Hinderry v Hinderry - [2016] NSWSC 780

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Hinderry v Hinderry [2016] NSWSC 780
Hearing dates: 18, 19 and 25 May 2016
Date of orders: 20 June 2016
Decision date: 20 June 2016
Jurisdiction: Equity
Before: Hallen J
Decision:
Orders that the Plaintiff’s Summons be dismissed.
Orders that any argument as to costs of the proceeding and how those costs are to be borne, be listed on a date to be arranged when these reasons are published.
Catchwords: SUCCESSION - FAMILY PROVISION - The Plaintiff, the adopted son of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendants are executors appointed under the Will to whom Probate granted - Provision for the Plaintiff made in the Will – Estate not small - Only one competing financial claimant although three beneficiaries, other than Plaintiff, named in the Will – Conduct of the Plaintiff towards the deceased for some years prior to death involving physical and verbal assaults and breaches of AVOs obtained by the deceased against him - Whether adequate and proper provision not made in Will of the deceased for the Plaintiff and, if so, the nature and quantum of the provision to be made.
Legislation Cited: Civil Procedure Act 2005 (NSW)
Family Provision Act 1982 (NSW)
Probate Administration Act 1898 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Andrew v Andrew [2012] NSWCA 308
Baird v Harris [2015] NSWSC 803
Bartlett v Coomber [2008] NSWCA 100
Boettcher v Driscoll [2014] SASC 86; (2014) 119 SASR 523
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Burke v Burke [2015] NSWCA 195
Cairns v Cairns [2006] NSWSC 364
Chapple v Wilcox [2014] NSWCA 392 at [25] – [26]
Christie v Manera [2006] WASC 287
Collicoat v McMillan [1999] 3 VR 803
Collins v McGain [2003] NSWCA 190
Crossman v Riedel [2004] ACTSC 127
de Angelis v de Angelis [2003] VSC 432
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89
Edgar v Public Trustee for the Northern Territory [2011] NTSC 5
Foley v Ellis [2008] NSWCA 288
Fulton v Fulton [2014] NSWSC 619
Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep)
Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490
Goodsell v Wellington [2011] NSWSC 1232
Gorton v Parks (1989) 17 NSWLR 1
Green v Perpetual Trustee Co Ltd (Supreme Court of New South Wales, Hodgson J, 10 July 1985, unrep)
Grey v Harrison [1997] 2 VR 359
Hampson v Hampson [2010] NSWCA 359
Hawkins v Prestage (1989) 1 WAR 37
Henry v Hancock [2016] NSWSC 71
Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134
Hunter v Hunter (1987) 8 NSWLR 573
Hyland v Burbidge [2000] NSWSC 12
In the Estate of Puckridge, Deceased (1978) 20 SASR 72
In Re the Will of F B Gilbert deceased (1946) 46 SR NSW 318
Kay v Archbold [2008] NSWSC 254
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Kohari v Snow [2013] NSWSC 452
Liu v The Age Company Limited [2016] NSWCA 115
MacGregor v MacGregor [2003] WASC 169
Magjarraj v Asteron Life Ltd [2009] NSWSC 1433
Magjarraj v Asteron Life Ltd [2010] NSWCA 207
Manuel v Lane [2013] NSWCA 61
Marks v Marks [2003] WASCA 297
Matthews v Wear [2011] NSWSC 1145
Mayfield v Lloyd-Williams [2004] NSWSC 419
McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566
McGrath v Eves [2005] NSWSC 1006
McKenzie v Topp [2004] VSC 90
McLean v Public Trustee [2001] NSWSC 970
Michael Bienke v Brian Bienke; Estate of the late Harold Bienke [2002] NSWSC 804
Palagiano v Mankarios [2011] NSWSC 61
Pang v Fong [2014] NSWSC 1425
Phillips v James [2014] NSWCA 4
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
R v Turner [1975] QB 834
R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808
Rappard v Williams [2013] NSWSC 1279
Re Buckland, Deceased [1966] VR 404
Re Smith (Deceased) (1991) 8 FRNZ 459
Russell Caldar v Public Trustee of NSW (Supreme Court, 27 October 2004, Master McLaughlin, unrep)
Salmon v Osmond [2015] NSWCA 42
Sammut v Kleemann [2012] NSWSC 1030
Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253
Smith v Johnson [2015] NSWCA 297
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Stott v Cook (1960) 33 ALJR 447
Szypica v O’Beirne [2013] NSWSC 297
Taylor v Farrugia [2009] NSWSC 801
Verzar v Verzar [2012] NSWSC 1380
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep)
West v France [2010] NSWSC 845
Wheatley v Wheatley [2006] NSWCA 262
Wilcox v Wilcox [2012] NSWSC 1138
Williams v Aucutt [2000] 2 NZLR 479
Texts Cited: Rosalind Atherton, “The Concept of Moral Duty in the Law of Family Provision – a Gloss or Critical Understanding?” (1999) 5 Australian Journal of Legal History 5
Katheryn Katz, “Elder Abuse” (1980) 18 Journal of Family Law
Category: Principal judgment
Parties: Michael George Hinderry (Plaintiff)
Tony Hinderry (first Defendant)
Charlie Semaan (second Defendant)
Simon Semaan (third Defendant)
Representation:
Counsel:
Mr L Ellison SC (Plaintiff)
Mr J Brown (Plaintiff) (3rd day)
Mr M Meek SC (first Defendant)
Mr G Barter (second and third Defendants)
Solicitors:
Kazi Portolesi Lawyers (Plaintiff)
M Russoniello (first Defendant)
Spectrum Legal Group (second and third Defendants)

File Number(s): 2014/238066

Judgment

Introduction

HIS HONOUR: These reasons relate to proceedings, in which a family provision order pursuant to the Succession Act2006 (NSW) (“the Act”), by way of greater provision than was made by the Will of his mother, Samera Hinderry (“the deceased”), out of her estate and/or notional estate, and costs, are sought by the Plaintiff, Michael George Hinderry.
The Act applies in respect of the estate and notional estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (“the former Act”), which was repealed, effective from 1 March 2009. A family provision order is an order made by the Court in relation to the estate, or notional estate, of a deceased person, to provide from that estate and/or notional estate, for the maintenance, education, or advancement in life, of an eligible person. At the hearing, it was agreed that there was no notional estate. Hereafter, I shall simply refer to the estate of the deceased.
There is no dispute that the Plaintiff’s application for a family provision order was made within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased) and that, as a child of the deceased, he is an eligible person within the meaning of that term in s 57(1)(c) of the Act.

Dramatis Personae

Without intending to convey undue familiarity, with no disrespect intended, and for convenience and clarity, I shall refer, hereafter, to the parties and other family members, after introduction, by his, or her, given name.
Michael is the adopted son of the deceased and her husband, Wahib Hinderry, who predeceased her, having died on 28 June 2012, aged 89 years. They had no biological children together.
The first Defendant, Anthony Hinderry, who was called “Tony” in the proceedings, is a biological nephew of the deceased. His father was John Hinderry, the brother of Wahib. He died in about 2004. His mother is Wadad Hinderry. She is still alive and is in her mid 80s.
Tony, who was born in April 1969, has 4 siblings, being Mary Elias, who was born in July 1959; Joseph Hinderry, who was born in September 1965; Bernadette Andari, who was born in September 1965; and Rita Awad, who was born in May 1967.
Of his siblings, only Joseph filed an affidavit that was read in the proceedings. He was not cross-examined.
Mr Akele Elias is Mary’s husband. He swore one affidavit that was read in the proceeding. He was not cross-examined.
The second Defendant, Charbel Semaan, who was called “Charlie” in the proceeding, is also a biological nephew of the deceased and the son of the third Defendant, Semaan Bakhos Semaan, who was called “Simon” in the proceeding. Simon is the brother of the deceased. Neither was cross-examined.
Mr James Kelly is a solicitor. Pursuant to an order made by Lindsay J on 13 October 2014, he was appointed as the interim administrator of the deceased’s estate. He swore an affidavit that was read in the proceeding. He was not cross-examined.
Ms Lily Arthur is the Co-ordinator at Origins Supporting People Separated by Adoption Incorporated. She swore one affidavit read in the proceeding. She was not cross-examined.
Dr C J McCosker is a qualified general practitioner who came to treat the deceased in March 2012. He swore an affidavit that was read in the proceeding. He was not cross-examined.
Mr Neil Hayman was a friend of the deceased. He swore an affidavit that was read in the proceeding. He was not cross-examined.
Mr Matteo Russoniello is the solicitor currently acting for Tony. However, as will be read, in 2003, in respect of a criminal matter that was heard in the Local Court at Wollongong, he acted for Michael. He swore a number of affidavits. I shall refer to his evidence later in these reasons, as he was cross-examined.
The solicitors for the Plaintiff are Kazi Portolesi. Mr Bassam Kazi is the solicitor with the conduct of the matter for Michael. He has sworn a number of affidavits going to the Plaintiff’s costs in these, and other, proceedings to which I shall refer.
Mr David Rod is the principal of the firm of solicitors acting for Simon and Charlie in the proceedings. He swore an affidavit of costs to which I shall refer.

