Green v Ogden

[2003] NSWSC 558

CITATION:	Green v Ogden [2003] NSWSC 558
HEARING DATE(S):	8, 9 April 2003
JUDGMENT DATE:	24 June 2003
JURISDICTION:	Equity Division
JUDGMENT OF:	Master McLaughlin
DECISION:	(1) I order that, in addition to the provision made for her by the will of the late Ronald Edgar Ogden ("the Deceased"), the Plaintiff receive a legacy of $461,000, such legacy not to bear interest if paid on or before 24 August 2003, and if not so paid to bear interest at Supreme Court rates; (2) I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased; (3) The exhibits may be returned.
CATCHWORDS:	Succession - Family Provision - Claim by adult daughter - Financial and material circumstances of Plaintiff - Relationship between Plaintiff and Deceased - Conduct of Plaintiff in respect whereof Deceased expressed concern - Obligation upon Plaintiff to place before the Court appropriate evidence of her needs and requirements and cost of meeting those needs and requirements - Nature of provision to which Plaintiff has established an entitlement.
LEGISLATION CITED:	Family Provision Act 1982
CASES CITED:	Singer v Berghouse (1994) 181 CLR 201 Wentworth v Wentworth (1995) 37 NSWLR 703
PARTIES :	Diana Gloria Green (Plaintiff) Ronald John Ogden (Defendant)
FILE NUMBER(S):	SC 2505/02
COUNSEL:	M. Gilmour (Plaintiff) J. Wilson (Defendant)
SOLICITORS:	Molloy & Schrader, Solicitors (Plaintiff) Hunt & Hunt (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Tuesday, 24 June 2003

2505 of 2002 DIANA GLORIA GREEN -v- RONALD JOHN OGDEN

JUDGMENT

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

2 By summons filed on 2 May 2002 the Plaintiff, Diana Gloria Green, claims an order for provision for her maintenance, education and advancement in life out of the estate of her late father, Ronald Edgar Ogden (to whom I shall refer as “the Deceased”).

3 The Deceased died on 28 January 2002, one day before his ninetieth birthday. He left a will dated 8 July 1997, probate whereof was on 19 September 2002 granted to Ronald John Ogden, the executor named in such will (who is the Defendant to the present proceedings).

4 The Deceased, who was a widower at the time of his death, was survived by his two children, being the Plaintiff and the Defendant. The Plaintiff, who was born on 9 September 1958, is now aged forty-five, whilst the Defendant, who was born on 7 August 1957, is now aged forty-six.

5 The Deceased by his will gave 30,000 of his shares in ECO Air Limited “to such of my daughter Diana Green and her children Natasha and Cherie as shall survive me and attain the age of twenty-one years and if more than one in equal shares”. He left the residue of his estate to the Defendant. The Deceased, however, had disposed of the foregoing shares before his death, and in consequence that gift adeemed. Thus, in the events which have happened, the Plaintiff received no benefit under the will of the Deceased and the Defendant received the entire estate.

6 The inventory of property set forth the following assets owned by the Deceased at the time of his death:

House property, 60 Pacific Road, Palm Beach - $2,500,000


Furniture and household effects - $42,000

1989 Toyota Cressida sedan motor vehicle - $5,000

Cheque account with St George Bank Limited - $2,931

Investment with MLC Masterkey Unit Trust - $25,262

Total Assets: $2,575,194

7 The only liabilities of the estate were in respect to various payments made on behalf of the Deceased by the Defendant, totalling $44,313; and funeral expenses totalling $5,337, which the Defendant paid from his own money. Thus the net value of the estate is $2,525,544.

8 In approaching the value of the estate available for distribution the Court must take into account the costs of the present proceedings. The Defendant, irrespective of the outcome of the proceedings, will be entitled to have his costs paid out of the estate of the Deceased. The Plaintiff, if she be successful in her claim, will also be entitled to have her costs paid out of the estate. The costs of the Plaintiff are estimated to total $58,422, whilst those of the Defendant are estimated to total $44,055.

