Horsburgh v White

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 5728 of 2003

SUSAN ELIZABETH HORSBURGH	Plaintiff
v
MAURICE LESLIE WHITE AND RUTH ELIZABETH WHITE	Defendants

---

JUDGE:	Hansen J
WHERE HELD:	Melbourne
DATE OF HEARING:	20, 21 and 24 October 2005
DATE OF JUDGMENT:	10 August 2006
CASE MAY BE CITED AS:	Horsburgh v White
MEDIUM NEUTRAL CITATION:	[2006] VSC 300

---

Family provision – Adult daughter – Administration & Probate Act 1958, s 91.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A. Verspaandonk	Maddens Lawyers
For the Defendants	Mr P.H. Barton	Wards

HIS HONOUR:

This is an application by an adult daughter for an order for provision for her proper maintenance and support out of the estate of her father Robert Lesley White deceased pursuant to s 91 of the Administration and Probate Act 1958 (“the Act”).

The deceased died on 6 September 2002 aged 93 years. At the time of his death he resided at Paynesville Private Nursing Home, Kings Road, Paynesville.

The deceased married Mabel Elizabeth White on 1 July 1933. She predeceased him having died on 5 February 1999 aged 84 years.

Four children were born of the marriage, namely:

(a)Maurice Leslie White and Robert Worgan White, who are twins, were born on 13 September 1935,
(b)Geoffrey James White, who was born on 8 April 1944, and
(c)Susan Elizabeth Horsburgh, the plaintiff, who was born on 24 April 1952.

I shall refer to them and other parties by their first name. Robert survived the deceased but died in 2003.

The deceased left a will dated 23 March 1999. Probate of the will was granted to Maurice, Susan, and Maurice’s wife Ruth Elizabeth White, the executors appointed by the will, on 21 March 2003.

The originating motion by which this proceeding was commenced was filed on 8 May 2003. The defendants in the proceeding are Maurice and Ruth as executors of the deceased’s estate.

Sometime later in 2003 Geoffrey commenced an application for provision out of the estate of the deceased, in proceeding 7737 of 2003, which a Master ordered be heard together with Susan’s proceeding. I was told that Geoffrey settled his case on the basis that he withdrew his claim and each side paid their own costs, and with no payment being made to Geoffrey.

As set out in the inventory of assets and liabilities lodged with the application for probate, the deceased died possessed of the following assets, namely:

(a)his farm property being Lot 2 on Plan of Subdivision No. 140105
and being comprised in certificate of title volume 9470 folio 497 $250,000.00
(b)Bank of Melbourne account $24,110.98
$274,110.98

There were no liabilities. The farm property was located at 180 Bengworden Road, Bairnsdale.
The will

By his will the deceased left his estate, after payment of funeral and testamentary expenses, debts and duties, on trust for Susan’s three children Travis Horsburgh, Lauren Horsburgh and Zara Horsburgh “equally absolutely”. In the will Zara is incorrectly referred to as “Sarah”.

I interpolate that Travis was born on 14 December 1979 and that Lauren and Zara, who are twins, were born on 24 July 1982. Hence, when the deceased died Travis was aged 22 and Lauren and Zara were aged 20.

Having made that gift to those named grandchildren the deceased then proceeded to record why he had not made provision for his children, in the following terms:

“I DESIRE to record that I have not made any provision in this my Will for my three sons MAURICE LESLIE WHITE ROBERT WORGAN WHITE and GEOFFREY JAMES WHITE as I have over many years made ample provision for them during my lifetime when I was in partnership in a transport business and farming business with my said sons and I have provided each of them amongst other things with a fully paid house property in Bairnsdale I have provided them each with a small farm property and I have made distributions of moneys to them from the sale of my house property in Dalmahoy Street and another house property in McLeod Street Bairnsdale I have made distributions to them of the share and interest in the sale and of the transport business operated by me and I have effected a transfer to my three said sons of a large shed on land at the corner of Grant Street South and Rupert Streets Bairnsdale which property still stands in the name of my said sons AND I CONSIDER that they have received more than their fair share in my estate AND I DESIRE TO FURTHER RECORD that I have not made any provision in my Will for my said daughter SUSAN ELIZABETH HORSBURGH as she has received money household furniture and effects and motor vehicles from me during my lifetime.”

Then, by cl 5, the deceased gave to his executors power to postpone the sale, calling in and conversion of his estate.

Finally, in cl 6, the deceased directed that notwithstanding that the grandchildren’s gift vested immediately on his death his executors “may retain the share of any infant grandchild and may apply and pay the whole or any part thereof for or towards the maintenance advancement in life or education of such child during his or her minority”.

Prior wills

At the outset of the case, counsel for the plaintiff tendered three prior wills of the deceased. These wills were dated 17 September 1985[1], 5 April 1995[2] and 2 December 1996[3] and provided as follows, stated as succinctly as possible referring for this purpose to the dispositive provisions and any statement of the deceased as to his reason for those provisions or for not providing for a person.
[1]Exhibit A.
[2]Exhibit B.
[3]Exhibit C.

(a) 1985 Will
The deceased’s wife, Susan and Ruth were appointed executrices provided that Susan and Ruth were not entitled to prove if his wife survived him by 30 days in which event also she received his entire estate absolutely. If his wife did not so survive him he left his estate on trust as follows:
(i)For Susan, his principal place of residence and the contents thereof being the property located on Bengworden Road, Bairnsdale comprising 95 acres or thereabouts being the land comprised in certificate of title volume 9470 folio 497[4].
[4]This is the property which the deceased owned at death.
(ii)For his sons, his property at 87 – 89 Dalmahoy Street, Bairnsdale.
(iii)For his son Maurice, his Fiat tractor rotary hoe and grader blade.
(iv)For his son Geoffrey, his Dodge truck super spreader chaff cutter and hammer mill.
(v)For his son Robert, the motor vehicle owned by the deceased at death.
(vi)For his grandson Travis, his Honda motorcycle.
(vii)For his grandson David White, his saddle and harness.
(viii)The balance of his estate to his sons and his wife equally as tenants in common.
(b)1995 Will

The appointed executors were now Maurice, Susan and Ruth. The deceased left his entire estate to his wife absolutely but if she predeceased him to his daughter Susan absolutely. If Susan predeceased him leaving issue such issue shall take if more than one equally absolutely the share and interest that Susan would have taken had she survived him. Then, in cl 6, the deceased set out why he had not made provision for his sons. This was in identical terms to the statement in his last will quoted above down to and including the words “AND I CONSIDER that they have received more than their fair share in my estate” but then continuing as follows:
“AND I DESIRE TO FURTHER RECORD that I have not made any distributions of any of the above benefits to my said daughter SUSAN ELIZABETH HORSBURGH and nor did she receive any share of the partnership assets or business assets that were owned and used by my said sons and myself during our business operations AND it is my specific request that my daughter receive the balance of my estate as she has received a very small amount of assistance during my lifetime.”

(c) 1996 Will
In this will the deceased again appointed the same executors and left his entire estate to his wife. The will then provided that in the event his wife should predecease him his estate was to be held on trust to pay the net rents, profits and income arising therefrom to his daughter Susan and to allow her to have the use and occupation and enjoyment thereof until her youngest child attained 21 years when his residuary estate shall be divided between Susan and her three children equally absolutely. As in the 1995 will it was provided that if Susan predeceased him leaving issue such issue should take the interest she would have taken had she survived the deceased. Then, in cl 6, the deceased repeated his statements in the 1995 will as to why he had not made provision for his sons and concerning Susan, but, as to her, with the omission of all the words following “and used by my said sons and myself during our business operations”. That is, the statement ended at that point. He thus omitted the statement that Susan had “received a very small amount of assistance during my lifetime”.
Present value of estate

In an affidavit sworn on 12 October 2005 Maurice deposed to the then value of the estate, as follows:

(a) Assets
(i)The deceased’s residential home and outdoor buildings on
38.61 hectares at 180 Bengworden Road, Bairnsdale, as at
8 October 2005 $365,000.00

(ii)      Westpac Banking Corporation account  $27,909.27
(iii)     Engel and Partners estate solicitor’s trust account  $5,381.30
(iv)     Rental arrears re deceased’s house  $3,185.00
$401,475.57

(b) Liabilities
Administration expenses due to Engel and Partners
approximately $5,500 plus disbursements $5,500.00
$395,975.57

Maurice concluded his affidavit by stating that the estate had the following estimated or contingent liabilities, namely executor’s commission as determined by the Court and costs of the proceedings involving the estate estimated at $150,000.

For the sake of clarity on the matter of costs, during the trial counsel for the defendants provided me with the following information.

(a)The figure of $395,975.57 allowed for the payment of disbursements in Geoffrey’s case, and in Susan’s case to about October 2005.
(b)The solicitor/client costs of the defendants’ solicitor of Geoffrey’s case and of Susan’s case to 13 October 2005 have been costed by a consultant at $41,009.79. It is believed that work done between 14 and 21 October 2005 had increased that figure to $65,975.00. This figure did not allow for costs incurred by the defendants subsequently. As to that, in final address counsel for the defendants said that the costs of the hearing on 24 October 2005 would appear to be $6,000 “roughly”. These figures are inexact but I have no other information.
(c)The witness costs of the estate’s witnesses are estimated at about $2,000. To this must be added the return airfare of $365 paid by Nicholas Andrew Horsburgh (“Nicholas”), the former husband of the plaintiff who travelled from Adelaide to attend court and give evidence.
(d)The executors claim commission of 3% on capital, totalling about $12,000.

On the basis of these figures the net estate at the time of the trial was approximately $309,635.

That leaves the matter of Susan’s costs. The estimate of $150,000 to which Maurice deposed took into account the costs of the defendants and of Susan. On the above figures the defendants’ estimated costs and disbursements are approximately $74,500 which is approximately one half of the estimated $150,000. I note that when he opened the case counsel for the plaintiff referred to the estimate of $150,000 without demur. Although I enquired as to the amount of the plaintiff’s costs, the plaintiff did not provide an estimate of her costs. I would prefer not to speculate as to a likely amount of the plaintiff’s costs in order to have as much precision as possible as to the present value of the estate. However, it is notorious that the costs of legal proceedings are high including unfortunately proceedings of the present type, and I have no basis on which to conclude that $150,000 is not a reasonable estimate. It seemed plain to me from all that was said, and counsel’s attitude, that the parties’ view was that their costs (including the defendants’ costs of Geoffrey’s proceeding) were reasonably estimated at up to $150,000. In the circumstances I accept that as being the case. On that basis, estimating the matter as at the trial, the amount available for distribution after allowing for the plaintiff’s costs would be approximately $245,000. That was confirmed by Counsel for the defendants who observed that the amount could be $240,000, as to which figure Counsel for the plaintiff did not demur.

Evidence

The evidence was given on affidavit. Some documents additional to those exhibited to affidavits were tendered.

For the plaintiff evidence was given by herself and her de facto partner David Bruce Miller (“David”).

The plaintiff’s initial affidavit in support of the application was sworn on 12 March 2004[5]. Subsequently, on 22 September 2004 she swore an affidavit in reply to proposed affidavits of her former husband Nicholas, her daughter Lauren and son Travis[6]. It was not suggested to me that the sworn affidavits of Nicholas, Lauren and Travis differed in any respect from the proposed affidavits to which the plaintiff replied. However, Nicholas swore two affidavits and it is evident that the affidavit to which the plaintiff replied was the short affidavit sworn on 13 September 2004. She did not swear an affidavit in reply to Nicholas’ longer and more substantial affidavit sworn on 5 August 2004.
[5]Exhibit E.
[6]Exhibit F.

