Jeanette Ann Foley v Peter James Ellis

[2007] NSWSC 1277

CITATION:	Jeanette Ann Foley -v- Peter James Ellis and Ors [2007] NSWSC 1277
HEARING DATE(S):	21 and 22 June 2007
JUDGMENT DATE :	12 November 2007
JUDGMENT OF:	Associate Justice McLaughlin
DECISION:	1. I order that the proceedings be dismissed. 2. I order that the Plaintiff pay the costs of the Defendants, such costs to be on the party and party basis. 3. I order that the Defendants be entitled to recoup from that part of the estate of the late Suzanne Maria Ellis (“the Deceased”) to which the Plaintiff is entitled the difference between the costs of the Defendants on the indemnity basis and the costs which the Defendants may recover pursuant to order 2 hereof. 4. The exhibits may be returned.
CATCHWORDS:	Succession. Family Provision. Claim by adult daughter. Estrangement between Plaintiff and Deceased. Plaintiff was left a significant benefit under will of Deceased. Financial and material circumstances of the Plaintiff. Competing claims of Plaintiff's siblings and of Plaintiff's own children (one of whom is an infant).
LEGISLATION CITED:	Family Provision Act 1982
CASES CITED:	Blore v Lang (1960) 104 CLR 124 Singer v Berghouse (1994) 181 CLR 201 Vigolo v Bostin (2005) 221 CLR 191
PARTIES:	Jeanette Ann Foley (Plaintiff) Peter James Ellis (First Plaintiff) Vivienne Joan Ellis (Second Plaintiff) Philip Wallace Jones (Third Plaintiff)
FILE NUMBER(S):	SC 3887 of 2005
COUNSEL:	Ms. P. Gormly (Plaintiff) Mr L. Ellison (Defendant)
SOLICITORS:	Brian Samuel & Associates (Plaintiff) Bartier Perry (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Monday, 12 November 2007

3887 of 2005 JEANETTE ANN FOLEY –v- PETER JAMES ELLIS and ORS

JUDGMENT

1 HIS HONOUR: These are proceeding under the Family Provision Act 1982.

2 By summons filed on 8 July 2005 Jeanette Ann Foley claims an order for provision for her maintenance, education or advancement in life out of the estate or notional estate of her late mother, Suzanne Maria Ellis (to whom I shall refer as “the Deceased”).

3 The Deceased died on 19 June 2004, aged 84. She left a will dated 23 August 2002, probate whereof was on 24 March 2005 granted to Peter James Ellis, Vivienne Joan Ellis and Philip Wallace Jones, the executors named in such will (who are the Defendants to the present proceedings).

4 The Deceased, who was a widow at the time of her death (her husband William Ellis having died in June 1995, aged 78), was survived by her three children, Peter James (who was born on 2 November 1950 and is now aged 56) Jeanette Ann (who was born on 13 September 1952 and is now aged 55) and Vivienne Joan (who was born on 27 August 1954 and is now aged 53). I shall for convenience, and without intending any disrespect, refer to each of the children of the Deceased by his or her given name.

5 The inventory of property discloses assets and the values ascribed thereto, as follows,

Residential property situate at and known
as 505/22-32 Sutherland Street, Cremorne $600,000
Personal effects $10,000
Bank accounts $9,104
Shares and units $123,972
Units in trusts $691,955

Shares in unlisted companies
Ellis Holdings Pty Limited $840,206

Loan account, Nirex Pty Limited $155,700
Total $2,430,938

6 The liabilities of the estate were income tax for the period 1 July 2003 to 19 June 2004, in an amount to be assessed; and indebtedness to Nirex Pty Limited in respect to a nursing home advance, in an amount of $400,000.

7 The personal effects of the Deceased have been distributed. Various other assets, consisting of moneys in bank accounts and investments, have been got in and are represented by moneys held in an account with the St George Bank. Until shortly before the trial of the present proceedings those moneys totalled $1,655,530.

8 On 16 May 2007 interim distributions were made on account of the entitlements of three of the beneficiaries (being the Plaintiff and her two siblings), in a total amount of $560,000. In consequence, the moneys held in the St George Bank account after that interim distribution totalled $1,089,701.

9 The remaining assets of the estate are shares in an unlisted company, Ellis Holdings Pty Limited, to which an estimated value of $1,135,443 was ascribed.

10 The estate pays quarterly PAYG income tax, estimated at the rate of $10,164 a year. After taking into account existing liabilities (not including the costs of the present proceedings) the executors estimated the value of the net distributable estate at the time of the affidavit of 18 June 2007 as being $2,225,350, less income tax yet to be assessed.