9 Thus the net distributable estate will be in the order of $2,423,000.

10 The Plaintiff married her present husband, Lawrence Richard Green, on 17 March 1979. The circumstances surrounding that marriage and the attitude of the Plaintiff’s parents towards that marriage and towards Mr Green were the subject of evidence by way of affidavit and also by cross-examination.

11 The Plaintiff and her husband have two children, being Natasha (who was born on 17 July 1980 and is presently aged twenty-two) and Cherie (who was born on 8 March 1985 and is presently aged eighteen).

12 Natasha, who is a single mother, is, together with her daughter, Ebony (aged three), presently residing with her parents.

13 Cherie is still living at home with her parents. Although she is in full-time employment and owns a motor car and a mobile telephone, Cherie is largely supported by her parents, to whom she pays no board.

14 The Plaintiff’s husband, whose only work qualification is as a professional golfer, appears not to have been particularly satisfactory in business (for example, in conducting a professional shop at a golf course).

15 At about the time of their marriage both the Plaintiff (who was then aged only twenty) and her husband (who was nine years older) found themselves in financial difficulties. The Plaintiff’s husband went bankrupt in April 1980 (apparently on his own petition). The Plaintiff also went bankrupt in 1981. Each was subsequently discharged from bankruptcy.

16 Within a very short period of their marriage the Plaintiff and her husband removed to Western Australia, where her husband’s mother was then residing. According to the Plaintiff that removal to Western Australia (as well as the short period of her engagement) was at the instigation of her parents, who, according to her, were appalled and embarrassed at the thought of their daughter (and her husband) becoming bankrupt. During the subsequent twenty-four years the Plaintiff and her husband have been involved in at least one unsuccessful business venture (in conducting another professional golf shop in Western Australia), which has left them with considerable debts. It is to their credit that, rather than going bankrupt again, they have attempted to pay their creditors, although significant debts (totalling $25,000) are still outstanding from that business venture.

17 Geographical constraints and impecuniosity limited the contact between the Plaintiff and her parents after she removed to Western Australia.

18 However, throughout that period the Plaintiff (and on one occasion one of her children) paid visits to her parents in Sydney on six occasions, whilst her parents visited the Plaintiff in Western Australia on one occasion.

19 According to the Plaintiff there were regular letters and telephone calls passing between herself and her parents, as well as a regular exchange of presents between the Plaintiff and her parents. The extent of contact and of the exchange of presents was disputed by the Defendant.

20 When the Plaintiff was informed of her mother’s final illness in early February 1997, she travelled immediately to Sydney from Western Australia, and was with her mother until her death on 8 February 1997. The Plaintiff then remained with her father, assisting him for a few days before returning to Western Australia. The Plaintiff, who was proposing to be present for her father’s ninetieth birthday, arrived in Sydney shortly before his death.

21 At the present time the financial circumstances of the Plaintiff and her husband are as follows.

22 The Plaintiff and her husband reside in rented accommodation at 23 Tennyson Avenue, Mandurah, (about 80 kilometres south of Perth) in Western Australia. They pay $185 a week rent. Other regular outgoings include debt repayments of $990 a month. The Plaintiff currently requires dental treatment costing about $1,540, whilst the Plaintiff’s husband also requires dental treatment costing about $1,600. Neither the Plaintiff nor her husband has any form of health insurance, although they would both like to obtain private health cover.

23 As at 1 March 2003 the total indebtedness of the Plaintiff and her husband was in the order of $26,400 (that indebtedness including a bank card indebtedness of the Plaintiff for $1,892 and a bank card indebtedness of her husband for $564). However, the Plaintiff subsequently incurred a further debt, being to the ANZ Bank for $7,500, which has been incurred in part to cover the Plaintiff’s expenses in travelling to Sydney to attend at the trial of the present proceedings. In consequence, therefore, the liabilities of the Plaintiff and her husband at the present time total about $33,900.

