Hampson v Hampson - [2010] NSWCA 359

No judgment structure available for this case.

New South Wales

Court of Appeal

CITATION: Hampson v Hampson [2010] NSWCA 359

HEARING DATE(S): 16 November 2010

JUDGMENT DATE:
17 December 2010

JUDGMENT OF: Giles JA at 1; Campbell JA at 3; Handley AJA at 117

DECISION: (1) Application to receive further evidence on appeal dismissed with costs.
(2) Appeal dismissed with costs.
[The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

CATCHWORDS: EQUITY – Estoppel by conduct – Proprietary estoppel – Husband leaves property to widow who dies and leaves property to all seven children equally – Youngest son claims proprietary estoppel in relation to approximately one third portion of estate based on assurances and encouragement of father – whether proprietary estoppel exists in circumstances where the appellant claims that there was an oral representation by appellant's father that land would be given to appellant if he lived there and renovated cottage on the land and where the appellant claims he has relied and acted on the representation – not sufficient for appellant only to establish claim against appellant's father and it is necessary also to establish claim against the testatrix – lack of evidence concerning representation by Testatrix in relation to her testamentary intentions or of son’s reliance on the representation – appeal against trial judge’s finding concerning proprietary estoppel rejected – PROCEDURE – Appeal – Powers of court – Application to receive further evidence in support of proprietary estoppel claim – Consideration of “special grounds” in s75A Supreme Court Act 1970 – consideration of tests in Akins v National Australia Bank (1994) 34 NSWLR 155 – Whether failure of solicitor to act upon instructions of client constitutes special grounds – In determining whether litigant has exercised “reasonable diligence” for the purpose of an application to admit further evidence on appeal, the litigant has the actions and inactions of his legal representative attributed to him – Appellant found not to have satisfied conditions in Akins – Reception of further evidence forbidden by s79A(8) – Consideration of additional discretionary reasons for rejection of application to receive further evidence – SUCCESSION – Family provision and maintenance – whether application governed by Family Provision Act 1982 or Chapter 3 Succession Act 2006 – time as at which to decide jurisdiction and quantum – principles upon which relief granted – appeal relating to failure of trial judge to find jurisdiction – process for calculating adequate provision, as amongst seven children of deceased – consideration of circumstances of each child – Principles governing appellate review of trial judge’s decision concerning jurisdictional question – no error in the determination of appellant's claim under the Family Provision Act – WORDS AND PHRASES – “special grounds” – SUCCESSION – family provision and maintenance – extent of judge’s obligation to give effect to “the totality of the relationship between the applicant and the deceased” – PROCEDURE – appeal – from decision reviewable only on House v R grounds – availability of ground of appeal that judge “failed to give proper weight” to a relevant factor – SUCCESSION – family provision and maintenance – relevance to jurisdiction of applicant’s (a) drug-taking (b) illegal conduct (c) money consuming habit – relevance to quantum of applicant’s (a) drug-taking, (b) illegal conduct (c) money consuming habit

LEGISLATION CITED: Family Provision Act 1982
Real Property Act 1900
Succession Act 2006
Succession Amendment (Family Provision) Act 2008
Supreme Court Act 1970

CATEGORY: Principal judgment

CASES CITED: Akins v National Australia Bank (1994) 34 NSWLR 155
Bondy v Vavros (Supreme Court of NSW, Young J, 29 August 1988, unreported)
Bosch v Perpetual Trustee Co [1938] AC 463
Carroll v Cowburn [2003] NSWSC 248
Clifford v Mayr [2010] NSWCA 6
Foley v Ellis [2008] NSWCA 288
Green v Perpetual Trustee Company Limited (Supreme Court of NSW, Hodgson J, 10 July 1985, unreported)
Grey v Harrison [1997] 2 VR 359
Hampson v Hampson: Estate of the Late Iris Willena Hampson [2010] NSWSC 217
Hastings v Hastings [2008] NSWSC 1310
Hoadley v Hoadley (Supreme Court of NSW, Young J, 17 February 1987, unreported)
House v The King (1936) 55 CLR 499
Howarth v Reed, Supreme Court of New South Wales, Powell J, 15 April 1991 unreported)
In Re Fletcher (Deceased), Fletcher v Usher [1921] NZLR 649
LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd [2001] NSWSC 688; (2001) 53 NSWLR 31
Marshall v Public Trustee [2006] NSWSC 402
McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566
McIntosh v Williams [1976] 2 NSWLR 237
Michael Bienke v Brian Bienke; Estate of the Late Harold Bienke [2002] NSWSC 804
Minister for Aboriginal Affairs v Peko Wallsend Limited (1986) 162 CLR 24
Nicholls v Carpenter [1974] 1 NSWLR 369
Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116
Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64
Ray v Moncrieff [1917] NZLR 234
Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201
Turnbull & Co v Duval [1902] AC 429
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191

PARTIES: Glen James Hampson (Appellant)
Gary Geoffrey Hampson as executor of the Estate of the late Iris Willena Hampson (Respondent)

FILE NUMBER(S): CA 2008/281293

COUNSEL: A Harding (Appellant)
MB Evans (Respondent)

SOLICITORS: MDR Lawyers, Coolangatta QLD (Appellant)
Hungerford Lehmann & Andrews, Mullumbimby (Respondent)

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): 2008/281293; 2009/287749

LOWER COURT JUDICIAL OFFICER: Bryson AJ

LOWER COURT DATE OF DECISION: 26 March 2010; 4 June 2010

LOWER COURT MEDIUM NEUTRAL CITATION: Hampson v Hampson; Estate of the late Iris Willena Hampson [2010] NSWSC 217

2008/281293

GILES JA
CAMPBELL JA
HANDLEY AJA
17 DECEMBER 2010

Glen HAMPSON v Gary HAMPSON

Judgment

1 GILES JA: With an additional observation, I agree with the reasons of Campbell JA and with the orders his Honour proposes.

2 In relation to receiving further evidence, I would give perhaps greater emphasis to the fact that the case as pleaded and conducted at first instance was not one of representations made to Glen by his mother, but of representations made by Geoffrey. So far as the further evidence was of statements made by Glen’s mother, whether to Glen (Glen and Mr Whitla) or not to Glen (Mr Bents and Mr McClymont), it could possibly have been relevant to a case of proprietary estoppel against Geoffrey as in some way confirmatory of representations made by him. However, that case failed and was not revived. No case was pleaded or conducted of proprietary estoppel against Glen’s mother, the case which it was sought to make on appeal. Apart from the principles found in Akins v National Australia Bank (1994) 34 NSWLR 155, there was no basis for reception of the further evidence unless Glen’s case was repleaded, which he did not seek to do.

:

4 As so many of the people involved in the facts of this case have the same surname it is convenient, without intending any disrespect in doing so, to refer to each of them by his or her first name.

5 The Appellant, Glen Hampson, is the youngest of the five sons, and fifth of the seven children of the late Iris Willena Hampson (“the Testatrix”) and Geoffrey Hampson. The Testatrix died on 28 April 2007, leaving a will made 26 April 2007. It appointed the Testatrix’s eldest son, Gary, as executor, and gave her estate to her seven children. There is no dispute that this gift should be construed as being to the seven children equally.

6 Glen brought proceedings in the Equity Division of the Supreme Court of NSW against the executor, making two claims. The first was that he was entitled to one of the parcels of land that the Testatrix owned, known as Lot 12, by virtue of a proprietary estoppel. The other was that an order for provision under the Family Provision Act 1982 should be made in his favour.

7 Glen’s proceedings were heard together with a claim that his sister Lynne had made for further provision under the Family Provision Act. Bryson AJ heard those proceedings over three days in March 2010. His Honour dismissed both of the claims made by Glen: Hampson v Hampson: Estate of the Late Iris Willena Hampson [2010] NSWSC 217.

8 In the present appeal Glen seeks to reverse the dismissal of each of his claims.

9 The principal assets of the Testatrix’s estate were three parcels of land. Two of them are located near Mullumbimby, and are virtually adjacent. They are known as Lot 2 and Lot 12. The judge accepted that Lot 2 was worth $650,000, and Lot 12 was worth $500,000. The third parcel of land is at Goonengerry. The judge took its value as being $500,000. The only other assets were furniture and household items said to be valued at $4,000, and a little over $9,000 in a bank account. After allowing for costs of realisation of the land and contingencies, and costs payable out of the assets of the Testatrix, the judge estimated that a one-seventh share in the estate would be worth of the order of $200,000. Thus, he estimated the total distributable estate as worth approximately $1,400,000.

