Justyn Marcus Ng v Neville Mark Morgan; Selena Natanie Ng v Morgan; Commonwealth Bank of Australia v Neville Mark Morgan in his capacity as Administrator of the estate of the late Dell Smith
[2014] NSWSC 536
•08 May 2014
Supreme Court
New South Wales
Medium Neutral Citation: Justyn Marcus Ng v Neville Mark Morgan & Anor; Selena Natanie Ng v Morgan; Commonwealth Bank of Australia v Neville Mark Morgan in his capacity as Administrator of the estate of the late Dell Smith [2014] NSWSC 536 Hearing dates: 28, 29 30 August, 2, 13, 18, 19, 20 & 25 September, 8 November 2013 Decision date: 08 May 2014 Jurisdiction: Equity Division Before: Slattery J Decision: An order for provision made in the Succession Act proceedings for the plaintiffs to receive the property in which they are now living, from the estate of the deceased. Reduction in Selena's claim on account of legal costs incurred by the estate due to her propounding of a forged will. Stay against the bank's order for possession is continued for 60 days to allow final orders to be made in the Succession Act proceedings.
Catchwords: SUCCESSION - family provision - two grandchildren, Selena and Justyn Ng, claim against the estate of their maternal grandmother under Succession Act, Part 3.2 - plaintiffs are eligible persons under Succession Act, s 57(e) - whether plaintiffs were at any time wholly or partly dependent on the deceased, and if so for what period - whether adequate provision made for proper maintenance, education and advancement in life of the plaintiffs under the will of the deceased - whether Succession Act, s 60 factors warranting the making of an order for provision are established - what order for provision should be made - whether the plaintiffs should have an order for provision in the form of an interest in the property in which they are now living, or a legacy, or both.
MORTGAGE - one of three parcels of the deceased's real estate mortgaged to the Commonwealth Bank -estate defaults to the bank - the bank obtains an order for possession - interim stay granted against bank executing order for possession pending the outcome of the Succession Act proceedings - whether the stay should be continued.Legislation Cited: Civil Procedure Act 2005 (NSW), s 98(4)(c)
Family Provision Act1982 (NSW), s 6
Succession Act 2006 (NSW), ss 57, 59, 60Cases Cited: Amaca Pty Ltd v Novek (2009) 9 DDCR 199
Ball v Newey (1988) 13 NSWLR 489
Bearns v Bearns-Hayes [1997] NSWSC BC970286
Brown v Faggoter [1998] NSWCA 44
Churton v Christian (1988) 13 NSWLR 241
Diver v Neal [2009] NSWCA 115
Dridi v Fillmore [2001] NSWSC 319
Drury v Smith [2012] NSWSC 1067
Evans v Levy [2011] NSWCA 125
Hayes v Marquis [2008] NSWCA 10
Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177
Meers v Permanent Trustee Co Ltd [2000] NSWSC 1108
Morgan v Public Trustee [1999] NSWSC 1112
Penfold v Perpetual Trustee [2002] NSWSC 648
Petrohilos v Hunter (1991) 25 NSWLR 343
Porthouse v Bridge [2007] NSWSC 686
Re: Fulop Deceased (1987) 8 NSWLR 679
Sammut v Kleeman [2012] NSWSC 1030
Simons v Perpetual Trustee Co Ltd [2005] NSWSC 223
Singer v Berghouse (No. 2) (1994) 181 CLR 201
Wilcox v Wilcox [2012] NSWSC 1138, Wilcox v Wilcox (No. 2) [2014] NSWSC 88
Zirkler v McKinnon [2002] NSWSC 285Category: Principal judgment Parties: (2011/360941)
Plaintiff: Justyn Marcus Ng
First Defendant: Neville Mark Morgan
Second Defendant: Deborah Shireen Curnow(2013/82538)
(2013/135797)
Plaintiff: Selena Natanie Ng
First Defendant: Neville Mark Morgan
Second Defendant: Deborah Shireen Curnow
Plaintiff: Commonwealth Bank of Australia
First Defendant: Neville Mark Morgan
Second Defendant: Deborah Shireen CurnowRepresentation: Counsel:
Plaintiff (2011/360941): P. Blackburn-Hart SC; A. Blank
(2013/82538): P. Bolster
First Defendant (2013/82538; 2011/360941): L. Ellison SC
Solicitors:
For Justyn Marcus Ng: John B. Gray
For Neville Mark Morgan and Deborah Shireen Curnow: Frank Boitano, Barwick Boitano Lawyers
For Selena Natanie Ng: Michael Peter Bestic
For Commonwealth Bank of Australia: Timothy Ross Sherrard, Gadens Lawyers
File Number(s): 2011/360941; 2013/82538; 2013/135797 Publication restriction: No
Judgment
This case presents a regrettable contest: a mother opposes the Succession Act 2006, claims that two of her children bring for provision out of the estate of their late maternal grandmother.