24 The Plaintiff and her husband have no significant assets. They own a motor vehicle, the present value of which is not revealed. They own furniture and household contents and personal effects.

25 The Plaintiff has since April 1997 been employed in a bakery in an unskilled capacity. In that position she presently receives a net weekly income of $465 for a forty hour week and $565 for a forty-eight hour week. She is engaged on a rotating roster which requires her to work one forty hour week followed by two forty-eight hour weeks.

26 The Plaintiff’s husband has been unable to receive any social security benefits, because of the amount of the Plaintiff’s income. However, he has an offer of employment in a lawn mowing and garden maintenance business, which he expects to commence very soon.

27 It is in the context of the foregoing facts and circumstances that the Court must proceed to a consideration of the claim of the Plaintiff.

28 I have had the benefit of receiving a chronology and written outlines of submissions from Counsel for the respective parties. Those documents will be retained in the Court file.

29 The Plaintiff as a child of the Deceased is an eligible person within paragraph (b) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such she has the standing to bring the present proceedings. (The fact that the Plaintiff was adopted by the Deceased and his wife does not affect her status as a child of the Deceased and as an eligible person.)

30 The Defendant also, as a child of the Deceased, is an eligible person in relation to the Deceased.

31 The Plaintiff and the Defendant are the only persons who need to be considered as eligible persons in relation to the Deceased. There was a suggestion that there were two other eligible persons, being Anne Arnold and Robert Arnold, to whom the Deceased and his wife acted as foster parents for about two years until 1971. But the Plaintiff has had no contact with either of those persons since that time. The Defendant has not seen Robert Arnold since that time. Since 1971 the Defendant has seen Anne Arnold on only one occasion, in 1978. The present whereabouts of those two persons are not known to either the Plaintiff or the Defendant. In these circumstances it is unnecessary for the Court to give further consideration to any possible claims by either Anne Arnold or Robert Arnold, and service of any notice of claim upon those persons is not required and may be regarded as being dispensed with.

32 The Defendant submits that the nature of the relationship between the Plaintiff and the Deceased was such that the claim of the Plaintiff should be dismissed. The Defendant does not go so far as submitting that the Plaintiff has been guilty of what was formerly referred to as conduct disentitling. Nevertheless, the Defendant points to the following matters which it was submitted were the subject of concern by the Deceased:

The Plaintiff’s marriage against her parents’ wishes.
The Plaintiff’s husband’s gambling problems.
The Plaintiff’s deceptions concerning her debt problems.

33 It will be appreciated that evidence relating to the asserted concerns of the Deceased about the foregoing matters was evidence proffered by the Defendant of what the Deceased had said to him. The Plaintiff denied that her marriage was against the wishes of her parents. Indeed, it was her evidence that her mother encouraged her to marry with only a short engagement. It was the Plaintiff’s evidence that her husband had no gambling problem from the time that they married. The evidence was somewhat unclear as to whether he may have had a gambling problem before their marriage. The Plaintiff denied any deception concerning her own financial difficulties.

34 The handwritten note of the Plaintiff addressed to her parents (Exhibit 1) is totally consistent with her evidence, and is inconsistent with the statement attributed by the Defendant to the Deceased, that “Diana has run off with Laurie Green. She left a note saying she loved Laurie and hoped to marry him. Your mother and I heard that he has a gambling problem. I spoke to Diana about this and she ran away with him the next day”. The decision of the Plaintiff to leave home for three days (without beforehand informing either her parents or her future husband) cannot by any stretch of the imagination be described as “running away”. Neither is there any evidence to support the suggestion that she had “run off with Laurie Green”, who was unaware of her departure from her parental home until the Plaintiff informed him of that fact some hours later. The Deceased’s construction of those events is inconsistent not only with the evidence of the Plaintiff but with the letter which the Plaintiff left for her parents at that time.