10 Lot 2 and Lot 12 were owned, during his lifetime, by Geoffrey Hampson. He died on 23 July 1995, and by his will appointed the Testatrix as his executrix and left his entire estate to her. Title to Lot 12 was held under the Real Property Act 1900. The Testatrix was registered proprietor of the land for many years before her death.

11 In 1978 a new house was built on Lot 2, and the Testatrix and Geoffrey moved there. Lot 12 has a much older house, which was the family home before the new house was built in 1978. Glen has occupied that house for most of the time since 1989.

12 Glen articulated his proprietary estoppel claim in a Statement of Claim. After identifying Lot 12 as “the land” it continued:

“7. In or about 1989 the Plaintiff’s father represented to the Plaintiff that he would give the land to him if the Plaintiff lived there and renovated the cottage on the land.

PARTICULARS

a. The representation was made orally;

b. The Plaintiff’s father promised the Plaintiff that he would transfer the land to the Plaintiff if the Plaintiff lived there and improved the cottage;

c. The Plaintiff’s father at or about the same time further represented to the Plaintiff that if the Plaintiff lived on the land and improved the cottage then the Plaintiff would have a home for life;

d. The Plaintiff’s father subsequently affirmed his promise to transfer the land to the Plaintiff but not until the death of the Plaintiff’s mother.

8. In reliance on the promise made by his father and in the expectation that the land would be transferred to him, the Plaintiff acted to his detriment and commenced occupation of the land and improvements of the cottage.

PARTICULARS

a. The Plaintiff has been in occupation of the land continuously since 1989;

b. The Plaintiff has paid tradesmen and purchased building materials to improve the land as particularised in Annexure ‘B’ of the Affidavit sworn by the Plaintiff on 23 January 2009 and filed on 7 April 2009;

c. The Plaintiff has provided building materials for improvements on the land from his business as particularised in Annexure ‘B’ of the Affidavit sworn by the Plaintiff on 23 January 2009 and filed on 7 April 2009;

d. The Plaintiff has provided materials to tradesmen and labourers in exchange for their labour in assisting the Plaintiff to improve the land as particularised in Annexure ‘B’ of the Affidavit sworn by the Plaintiff on 23 January 2009 and filed on 7 April 2009;

e. The Plaintiff has provided his own labour to improve the land as particularised in Annexure ‘B’ of the Affidavit sworn by the Plaintiff on 23 January 2009 and filed on 7 April 2009.

9. The Plaintiff occupied the land with the approval and acquiescence of the Plaintiff’s father.

10. The Plaintiff’s father died without transferring the land to the Plaintiff.

11. Following the death of the Plaintiff’s father the Plaintiff continued to occupy the land and improve the land with the approval and acquiescence of his mother.

12. The Defendant refuses to transfer the land to the Plaintiff.

13. Since the Plaintiff commenced occupation of the land in 1989 he has contributed most of his time and resources to the improvement of the land and did not pursue other opportunities in the expectation that the land would be transferred to him.”

13 The judge’s consideration of the proprietary estoppel claim started by recognising that the Testatrix was a registered proprietor of Real Property Act land, against whom no allegation of fraud was made, and concerning whom none of the exceptions to indefeasibility set out in section 42(1) Real Property Act applied. Thus, it was only by establishing that the Testatrix was subject to a personal equity that the proprietary estoppel claim could succeed. The judge said, at [15]:

“It is not enough that a party claiming, as Glen does, an equitable interest or an equity in Lot 12 should establish some entitlement against Geoffrey and his estate; it is necessary to establish a personal equity enforceable in her lifetime against the testatrix as registered proprietor.”

14 The judge accepted at [34] that if Glen’s evidence about what Geoffrey said to him at its most favourable passages, were accepted in full, that would provide an arguable case of proprietary estoppel against Geoffrey. However, as the judge observed at [35]:

“…there is no corresponding case against the testatrix and her estate. There is no claim that she ever gave Glen any promise or assurance that he would be treated as or would become the owner of Lot 12, the only relevant things that she ever did were to transmit title to her own name, make a will which did not give Glen Lot 12, and let him stay on Lot 12 and do what he liked without intervention by her, while she paid the rates and did not ask for rent or any other contribution from him. This is an unremarkable indulgence by an elderly mother towards her youngest son who was not doing much to make his way in the world, had no trade, had no significant property and liked to occupy himself, over many years, with work on the cottage on Lot 12 which never seemed to come to an end.”

15 That, by itself, would be enough to cause the proprietary estoppel claim to fail. However, the judge also rejected that claim on the facts. The judge’s view of Glen as a witness, at [30], was that he did not create a good impression, and that “he is incapable of precision or clarity when narrating events”. The judge found, at [36]:

“I do not have enough confidence in Glen and his evidence to make a finding, on the balance of probabilities, that Geoffrey ever indicated or promised to him, or made him understand in any other way, that Glen was allowed to occupy Lot 12 on the basis that in some way and at some future time he would become the owner of it.”

16 The judge relied not only on his impression of Glen as a witness, but also on matters including:

The absence of writing, and the absence of corroboration from any source of Glen’s evidence about Geoffrey giving him any promise or assurance about Glen’s future right to occupy Lot 12 and ultimately become owner of it.

The improbability of Geoffrey intending to make a gift of Lot 12 to Glen, when that would be “strikingly out of scale with Geoffrey’s treatment of his other adult children” ([38]). (A rough measure of the extent to which it was out of scale can be gained from the total value of assets in the Testatrix’s estate at the time of her death being $1.663m, so that Lot 12 made up 30% of its gross value.)

Glen’s not acting as owner of Lot 12 in his dealings with the Shire Council, by paying rates, or obtaining council approval for structural renovations to the cottage on Lot 12.

17 The judge concluded this aspect of the case as follows (at [41]-[42]):

“This is not a case where, on the facts found, either Geoffrey or the testatrix made a promise to Glen that he would have ownership of Lot 12 and thereby induced him to adopt and act on the assumption or expectation that that would happen. It is unremarkable that either parent should have permitted or tolerated Glen to live in a house on the family property which was fit to occupy but no one else was occupying. They could see, if they gave themselves any concern, that he was doing work on it. They did not stop him. This falls well short of playing such a part in the adoption by Glen of the assumption that he would at some time own the land that it would be unfair or unjust to leave the parent free to ignore the assumption. There was no element of encouragement by either parent of a belief that Glen was to be the owner. It was a legend of which he was sole author, and it gained nothing from his repetition. His mother was unlikely to evict him no matter what he had to say and could not stop his mouth. There is no evidence that she ever said anything to confirm or reinforce his idea, and as he said, it never came up.

The end of this consideration is that I do not find that there ever were any promise, acquiescence encouragement or other circumstances supporting a promissory estoppel such as Glen’s case relies on. His claim to an entitlement to Lot 12 fails.”

18 Glen seeks to have further evidence read on the appeal. At the hearing of the appeal, the Court heard argument on the application to read further evidence before hearing argument on any other issue. After a brief adjournment at the conclusion of that argument, the Court announced that the application to read further evidence was rejected, and that reasons would be given at a later time.

The Power to Receive Further Evidence on Appeal

19 The power to receive further evidence arises under section 75A Supreme Court Act 1970, which includes:

“(7) The Court may receive further evidence.

(8) Notwithstanding subsection (7), where the appeal is from a judgment after a trial or hearing on the merits, the Court shall not receive further evidence except on special grounds.

(9) Subsection (8) does not apply to evidence concerning matters occurring after the trial or hearing.”

20 The present appeal is from a judgment after a trial or hearing on the merits, and the evidence that is sought to be read does not concern matters occurring after the trial or hearing. Thus, unless there are “special grounds” section 75A(8) forbids the court to receive the further evidence.

“Special Grounds”

21 In Akins v National Australia Bank (1994) 34 NSWLR 155 at 160 Clarke JA (with whom Sheller JA agreed) said:

“Although it is not possible to formulate a test which should be applied in every case to determine whether or not special grounds exist there are well understood general principles upon which a determination is made. These principles require that, in general, three conditions need be met before fresh evidence can be admitted. These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible.”

22 As is apparent from the opening phrase of the passage just quoted, the “three conditions” are “not exhaustive” (Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116 at [14], [124] per Heydon JA (with whom Mason P and Young CJ in Eq agreed)). In particular, in some circumstances where there is a failure to satisfy each of the three “conditions” the court might find that “special grounds” are established: Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64 at [10], [22], [27] per Spigelman CJ (with whom Handley AJA agreed at [250]); [136] per Campbell JA (with whom Handley AJA agreed at [250]).