David swore his affidavit on 19 October 2005, the day before the trial.

Putting aside Maurice’s affidavit as to the financial position of the estate, affidavits sworn by the following persons were tendered in the defendants’ case.

(a)       Maurice sworn on 27 June 2004[7].
(b)      Ruth sworn on 27 June 2004[8].
(c)       Nicholas sworn on 5 August 2004 and 13 September 2004[9].
(d)Lauren, whose full name is Lauren de Beverley Horsburgh, sworn on 3 September 2004[10].
(e)Travis, whose full name is Travis Lesley James Horsburgh, sworn on 19 May 2005[11].
(f)Zara, whose full name is Zara Elizabeth Horsburgh, sworn on 17 May 2005[12].

[7]Exhibit LL.

[8]Exhibit NN.

[9]Exhibit HH.

[10]Exhibit OO.

[11]Exhibit KK.

[12]Exhibit FF.

Each of the defendants’ deponents expressly opposed the application.

The only deponent who was not cross examined was Lauren who was overseas. Her affidavit was tendered without the need to call her.

The plaintiff did not swear an affidavit in reply to matters deposed to by Maurice, Ruth and Zara in their affidavits. And, as mentioned, she did not swear an affidavit in reply to Nicholas' first affidavit.

It was unnecessary for evidence as to the value of the deceased’s real estate to be tendered as the plaintiff accepted the valuation of the defendants’ valuer.

There were conflicts in the evidence which went beyond mere difficulty in recollection of past events. I deal with these matters below. For the present I merely note my conclusion that on certain matters I do not accept the evidence of Susan and David preferring evidence in the defendants’ case. I found the defendants and their witnesses to be honest and reliable persons who gave evidence reasonably and to their best recollection. I should develop this somewhat.

The case is most unfortunate in that it was a struggle between the plaintiff on the one hand, who receives no benefit under her father’s will, and her children on the other hand, who receive the entire estate. The plaintiff’s children were supported in their opposition to their mother’s claim by their father and the executors. Then, the net estate now available for distribution is only in the order of $240,000 which would give each child $80,000. To the extent that provision is made for the plaintiff, the amount to be received by her children is reduced. Thus, they have an interest to see her claim defeated. All the more is that so by reason of the award that she seeks.

The case was opened on the basis that the plaintiff did not seek the whole of the deceased’s estate. Rather, recognising the close relationship that existed between the plaintiff’s children and the deceased, counsel said that the children should receive “some sort of acknowledgment of the special relationship” but otherwise the plaintiff had a need for a house to live in. In her evidence in chief the plaintiff said that she had inquired as to the cost of housing in Pakenham and that a very mediocre house “without any land” would vary between $150,000 to $200,000. There would in addition be the extra costs associated with purchasing a property including stamp duty and registration fees. It was clear from the evidence that the property would be purchased by herself and David. It was also clear, and I find, that David would not be contributing to the purchase cost.

It is clear enough that if that claim were acceded to the plaintiff’s children would receive very little out of the estate. What they would receive might be an “acknowledgment” but a small one in dollar terms, and nothing in the order of that intended by the deceased.

In his final address counsel for the plaintiff referred to the above claim for a house as his “primary contention for support”. However, counsel said, “if not that” then “something that could be used as a deposit, if not to pay it all entirely”.

In these circumstances it is seen that the plaintiff on the one hand and her children on the other hand had strongly opposing interests.

As mentioned, Nicholas and the executors, Maurice and Ruth, opposed the application. It was natural that Nicholas would support his children in receiving their grandfather’s intended benefaction. Counsel for the plaintiff submitted that Nicholas (and the plaintiff) had the primary responsibility to provide for his children. I do not overlook that consideration but do not consider that his evidence was affected by a desire that the provisions made by the deceased supplement let alone supplant his testamentary responsibility to his children. I found him to be an honest witness who gave his evidence in a measured and reasonable manner to his best recollection. I accept his evidence.

As to Maurice, it was evident that he and the plaintiff had fallen out at the time when she determined to leave Nicholas for David. He was a reserved and somewhat taciturn person who held things back, rather than proffer them, concerning the plaintiff. I judged that he had no joy in giving evidence but said what he considered had to be said to the extent necessary. He did not seek to criticise the plaintiff just for the sake of it or to see her lose. I found him to be an honest and reliable witness, as was his wife.

As I have mentioned, of the plaintiff’s children, Zara and Travis gave oral evidence. They were different in temperament and nature. When Zara was called she came into the court to the witness box, gave evidence and then left the court, with a directness of purpose and manifesting an independent determination for her position. Her evidence was, consistently with her personality and character, direct and clear. She stated the situation as she knew it. She gave the clearest impression, both in her evidence and her demeanour, that she felt she had been put upon by her mother and David, and that finally she had had enough. I was impressed by her as being an independent person who gave honest evidence.

Travis appeared to have a somewhat different personality. He presented as an uncomplaining person and as somewhat laconic. He evidently preferred not to be involved in disputation. However, he was firm and clear when it came to the point. I accept his evidence.

I concluded that the evidence of the plaintiff and David was affected by reconstruction and invention in order to bolster her case. I considered that this went beyond a mere inexactness of memory which the plaintiff certainly had on dates. At the outset it was significant that she did not swear an affidavit in reply to the affidavits of Maurice, Ruth and Zara and to Nicholas’ first affidavit. She not having done so, and thus keeping her cards up her sleeve, David swore an affidavit on the eve of the trial in which he raised for the first time the story that the plaintiff’s mother had told the plaintiff not to repay the Bank of Melbourne money. This was only one matter. I refer to this and other matters below.

Family background

I now set out in as convenient a chronological form as possible matters pertaining to the family and the plaintiff in the course of which I make findings of fact. Indeed, in what follows I state the facts as I find them to be save where it is otherwise apparent or I state to the contrary.

According to the plaintiff her parents married on 1 July 1933 in economically difficult times consequent upon the Depression. They first lived in a bark hut near Bemm River and then moved to Bellbird where her mother managed a hotel and the deceased worked for the Country Roads Board (“CRB”). Maurice and Robert were born at this time.

Later the deceased and his wife with Maurice and Robert moved to live in Bairnsdale. Either then or later they lived at 87 Dalmahoy St, Bairnsdale. The deceased continued to do bridge building work with the CRB. He was home only once a fortnight. His wife drove a baker’s van delivering bread and took in girl boarders to make ends meet. Maurice and Robert trapped rabbits and sold them, drove cattle, trained horses and milked cows and sold the milk.

The deceased commenced a transport business and ceased employment with the CRB. It is not entirely clear when the deceased commenced the business. There is evidence of Maurice that indicates the business commenced when he and Robert started working with the deceased. Maurice left school at 14 and Robert at 15 from when they worked in the business. It may be that the deceased commenced the transport business before Maurice started to work in it, but the matter is not clear and it does not matter to the resolution of the case. Whatever the true position was, the fact is that from an early stage in the establishment of the business Maurice and Robert applied themselves full-time to its development. I accept Maurice’s evidence that the business built up and developed as a result of the very hard work of his parents and the increasing contribution of Robert and himself as they grew older. I accept too that Maurice and Robert did not draw a wage apart from the bare minimum for expenses until they were married. Maurice recalled that they saved their money desperately so that they could buy a second truck, which the deceased did and then secured a gravel contract with the Omeo Shire and did contract work with the CRB and similar work. In due course Geoffrey followed the same path into the business.

The business became a substantial one particularly after moving into the transport of stock and fuel. At one time they had fourteen trucks. Maurice said that his parents, himself and Robert pooled their resources without any real reward for many years to ensure the success and growth of the business.

The business became very successful. Indeed, according to the plaintiff, whose evidence in this respect was not disputed, by the time she reached secondary school it was the biggest stock transport business in Victoria and was the first to have a triple decker transport.

After being conducted as a partnership the business was conducted by a company called R L White & Sons Pty Ltd in which the shareholders were the partners. The shareholders were the three brothers as to a one quarter interest each and their parents as to a one quarter interest. A long time ago, it would seem thirty years from what Maurice said and nothing to the contrary was suggested, the company was wound up and the property of the company was split between the shareholders on an equal one-quarter basis. Maurice could not remember what the distribution was, he did not keep the figures. He said that the distribution he received did not really give capital for the future, stating that he already had two farms. He added, however, that with the money he got out of the business he bought a house as an investment.

Maurice also gave some brief evidence as to the property owned by his parents and the company. It was brief and descriptive rather than detailed or comprehensive. As to this evidence, it is to be noted that the defendants did not challenge the correctness of the reasons in the deceased’s testamentary statements for not providing for his sons. Hence those reasons, which indicate substantial benefits, stand according to their terms although they do not contain any figures. Perhaps counsel for the plaintiff, in cross examining Maurice in this area, considered that the evidence he might elicit from Maurice would bolster Susan’s claim but, if that was the purpose, the evidence does not enable a reliable comparison of the benefits conferred on her by the deceased on the one hand, and the benefits received by her brothers on the other hand. For one thing, while at first blush the benefits received by the sons read as though they received appreciably greater provision account would need to be taken of the value of the services the sons provided to the deceased and the business and how assets were financed. Furthermore no principle of equality of treatment between siblings is applicable in the resolution of claims for provision under the Act, as Susan’s counsel recognised[13].
[13]Blair v Blair (2004) 10 VR 69 at 80-81, [25]-[27].

Maurice said that Geoffrey worked in the business much less than he and Robert. Perhaps this was because he was younger and thus commenced working in the business later. Whatever the explanation might be, nothing turns on the point.

Maurice further said that Susan did not effectively work in the business at all. That is correct. He agreed in cross examination that she was not offered the opportunity to participate in the business. As to that it is important to note that Susan was born in 1952, she boarded at school in Sale where she completed Year 12, and the company was wound up 30 or so years ago which would be within a relatively short time of her leaving school. Then, after leaving school she enjoyed a wholly different lifestyle from that undertaken by her brothers. Furthermore, there was truth in Maurice’s statement that he and his brothers “worked for our money”. As such he denied that they had received “benefits” from their parents.

There is a significant age difference between the plaintiff and her brothers. When Maurice married, Susan was six. Robert married about a year later. When Geoffrey married, Susan was around 13. When she was six Susan was sent as a boarder to St Anne’s and Gippsland Grammar. Susan said that was primarily due to her mother not being able to properly look after her due to a mental illness. There was some evidence which suggested that her mother did not suffer mental illness, but in his affidavit Maurice let the statement pass without comment which may be taken as an indication that there was some substance in the evidence. However that may be, nothing turns on it. If at relevant times Susan’s mother suffered some form of mental illness, or a difficulty in coping, it would seem sensible and in Susan’s interest to have sent her to boarding school. If she did not suffer mental illness, sending Susan to boarding school may be regarded as emanating from a desire of her parents that she have a superior education to better equip her for life as an adult. As already mentioned, Susan boarded at the school right through to Year 12 which she duly completed. Maurice said, and the contrary was not suggested, that St Anne’s and Gippsland Grammar was then, and remains today, the premier private school in Gippsland. She was the only member of the family to have the benefit of a full boarding school education to Year 12. The deceased and his wife paid the school fees and associated expenses in providing this education.

By the time Susan reached Grade 6 she started coming home at weekends whereas before that she only came home for term holidays and at Christmas vacation.

As a young child Susan developed an interest in horse riding. The deceased indulged her in this interest. He did everything he could to help her pursue the interest. That extended to taking her out of school to compete at horse shows in Victoria and South Australia. She first competed at the Melbourne Show when she was 12 and rode in the Gary Owen for four years. Susan continued her horse riding until well into her twenties, with the deceased always accompanying her. Her mother accompanied them to local shows and sometimes to the big shows in Melbourne and Adelaide.