11 However, in calculating the value of the estate available for distribution the costs of the present proceedings must be taken into consideration, since the Plaintiff, if successful in her claim, will ordinarily be entitled to an order that her costs be paid out of the estate of the Deceased, whilst the Defendant executors, irrespective of the outcome of the proceedings, will ordinarily be entitled to an order that their costs be paid out of the estate. It was estimated on behalf of the Plaintiff that her costs will total $85,000, whilst it was estimated on behalf of the Defendants that their costs will total $78,150. It is appropriate, therefore, to proceed upon the basis that the value of the estate presently available for distribution will be in the order of $2,062,000 (of which about $1,135,443 is represented by the shares in Ellis Holdings Pty Limited, and the balance of about $926,757 is part of the amount presently held in the St George Bank account. In doing so, the fact of the interim distribution totalling $560,000 must not be overlooked.

12 By her will the Deceased gave her shareholding in Ellis Holdings Pty Limited to Peter and Vivienne (although not divided identically between them). The Deceased then gave the residue of her estate, after payment of debts and liabilities, to be divided into three equal shares, one share being for Peter, one share being for Vivienne, and the remaining one third share itself to be divided into three equal parts. One of those parts (that is, one ninth of the residue) was for the Plaintiff, and the remaining two parts (that is, two ninths of the residue) was for such the Plaintiff’s two children, Patrick Ellis–Foley and Karl Ellis-Foley as survive the Deceased and attain the age of 21, and if more than one equally. The will then makes provision that, in the event of the death of both of the Plaintiff’s sons before attaining the age of 21, the interest of those sons be for such of the Plaintiff and her former husband as are then living, and if both, equally.

13 At the outset of the hearing, Counsel for the Defendants offered as a broad calculation (which admittedly did not take into account the costs of the present proceedings) that, upon the assumption that the residue was in an amount of about $1,090,000, the Plaintiff’s entitlement in monetary terms would be about $121,000. It seems to me, however, that it is appropriate to deduct the totality of the costs ($163,150) from the totality of the moneys held in the St George account before the interim distribution in May of this year ($1,655,530). That gives an amount of $1,492,380. The Plaintiff’s one ninth share in that amount is $165,820. But, in any event, her present benefit under the will is certainly no less than the figure of about $121,000 advanced by Counsel for the Defendants. She has already received an interim distribution of $80,000. That is, there remains a further sum of no less than about $41,000 (possibly about $85,000) which is payable to the Plaintiff.

14 The Deceased and her husband had over many years conducted various businesses, carried on through the vehicle of various companies, of which the holding company was, Ellis Holdings Pty Limited, in which the Deceased and her husband had the voting power. Each of the Deceased, her husband and their three children received an equal number of B class shares in that company. One of their subsidiary companies was Nirex Pty Limited. Each of the Deceased and her husband made a will on 23 November 1993, which left to the other the interest of each testator in that company, and, in the event that the other had predeceased the testator, left the shares of the testator to the three children equally.

15 Vivenne was employed full-time in the family business as office manager and retired when the business was sold in 2003.

16 The Plaintiff said that she was informed by her father that he would like her to work in the family business and, according to her, that request was a factor which induced her to return to Australia from America, where they had been living, with her husband and their two sons, in 1995. The Plaintiff’s father died shortly after she returned, and she never received a paid position in the family business. However, it should not be overlooked that the Plaintiff was a director of Ellis Holdings Pty Limited from 3 July 1995 to 20 February 2001, in which capacity, presumably, she was paid director’s fees.

17 The Plaintiff grew up in the family home at Mosman. She was educated at PLC, Pymble. She subsequently obtained tertiary qualifications (a diploma in teaching in 1974, a BA in economics in 1978, and a Master in Educational Studies (mathematics) in 2001). The Plaintiff left home in 1974 to study and to take up a teaching position near Port Kembla. Upon returning to Sydney in 1975 she purchased a home unit at Epping.

18 After her return to Sydney the Plaintiff studied for her economics degree at Macquarie University. After completing that degree (whilst in full-time employment during most of the course) the Plaintiff worked in the commercial sector in various positions in the late 1970s and 1980s.

19 The relationship between the Plaintiff and the Deceased, which previously appears to have been unremarkable (and which, according to the Plaintiff, was a close and affectionate relationship), deteriorated in 1984 as a result of an incident at the Deceased’s residence in that year. According to the Plaintiff, that incident involved Peter and Vivienne, who, during the course of an altercation with the Plaintiff, were asserting that the Plaintiff was suffering from psychiatric problems. She said that they summoned a medical practitioner, whom Peter and Vivienne told that they thought the Plaintiff should be “scheduled”. Subsequently, at the encouragement of her siblings and the Deceased, the Plaintiff consulted a psychiatrist on a couple of occasions.