The Discretion Under Section 75A(7)

23 On the proper construction of section 75A, it is not automatic that whenever there are “special grounds” the court will use the power conferred on it by section 75A(7) to receive the evidence – because of the “may” in section 75A(7), there remains a separate discretion for the court to exercise.

24 In Phoenix v Canada Bay at [39]-[40] Spigelman CJ said, as part of his Honour’s reasons for rejecting an application to receive further evidence:

Aon Risk Services Australia Pty Ltd v Australian National University

[93] … The rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the court and upon other litigants.

This perspective is equally applicable to the exercise of the discretion to admit further evidence pursuant to s 75A(7) and (8). It is quite clear, on the basis of the respondent’s submissions in this court, that the tender of the evidence would give rise to further delay and increased costs. There is a public interest in finality of litigation as well as a private interest.”

The Proposed Further Evidence

25 Two affidavits are read on the application to receive the further evidence, to explain why the proposed further evidence was not adduced at the trial. Glen deposes to not being an educated man, to leaving school after completing year 10, and thereafter working mainly in labouring jobs. He had no previous experience of litigation, and relied totally on his lawyers. He gives evidence of having told his previous solicitor “about how my father had said to me that the property was to be transferred to me”. He also gives evidence that he told the solicitor that his mother had said to him “words to the effect that the property was mine and upon her death it would be transferred to me”, and that he gave that solicitor the names of people who could support “my claim that the property had been promised to me”. He gave the solicitor names that included of Craig Kelly, Sandy Bents, Clarrie Morrow, Neil Cameron and Benjamin McClymont. He says that on several occasions he asked the solicitor about following up with those people, and enquired when they were required to attend the solicitor’s office, but every time the solicitor’s reply was “wait until counsel advises us”.

26 The other document filed to explain why the proposed further evidence was not called at the trial is from Mr Phillip Kremmer. It takes the form of an affidavit that purports to have been affirmed before a solicitor, but the signature of the deponent has written above it, both in the attestation clause and also at the foot of the first page “all rights reserved”. Immediately following the signature the letters “AR” are handwritten, and on the line underneath the signature “I AM” also appears in handwriting. That unusual manner of execution makes one wonder about the extent to which Mr Kremmer is committed to the truth of the document he has signed. However, I will proceed by assuming, without deciding, that a document executed in that way is a valid affidavit.

27 Mr Kremmer says that he was living in Glen’s house from April 2009 to November 2009. He deposes to hearing Glen’s side of several telephone calls with his solicitor. He says he heard Glen say on “numerous occasions” “we are getting close to the hearing and I want you to arrange a time for a meeting with my witnesses in order to finalise their affidavits”. He says that thereafter Glen told him that the solicitor said to wait for the barrister.

28 Glen’s affidavit also contains material that is itself sought to be received as further evidence. One passage is:

“I brought the proceedings in respect of the property because I had been promised both by my father and my mother that it was to be transferred to me on my mother’s death. I had formed a genuine belief that the property was to be transferred to me because of what my father had said to me. This belief was reinforced by what my late mother had said to me on numerous occasions about the property, namely, words to the effect that the property was mine and upon her death it would be transferred to me.”

29 The other is the reference to his mother saying to him “words to the effect that the property was mine and upon her death it would be transferred to me”, that I have mentioned in [25] above.

30 Mr Sandy Bents deposes to having had “numerous conversations” with the Testatrix “over the years” in which she said to him words to the effect of “that lot 12 was for all intents and purposes Glen’s property and the property would always remain Glen’s”.

31 Mr Benjamin McClymont deposed to conversations with the Testatrix in 2006 in which she said:

“Lot 12 was Glen’s property and even though it was in her [Iris’] name now, it would go to Glen upon her death and that everyone knew of this.”

32 Mr Richard Whitla gives evidence about an occasion on or about 2004 when he attended the Testatrix’s house with Glen, to assist Glen with some kitchen repairs. He deposes that Glen said to the Testatrix “you had better let me know now, if your intentions are not to leave lot 12 to me, so I can get on with my life and arrange something else”. He says that the Testatrix replied, “Lot 12 is yours, and it will always be. Don’t let the others upset you.”

Special Grounds Established?

33 Mr Anthony Harding, counsel for Glen on the appeal, submits that Glen has acted with reasonable diligence by reason of having instructed his solicitor about the existence of the potential witnesses, and following that matter up with his solicitor from time to time, but inexplicably his solicitor failed to act on his instructions.

34 In Nicholls v Carpenter [1974] 1 NSWLR 369 a plaintiff who claimed to have been injured while a passenger in a motor vehicle sued the driver. The GIO admitted liability, and damages were assessed, but the GIO later sought to call fresh evidence to the effect that the plaintiff had been the driver. Hutley JA said, at 372:

not only the solicitor and counsel

35 Glass JA, at 374, said:

“A decision whether or not due diligence has been displayed depends on all the circumstances affecting the insurer’s preparation for trial.”

36 In McIntosh v Williams [1976] 2 NSWLR 237 a widow’s Compensation to Relatives action was presented on the basis that the deceased was a devoted family man. The death in question arose from a motor accident. The defendant’s insurer had carriage of the defence of the action. On the first day of the trial the defendant told the solicitor that he had heard a rumour that the deceased had had an extramarital relationship, and a child from that relationship. The trial concluded the next day, and the judge reserved judgment, eventually giving judgment two weeks later. After judgment an insurance investigator located the woman in question, and obtained a statement from her. Because the insurer was the real defendant in the action it was the reasonableness of its conduct that was the dominant consideration in deciding whether to permit the further evidence: 240 per Moffitt P, 256 per Samuels JA. The majority was not persuaded that the insurer had shown that it had exercised reasonable diligence, because it had not shown that it would not have been able to obtain the evidence in question, and make application to re-open the trial, before the judge delivered his judgment. In reaching that conclusion no distinction was drawn between the failure of the solicitor to act promptly on the information once received, and the failure of the insurer to do so. That is strongly indicative of the actions and inactions of the solicitor being attributed to his client.

37 Similarly, in Turnbull & Co v Duval [1902] AC 429, the Privy Council upheld the refusal of the Supreme Court of Jamaica to order a new trial on the ground of the appellants finding out about an important document after the trial, because (at 436) “[i]nability to obtain knowledge of the document before the trial is negatived by the fact that [the respondent] or her solicitor had it, or a copy of it, and no application for discovery was made by the appellants”. It would, of course, be the solicitors for the Appellants, not the Appellants personally, whose task it would be to make application for discovery.

38 When deciding whether a litigant has exercised “reasonable diligence” for the purpose of an application to admit further evidence on appeal, the litigant has the actions and inactions of his legal representatives attributed to him. There is no reason why the usual principle, that the actions and inactions of an agent acting within the scope of his authority are attributed to the principal, should not apply in the present context. If at a trial a litigant’s counsel decides not to read a particular affidavit, the litigant cannot establish “special grounds”, to enable that affidavit to then be read on appeal, by showing that the litigant exercised reasonable diligence to ensure the affidavit was in counsel’s brief, and thereafter the matter was out of the hands of the litigant, acting personally. The same applies to the failure of a legal representative to obtain evidence at all, where reasonable diligence on the part of that legal representative could have obtained it. In the present case, Glen’s previous solicitor could have obtained the evidence now sought to be read if he had tried to.

39 For these reasons, I do not accept that the Appellant has made out the “reasonable diligence” element of the three conditions in Akins.

40 I turn to whether the proposed new evidence is such that there is a high degree of probability that there would be a different verdict. The evidence that Glen seeks to give about promises made to him by his mother may well not be inadmissible by reason of being in general terms and in indirect speech: LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd [2001] NSWSC 688; (2001) 53 NSWLR 31. However, the general and imprecise form in which it is given must affect its weight.

41 The effect of Glen’s proposed further evidence on the overall weight of the evidence in the case, must be detrimentally affected to a significant extent by some of the evidence that Glen gave in cross-examination. When he was being cross-examined about his evidence of his father making representations to him about receiving Lot 12, the evidence included:

“A. There was one occasion where he just explained to me the thing about now everything is going to go to Mum, everything is going to go to Mum and then it will be up to Mum at the end of her death, before lot 12 will become mine.

…

42 Concerning conversations with his mother about the destination of Lot 12 after her death, his evidence was:

…

HIS HONOUR

43 Thus, his present evidence that his mother made such a representation to him is in flat contradiction with his denial at the trial that the topic was ever discussed between them. As well, the judge was doubtful of Glen’s reliability as a witness ([15] above). Further, there is the unusual situation that Mr Whitla gives evidence of the Testatrix making a representation about the title to Lot 12 in Glen’s presence, yet Glen gives no evidence about it at all, and no explanation is put forward for his failure to do so.

