Goldberg v Landerer - [2010] NSWSC 1431

No judgment structure available for this case.

CITATION: Goldberg v Landerer; Kennedy v Landerer [2010] NSWSC 1431

HEARING DATE(S): 11-14 October 2010

JUDGMENT DATE :
10 December 2010

JURISDICTION: Equity Division

JUDGMENT OF: Rein J

DECISION: In proceedings 2008/281185, plaintiff to receive a provision of $850,000 in lieu of the provision of $50,000.
In proceedings 2008/281750, plaintiff to receive a life estate in a one-bedroom unit not exceeding $400,000 in value.
Matter stood over for orders to be prepared based upon the conclusions contained in the reasons for judgment.

CATCHWORDS: SUCCESSION - family provision and maintenance - failure by testator to make sufficient provision for applicants - principles upon which relief granted - application by children - where testator's adult daughter and son each received bequests of $50,000 from an estate worth approximately $5 million and sole residuary beneficiary (testator's wife) has significant other assets

LEGISLATION CITED: Family Provision Act 1982 (NSW)
Succession Act 2006 (NSW)

CATEGORY: Principal judgment

CASES CITED: Alexander v Jansson [2010] NSWCA 176
Dolman v Palmer [2005] NSWCA 361
Foley v Ellis [2008] NSWCA 288
Ford v Simes [2009] NSWCA 351
Nicholls v Hall [2007] NSWCA 356
Re Fulop (1987) 8 NSWLR 679
Singer v Berghouse (No. 2) (1994) 181 CLR 201
Stewart v McDougall (unreported, Supreme Court of New South Wales, Young J, 19 November 1987)
Taylor v Farrugia [2009] NSWSC 801
Tchadovitch v Tchadovitch [2010] NSWCA 316
Vigolo v Bostin (2005) 221 CLR 191
Walker v Walker [1996] NSWSC 188

PARTIES:
In proceedings 2008/281185:
Judy Goldberg (plaintiff)
John Landerer (defendant)
In proceedings 2008/281750:
Rony Kennedy (plaintiff)
John Landerer (defendant)

FILE NUMBER(S): SC 2008/281185; 2008/281750

COUNSEL:
In proceedings 2008/281185:
V R W Gray (plaintiff)
M S Willmott SC, P J Livingstone (defendant)
In proceedings 2008/281750:
D M Coulton (plaintiff)
M S Willmott SC, P J Livingstone (defendant)

SOLICITORS:
In proceedings 2008/281185:
D S M Austin Solicitor (plaintiff)
Les Pozniak Landerer & Company (defendant)
In proceedings 2008/281750:
George Sten & Co. (plaintiff)
Les Pozniak Landerer & Company (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Rein J

Date of Hearing: 11-14 October 2010
Date of Judgment: 10 December 2010

2008/281185 Judy Goldberg v John Landerer
2008/281750 Rony Kennedy v John Landerer

JUDGMENT

1 REIN J: These proceedings are brought by Judy Goldberg (“Judy”) and Rony Kennedy (“Rony”), who are the two children of the marriage of the late Louis Kennedy and the late Alice Kennedy (“Alice”), against the estate of the late Louis Kennedy (“the testator”), who died on 4 January 2008. The testator and Alice Kennedy divorced in 1973.

2 By his will of 16 December 1998, the testator left a $50,000 bequest to each of Judy and Rony, but left the balance of his estate to his widow, his second wife, Martha Kennedy (“Martha”). The testator married Martha in 1976, when he was 50 years old and Martha was 21 years old. Louis and Martha have two children, James Kennedy (“James”) and Justin Kennedy (“Justin”), now aged 31 and 26 respectively. Judy is now 61 and Rony is now 57.

3 Judy and Rony contend that the bequest of $50,000 to each of them is inadequate and that provision should be made out of the estate for their “maintenance, education or advancement in life” in accordance with s 7 of the Family Provision Act 1982 (NSW) (“FPA”). There are a number of matters which are not in dispute:

Succession Act 2006 (NSW)

4 Section 9(2) and (3) of the FPA provides:

5 The will (see pages 143-144 of Exhibit J1) contains the following clause 3(b):

“ I WISH TO RECORD the reasons why I have only left to my children RONALD KENNEDY and JUDITH GOLDBERG the sum of FIFTY THOUSAND DOLLARS ($50,000.00) each:
(i) since my divorce from my first wife some 20 years ago, my children from my first marriage have discounted me and the only times they have approached me is when they have needed financial assistance;
(ii) I have assisted both my son and daughter financially notwithstanding their disgusting behaviour towards me and yet they have shown me no care, respect or friendship nor any interest in my health or well being; their only interest being as to how I could assist them financially and what I could do for them financially;
(iii) my son has been abusive and violent towards me and my wife. His behaviour was so bad that I was obliged to take out an apprehended violence order against him;
(iv) my son sued me for money which alleged I owed him. I was in such a bad state of health that I settled with him. This cost me $85,000 including fees. I do not believe he was entitled to any money but I just paid to save my health;
(v) my daughter has also been a big disappointment to me. For many years she did not even talk to me. The only exception was when she needed money. I have given her financial assistance for many years notwithstanding her intolerable behaviour towards me;
(v) my daughter has been abusive to me and my wife.

6 At the time of making his will (of 16 December 1998), the testator made a statement recording the reasons that he had left Judy the sum of $50,000. The statement contains the following (see pages 235-236 of Exhibit J3):

‘You are an idiot marrying that woman, she is nothing but a gold digger, we do not want that woman in our house.’

4. During the course of my daughter and son-in-law’s marriage I was frequently asked to be guarantor for their loans and on many occasions I received demands on behalf of finance companies seeking indemnity from me for loans to my daughter and son-in-law which were the subject of default.

‘You are too old to be having children, it is absolutely disgusting at your age to be bringing children into the World and you will be dead before the child grows up.’

6. Prior to 1978 I did not have a will and in 1978 I was involved in a serious car accident and whilst in hospital in a critical condition I am now aware that my daughter and son-in-law approached my solicitor, John Landerer, and my accountant, Graham Simos, to enquire if they could remove Martha Kennedy who was then pregnant as secretary of the business known as L K Jewellery and take over the business. I was unconscious for about six (6) weeks in a critical condition. After my recovery from this serious car accident my daughter and son-in-law did not speak to me for approximately 10 years.

7. In approximately 1990, I recall that a court summons was served on the business premises known as L K Jewellery in Double Bay seeking the sum of about $35,000.00 based on a personal guarantee I had given on behalf of Judy Goldberg in approximately 1977. At that time the Summons was served, I had believed that I had paid out on all personal guarantees because I had paid previous debts of Judy Goldberg’s based on the personal guarantee and I was not aware that my daughter had continued to involve me in liability for her business debts. To resolve the issue, I ended up sending a cheque for approximately $35,000.00 to S H Lock the mercantile agents on behalf of the creditor. I cannot recall the name of the creditor.