After completing Year 12 Susan got her first job with the CBA in Bairnsdale. The working hours accommodated her interest in horses. She continued to live at home.

Maurice described the manner and extent of their parents’ benefaction upon Susan. She had, as mentioned, not filed an affidavit in answer to Maurice’s affidavit but in her oral evidence in chief she was taken to certain paragraphs in it; see transcript 26-30. In relation to para 38 in which Maurice said that throughout her life Susan effectively received almost anything she wanted and was showered with gifts and generosity throughout by their parents, she said “I was showered, totally, with gifts” including jewellery. She added that she did not believe that the list of things she was said to have received was exactly what she did get. This qualification referred to some evidence of Maurice (at para 47 of his affidavit) and similar evidence given by Nicholas to which I refer below. Maurice further asserted that Susan reaped more benefit than any (of the family) of the business; this was an argumentative statement and to be established required proof of facts to enable a true comparison. The evidence does not enable such a comparison to be made.

Then, Susan agreed with Maurice’s description of the benefits concerned with horses. Susan was given many horses over the years and, as mentioned, travelled throughout Gippsland, Victoria and interstate to shows and events, at times being away up to a fortnight. She wanted for nothing. She had, as Maurice said, the best of horses, equestrian clothing, saddles, gear, horse float, rugs and all expenses that went with it. While agreeing with this summation Susan explained that at this stage the deceased did not have anything to do with the business. She said that his whole life was horses. He had been in the 13^th Light Horse and wanted her to have the best horses, and to be the best which, she said, she was. When she was 17 she won at the Melbourne Show and that, according to Susan, was the greatest thrill of her father’s life and he gave her a new motor car.

Then, in 1970 her parents gave Susan another new motor car for her 18^th birthday. That, she said, was “like everyone else in the family”. She was, she said, “a very privileged child”. The cars she was given were a Torana and a Ford Cortina.

After working for the bank for about three years Susan spent three months in New Zealand. Maurice said that this was in about 1973 and that their parents paid the full cost of her holiday. His parents had told him that. Susan disputed that her parents funded the trip, saying that she had worked three jobs to pay for it. Following that trip Susan continued living with her parents and commenced employment with a vet in Bairnsdale.

Then, Maurice said, in 1976 their parents paid the full cost of her trip to the Montreal Olympic Games and a 12 month holiday overseas which followed in which Susan travelled in Europe and Asia. Again, Maurice’s evidence was based on what his parents had told him. Nicholas gave evidence to similar effect. He said that Susan told him “of her travels overseas including her trip in 1976 to the Olympic Games in Canada which she told me was fully funded by her parents”. She also told him that the extension of the trip to Europe and Asia was paid for by her parents. Susan denied that her parents paid for the trip, saying that she saved up and that with the deceased’s consent she had sold the horse she won on at the Melbourne show for $1,200 or $1,300 which paid for most of the trip. She said that her parents were so sure she would run out of money they secretly gave her travelling companion $500 to hold for her but she did not need it.

I accept the evidence of Maurice and Nicholas on this matter of the 1976 trip. I was impressed by them as sensible, matter of fact, down to earth people. Susan, on the other hand, I considered to be unreliable in her character and evidence both as to this and other matters. As to this matter I further note the following. While the above evidence of Maurice and Nicholas was stated in their affidavits, Susan never filed an answering affidavit and gave her response only in oral evidence in chief at the trial. The effect of conducting the case in that way was to deny Maurice and Nicholas advance notice of what she was going to say. I do not know whether if Susan had given her evidence in an affidavit, the defendants might have found any other evidence that went to the issue, but whether there might have been any such evidence is in a sense beside the point because by deferring her answer the defendants were not forewarned. It is also to be noted, for reasons more specifically apparent below, that I did not regard Susan as a satisfactory witness in that she gave certain evidence which I do not accept. In my view, having regard to her parents’ generosity towards her, as already referred to and to which I refer further below, the likelihood is that they did assist her financially with her trip overseas in 1976. It may well be that she spent some of her own money while overseas but I accept that as a matter of substance her parents paid for the trip. In my view the likelihood is that the position was the same with the New Zealand trip.

After returning from overseas Susan commenced employment in Sale where she then lived. She maintained regular contact with her parents and on most Sundays went home for lunch.

Susan was also secretary of the Australian Stock Horse Society which the deceased had a keen interest in as he was a classifier with the Society.

In 1977, while working in Sale, Susan met Nicholas and they married later that year on 6 August. Nicholas worked offshore on oil rigs. He bought the plaintiff a new Ford Cortina in 1977; the plaintiff said that this was a wedding present.

Nicholas said in cross-examination that he observed that the deceased and his family had a comfortable lifestyle.

Nicholas and the plaintiff lived in Sale until a change in employment four months after their marriage required them to move to Scotland where Nicholas worked as a driller and tool pusher in the North Sea Oil fields.

In 1979 Susan and Nicholas returned to Australia. They purchased a house at 39 Charles St, Lucknow, near Bairnsdale.

By the time Susan returned her parents had sold their home at 87 Dalmahoy St and were living at Bengworden Rd, Bairnsdale. They lived in a three bedroom home with a very large garage attached under the same roofline. In her affidavit Susan said that she believed her parents built “the same in the expectation that my family and I would eventually live in it”. In her oral evidence in chief Susan explained that when her parents made their first will, Peter Engel (the solicitor), Maurice and Ruth were present and that her parents said that they did not want a big family room but built a large garage so the wall “could be knocked out if we lived in it”. I accept that evidence. I note that Susan further said in evidence that it was her expectation that she would ultimately live in the house. I also note that Susan did not state when the above conversation occurred other than by referring to a “first will”. Perhaps that was the will dated 17 September 1985[14].
[14]Exhibit A.

Travis was born on 14 December 1979. The nature of Nicholas’ work was such that he frequently had to work overseas. When Travis was born Nicholas was in Venezuela.

At a time which on the plaintiff’s affidavit evidence was in 1980 or 1981 and in her oral evidence was in 1982, her parents gave her and Nicholas five acres of their land at Bengworden Road, which was excised therefrom by subdivision. The plaintiff and Nicholas paid the subdivision costs and the cost of providing services to the land on which they built a house for their occupation. They sold their house at Lucknow Street and applied the proceeds of sale to the new house. Thus, they lived next door to the deceased and his wife.

There was no reliable evidence as to the value of this five acres. Maurice speculated that the value at the time it was given was about $25,000. There seemed to be a suggestion that the amount of $50,000 described by the plaintiff as “gifts from parents” in 1987 in her conciliation conference document dated 7 January 1998[15] might have been a statement of the value of the land at that time; however, it might have referred to other gifts. The latter possibility would accord with the statement in the plaintiff’s solicitors’ letter dated 28 October 1997 that the plaintiff brought $50,000 into the marriage; see Exhibit K. In her evidence the plaintiff was unable to explain these “gifts” of $50,000, or whether, if it was money, where the money had gone, saying that she did not know “anything about that”.
[15]Exhibit O.

It is thus opportune to mention the following gift of money which assisted the plaintiff and Nicholas with their new house. This was referred to by Nicholas in his affidavit sworn on 5 August 2004, to which the plaintiff did not file an answering affidavit, and was not acknowledged by the plaintiff until her cross-examination. In his affidavit Nicholas said that after he married the plaintiff he became aware that her parents had put money aside for her for some years in an account with Gippsland Secured Investments with a firm of solicitors. After he and the plaintiff returned from Scotland her parents gave her the money which he recalled was about $25,000. In his affidavit he said that he recalled the funds were used to purchase a motor car and for other purposes. In her cross-examination the plaintiff initially denied the deposit with Gippsland Secured Investments but immediately following the luncheon break she agreed with Nicholas’ evidence although she was not sure on the amount. She said that the money was put towards their first home. When he was cross-examined Nicholas agreed that part of the money was used to purchase the Lucknow Street property.

The deceased also gave the plaintiff an old Dodge truck.

Zara and Lauren were born on 24 July 1982. The plaintiff’s children attended St Mary’s Primary School and Travis went to St Anne’s and Gippsland Grammar from Grade 5 as a day boarder. The plaintiff and Nicholas paid the fees.

Nicholas worked hard, often being overseas.

The plaintiff’s parents were generous to her and Nicholas. Nicholas said that the plaintiff received many gifts and gratuities. He referred to buying an item only to see it returned to the shop by the plaintiff and her mother, the latter of whom would replace it with a more expensive item. This included washing machines, clothes dryers and other household goods. Maurice gave evidence corroborative of this. He said that throughout her marriage the plaintiff was given furniture, paintings, chattels, refrigerators, freezers, washing machines, dryers and bedding by her parents, indeed whatever she wanted.

In her evidence the plaintiff said that her mother had never given her a painting, dryer, refrigerator or bedding. She had however sent back a washing machine and a table purchased by Nicholas and replaced it with one she purchased. The plaintiff said that this did not happen “on a lot of occasions”.

Nicholas also said that they received numerous interest free loans from the plaintiff’s parents most of which were repaid with the exception of a loan to the plaintiff to purchase a Holden Commodore which she retained as part of their marriage settlement. On the matter of such gifts Maurice said that he and other members of the family were aware that his mother gave the plaintiff amounts of money (additional to the Bank of Melbourne money referred to below) and other benefits from time to time without wishing the rest of the family to know. The plaintiff, however, said in evidence that her mother did not give her large amounts of money, rather that she would pay for things such as lunch, petrol, a dress and that jewellery received was usually for her birthday or Christmas. I consider however that this answer did not really meet the whole situation which was one of generous parents who provided money, land and other personal and household benefits.

I accept the evidence of Nicholas and Maurice as reflecting the truth of the situation on these matters, although it may be that not every type of item described by Maurice was given. The evidence reflects the loving and generous nature of the plaintiff’s parents and the general nature of their relationship with the plaintiff.

It should be noted on the matter of gifts that there was reference to the plaintiff having owned a paddock below the saleyards at Bairnsdale which was given to her by her parents. I accept that there was such a paddock and that it was used in connection with the carting business to hold stock. I also accept that the plaintiff did not have knowledge of the disposition of the land and the proceeds of sale, including whether she had received a benefit therefrom. She may have received a benefit from it in some way, and the evident generosity of her parents would tend to the likelihood that she did. However, in the absence of evidence I am unable to venture a finding on the benefaction.

It is now convenient to refer to another sum of money the plaintiff received from her parents. This too the plaintiff had omitted to refer to in her affidavit, but Nicholas referred to it in his unanswered affidavit. What Nicholas said was this. Following their separation (in 1996) Nicholas became aware that the plaintiff held an account in her name in the sum of about $26,000 with the Bank of Melbourne. He said that in negotiations to settle their Family Law case the plaintiff by her solicitors insisted that the money belonged to her mother and could on request be repaid to her. However, as he understood, the plaintiff retained the full benefit of the account and the money was never repaid to her mother.

Maurice also referred to this account in his unanswered affidavit sworn on 27 June 2004. There, in para 46, he said that in about 1991 his mother gave or transferred to the plaintiff $20,000. By 1997 the amount had increased to at least $26,000, which the plaintiff had retained. He produced a Bank of Melbourne term account renewal advice dated 2 March 1996 showing a deposit in the name of the plaintiff with an amount on maturity on 15 March 1997 of $23,866.94. Failing instructions the account would be renewed for 12 months. He said that the money belonged to his mother and had been “parked” there for pension or similar type of purpose.