Vera Dell-Smith died in February 2010. Unsurprisingly her last will, made 42 years earlier in September 1968, made no provision for any grandchildren. She then had none. By that will she gave her estate to her two children, her son Mark Morgan and her daughter, Deborah Curnow.
Deborah Curnow has since had three children. Two of them, Justyn and Selena Ng were dependent on Vera Dell-Smith before her death, although the parties contest the precise period of their dependency: Justyn and Selena Ng are conceded to be eligible for provision under Succession Act, s 57(e). No other grandchild of Vera Dell-Smith has brought a Succession Act claim for provision from her estate. Mr Morgan and Ms Curnow are now the administrators of Vera Dell-Smith's estate.
All the parties to these proceedings are from the one family. I shall for convenience, and without disrespect to them, refer to them by their first names, as they referred to one another in the hearing. Vera Dell-Smith will be referred to either as "the deceased" or as many of her friends and acquaintances called her during her lifetime, "Dell".
A subsidiary aspect of these proceedings concerns the estate's default on a $250,000 lending facility from the Commonwealth Bank of Australia secured by mortgage over one parcel of the estate's real property. The Court has stayed an order for the possession of the property in the Bank's favour pending the resolution of these proceedings. The Bank brought proceedings for possession of this property against the administrators of the estate ("the possession proceedings"). Directions for the further disposition of the possession proceedings are made at the conclusion of these reasons.
The deceased died suddenly in February 2011. Over time and with hard work she had astutely built up real estate investments in Sydney, using her professional skills as a nurse. She left an estate with a net value of over $2.5 million. Throughout her life the deceased was generous in providing financial and domestic support to members of her family, including the two plaintiffs, Selena and Justyn.
But relationships among the deceased's immediate family members have been turbulent. The plaintiffs claim that by the time of her death the deceased had became estranged from Deborah. This estrangement is said to have followed a violent October 2007 incident after which the deceased applied for an Apprehended Domestic Violence Order (ADVO) against Deborah. Deborah denies that she offered any violence towards her mother on this occasion and denies that there was any basis for her mother to take out an ADVO against her. The present proceedings certainly affirm continuing tension in Deborah's relationship with her two children.
In a clueless act of deception in the days immediately following her grandmother's death, Selena created a holograph document that falsely purported to the deceased's last will. It purported to give one of the three estate properties to Selena and Justyn. Shortly afterwards the defendants lodged a caveat against a grant of probate for the new will, which caveat was withdrawn after Selena admitted her involvement in the forgery.
Justyn and Selena each brought separate proceedings under Succession Act, Part 3.2 for provision out of the deceased's estate for their proper maintenance, education, and advancement in life. Selena's application is out of time and she seeks leave to bring her application under Succession Act, s 58(2).
These reasons begin with an historical narrative about the deceased and her children and grandchildren. Many aspects of this history, including the extent to which the deceased assumed parental and domestic responsibility for Justyn and Selena, the quality of the relationship between the deceased and Deborah at the time of her death, and the deceased's intention to create a new will before she died, were contentious. This narrative both covers the important aspects of the uncontentious history and makes findings about the contentious issues that must be decided. So much was in issue that not everything can or needs to be decided or referred to in the factual issues between the parties.
This case was efficiently conducted by the legal representatives for all parties. Mr Blackburn-Hart SC and Mr Blank appeared for Justyn. Mr Bolster appeared for Selena. Mr Ellison SC appeared for the estate. Ms Rae appeared for the Commonwealth Bank of Australia.
The credit of the parties presented a mixed picture. Selena confessed to forging a will so her credit was immediately impaired. But despite that she gave what I mostly found to be compelling and credible evidence, which is to be preferred to that of her mother, Deborah, although I reject the detail of it in places.
Both Justyn and Mark were mostly reliable witnesses, but I do not accept them at all times, where they are in conflict with other witnesses. Mark was away from New South Wales during much of the period that Deborah, the deceased, Justyn and Selena were together. Justyn was attacked for having a wasteful lifestyle but that did not really damage his credit.
Deborah was a complex and at times difficult witness. This judgment contains throughout detailed findings about her conduct and credibility. She had been involved in a motor cycle accident and suffered a brain injury which I have no doubt affected her even as she gave evidence. The neurological evidence of Dr Stark is that as a result of the accident "her cognitive skills are ....affected....memory and concentration are not good, particularly short term memory;...she does report ongoing cognitive difficulties". Deborah's memory problems were very evidence at times in her evidence. Added to this her evidence was influenced by her perception of what was in her own self-interest. I did not find her to be a reliable witness at all.
Vera Dell-Smith, her Children and Grandchildren
The Deceased, Mark and Deborah - 1964 to 1988
After leaving Mark and Deborah's father in North Queensland in 1964, the deceased temporarily placed her two children with their aunt and uncle in Ulladulla, on the South Coast of New South Wales. In these early years on her own, the deceased supported herself as a nurse in Sydney, visiting her young children Mark and Deborah on weekends and holidays when she could. She began working at, then managing and operating, nursing homes throughout the Sydney area.