8. Approximately three (3) months ago I was forced to pay $12,000.00 to the ANZ Bank in Double Bay as a consequence of difficulties Judy Goldberg was experiencing in running her gift shop business. This was another personal guarantee I had given on behalf of my daughter to assist her in developing a new business, consequent upon her separation from Clive Richard, her husband. In addition to the $12,000.00 I was required to pay under the personal guarantee I also continued to pay $600.00 per month to Judy Goldberg to assist with the running costs of the business. I have continued paying $600.00 per month for the past 19 months. This arrangement still has another four (4) months to go and this was done in order to assist my daughter from her financial circumstances consequent upon her separation from her husband.”

7 At the same time, the testator made a similar statement in respect of the bequest of $50,000 to Rony (see pages 112-115 of Exhibit J1):

“2. Since my divorce from my first wife more than 20 years ago, Ronald Kennedy has not had any social contact with me and the only times that Ronald Kennedy has approached me is when he needed financial assistance.

3. My son Ronald Kennedy was expelled from Scotts [sic] College, Sydney for stealing money from telephone boxes during course [sic] of 1968. Subsequent to that, he attended Vaucluse High School for one (1) year, but to the best of my recollection he did not attain any academic qualifications of any sort.

‘Ronald Kennedy owes Diners Club $3,000.00.’

The conversation to the best of my recollection then concluded. At that time, because of my concern for the welfare of my son I paid the account with Diners Club.

5. In order to try and assist Ronald Kennedy in business I gave personal guarantees on Ronald Kennedy’s behalf to both the National Australia Bank and Westpac Banking Corporation in order that Ronald Kennedy might be provided with working capital for various business enterprises.

‘I am in debt to the extent of approximately $50,000.00. The business had failed and the banks are looking to you as my guarantor.’

7. I recall also that my former wife also guaranteed my son Ronald Kennedy’s debts and lost approximately $140,000.00 when personal guarantees she had given on behalf of Ronald Kennedy were called upon.

‘I’m going to start a new life in Israel and open a successful business. You will not be ashamed of my [sic] any longer.’

‘Your son has not paid the hotel bill and we are physically preventing him from leaving until the bill is paid.’

‘I am in debt I need your help.’

‘I can not help you any further I have done all that I can for you.’

‘You will be very sorry if you do not give my money.’

‘I am again in debt, I need your help.’

‘I have done all that I can for you.’

‘I want money. You have not looked after me properly.’

“I have given you more than enough money and at your age you should be able to support yourself.’

‘You are miserable and that woman you have married wants to take our money away! You are my father and you have to give me money. It is your duty. Your bitch wife has a Mercedes car, she wants me to have nothing, you will be very sorry all of you if you don’t give me money.’

12. In 1994, my wife, Martha Kennedy was the subject of verbal abuse from my son, Ronald Kennedy and was forced to go to Court to obtain an apprehended violence order against Ronald Kennedy. Annexed hereto and marked “A” are true copies of the Apprehended Violence Order made in the Local Court of New South Wales at Waverton on 29 September 1994.

13. Following the granting of the apprehended violence order on 29 September 1994 against my son Ronald Kennedy my wife Martha Kennedy had some peace and were [sic] not contacted by my son for several years either directly or by telephone.

14. During the three (3) year period of the Apprehended Violence Order referred to in paragraph 12, even though there were no further direct approaches by Ronald Kennedy asking either my wife, Martha Kennedy or myself, I was, however, sued by Ronald Kennedy for money that he said was allegedly owing to him by me in relation to a business enterprise that Ronald Kennedy had been involved in and into which I had made an investment. At the time I was seriously ill and could not face the prospect of [a] court case and in those circumstances I settled the dispute with my son Ronald Kennedy. To the best of my recollection the total cost of settling the proceedings including legal fees was $85,000.00. I cannot recall how much money was paid to Ronald Kennedy.”

8 By a document dated 13 February 2004 (see page 141 of Exhibit J1), the testator affirmed his approach and stated:

“My children have continued to show no care for me. I have been very ill over a period of time and my children have completely abandoned me. The only time I hear from them is when they need money.”

9 Mr V Gray of counsel appeared for Judy, Ms D Coulton of counsel appeared for Rony, and Mr M Willmott SC appeared with Mr P Livingstone of counsel for the executor, Mr Landerer.

Background matters

10 The testator, whilst married to his first wife, Alice, had been successful in a handbag business and had been able to purchase business premises in Double Bay using a corporate vehicle, Kennedy Holdings and Property Management Pty Limited. He embarked upon some other ventures, none of which were successful and as a result of the failure of which his company was compelled to sell half of its interest in the Double Bay premises to an unrelated corporate third party. He then established a company to sell jewellery and watches, LK Jewellery Investments (Wholesale) Pty Limited (“LK Jewellery”), which at the outset or soon after its establishment involved Martha.

11 The testator divorced Alice in 1973 and married Martha in 1976. Before the marriage, Martha commenced working in the jewellery business, and she was heavily involved in it when the testator was seriously injured in a motor accident in 1978. It appeared that the testator might not survive the accident, but he survived, albeit with some further medical complications.

12 In 1997, the testator was confined to a wheelchair, and for the last 11 years of his life, he required an increasing level of care and assistance. Martha provided him with assistance and managed the care provided to him by others. There is no dispute that she concerned herself with his welfare in an appropriate way until his death. She deposed to having assisted her husband with washing and toileting in his later years: see paragraph 14 of Martha’s first affidavit.

13 It is clear from the evidence that Martha, whose family had been involved in retail sales and who herself had some experience in that before her marriage to the testator, has been able to manage the jewellery business with considerable ability and has achieved success. The business now employs between 25 and 28 people, and Martha does all of the buying and setting of selling prices: see T203. The testator used his share in the Double Bay property to obtain finance for stock at the commencement of the business (see T224-225), but it is apparent that since 1978, Martha has played an important role in the business, and it would seem that since 1998 (at least) she has been in control of the business.

14 In addition to the two companies, the testator also established a trust known as the Louis Kennedy Trust (“the Trust”). The Trust is a discretionary trust, and the prospective beneficiaries of the Trust are the testator, Martha, and their children and grandchildren: see Exhibit F. Martha is the trustee and has absolute discretion to remove other beneficiaries as objects of the Trust, although she has given evidence that she does not intend to do so: see T245.35-36. It is agreed that the Trust has assets of approximately $4.5 million.

15 Martha draws considerable monies (in excess of $600,000) on an annual basis from LK Jewellery and appears to have a luxurious lifestyle. She also has superannuation entitlements worth approximately $700,000, which have arisen out of Martha’s work for the jewellery business.

Judy

16 Judy matriculated, but has no tertiary education. She has two adult sons, Daniel and Alexander, and an adult daughter, Vanessa. Alexander, the youngest child, is 31 years old. Judy is employed as a sales assistant on a part-time basis at a store in Bondi Junction. She has some serious medical problems, which have required hospitalisation, and she requires medication. She was made bankrupt on her own application in 2006 and discharged from bankruptcy in September 2009. She lives in rented accommodation in Bondi Junction. She has been a named beneficiary under two other wills. Her uncle, Mr George Rappaport, named her as such, but the evidence is that she will receive nothing out of that estate: see the affidavit of her solicitor, Mr David Austin, sworn 12 October 2010. She is also a named beneficiary under the will of Alice Kennedy, who died last year. Judy, who managed her late mother’s affairs, says that there are no assets in Alice’s estate, and for that reason, she understood that there was no necessity for her to obtain probate of the will (I infer that she was the executor named in Alice’s will).