44 While the evidence of Mr Bents and Mr McClymont provides support for the Testatrix having an intention for Lot 12 ultimately to become Glen’s, they do not provide a basis for concluding that the Testatrix told Glen that that was her intention.

45 While the evidence of Mr Whitla is of a direct representation by the Testatrix to Glen about her testamentary intentions concerning Lot 12, it suffers from two difficulties. One is that even though Mr Whitla’s affidavit was prepared specifically for the purpose of the present hearing, Glen’s affidavit that was also prepared specifically for the purpose of the present hearing, says nothing about the conversation to which Mr Whitla deposes. That not only has a tendency to weaken the acceptability of Mr Whitla’s evidence, but as well, if Glen cannot now remember it, there is a doubt about whether it would be appropriate for the court to infer that he relied on it in any way. The second problem with Mr Whitla’s evidence is that it is in complete contradiction to Glen’s evidence given at the trial, quoted at [42] above.

46 For a proprietary estoppel claim based on representations by the Testatrix to Glen to succeed, there must be evidence not only of a representation by the Testatrix concerning her testamentary intentions in relation to Lot 12, but also reliance by Glen on that representation. In [31] of the judgment the judge set out various items of work that Glen carried out on Lot 12. However, there is no evidence from Glen that any of this work was done in reliance on a representation or assurance that his mother made to him. Rather, the context in which the evidence was put forward at the trial was that it was evidence of reliance on a representation or assurance that Glen’s father made to him. As well, even now Glen does not seek to put before the Court further evidence on the topic of having relied in any way on a promise or assurance made to him by his mother concerning ownership of Lot 12.

47 When there are all these difficulties concerning the proposed new evidence, I am not satisfied that the condition referred to in Akins, that the evidence must be such that there is a high degree of probability that there would be a different verdict, is made out.

48 Further, at least in relation to Glen’s evidence about the representations and Mr Whitla’s evidence, for the reasons I have already given I am not satisfied that the evidence of those two particular witnesses is credible.

49 While the requirement of “special grounds ” in section 75A(8) can sometimes be met even if the “three conditions” in Akins are not satisfied, the case was not presented to us on the basis that there was a reason why the Akins “three conditions” should not be the touchstone for the existence of “special grounds” in the present case. Thus, reception of the further evidence is forbidden by section 75A(8).

Discretion to Admit Further Evidence

50 Quite apart from the “special grounds” requirement not being made out, there are the most powerful discretionary reasons in the present case for not admitting the further evidence.

51 If the evidence now sought to be admitted, were admitted, it would be impossible for this Court to weigh its significance against that of other evidence in the case. It is inevitable that cross-examination of at least some of the deponents would be required, and I can see no valid basis upon which a court could refuse to permit it. Mr Harding accepts that if the evidence were admitted, the only practical way of inserting the evidence into the fabric of the evidence already given would be to remit the matter to the Equity Division. Bryson AJ’s commission as an acting judge has now expired, so it would not be possible to remit the matter to his Honour, for the taking of supplementary evidence. Thus, a totally new trial would be required. The delay and increased costs could not be justified in the present case, particularly when (as appears below in connection with the Family Provision Act claim) all the people affected by this litigation are in comparatively modest financial circumstances.

52 Even worse, the evidence now sought to be relied upon seeks to make a different case to the proprietary estoppel case that Glen had pleaded. The pleaded case said nothing about any representations being made to Glen by his mother. It merely said that after his father’s death Glen had continued to occupy the land and improve it “with the approval and acquiescence of his mother”. The pleaded case does not even contend that the Testatrix knew of the representations of Geoffrey, pleaded in para [7] of the Statement of Claim. Thus, any new trial would need to be on the basis of an Amended Statement of Claim, pleading the different case that Glen now seeks to propound. I do not accept that an appellate court’s power to accept further evidence on appeal should lead, in the circumstances of the present case, to such an extreme result.

53 These are my reasons for having been party to the Court’s decision to reject the application for the Court to receive further evidence on appeal.

54 Mr Harding accepts that if the application to receive further evidence is rejected, the appeal against the judge’s finding concerning proprietary estoppel must likewise be rejected.

55 The Family Provision Act 1982 has been repealed by section 5 of the Succession Amendment (Family Provision) Act 2008. The latter Act added to the Succession Act 2006 a new Chapter 3, that dealt with the topic of family provision from deceased estates. However, under clause 11(2) of Schedule 1 of the Succession Act 2006, the provisions of the Family Provision Act 1982 “continue to apply in relation to the estate of a person who dies before the commencement of this clause, in so far as they are not affected by the operation of this Part.” That clause commenced on 1 March 2009: section 2(1) Succession Amendment (Family Provision) Act 2008 and Government Gazette No. 38 of 20 February 2009, page 1036. It is common ground that the present application continues to be governed by the Family Provision Act 1982.

The Judgment Below

56 Early in the judgment the judge stated, at [10]:

“The testatrix did not leave a small estate, but in relation to the needs of the adult children and their claims on her bounty the resources are not ample. No one in the family is well-off and their circumstances range from strained at best to severely adverse at worst. Any decision to increase the provision for one member of the family requires careful attention to the impact in reducing provision for others.”

57 In considering the Family Provision Act claim, the judge started by considering the circumstances of each of the Testatrix’s children, from eldest to youngest. His Honour’s consideration was detailed and meticulous. I will recount here only some of the presently salient parts of that consideration.

58 The eldest child, Gary, was aged 54 at the time of the trial. (In accordance with sections 7 and 9(2) Family Provision Act, it is the time the order is made that is the relevant time as at which to consider both jurisdiction to make an order, and quantum of any order made.) He had lived on Lot 12 from 1979 to 1985, when he built a house on Lot 11, a very steeply sloping block of about 4.3 ha that lies between Lot 12 and Lot 2. Geoffrey gave Lot 11 to Gary in about 1985. Gary bore the expense of subdivision of Lot 11, and building the house on it. The judge identified his assets as being Lot 11 ($450,000, though that estimate of value “may be a little conservative”), bank account ($40,000), debt from Glen ($8,500), motor vehicles ($38,000), and shares (about $5,300). Lot 11 is not mortgaged. Thus, Gary’s total assets are of the order of $542,000. He carried on a farming business in partnership with Geoffrey from 1979 until Geoffrey became ill, then continued the business himself. He gave up farming in December 2008 through ill health. He is married, but has lived separately from his wife since 1989. His income for the financial year to 30 June 2008 was $3,187. He has been receiving a disability pension since March 2009, which is his present means of support.

59 Ian was aged 53 at the time of the trial. He is married and has three children, one of whom is now adult but still lives at home. He owns a mortgaged house and various other assets, such that his net assets are of the order of $611,000. That figure is arrived at after taking into account debts totalling in excess of $560,000. He and his wife conduct a fish and chip shop in rented premises in Mullumbimby. Though the judge did not specifically mention it, Ian gave evidence that the combined income of himself and his wife was $38,000 for the year ended 30 June 2008.

60 Donald is a bricklayer who lives in Western Australia. He was aged 51 at the time of the trial. He owns a mortgaged house. His net assets are of the order of $374,000. He is divorced, and had maintenance obligations relating to several children, though by the time of the trial, two of his sons had reached 18 years of age and commenced work. Though the judge did not specifically mention it, Donald’s uncontested evidence was that his income was of the order of $30,000 per annum. Geoffrey gave Donald a block of land known as Lot 1, containing about 1.75 ha, that was subdivided off from what is now Lot 2 in 1982. Donald built a house on Lot 1, but when he was divorced in 1989 the house passed to his former wife in a property settlement.

61 Robert is a bricklayer. He was 44 years old at the time of the trial. He owned an investment property in Brunswick Heads that was free of mortgage. His net assets were of the order of $669,000. His earnings in the year to 30 June 2008 were $40,000, which included $23,500 attributable to the net income from the Brunswick Heads property. Thus his income from personal exertion during that year was $16,500. He presently has an arrangement with the executors to buy Lot 2 from the estate for $650,000. Because of his extremely limited ability to service a mortgage, it is inevitable that it will be necessary for him to sell the Brunswick Heads property to finance the purchase of Lot 2.

