving, having hitchhiked from Brisbane, having been sent by their parents to live with the deceased. She took them in and looked after them at that time.

23 They went back to their parents when their parents came to Sydney shortly thereafter. Then there was contact over the next year or so. The extent of that contact probably finds the plaintiff visiting the deceased in the house a dozen times, and keeping in touch by telephone as well. It is interesting that the plaintiff left school when he was fifteen years of age, and he recalls having been given a watch by the deceased for his fifteenth birthday, and spending the day at the beach with the deceased.

24 He left school and went off around Australia, spending ten years fruit picking. He came back in 1984 and then had a different job, and he was in touch with the deceased in that period, because he was living back in Sydney. This continued until 1986 when he left and moved to Victoria, where he met his wife, or his future wife, and they had the child Kelly.

25 There was a period of loss of contact once again in 1986-1987 when he was around Australia working, and it is interesting that when Kelly was born the deceased sent a number of packets of expensive cloth nappies, with the plaintiff’s mother, as she was unable to come.

26 There were operations on Kelly. For instance, some years ago Kelly had a steel rod placed in her spine to support her and there was contact with the deceased when she was enquiring about how she was proceeding. Unfortunately the deceased never saw Kelly and that is no doubt because the plaintiff was living in Brisbane and could not get down.

27 He did, over the next period, before she died, see the deceased on about four occasions and also once he heard she was ill he was very concerned and took an interest in the deceased as to how she was proceeding in hospital.

28 A review of this evidence clearly indicates that for six to twelve months in 1988 the deceased was in loco parentis with the plaintiff. The natural parents were providing absolutely no support and had no interest. Thereafter she took an interest in the fortunes of the plaintiff and the child Kelly. This was no doubt prompted by the feelings the deceased felt for the child who she cared for in 1968 to 1973.

29 Bearing in mind she was a single lady and never married, it would have been a particularly important matter to her, namely, the caring and nurturing of the child for upwards of a year. That it was so was demonstrated by the fact that it was the loneliness she felt by 1971 that caused her to invite the Camerons to come and live with her in that year. They were neighbours who lived over the back fence of the deceased’s house, and had lived there for some time before.

30 As Mrs Cameron says, she had contact with the deceased and the deceased would look after her children in the morning and take them to school at other times. This was obviously after Mrs Cameron went back to work. She gives an account in 1971 in these terms. The deceased said to her:

“I am lonely in my house on my own, I am very attached to you and your children. Would you like to move in with me. This would also help you with your job and your finances and with mine.”

31 As a result of that, the family moved in and stayed there thereafter, apart from the three month period I mentioned when they moved out, after an argument in 1973, in order not to intrude.

32 Apart from that period, Mr and Mrs Cameron and their children time stayed with the deceased, and that continued from that time up until the present time. The deceased continued to pay all water and council rates and the Camerons paid household expenses. It is also clear they did maintenance about the property, including painting the house, laying carpet, and they seemed to have supplied the kind of new fixtures and fittings that were needed over the years as time went by.

33 The deceased was on a pension from 1973 and no doubt support of the Camerons helped her keep the home. That is clear on the evidence. However, one factor that has to be taken into account is they paid no rent over this thirty year period and the deceased, as I have said, made council and water rate payments. It was a good arrangement for them financially. Most of what they did in terms of support would have occurred wherever they lived.

34 In the hearing before me reference was made to a decision of Palmer J in Morgan v Stephenson (unreported 2 April 2004). There his Honour was concerned with a situation not too dissimilar from the present case, in which he had to decide whether there were factors warranting the making of the application. At paragraph 36, he summarised the factors which led to him deciding there were no factors warranting in these terms:

“[36] In the present case, I have regard to the following factors:
The evidence establishes that the Plaintiff was financially dependent on the Deceased either wholly or partly for some period of time, possibly not more than a year, ie between 1948 and 1949;


The Plaintiff was a member of the deceased’s household for about six years between 1948 and 1954 in the sense that she lived in the Deceased’s home, but the person who was primarily responsible for her wellbeing during that time was her mother, not the Deceased, because the Deceased, a merchant seaman, was away from home for long periods of time;

From 1954 onwards, ie from about the age of seven years, the Plaintiff was not a member of the Deceased’s household nor does the evidence establish that she was dependent on him, financially or otherwise;

The Plaintiff was a frequent visitor to the Deceased’s home as a child and an occasional visitor as an adult;

The Plaintiff did not at any time undertake any responsibility for the care or wellbeing of the Deceased;

The Deceased’s daughter and the defendant, who are the beneficiaries under his Will, undertook the responsibility for the care and welfare of the Deceased in his later years.