35 There was no direct evidence attributed to the Deceased concerning the alleged gambling problem of the Plaintiff’s husband. The Deceased was basing his statement in that regard upon the fact that he and his wife had “heard that he has a gambling problem”, without offering any source for that otherwise unidentified information. I recognise that no evidence from the Plaintiff’s husband was offered in the proceedings concerning whether or not he had or continued to have a gambling problem. Nevertheless, in this regard I considered the Plaintiff to have given her evidence truthfully and frankly, and I prefer the direct evidence of the Plaintiff’s own observations to the otherwise unidentified and unsourced rumour upon which the Deceased and his wife chose to base their belief concerning their future son-in-law.

36 The alleged deceptions of the Plaintiff concerning her debt problem were grounded upon two letters (Annexures A and B to the affidavit of the Defendant sworn 25 November 2002 (Affidavit B)). The first of those letters was from the Relieving Manager of the Commonwealth Savings Bank of Australia at Haymarket dated 21 April 1980. The conduct of that gentleman (who it emerged from the evidence was the President of the Palm Beach Golf Club, of which the Deceased was a leading member) in writing to the Deceased (who was neither the debtor to the Bank nor a guarantor of the debtor) appears to have been totally without justification and in breach of the duties of confidentiality and privacy owed by the Bank to its client. The letter of 5 November 1980 from the Bank to Mrs S Smith, the Plaintiff’s aunt, falls into a similar category.

37 Neither those letters nor the assertion of the Defendant that his parents were “appalled and embarrassed” by the fact of the imminent (and then actual) bankruptcy of the Plaintiff, in any way justify the construction placed upon them by the Deceased that the Plaintiff had been guilty of deceit. In regard to the alleged deceit of the Plaintiff it should be observed that she, being an adult aged twenty, obtained two personal loans from her own bank – not the branch of the bank with which the Deceased conducted his personal or business accounts – which personal loans she had repaid, and she then obtained a third personal loan, essentially to meet wedding expenses (which one might have thought would, in normal circumstances, have been the responsibility of her parents).

38 If the Deceased did in fact regard such conduct as constituting deceit on the part of the Plaintiff, that conclusion reflects unfavourably upon the Deceased himself, rather than reflecting unfavourably upon the Plaintiff. Indeed, the reaction of the Deceased to the Bank’s letter was out of all proportion to the incident which had given rise to that (totally improper) letter from the Bank’s relieving manager, who also happened to be the Deceased’s golfing crony. Whilst the Deceased chose to retain that letter (and also the highly improper letter which that golfing crony had written to the Deceased’s sister) for a period of twenty-two years, the Deceased did not, however, retain the letters and cards which had been sent by his own daughter to her parents.

39 If, as appears to have been the case, the Deceased and his wife were concerned at the social implications, within a close knit community such as Palm Beach (where the Deceased and his wife were leading participants in all forms of community activities), of their daughter becoming bankrupt, then they had the remedy in their own hands. The Plaintiff went bankrupt owing a small amount of money, less than $1,000. It was freely admitted by the Defendant that in the early 1980s the Deceased’s financial situation was such that he could easily have afforded to pay out the Plaintiff’s indebtedness.

40 I do not consider that the Plaintiff’s bankruptcy and the circumstances surrounding her financial position in the early 1980s constitute conduct which in any way reflects badly upon the Plaintiff. If anything, those circumstances reflect poorly upon the Deceased and his wife. The letters to which I have referred certainly reflect very badly upon the Bank and its officers (in particular, upon W.P. Johnston, Relieving Manager of the Haymarket Branch, who was the Deceased’s golfing acquaintance).