Mark left Ulladulla in 1978 to join the Royal Australian Air Force (RAAF). In his 23 years of RAAF service Mark was posted to air force bases throughout Australia and overseas. He retired from the RAAF in 2001. Since then he has accepted RAAF reserve postings within Australia and overseas. Mark lived in Brisbane from 2008 and was residing there at the time of the deceased's death. Mark never lived with or near his mother or the other parties to the proceedings. He took little direct part in the events recounted in these reasons. But Mark always maintained regular phone contact with the deceased. While residing in Nowra from 2001 to 2008 he visited her up to 10 times a year, staying at 89 Bowden Street and later at Deborah's Wentworthville residence, whilst he was in Sydney. Mark is married with two children, Ben and Samantha, neither of whom have taken any part in these proceedings. They have been notified of the proceedings but have not made any Succession Act claim against their grandmother's estate.
Deborah had left Ulladulla a few years before Mark. Soon after she commenced a personal relationship with Mr Chin Hung Ng, whom she married in early 1983. Selena was their first child, born in June 1983. When they married Deborah and Chin Ng resided in Ryde with Mr Ng's parents.
Deborah and Mr Ng separated in 1984. Deborah and Selena then moved in with the deceased at 2 Macpherson Street. When Deborah gave birth to Justyn in 1985, she took him home to 2 Macpherson Street. But in March-April this same year Mr Ng was arrested, convicted and imprisoned for drug trafficking offences, including conspiracy to import heroin. Upon Mr Ng's arrest, Deborah took Justyn and Selena back to his parents' Ryde address, where she lived with the children until 1990.
Mr Ng began to have weekend release from prison in 1988. But on one occasion when Mr Ng was on weekend release, Deborah says, and it is accepted that Mr Ng assaulted her and held her captive at the Ryde residence for a period of some hours.
Mr Ng was finally released on parole in 1990, after which Deborah saw him from time to time. As a result of an isolated intimate encounter with Mr Ng after his release, Deborah's third child with him, Kailah was conceived and then born in March 1993. Kailah now resides in London. She has taken no part in these proceedings, although she too has notice of them.
Mr Ng has provided some recent financial and other support to Justyn and Selena. Mr Ng now divides his time between Hong Kong and Sydney. Deborah says, and I accept, that she personally received no financial assistance from Mr Ng after his imprisonment.
Purchase of 87 and 89 Bowden Street and Other Properties - 1986 to 1993
The deceased purchased the property at 2 Macpherson Street Ryde in 1980 to be closer to her then place of work, a hostel, at 87 Bowden Street Ryde. The deceased decided to purchase this hostel property in December 1986. She operated it from 1986 and until 2000 as an aged care facility known as the 'Dellina Palm Cottage'. In 2000 she surrendered the licence to operate the facility as a nursing home, and converted the property for use as student accommodation.
In 1990 Deborah, Justyn and Selena moved back to 2 Macpherson Street to live with Deborah and the deceased. But when Kailah was born in 1993, the deceased decided that 2 Macpherson Street was too small to accommodate so many. So in October that year she purchased an adjacent property, 89 Bowden Street as a home for Deborah, Justyn, Selena and Kailah. The deceased then turned her assets to profitable advantage by moving into a self-contained apartment at the back of 87 Bowden Street, following which she rented out 2 Macpherson Street.
The deceased's acquisition of these three contiguous properties was a logical course: family members had mutual access among all three. Bowden Street West Ryde, runs very approximately North-South in the area of these properties and intersects Victoria Road just to the South of their location. Macpherson Street runs East-West and intersects with Bowden Street. And Macpherson Street in turn is intersected by Macpherson Lane, which runs North-South parallel to and to the east of Bowden Street. So Macpherson Lane, Macpherson Street and Bowden Street form three of the boundaries of a suburban block of houses. These three properties occupy the southern end of that block: 2 Macpherson Street is on the north-western corner of Macpherson Street and Macpherson lane; the eastern boundary of 89 Bowden Street abuts the western boundary of 2 Macpherson Street, and 89 Bowden Street is on the north eastern corner of Bowden Street; and 87 Bowden Street lies just to the north of (and has a common boundary with) 89 Bowden Street, on the eastern side of Bowden Street. Thus it is possible to walk west from 2 Macpherson Street across its boundary with 89 Bowden Street, then to cross north into 87 Bowden Street without going onto a public street. Although these three properties did not form a compound, there was ready access between them. This allowed family members living in the different properties easily to visit one another.
In October 1993 Deborah and the deceased purchased the property 89 Bowden Street jointly as tenants in common. Selena was then 10 and Justyn was 8. Deborah says that the purchase price of the property was $285,000, to which she contributed $30,000 and the deceased $55,000. The remainder of the purchase price was funded by mortgaging 89 Bowden Street to the Commonwealth Bank. Deborah says that she and the deceased agreed that in exchange for Deborah's assistance with domestic chores, such as shopping, cooking, cleaning, and helping out at the Dellina Palm Cottage and a hairdressing business that the deceased owned in Balmain, the deceased would make all the mortgage repayments on 89 Bowden Street.