62 Glen was 43 years old at the time of the trial. He is unmarried. He conducts a business involving acquiring and selling second-hand building materials in rented premises in Mullumbimby, that he values at $20,000. He owns a house at Hay, which he values at $30,000 and is in poor repair. It is presently uninhabitable and has never been rented out or occupied during his ownership. That house was purchased in 2006 by Glen borrowing $50,000 from a bank, supported by the security of a mortgage that the Testatrix gave over Lot 2 and Lot 12. He has a 1993 motor vehicle, household furniture, and a small amount of money in a bank. His debts, including $46,000 owing to the Commonwealth Bank for the loan connected with the house at Hay, total $68,700. Thus, he has a negative net asset position. His net taxable income for the 2009 tax year was approximately $35,000. The evidence at one stage makes incidental mention that Glen has a daughter, Christina, but there is no evidence concerning her age or that she was in any way dependent upon him.

63 Though Glen has carried out building work on the house on Lot 12 over the course of about 20 years, the judge did not accept Glen’s estimate of $100,000 as the value of everything he had expended. He described the end result of the building work on the house as “not impressive; the house may in some sense have been improved, but it has also suffered from uncompleted tinkering at various parts of it” (at [56]). Further, the judge did not accept that the value of the house was increased by the cost of the resources expended.

64 The judge accepted that in 2006 Glen was prosecuted and fined for cultivating marijuana. He accepted that at some stage about the mid-1990s Glen showed Ian marijuana plants that he was growing in concealed positions on the Goonengerry property and that “on two occasions when visiting Glen at Lot 12 [Ian] found Glen and others smoking bongs at about 9.00am”. The judge found that Glen has used marijuana from time-to-time and continues to do so. He continued at [59]:

“I am reluctant to make a decision allocating family resources, which are not ample, to a person who uses marijuana, particularly remembering that Glen has a history of having cultivated marijuana.”

65 The judge’s conclusion concerning jurisdiction to make an award in favour of Glen was, at [60]-[62]:

“Glen is not a prosperous man. He is a single man and he does not own suitable housing. Glen has no dependants and no continuing significant health problems. He owns a business, which his experience in the building industry has well equipped him to conduct, and his annual income of about $35,000 is, in the family context, relatively high. His only significant investment is the house at Hay, a poor investment which he would be better off without. He has a number of debts, and the provision made for him under the Will would, if he had not incurred large costs in this litigation, have enabled him to become clear of debt and have some reserve which may have assisted him to meet contingencies or perhaps gone some way towards an initial deposit on housing.

Glen’s need is that he has arrived at the age of 43, after many years in the workforce, owning a business in rented premises but without any significant asset in the nature of housing; the investment in Hay is small and of no use to him. As he owns the business he is in a position to support himself, quite well in relation to his income in earlier years, and to cope with his debt. In my judgment the testatrix did everything that it was appropriate for her to do by way of provision for Glen. There was no reason why she should have dealt with him more generously than others.

Singer v Berghouse

66 Further, at [62] he held that, even if jurisdiction were made out, it would be inappropriate to order further provision for him:

“Particularly significant is assessment of his claim in the context of the claims of other family members; there is no good reason why his claim should outweigh any of the others and lead to reduction of their provision. A further consideration is that his history of use and cultivation of marijuana indicate the wisdom of a careful approach to placing family capital in his hands. Glen has the very considerable benefit conferred by his parents of occupation of the house for many years without payment of rent, rates or other outgoings. He has had about twenty years usage of a significant family asset for his long held project or hobby of tinkering with building work without completing anything. It would not be appropriate to order any further provision for him. His claim will be dismissed.”

67 Gaye was 42 at the time of the trial. She is married, with children aged 10 and 13. She works part-time as a teacher, while her husband works as a storeman. Their total earnings are a little over $76,000 a year. They own a mortgaged house, a motor vehicle, bank accounts and shares. Their total assets other than superannuation are approximately a net $173,000. Gaye has a superannuation account, with a balance of a little under $77,000.

68 Lynne was aged 38 at the time of the trial. She has never married. She has three children, two of whom are still not independent. She received no maintenance from the fathers of those children, and is unlikely to do so. Since 1998 she and the children then living with her occupied a structure called variously a cottage or a shed, on Lot 2. She completed year 12 at school, and has had intermittent work as a waitress or shop assistant. In the judge’s view, her prospects of gaining sufficient employment to support herself were not high. Her regular income is a sole parent pension and a family allowance. Her only assets are an old car with no real value, and less than $20,000 in a bank account. The judge regarded her as falling into a class of adult sons and daughters:

“… who are incapable of economic independence for reasons that are not strikingly unmeritorious and for whom parents should make adequate provision for maintenance and advancement, even though overall the result may seem hard to some degree on other family members who do not have the corresponding shortcomings.” ([72])

69 The judge ordered that, in lieu of the provision made for her under the will, she should receive $300,000. He allocated the burden of that provision unevenly:

“No-one in the Hampson family is well-off, but some are better off than others. Gary, Donald and Robert are in a better position to bear the burden of extra provision for Lynne than are Ian, Glen or Gaye. I will frame my orders so that out of the one-sixth share which each will have when I set aside the provision for Lynne in the will, Gary, Donald and Robert will each be charged $60,000 to make up the provision for Lynne, and Ian, Gaye and Glen will each be charged $40,000.”

70 The judge’s finding that jurisdiction to make an award has not been made out is a reference to section 9(2) Family Provision Act which, so far as relevant, provides:

“(2) The Court shall not make an order under section 7 or 8 in favour of an eligible person out of the estate or notional estate of a deceased person unless it is satisfied that:

(a) the provision (if any) made in favour of the eligible person by the deceased person either during the person’s lifetime or out of the person’s estate, or

…

is, at the time the Court is determining whether or not to make such an order, inadequate for the proper maintenance, education and advancement in life of the eligible person.”

71 In Singer v Berghouse (No 2) (1994) 181 CLR 201 at 209-210, the majority held that determination of the jurisdictional question:

“… calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.”

72 In Foley v Ellis [2008] NSWCA 288 at [87], Sackville AJA referred to this passage and continued at [88]-[89]:

Family Provision Act

Vigolo v Bostin

‘Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question of whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances … The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors .” (Emphasis added.)

Palmer v Dolman

‘had any claim on [the testator’s] bounty or demonstrated need

73 An appeal court can alter a trial judge’s decision concerning the jurisdictional question in a Family Provision Act application only in the same circumstances as it can alter a discretionary decision by a trial judge: Singer v Berghouse (No 2) (1994) 181 CLR 201 at 212; Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 at [82] 220; Clifford v Mayr [2010] NSWCA 6 at [67]-[74].

74 The conventional statement of the principles for appellate review of discretionary decisions is that in House v The King (1936) 55 CLR 499 at 504-5:

“It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

The Grounds of Appeal

Failure to Give Weight to Relationship Between Appellant and Testatrix

75 The written submissions group the grounds of appeal concerning the Family Provision Act into three convenient categories. The first contends that the judge failed to give any, or alternatively any proper, weight to the relationship between the Appellant and the deceased.

76 The judge made specific findings that each of Glen’s siblings had a “good relationship” with the Testatrix.

77 Glen had given some specific evidence that he had had a close and loving relationship with the Testatrix, that he had never had a falling out with her, and that he had lived on the family property for the whole of his life except for a period between 1985 and 1989 when he had to travel for work. He said that for the first couple of years after his father died he spent a lot of time “looking after mum” and during the last 10 years of the Testatrix’s life it was only Lynne, Gary and himself who “looked after mum”.

78 The judge did not refer to this evidence. For that reason it is submitted he has failed to carry out the task required.

79 Singer v Berghouse (No 2) puts it beyond argument that “the totality of the relationship between the applicant and the deceased” is a matter to be had regard to on the jurisdictional question. However, I would not draw the conclusion that the judge failed to do so. The fact that (as the judge found) the Testatrix permitted Glen to stay on Lot 12 “and do what he liked without intervention by her”, that she paid the rates, and did not ask for rent or any other contribution, to some extent speak for themselves. The judge’s description of this conduct as an “unremarkable indulgence” by the Testatrix, and that she took the financially significant step for a widow on the pension of mortgaging her home as security for a guarantee of Glen’s debt to purchase the Hay property, are in themselves indications in the judgment of her goodwill towards Glen.

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

81 In these circumstances, if there is nothing particularly remarkable about the relationship between an applicant and a deceased, the fact that a judge makes no specific comment about that matter is not an indication that it has been overlooked. Here, there was nothing particularly remarkable about the relationship between Glen and his mother, and the specific evidence that he gave concerning it was at a very high level of generality. I am not persuaded that the judge failed to give any weight to the relationship.