41 The Deceased and his wife seem to have been more concerned to maintain their social standing in the Palm Beach community (especially amongst the golfing set) than to concern themselves with their parental responsibilities towards their only daughter. In this regard it should not be overlooked that the Plaintiff, whose only employment since she left school at the age of sixteen and completed a secretarial course a year later had been with her father’s business, where she had been acknowledged to be a competent and able employee. Further, that that employment was terminated by her mother (presumably with the acquiescence and agreement of the Deceased) two days before her wedding, at a time when it was particularly important to the Plaintiff that she be in receipt of an income. If the foregoing matters were perceived by the Deceased to have affected his relationship with the Plaintiff, that was unfortunate, especially for him. It could not be in any way regarded as a consequence of the conduct of the Plaintiff.

42 The other area upon which the Defendant relies as indicating a relationship of the Plaintiff with the Deceased justifying the failure of the Deceased to make provision for his daughter was the nature and extent of the contact of the Plaintiff and the Deceased. Recognising that for more than twenty years preceding the death of her father the Plaintiff was residing in Western Australia whilst the Deceased was residing in Sydney, and that the Plaintiff was in far from affluent circumstances, I do not consider that the extent of the contact between the Plaintiff and the Deceased (indeed, both her parents) was in any way inappropriate. It should be recognised that the Plaintiff visited Sydney on six occasions during that period, whilst her parents (who financially were in a far better position to do so) visited her in Western Australia on only one occasion. The responsibility for any perceived lack of contact between the Plaintiff and her parents lies essentially at the door of the Plaintiff’s parents. I regard the Plaintiff as being largely, if not entirely, blameless in respect to any breaches which might have interrupted that relationship. The nature and extent of the relationship is not such as would, in my conclusion, affect the entitlement of the Plaintiff for consideration in the testamentary dispositions of the Deceased.

43 In performing the first stage in the two stage process identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 at 208 it is necessary for the Court to determine whether by the terms of his will the Plaintiff has been left without adequate provision for her proper maintenance. (As to the distinction drawn between the words “adequate” and “proper” in the phrase “adequate provision for her proper maintenance”, see Wentworth v Wentworth (1995) 37 NSWLR 703 at 737 per Cole JA.)

44 It will be appreciated that it is for the Plaintiff to establish her own case upon its own merits. The Defendant, being the chosen object of the totality of the testamentary beneficence of the Deceased, does not have to prove anything. The Defendant did not offer any evidence in his affidavits concerning his financial and material circumstances. Evidence in that regard was elicited in cross-examination by Counsel for the Plaintiff. It was acknowledged by the Defendant that he and his wife (they have no children) are financially secure. The Defendant does not submit that any order for provision an entitlement to which the Plaintiff might otherwise have established should be reduced, let alone extinguished, on account of the competing claim of the Defendant.

45 It is quite apparent that the Plaintiff, who receives nothing under the terms of the will of the Deceased, has been left without adequate provision for her proper maintenance and advancement in life. It is the function of the Court to remedy that omission on the part of the Deceased.

46 It was the case for the Plaintiff that she had the following needs which should be met by an appropriate order of the Court. The primary need asserted by the Plaintiff was for accommodation. She also asserted the need for a fund to pay her debts, purchase a new motor vehicle, and have an amount for the acquisition of various items which she cannot afford on her present income.

47 The Plaintiff seeks an amount of $500,000 for the purchase of a house property in a residential suburb of Perth known as Mount Pleasant. To that amount the Plaintiff seeks that there should be added an amount of $21,300 in respect to stamp duty and $1,000 in respect to the legal costs associated with the purchase.

48 The Plaintiff seeks an amount of about $12,000 for the purchase of furniture and whitegoods, and an amount of $25,000 for the purchase of a motor car. She seeks a fund of almost $69,000 to enable herself and her husband to obtain health insurance. She seeks an amount of almost $34,000 to discharge her present debts. Finally, she seeks that she should receive a fund of $150,000 to meet unexpected contingencies. Those contingencies include new spectacles ($4,127), dental treatment ($1,543), future replacement motor vehicles, legal costs of the present proceedings which may not be covered by any costs order in her favour, and contribution towards superannuation in order to produce a lump sum of $500,000 at the time when she retires at the age of 65 years.