The Claims involving the Estate

Michael commenced this proceeding by Summons filed on 13 August 2014, initially naming no Defendant, as, at that time, there was an associated contested Probate proceeding to determine which was the last valid Will of the deceased (to which I shall refer as “the Probate proceeding”).
In the Probate proceeding, the Plaintiff was Tony, the first Defendant was Michael, and the second and third Defendants were Charlie and Simon. The principal protagonists, however, in the Probate proceeding, were Tony and Michael. Tony propounded, in the alternative, two Wills made by the deceased. The last in time was a Will dated 9 August 2011 (“the 2011 Will”). The first in time was a Will dated 26 October 2004 (“the 2004 Will”). Michael disputed the validity of both Wills, and, in a Cross-Claim asserted that the deceased had died intestate and that administration of her estate should be granted to him.
The Probate proceeding was resolved without a contested hearing in September 2015, when, following a consideration of those parts of the contents of the Court file to which reference was made, and a form of order was provided and consented to by all of the parties, I made the following orders:

“a.   Subject to compliance with the Rules of Court, Probate in solemn form of the Will made on 9 August 2011 of the deceased, Samera Hinderry, be granted to the Plaintiff and to the second and third Defendants, the executors named in Clause 3 of the Will.
b.   The matter be referred to the Senior Deputy Registrar in Probate to complete the grant.
c.   The Statement of Claim and the Cross-Claim otherwise be dismissed.
d.   The costs of the proceedings of each of the parties, calculated on the indemnity basis, be paid out of the estate of the deceased.”

Regrettably, for reasons that are unnecessary to repeat as there was some dispute about them, the Probate document had not been issued by the Court because requisitions, raised by the Probate Registry, had not been completely satisfied. Tony attributed the blame for the failure to answer some, or all, of the requisitions to Charlie and Simon, and they denied any fault.
On the second day of the hearing, the Court was informed that the executors’ affidavit had been signed by each of Charlie and Simon and a copy of it was provided to Tony’s legal representative. On the third day of the hearing, the Court was informed that certain amendments would be required to the executors’ affidavit, but it was anticipated that it would be sworn and filed in the Probate Registry, without undue delay. When filed, the Probate requisitions may be satisfied, with the result that the Probate document will be able to be issued.
In the written Submissions dated 11 May 2016, relied on by Charlie and Simon, their counsel wrote that “[t]he Second and Third Defendants express concern as to whether the [2011 Will and the 2004 Will] respectively are valid”. This statement is surprising bearing in mind the resolution of the Probate proceeding to which all parties had agreed. Senior counsel for Tony submits that it provides an example of the ambivalent role Charlie and Simon have played in the family provision proceeding. Bearing in mind that they are executors of the 2011 Will with Tony, another example is the written submission that “[t]he Second and Third Defendants are prepared to abide any decision of the court save as to costs.”

The Hearing

It is necessary, next, to explain what occurred at the hearing of Michael’s claim for a family provision order.
The hearing was listed in the Family Provision Running List commencing on 18 May 2016, with an estimated duration of 2 days. The matter did not finish within that time and it was re-listed, for submissions, on Wednesday, 25 May 2016.
The flow of the hearing of Michael’s claim was punctuated, firstly, by an application for a permanent stay of the proceedings, which application was made by senior counsel for Tony immediately after Michael gave the following evidence during his cross-examination (at T35.35 – T36.03):

“Q. In your mind, why are we here today?
A. Why we are here today?
Q. Yes.
A. Because I feel my family has got a bad example to lead by with the younger nephews and nieces and all that agreeing to someone signing the elderly's signature when they're sick. I don't like that example in my family. I want it dealt with please.
Q. That's why we're here today?
A. That's why we're here today. It's causing a lot of arguments.
Q. To be clear about that, you wish to use these proceedings as a reason to dispute your mother's Will?
A. Yes, that's right.
Q. You wish to use these proceedings as a reason to dispute your father's Will?
A. Yes, that's right.
MEEK: I ask that the proceedings be permanently stayed as an abuse of process.”

Michael had also given evidence that he “believe[d] [the deceased] wanted me to have the entire estate and was coerced by my cousin, put under pressure. I believe that because of witnessing my father's Will in 2011 after he passed away and noticing his signature to be very much different to what I recognised as his signature. So being my Mum's Will is the same as my father's Will and her mood and her tantrums, if you might want to say, led me to believe like, she didn't agree to what was said in the Will. So I find that inadequate for me to accept it.”
Senior counsel for Tony relied upon s 67 of the Civil Procedure Act 2005 (NSW) which, relevantly, provides that, subject to rules of Court, the Court may, at any time, by order, stay any proceedings before it, either permanently or until a specified day.
Senior counsel submitted that the answers given by the Plaintiff, in circumstances where the Probate proceedings had been determined and orders had been made resolving the issue of the validity of the 2011 Will; that to raise the spectre of the validity of his father’s Will, Probate of which had been granted and had not been the subject of any application to have Probate revoked; and to deal with the conduct of members of his family in relation to “someone signing the elderly's signature when they're sick”, amply demonstrated that Michael was using the Court's process (seeking a family provision order) for ulterior and illegitimate motives.
Needless to say, senior counsel for Michael opposed the oral application for the permanent stay of the proceeding. He made an application to adjourn the proceeding until the following morning to enable the appointment of a tutor for the Plaintiff. He submitted that Michael’s answers demonstrated that Michael had failed to appreciate the nature of a family provision claim and for that reason was a person under a legal incapacity in the conduct of the legal proceedings: T40.41 – T40.43.
After hearing the application for the adjournment made on behalf of Michael, I refused it, principally, because I was not satisfied that there was sufficient evidence, then, before the Court to demonstrate that Michael was a person under a legal incapacity. Indeed, the medical evidence which had been tendered in Michael’s case earlier that morning (Ex. MGH 2), being a report of Psychiatrist, Dr Olav Nielssen, of 12 May 2016, suggested that Michael was not such a person. In that report, it was noted that Michael “had confirmed that he was contesting the Will of his late mother” and he had identified a number of clauses in the Will about which he was concerned.
In addition, there had been no suggestion, at any time, prior to, or during, the hearing, by his legal representatives, that Michael had been unable to provide instructions to them, or that he had not understood the advice that he had been given or advice in regard to settlement of the proceeding: Rappard v Williams [2013] NSWSC 1279.
(At no time, thereafter, has any application been made for the appointment of a tutor for Michael. Nor has it been suggested that, whatever the result of the proceeding, any application will be made for a financial manager to be appointed to manage Michael’s affairs. However, it appears that Michael has sufficient insight to appreciate that he will require assistance in managing his inheritance.)
Finally, I was not persuaded that Michael’s answers, as set out above, necessarily meant that, because of incapacity, he had failed to appreciate the nature of a family provision claim. I pointed out that the answers which indicated that he wished to agitate other issues may be a relevant consideration under s 60(2)(p) of the Act (to which I shall refer later) and also on the question of the costs of the proceedings.
Then, in answer to the application for a permanent stay, senior counsel submitted that Michael had a statutory right to seek a family provision order under the Act as an eligible person; that he had made his application within time, and that the Court was obliged to determine it. He submitted that there was nothing wrong with having other motives in bringing such an application and that the answers relied upon did not mean that he was not seeking greater provision out of the estate of the deceased.
On the application for a permanent stay, counsel for Charlie and Simon submitted that the answers Michael had given were “not inconsistent with the primary purpose of him ventilating his grievance that he has been inadequately provided for”. He submitted that the answers revealed Michael’s view of the reasons why the deceased had made the provision in the Will, asserting his belief that members of his family had convinced her to do so.
After hearing the submissions of the parties, I refused the oral application for a permanent stay made on behalf of Tony. I indicated that there were a number of other reasons for doing so, the first being that it would stultify the administration of the estate and prevent distribution of property to the beneficiaries; the second was that it had not been submitted that Michael’s evidence was irrelevant to the determination of this proceeding, or that the Court could not take them into account in determining the adequacy, or otherwise, of the provision made for him in the 2011 Will or on the question of costs; and the third was that a very large amount in costs had already been incurred in the proceedings, the burden of which would not be determined if Michael’s claim for a family provision order was not finally dealt with.