Deborah says that she contributed to the acquisition of 89 Bowden St in other ways. She says she: paid for the connection of utilities; began contributing $200 per week to meet the mortgage instalments on the property; and, made some contribution to meeting the council rates on the property, after she gained regular employment at Ryde hospital in 1994. Deborah says that from 1998 she increased her share of the monthly mortgage instalments for 89 Bowden Street to $250 per week and paid for all the utility services at the home.
I am prepared to accept that she made some contributions of the kind that she claims. She was continuously employed through this period. And Mark corroborates what she says. But I do not accept that her contribution was as much or as regular as she says it was. This is because weight must be given to other credible evidence that the deceased was complaining that Deborah was not making the level of contributions that was expected of her.
Deborah, Selena, Justyn and Kailah lived at 89 Bowden Street together for ten years from 1993 until 2003. Deborah moved out that year with her new husband.
Two Independent Witnesses
The Court had the advantage of hearing from two witnesses who were very close to the deceased but independent of the disputes between Selena and Justyn and their mother. The first of these was Mr Frederick Guido Smith, the deceased's youngest brother; and the other was the deceased's doctor, Dr Bodil Broeng-Nielsen, who enters the historical narrative at this point. Both these witnesses gave a useful perspective on many aspects of the relationship between the deceased, and Deborah and the deceased and her grandchildren, and especially about the level of estrangement between the deceased and Deborah close to the deceased's death. Their testimony had high persuasive value in the Court's assessment of the facts in this case. They were very credible witnesses. Although each was in the witness box only relatively briefly, they were both very impressive.
Dr Broeng-Nielsen gave evidence first. She was the deceased's general practitioner. But she was far more than that to the deceased. She was clearly a friend and confidant to the deceased over many years. And it was not difficult to see why: Dr Broeng-Nielsen presented to the Court as a witness of obvious integrity, good judgment, high intelligence and natural empathy.
Dr Broeng-Nielsen qualified in medicine in Denmark and has been practising in New South Wales since 1984. For the last twenty years of the deceased's life Dr Broeng-Nielsen conducted general practice in the Ryde area.
Dr Broeng-Nielsen gave special insight into the public service which the deceased provided in the Ryde area, an insight that no other witness was able to offer. Dr Broeng-Nielsen explained the deceased was a registered nurse who provided shelter for the residents at 87 Bowden Street, who were mostly homeless people many of whom had mental health issues. The deceased provided accommodation for people who had nowhere else to go. Dr Broeng-Nielsen explained that the deceased was "highly regarded by doctors and psychiatrists in the district" and often received requests from organisations such as the Mathew Talbot Hostel and the Little Sisters of Mercy to provide emergency accommodation to homeless people.
From time to time Dr Broeng-Nielsen visited some residents of the hostel, who were her patients. During breaks in these visits Dr Broeng-Nielsen would chat with the deceased about personal matters and about life in general. Both the deceased and Dr Broeng-Nielsen each did little favours for the other and shared confidences. Selena and Justyn were also patients of Dr Broeng-Nielsen as they grew up.
When Dr Broeng-Nielsen first met the deceased, or "Dell", as Dr Broeng-Nielsen knew her, in the early 1990's when Selena and Justyn were only in primary school.
Frederick Guido Smith was Dell Smith's youngest brother. Dell was born in May 1936 and she was 17 years older than Frederick, who was born in December 1953. Mr Guido Smith was a most impressive witness. He was a candid and direct man who plainly spoke the truth. I accept all of his evidence which was carefully stated and gave an accurate profile of his sister, her actions and her views. Despite their 17-year age difference Frederick and Dell, as well as being siblings, were close friends. He lived in Queensland. She rarely came to Queensland to visit him, no doubt because she was busy running the hostel. But he would go to Sydney from time to time. He recalls, and I accept, initially he would stay at 2 Macpherson Street and then subsequently at 89 Bowden Street, although he can recall staying at 87 Bowden Street on a number of occasions.
Like Dr Broeng-Nielsen, Mr Smith was a confidant of the deceased. She spoke openly to him about the problems she was having with her daughter Deborah and about her affection for Selena and Justyn. Unlike Dr Broeng-Nielsen, Mr Smith was in a position within the family to try and do something to improve the deceased's relationship with Deborah. But Deborah stonewalled him, in a way that will shortly be explained.
But first Dr Broeng-Nielsen's evidence gives accurate insight into why the deceased purchased 89 Bowden Street. Dr Broeng-Nielsen explained, in evidence that I accept that at the time 89 Bowden Street was purchased Dell told Dr Broeng-Nielsen: that Deborah had been married to a man with a criminal past who had assaulted her (an account confirmed by other evidence); that 2 Macpherson Street was not large enough for them to all live together, precipitating the purchase; Dell "bought that house together with Deborah so that she and her three children would have somewhere to live".