49 It is not usual for an adult child to establish an entitlement to receive from the estate of a Deceased parent the purchase price of a residence. Although the Plaintiff and her husband and their family are presently residing in rented accommodation, the Plaintiff and her husband actually lived in a residence owned by them at 17 Fairway Crescent, Mandurah from late 1992 until mid-2000. That house property had been purchased by the Plaintiff and her husband from her husband’s mother for $80,000 and was sold seven and a half years later for $140,000. The entirety of the proceeds of that sale were used to pay their creditors.

50 It should be recognised that the Plaintiff is a married woman residing with her husband and children. There appears to be no reason why the acquisition of a residence should be treated as being the sole responsibility of the Plaintiff, and why any potential responsibility for or contribution towards the acquisition of a residence by the Plaintiff’s husband should be disregarded. The approach of the Plaintiff in the instant case appears to be that she should obtain from the estate of the Deceased the totality of the needs not only of herself but of her husband (and, in regard to a residence, of her children), without any contribution either towards residence or towards family maintenance coming from anyone but herself. Such an approach totally disregards the realities of family life and the responsibilities of one married partner to the other. Whilst the Plaintiff was at the time of the hearing the chief breadwinner in the family, it was expected that her husband would shortly commence employment (at an unspecified remuneration) in a lawn mowing and garden maintenance business.

51 It should be emphasised that it is for an applicant for provision to place before the Court appropriate evidence relating to her needs and requirements and to the cost of meeting those needs and requirements.

52 In the instant case the Plaintiff asserts an entitlement to receive from the estate an amount which will enable her to purchase a residence. Even if she were otherwise entitled to include the cost of a residence in any order for provision which should be made in her favour, the evidence which has been presented concerning the cost of such a residence is skimpy in the extreme. The Plaintiff limited her inquiries and her interest to one specified residential district of Perth, being Mount Pleasant. She did not offer any evidence concerning any specific house in that district which she might be interested in purchasing. She merely said that the standard residence in Perth consisted of four bedrooms and two bathrooms, that she had spoken to real estate agents in Mount Pleasant and had looked at newspaper advertisements. The kind of house in which she was interested was one which would be only a few years old and in good condition and would be located in Mount Pleasant. The Plaintiff had been informed that the average price for such a house was $500,000.

53 There was no reason why the Plaintiff’s inquiries should have been limited to Mount Pleasant.

54 The Plaintiff did not offer any evidence concerning the borrowing capacity of herself (it being appreciated that the Plaintiff is in full-time permanent employment) or of her husband (who shortly before the hearing had been offered a position as a lawn mowing contractor).

55 I am not satisfied that the Plaintiff has in any way established an entitlement to receive from the estate the cost of acquiring an unencumbered house property. But, in any event, I certainly do not consider that she has established an entitlement to acquire an unencumbered house property costing $500,000.

56 The Plaintiff should receive from the estate an amount which will enable her (in the light of her full-time permanent employment) to acquire a house property. That house property should be sufficient to accommodate her husband and herself. If the Plaintiff is desirous that her two daughters (and her granddaughter) remain in residence with them, then it might be expected that at least Cherie (who is in full-time employment, owns her own motor car and a mobile telephone, but is largely supported by her parents) should make some contribution towards board and household expenses.

57 In the absence of any other evidence about the cost of appropriate residential accommodation in suburban Perth, apart from the average cost of a four bedroom, two bathroom residence at Mount Pleasant, the Court must do the best it can upon the scant evidence presented to it. It seems to me appropriate that the order for provision should contain a component of $250,000 which (together with the Plaintiff’s potential borrowing capacity, and contributions, at least by way of borrowing capacity, from her husband) should go a considerable distance towards the acquisition of an appropriate residence for at least herself and her husband. That component will include the cost of stamp duty on the purchase of a residence and associated legal costs.