In stating these matters, I had in mind the principle that unless the interests of justice demand it, a Court should exercise, rather than refrain from exercising, its jurisdiction, and that a permanent stay should be ordered only in an extreme case. I also considered the Civil Procedure Act and the overriding purpose enshrined in s 56, to facilitate the just, quick and cheap resolution of the real issues in the proceedings and the Court’s duty to give effect to the overriding purpose when it exercised any power given to it by the Civil Procedure Act, the objects of case management (s 57); the requirement for the Court to follow the dictates of justice (s 58); the stated object for the practice and procedure of the Court in any proceeding to be the elimination of delay (s 59); and the object of the practice and procedure of the Court in any proceeding to be implemented “in such a way that the cost to the parties is proportionate to the importance and complexity of the subject matter in dispute”.
(I note, since the hearing, although in a different context, Beazley P, in Liu v The Age Company Limited [2016] NSWCA 115 at [12], has expressed the view that although “it is unnecessary to determine whether the statutory principles stated in the Civil Procedure Act 2005 (NSW), s 56 as to the just, quick and cheap resolution of the real issues in proceedings apply to an application for a stay …I consider that the better view is that they do”. In that case, McColl JA noted, at [159] that:

“Section 67 of the CPA confers a more general power on the court “to stay any proceedings before it, either permanently or until a specified day”. It is found in Part 6 of the CPA, which deals with “Case management and interlocutory matters”. The provision “does not identify any particular criteria as relevant to the exercise of the power but, at least in the Supreme Court … may be understood to cover a variety of circumstances in which the Court’s inherent jurisdiction to prevent abuse of its process may be invoked: State of New South Wales v Plaintiff A [2012] NSWCA 248 (at [15]) per Basten JA (Beazley and Hoeben JJA agreeing).”)

The matter then continued with Michael being cross-examined until shortly before 4:00 p.m., when I adjourned the proceedings until the next day.
On the second day of the hearing, Michael did not appear in Court. I was informed, from the bar table, without objection, by his senior counsel, that he had arrived in the precincts of the Court but that he had then left. It was not known, then, whether he would return and, if so, when.
No explanation for his conduct was offered and no application was made, on his behalf, to adjourn the proceedings. It was not suggested that his legal representatives were without instructions.
With the consent of all parties, and in order to avoid delay in concluding the hearing, the case proceeded without Michael being present and with the other witnesses to be cross-examined being interposed.
The cross-examination of Mr Kazi, Michael’s solicitor, by senior counsel for Tony commenced, but it did not continue when the parties were able to agree that the estimate of the costs given by him (and, for that matter, by each of the other solicitors) in respect of the Probate proceeding and in respect of the family provision proceeding would be treated as an estimate only, and that the use of the estimate, for the purpose of determining the available distributable estate, would not prevent any party requiring the formal assessment of those costs after the case was concluded.
Tony was then cross-examined.
At 2:00 p.m. on the second day, it was clear that Michael would not return to permit the cross-examination to continue. Senior counsel for Michael informed the Court that:

“The plaintiff was in the precincts of the court at lunchtime and without waiving privilege I formed the opinion that he wasn't going to be here at 2 o'clock and he wasn't [here] at 2 o'clock and isn't here now.”

Even then, there was no evidence called explaining Michael’s failure to attend the hearing on the second day. Nor was there any rational cause, or credible, or any, explanation, offered by his senior counsel for Michael’s absence. In particular, there was no evidence that he was then incapacitated by some medical condition, or illness, from attending. No application to cease to act was made by Michael’s legal representatives.
Neither senior counsel for Tony, nor counsel for Charlie and Simon, submitted that the Court should dismiss Michael’s claim, either pursuant to UCPR rule 29.7(4) (dismissal of proceedings where a plaintiff does not appear) or by reference to the inherent jurisdiction of the Court to control proceedings: Magjarraj v Asteron Life Ltd [2009] NSWSC 1433, per Barrett J (as his Honour then was). (An application for leave to appeal from his Honour’s dismissal of the proceedings was dismissed with costs by the Court of Appeal: Magjarraj v Asteron Life Ltd [2010] NSWCA 207.)
Nor did either senior counsel for Tony, or counsel for Charlie and Simon, submit that the proceeding should be dismissed because Michael had, effectively, refused to permit himself to be cross-examined further by counsel for the Defendants, or that his affidavits should be treated as not read: Russell Caldar v Public Trustee of NSW (Supreme Court, 27 October 2004, Master McLaughlin, unrep).
In that case, Master McLaughlin dismissed an application for a family provision order after the plaintiff, Mr Caldar, refused, for no valid reason, to enter the witness box to be cross-examined on his affidavit by counsel for the defendant. The learned Master decided that Mr Caldar's affidavits had been read upon the assumption that he would be available to be cross-examined on them, and that once that assumption was incorrect, it was appropriate to review the correctness of having permitted the affidavits to be read. On the review, his Honour decided that, in the circumstances of the case before him, the affidavits should be treated as not having been read. Hence, the case failed for lack of evidence. (A holding summons was filed in the Court of Appeal on 4 November 2004, but the holding appeal lapsed.)
Very fairly, if I may say, senior counsel for Tony submitted that Michael’s two affidavits had already been read, and the evidence in response had also been read; that many of the issues to be determined could be determined without further cross-examination of Michael; and that documents had been, and would be, tendered, which would enable the determination of many of the remaining issues.
It was not in dispute that to permit the matter to proceed would still leave it open to the Defendants to make such submissions as they considered necessary about the weight that should be accorded to the Plaintiff’s evidence in light of his refusal, by non-attendance, to be further cross-examined: Cairns v Cairns [2006] NSWSC 364 at [17] (J C Campbell J).
In Fulton v Fulton [2014] NSWSC 619 at [111], I wrote:

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

Of course, UCPR rule 29.7(2) provides that if any party is absent, the Court may proceed with the trial generally, or so far as concerns any claim for relief in the proceedings.
I formed the view, also, that many of the fundamental facts about the family relationships and the financial and domestic circumstances of the deceased, and the financial resources of Michael, were not, or were not substantially, in dispute. Whilst there were some matters about the family traversed in the affidavits, they were not at the heart of the case and were not essential to the determination of the principal question which is whether, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of Michael has not been made by the Will of the deceased.
I also had the opportunity to hear Michael acknowledge that what he had set out in his affidavits in relation to a number of claims on the estate “was a wish list at the time”: T27 – T28. (In this regard, I should note that Michael’s claim for provision in his first affidavit included a claim for purchase of a two bedroom property in Newtown/Surry Hills area costing in the order of $800,000 to $1 million. In his supplementary affidavit the claim for provision escalates and includes a claim for a three to four bedroom house in Newtown, Woolloomooloo and Darlinghurst in the order of $1.5 to $2 million.)
During his submissions, senior counsel for Michael modified Michael’s claim for a family provision order to “a modest legacy of cash out of that fund” for exigencies of life, by this stage it having been acknowledged by the Defendants that, subject to any costs order, he was entitled to the two units devised to him, on conditions, in the deceased’s Will, absolutely: T141 - T142.)
In the circumstances, without objection, the matter continued with submissions being made by senior counsel for Michael. He concluded his submissions and then the matter was adjourned until 25 May 2016 to enable the remaining submissions by other counsel to be made.
On the third day of the hearing, without any advance notice having been given to the other parties until shortly before the hearing recommenced, Michael appeared in Court. Mr J Brown, counsel who then appeared for him, stated (at T155.27 - T155.29):

“I can indicate that the plaintiff is in Court and he is available for cross‑examination. I understand that my case is closed but the application is that if anyone wants him for cross‑examination, he is available.”

I took this statement to mean that an oral application was being made to re-open the case so that Michael could be further cross-examined.
The Defendants did not oppose that course. Senior counsel for Tony confirmed that he would only be a further few minutes cross-examining, and counsel for Charlie and Simon said that he did not propose to cross-examine at all, but he had no submissions to make on whether leave to re-open should be granted. In the circumstances, I granted the application to re-open Michael’s case so that he could be cross-examined further.
Michael was then called. His counsel made no attempt to have Michael give evidence about the reasons for his failure to return to Court on the second day of the hearing.
Michael was cross-examined again by senior counsel for Tony.
After senior counsel for Tony had finished cross-examining Michael, counsel for the second and third Defendants sought to cross-examine. His first question, which related to the reasons for Michael’s failure to return to Court on the second day of the hearing, was objected to by senior counsel for Tony, and the question was rejected: T161.30 – T162.21. Counsel did not seek to ask any further questions.