Deborah and Craig - 1999 to 2000
Deborah had a number of male companions after her divorce from Mr Ng. In 1999 Deborah's then companion, Craig, moved into 89 Bowden Street with the family. Selena, who was then about 15, said that he made inappropriate comments to her, and made her feel uncomfortable when she was alone in his presence. Selena says that Deborah refused to believe her account of Craig's behaviour, which caused her to run away to Queensland shortly after her 16th birthday. When Selena returned to Sydney, Deborah told Selena she would be sent to boarding school as a punishment for running away. Deborah denies that any conversations occurred between them about Craig's alleged inappropriate behaviour towards Selena. Deborah's account is that Selena left Sydney to go to Queensland to see a boyfriend, herself, after Deborah refused her permission to do so. Deborah contends Selena wished to go to boarding school, and that she Deborah, allowed this rather than forcing Selena to go to boarding school. It is not necessary to resolve the difference in the evidence over this issue.
The Dispute about Contributions to the Acquisition of 89 Bowden Street
Deborah insists that she made regular financial contributions to meeting mortgage payments over 89 Bowden Street. Selena and Justyn's case is that she did not. I have insufficient confidence in Deborah's evidence on this subject to place very much weight on it. But Selena and Justyn can give little direct evidence on the issue.
Dr Broeng-Nielsen throws light on the extent of Deborah's financial contributions after the purchase. Dr Broeng-Nielsen says, and I accept, that Dell told her "Deborah never made any contributions towards the purchase price of the house [meaning 89 Bowden Street]". I infer that what Dell said to Dr Broeng-Nielsen was perhaps slightly overstated because of her disappointment in Deborah, but otherwise correct conveying that Deborah did not contribute very often or very much that Dell remembered.
Deborah gives an account of co-operating in contributing to the outgoings on 89 Bowden Street. But this is not consistent with Dell's account to Dr Broeng-Nielsen that she was unhappy with Deborah for refusing to contribute towards 89 Bowden Street outgoings for water and electricity and council rates. I accept Dr Broeng-Nielsen's evidence that Dell was "most upset" about Deborah's refusal to make these contributions. Not only is it highly unlikely that the deceased would have feigned such emotion to her close friend, but in my judgment Dr Broeng-Nielsen was not the kind of person who would either misread or exaggerate the deceased's feelings. I infer that Deborah did not make substantial financial contribution to these household expenses, although she undoubtedly made some.
Selena and Justyn's Support
During the 1990's the deceased maintained a close involvement in the lives of her daughter and her grandchildren. She continued to assist the family financially and spent her evenings with them at 89 Bowden Street before returning to sleep at 87 Bowden Street. Justyn and Selena recollect that during this period the deceased became increasingly involved in their care. Both say, and I accept, that although their mother ran the household, the deceased often provided the evening meal, and was more involved than their mother in important aspects of their lives, such as their daily school attendance, their sporting and other social activities. They say that the deceased's support for their daily lives became even more pronounced at the times when Deborah was involved in one of the romantic relationships, to which she was susceptible. Deborah and Mark disagree with this assessment, but I find that it is accurate.
Justyn and Selena both describe their relationship with their grandmother as always close. They say that they had a strong bond with her and that she took primary responsibility for their day-to-day care. Both give evidence that it was the deceased, and not their mother, who paid for their education at private schools, and was a decision-maker with Selena in Selena's choice of educational opportunities and schools. Selena says that the deceased also provided money for their school lunches, or had these lunches prepared by the cook who she employed at 87 Bowden Street. Selena also recalls that the deceased picked her up from school or arranged for a longstanding employee to do so. Selena also recalls the deceased supporting her and Justyn's extra-curricular activities. I accept Selena's recollections as accurate on the subject of the deceased's contribution to her and Justyn's lives. She was the oldest sibling and was in a position to observe and appreciate what the deceased did for Justyn and for her.
Selena says the deceased purchased a baby grand piano for her in 1990 or 1991 and then paid for her to have piano lessons. The deceased also took a close interest in Justyn's sport: played cricket with him in the backyard of 89 Bowden Street; attended his school sporting events; and, purchased sports equipment for him.
Dr Broeng-Nielsen gave compelling evidence to similar effect as to Dell's financial contribution to Selena and Justyn's education. I accept her account that on numerous occasions Dell told her that Dell had paid Selena and Justyn's school fees. Dell also told Dr Broeng-Nielsen that she had tried to get Deborah to pay their school fees or "at least assist with payment" but that "she never did". I infer that this is what happened.
During her adolescent years Selena had difficulties at school and was often in conflict with Deborah. The deceased helped sort out many of these mother-daughter differences and helped fund other assistance for the children, for example organising a mobile phone for Selena in 2000, and Citibank Credit Card for Justyn in 2002.