In cross-examination the plaintiff said that the money was a gift from her mother in about 1991. The original deposit was less than $20,000 “when she put it in”. The plaintiff said that she had added to it, but gave no detail of any such addition and produced no record of the account. I am not satisfied on the balance of probabilities that she did add to it. According to the plaintiff, her mother had said to her that she had given her brother Geoffrey or his wife money when they went over budget on their house, and had given Maurice and Ruth money when they were buying a house.

I will return to this matter of the Bank of Melbourne deposit later in the chronology. I merely note at present that it is the fact that the plaintiff retained the money for herself.

During their marriage the plaintiff and Nicholas had a comfortable lifestyle. Nicholas worked hard and had a reasonable income. There have been periods – not precisely specified by him – when he has been unemployed but overall he has been in continual employment. The plaintiff worked in banks before their marriage, and she worked later in life. As they lived next door to her parents the plaintiff and Nicholas and their children saw a great deal of them. There was a close relationship. And, of course, the lifestyle of Nicholas and the plaintiff was readily observable by her parents. Doubtless, as the plaintiff states, she had constant contact with her parents, took her mother shopping and ran errands for them. The plaintiff was a co-signatory on her mother’s bank account which enabled her to withdraw money.

In describing her lifestyle in the marriage the plaintiff said that she lived a very privileged life, she played tennis and golf, went to Melbourne with the girls, and did school canteen. She “never, ever had to work” and “got showered with diamonds and pearls and new cars and lots of lovely things when he [Nicholas] came back from his overseas trips”. Maurice deposed to the plaintiff, in the latter years of her marriage, driving a new Land Rover and at another time a new Volvo. He referred to Nicholas earning in the order of $90,000 a year.

This apparently fortunate state was perhaps not all that it may have seemed, as evidenced by the plaintiff’s conduct in the mid 1990s. First, she commenced gambling on poker machines and, it is evident, to a degree that reasonably concerned her parents, at least. Secondly, in 1995 she commenced an affair with David Bruce Miller which led to a relationship that has continued. The result, as blandly stated by the plaintiff, was that in 1996 her marriage broke down and she left the matrimonial home. She then lived in Paynesville for six months. At that stage the twins were in Year 7 or 8 and Travis was about 18. Nicholas continued with his employment which meant he was about a month in Australia and then a month overseas. After Paynesville the plaintiff moved to Hamilton in 1997 where she and David lived at a rented property at Andrews Street for 12 months after which they purchased a property in Hamilton adjoining the horse racing course.

More particularly, the plaintiff said in her affidavit sworn on 12 March 2004, during the periods Nicholas was working overseas she would return to the home and live with the children on the basis that since he was the wage earner he would ensure that the house was stocked with food. When Nicholas returned she would leave the home and live with David in Hamilton. However living between Hamilton and Bairnsdale a month about meant that she was not able to maintain her employment and had to give up her job to accommodate the arrangement. She added that Nicholas did not ensure that the home was stocked with food and she was not able to continue living a month in Hamilton and a month in Bairnsdale so she remained living in Hamilton full-time.

There were conflicts in the evidence on these matters, and I reject the plaintiff’s evidence as I now indicate. First, the plaintiff herself stated in her second affidavit that the month about arrangement lasted only one month. She had already moved to Hamilton and came back for one month. That was all. Secondly, and in consequence, it is apparent that her initial affidavit evidence was at best an exaggeration of the fact and the impact on her of the month about arrangement. Having chosen to live in Hamilton with David her employment situation must inevitably have been affected, the distance between Hamilton and Bairnsdale being considerable. Furthermore, I reject her evidence that Nicholas did not keep to an arrangement that the house be stocked with food. I far prefer the evidence of Nicholas and the children. Moreover, it is hardly likely that her parents would have seen the plaintiff and her children out of food. An additional factor not to be overlooked is that the plaintiff’s relationship with her parents had suffered.

It is thus apposite to refer to the cancellation of the plaintiff’s authority to operate her mother’s bank account. In the plaintiff’s evidence this came to light in the following way. Every week the plaintiff took her mother to town where the first stop would be the bank. On the occasion in question her mother asked her to withdraw the amount she wanted and the plaintiff went to the counter to do so. The teller told her that she did not have authority to draw on her mother’s account, saying that her parents and Maurice had come in the previous week and changed the signatures. The plaintiff told her mother she had made her look an idiot. Her mother apologised and said that “Dad thinks it is for the best”.

Maurice and Nicholas gave evidence about this. Nicholas said that it caused very considerable ill feeling between the plaintiff and her parents. He recalled at the time it was said by the plaintiff’s parents that they had cancelled her authority because they did not trust her any more handling their financial affairs. He was not cross-examined on that evidence. I accept the evidence as stating the fact.

The circumstances were developed in Maurice’s evidence. In his affidavit Maurice said that his parents became aware that the plaintiff was acting dishonestly towards them and being deceitful in her marriage. They became concerned at her increasing gambling problem, particularly with the excessive use of poker machines. They also became aware that the plaintiff was withdrawing funds inappropriately from her mother’s bank account. Maurice was told this by his parents. An example they related to him was a withdrawal of $200 for groceries when groceries only to the value of $50 were delivered to the parents. His parents told him that it was because of this behaviour that his mother removed the plaintiff’s authority. He said that after discovering this the plaintiff had an argument with her parents. Maurice said that his father told him that the plaintiff flew into a rage with them, that a big argument developed, and that he had never been abused by truck drivers as much as he was then by Susan.

In cross-examination the plaintiff denied that she had not accounted for money withdrawn from her mother’s account. She agreed that she was gambling on poker machines but said that her parents were not concerned about that until she split from Nicholas and he made more of it than it was. She agreed with Maurice’s evidence as to her flying into a rage and having “a very heated argument that day”. She remembered her father saying that she should not be away in Melbourne with David, to which she responded (as stated in cross-examination) “Well, Dad, I am not the only one in this family that is having an affair”, and “so we had an argument”. In her affidavit evidence her response to her father was to the effect of “at least I only ever had one affair”, adding that her father had not been one hundred percent faithful to her mother in their marriage. In cross-examination the plaintiff was asked if her father responded to this, and she said “I don’t think he made any response, at all. I think he was a little bit gobsmacked, to be quite truthful”. I note that the plaintiff’s father would then have been aged in his late eighties.

It is then necessary to refer to Maurice’s oral evidence on this matter. In evidence in chief he said that he went to his parents’ house late in the afternoon following the above argument. Susan had left. His father said that Susan had abused him and stated that they did not trust her. Mother was very upset. They had removed her as a co-signatory on mother’s bank account because they could not trust her any longer with signing cheques. They said that they could not account for some money that had been missing or had gone out of the cheque account. There was a long discussion some of which was not very pleasant.

Maurice then said that prior to this he had gone to the bank with his mother and his signature had been put on her account so that he could sign cheques. He did not know if his sister’s signature was then removed; he was not present at the bank with his parents when her signature was removed. In his cross-examination the matter was barely touched. At the very end of the cross-examination Maurice agreed that on this matter he knew only what his parents had told him. He added that that “is why I was made power of attorney, and that is why my signature is on the cheque account”. He meant by this to refer to what his parents had told him as reflecting why they removed the plaintiff as a signatory and made him a signatory and appointed him their power of attorney.

I note that in the letter from Wards, solicitors, to the plaintiff, dated 20 November 1998, to which I refer below, the power of attorney is stated as being dated 14 April 1997. There was no evidence to cast doubt on that as being the date on which his mother made him her attorney under power. I find that she and the deceased executed a power of attorney appointing Maurice by instruments dated that day. I further find that the incident at the bank and the subsequent argument occurred in or about April 1997, in close proximity to the grant of the power of attorney.

I accept the evidence of Nicholas and Maurice, and the evidence of the plaintiff as to the visit to the bank and the subsequent argument with her parents. I find that the plaintiff was removed as a signatory because of her parents' concern at her gambling and the apparent inappropriate use of funds from the mother’s account, matters which might not be considered unconnected and which bore on her reliability and trustworthiness.

The marriage breakdown, in particular the plaintiff’s affair, caused hurt and distress in the family. Maurice said, and I accept, that it disappointed everyone. Their mother was particularly close to the plaintiff, accepted that it was Susan’s life, and that she could have the man she chose. Maurice thought that his father was more upset.

Maurice described his relationship with the plaintiff as having been very close in her younger days. But, he had an argument with her. It is apparent from the plaintiff’s evidence that this occurred some time before she left the matrimonial home in Bairnsdale. She said in her evidence that the last conversation she had with Maurice was before she left the matrimonial home. According to her, he rang and said “I don’t think what you are doing is right”, carried on and the plaintiff said “Let he who is without sin throw the first yonnie. And it is not you, Mr Pope”, and she hung up on him. She said that she had never spoken to him again. While I accept that such a conversation occurred, I do not accept that the plaintiff did not speak to Maurice again. I refer to a subsequent conversation below.

When the plaintiff moved to Hamilton in 1997 the question arose as to where her children would live. As to this, I can say at once that I reject the plaintiff’s evidence that her parents put pressure on the children to stay at Bairnsdale. The contention is quite unfair both to her parents and her children. To use the plaintiff’s own words, her parents “had a very close and wonderful relationship with my children”. Not unnaturally, as I find, her parents were upset at the failure of their daughter’s marriage and the effect that might have on her children. Understandably too they would have been disappointed if the children had moved to Hamilton as they would have felt the loss of the regular contact keenly. And, no doubt, they felt sympathy for Nicholas in his plight. But to say that they pressured the children is another thing altogether, and I reject it. I also find that Nicholas did not put pressure on the children not to move to Hamilton. I find that the children made their own decision where to live. The evidence of Nicholas is instructive from this point. He said that the children attended upon a Victoria Legal Aid solicitor at Bairnsdale who represented them in the Family Law context. Nicholas produced a letter from that solicitor, dated 25 February 1997. The letter stated that Zara and Lauren had given instructions “in no uncertain terms that their preference is that they remain in Bairnsdale, their mother reside wherever she chooses, and they visit their mother for school holidays”. Reasons for this preference included their friends, school and interests being in Bairnsdale, and to avoid disruption.

I would interpolate that the strongly expressed view stated in this letter is consistent with the character and personality of Zara as I observed her in the witness box.

Nevertheless, after the plaintiff moved to Hamilton Zara went to live with her and David. She did this to pursue her interest in horses. She ceased living with them in October 2004. I refer to the circumstances more particularly below. Lauren did not go to live with her mother, she chose to stay living in Bairnsdale. Travis also remained living with Nicholas but went to Hamilton for employment in 1998 and lived at the property of the plaintiff and David for about two and a half years.

I now refer to the plaintiff’s divorce settlement. Following negotiations between their solicitors the plaintiff and Nicholas agreed on minutes of consent orders which were tendered as Exhibit P. Before referring to those orders it is convenient to refer again to the Bank of Melbourne deposit, and to trace through how it was dealt with. In her Financial Statement sworn on 13 August 1997 the plaintiff included in her property the amount of $15,168.25 in the Bank of Melbourne deposit account[16]. That was followed by correspondence between the parties’ solicitors in which:

(a)On 20 October 1997 Nicholas’ solicitors wrote to the plaintiff’s solicitor referring to the Bank of Melbourne account and stating that there was $25,500 in the account in March 1997 and asking for an explanation[17].
(b)On 28 October 1997 the plaintiff’s solicitors in Hamilton wrote to her Bairnsdale solicitor acting in the divorce with instructions that the amount of $25,000 formerly invested in the Bank of Melbourne had been reinvested by the plaintiff “but is the property of her parents which fact is believed to be well known to” Nicholas[18]. Later in the letter it is stated that the plaintiff brought $50,000 into the marriage.
(c)On 18 December 1997 the plaintiff’s Bairnsdale solicitor wrote to Nicholas’ solicitor with advice that the Bank of Melbourne account “as your client is well aware, was money which our client was holding on her mother’s behalf”[19]. The money was no longer in that account having “been invested for the benefit of the mother in an interest bearing deposit with a firm of solicitors in Hamilton”. It was stated that all of the principal and interest was the property of the mother.
(d)In Conciliation Conference particulars signed by the plaintiff’s Bairnsdale solicitor and dated 7 January 1998 the Bank of Melbourne account, or its replacement, was not recorded as an asset[20].
(e)In a letter dated 28 January 1998 the plaintiff’s Bairnsdale solicitor wrote to Nicholas’ solicitor noting that “the debt to our client’s parents has not been recognised by your client and that is still being claimed by Mr Horsburgh senior”[21].
(f)In correspondence in February 1998 the value of the matrimonial home was agreed at $180,000 for the purpose of negotiations[22].