17 Alice was confined to a nursing home in the few years before her death, and Judy deposed to having contributed money to her mother’s upkeep.

18 It seems to be uncontested that three months before his death, the testator gave Judy a cheque for $9,000. On Judy’s evidence, the gift was initiated by the testator and followed her having been treated for cancer: see paragraph 9(f) of Judy’s affidavit sworn 11 June 2009. Judy said that she bought a plasma television, shoes, things for her bedroom, and other items of this nature for herself: see T61.17-20. When she received that money and also when she received the $50,000 from the estate, she was an undischarged bankrupt. It is accepted on her behalf that she has a legal obligation to repay the total of $59,000 to her former trustee in bankruptcy.

19 Judy drives a motor vehicle which is leased for her by her sons.

20 Judy received $7,400 from her uncle, George Rappaport, prior to the testator’s death. She thought that this was organised by her father, and it seemed not to be in dispute that it was.

21 Judy seeks an amount of approximately $800,000 for a two-bedroom unit in Bondi Junction and a lump sum of $400,000: see T269.5-9, where in closing submissions Mr Gray specified the amounts.

22 Judy ran a retail giftware business for many years, but it closed with her owing money to the Commonwealth Bank. In her evidence, she said that the debt was approximately $20,000, but it seems that it was closer to $50,000, and it is that debt upon which she made herself bankrupt.

23 Judy gave evidence of her need for (and cost of) dental treatment in an amount of $40,000.

Rony

24 Rony is currently unemployed. He receives a disability pension. He claims to suffer from depression, but no medical evidence was tendered to establish that he is medically unfit for work. He did work for a few days at a restaurant two years ago, but he had a dispute with the manager and was dismissed: see his evidence at T114 and 146. He has no children and is not married.

25 Rony did not matriculate from school and has had no tertiary education. In his younger years, he worked in his mother’s retail handbag store and was involved with nightclubs (Pips, Studio 66 and Williams), and he claims to have had some success in these endeavours, a matter to which I shall return. Rony says that his father did not provide any funds for these ventures and told him “I’d rather throw money into the harbour” when Rony asked him for a loan of $5,000 for Pips: see paragraph 23 of Rony’s affidavit sworn 25 November 2008. Rony helped to establish a nightclub called “Lombardos” in Perth and attempted to set up a nightclub called “Cocos” in Surfers Paradise. In the mid-1990s, he had a short involvement with a restaurant known as “Nox on Knox” (“Nox”). His departure from Nox is a matter of controversy in the proceedings, and I shall return to this topic. After Nox, Rony was involved in a number of business ventures which failed, and he was made bankrupt in 2004. Since 2004, he has not (other than for the two days two years ago mentioned above) had any gainful employment or derived any income from any source other than Centrelink.

26 Rony also seeks an amount from the estate which will enable him to purchase a property for between $600,000 and $800,000 and a lump sum of $200,000: see T282. In his affidavit sworn 25 November 2008 (see paragraphs 69 and 70), he said that he would like to establish a boat charter business (costing $225,000 for a half share) and to buy a coffee shop business “costing about $400,000”, but no material was put forward to justify those claims. He later indicated that he no longer wished to pursue either of these ideas, but rather wished to establish a photography business and to be involved in a gold vending machine business, the cost of which was not adequately identified: see paragraphs 16 and 19 of Rony’s affidavit sworn 5 October 2010 and T143-145. Ms Coulton did not press any claim based on these business ventures.

27 Rony’s evidence at paragraphs 13 and 14 of his affidavit sworn 5 October 2010 point to him living beyond his limited means, and he now lives in the spare room of a friend’s unit.

The value of the estate

28 Since the net value of the estate is nearly $5 million (after allowances for these proceedings), a bequest of $50,000 to each of Judy and Rony is, in total, approximately two percent of the estate. Martha not only has the residue of the estate, but she also has the matrimonial home in Bellevue Hill. The house, whilst encumbered, is only encumbered for the purposes of the business. Martha also has access to the Trust and superannuation monies derived from the jewellery business, and she already owns half of LK Jewellery. She has played a significant role in the success and maintenance of the business.

The Family Provision Act

29 The FPA requires the Court, first, to be satisfied that the claimant is an “eligible person”, and secondly, to be satisfied that there are factors which warrant the making of the application having regard to all of the circumstances of the case.

30 The FPA (and its analogues) has been the subject of much judicial consideration, very likely because of the vagueness of terms such as “proper” and “adequate”. The High Court has outlined the approach to be taken in Singer v Berghouse (No. 2) (1994) 181 CLR 201 and in Vigolo v Bostin (2005) 221 CLR 191, and the New South Wales Court of Appeal has restated the position in a number of cases, such as Dolman v Palmer [2005] NSWCA 361 and Ford v Simes [2009] NSWCA 351: see also the decision of Brereton J in Taylor v Farrugia [2009] NSWSC 801.

31 There are three questions that the Court is required to address (leaving aside the question of notional estate, which does not arise in this case):

32 Section 9(3) of the FPA specifies the matters which the Court may take into consideration in determining the adequacy or otherwise of the provision:

33 The reference in the third category to “circumstances existing before and after the death of the testator” links to the requirement that the Court must determine the matter as at the date of the hearing and not the date of the will, or even the date of the testator’s death. “Contributions” includes financial and non-financial benefits to the welfare of the testator.

34 It will be observed that categories (2), (3) and (4) are very wide in scope. I shall endeavour to identify the “circumstances” and “matters” which have been considered relevant to a determination, including matters relevant to contributions:

Vigolo

35 The judgment in Vigolo reflects varying views on the question of “moral claims”. It was accepted by all members of the Court that it is the legislation itself that must govern the matters to which regard must be had, but when the legislation itself refers to “character and conduct”, “circumstances” and “any other matter”, there is very significant scope for many different considerations.

Character and conduct of a claimant

36 The FPA specifically provides for the character and conduct of a claimant as matters to be taken into account. The FPA does not limit the consideration of “conduct” to conduct towards the testator. Reprehensible conduct of a general kind would appear to be relevant, because a testator might quite reasonably feel indisposed to provide any benefits to the claimant on that basis. Hostility, abuse, and even violence towards the testator would certainly appear to be relevant, but abuse and violence towards other family members would also be relevant, in my view. Cessation of contact over an extended period and a general lack of care and attention to the needs of the testator are relevant. It has been accepted by the Court of Appeal that estrangement does not of and by itself necessarily preclude an award, but it is clearly relevant: see Palmer and Ford.

37 There is a strand in some of the cases which indicates that it is appropriate for the Court to consider the reasons for any hostility or otherwise potentially disentitling conduct on the part of a claimant: see Foley v Ellis [2008] NSWCA 288. If the Court regards the reaction of the testator as extreme or not entirely justified, it may treat the conduct as not being disentitling or reduce the significance of the otherwise disentitling conduct.

38 The hostility of a claimant to values and institutions held dear by a testator raises an interesting question, which fortunately does not need to be investigated here. This might be framed as conduct thought by the testator to be reprehensible, but not necessarily so viewed by the wider community. Renunciation of a religion or adoption of a political philosophy antithetical to a testator’s beliefs may be relevant conduct which a testator is entitled to take into account in reducing his or her generosity towards a claimant.