58 In respect to the amount of about $12,000 for furniture and whitegoods, it was the Plaintiff’s evidence that she had gone to a local department store and obtained prices for various items (including a refrigerator priced at about $2,400). Those items are set forth in a list prepared by Harvey Norman Furniture at Mandurah (Exhibit B). The order for provision should include a component for $12,000 for the acquisition of new furniture and white goods.

59 The Plaintiff also claims a component of $25,000 in respect to the purchase of a second hand motor vehicle. She said that she went into a car yard and enquired about a family car and also a smaller car, and that the cost of two such cars together (each being second hand and about two years old) was $50,000. To include a component of $25,000 for a second hand motor vehicle (as is being claimed by the Plaintiff) appears to me to be excessive, especially where, as here, no details whatsoever have been given of the make of the proposed motor vehicle, or of any trade-in allowance that might be available on the Plaintiff’s present motor vehicle. It is difficult to see why the Plaintiff requires $25,000 for a second hand motor vehicle, when she could purchase a new motor vehicle for considerably less. A component of $15,000 for a motor vehicle appears to be a reasonable amount.

60 The order for provision should also include a component to enable the Plaintiff’s debts of almost $34,000 to be discharged. She should also have a fund, from which fund she will be enabled to purchase such items as new spectacles ($4,127) and to receive dental treatment ($1,543), and to which she can resort for future unexpected contingencies.

61 I do not see why the cost of the Plaintiff’s husband’s dental treatment should be visited upon the estate of the Deceased. Neither, why the proposed private medical insurance of the Plaintiff’s husband should be included in any order for her provision. The Plaintiff seeks an amount to permit her to have private health insurance. I do not consider that she has established an entitlement to have such a specific component included in the order for provision. If she so desires, such private health insurance can be met from the foregoing fund.

62 The Plaintiff is desirous that her fund for future contingencies should include an amount which will enable her to make a significant contribution towards a superannuation entitlement which would produce a lump sum of $500,000 if she retires at the age of fifty-five years. At the present time the Plaintiff’s superannuation entitlement is less than $10,000. It seems to me that there is no basis for a claim on the part of the Plaintiff that her entitlement to an order for provision for her proper maintenance should include an amount which will enable her in ten years’ time to receive a lump sum of $500,000 by way of superannuation. If the Plaintiff chooses to use part of the component representing a fund for contingencies for the purpose of augmenting her superannuation entitlements, then that is a matter for her.

63 It is inappropriate that the order for provision should include a component representing the difference between the costs payable by the Plaintiff to her legal representatives and the costs which she will be entitled to recover from the estate of the Deceased. If such a component were to be included in the order for provision, the Plaintiff would in effect be receiving indemnity costs.

64 I summarise, therefore, my foregoing views concerning the computation of the amount which the Plaintiff is entitled to receive from the estate of the Deceased:

Component which, together with any borrowing capacity of the Plaintiff, will assist in the acquisition of a residential house property, including payment of stamp duty and associated legal costs $250,000

Furniture and whitegoods $12,000


Replacement motor vehicle $15,000

Discharge of Plaintiff’s debts $34,000

Fund for contingencies $150,000

Total $461,000

65 I have already observed that the Defendant has not submitted that his financial and material circumstances are such that any order for provision an entitlement to which the Plaintiff might otherwise have established should be reduced, let alone extinguished, on account of the competing claim of the Defendant.

66 I make the following orders:

(1). I order that, in addition to the provision made for her by the will of the late Ronald Edgar Ogden (“the Deceased”), the Plaintiff receive a legacy of $461,000, such legacy not to bear interest if paid on or before 24 August 2003, and if not so paid to bear interest at Supreme Court rates.

(2). I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased.

(3). The exhibits may be returned.

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Last Modified: 07/10/2003