82 That conclusion is strengthened when one bears in mind that there was no issue at the trial about the nature of the relationship between Glen his mother. Mr Evans, counsel for the executors at the trial, specifically said in address:

“In my submission there can be no doubt on the evidence that the deceased was a loving mother and that she loved all of the children, however difficult some of them might have been at times, and that she did what she could to support them during her lifetime.”

83 There is only limited scope, in an appeal from a decision under the Family Provision Act, for a ground of appeal that alleges that the judge failed to give “proper weight” to a consideration that the judge has taken into account. Such a ground of appeal would provide a separate basis for reversing the judge’s decision only if the outcome is “unreasonable or plainly unjust”. (cf Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 41 per Mason J regarding the review of an administrative decision.) It is the nature of a discretionary decision that a range of possible decisions is legitimately open to the decision-maker, provided the judge acts on correct principles, is not guided or affected by extraneous or irrelevant matters, does not mistake the facts, and takes into account the material considerations. Within that range, the weight that the judge gives to the various matters entering into his decision is a matter for the judge, not for the appellate court, unless the outcome is unreasonable or plainly unjust.

84 Taking into account that Glen had a good relationship with his mother, I do not regard the outcome in the present case as “unreasonable or plainly unjust”. While Glen’s net asset position is the worst of any of the siblings, he has no dependents (unlike Ian, Donald, Gaye and Lynne). His health presents no obstacle to earning a living (unlike Gary). After taking into account that Ian’s stated income is a joint income of Ian and his wife, Glen’s income is the highest of any of his siblings apart from Gaye. As well, the judge found that one of the ways in which he was able to get building work performed on Lot 12 was that he “used building materials and services and the work of tradesmen in a system of exchange for building materials provided by him as the tradesmen he dealt with needed them” ([31]). Thus, he has demonstrated an ability to obtain goods and services, at least to some extent, other than through the expenditure of taxable income. Gary’s working life is over. Glen has more of his working life ahead of him than do Ian, Donald and Robert. In particular, when Ian is about 10 years older than Glen, and Donald about 8 years older than Glen, the proportions of the likely remaining working lives of Ian and Donald are significantly less than the proportion of Glen’s working life that is likely to remain in front of him.

85 Section 9(2)(a) requires the court to take into consideration, when answering the jurisdictional question, not only the provision that the Testatrix made for Glen by her will, but also the provision that she made for him during her lifetime. While Glen has lived on Lot 12 for something like 20 years, for the first part of that time Geoffrey owned Lot 12. However, the Testatrix survived Geoffrey by nearly 12 years, and during that period, Glen’s occupation of Lot 12 without payment of rent or outgoings was attributable to the Testatrix. Even taking into account that Glen carried out some work on the property, the opportunity to occupy the property was still a significant benefit given to him.

86 To the extent that I have not already alluded to them, the matters that the judge referred to at [60]–[62], that I have quoted at [65] above, also show that the outcome was not unreasonable or plainly unjust.

87 For these reasons, I would reject the first ground of appeal.

Use of Marijuana

88 The second ground of appeal concerning the Family Provision Act decision contends that the judge erred by taking into account an irrelevant consideration, namely the finding that the Appellant had used marijuana from time-to-time and continued to do so, or alternatively that the judge erred by giving undue weight to the finding that the Appellant had used marijuana from time-to-time and continued to do so.

89 The submission made concerning this ground is very simple. It is, in totality:

“Even on the basis of the evidence which the primary judge accepted as to the Appellant’s marijuana use, this was not a proper basis for deciding to not order any further provision to him.”

90 This ground of appeal needs to be considered in two parts.

91 The first part (up to ‘or alternatively’) seeks to invoke the aspect of the House v The King test whereby a discretionary decision can be set aside if the judge “allows extraneous or irrelevant matters to guide or affect him”. Thus, establishing that part of the ground involves establishing both that the Appellant’s use of marijuana was an irrelevant fact, and that that was a matter that affected the judge’s conclusion on the jurisdictional question.

92 If the first part of the ground failed, the second part of the ground of appeal, concerning “giving undue weight”, could succeed only in the circumstances I have outlined at [83] above.

93 For the purpose of the jurisdictional question under the Family Provision Act, a consideration is irrelevant if it is incapable of affecting whether “at the time the Court is determining whether or not to make an order, [there has been] inadequate [provision] for the proper maintenance, education and advancement in life of the eligible person” (section 9(2)).

94 In some circumstances, use and cultivation of marijuana could be relevant to the jurisdictional question.

95 One possible relevance arises from the conduct being illegal. Having engaged in illegal conduct is not a bar to a claim under the Act: Hoadley v Hoadley (Young J, 17 February 1987, unreported); Hastings v Hastings [2008] NSWSC 1310 at [40]. Further, I would doubt that the illegality of the conduct, in itself, is a relevant circumstance. However, illegal conduct by an applicant can sometimes bring consequences that are relevant circumstances, or be a part of a bigger picture that is a relevant circumstance. One example is Hastings v Hastings [2008] NSWSC 1310, where the applicant, a son of the relevant deceased, had been involved in serious crimes involving the importation and distribution of marijuana in America. His arrest on drug running charges received newspaper publicity in Australia, that reached the deceased’s community. The fact that the deceased “felt she was shunned and was embarrassed by the publicity” ([38]) was an element of the relationship between the applicant and the deceased that could legitimately be taken into account. His conviction on another occasion resulted in not only a prison term, but also forfeiture of his assets. While the applicant had poor financial circumstances, that was largely due to his property having been forfeited. That was another relevant matter to take into account in deciding what was adequate provision for his proper maintenance and advancement in life.

96 Another aspect of marijuana use that could in some circumstances be relevant to the jurisdictional question is the tendency of regular users to spend significant amounts of money in feeding their habit. A tendency on the part of an applicant to waste money on items that are either of no use or are positively damaging to himself can enter into what is adequate provision for proper maintenance of that applicant. To the extent to which it is still of use to refer in Family Provision Act legislation to the provision that a wise and just husband or father fully aware of all the relevant circumstances would have made (cf Bosch v Perpetual Trustee Co [1938] AC 463 at 479; McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 at 571-572; Singer v Berghouse(No 2) [1994] HCA 40; (1994) 181 CLR 201 at 209; Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 at [15]-[17] per Gleeson CJ, cf at [60]-[63] per Gummow and Hayne JJ, cf [113]–[121] per Callinan and Heydon JJ), in my view marijuana use is a matter that the wise and just parent would be likely to take into account in deciding to make provision for a child, or in fixing on the type and amount of provision to make for a child. Thus, it can be taken into account by the court in deciding whether provision made for a child is inadequate for proper maintenance, education and advancement in life, and also in deciding what would be adequate for proper maintenance, education and advancement in life.

[1917] NZLR 234 concerned an applicant who was the only son of a deceased, who had been left the income of a sum of money, with the capital of that sum on his mother’s death. The applicant was an able-bodied labourer, and “a chronic drunkard”. Chapman J rejected the argument that the applicant should be treated as a man suffering from a chronic disorder, such as being maimed or insane. His Honour said, at 235:

“[I]t would be a novel use of the powers of this Act to relieve the son of his burdens when the only result would be to set free his resources to be spent in drinking. The Court in these cases is asked to make good some failure on the part of the testator to perform his duty. It seems to me he has most thoroughly endeavoured to do his duty towards the applicant.”

98 Similarly, in Bondy v Vavros (Supreme Court of NSW, Young J, 29 August 1988, unreported at 10) Young J (as his Honour then was) contemplated that:

“… if one can see that a plaintiff is a spendthrift and the testator has arranged his will in such a way as to limit the funds flowing to the plaintiff, then one may very well come to the conclusion that the plaintiff has failed to establish that there has been any breach of moral duty.”

99 In such a situation, if a plaintiff had been left periodical income, then even if another plaintiff who was similarly situated but not at serious risk of frittering away capital could have obtained a capital sum in lieu of the income stream, it might be concluded that for that particular plaintiff the income stream was adequate and proper provision.

100 I should here mention that the passage I have quoted from Bondy v Vavros was preceded by the following statement:

“If a person is entitled to an order, what they do with the money that they receive is their business and it is none of my affair if I very much fear that the money may be wasted on wine, women and song in a short period of time.”