39 The Court of Appeal has accepted that the FPA is an intrusion into the freedom of testators to leave property to whomever they wish and that:

Ford

Alexander v Jansson

Re Fulop

Stewart v McDougall

Walker v Walker

Palmer

“I reject the approach that all an applicant under this Act has to do is to prove that he or she is an eligible person and that he or she reasonably needs more financial assistance. The cases show that there must be a full investigation into all the facts and circumstances of the matter to see whether the community would expect that a person in the plight of this testator ought to have made provision or further provision for the applicant. Although it is not much mentioned in recent decisions, the older authorities often mention the fact that the Act did not intend to affect freedom of testation except in so far as that freedom had to be abridged in order to ensure that people made proper provision for those who were dependent on them financially or morally; see for instance Scales’ case at p 19.”

40 Given the multiplicity and width of factors which are to be taken into account, it follows that where the Court is persuaded that the provision in the will is inadequate in respect of two or more claimants, very different awards may be made to each of them.

41 The executor (on behalf of the estate) accepts that Judy and Rony are eligible persons. He also accepts that inadequate provision has been made for the claimants in the will by the bequests of $50,000. Those concessions having been made, it is only the third question identified in [31] above that needs to be answered.

Witnesses

42 In Judy’s case, in addition to affidavits of Judy sworn 11 June 2009 and 21 September 2010, affidavits of Vanessa Dixon (Judy’s daughter) and Alexander Goldberg (Judy’s son) were read. Also read was an affidavit of Ms Bateman, a forensic accountant, sworn 29 September 2010.

43 In Rony’s case, in addition to affidavits of Rony sworn 25 November 2008 and 5 October 2010, the affidavit of Ms Bateman was also relied on.

44 In the executor’s case were read affidavits of Mr John Landerer sworn 6 March 2009 and 1 October 2010, affidavits of Martha sworn 29 May 2009, 1 June 2009 and 25 June 2009, and an affidavit of Mrs Mercedes Ureta sworn 29 May 2009. Mrs Ureta is a housekeeper who was employed by the testator and Martha.

45 There was no challenge to the credibility or reliability of Mr Landerer or Mrs Ureta.

46 There were challenges to the credibility and reliability of Judy and Rony.

Judy’s credit

47 So far as Judy is concerned, I thought that she was a poor witness. She constantly interrupted questions and answered questions of both Mr Willmott and myself before they had been completed. She gave inconsistent answers within seconds of another answer: see T48.19-32, T49, T50.22-39, T51.44-52.9, T64.29-39, T79-80, T81.7-23, T82.1-18, and T84.47-85.11. was unable to deal with contradictions when they were exposed. She was shown to have included as liabilities amounts that were not correct, and she answered that she had told her solicitors about the matters that needed correction: see T53. At one point, she denied that she had said words to the effect described by the testator in a statutory declaration he made at the time of his will, but then admitted that she had said words to that effect: see T88-89.

48 Judy was an undischarged bankrupt when she received $9,000 from the testator shortly before his death and $50,000 from the estate after his death. Judy did not inform her trustee in bankruptcy of these receipts, and she denied that she knew that she was required to do so or that she had been informed in writing that she was required to do so. Exhibit 1 is a copy of a letter from her trustee in bankruptcy to her, and I find her assertion that she never saw it (see T61-64) difficult to accept. I also found her assertion that she had no interest or involvement in her husband’s discussions with Martha at the time of the testator’s accident (see T77-78) difficult to believe, and I note that Mr Gray submitted that Judy was entitled to have a concern about the fate of the business.

49 Mr Gray sought to ameliorate or expiate the effect of the matters to which I have referred. He submitted that:

(5) her evidence that her position had not changed was not shown to be false, because her overall position remained one where expenses exceeded income.

50 I accept that Judy has, in the past, not been well, that many of the matters in question concern times long ago, and that Judy is an unsophisticated witness, but none of these matters are sufficient (individually or together) to overcome the negative aspects of her credibility. So far as [49](4) is concerned, I think that Judy was deliberately seeking to boost her case of financial need, but as I note below, I do not think that on the evidence there can be much doubt that her assets and income are very limited.

Rony’s credit

51 In relation to Rony’s credit, attention was drawn to:

52 So far as [51](1) and (3) are concerned, the fact that he received $80,000 from Pips without putting any capital in is unlikely, but not so implausible as to establish that his denial that his father assisted him must be false.

53 So far as [51](2) is concerned, I think that this supports the contention that the testator did provide assistance to Rony and affects Rony’s credit.

54 In relation to [51](4), Rony accused his father of stealing the Nox business from him (see T123-124), and he claimed in his first affidavit that he was promised 25 percent of the shares in Lonsted by the Japanese owners of the company once the business was up and running. No document was produced to support that allegation, and a letter from his solicitors at the time (see page 71 of Exhibit J1) made no reference to any such promise or claim, although it did seek $91,000 for Rony’s past efforts “in establishin the…restaurant business, in obtaining the liquor licence and for securing a fifteen year lease at a very favourable rental”. It appears from page 76 of Exhibit J1 that a counter-offer was made, but Rony’s solicitor stated that Rony “is not able to accept this offer because it would not enable him to establish a new way of life for himself and a new business at Surfers Paradise”. Rony sought payment of a lump sum of $30,000 and $500 per week for four years: see page 76 of Exhibit J1. In October 1993, a deed was prepared with two lump sums of $10,000 and $500 per week for five years incorporated. It is Rony’s evidence that although his father never signed the deed, he did agree to pay that amount. In his first affidavit, he said that his father had orally agreed to pay $20,00 and $500 per week for five years “in lieu of your prospective right to the 25 percent of the shares in the company”: see paragraph 37 of Rony’s affidavit sworn 25 November 2008. There is no evidence of any agreement between Rony and the directors of Lonsted in respect of any proposed shareholding by Rony in Lonsted. In his first affidavit, Rony also said that his father did not pay him the lump sum in the Statement of Claim filed on his behalf in the District Court proceedings. The Statement of Claim acknowledged receipt of a payment of $10,000 and three further payments totalling $14,000, which payments Rony said he could not recall: see T130-131.

55 The evidence does not support Rony’s assertion that he had any claim against the testator or Lonsted in respect of shares, and it is suggestive of an attempt originally to obtain assistance from the testator to fund a lifestyle, rather than being directly based on any legal claim against the testator. Whether Rony had a claim based upon the alleged subsequent agreement to pay $150,000 is obscure, and that claim, it is agreed, was settled (see pages 96-98 of Exhibit J1)(the testator saying that he was seriously ill and could not face the prospect of a court case). Rony agreed in cross-examination that the settlement yielded to him more than he had stated in paragraph 39 of his first affidavit: see T138-139.

56 In addition to these matters, I found Rony’s denial that he had abused Martha’s parents and the testator as difficult to accept, given that he consented to orders preventing him from carrying out such acts in the future.

57 Cross-examination established that the proposed photography and gold vending machine businesses for which Rony was seeking funding were unrealistic and appear to have been included to justify a substantial award.

58 These matters lead me to doubt Rony’s veracity and to think that his evidence should be approached with considerable caution.