Some Background Facts

It is helpful, at this point, to provide some further facts, which, to the extent that they are controversial, should be regarded as the findings of the Court.
The deceased was born in 1939 and died on 1 September 2013. She arrived in Australia, from Lebanon, in about 1958. She and Wahib married, in Lebanon, on a date not precisely disclosed in the evidence but inferred to have been in about 1958 (since they had been married for 54 years at the date of his death in 2012).
Samera spoke, and could read and write, English. Tony described her as extremely capable, intelligent, generous, and a kind and loving person. He also said that “she was always a very strong and assertive woman who spoke her mind”.
(Some of Tony’s evidence on this topic is corroborated by Dr McCosker who treated the deceased between May and December 2012. He stated that in his dealings with the deceased “I was never concerned that she lacked the ability to reason or understand or make informed decisions”.)
Michael was born in November 1970. (It can be seen therefore, that, of his cousins, he was closest in age to Tony.)
The deceased and Wahib adopted Michael by Adoption Order, made by this Court, in September 1971.
Michael acknowledged that his father’s, and his uncle's, families were extremely close. His father and his uncle, John, had operated a business together called “JW Hinderry”, which business involved door to door sales and sale of clothing and manchester. Each possessed a hawker’s licence.
The block of 9 units in Miller Street, Coniston, had been built by Wahib and the deceased, and by John and Wahad, together, in the late 1960s or early 1970s. From Michael’s childhood, the families lived next door to one another (respectively at Unit 4 Miller Street and Unit 1 Miller Street). The deceased and Wahib owned 4 units, John and Wahad owned 4 units, and they owned one unit in equal shares, in the block.
In about 1977, they built the units at Gladstone Avenue, and again, both families moved to that unit block, living next door to each other, with Michael and his parents living in Unit 2 and his uncle's family living in Unit 1. Again, each owned the unit in which they lived.
Aside from any commercial relationship, the families were extremely close. They shared meals with each other, went out on picnics together, visited relatives together, went to parties together and celebrated special functions together.
In relation to the relationship with Tony, both the deceased and Wahib appointed him as her, and his, Attorney, respectively, under a Power of Attorney, in August 2004. I am satisfied that the deceased trusted Tony and looked to him to provide her with advice and guidance, particularly as Michael was unable to do so. (I shall refer to my findings on the relationship of Michael and Tony later in these reasons.)
Pursuant to the terms of the 2011 Will, the deceased specifically devised certain identified real estate (all of which is in the Wollongong area), as follows:

One home unit (No. 2) at Miller Street to Joseph (Clause 4);

Two home units (No. 5 and 9) and a one half share of another unit (No. 8) at Miller Street to Tony (Clauses 5, 6 and 7); and

The other half share of one unit (No. 8) at Miller Street to Mary (Clause 7).

The deceased also made provision for the Plaintiff in the following terms:

"8. MY EXECUTORS shall hold the property known as [Unit 6] Miller Street, Coniston on trust for my son MICHAEL GEORGE HINDERRY who survives me and attain [sic] the age of sixty (60) years.
9. I GIVE the following direction to my executors that MY SON MICHAEL GEORGE HINDERRY may live in the property at [Unit 2] Gladstone Avenue, Coniston for as long as he wishes provided that he pay all rates and taxes on the property, any insurance premiums taken out by the Executors on the property, keeps the property in repair to the Executors [sic] satisfaction and does not disturb the peace and enjoyment of the neighbours. This property is to be held in trust for MICHAEL GEORGE HINDERRY and I FURTHER direct he can only sell the property if all three (3) trustees consent to the sale of the property.”

There was no residue clause in the 2011 Will.
Clause 11 of the 2011 Will provided:

“I have not provided specifically for my son …in this Will as over the years he has had a number of drug problems and has caused myself and my wife a great deal of angst that has resulted in us having Apprehended Violences (sic) Orders taken out for our protection.”

Tony’s senior counsel in written submissions submitted:

“In clause 11 of the Will the Deceased makes particular comment regarding provision for Michael.”

There are, obviously, a number of difficulties with Clause 11. Firstly, it seems to suggest that no specific provision is made for Michael in the Will, when that is clearly in error. Secondly, it refers to “my wife” rather than “my husband”.
After some debate during oral submissions, the parties accepted that the objective facts asserted in Clause 11, namely that Michael, over the years, had experienced drug problems; that he had caused a great deal of angst to the deceased and Wahib; and that apprehended violence orders had been taken out by them against Michael, had been established by other evidence in the case.
Thus, there is no need to specifically identify Clause 11, as a matter to be taken into account, on its own, in determining Michael’s case for provision. However, those objective facts may cast light on the relationship between the deceased and Michael, at least from the deceased's perspective.
(The 2004 Will is in essentially the same terms as the 2011 Will, other than in one respect. In Clause 7 of the 2004 Will, the devise of unit 8/Miller Street, is to Bernadette and Mary rather than Tony and Mary.)
The dispositions in Clauses 8 and 9 could give rise to some difficulties in their interpretation. However, at the commencement of the hearing, the parties agreed that, subject to the determination of how costs of this, and the Probate, proceeding are to be borne, the two units referred to could be provided to Michael absolutely, without the imposition of any trust. Indeed, senior counsel for the first Defendant acknowledged that “irrespective of whether there are conditions on those gifts [it] is entirely open to Michael to disclaim and take the properties outright… He can take it on intestacy without the need of any proceedings”: T4.12 – T5.07.
Senior counsel for Michael, in his submissions, noted, however, that to disclaim the devises made for him in the Will and cause the two properties to fall into residue which would pass to Michael on intestacy, would result in the burden of all costs of the probate proceeding and the family provision proceeding being borne by Michael unless the Court made an order that the burden of costs otherwise be borne.
In their written submissions, counsel for Michael wrote:

“In circumstances where part of the estate realty will have to be sold to pay the liabilities of the estate, the complete failure of the relationship between Michael and his cousins means that it would be inappropriate for Michael to have an ongoing relationship with his cousins. The plaintiff, Michael, should have a significant legacy or a substantial portion of the estate realty for him to purchase alternative accommodation, funds to purchase household goods, a car and funds to assist him in the contingencies of life.”

The deceased, at the date of her death, resided in a unit at Gladstone Avenue, Coniston (Unit 2). She owned four units at Miller Street, Coniston (Units 2, 5, 6 and 8) and she held a one half-interest in a fifth unit (Unit 9) at Miller Street. She also had some monies on deposit in a St George Bank account and had personal effects and household goods. The furniture and household effects have been distributed to Michael.
At the hearing, the parties agreed that the estate assets, charged liabilities and their values, and the beneficiary entitled, are as follows:

Assets

Value

Liability

Entitlement

No. 2 Miller Street

$392,500

$130,153 (half share of mortgage)

Joseph

No. 5 Miller Street

$327,000

$130,153 (half share of mortgage)

Tony

No. 6 Miller Street

$344,500

Michael

No. 8 Miller Street

$344,500

Tony and Mary

No. 9 Miller Street (half interest)