Deteriorating Relationship between the Deceased and Deborah - 2003 to 2007
In 2000, when Selena was 17 and Justyn was 15, Deborah began a personal relationship with a Mr Grant Curnow, who she married in 2003. Deborah's relationship with Grant Curnow was a growing source of discord between her and the deceased, and between Grant and Justyn. This discord culminated in the deceased seeking an Apprehended Domestic Violence Order (ADVO) against Deborah in 2007, and her purchasing Deborah's share in 89 Bowden Street in 2008. The plaintiffs' case is that this event led to a permanent estrangement between mother (Dell) and daughter (Deborah) until the deceased's death in 2011.
The deceased disliked Grant. Deborah resented her mother's attitude towards him. In late 2001 Grant began living with Deborah and the children at 89 Bowden Street. During this period Deborah says, she continued to pay her mother $250.00 per week towards the mortgage over 89 Bowden Street and to perform domestic duties for her mother, and that Grant took responsibility for paying the household utility bills, in addition to paying an additional unspecified weekly amount to the deceased. Deborah says, and Mark agrees, that the deceased disapproved of Deborah's relationship with Grant, partly because she suspected Grant had designs over the deceased's assets. I certainly accept that, whatever was the deceased's precise motivation for her attitude, she did not like having Grant in 89 Bowden Street, the house that she and Deborah owned.
But Deborah's claim that Grant was contributing to the household with her in 2001-2003 is improbable. It is inherently unlikely that Deborah would have been scrupulously attending to contributing to mortgage and other payments: to assist her mother who she perceived was causing her trouble about her new male companion, sufficient trouble indeed that she and he would soon move out. And Grant had little reason to try and maintain a household which he had to leave.
Following their 2003 marriage, Deborah and Grant lived for a period at 89 Bowden Street. But just how long is in issue. They then moved with Kailah to live at Grant's property at Wentworthville. The parties' accounts of both the reasons for and the timing of this move vary greatly. But it is undisputed that Deborah never returned to live on a permanent basis at 89 Bowden Street with Justyn and Selena. The conflict between the deceased and Grant seemed to intensify at 89 Bowden Street: it was easier, in my judgment, for Deborah to move away with him and stay away.
Deborah says that she, Grant and Kailah moved to Wentworthville in early 2005, but only to perform the repairs and renovations necessary to prepare to lease that property out. Deborah says this move to Wentworthville was never intended to be a permanent and for this reason they still kept most of their belongings at 89 Bowden Street. She says that during this period she continued to contribute $250 per week towards the mortgage over 89 Bowden Street.
Justyn and Selena's accounts of this move differ significantly from Deborah's. Selena says that the move to Wentworthville occurred in 2003, only 6 months after Deborah and Grant were married. Justyn too remembers the move as occurring much earlier than Deborah recalls. They were old enough to remember this. Selena turned 20 in June 2003 and Justyn turned 18 in January of that year. I prefer their evidence of the timing of Deborah and Grant's move. They were generally reliable witnesses. And Dr Broeng-Nielsen confirmed that the move was soon after the wedding. Dr Broeng-Nielsen recalls, and I accept, that she remembers when Deborah married Grant Curnow that Deborah and Grant stayed at 89 Bowden Street for a short time before moving to Grant's property and that she did not see Deborah as a patient after that time. But Justyn and Selena continued as her patients.
It is not necessary to determine Deborah's long term intentions in leaving 89 Bowden Street to go to Grant's Wentworthville property. Her subsequent actions are ambiguous. Although Deborah never moved back permanently to 89 Bowden Street, she (and Grant) did make what appeared to be attempts to return. These attempts caused great aggravation to the deceased and to Justyn and Selena.
Deborah's Attempts to Move Back into 89 Bowden Street - 2003 to 2007
Selena and Justyn's claim that Deborah intended to move to Wentworthville permanently is partly based on what Deborah said when she moved out. Selena recalls a conversation with Deborah late in 2007, in which Deborah told her that she had "no real intention" of moving back to 89 Bowden Street, but was only threatening to do so to "get a rise" out of the deceased and Justyn. I accept that this conversation took place.
Deborah's case is that she really wanted to return to 89 Bowden Street and that, as a result of the poor relationship between Justyn and Grant, and the deceased's insistence that she not return to 89 Bowden Street, the move to Wentworthville only became permanent later.
Deborah says that she first attempted to move back to 89 Bowden Street in September 2005. But on her return she found that the locks had been changed. Deborah says that the deceased told her she could not move back because of the poor relationship between Justyn and Grant. This relationship had indeed continuously declined since Deborah and Grant's wedding.
Deborah says that the deceased eventually provided her with a key to 89 Bowden Street but Justyn changed the locks. The police attended at Deborah's request one night, when she found she could not enter the property. After verifying Deborah's co-ownership of the property, the Police warned Justyn that he should not again threaten a breach of the peace by changing the locks. On her returning to live at 89 Bowden Street following this incident, Deborah says the tension between Justyn, Grant and herself became unbearable. She and Grant decided to move back to Wentworthville after a period of only a few days. I accept Deborah's account of her attempt to return to 89 Bowden Street on this occasion and her decision then to stay in Wentworthville.