20 According to the Plaintiff, despite that incident, she continued, at least for a time, to maintain a relationship with her mother. However, she said that she never forgave Peter and Vivienne, and that her relationship with them never properly recovered after that incident.

21 In 1987 the Plaintiff took a year off from work and went to America. Whilst there she met her future husband, Tad Peter Foley, to whom she subsequently became pregnant. (I shall for convenience, and without intending any disrespect, refer to him as Tad). Their child Karl Konrad was born on 19 December 1988. The Plaintiff and Tad were married in Australia in February 1990. From 1989 until 1995 the Plaintiff was essentially residing in America. However, during that period she maintained regular and frequent contact with her parents, by telephone and way of facsimile transmission.

22 The Plaintiff’s second child Patrick Walter was born on 26 February 1992. It was the practice of the Plaintiff, accompanied by Tad and their children, to visit Sydney each year. For the first few years they stayed with the Plaintiff’s parents. Subsequently, they resided in a hotel at Manly, the cost for which was paid by her parents. The Plaintiff’s parents were also in the practice of visiting her and her family in America each year. According to the Plaintiff, Tad got on well with her parents and her siblings.

23 In 1992, the Plaintiff’s parents advanced to the Plaintiff and Tad a loan in an amount of somewhat less than $50,000, to assist them in constructing a residence in America.

24 In March 1995, the Plaintiff, Tad and their children returned to reside permanently in Sydney. At the time of her return the Plaintiff’s father was suffering from terminal cancer. He died three months later, in June 1995. He left a legacy of $30,000 to each of his three children, and the residue of his estate to the Deceased.

25 Shortly before her father’s death in June 1995 there was a further incident at her parents’ home, involving the Plaintiff, her husband Tad, the Deceased and Peter and Vivienne. Again a doctor was summoned, and a degree of physical restraint appears to have been exercised upon the Plaintiff by other members of her family, before she was allowed to go home.

26 In about August or September 1995 Tad, for practical reasons associated with his employment, moved into the Deceased’s residence at Roseville. Matrimonial problems arose between the Plaintiff and her husband, and in early 1996 they decided to remove to Queensland. Although the Plaintiff and her two sons relocated to Queensland in January 1996, Tad did not join them. In May 1996 the Plaintiff instituted proceedings against Tad in the Family Court of Australia. Tad ultimately removed to Queensland in August 1996, to a residence near where the Plaintiff and their sons were living. The Plaintiff then returned to Sydney with her sons. A decree nisi for the dissolution of the Plaintiff’s marriage to Tad was made on 28 May 1999.

27 The Family Court proceedings between the Plaintiff and her husband were extremely protracted and highly acrimonious. The Deceased was perceived by the Plaintiff to be taking the side of Tad in those proceedings. Indeed, she provided an affidavit on behalf of Tad. In consequence, the relationship between the Plaintiff and the Deceased deteriorated.

28 As the relationship between the Plaintiff on the one hand and her mother and her siblings on the other worsened, the relationship between her former husband Tad with the Deceased and the Plaintiff’s siblings strengthened and burgeoned.

29 Nevertheless, according to the Plaintiff, no matter how strained was her relationship with the Deceased, she always maintained contact with her mother, and the Deceased remained close to the Plaintiff’s children.

30 A very considerable quantity of evidence was given by way of affidavit concerning details of the Plaintiff’s relationship with the Deceased and the extent of their contact during the period after the Plaintiff’s return from America. It is not necessary for me to rehearse that evidence in the course of this judgment. Suffice it to say that, at least after the institution of the Family Court proceedings, the relationship between the Plaintiff and the Deceased had significantly deteriorated, and, for practical purposes had ended by May 2000.

31 The Plaintiff, at least after her return to Sydney from Queensland in the mid-1990s (and possibly from the time when she, Tad and their children had returned from America in March 1995), had been residing with her children in a house property at Cremorne which she said that she had owned for about 30 years. The evidence was silent as to the circumstances in which she had acquired that residence. In consequence of the property settlement proceedings in the Family Court, which in the first instance were decided against her by the Judicial Registrar, the Plaintiff was required to pay to her former husband an amount in excess of $200,000, and also costs totalling about $50,000.

32 It was the estimation of the Plaintiff that the Family Court proceedings had cost her in the order of $500,000 (representing orders made against her, costs awarded against her and her own costs of the litigation).