$163,500

Tony

No. 2 Gladstone Avenue

$445,000

Michael

Cash at bank

$7,892

Total

$2,024,892 - $260,307 = $1,764,585

(The estimate of the value of each parcel of real estate is the midpoint of market appraisals provided by Mr Kazi to Mr Russoniello in March 2016.)
It appears that the rental income from Units 2, 5, 6 and 8 Miller Street, is $1,858 per week total, whilst the rental income from Unit 2, Gladstone Ave is about $280 per week.
Subject to how the burden of costs of this proceeding and of the Probate proceeding are to be met, it was agreed that the net distributable value of the estate, after deduction of the debt secured on No. 8 Miller Street, and the amount said to be left to be paid to Mr Kelly, is about $1,764,500.
Without any reduction for costs, and bearing in mind that Units 2 and 8 are subject to a mortgage of approximately $260,000, the respective entitlements of the beneficiaries (subject to some comments regarding the form of clauses 8 and 9 of the Will) is Joseph (Unit 2/8), with a net value $262,500; Tony (Unit 5, half share Unit 8 and Unit 9), with a total net value of $532,750; Mary (half share of Unit 8) with a net value of $172,250; and Michael (Unit 2 Gladstone Ave and Unit 6 Miller Street) $789,500, plus the value of residue (if any).
It follows that Michael’s entitlement, under the 2011 Will is about 44 per cent of the net value of the estate (before the payment of the legal costs of the proceedings and the amount left to be paid to Mr Kelly).
So far as can be gleaned, there are no other significant outstanding liabilities of the estate. There was a suggestion that upon sale of one, or other, of the properties, there may be a “post death” CGT liability (T8.12 – T8.14), but there was no evidence produced confirming whether there was any such liability, and if there was, its quantum. It is also likely that there would be costs and expenses of sale of one, or other, of the properties to meet costs, but again, there was no estimate of those costs and expenses.
In an affidavit sworn on 11 May 2016, by Mr Kelly, it is said that he has been “collecting rents from the estate properties and dealing with the management of those properties via the real estate agent, dealing with the insurance company to make a claim following a fire at one of the properties, and consenting to payment for repair work to the damaged properties, dealing with the deceased’s bank, and attending to loan repayments, dealing with the various legal representatives of the parties to these proceedings and arranging payment of weekly payments to [Michael]” and that “[s]ince October 2015, the administration has only involved receiving moneys and making payments”.
On the third day of the hearing, the Court was informed that enquiries made from Mr Kelly’s office revealed that there was approximately $1,000 yet to be paid to Mr Kelly for his work as interim administrator of the estate. (I note that $20,195 has already been paid out of the estate to Mr Kelly for acting as the interim administrator.)
Mr Kelly’s affidavit also revealed that until 7 April 2016, various amounts, totalling $53,250, have been paid to Michael. Since then, the parties agreed that a weekly amount of $350 has also been paid to him ($2,450 to the date of hearing). In addition, Mr Kelly has repaid the mortgage debt at the rate of $1,250 per month.
There was no dispute that the amounts paid to Michael had been paid to him pursuant to an order made by Lindsay J, on 13 October 2014, after a contested hearing for interim provision.
His Honour’s orders, on that occasion, included:

“6. ORDER, subject to further order, that the administrator (James Kelly) make the following provision for the plaintiff (Michael Hinderry) out of the estate of the deceased, by way of an interim distribution of estate property to the plaintiff:
(a) ORDER (with the express consent of Tony Hinderry) that the plaintiff be entitled to all of the furniture, household contents and chattels of the deceased formerly located in the residence of the deceased known as 2/98 Gladstone Avenue, Coniston in the State of NSW.
(b) ORDER that the plaintiff be entitled to a lump sum payment of $7,000.(c) ORDER that the plaintiff be entitled to a periodic payment of $350.00 per week, the first of which payments is to be paid on (or calculated by reference to) 15 October 2014, with subsequent payments to be made in advance on Wednesday of each week.
7. RESERVE for further consideration:
(a) whether the plaintiff should be allowed further provision, by way of an interim distribution or an award of interim provision under s 61 of the Succession Act 2006 NSW, from the estate of the deceased.(b) whether Tony Hinderry should be required to provide an accounting for his dealings in assets of the estate of the deceased beyond the accounting informally provided by him in the affidavit of Matteo Russoniello affirmed 13 October 2014.
(c) whether the administrator (James Kelly), Tony Hinderry and/or some other person should be appointed as a defendant to serve as a contradictor for the plaintiff’s claims for relief under chapter 3 of the Succession Act 2006.
(d) whether the plaintiff’s claims for family provision relief should be heard before, after, or together with questions in dispute between the plaintiff and Tony Hinderry concerning a grant of probate or administration in respect of the estate of the deceased.”

Depending whether a more detailed accounting is required, no claim is made by the Defendants for Michael to repay the amount paid to him.
Usually, in calculating the value of the deceased’s estate finally available for distribution, the costs of the proceedings for a family provision order should be considered with circumspection, since the Plaintiff, if successful, normally will be entitled to an order that his costs, calculated on the ordinary basis, should be paid out of the estate of the deceased, whilst the administrators of the estate, irrespective of the outcome of the proceedings, normally will be entitled to an order that their costs, calculated on the indemnity basis, should be paid out of the estate.
On the second day of the hearing, the Court was informed, without objection, from the bar table, that Michael’s costs of the Probate proceeding were $122,000; that Tony’s costs of the Probate proceeding were $50,248; and that Charlie’s and Simon’s costs of the Probate proceeding were estimated to be $13,200. (In an affidavit sworn by Mr Rod, and filed, with leave, on the third day of the hearing, Charlie’s and Simon’s costs were reduced to $12,400, inclusive of GST.) It follows that the estimated costs of the parties, of the Probate proceeding, are approximately $184,650.
The Court was also informed that Michael’s costs of the family provision proceeding were $140,000 (and $180,000 on the indemnity basis); that Tony’s costs, calculated on the indemnity basis, of the family provision proceeding were $92,733 (of which $5,599 had been paid out of the estate, leaving a balance of $87,134); and that Charlie’s and Simon’s costs of the family provision proceeding, presumably calculated on the indemnity basis, were estimated to be $70,475. (In the affidavit sworn by Mr Rod, Charlie’s and Simon’s costs were reduced to $64,061, inclusive of GST.) It follows that the estimated unpaid costs of the parties, of the family provision proceeding, are approximately $295,000.
It is clear from all that has been written so far, that all of the parties have engaged in adversarial litigation. Very little quarter appears to have been asked for, or given, including as between the Defendants.
The issue of costs and how they are to be borne is quite complicated for a number of other reasons. Firstly, as stated previously, the parties in the Probate proceeding agreed that the costs, calculated on the indemnity basis, of each, would be paid out of the estate. The parties are not agreed on the quantum of each party’s costs or what part, or parts, of the deceased’s estate will bear the burden of those costs.
Secondly, there is a dispute whether only one set of costs, for all of the Defendants, should be ordered. Tony’s counsel, several times during the hearing, raised this issue. I have identified one basis of Tony’s complaint earlier.
Thirdly, there is likely to be a significant debate about the reasonableness and proportionality of the estimate of the costs of all parties. (I should mention that Mr Kazi swore an affidavit dated 18 May 2016 that was read in which he endeavoured to set out the work that he had been required to do in order to prepare Michael’s case for hearing. It may be necessary to deal with that evidence if the parties are unable to agree upon how costs should be borne.)
Fourthly, the estimates of the parties’ costs of the proceedings are of such a magnitude as to invite consideration of whether (and, if so, what) effective orders can be made for costs to be capped.
Fifthly, as there is insufficient residue to pay the testamentary expenses (which will include the costs of the Probate proceeding), there may be a need to be a pro-rata liability attached to each of the specific gifts, pursuant to Schedule 3 of the Probate Administration Act 1898 (NSW).
Finally, senior counsel for Tony indicated there is a document, or documents, that may be relevant on the issue of how the Plaintiff’s costs are to be borne depending upon the result of the proceeding.
In the circumstances, the Court was requested not to deal with costs until after the reasons for judgment are delivered. At that time, unless the parties are able to reach agreement, it may be necessary to set down for hearing the argument about costs. It is likely that if that occurs, further evidence on costs will be required.
The parties were told that the Court had a real concern that the argument about the costs of the proceedings was looming large in the case, perhaps even overtaking the claim for greater provision being sought by Michael. They were also referred to the concern as to the quantum of costs. I shall deliver these reasons and, if the parties are unable to agree upon that issue, I shall stand the determination of costs over to a mutually convenient date for hearing. When the costs argument is heard, my concerns may be assuaged, but if they are not, I shall deal with those concerns at that time.
There is no issue about the identity of eligible persons. The parties agreed that Michael is the only eligible person.
Mr Russoniello gave evidence of having served each of Joseph, Mary and Bernadette with “notice of these proceedings”. The notice of claim appears to be in the usual form. (However, as stated, the Court cannot disregard the interest of Tony, Joseph and Mary as beneficiaries named in the 2011 Will).
In relation to the other beneficiaries, only Joseph has sworn an affidavit read in the proceedings, in which his financial resources are identified. Thus, the Court may assume that each of Tony and Mary does not wish his, and her, financial resources (including earning capacity) and financial needs, both present and future, respectively, to be taken into account: Matthews v Wear [2011] NSWSC 1145, at [45] (Macready AsJ).
On this topic, in Sammut v Kleemann [2012] NSWSC 1030 at [137] – [140], I wrote:

“The question, then, is what flows from a beneficiary's silence? The answer is, in those circumstances, that the court is entitled to infer that the beneficiary has adequate resources upon which to live and that he, or she, does not wish to advance a competing financial claim upon the bounty of the deceased…
However, the claims of a beneficiary, as the chosen object of the deceased's testamentary bounty, or as a person with a legitimate claim on the bounty of the deceased, and also as a person whose interest in the estate may bear the burden of the order made in favour of the applicant, are to be borne in mind. (It is to be remembered that the Court must specify, amongst other things, the manner in which the provision is to be provided and the part, or parts, of the estate out of which it is to be provided: s 65(1)(c) of the Act.)
Where there is no evidence from the beneficiary, it is those claims (i.e. as the chosen object of the deceased's testamentary bounty, or as a person with a legitimate claim on the bounty of the deceased, or as a person whose interest in the estate may bear the burden of the order made in favour of the applicant), rather than any financial claim upon the bounty of the deceased, that should be considered. Put another way, and using the oft-quoted words of Salmond J in Re Allen (deceased); Allen v Manchester [1922] NZLR 218, at 220, the Court is not able to have regard to "the means" of the beneficiary, but the Court may still consider "the deserts of the several claimants" and the "relative urgency" of the various moral claims upon [the deceased's] bounty".
The Court will, thereby, give due regard to "what the testator regarded as superior claims or preferable dispositions" as demonstrated by his, or her, will: Pontifical Society for the Propagation of the Faith v Scales at 19, per Dixon CJ. In this way, too, the Court gives weight to the principle of freedom of testation referred to earlier.”

Although probably of little relevance to Michael if his claim is successful, his senior counsel submitted that “some of the provision that might be ordered in favour of [Michael] should be borne by Joseph as well as Tony and Mary”: T 143.15 - T143.16.

The relationship of Michael and the deceased

A significant focus of the evidence, both in the affidavits and at the hearing, related to the relationship of Michael and the deceased.
The Act refers to "the character and conduct of the applicant before, and after, the date of the death of the deceased person". Relevantly, it does not refer to “disentitling conduct” but simply “conduct”.
(In this regard, I should refer to In Re the Will of F B Gilbert deceased (1946) 46 SR NSW 318, relied upon by senior counsel for Michael (in the context of the application for a permanent stay). In that case, Jordan CJ, at 321, considered (by reference to the applicable legislation) that disentitling conduct (or “character or conduct such as to disentitle him to the benefit of such an order”) meant “character or conduct relevant to the purposes which the Act is intended to serve, for example, misconduct towards the testator, or character or conduct which shows that any need which an applicant may have for maintenance is due to his or her own default”.)
Under the Act, an evaluation of "character and conduct" may be necessary, not for the sake of criticism, but to enable consideration of what is "adequate and proper" in all the circumstances. Importantly, the Act does not limit the consideration of "conduct" to conduct towards the deceased although, it seems that his, or her, conduct towards the deceased might be more relevant than his, or her, conduct towards others.
In Collicoat v McMillan [1999] 3 VR 803 at [40], Ormiston J wrote, in relation to the manner in which an applicant's behaviour towards the deceased is to be considered:

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

Campbell JA in Hampson v Hampson [2010] NSWCA 359 at [80], in regard to the Court's consideration of the totality of the relationship between the applicant and the deceased, wrote:

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

I start this topic by confirming that where there is any conflict between Michael’s and Tony’s evidence, I prefer the evidence of Tony. I formed the view that Tony was a careful witness who made every effort to answer, truthfully, the questions asked of him. I did not find him to be embellishing his evidence regarding his relationship with Michael or trying to exaggerate the seriousness of the events that he had observed involving the deceased.
I note a passage of Tony’s evidence in cross-examination by counsel for Charlie and Simon (which I quote omitting irrelevant words that appear in the transcript) that I found particularly relevant (at T128.35 – T129.00):

“I … just … reiterate Michael and I … were very close. We used to play together, we used to go to the park together. He used to ask me for money [and I was] more than happy to provide him with money. We went to Surfers Paradise together, Melbourne. We were very close and I treated Michael the same way that I treated all my brothers and sisters.
Q. Up until about the age of 14 or 15 or beyond that?
A. My relationship with Michael we always had a close relationship. He only became estranged from me when he started to get addicted to alcohol and drugs. So I believe as soon as he got to the age of 14 or 15 from memory, that's when he started to go downhill with the abuse of alcohol to drugs associating with people older than him. But even … after that I still communicated with him. We were still very close. I would always talk to him. I never had an issue.”

His oral evidence was consistent with how he had described his relationship in an affidavit sworn in September 2015, part of which was denied by Michael.
And in a similar vein, in answer to questions by senior counsel for Michael, Tony said, at T131.33 – T131.40:

“Q. Sir, you were asked questions by Mr Barter about the relationship between yourself and Michael especially the younger days of both of you?
A. Hm.
Q. You said it was a close affectionate relationship where you and you say that Michael's version of friction and bullying and name calling was not correct?
A. Absolutely I never bullied Michael.”

I am of the view that Michael’s evidence is not wholly reliable. I approach his evidence with caution but I do so for mixed reasons. It is clear that some of his evidence was coloured by his strong emotion. There was a strongly felt sense of grievance at the way the deceased, for whatever reason, failed to tell him that he was adopted until he was in his late 20s.
In this regard, I remember what was said by the English Court of Appeal in R v Turner [1975] QB 834 at 841:

“A man's personality and mental make-up do have a bearing upon his conduct. A quick-tempered man will react more aggressively to an unpleasing situation than a placid one. Anyone having a florid imagination or a tendency to exaggerate is less likely to be a reliable witness than one who is precise and careful. These are matters of ordinary human experience. Opinions from knowledgeable persons about a man's personality and mental make-up play a part in many human judgments.”

In addition, it is tolerably plain that Michael feels that he no longer has any relationship with Tony and with the other beneficiaries (although there is some evidence that he keeps in contact with some of them). As he repeated several times, he feels that in some way, Tony’s family is responsible for his present predicament and that the members of that family caused the deceased to make the 2011 Will in the terms that she did.

Regrettably, there was no evidence by the Plaintiff on this topic.
I dealt with the matter of a plaintiff’s entitlement to a pension, in Kohari v Snow at [124] – [127]:

“In Taylor v Farrugia Brereton J said, at [59]:
“The Court’s attitude to the eligibility for means tested pension benefits of eligible persons and beneficiaries varies depending on the circumstances of the case. Ordinarily, a testator makes a will and provides for those who have a claim on the testator without regard to the claimant’s eligibility for a pension. However, in a small estate where there are competing claims, a testator, and this Court on an application under the Act, may take into account the eligibility of a claimant for a pension as a means of deciding how such limited benefits as are available from the estate should be shared between claimants, and how those benefits might be structured. But this qualification to the principle that the burden of support should be borne in the first instance by an estate rather than by social security arises mainly, if not exclusively in smaller estates [Parker v Public Trustee (1988) NSWSC, Young J, 31 May 1998; Whitmont v Lloyd (New South Wales Supreme Court, 31 July 1995, Bryson J, unreported); King v Foster (Court of Appeal, 7 December 1995, unreported) King v White [1992] 2 VR 417, 424; Shah v Perpetual Trustee Company [1981] 7 Fam LR 97 100; Gunawardena v Kanagaratnam Sri Kantha [2007] NSWSC 151; Chan v Tsui [2005] NSWSC 82].”

An earlier authority, with which I respectfully also agree, is Thom v The Public Trustee (NSWSC, 2 April 1992, unreported), in which Master McLaughlin (as his Honour then was) said, at 10-11:
“It seems to me that it would be totally unrealistic for the Court to approach the moral obligation of the deceased to make provision for the applicant by disregarding the fact that for a period of 20 years before the deceased’s death, the applicant was in receipt of a pension from the State, and the fact that, to the extent of that pension, the deceased was relieved of the necessity to support the applicant from his own funds. That being so, I do not see how, upon the death of the deceased, the moral obligation upon the deceased to make provision for the applicant by will, could be approached without recognising the fact that the applicant would be entitled to continue to receive such a pension.”

Thus, the availability of a pension provided to an applicant ought not be regarded as a substitute for the obligation on the deceased to make adequate provision for him or her. Yet, it is not necessary to make an order that would operate primarily in relief of the taxpayer.
In this case, it has been submitted that the availability of the pension, and associated social benefits, is a circumstance to which the Court should have regard particularly in circumstances where the Plaintiff may require care and treatment in the future. As was stated in Evans v Levy, at [55] by Young JA:
“… there are, for most pensioners, side benefits of considerable value in merely having a part pension, such as the right which becomes more and more valuable as one gets older to have medical services provided at considerable concessional rates.”