Unsurprisingly, Justyn and Selena's relationship with the deceased became closer during this period. The deceased was seeking to protect them both from their mother's forcing them into very close proximity with a man both they and she disliked.
The 2007 Apprehended Domestic Violence Order
In 2007 Deborah again indicated to the deceased that she, Grant and Kailah wished to move back to 89 Bowden Street. The plaintiffs again dispute that Deborah genuinely wished to move back but was just causing trouble. Whatever be her true motivation Deborah's actions this time at 89 Bowden Street ended badly. The deceased took out an interim Apprehended Domestic Violence Order (ADVO) against Deborah and by August 2008 had purchased Deborah's share in 89 Bowden Street for $315,000.
Deborah says that in October 2007 she and the deceased argued about Deborah's plan to move back into 89 Bowden Street, with Grant and Kailah. By this time Selena was 24 and Justyn was 22. The deceased told Deborah she could not move back in with Grant. Deborah says that she went to 89 Bowden Street and found that the locks had been changed. The police were once again called. After being instructed to do so by a police officer, the deceased gave Deborah a new key. I accept Deborah's account this far.
But the balance of Deborah's account of what happened makes little sense. Deborah says that she then left the property, and shortly afterwards was served with the ADVO, for no apparent reason. She says that she intended to resist the order. The interim ADVO was dismissed when the deceased failed to attend the appointed Court hearing. But Deborah's account of her leaving the property fails to explain why the deceased sought an ADVO against her.
Selena and Justyn's account of the events surrounding the ADVO markedly differs from Deborah's account. Selena says that she witnessed Deborah arguing with the deceased at 89 Bowden Street and pushing the deceased around. Selena says she intervened, telling Deborah "not to do that". She says she and Justyn then took the deceased to Ryde police station to report the incident and when they were there they obtained the ADVO.
The statement the deceased made to Ryde Police on 10 October 2007 is more consistent with Selena's version of events than with Deborah's:
"5. A few weeks ago my daughter told me that she wants to move in to 89 Bowden Street with her husband and daughter. She did not ask me about it just declared her intentions. To prevent further disagreement between us I called my solicitor and asked him to send a letter to my daughter asking her to sell her part of the house to me. On 5 October 2007 my solicitor called me that he sent a letter to my daughter.
6. About 3.30pm on 8 October 2007 I was at 87 Bowden Street, Ryde and I received a phone call from my grandson Justin that my daughter is at the house (89 Bowden Street) and moving furniture and I better get there. I went across to the house. When I got there I saw police officers at the house talking to my daughter. The police told me to give a key to the front door to my daughter. I saw my bed in the lounge room which is normally in my bedroom. Some time after the police have left my daughter started yelling at me because I had the lock on the front door replaced. I was afraid of her as she is much bigger than me. She also struck me with her shoulder, I can't remember which should she used and where exactly she struck me but I was knocked back. Shortly after she left. About 10.00pm on 8 October 2007 I listened a message left by my daughter on my granddaughter's voicemail telling us that she won't accept my offer.
7. About 11.00am on 10 October 2007 my granddaughter Salina called me that my daughter has moved my bed out of my bedroom again and locked the door to the my bedroom. I went over to the house. I saw my bed in the lounge room and my bedroom locked and I also noticed a few my family photos from the walls and a few other items missing.
8. I am afraid to be alone with my daughter as intimidates me and I think she might hurt me or damage my property."
There are many reasons to prefer Selena and Justyn's version of these events. That some sort of physical altercation had taken place is even confirmed by Mark's account of a conversation he had with the deceased at the time. The deceased told Mark about this time that Deborah had been violent, and that as a result she had taken out the ADVO. The deceased had no obvious reason to exaggerate the true facts when speaking to Mark.
Dr Broeng-Nielsen's evidence about the ADVO incident is as strongly persuasive as the rest of her evidence. Dr Broeng-Nielsen has a clear recollection of the deceased calling her to the deceased's home in October 2007. I fully accept Dr Dr Broeng-Nielsen's account that when the doctor arrived that the deceased was "extremely distressed" and gave an account to Dr Broeng-Nielsen of what had recently happened, an account which was to the following effect:
"Deborah and I had a big argument. Deborah came into the house and said that Selena and Justyn had to move out immediately because she and Grant were moving back in and Grant did not want them [Selena and Justyn] there. There were no if's or but's. I didn't want that and I told her so. She then became aggressive and attacked me. She put a hand to my throat. It was awful!"
I accept Dr Broeng-Nielsen's "clear recollection" that upon giving this account to her that the deceased "was totally devastated by what had happened". Dr Broeng-Nielsen medically examined the deceased and noticed that although her blood pressure was normal her heart was still beating at 100 beats per minute, well above the deceased's normal rate of 70 beats per minute.