[16]Exhibit J.

[17]Exhibit JJ.

[18]Exhibit K.

[19]Exhibit L.

[20]Exhibit O.

[21]Exhibit M.

[22]Exhibit Q.

I accept the evidence of Nicholas that the plaintiff adhered to the position that the Bank of Melbourne money, including interest, was the property of her mother alone, that it was repayable to her mother on request, and that as a result the money was not brought to account as an asset of a party to the marriage. The plaintiff nevertheless retained the benefit of the account.

The minutes of orders, dated 31 March 1998, record the agreement of the parties that Nicholas pay the plaintiff $125,000 within 30 days from the date of the orders, and that upon payment the plaintiff transfer her interest in the matrimonial home to Nicholas. In default of payment the property was to be sold with payment of the agreed sum to the plaintiff out of the proceeds. There were further terms, among others, as follows:

(a)The plaintiff retain the 1994 Holden Commodore in her possession and Nicholas retain the 1993 Toyota in his possession.
(b)Each party be entitled to the property in their possession at the date of the order, the chattels in the matrimonial home being considered to be in the possession of Nicholas.
(c)Money standing to the credit of the parties in a joint bank account be the property of the plaintiff.

Nicholas duly paid the settlement sum of $125,000. Allowing for costs payable to her solicitors, the plaintiff received $121,135.

It remains to mention one further aspect of the settlement. At the time of the settlement the plaintiff held about $7,600 in an account with AGC as trustee for the three children. Under the settlement and orders the plaintiff was meant to transfer the account to Nicholas on maturity to hold for the children. However, notwithstanding maturity the plaintiff did not transfer the fund to Nicholas. According to Nicholas, she gave excuses and explanations that the money had been reinvested or the like. He said that he had learned that the plaintiff had retained the funds and spent them for herself. The children had told him that they had not received any money from the account. I return to this matter below.

I now refer to the activities of the plaintiff and David in Hamilton. As mentioned earlier, when the plaintiff moved to Hamilton in 1997 she lived with David in rented premises at Andrews Street for 12 months.

At a time that was not established the plaintiff and David purchased a take away food and sub newsagency business called Deebees Tucker Shop in Hamilton. The contract was not produced in evidence. David said that the business was purchased for $25,000. He said that there was a loan secured by a mortgage over a property he owned at the time comprising 172 acres. No document pertaining to the loan was produced and the amount of the loan was not stated. Nor was further reference made to the 172 acre property. Perhaps it was affected in the wash-up of David’s marriage; I note that in her evidence the plaintiff referred to David’s former wife living in Hamilton and giving her a hard time. Save to so speculate I do not know what became of David’s interest in that property. In any event, the business was open seven days a week from six to six thirty in the morning to nine in the evening Monday to Saturday and seven in the morning to two in the afternoon on Sunday. David said that the business was not very profitable. He said that it also suffered from loss from employees and “gifts” of cash and cigarettes to family members. They also “drew too much out of it to pay for the horse related expenses we incurred”. They had the shop for two and a half years. Looking ahead somewhat, they sold the business in January/February 2000 for $20,000 payable by weekly instalments of $400. For this purpose they arranged a new 12 month lease and sublet the premises to the purchasers. However, after one payment the purchasers decamped with the stock. The plaintiff and David suffered loss in the form of the rent payable to the landlord and the costs payable to their solicitor. As to the latter costs, David produced an account from their solicitor for $754.60 which amount was reduced to $420 as the amount payable. As to this I note that the plaintiff said that they had $500 or so in solicitor’s costs in trying to get their money back, and that they gave up trying. However, neither the plaintiff nor David produced an account for such costs. It seems evident that the account produced by David was for the costs of the sale of business transaction. If any component of the account was costs consequent on breach it was very small indeed. I am not satisfied that the plaintiff and David incurred $500 or so in legal costs in trying to recover their money. This was an example of looseness in the plaintiff’s evidence.

Then, in 1998 the plaintiff and David purchased a property adjoining the Hamilton Horse racecourse for $110,000. The contract of sale was not produced. It would appear to have been entered into in early 1998. That appears from Exhibit R, a letter dated 17 April 1998 from the Bairnsdale solicitor who acted for the plaintiff on her divorce in which there is reference to the purchase of land due to settle on 4 May. The solicitor asked if the amount of $121,135 payable to her under the divorce settlement (after allowing for her legal costs) should be paid to her or by cheque payable to the vendor. I accept David’s evidence that the plaintiff’s settlement money was used to pay the purchase price of the land. As the statement of adjustments was not tendered I do not know the actual amount paid to the vendor.

The plaintiff described the property as comprising 30 acres[23] on which was located a “tin shed” with a bathroom, kitchen and lounge room that jockeys used to stay in on race days, and there were also four indoor stables with a horse wash. It was purchased because David, who had a strong interest in horses, had always loved the property and, with a gate direct to the walkway to the track, it would be good for having horses for training.
[23]In the writ, being Exhibit DBM3 to David Miller's affidavit, the property is alleged to contain 27 acres, 3 roods and 15 perches.

The plaintiff and David carried out improvements to the property. They extended the stables and shedding and moved a house onto the property, installed tanks, connected power and renovated the house. Their intention was to breed, agist, train and race horses. They felt that the location was ideal. The plaintiff estimated that they spent $70,000 to $80,000 on the property. She produced no documentation to support that estimate. David said that they borrowed $59,000 to assist with the venture. David gave no detail of that borrowing. However the venture was not successful and following recovery proceedings instituted by the mortgagee, Banksia Mortgages Limited (“Banksia”), by writ filed on 27 November 2001, they sold the property in 2002.

The plaintiff said that her parents knew they had purchased the property. She said that she had begged her parents to come and stay but they did not. Her mother said she was too sick and her father said he would think about it. They were of course a good age by that time.

I now return to the matter of the money in the Bank of Melbourne account. In late 1998 Maurice, who held power of attorney for his mother, was asked by his parents to recover the money in the Bank of Melbourne account. Maurice explained the course of events in his oral evidence in chief. First, his mother asked him to contact the plaintiff to recover “this $26,000”, saying to him that “we have been trying and we have got some not too straight answers”. Ruth White took her mother in law to the Bank of Melbourne on three occasions to see if she could get the money, but the money would not be released without the plaintiff’s signature. After that Maurice was asked by his father to get on to the solicitor to see if they can recover the money. As it happened, Maurice saw Nicholas that day and, on informing Nicholas of this request, Nicholas asked that Maurice ring the plaintiff up to give her the opportunity to say where the money was. Accordingly, Maurice rang the plaintiff and asked her where the money was. The plaintiff said it was invested with a solicitor in Hamilton but when Maurice asked who that was she gave two or three different names. Maurice said that their parents wanted to know where the money was and he asked if she had gambled it or where it was. She would not give him a straight answer. That afternoon he went to Wards, solicitors in Bairnsdale, and instructed them to try to recover the money.

On 20 November 1998 Wards wrote to the plaintiff requesting information that the plaintiff still held the monies lent, details of the amount held and where it was held, and a copy of the relevant document verifying the current balance, and confirmation that no monies had been withdrawn. The plaintiff did not reply to the letter.

It appears from a copy letter produced in the trial[24] that on 4 December 1998 Wards wrote again to the plaintiff requesting the information sought to avoid further action. Again the plaintiff did not reply.
[24]Exhibit N.

By that time in late 1998 Maurice calculated that the amount would have been in the order of $30,000. He decided not to pursue the matter further due to the costs involved, the consequent conflict and a suspicion that the money was probably gone.

Although the plaintiff did not respond to Wards, or Maurice, concerning the letters from Wards, David rang Maurice. Maurice did not know him. David introduced himself saying that he lived with the plaintiff and that he wished to speak “about that money your mother gave for your sister”. Maurice said that it was not David’s money or his and he hung up. David rang back three times in immediate succession to the previous call. Maurice would not speak to him because it was none of his business.

In cross-examination Maurice said that he did not know when the money was put in the plaintiff’s name. He knew what his parents told him in 1998, that the money was in her name, she having the interest, so her parents could get a part pension. His parents gave him the Bank of Melbourne term account renewal advice dated 2 March 1996 exhibited to his affidavit.

The plaintiff denied that Maurice had rung her about the Bank of Melbourne monies. She said that there was no such conversation. I find that there was. It was however common ground that David had rung Maurice with as fruitless a result as Maurice stated.

As I have mentioned, the plaintiff did not file an affidavit in reply to the affidavits of Maurice sworn 27 June 2004 and Nicholas sworn 5 August 2004 in which they referred to the matter of the Bank of Melbourne deposit. Her affidavits did not refer to the deposit. In other words, the plaintiff left the allegations unanswered. That is, at least until the trial at which she claimed that the monies were a gift from her mother. She also claimed that her parents had told her that they did not want the money to be repaid. Her story was for the first time stated by David in his affidavit sworn on the eve of the trial.

What David deposed to in his affidavit was this, that in January 1999 he and the plaintiff visited her parents and the plaintiff asked about the money and said that if they wanted “we could pay it to them”. David said that the plaintiff’s mother said they did not want the money back.

In her oral evidence in chief the plaintiff said that her mother gave her the money as a gift. It was not planted in her account for her mother to get the pension. It was less than $20,000 and she had added to it; I referred to this evidence earlier. She said that she ignored the letter from Wards “and then went down and saw mum and dad” and:

“… when we got there we chatted on for about 15 minutes about horses, and Zara and everything else, and I was sitting by Mum’s bed and I was holding her hand and I said ‘Now, Mum, this $20,000’ I said ‘I have received a letter about it’, and she said to me ‘Suze, it was always a gift to you. I do not want it back’. And she looked at Dad and Dad said, ‘No, I do not want it back’ and, with that, I burst into tears. So I don’t know whether they even really knew that I was getting asked for it, I don’t know. But it was always as a gift to me, as far as I am concerned.”

A little further on in her oral evidence in chief concerning this occasion with her parents, the plaintiff said that after her mother said that she did not want the money back her mother further said:

“’Suze, we have made some dreadful, dreadful mistakes’, and she was holding my hand and she said ‘And I hope you will forgive us’. And, with that, I burst into tears and I said to Dad, ‘Do you want the money back, Dad?’ and he said ‘No’. And after we had seen Mum that day we said to Dad, ‘Come on. We will take you out and we will have lunch’, so we had lunch with Dad and then took him back to where he was, and it was a lovely day, and then we left.”

As to this evidence, I note that the plaintiff gives similar evidence in para 39 of her affidavit sworn on 12 March 2004. She there said that just prior to her death her mother confided in her that she and the deceased had not treated her fairly during the time of her separation from Nicholas. I note as to this, however, that her affidavit made no reference to David and the deceased being present, or to repayment of the Bank of Melbourne deposit, or to an admission of dreadful mistakes and a hope for forgiveness. I do not accept that there were conversations on two separate occasions. The question is whether there was any such occasion.