Martha’s credit

59 Although nothing was said as to Martha’s credit in submissions, the cross-examination implied that part of the plaintiffs’ case was that Martha’s evidence is, in some limited respects, false.

60 I thought that overall Martha was a forthright, honest witness. She was prepared to make admissions against her interest. Whenever her testimony is in conflict with Judy’s or Rony’s evidence, I would regard Martha’s as more reliable.

Hostility to Martha

61 Judy admitted that she regarded Martha as a “gold digger” (see T90.1-6), and she, in effect, conceded that she had told the testator of her view of Martha and that he was “an idiot” for marrying Martha: see paragraph 2 of the testator’s statement. She admitted that she excluded Martha from the house (see paragraph 3 of the testator’s statement), but she said that this was in the context of family occasions when her mother was visiting, which I think is unlikely to be a full explanation. Judy admitted that she had said something to her father meaning that his having a child by Martha was “disgusting”: see paragraph 5 of the testator’s statement and see T89.

62 It is not uncommon for children to be hostile to the concept of a second marriage of one of their parents to another person. This may well be exacerbated when the new object of affection is similar in age to the children of the first marriage. I do not think that Judy’s response, particularly given her perception that her father had treated her mother shabbily, was surprising.

63 I find that Judy said to the testator words to the following effect:

“You are an idiot marrying that woman, she is nothing but a gold digger, we do not want that woman in our house.”

and that in 1978, when Martha became pregnant, Judy said to him words to the effect:

“You are too old to be having children, it is absolutely disgusting at your age to be bringing children into the world and you will be dead before the child grows up.”

64 The comments made by Judy were no doubt hurtful to the testator. I think it is clear that there was considerable hostility from Judy to Martha and to the marriage, and it seems on the balance of probabilities that the hostility, which had become mutual, did not abate: see Martha’s third affidavit and see T263.21-24. I think that the testator was entitled to take into account the hostility over a long period of time.

The 1978 incident

65 In paragraph 6 of his statement, the testator asserts that whilst he was in hospital in a critical condition in 1978, Judy and her ex-husband, Richard Goldberg (“Richard”), approached Mr Landerer and his accountant, Graham Simos, to enquire if they could remove Martha from LK Jewellery and take over the business.

66 No evidence was led on this incident from Mr Landerer (who gave evidence on other topics) or from Mr Simos. Martha gave evidence of what occurred (see T188.21-189.34 and T190.3-39):

“Q. I will just deal with one point that arose in relation to an objection taken by Mr Gray to paragraph 12 of your affidavit sworn 25 June. You met Judy Goldberg's husband Richard Goldberg on various times?
A. Various times. Not a lot, not a lot.

Q. Do you recall an incident when you saw him in the offices in Kennedy House at Double Bay sometime in late 1978 or early 79?
A. Yes.

Q. And when he arrived there did he arrive there by himself or was he accompanied by anybody?
A. To my knowledge he was accompanied by Judy and Rony Kennedy.

Q. And did he say something to you?
A. He was sitting in Louis’s chair - I had come back from the hospital. He was sitting in Louis's chair and he said we need to talk.

Q. This was Richard Goldberg?
A. Yes.

Q. What else did he say?
A. What do we need to talk about? We need to talk about the business.

Q. That's what he said, "We need to talk about the business"?
A. And I said to him there is nothing to talk about until Louis gets better and that was the end of it. Then they left. I had a phone call, to my knowledge, from John Landerer. He called me.

Q. You can't tell us what Mr Landerer said, but you had a call from Mr Landerer, did you?
A. Yes.

Q. How long afterwards?
A. It was when Louis was diagnosed. He wasn't waking up from a coma that they realised he had to have brain surgery.

Q. How long was this after the occasion?
A. This would have been - they tried to get him to revive. They had put him in an induced coma. So then they worked out he wasn't waking up. So they went back, the neurosurgeon--

HIS HONOUR

Q. Just a moment. What he asked you was when?
A. Sorry, when?

Q. Yes.
A. It would have been probably 4 weeks, 5 weeks after the accident.

WILLMOTT

Q. You had a call from Mr Goldberg I think you said, did you?
A. Richard Goldberg and Rony Kennedy called me at the home.

Q. And you had a conversation?
A. Yes, I did.

Q. And what was said by Mr Goldberg?

…

Q. And you had a conversation with Mr Goldberg. What did he say to you?
A. And at the same time Rony Kennedy get on the phone, so it was a joint conversation.

Q. Just tell me first of all what Mr Kennedy said?
A. Okay. He said that you know the doctor said he's probably going to have brain damage and we have to talk about what's going to happen with the business.

Q. What did you say to that?
A. I said to them I don't believe that and that I'll wait for the doctor's reports.

Q. Did he say anything else to you?
A. That was more or less it.

Q. Did he explain to you what he meant by the words he said to you?
A. No.

Q. Did you ask him?
A. I didn't believe that something was going to be wrong with Louis.

Q. My question was: did you ask him what he meant by the words Mr Goldberg had used, we need to talk about the business?

OBJECTION (COULTON)

A. No.

Q. You said Mr Rony Kennedy was on the telephone. What did he say to you?
A. "Sweetie, we have to discuss the situation with dad."

Q. Did he say anything else?
A. No.

67 Rony gave evidence of the conversation he had with Martha in, he said, 1980: see paragraph 47 of Rony’s first affidavit. He questioned her about the involvement of her sister in the business and said, “I think you should close the shop and not let your two sisters run it until my father is able to talk and communicate properly. Obviously, there is millions of dollars worth of jewellery in the shop.” Martha’s response was, he said: “Keep out of it, f- off!” In her first affidavit, Martha places a separate conversation with Rony as being in late 1978 or early 1979, but in her oral evidence, she said that Rony accompanied Judy and Richard.

68 Judy denied that she had any involvement with Martha’s removal or attempted removal from the business. On Judy’s evidence, nothing connected with this topic was said by her or in her presence.

69 Given the absence of evidence from Mr Landerer, I find that no approach was made to him. Nor am I satisfied that an approach was made to Mr Simos to arrange for the removal of Martha from the jewellery business.

70 The evidence of Martha, which I accept, is that Judy was present (contrary to Judy’s assertion), as was Rony, when Richard spoke to Martha.

71 The circumstances outlined might well have given rise to an expectation in the mind of Martha that Judy (with her husband) and Rony (who had been opposed to her marriage to the testator) would try to oust her from the business, but the conversations Martha describe involve no express threat to do so, and more importantly, do not establish that Richard, Judy or Rony did in fact make such an attempt, other than by their visit, the manner of it, and the conversations. What the testator describes in paragraph 6 of his statement has not been established as a fact.

Guarantees and payments by the testaor

72 No evidence has been led to corroborate the testator’s assertion in paragraph 7 of his statement that a Summons was served on LK Jewellery in connection with a claim of $35,000 on a guarantee given by the testator on behalf of Judy in 1977. The testator says that he paid the mercantile agents $35,000. On the other hand, Judy says that she is aware that he paid $27,000. I do not think that the difference in amount is of any real significance.