I referred to the principles again in Baird v Harris [2015] NSWSC 803 at [161], noting at [162], that they had also been followed by Robb J in Pang v Fong [2014] NSWSC 1425 at [150].
In this case, there are distinct advantages in Michael retaining the disability pension, including access to medical services at a subsidised cost.

Relevance of Michael’s Criminal Conduct

In Hampson v Hampson at [95], Campbell JA also noted that “[h]aving engaged in illegal conduct is not a bar to a claim under the Act”. In that case, the Plaintiff had been found to have a history of using and cultivating marijuana.
However, his Honour went on to say:

“... 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.
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 … 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.”

In West v France [2010] NSWSC 845 at 84, I said:

“Neither does the fact of the Plaintiff’s criminal history disentitle him to provision. As White J noted in Hastings v Hastings, at 40, “a criminal record is not as such a bar to a claim under the Act. A good example is Hoadley v Hoadley (Supreme Court of New South Wales, Young J, 17 February 1987, unreported). There, Young J (as his Honour then was) made an order for provision in favour of an adult child who had spent 20 years in prison, where his Honour considered there would be good prospects of rehabilitation which an order for provision would promote”.

In Green v Perpetual Trustee Co Ltd (Supreme Court of New South Wales, Hodgson J, 10 July 1985, unrep), an order was made in favour of a Plaintiff who was a heroin user. The order was one that involved a protective trust to make sure that the plaintiff was benefited, yet did not spend his money on heroin. In McLean v Public Trustee [2001] NSWSC 970, a claim was made by a daughter with a gambling problem. An order was made for a legacy upon conditions as to its use. In Michael Bienke v Brian Bienke; Estate of the late Harold Bienke [2002] NSWSC 804, an order was made in favour of a grandson who had a chronic history of drug and alcohol abuse and a gambling problem.
In Wheatley v Wheatley [2006] NSWCA 262 at [21], Bryson JA wrote:

“The interaction of Mr Wheatley's disabilities and personality with those of his late mother produced an outcome which none could applaud: yet, as family ties do, the relationship continued in a manner, as is shown by the continuing telephone contact: not quite as frequent as Mr Wheatley claimed at some points in his evidence, but it continued nonetheless. Conduct such as that of Mr Wheatley towards a parent could put an end to any hope of substantial provision in a small estate. However the estate of the testatrix is not small, Mr Wheatley's claim does not threaten the well-being of any other person, and the jurisdiction exists by reference to these (and other) matters in s 9(3), to infuse objectivity into succession decisions and to redress unduly great influences of antipathies where this is necessary to make the provision that ought to be made for maintenance or advancement of Mr Wheatley. With his medical history, style of life and anxiety disorder Mr Wheatley was not in a position to make a good discharge of filial duty: in their own way, his shortcomings enhance his claim.”

The Submissions

I shall not set out all of the submissions made on behalf of each of the parties. Those submissions, in writing and on the Transcript, will, of course remain in the Court papers.
Ultimately, the submission made on behalf of the Plaintiff, in summary, amounts to the following propositions: that he is an adult child of the deceased; that he has established a need for provision because of his limited financial means; that those for whom the deceased provided do not have a need; and that what was provided for him in the 2011 Will should be augmented by a capital sum for exigencies of life ($150,000). In my view, those matters are not enough to justify interference with the terms of the 2011 Will.
I think there is far more merit in the submission made by senior counsel for Tony, which was that, leaving aside any question of conduct, making provision for Michael where he is able to be secure in accommodation, where he has either another property which will provide an income, and be available as a capital fund if it is sold, and if it is sold, which would provide additional income in any event by way of interest, is adequate and proper provision. And that when one superimposes Michael’s conduct, it is amply demonstrated that the provision is not only adequate, but also proper.
There is also merit in the submission that there was no coherent attempt to link causally Michael’s conduct with any medical condition from which he suffered. Certainly, the report of Dr Niellsen to which I have referred does not suggest such a link.
The submissions of counsel for the second and third Defendant were difficult to understand but seemed to be that the Court looks at whether the provision made for Michael “through the eyes of the deceased” and that the Court should “consider the relevance of his conduct not from the objective point of view of those of us that may be standing here, but through the point of view of the testator”.

Determination

As there is no dispute about eligibility and that the Summons was filed within the time prescribed by the Act, when the Court is considering the application, I must consider whether the provision that the deceased made for Michael is adequate provision for his proper maintenance, education or advancement in life. That involves not only an evaluation that takes the Court to the provision actually made in the deceased's Will on the one hand, and to the requirement for maintenance and advancement in life of the applicant on the other, but also to the totality of his relationship with the deceased, the age and capacities of the other beneficiaries, and the claim of each on the bounty of the deceased.
As the passage in the judgment of Callinan and Heydon JJ in Vigolo v Bostin, which I have quoted emphasises, the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum" or "by looking simply to the question whether the applicant has enough on which to survive or live comfortably". The inquiry is not confined only to the financial circumstances of the applicant. The whole of the context must be examined.
Even though the 2011 Will was made a few years before the death of the deceased, there is no reason to suggest that the deceased’s testamentary intentions changed in those two years.
This is not a case where the deceased made no, or nominal, provision for Michael in her Will. She made substantial provision for him, being about 44 per cent of the distributable value of the estate (before costs) at the date of hearing. In describing the provision in this way, I have not forgotten that Michael was the deceased’s only child, that there are no other eligible persons, and that the only beneficiary who has disclosed his financial and material circumstances, is Joseph. Whilst it is correct to say that he does not have an immediate need for accommodation, since he lives with Wahab, he has no property, of any significant value, of his own (at this time).
In any event, Michael must establish his claim upon its own merits. The competing claims of the three beneficiaries cannot have the effect of enhancing his claim. As stated, the Act provides that the Court cannot disregard each as a beneficiary and as a chosen object of the deceased’s testamentary bounty.
I must also remember Michael’s conduct towards the deceased, taking into account any medical condition from which he suffered and the strong sense of grievance that he held towards the deceased regarding her not telling him of his adoption. His conduct, whilst not disentitling him to provision, as the deceased, herself, recognised, certainly permitted her to form the view that it restrained its amplitude. She had, on occasions, perceived his conduct as conveying a real threat to her wellbeing and that it was sufficiently serious to seek apprehended violence orders. This type of conduct is not condoned by society, and cannot be condoned by the Court.
His other criminal conduct, even if not directly affecting the deceased, created what might be regarded as "normal disappointment and anguish of a mother at her son's wrongdoing” (Re Smith (Deceased) (1991) 8 FRNZ 459 at 463), or, as it was described in the 2011 Will, “angst”.
Furthermore, Michael’s denials in the proceedings that he had behaved badly towards the deceased, and his repeated assertions, both before and after her death, about her instability, when there is no other evidence to support such assertions, do him no credit.
I should not proceed upon the assumption that “the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in [her] will have only a prima facie effect, the real dispositive power being vested in the Court”: Pontifical Society for the Propagation of the Faith v Scales, at 19. I am satisfied that the deceased gave careful, and thoughtful, consideration to the provision that Michael required, principally being a need for secure accommodation, and a capital amount that would provide an additional income. Without this proceeding having been commenced, those “needs” could have been satisfied by the provision made in the 2011 Will.
Subject to any costs order (about which I shall say nothing more at this time), since Michael is entitled to receive the two units absolutely, there are several alternatives that, with appropriate advice, will be available to him in relation to the future. Objectively, one such alternative would provide security of accommodation (one of the units in which he may return to live) and a capital sum (the value of the unit in which he does not live) that will provide an income to supplement his disability pension, which, on current information, would not be, or would not substantially be, reduced. His “needs”, when one takes into account these matters, diminish significantly.
Accordingly, Michael fails at the jurisdictional stage. That finding concludes the matter and must lead to the dismissal of his claim for a family provision order.
However, even if I were wrong in coming to that conclusion, I would not exercise my discretion to make an order in his, favour. Whatever was meant by Clause 11 of the deceased’s Will, the objective facts stated in that Clause could not be seriously in dispute. Accordingly, the family relationship between Michael and the deceased is a key factor in the assessment of his claim (s 60(2)(a) of the Act), as are the obligations or responsibilities owed by her to him: s 60(2)(b). I have dealt with each of these particular matters in some detail earlier.
Whilst there may have been occasions when Michael provided some assistance to her, that assistance seems to have been intermittent, at best, once he reached adulthood. His negative conduct towards the deceased far outweighed his positive conduct towards her. Even if this conduct may be attributed to a substance disorder, that cannot be a justification of, let alone an excuse for, such conduct, which conduct consists of actual wrongdoing, involving both verbal and physical assaults, upon the deceased. The violence and anti-social behaviour spanned many years and the last event was not long before the deceased’s death and after the 2011 Will was made.
This is not to say that an order should be withheld as punishment for bad conduct by the applicant towards the deceased. However, the conduct is relevant to whether an order for even greater provision than that made in the 2011 Will “ought” to be made. There is little room for the view that community standards and community expectations would require the making of additional provision for Michael out of the estate of the deceased.
Although there is evidence from Michael, that he had heard his parents say to him that he would inherit their entire estate, it is clear that over time, the view of the deceased changed. Her clearly stated intention, held from the time of the execution of the 2004 Will, was to benefit not only Michael, but also others who she specifically identified and who she regarded as legitimate claimants on her bounty. Her testamentary intentions and the freedom of testation cannot, and should not, be forgotten.
As stated, the deceased did consider her duty, as a parent towards her only child, to provide for his needs on her death, and by making the provision that she did, she did not allow the disharmony and disappointment that existed to blind her to the recognition of the continuation of that duty.
In any event, the role of the Court is “not to address wounded feelings or salve the pain of disappointed expectations”: Heyward v Fisher (NSW Court of Appeal, 26 April 1985, unrep. per Kirby P), that Michael might feel.
I also note the provision made for Michael during the lifetime of the deceased. I have referred to his schooling. He, himself, gives evidence of his parents having bought him two cars by the age of 20. He admits that he would sometimes ask the deceased for money for petrol, food, clothes, and to pay for recreational activities, like movies, nightclubs and outings with friends. He does not suggest that she did not assist him financially when he asked.
I have tested my conclusions another way. Had no provision at all been made for Michael in the 2011 Will, bearing in mind all of the circumstances of the case, would he have been likely to receive provision out of the estate greater than that in the 2011 Will? In my view, the answer to this question is in the negative.
In all the circumstances, the Summons should be dismissed.
At this time, it is not possible to anticipate the economic consequences for the parties of the Probate proceeding and the family provision proceeding, other than to note that the quantum of the estate will be diminished as a result of the cost order made in the Probate proceeding and the quantum of the entitlement of one, or more, of the beneficiaries is likely to also be reduced whatever costs order is made.
In view of the request of all parties that the question of costs of the family provision proceedings be determined following these reasons being published, I order that any argument as to costs of the proceedings and how those costs are to be borne, be listed on a date to be arranged when these reasons are published.