In fact the plaintiff did withdraw the money from the Bank of Melbourne. She was cross-examined as to this. The money went into “the business”. There was “probably 22” in the account when she “finally withdrew – 22 or 23, I don’t know”. She could not find the old statements. She could not remember when she withdrew it although it was before they went down to see her parents. She added that they had the funds to give it back “if she needed it”.

It is to be noted that David did not depose to the plaintiff’s mother having said that she and the deceased had made some dreadful mistakes, and hoped for forgiveness.

It is necessary to express some conclusions on this matter. One issue was whether the plaintiff received the letter from Wards dated 4 December 1998. In the absence of proof of sending the letter, I do not find that it was sent to and received by the plaintiff. That however is not such a material point. The more material points are, first, whether the money was a gift or was “parked” with the plaintiff for pension reasons, and, secondly, whether in 1999 the plaintiff’s mother and father said not to repay the money.

As to the first point, counsel for the plaintiff relied on the parents’ history of generosity, that Susan added to the fund and declared it as her asset in the Family Court case, which was against her interest, and her evidence that the money was hers. I take these matters, and all that counsel said, into account. I note that I have already concluded that it is not established that the plaintiff added to the funds.

On the other hand, there is the evidence of Maurice, which I accept, as to his parents requiring return of the money, which is inconsistent with the money having been a gift. Notwithstanding the disappointment that the plaintiff’s parents may have felt at the breakdown of her marriage, her gambling and her unauthorised use of their money, I do not accept, having regard to the evidence overall, that they went from being loving and generous parents to making a false claim for the purpose of getting money from her. Nor did they claim back from her any other amount or thing given to her over the years. It is of course hard to determine the truth of the matter in the absence of the parents, and I take that into account. I also take into account the failure of the plaintiff to respond to Maurice and Nicholas until the trial, and then to do so only orally and without the production of any documents. That is, the failure of the plaintiff to include in her affidavit the story she gave at the trial of her parents saying not to repay the money. That failure is also to be considered in light of the account (in para 39 of her affidavit) of a conversation which, if it occurred, occurred on the same occasion as that advanced in her oral evidence. Alternatively, if it was a different occasion it is singular that that separate occasion was not referred to in her affidavit.

This takes me to the second point and I can say at once that I reject the evidence of the plaintiff, and that of David, as to this. I conclude that their evidence was invented for the purpose of the case, to provide an ultimate answer lest it be found that her mother had advanced the money on the basis stated by Maurice. It is, in this respect, significant that David did not refer to the plaintiff’s mother having said that she and the deceased had made some dreadful mistakes and that she hoped for forgiveness. That, I find, was a self-serving invention.

In one sense it does not matter what the original arrangement was as the plaintiff has had the benefit of the funds. That is, it should simply be taken into account as part of her parents’ benefaction. Even as to that though it was regrettable that the plaintiff was not frank with the Court, and the defendants, in not disclosing the actual amount she “withdrew”.

There is however another sense in which the true nature of the original arrangement does matter. That is because it bears upon the plaintiff’s character and her relationship with her parents. As I have already said, I found the plaintiff to be an unreliable witness. In addition to the matters I have already mentioned, an indicator of her preparedness to say what might suit her interest, as assessed by her from time to time, was that in the Family Court proceeding she first said that the money belonged to her and later asserted that it belonged to her mother. I find that she advisedly instructed her solicitors in that proceeding that the monies belonged to her mother. Having thus saved the money from being included in the matrimonial pool of funds, she kept the money and spent it. It is a classic case of a party blowing hot and cold. Having acted in this way, she then had to determine her answer when the mother’s claim was raised in this proceeding. I note that the vagueness of the plaintiff’s evidence does not permit a finding as to whether the money was “withdrawn” before or after the Wards’ letter or letters. Whatever the timing was, to cover the situation the plaintiff and David gave false evidence that her mother and father had said repayment was not required.

A further factor in this was the mother’s condition at the time. I accept the evidence of the defendants as to the mother suffering from dementia at the time of the alleged statement, and the advanced age of the deceased at that time. This evidence founds the gravest concern as to the likely ability of the mother to have had an informed conversation as alleged, and to her likely understanding of the matter, particularly having regard to the self serving nature of it. In any event, as I have said, I do not accept the evidence of the plaintiff and David.

Furthermore, as the plaintiff knew that Maurice held power of attorney the failure to respond to Wards’ letter or to the request of Maurice in which he advised of the parents’ position and to hold her response back until the trial was significant.

It is to be noted that the mother died on 5 February 1999 and that the deceased made his last will on 23 March 1999 in which, among other things, he referred to the plaintiff having received “money”. It is a reasonable inference, and I find, that that money included the Bank of Melbourne funds provided by the mother, that the plaintiff wrongly refused to account to her mother for that money and that its retention by the plaintiff was a factor which led the deceased to exclude the plaintiff from his last will. In short, the plaintiff behaved towards her parents, and her mother in particular, in a manner that at best could only be described as shabby and dishonest.

vCounsel submitted that there was no reason to think that the deceased’s opinion of the level of assistance given to the plaintiff had changed between 1995 and 1999. Even if it was found that the plaintiff’s mother was entitled to the money in the Bank of Melbourne account and that the plaintiff had refused to return it, it was a modest amount in terms of the provision thereby received. Of course I have found that the plaintiff’s mother was entitled to the money and that the plaintiff wrongly refused to account for it.
vCounsel submitted further that the reason stated in the 1999 will for making no provision for the plaintiff did not accord with the evidence of Maurice as to why the deceased changed his will. As the deceased advised Maurice, the reasons were the plaintiff’s gambling problems, her lack of honesty in dealing with her mother’s bank account and the plaintiff’s inability to be responsible with money. While acknowledging the excessive use of poker machines in Hamilton because of difficult personal circumstances while living there, her gambling was not sufficient reason to exclude the plaintiff. Further, the plaintiff denied any dishonesty and as to irresponsibility with money the 1999 will was made at a time when the plaintiff and David owned land and were operating two businesses in an attempt to support themselves, and when they were also supporting Zara and Travis.
vCounsel submitted that the overriding reason for the deceased disinheriting the plaintiff was her separation from Nicholas. There was no other event which might explain the changed treatment of the plaintiff in the 1996 and 1999 wills. They stood in marked contrast to the treatment of the plaintiff in the 1985 and 1995 wills. More generally, counsel submitted that the plaintiff had done her best to preserve her relationship with her parents, including by visiting and telephoning.

[38]For the full terms of the evidence see transcript 30.

Regard to the relevant facts and circumstances at the time aids in understanding the provisions of these wills. Furthermore, in my view, that the deceased executed a series of wills, and the changing terms of them, indicates (and I find) an ongoing concern to provide for the disposition of his estate on death as he considered appropriate. The execution of four wills in the period September 1985 to March 1999, the latter three being executed between April 1995 and March 1999, reflected a mind attentive to the appropriate disposition of his estate. It is not irrelevant in this regard to bear in mind that the deceased was a person who, admittedly with the support and assistance of his wife and sons, established and built a successful business of a substantial nature.

It is also evident that he was a loving and generous father to the plaintiff. She came later in life in her parents’ marriage, was the only daughter, and was spoilt by her parents, if not indulged by her father in particular. She received what she wanted. I do not overlook the testamentary statements of the deceased as to benefits received by his sons. I referred to this earlier and to the inability to undertake a comparative analysis of that which they received on the one hand and that received by the plaintiff on the other hand. Furthermore, such an analysis would have to take account of any offsetting consideration constituted by the value of the sons’ contribution to the acquisition of assets by their employment in the business.

However it is regarded, the plaintiff did receive substantial assistance from the deceased, which assistance reflected his loving and generous nature as a father. Consistently with this, it is also apparent that the plaintiff enjoyed a close and trusting relationship with her parents, and that they enjoyed a very close relationship with her children. Further, there is no suggestion that her parents did not have a respectful and loving relationship with the plaintiff’s husband Nicholas. It was in this context that the deceased made his 1985 and 1995 wills.

But the plaintiff commenced to sow the seeds that would affect the relationship with her father in the mid 1990s when she commenced gambling on poker machines and commenced her affair with David. Both matters concerned her parents. As just indicated, in my view, and I find, the 1995 will was made prior to the affair with David commencing or, at least, being known to the deceased. However, the deceased knew of the affair by the time he made his 1996 will. Indeed that will was made after the plaintiff had left the matrimonial home, leaving behind Nicholas and their children.

In appreciating the terms of the 1996 will it is useful to bear the following in mind. First, while, as I find, the deceased was more upset than his wife at the separation, in a sense I think of not regarding it with the same balance or level of acceptance as his wife, his view of the matter and of her conduct was not such as to lead him to make no provision for her. The provision was much reduced from the 1995 will but she remained as an appropriate object of benefaction. In that respect the will manifested a clear change of testamentary intention concerning the plaintiff. Secondly, the inclusion of the plaintiff’s children as beneficiaries may be seen as reflecting two things, in my view: (a) the very close relationship which the deceased and his wife enjoyed with those children, and (b) a decision to entrust his estate to the plaintiff only to the extent of one-quarter, thus ensuring that her children receive a benefit. It is significant that the deceased adhered to his view in the 1995 will that his sons had received sufficient benefit, and he continued to confine his benefaction to his wife if she survived him or if she did not, to the plaintiff alone among his children and (under this will) to her children alone among the grandchildren. The provision of a four way share reflects a determination that the plaintiff’s children benefit from his estate. Thirdly, factors that might have led the deceased to this provision come readily to mind. There was the plaintiff’s problem with gambling and the associated risk of irresponsibility with money, a risk which as her father, and being familiar with her character, the deceased would have been uniquely placed to assess. Then there was the marriage separation with the plaintiff going off with another man and, as is apparent, with him having little financial capacity. Then there was the financial and other assistance the deceased had provided to the plaintiff. Although the deceased described this as “a very small amount” in the 1995 will, in my view it was substantial and greater than that description would indicate. The statement in the 1995 will reflected more of a generosity of spirit and support for the dispositive provisions. The omission of the statement from the 1996 will is thus readily to be understood. Then, finally, in my view the provisions of the 1996 will reflect an assessment of the plaintiff’s character and a change in the relationship between the deceased and the plaintiff in that the deceased has determined that while wishing to benefit the plaintiff it was not appropriate to entrust her with the whole estate. Subsequent events reflect the wisdom and correctness of that assessment. No longer was the deceased prepared to indulge the plaintiff.

One then moves to the 1999 will by the time of execution of which other events had occurred. The plaintiff was divorced, living in Hamilton with David and continued to have a gambling problem. Further, the plaintiff had, in her parents’ opinion, taken unauthorised advantage of being a signatory to her mother’s bank account which led her parents to remove her as a signatory, and make Maurice a signatory as he was also made their power of attorney. This led to a very bad argument. I accept that it was the deceased’s decision to remove the plaintiff as signatory. Furthermore, the plaintiff refused to account for the Bank of Melbourne money, retaining it for herself. This was not merely wrongful conduct, and discreditable in relation to a parent but, contrary to the submission of counsel for the plaintiff, constituted the appropriation of a substantial sum. There is reason to suppose that the deceased might have regarded this money, which belonged to his wife, as in effect no more than the provision of a benefit for the plaintiff. Indeed there is every reason to suppose that he was angered by it. In summary, by the time of making his last will on 23 March 1999 the actions of the plaintiff were such as might have warranted in the deceased’s mind an increasing concern as to her unreliability of character and irresponsibility with money.