73 The other specific loan that the testator said he had guaranteed for Judy was a guarantee of Judy’s obligations in respect of which he says that he was required to pay $12,000 in 1998: see paragraph 8 of the testator’s statement. Further, he says that he paid $600 per month to assist Judy with the running costs of her business. Judy does not dispute that he paid the $12,000, and for a period of 18 months or so, the testator paid $600 per month (that is, approximately $10,800).

74 I proceed on the basis that the testator paid $30,000 for the first guarantee, $12,000 for the second, and another $10,800 for assistance to Judy following her separation from Richard. The total is $52,800. I will treat the $7,400 received from her uncle, George Rappaport, as having been organised by the testator, and as we know, the testator provided Judy with $9,000 much closer to his death. Thus the testator provided approximately $70,000 to Judy over more than 30 years. He did not assist Judy in buying a property. The testator did not put any capital into Judy’s business or that of her ex-husband. Judy claims that the testator borrowed money from Judy’s ex-husband that he did not repay, but Martha denies that any such loan was ever made by the testator, and Judy produced no documentary evidence of such a loan. The testator did give Judy a car when she matriculated.

Relationship with the testator

75 Judy admits that she had no contact with her father between 1973 and 1978, but denies that the estrangement continued after that. The testator stated in his will that Judy and Rony had “shown [him] no care, respect or friendship nor any interest in [his] health or well being” and that their only interest had been to see how he could assist them financially. Although there is evidence to support that contention in respect of Rony, there is no such corroboration in respect of Judy, and indeed the evidence supports the contention that the testator felt some obligation towards Judy, albeit limited, in the 1990s and even after he made his will in 1998, notwithstanding what he said in 1998 and 2004.

76 I do not think that Judy had a close relationship with her father. That she was willing to have nothing to do with him for at least four years, on her evidence, and 10 years on Martha’s evidence, which I am inclined to accept, her admitted feeling that her father had treated her mother poorly, the second wife issues, and her perception as relaying to her father near his death in answer to his statement that he had not been a good father that he “[was not] the best” (see paragraph 9(h) of Judy’s first affidavit and her comment at T89.40 that “He was only hurting me all the time”) all provide support for that conclusion. It appears that the testator was a man of strong opinions and predilections – a “character”. He does not appear to have had much time for “pastoral care” with either of his children from his first marriage. According to Judy’s evidence, although she was diagnosed with cancer, operated upon and had a three-year period of recuperation, the testator did not visit her. However, it should be noted that the testator was himself confined to a wheelchair at that time.

77 Although I take into account that for a substantial period, Judy and her ex-husband did not speak to the testator, there was in the later years of the testator’s life a degree of reconciliation, more so in the last year of his life: see T. I think it is clear that the relations between Judy and Martha were poor. It is likely that this had an effect on the testator, and Judy contributed nothing to the testator’s welfare, but it was accepted that Judy’s conduct was not of such an egregious kind as to warrant almost complete excision from the will.

78 This view is strengthened by the fact that the testator did see Judy and have telephone contact with her in his later years, and he even provided some financial support to her in the 1990s and then a small amount shortly before his death.

Other matters

79 There are some other matters in Judy’s evidence with which I need to deal:

80 Although I have doubts about Judy’s veracity:

81 I think that weight must be given to the testator’s “explanation” as to why he made such a small provision to his daughter, but there are a few matters which I think downplay the significance of his statement:

82 I summarise the matters which might encourage the view that a substantial provision should now be made in Judy’s favour:

83 I summarise the matters which might discourage the view that a substantial provision should be made in Judy’s favour beyond the $50,000:

84 In coming to a conclusion as to what is adequate provision out of the estate for Judy, I regard the fact of paternity, the size of the estate and Judy’s financial circumstances and poor health as significant in justifying a provision far in excess of what the testator provided, but regard also need to be given to the fact that Judy is 61 years of age, had no significant part in the testator’s life for many years, and apart from the specific and limited assistance he provided to her, she can realistically have had no expectation of being maintained in a particular lifestyle by the testator. I accept that Martha will remain able to have a very comfortable lifestyle even if a substantial provision is made for Judy, either alone or together with Rony.

85 I take into account the degree of estrangement that had occurred between Judy and the testator, but I accord less significance to what might be described as disentitling conduct, given the origins of the disharmony and the fact that in later years some level of reconciliation with the testator was achieved.

86 I have referred to Judy’s claims. Ms Bateman’s evidence provides a means of calculating what amount would be needed to fund annual incomes on different hypotheses.

87 In the recent decision of the Court of Appeal in Tchadovitch v Tchadovitch [2010] NSWCA 316, Campbell JA made the comment at [73]-[74] (Allsop P agreeing at [1]-[5] and Young JA agreeing at [94]):

Family Provision Act

Evidence Act

Family Provision Act

88 There was no argument advanced by the defendant that the tables were irrelevant, but I think that the Court should not treat claims under the FPA as if they were personal injury claims, and this is reinforced, I think, by what was said by the Court of Appeal in Tchadovitch. I treat the tables as providing a guide to what annuity would be produced by a particular lump sum, and hence as relevant information to be taken into account in considering the benefit of the amount to be awarded to the plaintiffs.

89 In Nicholls v Hall [2007] NSWCA 356, the Court of Appeal (Mason P, Hodgson and McColl JA) explained that whilst moral duty or moral obligation of the testator is relevant, it is not determinative and can be misleading because the circumstances may not have been known to the deceased, so that there was “no non-compliance with any moral duty or obligation” and the question posed in s 9 of the FPA is to be determined having regard to the facts as they exist at the time of the hearing: see Nicholls at [40]. The Court of Appeal also said at [41]-[42]:

Conclusion in relation to provision for Judy

90 Recognising the limitations of the “moral obligation” approach to which I have referred, it is in effect conceded by the executor that the testator did have a moral obligation to Judy that is not reflected in a bequest of $50,000. However, I do not think that his obligation required him to provide Judy with a two-bedroom unit in Bondi Junction at a cost of $800,000 and to provide her, in addition, with an annuity by way of a lump sum of $400,000, notwithstanding the size of the estate, the affluent position of the residuary beneficiary, Martha, and the absence of any claims by the two other children of the testator (whose interests, it can be inferred, are closely allied to Martha’s). Mr Willmott submitted that the maximum amount for a home that either plaintiff would be entitled to received was $450,000-$550,000, and he accepted that a two-bedroom unit would be appropriate for Judy: see T306.

91 Returning to the words of the legislation, determining what provision ought be made requires that all of the relevant circumstances which I have endeavoured to identify above be taken into account. I have reached the conclusion that the appropriate provision for Judy is $850,000. This amount would produce an annuity of more than $55,000 (using the five percent discount rate table in Ms Bateman’s affidavit) or permit the purchase of a two-bedroom unit for $565,000 in Randwick in the Eastern Suburbs (see Exhibit 2)(excluding stamp duty and legal costs), with $295,000 remaining for conveyancing costs and for other needs. The testator has provided Judy with $50,000, therefore she should be provided with another $800,000. I do not think that she should be provided with a further $59,000 to enable her to repay money which she is obliged to pay to her trustee in bankruptcy. The executor should require proof by Judy of advice to her trustee in bankruptcy that she is to inherit these monies. Mr Willmott pointed out that if a substantial amount were ordered to be paid by the estate, there would be need to have recourse to either a loan on the Bellevue Hill property or even sale of that property, because of the interconnection of the estate with the jewellery business. There is evidence that monies can be drawn down on the existing loan, but it seems likely that some time would be needed to organise the funds for payment by the estate. The estate should be given an opportunity to structure the payment of this amount.