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Amendments

21 June 2016 - [280] Robb J added after 'followed by'

Decision last updated: 21 June 2016

Medium Neutral Citation:	Hinderry v Hinderry [2016] NSWSC 780
Hearing dates:	18, 19 and 25 May 2016
Date of orders:	20 June 2016
Decision date:	20 June 2016
Jurisdiction:	Equity
Before:	Hallen J
Decision:	Orders that the Plaintiff’s Summons be dismissed. Orders that any argument as to costs of the proceeding and how those costs are to be borne, be listed on a date to be arranged when these reasons are published.
Catchwords:	SUCCESSION - FAMILY PROVISION - The Plaintiff, the adopted son of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendants are executors appointed under the Will to whom Probate granted - Provision for the Plaintiff made in the Will – Estate not small - Only one competing financial claimant although three beneficiaries, other than Plaintiff, named in the Will – Conduct of the Plaintiff towards the deceased for some years prior to death involving physical and verbal assaults and breaches of AVOs obtained by the deceased against him - Whether adequate and proper provision not made in Will of the deceased for the Plaintiff and, if so, the nature and quantum of the provision to be made.
Legislation Cited:	Civil Procedure Act 2005 (NSW) Family Provision Act 1982 (NSW) Probate Administration Act 1898 (NSW) Succession Act 2006 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Andrew v Andrew [2012] NSWCA 308 Baird v Harris [2015] NSWSC 803 Bartlett v Coomber [2008] NSWCA 100 Boettcher v Driscoll [2014] SASC 86; (2014) 119 SASR 523 Bondelmonte v Blanckensee [1989] WAR 305 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 Burke v Burke [2015] NSWCA 195 Cairns v Cairns [2006] NSWSC 364 Chapple v Wilcox [2014] NSWCA 392 at [25] – [26] Christie v Manera [2006] WASC 287 Collicoat v McMillan [1999] 3 VR 803 Collins v McGain [2003] NSWCA 190 Crossman v Riedel [2004] ACTSC 127 de Angelis v de Angelis [2003] VSC 432 Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89 Edgar v Public Trustee for the Northern Territory [2011] NTSC 5 Foley v Ellis [2008] NSWCA 288 Fulton v Fulton [2014] NSWSC 619 Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep) Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 Goodsell v Wellington [2011] NSWSC 1232 Gorton v Parks (1989) 17 NSWLR 1 Green v Perpetual Trustee Co Ltd (Supreme Court of New South Wales, Hodgson J, 10 July 1985, unrep) Grey v Harrison [1997] 2 VR 359 Hampson v Hampson [2010] NSWCA 359 Hawkins v Prestage (1989) 1 WAR 37 Henry v Hancock [2016] NSWSC 71 Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 Hunter v Hunter (1987) 8 NSWLR 573 Hyland v Burbidge [2000] NSWSC 12 In the Estate of Puckridge, Deceased (1978) 20 SASR 72 In Re the Will of F B Gilbert deceased (1946) 46 SR NSW 318 Kay v Archbold [2008] NSWSC 254 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Kohari v Snow [2013] NSWSC 452 Liu v The Age Company Limited [2016] NSWCA 115 MacGregor v MacGregor [2003] WASC 169 Magjarraj v Asteron Life Ltd [2009] NSWSC 1433 Magjarraj v Asteron Life Ltd [2010] NSWCA 207 Manuel v Lane [2013] NSWCA 61 Marks v Marks [2003] WASCA 297 Matthews v Wear [2011] NSWSC 1145 Mayfield v Lloyd-Williams [2004] NSWSC 419 McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 McLean v Public Trustee [2001] NSWSC 970 Michael Bienke v Brian Bienke; Estate of the late Harold Bienke [2002] NSWSC 804 Palagiano v Mankarios [2011] NSWSC 61 Pang v Fong [2014] NSWSC 1425 Phillips v James [2014] NSWCA 4 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 R v Turner [1975] QB 834 R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 Rappard v Williams [2013] NSWSC 1279 Re Buckland, Deceased [1966] VR 404 Re Smith (Deceased) (1991) 8 FRNZ 459 Russell Caldar v Public Trustee of NSW (Supreme Court, 27 October 2004, Master McLaughlin, unrep) Salmon v Osmond [2015] NSWCA 42 Sammut v Kleemann [2012] NSWSC 1030 Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253 Smith v Johnson [2015] NSWCA 297 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stott v Cook (1960) 33 ALJR 447 Szypica v O’Beirne [2013] NSWSC 297 Taylor v Farrugia [2009] NSWSC 801 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) West v France [2010] NSWSC 845 Wheatley v Wheatley [2006] NSWCA 262 Wilcox v Wilcox [2012] NSWSC 1138 Williams v Aucutt [2000] 2 NZLR 479
Texts Cited:	Rosalind Atherton, “The Concept of Moral Duty in the Law of Family Provision – a Gloss or Critical Understanding?” (1999) 5 Australian Journal of Legal History 5 Katheryn Katz, “Elder Abuse” (1980) 18 Journal of Family Law
Category:	Principal judgment
Parties:	Michael George Hinderry (Plaintiff) Tony Hinderry (first Defendant) Charlie Semaan (second Defendant) Simon Semaan (third Defendant)
Representation:	Counsel: Mr L Ellison SC (Plaintiff) Mr J Brown (Plaintiff) (3rd day) Mr M Meek SC (first Defendant) Mr G Barter (second and third Defendants) Solicitors: Kazi Portolesi Lawyers (Plaintiff) M Russoniello (first Defendant) Spectrum Legal Group (second and third Defendants)
File Number(s):	2014/238066

Assets	Value	Liability	Entitlement
No. 2 Miller Street	$392,500	$130,153 (half share of mortgage)	Joseph
No. 5 Miller Street	$327,000	$130,153 (half share of mortgage)	Tony
No. 6 Miller Street	$344,500	Michael
No. 8 Miller Street	$344,500	Tony and Mary
No. 9 Miller Street (half interest)	$163,500	Tony
No. 2 Gladstone Avenue	$445,000	Michael
Cash at bank	$7,892
Total	$2,024,892 - $260,307 = $1,764,585