Furthermore, in my view the deceased’s statement in his last will of benefits received by the plaintiff was correct. Moreover, the plaintiff’s appropriation of the Bank of Melbourne money made the statement only more correct, and understandable in the circumstances.

It is in these circumstances that the omission of any provision for the plaintiff in the 1999 will is to be regarded. The deceased made the will in March 1999 shortly after the death of his wife on 5 February 1999. In turn, her death was not long after the plaintiff’s refusal to account for the Bank of Melbourne money. As I have said, that refusal, along with other factors, was such that the deceased might have considered it a further manifesting of her tendency to unreliable and irresponsible conduct, aid in understanding the provisions of the 1999 will. Those factors go beyond the matter of assistance provided to the plaintiff. It was, in my view, understandable that the deceased did not identify all such matters or defects of character in the plaintiff in his will as she was his daughter and doubtless he retained love and affection for her. There is no reason at all to suppose that in determining on the provisions of his will he did not take all relevant matters into account but, as I have said, it is also understandable that he limited his reasons for exclusion to those stated. Beyond that, as I assess his character, he would well have preferred not to state such matters. I observed a similar reticence in Maurice who, as I mentioned earlier, did not say all that he might have said concerning the plaintiff.

Regarding the circumstances overall, in my view, and I so find, as the years progressed from 1996 to his death the plaintiff’s relationship with her father deteriorated. Doubtless he loved her as a father would his daughter. But the disappointment of her departure from her marriage was considerably aggravated by the conduct and actions referred to above. I do not accept the plaintiff’s contention that the deceased’s upset and disappointment over the plaintiff leaving her marriage led the deceased to disinherit her. While that cannot be dismissed as a factor in the sense that it was part of the mix of circumstances concerning the plaintiff it was, in view of the deceased’s long history of love and support for the plaintiff not a factor that on its own would have led him to make no provision for her. It was the other factors mentioned above which directly reflected on her character and the manifestations thereof after 1995 that led to the 1999 will, in my view. To those factors there is to be included as part of the overall circumstances that the deceased had given the plaintiff financial and other assistance as referred to in the will.

The matters concerning the plaintiff’s honesty and responsibility with money were such as to run deep in the relationship, in my view. They went to honesty and defiance between a daughter and her parents. This was not a light matter. At the same time I do not doubt that the deceased retained a degree of love and affection for the plaintiff but his judgment of her in the overall circumstances was reflected in the last will. That judgment reflected a lack of trust in the plaintiff, including that if given to her she would not sensibly and appropriately manage his estate and in a manner that her children would benefit therefrom.

I accept, as I have said, that the plaintiff had contact with the deceased. I accept that she had a deep regard for her parents but perhaps as a result of having been indulged over the years or some other matter or matters as to which I cannot speculate, she fell into the conduct referred to in the course of which she wrongly advantaged herself from her parents when she should not have.

(f) Obligations or responsibilities of the deceased

Save as I may conclude for the purpose of s 91(1) and (3), the deceased did not have any obligation or responsibility to the plaintiff and her children each of whom was adult and financially independent of the deceased.

(g) Size and nature of the estate

I have already dealt with this matter.

(h) Financial resources and needs of the applicant and beneficiaries

It is necessary to consider the position at the time of death and the hearing. I will commence with the plaintiff and David and then deal with Travis, Lauren and Zara.

When the deceased died the plaintiff was aged 50 and in good health. David was aged 58 years and in good health. At about that time they had relocated to a property at Thewlis Road, Pakenham which they rented at $330 a week. They had a joint account with the Bendigo Bank which at the date of death had a debit balance of $16,321.39. The account remained in debit until the balance of the proceeds of sale of the Hamilton property, $43,280.84, was deposited to the account on 20 September 2002 which produced a credit balance of $25,249.73. At that point the plaintiff and David had cleared their debts. The plaintiff was not in employment. David had a long history, and experience, of working with horses, owning, training, agisting, moving horses around, and working as a clerk of course.

As to income, the plaintiff’s income tax assessment for the year ended 30 June 2002 records a taxable income of $12,234 and a refund due of $50.22. According to his income tax assessment for the year ended 30 June 2002, David had a taxable income for the year of $9,359, down from $15,762 in the previous year. In the 2001/2002 income year each received payments on account of Newstart Allowance from Centrelink.

David was cross-examined as to his income and in particular by reference to deposits recorded in bank statements of account. The deposits included income from “various sources”, clerk of course work, sale of saddlery or horses or whatever. Extrapolating the deposits to the Bank of Melbourne account in July and August 2002 to the whole year showed an annual income of $48,000, counsel for the defendants submitted. The evidence is insufficient to establish the submission. Nevertheless sufficient appears to suggest that David’s income for the tax year was greater than the recorded taxable income but how much greater I could not find.

I turn then to the financial position of the plaintiff and David at the time of the hearing. As mentioned earlier, they were in a stable long term relationship. They were then living at the property at 1040 McDonald’s Drain Road East, Pakenham South which they rented at $200 per week. They did not own any real estate.

In her affidavit the plaintiff said that she had constantly looked for part-time work to supplement their income but at her age had found it difficult to secure employment. At the hearing it transpired that she had not lodged an income tax return for the 2004 and 2005 years. She received $8,754.43 as Newstart Allowance from Centrelink in the 2003/2004 financial year.

It also transpired that after coming to Pakenham she had earned income, cash in hand, doing casual work for a friend in a fish and chip shop. The work had not been continuous over the period. Zara raised the matter of this work in her affidavit and the fact of the work was ultimately disclosed by David in his affidavit. On average the plaintiff would earn about $100 a week from this work. She said that she advised Centrelink of this income.

The property at McDonald’s Drain Road East comprises 70 acres on which is located a modest dwelling at which the plaintiff and David reside. They have the use of approximately 10 acres comprising a horse paddock and yards. They own about 15 horses which they are permitted to keep at the property. They estimated their worth at $10,000. The plaintiff said that the horses included three race horses which hopefully will “turn out okay”. David said that there was one race horse as the others were no good and had been sent to the last market. David is chairman of the Pakenham Trainers Association.

In his affidavit David said that he was employed as a driver by Network Horse Transport earning on average $450 gross per week. No supporting documentation evidencing his income was produced. Nor was a tax assessment for the income years ended 30 June 2003, 2004 and 2005 or any tax return, produced. Counsel for the defendants cross-examined him on bank statements in an attempt to establish sources of income in the period since death, and in particular in an attempt, as I followed it, to establish that the financial position was not as lean as the evidence for the plaintiff and David would indicate. While there might be doubts on the matter I accept, as I have stated, David’s evidence as to his position at trial. He is paid on an hourly basis and works about 30 hours per week transporting horses. On his evidence, much disputed in cross-examination, and which in the absence of contrary affirmative evidence I must accept the evidence of David, his employer is the person who owns the land at which they reside.

David owns an Isuzu truck, which he purchased in August 2003, and which has an insurable value of $20,000 on which he owes about $8,000 which is being repaid at $556 per month and which amounts are reimbursed by his employer.

David was cross-examined as to whether, as Zara deposed, he had a second truck. He was also cross-examined as to whether he had an interest in the horse transport business and the land at which they reside. It is not established, on the balance of probabilities, that the substantive allegations put to him were correct.

The plaintiff owns a 12 year old Ford station wagon that she finished paying off in May or June 2005. It is estimated to be worth about $2,000. Otherwise, she said, she had no assets or savings aside from about $3,500 in superannuation.

In his affidavit David deposed to having about $1,000 in superannuation.

As to debts, the plaintiff and David owed the following, in addition to the $8,000 referred to above:

(a)$7,000 lent by a friend of the plaintiff which the friend had borrowed from a third party[39]. The loan was disbursed direct to the plaintiff’s bank account and was used to fit out the Isuzu truck for use as a horse transport. The friend obtained the loan under a loan contract which required repayment by fortnightly payments over 12 months with the first payment on 17 September 2003. While the friend has sent some mares to the plaintiff and David to be put in foal, they have not otherwise made any repayment of the loan.
(b)They have an overdraft which they use to the limit of $10,000.
(c)The plaintiff had a credit card debt of $1,900 which is the credit limit[40].
(d)$5,300 was owed to Trade Price Trucks for repair work.

[39]Exhibit H.

[40]Exhibit AA.

Additionally, there are amounts owing to Travis, Lauren and Zara, as discussed earlier.

Finally, regarding their ability to manage, the plaintiff said that they do not have a lot of money but are paying their bills and managing “alright”. They do not go out but were “quite happy”. It is however apparent that the plaintiff has no savings or appreciable assets either to use (as by purchasing a house) or fall back on in an emergency.

I now turn to the position of the plaintiff’s children commencing with Travis.

When the deceased died Travis was aged 22 years. He was, and remains, single. He has no formal qualification. He commenced, but discontinued in second year, an automotive apprenticeship. He then drove an earthmover and worked in heavy haulage. He could not recall what work he was doing when the deceased died; he was probably living in Hamilton. He thought that his financial position then was probably a bit better than at the time of the trial.

In December 2003 Travis commenced work as an interstate truck driver employed by McColls Transport of Geelong, carrying chemicals in its tanker division, and earning about $800 gross per week. However the work placed great stress on his health including a massive increase in his weight. In late October 2004 he ceased that employment and on 4 November commenced employment on a large station near Darwin driving bulldozers and heavy earthmoving equipment. While accommodation was included he received about $450 net per week, and he left the job on 19 December 2004. He then commenced employment with Hamptons Transport in the Northern Territory driving very large trucks earning about $1,300 per week. However, following the experience of rolling a fully laden truck he left that employment on 14 March 2005. He said, and I accept, that the accident shook him up a great deal and that he was not keen to be involved in truck driving. He then had eight days work in Perth as a labourer dismantling an oil rig earning about $300 gross per day.

At the time of the trial Travis had employment with Road Plant of Australia working with heavy earthmoving machines. He drives tip trucks and takes home on average $400 per week. He said that it is pretty hard getting work driving bulldozers and heavy earthmoving equipment as older people with several years of knowledge are preferred to younger people.

Travis pays rent of $50 per week plus expenses and has the following debts: he owes about $15,000 to his father, about $1,300 to Telstra and $3,800 to Wesptac under a personal loan.

As to assets, he owns a 1990 Falcon utility and there is the balance of his share of the $7,600. Then, in his affidavit he said he had about $1,000 in the bank. At trial he did not refer to having money in the bank, and accordingly the position as to that is unclear. Certainly it is a reasonable inference that any such amount would be small.

Finally, I note that since leaving McColls Travis’s weight has reduced from 134 kilograms in June 2004 to just over 100 kilograms when he swore his affidavit in June 2005. He said that his health was still not all that good and he got somewhat depressed. He missed being away from home and friends.

Lauren was aged 20 when the deceased died. She was single although in her affidavit sworn in March 2004 the plaintiff said that Lauren was living with her boyfriend until she found alternative accommodation. In her subsequent affidavit Lauren said nothing about a boyfriend but did say that she was single. She shared a rented house in Northcote for $125 per week, had no savings, had no assets of note say for a 1990 Ford Corsair worth about $2,000 given to her by the deceased and his wife, and a video camera. There is also her share of the $7,600. Her only debt was $400 owed on a credit card.

Lauren graduated B.A. from LaTrobe University on 15 March 2004. She was an undergraduate when the deceased died. She commenced employment with Yooralla Society of Victoria on 6 August 2004 as a disability support worker on a gross weekly wage of $400.

As mentioned earlier Lauren was overseas at the time of the trial.