92 The testator asserted in his statement that:

“‘I am again in debt, I need your help.’

‘I have done all that I can for you.’

‘I want money. You have not looked after me properly.’

“I have given you more than enough money and at your age you should be able to support yourself.’

‘You are miserable and that woman you have married wants to take our money away! You are my father and you have to give me money. It is your duty. Your bitch wife has a Mercedes car, she wants me to have nothing, you will be very sorry all of you if you don’t give me money.’”

93 Dealing with the matters relied on by the testator to justify the bequest of $50,000 to Rony, the first (see [92](1)) is the lack of social contact over 20 years, except when Rony approached the testator seeking financial assistance. Rony accepts that contact was not extensive, but he does not accept that the only contact he had was to seek money. The limited contact and the requests for money are borne out by the evidence of Martha and corroborated by their housekeeper, Mrs Ureta. Mrs Ureta gave evidence not only of the testator telling her that Rony was looking for money, but she deposes to an occasion when the testator gave her a $50 note to give to Rony at the gate and Rony told her to tell his father to give him more: see paragraphs 8(a) and 9(b) of Mrs Ureta’s affidavit.

94 There is no dispute that Rony was expelled from Scots (see [92](2)), and he admits that he was also expelled from The Armidale School. The precise reason for his expulsion from Scots is in dispute. I do not think that it is of significance to the resolution of this case. There is no dispute that Rony did not obtain academic qualifications of any sort.

95 Dealing with [92](3), there is a dispute as to whether the testator paid a Diner’s Club credit card debt in 1972. Rony says that he did have success with Pips and Studio 66.

96 Dealing with [92](4) and (5), the testator asserts that he provided guarantees in connection with Rony’s nightclub businesses and that he paid between $50,000 and $60,000 to extinguish his liability for Rony’s business debts. Rony said under cross-examination that he thought his father had guaranteed 50 percent of the investment in Pips (see T117.5-7), but then said that he could not recall (see T117.12-14) and then denied any investment as an “absolute dream” on the part of his father: see T117.40.

97 Dealing with [92](6), the testator asserts that Alice guaranteed Rony’s debts and paid out $140,000. Rony agreed that his mother gave him help (see T119.16-19 and T116.32-33), but he disputes that she paid $140,000 (see T119.13-14) and there is no evidence to support the testator’s contention.

98 Dealing with [92](7), the testator asserts that he paid $1,500 for Rony’s unpaid hotel bill in Israel and airfare home. Rony says that the testator did not do so. There is no material tendered in support of the allegation, but Rony did admit that he needed money and that thought his mother had provided him with $1,000.

99 Dealing with [92](8), the testator asserts that he refused to help Rony in approximately 1978 and that Rony said, “You will be very sorry all of you if you don’t give me money”. Rony denies the whole of the conversation.

100 Dealing with [92](9), the testator asserts that Rony regularly asked him for money between 1978 and 1993. He sets out the conversations which, if held, amount to a form of abuse of the testator.

101 Dealing with [92](10), Rony admits that he abused Martha verbally and that an Apprehended Violence Order was taken out. He accepts that he consented to orders in connection with the Apprehended Violence Order. However, he denies that he abused the testator or members of Martha’s family, but by the consent orders, he accepted implicitly that he had done so or that they had reason to believe that he had done so.

102 Dealing with [92](11), Rony sets out his version of events in relation to Nox in paragraphs 30-40 of his first affidavit. He claims that he was instrumental in the establishment of the restaurant in which he was to be employed as a manager. He does not say that he provided any funds for the venture, but says that he was told that he would received 25 percent of the shares in Lonsted once Nox was up and running. He says that the testator purchased half of the shares in Lonsted, telling him that, “it will be able to give you security for the rest of your life because this is a very good venture”. He says that the testator told him that Martha did not want Rony involved in the restaurant and that he was sacked. The statement that the testator made about why he purchased shares in Nox is at odds with the notion that he had no desire to assist Rony at all.

103 Rony then sought compensation for “his past efforts during the past eleven months”: see page 71 of Exhibit J1. The letter from his solicitors to the testator makes reference to Rony’s desire to set up a coffee wholesaling business and restaurant in Surfers Paradise and seems to acknowledge that the testator might reasonably be concerned that the $91,000 sought would be squandered, because it offers that two-thirds of the monies be held in trust and invested on his behalf: see page 72 of Exhibit J1.

104 Martha’s version of Rony’s ouster is quite different to Rony’s. She describes how Rony approached the testator and herself for $20,000 to cover the wages of the Nox staff. She says that the loan was made on a short-term basis and that when it was not repaid by Lonsted, the directors of Lonsted met with the her and the testator and “after expressing serious concerns about the viability of the business and also Rony Kennedy’s involvement as licensee and manager, Louis and I agreed to purchase the business from Lonsted”. Martha deposes to the fact that Rony remained an employee in the business, but was removed after he attempted to control staff and “continually offered friends food and beverages”. She says that on his ouster, Rony was abusive to Louis and herself and that Rony then went to Surfers Paradise of his own volition, refuting Rony’s version that he was sent off to Surfers Paradise to get him out of the way while the testator and Martha surreptitiously took over the business. I accept Martha’s evidence over Rony’s, not only because I have more confidence in Martha’s credibility, but also because the letters sent by Rony’s solicitors make no mention of any claims of a promise by the Japanese directors of Lonsted that he would receive 25 percent of the shares of the business being stolen.

105 I am not satisfied that Rony had any legal basis for a claim against the testator, and I think that the monies paid out by the testator (approximately $49,000 excluding legal costs) should be seen as assistance to Rony in the past.

106 It will be apparent that there is an absence of evidence to support some of the assertions made by the testator that he provided assistance to Rony, either directly or indirectly. A question arises as to the extent to which a testator who wishes to make no provision for an eligible person (or only a very small provision) must have detailed evidence to support his explanation so that his executor can defend his approach. It seems to me that it would be a most unfortunate development if a testator were required to ensure that sufficient “evidence” of the type required in a commercial court case was made available to his executor to justify his explanation. Evidence of an amount paid twenty or thirty years earlier is, realistically, unlikely to be available in any event.

107 Some of the amounts in question, such as the Diners Club bill and the hotel bill, are not large amounts, and I do not accept that the testator made up these claims. The $50,000-$60,000 debt is a large amount, but I think that it can be dealt with in this way. If the testator did pay $50,000 or $60,000 on behalf of Rony, it would support (or tend to support) the testator’s view that he had done enough for Rony in the past. If, on the other hand, Rony’s version of events is accepted and the truth is that the testator did not guarantee the debts (and pay on the guarantees) and the $80,000 that Rony says he made from Pips was largely dissipated in the fashion he asserts (see T117-118), then it is in keeping with the image that Rony understood his father had of him in the Nox period: see the reference in [103] above in the letter of Rony’s solicitors of 3 September 1993. If the testator was not justified in thinking that he had assisted Rony enough, then he was justified in thinking that Rony could not be trusted not to waste money in a similar fashion. If the testator had provided the money, he could consistently have held both views.