33 The Plaintiff has successfully appealed against the foregoing decision of the Judicial Registrar concerning property settlement. There have also been orders made in respect to custody of and access to the Plaintiff’s sons. On 22 March 2002, the Family Court made an order that the Plaintiff’s sons reside with their father, and made orders concerning access by the Plaintiff to her sons. The orders of the Family Court made on that date also required that the Plaintiff should within one month pay to Tad the sum of $118,172, and that in default of such payment, she should sell her interest in the house property situate at and known as 69 Bennelong Road, Cremorne, and pay a specified proportion of the net proceeds of sale to Tad. She was entitled to retain for herself first the sum of $281,217 (which I assume to represent an outstanding mortgage on that property), and then, after payment of 47.5 per cent of the remainder to Tad, the balance. An interim order was made in February 2004 denying to the Plaintiff access to her sons. That order also is on appeal.

34 The Plaintiff suffers health problems as a result of two several car accidents, in June 2004 and in July 2005, in each of which she sustained whiplash injuries. In October 2005, those spinal injuries were exacerbated as a result of her being shoved by a student while she was teaching. It was the Plaintiff’s evidence that since the first motor accident she has had limited capacity to work or to be on her feet, and that she suffers considerable pain and debilitating exhaustion.

35 The Plaintiff is also presently seeing a psychiatrist, Dr Nicholas Cassimatis, who, the Plaintiff said, has diagnosed her with post-traumatic stress syndrome, resulting from the incident at work in October 2005. Consequent upon advice from Dr Cassimatis, the Plaintiff was off work for about three months from mid-November 2005. The Plaintiff resumed work as a teacher’s aide in February 2006, at first working no more than two days a week for three hours each day.

36 The Plaintiff also gave evidence that she suffers from familial osteoporosis, for which she is consulting a rheumatologist at the Royal North Shore Hospital. She takes medication for that condition and also medication as part of hormone replacement therapy, and medication for blood pressure problems. The Plaintiff also gave evidence concerning the necessity for surgery to her eyelid.

37 The Plaintiff has little by way of assets, which consist of a 2001 Toyota Corolla motor vehicle (to which she ascribed a value of $7,500), a nominal amount in her account with the Commonwealth Bank, furniture, household items, and jewellery (to which she ascribed a value of $2000) and a superannuation entitlement with the Department of Education, in an amount of $23,000. The Plaintiff’s liabilities total about $75,500 (all but about $14,000 of which represented legal costs in respect to the Plaintiff’s litigation in the Family Court). In addition, the Plaintiff’s Mastercard liabilities (totalling almost $14,000) were also in respect to legal costs.

38 The Plaintiff is paying off her indebtedness to the Legal Aid Commission (in a total amount of $7,000, together with interest thereon) in an amount of $100 a month. That indebtedness arose from the separate representation of her sons in the Family Court proceedings.

39 In order to meet various costs relating to her Family Court litigation, the Plaintiff raised loans from the ANZ Bank, secured against her former home. Her indebtedness to the Bank at the time of the sale of that residence was in excess of $476,000. In consequence of that sale the Plaintiff received for herself only about $4000.

40 The Plaintiff is also involved in bankruptcy proceedings, instituted at the instance of solicitors who formerly acted for her (in respect to whom there is apparently some assertion of professional negligence).

41 The Plaintiff’s financial and material circumstances were brought up to date in her affidavit of 16 June 2007.

42 As a result of her medical condition and her inability to be upright for more than half a day without considerable pain, the Plaintiff was granted a health care card mobility allowance in February 2007. That mobility allowance is in an amount of $52 a week. The Plaintiff has reached the safety net figure for her medical expenses, and, in consequence, has received an increased refund from Medicare for the financial year 2006-2007.

43 On 24 May 2007 the Plaintiff was granted a disability pension, in a total amount of $81.11 a week (consisting of income supplement, $26.41; rental assistance $52; and health credit, $2.90).

44 The Plaintiff’s income from the Department of Education and Training has now increased to $153.57 a half day.

45 In consequence, the Plaintiff’s net weekly income is made up of the following amounts,

Salary from DET $614.30
Disability allowance $81.11
Mobility allowance $52
Total $747.41

46 The Plaintiff said that her salary from the Department of Education and Training varies from fortnight to fortnight, depending on the amount of sick leave, holidays, and other leave taken by her.

47 The Plaintiff gave evidence of her weekly outgoings, in a total amount of $1,268. The most significant of those outgoings is rent (in an amount of $380).

48 To prevent bankruptcy proceedings in respect to a timeshare unit which she owned in America, the Plaintiff in early April in 2007 agreed to transfer that unit back to Westgate Resorts. (That timeshare unit in Orlando, Florida was purchased by the Plaintiff as recently as October 2004. The purchase price was $US10,900, of which she borrowed almost the totality, being $US10,498. Apparently, in the two and a half years which she owned that timeshare unit, the Plaintiff did not avail herself of her entitlement to occupy it or some other timeshare unit.) In consequence, she no longer owns that unit and not longer has any liability in respect thereof. The transfer back to Westgate Resorts involved her in legal expenses of $435.