Zara, being Lauren’s twin, was also aged 20 years when the deceased died. She was and remains single. She was working 15 hours a week at Target Country in Hamilton earning about $300 net per fortnight and living with or at the property of the plaintiff and David at the time, as referred to above. She has spent all her time since school in the horse industry and is registered with the VRC.

It is evident from the description of her work, as a stable hand, and now having her own trainer’s licence, that she has worked hard and long hours. It is unnecessary to set out the history of such employment. I note that in her affidavit she said that subsequent to leaving the property of the plaintiff and David in 2004 and as a result of things said by David she found it difficult to get work in the industry. She said she was thus unemployed between December 2004 and April 2005 during which time her sole income was unemployment benefits. In early April 2005 she obtained employment as a stable hand earning $300 per week. At the time of the trial she was working for a racehorse trainer averaging about $450 net per week. She was paying rent of $100 per week plus expenses.

Zara had about $6,000 in a fixed term deposit and a 1991 Ford Fairlane which she purchased with a loan and on which she owed about $4,700 which she was repaying at $180 per month. In addition, $1,600 remained owing under the loan she took out to assist the plaintiff and David and which she is repaying at $123 a month.

Further as to assets, Zara is owed money by the plaintiff and David including her share of the $7,600. As mentioned earlier I cannot determine the actual amount.

In her evidence at trial Zara said that in March 2006 she was to travel to the United States for which she had an 18 month visa for work with horses on an exchange arranged by a group called Stable Mate who find accommodation and employment. This was to further her career. She said she may travel further after that work experience is completed.

(i) Disabilities

This is not relevant.

(j) Age of applicant

The plaintiff was aged 50 years when the deceased died and 53 years at the time of the trial.

(k)Contributions of plaintiff to building up the estate or to welfare of the deceased or his family

The plaintiff did not contribute to building up the estate of the deceased. The plaintiff contributed to the welfare of the deceased only in the sense or to the extent referred to earlier of doing shopping and attending to matters for her parents. The plaintiff did not contribute to the welfare of the deceased’s family.

(l) Benefits previously given by the deceased or any beneficiary

I have already referred to the benefits given to the plaintiff by the deceased. As to benefits given to the plaintiff’s children, Zara said that as the children grew up the deceased gave them a cow which each year would be put in calf which would be sold and the money banked for them. Apart from the deceased and his wife being generous grandparents there is no evidence of other specific benefits given to the plaintiff’s children.

(m) Plaintiff being maintained by deceased

The deceased was not maintaining the plaintiff.

(n) Liability of any other person to maintain the plaintiff

The plaintiff’s de facto spouse of about 10 years falls into this category, as would a de jure spouse. As a domestic partner within the meaning of Part IX of the Property Law Act 1958 the plaintiff could seek relief against David under that Part, and be entitled to share in his estate if he died intestate. This was the position when the deceased died and at trial.

(o) Character and conduct of plaintiff or any other person

I have already dealt with this aspect.

(p) Any other matter

There are two matters to mention here. First, the relationship between the deceased and his wife and the plaintiff’s children. Secondly, the responsibility of Nicholas to provide for his children.

I can add little to what I have already said on the first matter. The relationship was very close and deepened after the plaintiff left Nicholas and the children. I accept, having regard to the evidence of Maurice and the children, that after the separation his parents played a major role in bringing up the children and that the bond was extremely close. The relationship went much beyond that of the ordinary grandparent/grandchild relationship.

The second matter is self evident. Nicholas has a good relationship with his children, is (and was at the death of the deceased) single, in “relatively well paid” employment, “financially secure”, concerned for his children’s welfare and wanting the best for them. I do not otherwise know what his income, liabilities and assets are.

As a father Nicholas would be expected to provide for his children on his death. Counsel for the plaintiff submitted that as parents Nicholas and the plaintiff had an obligation to provide for their children, and that the relationship between grandparent and grandchild was necessarily less likely to carry that kind of obligation. I do not doubt that Nicholas would intend to make provision for his children, nor that in the ordinary case might counsel’s submission be accepted as correct. But in this case the relationship between the grandparents and the grandchildren was special and more than the ordinary. Further, as with life generally, it could be no sure thing as to how Nicholas and the plaintiff would provide for their children when they died. Taking Nicholas first, one does not know what he may do in the future by way of remarriage or undertaking of a financial obligation or whether he may suffer an untoward event that may affect his testamentary intentions or the size of his estate and how such matters may affect his ability to provide for his children. Then, as to the plaintiff it would be conjecture to venture a view as to her future ability to provide for her children.

Decision

The first issue is whether the deceased had a responsibility to make provision for the proper maintenance and support of the plaintiff.

Counsel for the defendants submitted that the deceased had no such responsibility for the following reasons: the deceased made gifts to the plaintiff of at least $100,000 (being an estimate of the value of the motor cars, five acres, the single block, cash and miscellaneous gifts); the deceased’s estate was not large; the plaintiff was in a better financial position than her children, she had a partner and while her working life would be shorter her children had the vicissitudes of life ahead of them; the plaintiff’s bad conduct towards her parents; the plaintiff’s gambling problem; the close relationship between the grandparents and the plaintiff’s children; and that the grandchildren were not established in life. In the circumstances the deceased had been free to provide as he did. Moreover, what the plaintiff was saying was that her father was under a responsibility to her to the extent that he should have given her land on which to live. No matter that he had done this once before, he should have done it again and this time by the provision of sufficient money that she, without contribution by her de facto spouse, could purchase land with a house upon it. Counsel for the defendants submitted that the deceased was under no such responsibility or duty to do so.

In submitting that the deceased was under a responsibility to provide for the plaintiff, her counsel relied on the following circumstances existing at the death of the deceased, namely that the plaintiff was aged 50 years and had kept in contact with her parents; the plaintiff and David did not own property, had lost money, and had a small amount of cash in the bank. It was submitted that a wise and just testator considering the situation at the date of death would have noted the following: the plaintiff was the only child not to share directly in the wealth of the business the deceased, his wife and sons had created; the plaintiff had no further entitlement to provision from Nicholas; the deceased did not have a particularly large estate to distribute especially given the cost of housing; Nicholas had the means to provide for the children in due course; it could be expected that at her age the plaintiff would find employment more difficult to obtain than her children; David had an obligation to maintain the plaintiff but he was in the same financial position as she; the plaintiff’s children were able bodied and had no dependants.

I have regard to these submissions and to the discussion and findings earlier in this judgment. In my view, and I find, the provisions of the deceased’s last will were understandable in the circumstances. In addition the deceased’s freedom of testation is to be respected. He had provided the plaintiff with substantial assistance during her life commencing with a good education through to aid when she married and in other ways including cash in the order of $50,000 or so.

In the end the strength in the plaintiff’s case lay in her financial need which existed when the deceased died. At that time the result of the path the plaintiff had chosen was that she had lost the money from her marriage settlement, and David and she were asset (and debt) free save for some cash at bank. In arriving at this position the plaintiff had spent the Bank of Melbourne money and the children’s $7,600. She (and David) had also taken advantage of Zara’s loan. The question arises in these circumstances as to the responsibility of the deceased to make provision for the plaintiff. Did a responsibility still subsist? It was clearly the judgment of the deceased that it did not, as I have discussed above. His judgment was that rather than an equal share with her children she should have nothing.

While I consider the 1996 and 1999 wills understandable in the circumstances it seems to me, taking account of all relevant matters, particularly the need of the plaintiff for financial assistance, that the deceased had a responsibility to make provision for her proper maintenance and support. I consider that although the deceased had cause for doing so, in removing the plaintiff from his benefaction considerations of her conduct and character overcame considerations of her need as a daughter at her age and in her relatively parlous financial circumstances. Of course it was not required that the deceased make financial repair for the consequences of the plaintiff’s situation occasioned subsequent to her leaving her marriage and choosing to live her life with David and make the decisions that she and they made together. The plaintiff is an adult and was free to choose her path in life and the deceased was not responsible to pick up the tab for the consequences of her judgments and actions. Yet, in my view, as a wise and just testator the deceased should have made some provision for her. The estate was of such a size as to enable an appropriate provision to be made.

That brings me to the second question which is whether the distribution of the deceased’s estate by his will does not make adequate provision for the proper maintenance and support of the plaintiff. As the will made no provision at all for the plaintiff this question must be answered in the affirmative.

That brings me to the third question as to the amount which the Court may order. I referred at [31]-[34] to the provision sought by the plaintiff. It ranged from a primary contention that she receive sufficient to purchase a house in the region of $150,000 to $200,000 plus pay the associated costs including stamp duty, which house would be placed in the joint names of the plaintiff and David, the latter (as I have found) contributing nothing. Failing such provision, the plaintiff should receive something that could be used as a deposit, if not enough to pay an entire deposit.

For his part counsel for the defendants submitted that if there had been a breach of moral duty, bearing in mind the modest size of the estate and that the plaintiff was in a better financial position than her children who are not established in life, provision in the amount of $40,000 would be appropriate.

Counsel for the defendants further submitted that it would be appropriate pursuant to s 97(1)(c) of the Act to make an order for provision subject to a condition that the plaintiff pay her children the amounts owing to them. I do not consider it appropriate to impose such a condition. While Lauren is owed her full share, the position with Travis and Zara is not so clear as to the actual amount, and as to them it is not necessary to repeat the circumstances discussed earlier. In other words the difficulty is to have an accurate figure for Travis and Zara in the judgment debt sense. I consider also that there are wider considerations that satisfy me that in the present context it is better to leave this to the family to resolve.

That leaves for determination the provision that the deceased ought properly have made for the plaintiff. In considering this question I have regard to all matters relied on by counsel which include the financial circumstances and position in life of the plaintiff and her children at the time of the trial. I do not recapitulate those matters. There is in addition of course the clearly expressed intention of the deceased to benefit the plaintiff’s children.

To accede to the primary submission would in effect, as matters stand now, be to virtually deprive the plaintiff’s children of any benefaction, as I pointed out at [32]. To do so would virtually negate the deceased’s intention. That is one consideration. Another is that in my view the provision sought by the plaintiff is wholly unrealistic in the circumstances including the substantial assistance previously received and her character and conduct including dishonesty to the deceased and his wife.

In my view the provision that should be made for the plaintiff is that which the deceased made in his 1996 will. That is, that the plaintiff and her children share equally in the estate. I do not arrive at this assessment of the appropriate provision on an arithmetical basis by reference to any particular aspect of the financial circumstances of the plaintiff or the plaintiff and David. The amount the plaintiff will receive will provide her with a measure of capital that would cover a deposit on a house in the price range indicated by the plaintiff and thereby facilitate her purchasing a house, or which may otherwise be retained as security for use in an emergency or as she may decide. In my view the provision is that which the deceased should have included in his last will for the proper maintenance and support of the plaintiff in light of all the circumstances. I do not overlook that, as I have said, the deceased had reason to change his 1996 will. Nevertheless, a wise and just consideration of the plaintiff’s circumstances should have led the deceased to conclude that notwithstanding the prior provision and assistance and her character and conduct, as a daughter and at her age and in her financial situation some provision should be made for her for her maintenance and support. In my view that provision was an equal share in the residue of the estate.

In so concluding I have taken account of the responsibility of Nicholas and the plaintiff to provide for their children. I do not consider however that that consideration is to be accepted as virtually displacing the clear intentions of the deceased, in his last will, particularly where those intentions are based on reasons readily evident in the circumstances. In my view the deceased’s testamentary freedom is properly to be affected by the ordering of an equal share in residue.

For these reasons there will be an order that the estate of the deceased be administered on the basis that the plaintiff is entitled to an equal share in the residue of the deceased’s estate. I will hear counsel as to the terms of the orders and costs.

[2006] VSC 300

10 August 2006