108 So far as Rony’s character and conduct are concerned, I think that the testator was entitled to form the view that Rony’s only interest in him was related to the money that the testator might be willing to give him. Having said that, however, I think that there was clearly antipathy between Martha and Rony which coloured the relations between Rony and his father. Further, the testator did not seem to accept that some part of Rony’s conduct and failings as a son were a result of his upbringing by the testator, nor did he accept that the poor relations between Martha and Rony were something the testator could affect by his own behaviour. It does seem that Rony’s contact with his father was very limited, but that is what the testator wanted. There is little to support Rony’s evidence that he tried to engage his father, but nor is there any evidence that the testator sought to have a positive relationship with his son. Rony claims that he has always loved his father and wanted his father to be proud of him and that to a very significant degree it was Martha who was working to undermine his relationship with the testator. The material available does not support the proposition that Rony had a good relationship with his father, but I accept that it is likely that the testator was to some degree influenced by the antagonism between Rony and Martha, for whatever reasons that antagonism had developed.

109 I regard it as a significant matter that Rony commenced legal proceedings against his father. Such a step is consistent with a severe rupture in relations and is conduct of a kind that prima facie would justify a minimal provision or no provision in a will in favour of an eligible person. The background to the claim is complicated, as I have outlined, and it ended in effect with a payment of $80,000, of which Rony received $49,000, in addition to some $40,000 previously paid by the testator: see page 91 of Exhibit J1.

110 Rony claims that he is obliged to pay $75,000 to a Mr Zeljko Ranogajec and a Mr Adesh Goel. He has signed a “direction” to his solicitors to pay $75,000 to their solicitors. Exhibit C makes it clear that neither Mr Ranogajec nor Mr Goel, who are both mentioned as having provided support and assistance to him over the last 10 years, have “ever asked for anything in return”. The direction is bizarre. If Mr Ranogajec or Mr Goel have assisted Rony by paying legal fees, then those amounts can be repaid to them when the fees are reimbursed by the estate, but I do not think that any regard should be paid to the “direction”.

111 I summarise the matters which might encourage the view that a more substantial provision should be made in Rony’s favour:

112 I summarise the matters which might discourage the view that a substantial provision should be made in Rony’s favour beyond the $50,000:

Conclusion in relation to provision for Rony

113 Rony seeks a unit valued between $600,000 and $800,000 and “a lump sum cushion for living expenses in the future” of $200,000: see T282. I refer to [90] above, and whilst it is in effect conceded by the executor that the testator did have a moral obligation to Rony that is not reflected in the bequest of $50,000, I do not think that his obligation required him to provide Rony with a unit between $600,000 and $800,000 in value and an additional sum of $200,000. In Rony’s case there is even less room for any expectation on his part that his father would make much provision for him, the testator having given him no significant amount of money since 1978, apart from the Nox/District Court claim. In determining what provision ought be made and considering all of the relevant circumstances, which I have endeavoured to summarise above, I regard the size of the estate, Rony’s impoverished circumstances and the fact of paternity as significant matters justifying a provision that far exceeds that provided by the testator, but the other matters to which I have referred lead me to the conclusion that the provision ought be far less than has been sought by Rony. I think that the testator was (and the Court is) entitled to have regard to the prospect that any amount of money given to Rony would be likely to be dissipated quickly, but one answer is for a testator (and the Court) to make provision for an annuity or a life interest in property, or by some other measure reduce the prospect of dissipation.

114 I accept Mr Willmott’s submission that in Rony’s case, the appropriate provision is a life estate in a one-bedroom unit. The unit should not exceed $400,000 in value unless the estate wishes to purchased a more expensive unit, and the unit should be in a location agreed upon by the executor and Rony. It should revert to Martha or beneficiaries nominated by her on Rony’s death. Council rates should be paid by the estate. Attention will need to be given to the form of orders, including the time within which the purchase is to be effected.

Orders

115 The parties should bring in Short Minutes of Order reflecting the conclusions I have reached and dealing with the issue of costs.

**********

Actions

Download as PDF Download as Word Document

Citations

Goldberg v Landerer; Kennedy v Landerer [2010] NSWSC 1431

Most Recent Citation

Richardson v Richardson (No 2) [2024] ACTSC 191

Cases Citing This Decision

4

Chalik v Chalik [2024] NSWSC 117

Burke v Burke [2014] NSWSC 1015

Faulkner v McLeod [2011] NSWSC 92

Cases Cited

9

Statutory Material Cited

2

Palmer v Dolman [2005] NSWCA 361

Ford v Simes [2009] NSWCA 351

Taylor v Farrugia [2009] NSWSC 801

CITATION:	Goldberg v Landerer; Kennedy v Landerer [2010] NSWSC 1431
HEARING DATE(S):	11-14 October 2010
JUDGMENT DATE :	10 December 2010
JURISDICTION:	Equity Division
JUDGMENT OF:	Rein J
DECISION:	In proceedings 2008/281185, plaintiff to receive a provision of $850,000 in lieu of the provision of $50,000. In proceedings 2008/281750, plaintiff to receive a life estate in a one-bedroom unit not exceeding $400,000 in value. Matter stood over for orders to be prepared based upon the conclusions contained in the reasons for judgment.
CATCHWORDS:	SUCCESSION - family provision and maintenance - failure by testator to make sufficient provision for applicants - principles upon which relief granted - application by children - where testator's adult daughter and son each received bequests of $50,000 from an estate worth approximately $5 million and sole residuary beneficiary (testator's wife) has significant other assets
LEGISLATION CITED:	Family Provision Act 1982 (NSW) Succession Act 2006 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	Alexander v Jansson [2010] NSWCA 176 Dolman v Palmer [2005] NSWCA 361 Foley v Ellis [2008] NSWCA 288 Ford v Simes [2009] NSWCA 351 Nicholls v Hall [2007] NSWCA 356 Re Fulop (1987) 8 NSWLR 679 Singer v Berghouse (No. 2) (1994) 181 CLR 201 Stewart v McDougall (unreported, Supreme Court of New South Wales, Young J, 19 November 1987) Taylor v Farrugia [2009] NSWSC 801 Tchadovitch v Tchadovitch [2010] NSWCA 316 Vigolo v Bostin (2005) 221 CLR 191 Walker v Walker [1996] NSWSC 188
PARTIES:	In proceedings 2008/281185: Judy Goldberg (plaintiff) John Landerer (defendant) In proceedings 2008/281750: Rony Kennedy (plaintiff) John Landerer (defendant)
FILE NUMBER(S):	SC 2008/281185; 2008/281750
COUNSEL:	In proceedings 2008/281185: V R W Gray (plaintiff) M S Willmott SC, P J Livingstone (defendant) In proceedings 2008/281750: D M Coulton (plaintiff) M S Willmott SC, P J Livingstone (defendant)
SOLICITORS:	In proceedings 2008/281185: D S M Austin Solicitor (plaintiff) Les Pozniak Landerer & Company (defendant) In proceedings 2008/281750: George Sten & Co. (plaintiff) Les Pozniak Landerer & Company (defendant)