[37] Having regard to those factors, I am not satisfied that the Plaintiff has shown that she would be generally regarded as a natural object of testamentary recognition by the Deceased: Re Fulop (19887) 8 NSWLR 679, at 681.”

35 It is of course a truism that one cannot always compare one thing with another. Each case has to be decided on its own particular facts. In the present case there are a number of important differences, and that is that in the period in 1988 the deceased was clearly standing in loco parentis for that period. She was in charge of the children’s education and had to support them herself and that support was not only financial but also emotional. She had to attend to their upbringing.

36 It is also apparent that the plaintiff has had an attachment to the deceased and has been concerned with her wellbeing. Clearly there are periods when he has been away and has not been in contact but he has continued to revive that contact whenever he has been back in Sydney.

37 The deceased lived with the Camerons as part of their family. No doubt she had their support in her day to day life but, before she was admitted to hospital, she does not seem to have had a long period of illness at home. Thus there was no extensive care for her by the Camerons while she was ill. Importantly in this case the plaintiff is one of the few living blood relatives of the deceased; he is the son of the deceased’s brother.

38 One has to look at the situation of the other persons and the moral obligations which the deceased had at the time. The Camerons were friends, and it was in a sense a mutually beneficial arrangement. But the extent of the provision of the house for some thirty years was certainly something quite generous to the Camerons in terms of what they did not have to provide for themselves.

39 Having regard to the extent of the obligation to them and what we are here concerned with, namely, the obligation to provide out of the house which, it might be remembered, was something which belonged to the deceased and which neither the plaintiff nor the Camerons had contributed to in a capital sense, my view is that the plaintiff is someone who would normally be regarded as a natural object of testamentary beneficence.

40 In those circumstances I am satisfied that there are factors warranting on the traditional basis.

41 In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two stage approach that a Court must take. At page 209 it said:

“The first question is, was the provision (if any) made for the applicant ‘inadequate for (his or her) proper maintenance, education and advancement in life?’ The difference between ‘adequate’ and ‘proper’ and the interrelationship which exists between ‘adequate provision’ and ‘proper maintenance’ et cetera were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance et cetera appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

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

42 It is necessary that I turn to look at the situation of the plaintiff. The plaintiff is married; he is 44 years of age with a severely crippled dependent daughter. He works as a storeman at Woolworths. His assets include household items, such as furniture worth $5,000, and he has no savings. In his affidavit he set out his income at $2,600 per month and there was income by way of pension of $405 which his wife received. Their monthly expenses are $3,225. That position is worsened by about $100 per month as a result of their child now receiving a pension and other entitlements not being available to them.

43 I have already dealt with the relationship between the plaintiff and the deceased. I have recounted the fact that obviously there has been no contribution to the estate by the plaintiff.

44 It is also necessary to consider the situation in life of others having a claim on the deceased’s bounty. In particular, one must consider Mrs Cameron. She is a widow, she has no dependents, and she lives in the deceased’s home. She has bank accounts of $5,500, a Hyundai car and liabilities on various credit cards amounting to $10,524. Her income from her work is in the order of $650 per week. She has had a partial mastectomy and has been diagnosed with cancer of the spine. She is currently receiving chemotherapy and has pain killers but can still attend employment. Fortunately for the moment her position seems to be stable, but it must be a matter of some concern to her and her family. She can still work at the moment.

45 It is clear that she was a good friend of the deceased for many years. There was a close relationship between them for well over thirty years. This was probably of great assistance to the deceased. There has, as I mentioned earlier, been no contribution to the actual cost of the house, which is the main asset in the estate.