101 That statement has sometimes been treated as though the court should disregard the likely use that an applicant will make of an award (eg Michael Bienke v Brian Bienke; Estate of the Late Harold Bienke [2002] NSWSC 804 at [24]), or disregard it at the jurisdictional stage though possibly taking it into account in the form of the order (Howarth v Reed, Supreme Court of New South Wales, Powell J, 15 April 1991 unreported at 42). In my view that involves a misreading of the statement in its context. The statement is part of the same paragraph that I have quoted at [98] above, and precedes the passage I have quoted at [98]. The sentence I have quoted at [98] commences with the words “On the other hand, when one is considering what a wise and just testator would have done, …”. The sense of the whole of the paragraph is, if a person is entitled to an order (ie, to receive what is adequate for proper maintenance, education and advancement in life, or what the wise and just testator would have given him) it is no further concern of the court that there is a prospect that the applicant might waste the money. However, to the extent to which the wise and just testator would take it into account, the prospect of the applicant wasting the money is a legitimate matter to take into account in deciding whether the applicant has been left without adequate provision for proper maintenance, education and advancement in life.

102 There is ample precedent, and justification in principle, for a tendency of an applicant to spend excessive amounts of money unwisely (whether through an addiction to alcohol, drugs or gambling, or simply through habitual spendthrift characteristics) to enter into consideration for the purposes of the second stage of the process identified in Singer v Berghouse (No 2), namely, once jurisdiction is established, formulation of an order under the Family Provision Act. Some examples from the caselaw are collected and discussed in the appendix to this judgment.

103 Even though regular marijuana use by an applicant is the sort of thing that can be a relevant consideration for the purpose of the jurisdictional question, it is another question whether in a particular case the facts are such as to make it of any use in deciding whether an applicant was left without adequate provision. In the present case, the judge has made no finding that the Testatrix was distressed or embarrassed, or in any other way detrimentally affected by Glen’s marijuana use, or that it affected the relationship between them. Glen said, without challenge, that the fine that was imposed on him in 2006 was “$300 or something”. There was no finding (nor any basis in the evidence for finding) that Glen’s present financial situation is to any specific extent the consequence of marijuana use. When the gift that was left to Glen by the will was capital, there would be no occasion for applying the type of argument that Chapman J used in Ray v Moncrieff and that Young J contemplated in Bondy v Vavros. There was neither exploration nor finding of the extent to which the marijuana he used was purchased rather than home grown or obtained by barter. The most that the evidence permits one to conclude about Glen’s marijuana use, is that it creates a risk, of uncertain extent, that he will dissipate assets.

104 However, I do not regard the comparatively slight consequences that the evidence enables one affirmatively to conclude have followed or are likely to follow from Glen’s marijuana use as showing that the judge’s conclusion on the jurisdictional question was wrong. That is because I am not persuaded that the judge took Glen’s marijuana use into account on the jurisdictional question at all. The topic appears in the judge’s reasons because there was evidence about it, and a submission (scarcely developed) to the effect that it was a factor counting against making an order in Glen’s favour. When the judge said, “I am reluctant to make a decision allocating family resources, which are not ample, to a person who uses marijuana …” he is not indicating a refusal to make such a decision, merely a reluctance. Further, the occasion for the judge to allocate any resources would only arise once the jurisdictional stage was answered affirmatively to Glen.

105 The structure of the relevant part of the judgment is clear. Paragraphs [54]-[59] deal with various aspects of the detail of the evidence relating to Glen. Paragraphs [60], [61] and the first two sentences of [62] are a summary and evaluation of that evidence, directed to the jurisdictional question. The rest of [62], beginning “[i]f the second stage were reached” is dicta, indicating the approach the judge would have taken had he found jurisdiction. It is only at that stage of the reasoning that he says “[a] further consideration is that his history of use and cultivation of marijuana indicate the wisdom of a careful approach to placing family capital in his hands.” The use of “capital” is this context is consistent with the authorities that have made an order for provision of an income stream, rather than capital, to an applicant who established jurisdiction, but in relation to whom there existed a sufficiently serious risk that money would be wasted. Further, his Honour is not saying that if jurisdiction were established, he would not make an award of capital, merely that a “careful approach” should be taken to any proposal for giving him capital.

106 In these circumstances, I am not persuaded that the judge took into account Glen’s use of marijuana in reaching his decision on the jurisdictional question. Further, insofar as he took the marijuana use into account in expressing dicta, the marijuana use was not an irrelevant consideration. Thus, I would not uphold the first part of this ground of appeal.

107 When I have concluded that the judge did not take the marijuana use into account at all at the jurisdictional stage, it is unnecessary to go into whether the same test applies to the identification of a “relevant consideration” for the purpose of exercising a right of appeal from a judge’s discretionary decision as applies for the purpose of judicial review of an administrator’s decision (eg Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39).

108 For the reasons I have previously given at [84]-[86], the second part of this ground of appeal likewise fails.

Weighting of Glen’s Financial Needs vis-a-vis Needs of Others

109 The third ground of appeal is that the judge failed to give any, or alternatively any proper, weight to Glen’s financial needs vis-a-vis the needs of other members of the family.

110 The submission that the judge failed to give any weight to Glen’s financial needs is unsustainable. Early in the judgment ([10], quoted at [56] above) the judge recognised that his task was to compare the needs of the children in the family, and decide whether those needs, in light of the assets available for distribution, showed that Glen had been left without adequate provision for his proper maintenance and advancement in life. Immediately before he began a detailed consideration of the various circumstances of the family members, the judge said, at [44]:

Family Provision Act

Singer v Berghouse

Vigolo v Bostin

111 When the judge said, at [62] (quoted at [65] above) that:

having regard to his circumstances

112 As well, the judge explicitly had regard to Glen’s financial circumstances when he made the burden of Lynne’s order fall less heavily on Ian, Gaye and Glen than it fell upon Gary, Donald and Robert. The first aspect of this ground of appeal fails.

113 The second aspect of this ground of appeal could succeed, consistently with the test for appellate review of discretionary decisions, only if consideration by the appellate court of Glen’s financial needs demonstrates that the decision is unreasonable or plainly unjust. For reasons previously given at [84]-[86], I am not persuaded that the decision meets that description.

114 Glen’s submissions draw particular attention to the fact that Gary and Donald each received a parcel of land from his father. To the extent to which those parcels of land continue to be reflected in the value of their respective assets, it is a matter appropriate to be taken into account, and the judge actually took it into account. If the reason for drawing attention to these two gifts of land, by someone other than the Testatrix, is to suggest that it provides a basis for concluding that the Testatrix should have done something similar for Glen, it is mistaken.

115 In these circumstances, the appeal should be dismissed insofar as it alleges error in the determination of Glen’s claim under the Family Provision Act.

116 The orders I propose are:

(1) Application to receive further evidence on appeal dismissed with costs.

: I agree with Campbell JA.

**********

APPENDIX

118 In In Re Fletcher (Deceased), Fletcher v Usher [1921] NZLR 649 an applicant who was incapable of working, without means, but who was “addicted to drink”, had been left only a small piece of real estate. Adam J said, at 650, that the applicant should receive a weekly sum, “but that he should be protected in some way against his propensity to waste the allowance. The court should, I think, take such precaution as a prudent testator would be expected to take in such a case”. An order was made for the applicant to receive a weekly sum for life “upon condition that he shall abstain from the use of intoxicating liquor, and that he shall concur with the trustees in the sale of the property given to him by the will”. That allowance was charged, first, upon the real estate that the applicant had been given by the will, and secondly upon a part of the testator’s estate that had been given to a particular son of the testator. The judge also, at 651, imposed protective provisions concerning the arrears of the allowance, namely that they “will be applied by the trustees of the will in payment of such debts owing by the applicant as the trustees think ought to be paid, and the surplus (if any) will be paid to the applicant at the rate of 10s. per week until the monies are by that means exhausted.”

119 In my view the imposition of the condition that he should abstain from the use of intoxicating liquor is wrong for several reasons. One is that if it means that if the applicant ever thereafter has a drink, all provision for him is forfeited, I cannot believe that the wise and just father would impose such a draconian condition. If it means that he should, as a matter of regular practice, rather than occasional lapse, abstain from the use of intoxicating liquor, it is too imprecise to be of much practical use, and very hard to enforce. Also, even on this less stringent reading it strikes me as being too draconian to be the work of a wise and just father. Apart from that condition in the order, the order is in my view within the range of permissible discretionary orders.