49 On 16 May 2007 the Plaintiff received $80,000 from the executors of the estate of the Deceased, being in part payment of her entitlement under the will of the Deceased. From that amount she has discharged her indebtedness to the Commonwealth [Bank] credit card ($6151), Virgin credit card ($9000), and Teachers Credit Union loan ($8226), totalling $23,377. The Plaintiff has also paid an amount of $30,000 to her solicitors, Brian Samuel and Associates, towards her Family Law costs still outstanding. She has paid an amount of $1000 into her superannuation fund, and has deposited the balance of $25,000 into a cash management account.

50 The Plaintiff’s former husband has lodged an appeal to the Full Court of the Family Court in respect of the determination made by Justice Lawrie on 2 March 2007, requiring him to repay to the Plaintiff an amount of $153,000. Despite the absence of any stay of execution thereon, Tad Foley has to date failed to comply with that order. The Plaintiff expects to incur further legal costs in respect to any appeal brought by her husband. In addition, the legal representative of their children is seeking that the Plaintiff and her former husband repay to the Legal Aid Commission its costs in respect to the representation of the children in the Family Court. The amount of those costs sought against the Plaintiff is $17,476. That sum is in addition to the amount previously paid by her to the Legal Aid Commission. It is also in addition to the amount which she is repaying at the rate of $100 a month.

51 The Plaintiff seeks from the estate of the Deceased provision which would enable her to pay out all outstanding legal fees in respect to her Family Law proceedings (totalling about $91,000).

52 Further, she claims an amount which would enable her to purchase a new residence. She expressed a desire to live in or near the area where she had resided at Cremorne, or at Kirribilli (where she was born). She said that she has lifelong friends in that area. Since she is accustomed to having canine companionship and enjoys gardening, she said that she requires a house or a semi-cottage, and she estimates that the cost of such a residence would be about $900,000.

53 The Plaintiff said that she needed to replace her current motor vehicle with a more substantial vehicle, and that she would like to purchase a new motor car for about $35,000.

54 Many of the Plaintiff’s items of household furniture and appliances are about ten years old, or even older, and she seeks to receive provision which will enable her to replace those items. She gave details of the items and estimations of the cost thereof, in a total amount of about $35,000.

55 The Plaintiff also seeks to be enabled to replace clothing and garments at a total cost of about $5,000. She said that she would like to retrain or to set up her own business. She has not yet determined what type of retraining might interest her. She said that that would depend on her general state of health and her financial circumstances. The Plaintiff also said that she required to have some significant superannuation for her future maintenance and support.

56 The claim of the Plaintiff must be approached in the light of the competing claims of the other beneficiaries and of other persons who have a competing claim upon the testamentary bounty of the Deceased. The other beneficiaries are the Plaintiff’s siblings, Peter and Vivienne, and the Plaintiff’s own two children, Karl and Patrick. Each of those persons is an object of the testamentary beneficence of the Deceased. At least each of Peter and Vivienne, as children of the Deceased has a claim upon the testamentary bounty of their mother. The Deceased recognised their claims by giving her interest in Ellis Holdings Pty Limited to those two children and by giving to each of them one third of the residue of her estate.

57 Peter is presently aged 56. He is not married he has neither children nor other dependents. He is an engineer by profession, and is in full-time employment with Peter J. Ellis & Associates Pty Limited, a company which he established in about 1981. That company conducts business as an industrial engineering and management consultancy, specialising in facilities planning, logistics, productivity improvement and project management in the manufacturing and distribution sector. He is the sole director and holds all the shares issued in the capital of that company.

58 Peter holds a diploma in technology (production engineering) and a Bachelor of Engineering degree from what is now the University of Technology Sydney. All his tertiary studies were undertaken on a part-time basis as part of a traineeship with AWA Limited. He has worked continuously since leaving high school, with the exception of twelve months, during which he travelled and undertook casual work.

59 Peter’s annual salary from Ellis Holdings Pty Limited is $132,000, and in addition he receives director’s fees in an amount of $10,000. Thus, his total income from that company is $142,000. He set forth details of his monthly expenses, totalling $5,500.

60 Peter’s assets comprise:

Shareholding in Peter J Ellis & Associates Pty Limited $2
600 B class shares in Ellis Holdings Pty Limited $580,000
Residence situate at and known as
10 Reynolds Street, Cremorne (estimated) $1, 800,000
Motor vehicle $5,000
Household furniture and furnishings
and sporting equipment $50,000
Various shareholdings
in listed companies (estimated) $1,000
Total $2,436,002

61 In addition, he has a superannuation entitlement of $87,366 and has made further contributions totalling $11,880.

62 Peter’s liabilities consist of a Mastercard indebtedness of $14,000; and a mortgage to Westpac Banking Corporation in respect to his residence, $140,000. His liabilities total $154,000.