46 It is necessary to see how the plaintiff has been left without adequate and proper provision for his maintenance, education and advancement in life. In paragraph 41 of his affidavit he sets out his case in these terms:

“41. Apart from respite care for Kelly and Kelly’s personal needs as set out above, my immediate needs are as follows:

(a) Outstanding payments for car loan $12,500
(b) Secure and permanent housing

(deposit for home) $20,000

approx

(c) Specially fitted vehicle to cater

for Kelly’s needs $45,000

(d) New dentures – Barry $ 1,000

(e) New glasses – Kerry $ 600

(f) Items for Kelly:

Computer, interactive softwear
used at school, Special pads for

accessing computer $ 2,000

New furniture for bedroom $ 2,000

Mattress $ 600

New curtains and blinds $ 1,200

Above ground swimming pool

(muscular therapy) $ 5,000

(g) Holiday to Gold Coast (2 weeks

per year) $ 1,000

(h) New lawn mower and yard

maintenance $ 1,000

(i) New TV, television stand, DVD

player and Playstation 2

(for Kelly) $ 2,000

(j) New clothes for Barry, Kerry

and Kelly $ 1,000

$94,900”

47 It is necessary to look at this claim in the context of the limited role that the plaintiff had in the deceased’s life. Indeed, it is important not to consider the claim as though it were one made by a son of the deceased. In these circumstances it is quite inappropriate for there to be provision for something to enable the plaintiff to perhaps start to purchase a house. What he really is needing is something to relieve his present financial situation. Some capital sum will enable, for instance, car loans to be paid and improve his income situation quite substantially.

48 It will be noted from matters that I have quoted above from paragraph 41 that there are a number of things which attach to the daughter Kelly. The plaintiff is legally and morally obliged to maintain his daughter and to the extent that these needs are needs for his daughter, they really are in a sense his own needs because of his legal and moral obligations.

49 In my view I think it is appropriate that he have a legacy in the sum of $75,000. The estate has been distributed under section 24, and on that basis, I think provision should be made to designate items as notional estate. In doing that it is necessary for the Court to have regard to section 27 of the Family Provision Act. Section 27 is in these terms:

“(1) On an application in relation to a deceased person, the Court shall not make an order designating property as notional estate of the deceased person unless it has considered:

(a) the importance of not interfering with reasonable expectations in relation to property;

(b) the substantial justice and merits involved in making or refusing to make the order; and

(c) any other matter which it considers relevant in the circumstances.

(2) In determining what property should be designated as notional estate of a deceased person, the Court shall have regard to:

(a) the value and nature of property the subject of any relevant prescribed transaction or distribution from the estate of the deceased person;

(b) where, in relation to any such prescribed transaction, consideration was given, the value and nature of the consideration;

(c) any changes over the time which has elapsed since any such prescribed transaction was entered into, any such distribution was made or any such consideration was given in the value of property of the same nature as the property the subject of the prescribed transaction, the distribution or the consideration, as the case may be;

(d) whether property of the same nature as the property the subject of any such prescribed transaction, any such distribution or any such consideration could, during the time which has elapsed since the prescribed transaction was entered into, the distribution was made or the consideration was given, as the case may be, have been applied so as to produce income; and

(e) any other matter which it considers relevant in the circumstances.”

50 In considering the matters in subsection (1) there are no promises which have been made by the deceased to the Camerons and, accordingly, there is on reasonable expectation which might be interfered with by designation of the property as notional estate. Clearly this would cause inconvenience to the beneficiary, but the problem is there is already in this matter the imposition of costs, not the least of which are the defendant’s own costs.

51 She does have an ability to borrow without any security to the sum of $20,000 and no doubt she could borrow further, using the security of the property if she wished to pay out the amount of the judgment and costs. Alternatively, the property could be sold and she could have some other property in which to live.

52 Accordingly, it seems to me there is no reason why I should not designate the house as notional property. Accordingly, the orders I make are as follows:

1. I order the plaintiff receive a legacy out of the notional estate of the deceased in the sum of $75,000.
2. I designate the property at 1 Station Street, Arncliffe as notional estate to the extent necessary to satisfy the legacy in order 1 and the order for the payment of costs hereunder.
3. I order the plaintiff’s costs on a party and party basis, and the defendant’s costs on an indemnity basis be paid or retained out of the estate of the deceased.
4. I order that interest will run on the legacy at the expiration of three months from the date hereof at the rate appropriate under the Wills and Probate Administration Act 1898 .

(Ms Pang sought an order for indemnity costs stating the plaintiff had made an offer of compromise on 2 December 2003)

53 It is noted that there is an offer to settle the claim made by the plaintiff on 2 December 2003 in which the plaintiff was prepared to accept a sum of $40,000 and costs. The plaintiff has done better than that and I vary the costs order I have made to provide that the plaintiff’s costs on and from 15 December 2003 should be paid on an indemnity basis.

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Last Modified: 08/03/2004