(Supreme Court of NSW, Hodgson J, 10 July 1985, unreported) concerned two adult son applicants. One of them had once been a heroin user, but claimed to have given it up, though he occasionally still smoked marijuana. The judge held that it was appropriate that legacies of equal amounts be given to the two brothers. However, he had a concern about whether one of the brothers was “entirely free of any drug problem”. He wished to have further submissions:

… as to whether or not there should be any terms attached to his gift to ensure that it is used for a purpose such as the acquisition of a business and not used in any way for the purchase of drugs. What I have in mind, in very general terms, is that he should not have absolute control of the money for some period of years and, in the meantime, there should be some provision made that the money be used for purposes such as the acquisition of a business and that if the business is sold any proceeds be used for similar purposes.”

121 In Hoadley v Hoadley (Supreme Court of NSW, Young J, 17 February 1987, unreported) a spendthrift plaintiff was given a legacy on terms that it be held on protective trust. Another applicant son, who was then in prison and had been in prison for about 14 years out of the previous 20 years, was given provision structured as:

$4,000 upon his release from prison, to enable him to finance accommodation and expenses in looking for work;

$3,000 once he has been out of prison other than as an escapee for a period of six clear months;

a further $3,000 once he has been out of prison for 12 clear months;

a further $65,000 on trust to pay to the cross-claimant at the expiration of 10 years after he has come out of prison, without going back into prison, and in the meantime with power to advance it to the cross-claimant and the cross-claimant’s wife, if need be on mortgage, so that they could buy a house, or alternatively to be invested by the trustee in a house for the cross-claimant and his wife;

122 In Carroll v Cowburn [2003] NSWSC 248 Young CJ in Eq (as his Honour then was), made an order for provision for a plaintiff who had demonstrated that his ability to handle money was limited ([12]), who was in necessitous circumstances, but had been left nothing under the will. The form of the order took account of the applicant’s limitations. It was that $8,000 be held on trust for the plaintiff for the payment of particular itemised expenses, that a legacy of $16,000 be paid to the plaintiff at the end of the month in which the orders were made, that a further legacy of $16,000 be paid to the plaintiff one year thereafter, and that a further legacy of $20,000 be paid to the plaintiff upon production to the trustees of an agreement for the purchase of a motor car for the plaintiff at a cost of at least $15,000, and evidence that the plaintiff or a member of his immediate family is duly licensed to drive a motor car.

123 In Marshall v Public Trustee [2006] NSWSC 402 Macready AsJ made an order in favour of a drug dependent applicant, on the basis that the award would be managed for the applicant’s benefit in a protective trust, that included power to make capital advancements.

124 Conversely in Grey v Harrison [1997] 2 VR 359 an applicant whose career had been ruined by alcoholism was given a substantial award of capital from his father’s estate, with no conditions attached, in circumstances where the court accepted that he had recovered from his alcoholism.

**********

Actions

Download as PDF Download as Word Document

Citations

Hampson v Hampson [2010] NSWCA 359

Most Recent Citation

Poole v Barrow [2014] VSC 576

Cases Citing This Decision

83

Wild v Meduri [2024] NSWCA 230

Bassett v Bassett [2021] NSWCA 320

Comlin Holdings Pty Ltd v Metlej Developments Pty Ltd [2019] NSWCA 73

Cases Cited

18

Statutory Material Cited

5

Wollongong Corporation v Cowan [1955] HCA 16

Hampson v Hampson [2010] NSWSC 217

CITATION:	Hampson v Hampson [2010] NSWCA 359
HEARING DATE(S):	16 November 2010
JUDGMENT DATE:	17 December 2010
JUDGMENT OF:	Giles JA at 1; Campbell JA at 3; Handley AJA at 117
DECISION:	(1) Application to receive further evidence on appeal dismissed with costs. (2) Appeal dismissed with costs. [The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
CATCHWORDS:	EQUITY – Estoppel by conduct – Proprietary estoppel – Husband leaves property to widow who dies and leaves property to all seven children equally – Youngest son claims proprietary estoppel in relation to approximately one third portion of estate based on assurances and encouragement of father – whether proprietary estoppel exists in circumstances where the appellant claims that there was an oral representation by appellant's father that land would be given to appellant if he lived there and renovated cottage on the land and where the appellant claims he has relied and acted on the representation – not sufficient for appellant only to establish claim against appellant's father and it is necessary also to establish claim against the testatrix – lack of evidence concerning representation by Testatrix in relation to her testamentary intentions or of son’s reliance on the representation – appeal against trial judge’s finding concerning proprietary estoppel rejected – PROCEDURE – Appeal – Powers of court – Application to receive further evidence in support of proprietary estoppel claim – Consideration of “special grounds” in s75A Supreme Court Act 1970 – consideration of tests in Akins v National Australia Bank (1994) 34 NSWLR 155 – Whether failure of solicitor to act upon instructions of client constitutes special grounds – In determining whether litigant has exercised “reasonable diligence” for the purpose of an application to admit further evidence on appeal, the litigant has the actions and inactions of his legal representative attributed to him – Appellant found not to have satisfied conditions in Akins – Reception of further evidence forbidden by s79A(8) – Consideration of additional discretionary reasons for rejection of application to receive further evidence – SUCCESSION – Family provision and maintenance – whether application governed by Family Provision Act 1982 or Chapter 3 Succession Act 2006 – time as at which to decide jurisdiction and quantum – principles upon which relief granted – appeal relating to failure of trial judge to find jurisdiction – process for calculating adequate provision, as amongst seven children of deceased – consideration of circumstances of each child – Principles governing appellate review of trial judge’s decision concerning jurisdictional question – no error in the determination of appellant's claim under the Family Provision Act – WORDS AND PHRASES – “special grounds” – SUCCESSION – family provision and maintenance – extent of judge’s obligation to give effect to “the totality of the relationship between the applicant and the deceased” – PROCEDURE – appeal – from decision reviewable only on House v R grounds – availability of ground of appeal that judge “failed to give proper weight” to a relevant factor – SUCCESSION – family provision and maintenance – relevance to jurisdiction of applicant’s (a) drug-taking (b) illegal conduct (c) money consuming habit – relevance to quantum of applicant’s (a) drug-taking, (b) illegal conduct (c) money consuming habit
LEGISLATION CITED:	Family Provision Act 1982 Real Property Act 1900 Succession Act 2006 Succession Amendment (Family Provision) Act 2008 Supreme Court Act 1970
CATEGORY:	Principal judgment
CASES CITED:	Akins v National Australia Bank (1994) 34 NSWLR 155 Bondy v Vavros (Supreme Court of NSW, Young J, 29 August 1988, unreported) Bosch v Perpetual Trustee Co [1938] AC 463 Carroll v Cowburn [2003] NSWSC 248 Clifford v Mayr [2010] NSWCA 6 Foley v Ellis [2008] NSWCA 288 Green v Perpetual Trustee Company Limited (Supreme Court of NSW, Hodgson J, 10 July 1985, unreported) Grey v Harrison [1997] 2 VR 359 Hampson v Hampson: Estate of the Late Iris Willena Hampson [2010] NSWSC 217 Hastings v Hastings [2008] NSWSC 1310 Hoadley v Hoadley (Supreme Court of NSW, Young J, 17 February 1987, unreported) House v The King (1936) 55 CLR 499 Howarth v Reed, Supreme Court of New South Wales, Powell J, 15 April 1991 unreported) In Re Fletcher (Deceased), Fletcher v Usher [1921] NZLR 649 LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd [2001] NSWSC 688; (2001) 53 NSWLR 31 Marshall v Public Trustee [2006] NSWSC 402 McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 McIntosh v Williams [1976] 2 NSWLR 237 Michael Bienke v Brian Bienke; Estate of the Late Harold Bienke [2002] NSWSC 804 Minister for Aboriginal Affairs v Peko Wallsend Limited (1986) 162 CLR 24 Nicholls v Carpenter [1974] 1 NSWLR 369 Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116 Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64 Ray v Moncrieff [1917] NZLR 234 Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 Turnbull & Co v Duval [1902] AC 429 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
PARTIES:	Glen James Hampson (Appellant) Gary Geoffrey Hampson as executor of the Estate of the late Iris Willena Hampson (Respondent)
FILE NUMBER(S):	CA 2008/281293
COUNSEL:	A Harding (Appellant) MB Evans (Respondent)
SOLICITORS:	MDR Lawyers, Coolangatta QLD (Appellant) Hungerford Lehmann & Andrews, Mullumbimby (Respondent)
LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	2008/281293; 2009/287749
LOWER COURT JUDICIAL OFFICER:	Bryson AJ
LOWER COURT DATE OF DECISION:	26 March 2010; 4 June 2010
LOWER COURT MEDIUM NEUTRAL CITATION:	Hampson v Hampson; Estate of the late Iris Willena Hampson [2010] NSWSC 217