63 Peter J Ellis & Associates Pty Limited has made a loss during each of the last two financial years. Peter said that business in the current economic conditions was very strong, with good clients and interesting projects; however, it can be cyclical and highly competitive.

64 Peter gave evidence of the assets of Peter J Ellis & Associates Pty Limited in a total amount of $215,000 and the liabilities of that company in a total amount of $222,000.

65 Peter said that he had no prospect of receiving income after he ceased working, other than from any dividends from Peter J Ellis & Associates Pty Limited which he might be able to negotiate as part of his retirement or the sale of his shareholding, and from superannuation to which he might be entitled. He said that in order to secure his financial wellbeing it was his desire to pay off the mortgage secured over his home and the borrowings of his company.

66 Since Peter has attained 56 years of age he was entitled to contribute up to $1,000,000 by way of superannuation before 30 June 2007. He said it was his intention to invest as much as he was financially able in superannuation, in order to provide himself with an income after he ceased active employment. He enjoys good health and pursues recreational and social activities, including travel.

67 Peter gave evidence of the need for renovations and repairs to his residence, in respect of which he estimated that the costs would be about $100,000. He also is desirous of having an extension constructed to his residence.

68 In addition to the expenses which he incurs in maintaining himself, he from time to time pays expenses for his nephews Karl and Patrick, such as membership of the Balmoral Beach Club. He also enjoys participating in sporting, social and cultural events with those boys, on which occasions he also pays their expenses.

69 Vivienne is 52 years of age. She ceased employment in December in 2004, and has not been engaged in remunerative work since that time. Vivienne is not married, and does not have any children on any persons who are financially dependent upon her.

70 After attaining her higher school certificate Vivienne undertook tertiary studies and obtained a Bachelor of Arts (Economics) degree at Macquarie University in 1976. She then undertook a management traineeship with Rothmans. She travelled and worked overseas for about two years and returned permanently to Australia in 1980. Vivienne then worked for about two years as an area manager with BP Australia, and later worked in the hospitality industry in ski fields in both Australia and America. In about August 1987 she purchased a coffee shop in Cremorne, which she conducted until its sale in about June 1991. She then commenced work on a full-time basis with Nirex Pty Limited. Vivienne has undertaken courses at TAFE in small business management, and through the stock exchange in investment and share management analysis.

71 Vivienne’s assets consist of:

Residence situate at and known as
4/11 Central Avenue, Mosman $520,000
600 B class shares in Ellis Holdings Pty Limited $580,000
2005 Subaru Impreza motor vehicle $19,000
Shares invested in listed companies $14,000
Moneys on deposit $13,000
Moneys invested with managed funds $61,000

72 Other than personal credit cards and expenses incurred from time to time Vivienne does not have any liabilities.

73 At the present time Vivienne’s income consists of about $10,000 a year from Ellis Holdings Pty Limited by way of directors fees, and interest on investments, in amounts totalling about $4000 a year.

74 Vivienne gave details of her expenses, totalling about $18,300 a year. She also has a superannuation entitlement of about $61,000.

75 Like her brother, Vivienne was desirous of making a one-off contribution to superannuation in an amount of up to $1,000,000 before 30 June 2007. She proposes to make such a substantial contribution from moneys which she is enabled to receive from her shareholding in Ellis Holdings Pty Limited and from her entitlement in her mother’s estate.

76 The apartment premises in which Vivienne currently resides are adequate for her present purposes. However, she said that they were in need of renovation and renewal, and that she estimates the expense of refurbishment of her residence at $20,000. She also expects that she will be required to make levies to the body corporate in respect to exterior refurbishment of the building, in an amount of about $50,000.

77 Vivienne has been exploring opportunities for engaging in business, in order to provide her with an income in the future. On the basis of her enquiries she estimates that, in order to start up a business, she would require capital of about $50,000. To assist in the development of business opportunities, she would like to undertake further training and educational courses, in marketing and information technology. She understands from information available to her that the costs of such courses would be about $3,000. Vivienne enjoys good health and maintains an active social and recreational lifestyle. She has a keen interest in outdoor activities and pastimes, including cycling, surfing and sailing. To assist her in pursuing those activities in her later years she would like to be able to purchase a property located outside the metropolitan area of Sydney. On the basis of her enquiries, she estimates the cost of the acquisition of such a property to be about $500,000. Vivienne has friends and family located interstate and overseas. She would like to travel on a regular basis to maintain her contact and relationships with friends and family. She estimates the expenses of such travel at about $12,000 a year.

78 Karl and Patrick reside with their father at Mosman. They have done so on a full-time basis since March 2002. Karl, who is presently aged almost 19, provided an affidavit in the present proceedings. In that affidavit Karl referred to his close relationship with his grandmother, the Deceased, whom he considered an important part of his adolescent development. Karl, who is a full-time student at Mosman High School, completing Year 12, spoke of his intention to undertake university studies, in order to become a registered land surveyor (a profession in which he enjoyed work experience) and set forth details regarding the degree course of surveying at the University of New South Wales. He said that he would like to take a year off and travel overseas between finishing school and embarking upon university studies. He gave details of the costs of visiting various kinsfolk in America. Karl currently undertakes part-time casual employment at a retail operation near his residence, for which he is paid about $12 an hour. Apart from those earnings he has no income. He has no assets and is totally dependent upon his father.

79 Tad Foley provided an affidavit concerning Patrick, who is currently a full-time school student at Mosman High School, completing Year 10. That affidavit set forth Patrick’s hopes and ambitions for the future, as well as his recreational interests. From Tad’s own observations and from what Patrick had told him, Patrick had a very close relationship with his grandmother, the Deceased. Patrick has no assets and no income and is totally dependent upon his father.

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

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

82 The Plaintiff, as a daughter of the Deceased, is an eligible person within paragraph (b) of the definition of that phrase contained in section 6 (1) of the Family Provision Act. As such she has the standing to bring the present proceedings. It will be appreciated that the only other eligible persons in relation to the Deceased are Peter and Vivienne, each of whom is also an eligible person within the same paragraph of the foregoing definition.

83 Whilst it was not submitted on behalf of the Defendant that the Plaintiff had been guilty of what formerly (in relation to the Testator’s Family Maintenance and Guardianship of Infants Act 1916, being the statutory predecessor to the Family Provision Act) was referred to as conduct disentitling, nevertheless the Defendants submit that the relationship between the Plaintiff and the Deceased was such as to be relevant to the claim of the Plaintiff.

84 There were admitted into evidence, various letters addressed by the Plaintiff to the Deceased. The language used by the Plaintiff in those letters does not indicate a deep loving relationship between herself and her mother, at least at the time when the letters were written. The language of those documents, together with annexure J to the affidavit of Vivienne of 29 April 2006 is grossly offensive. (It is difficult to envisage a more hurtful or more insulting statement to a person of the Jewish faith (as was the Deceased, and also her husband) than to compare them with Adolf Hitler and to liken their family home to Dachau (the site of a concentration camp in which the Plaintiff’s own grandparents had been incarcerated).) By some means or other copies of those documents came into the possession of the Deceased. From them she would have been entitled to draw adverse conclusions about her daughter’s bona fides and motives.

85 A great deal of evidence was presented to the Court concerning the break up of the Plaintiff’s marriage and concerning the proceedings between herself and her former husband in the Family Court of Australia. The fact that the Deceased provided an affidavit in support of the Plaintiff’s husband’s claim for custody of the Plaintiff’s children was a matter of great emotional disappointment to the Plaintiff. In consequence, throughout the last years of the Deceased’s life, the relationship between the Plaintiff and the Deceased was non-existent.

86 It will be appreciated that the contributions of the Plaintiff towards building up the estate of the Deceased were minimal; whereas Vivienne worked for a significant period in the family business.

87 Nevertheless, and despite their non-existent relationship, the Deceased in making her testamentary dispositions by her final will, that of 23 August 2002, by no means disregarded or overlooked the Plaintiff. She recognised the Plaintiff’s claim upon her bounty by leaving to her benefits which in monetary terms would have resulted in the Plaintiff receiving about $184,000 out of her mother’s estate had the present proceedings not been instituted.

88 In respect to the degree of estrangement and lack of contact between the Plaintiff and the Deceased, it should be appreciated that an order for provision is not made as a reward for services and good conduct on the part of an applicant. Neither is such an order withheld as punishment for perceived bad conduct on the part of the applicant. In this regard, it is appropriate that I should set forth the following salutary admonition of Windeyer J in the High Court of Australia, in Blore v Lang (1960) 104 CLR 124 at 137,

The jurisdiction under the Testator's Family Maintenance Act [the statutory predecessor to the Family Provision Act ] is to provide for deserving persons according to their requirements, not to reward past services. This is sometimes overlooked and evidence concerning the present and probable future requirements of the applicant is subordinated to or submerged in evidence of past services to the testator. Allegations and denials concerning episodes in the past are then likely to become emphasized at the expense of evidence directed to the central issues in the case.

89 The Plaintiff cannot establish her claim by relying on the fact (if such be the fact) that neither Peter nor Vivienne is in comparable financial circumstances to those of the Plaintiff. They are the chief chosen objects of the testamentary beneficence of the Deceased. There is no need for them to prove anything.

90 The Plaintiff must establish her claim upon its own merits. The competing claims of Peter and Vivienne may have the effect of reducing, or even extinguishing, any order for provision an entitlement to which the Plaintiff might otherwise have established. However, those competing claims cannot have the effect of enhancing the claim of the Plaintiff.

91 In carrying out the first stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 at 208 –210 (the correctness of which test was affirmed by the High Court in Vigolo v Bostin (2005) 221 CLR 191), the Court must determine whether in consequence of the provisions of the will of the testator the applicant has been left without adequate provision for her proper maintenance.

92 The Plaintiff’s liabilities total $129,000, of which about $107,000 relates to her unsuccessful Family Court proceedings. It was submitted on behalf of the Defendants that the estate of the Deceased should not become the funder of the Plaintiff’s litigation, which the Deceased did not support, and which, in the event, the Plaintiff lost.

93 Subject to a possible further appeal, the Plaintiff is now entitled to recover in excess of $150,000 from her former husband. Even after the payment of her liabilities, she would still have had over $200,000 if she had not instituted the present proceedings. Had she wanted to purchase a residence, that amount would have gone a considerable distance towards the purchase price. There appears to be not reason why the Plaintiff should no increase her earnings, by, for example, working in a full-time capacity, rather than working part-time; or by performing some tutoring work (for which she is professionally well qualified).

94 In all the circumstances of this case I am not satisfied that the Plaintiff; who by the will of her mother is entitled to receive at least about $121,000 (possibly about $165,000, or, if she had not instituted the present proceedings, about $184,000), has been left without adequate provision for her proper maintenance. That conclusion is sufficient to dispose of the Plaintiff’s claim.

95 But, as I have already observed, the claim of the Plaintiff must be approached in the light of the competing claims of Peter and Vivienne. In the event that any order for provision were to be made in favour of the Plaintiff, the question arises as to the source of such additional provision. Unless that additional provision be made out of the shares to which Peter and Vivienne would otherwise be entitled, it must be made out of the one third share which is divided equally among the Plaintiff and her own children. Since the Plaintiff does not presently have custody of Karl and Patrick, it can hardly be said that any additional benefit given to the Plaintiff would be presently reflected in benefit to her two teenage children (the younger of whom is still an infant). I would not be disposed to make any order for provision the practical effect whereof would be in any way to reduce or erode the benefit given to each of the Plaintiff’s children. Neither would I be disposed to make an order for provision which would have the effect of significantly reducing the benefits given to each of Paul and Vivienne.

96 But even if (contrary to my foregoing conclusions) I were to be satisfied that the Plaintiff had otherwise established an entitlement to additional provision out of the estate of the Deceased, the Plaintiff would certainly not be enabled, at the expense of the estate, to acquire a house property (let alone one of the price of $900,000). Most of her other asserted needs, where quantified, could be acquired from the benefit given to her by the will of the Deceased.

97 I summarise as follows, my foregoing conclusions.

98 First, I am not satisfied that the Plaintiff has established that by reason of the terms of the will of the Deceased, under which she became entitled to receive about $184,000, the Plaintiff was left without adequate provision for her proper maintenance. However, if (contrary to the conclusion which I have just expressed) the Plaintiff were to establish that she had been so left without adequate provision, the competing claims of the Plaintiff’s two siblings, Peter and Vivienne, are such that I would not be disposed to make any order which would have the effect of reducing, let alone extinguishing, the provision made by the will of the Deceased for each of her own children or for each of Peter and Vivienne. Thus there is no fund from which any order for provision can properly be made.

99 As I have already observed, if the Plaintiff had not instituted the present proceedings, she would have received an amount of about $184,000. After paying her debts (totalling almost $130,000), she would have had about $54,000. By the orders presently in force in the Family Court of Australia, the Plaintiff is entitled to recover more than $150,000 from her former husband. That means that after payment of her debts she would have retained in excess of $200,000. That amount would certainly have been more than sufficient to enable her to put a deposit on any residence which she might be desirous of purchasing.

100 To a considerable extent the difficult financial situation in which the Plaintiff now finds herself is largely due to the institution by her of the present proceedings.

101 I make the following orders:

1. I order that the proceedings be dismissed.

2. I order that the Plaintiff pay the costs of the Defendants, such costs to be on the party and party basis.

3. I order that the Defendants be entitled to recoup from that part of the estate of the late Suzanne Maria Ellis (“the Deceased”) to which the Plaintiff is entitled the difference between the costs of the Defendants on the indemnity basis and the costs which the Defendants may recover pursuant to order 2 hereof.

4. The exhibits may be returned.


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