I have no doubt that Dr Broeng-Nielsen remembered this house call to her very distressed friend. The events of the visit assisted her to recall another sentiment the deceased had expressed to her on this and many other occasions up until her death: Dell said to her "I don't want Selena and Justyn to move out [from 89 Bowden Street]".
The night of the ADVO the deceased realised she had to defend Selena and Justyn's security at 89 Bowden Street from Deborah's unpredictable future actions. She also wanted to continue to have them close to her in the future.
The deceased did not pursue the ADVO. But I do not accept that this was because the deceased had no belief in it. I accept Dr Broeng-Nielsen's evidence, Selena's evidence and the deceased's own ADVO statement that show that the ADVO had a proper basis.
Why did Dell not pursue the ADVO? Selena and Justyn both say, and I accept, that the deceased told them that Deborah had threatened to force the sale of 89 Bowden Street, if the deceased did not drop the ADVO and purchase her half of the property. Mark says that the deceased told him that she had dropped the ADVO as a result of Deborah undertaking, through her solicitor, not to approach the deceased again for two years.
The Deceased Purchases Deborah's Interest in 89 Bowden Street
The ADVO led to Deborah and the deceased agreeing to separate their tenancy in common in 89 Bowden Street. This also lends support to Justyn and Selena's contentions as to why the deceased did not support her own interim ADVO: she was probably concerned that Deborah might force the sale of the property.
In August 2008 the deceased took out a mortgage over 89 Bowden Street to fund the purchase of Deborah's half share in the property for $315,000. The deceased did this, despite having repeatedly told Selena and Justyn, as was the fact, that Deborah had not contributed towards the purchase of 89 Bowden Street. This conflicts with Deborah's evidence, of an initial capital contribution and subsequent regular payments towards the mortgage over the property. It also conflicts somewhat with Mark's evidence as to a conversation with his mother in 1993 in which she said that she was assisting Deborah to purchase the property.
But in my judgment the deceased took this course because she was willing to overlook the fact that Deborah had not contributed to the acquisition. Purchasing Deborah's interest enabled the deceased to achieve control: giving security for her grandchildren at 89 Bowden Street, free of Deborah and Grant.
Dell confided in Dr Broeng-Nielsen about her reasons for acquiring Deborah's interest in 89 Bowden Street. Her disclosures to Dr Broeng-Nielsen on this subject are consistent with the only reasonably objective view of this transaction: that she wanted to loosen her daughter's control over 89 Bowden Street and to reduce her daughter's capacity to further interfere with Selena and Justyn's occupation of the property. The deceased made this motivation clear in conversations with Dr Broeng-Nielsen, which I accept accurately described the deceased's reasons for the purchase.
Dell confided in Dr Broeng-Nielsen that she had purchased Deborah's interest in the property in 2008 and that the children were continuing to reside there. She explained to Dr Broeng-Nielsen what had happened:
"When I bought Deborah's interest in 89 Bowden Street it was to protect the children from being evicted and homeless. I considered having the children put on the title of the property. We looked at the possibility of them taking out a loan to purchase their mother's interest but that all became too complicated."
So the solution was that the deceased would buy out Deborah's interest. Once that had happened the deceased confided once again in Dr Broeng-Nielsen; this time to share her future intentions in relation to the property upon her death:
"Now that I have paid Deborah out, there is no way that she should have any rights to that property. I want to leave it to the children."
I accept that this is what the deceased said to Dr Broeng-Nielsen. But why did she not change her will? This is explained by later events.
Estrangement between the Deceased and Deborah - 2007 to 2011
Aspects of the deceased's relationship with her daughter are relevant to the determination of these proceedings, as is explained below, even though as a beneficiary Deborah does not have to justify her entitlement under the deceased's will in any way.
From the time of the ADVO until the deceased's death, Deborah deliberately avoided contact with the deceased. Dell tried to contact her daughter on average two or three times a week, leaving Deborah regular messages on her telephone. Deborah accepts that there was no contact during this period but says it was on the advice of her solicitors. She says that for this reason she did not accept any of her mother's attempts to contact her, with the exception of a single phone call Deborah received from the deceased when Grant was hospitalised in 2010. At that time they had an amicable exchange regarding Grant's wellbeing. Deborah denies that she was being hostile or vindictive towards her mother by not communicating with her.
Selena recalls things quite differently, in an account that I accept. She says that the deceased made repeated but unsuccessful attempts to reconcile with Deborah during this period, sending her birthday and Christmas cards in an attempt to bridge the gap between them. She further recalls that all these attempts to re-establish contact were rebuffed, at times aggressively, and that this was a source of distress to the deceased. Selena recalls that on more than one occasion the deceased showed her the cards Deborah had returned, torn up with grossly insulting messages written on them such as "fuck off" or "fuck you". Selena says that she saw one of these cards which Deborah had returned with a torn up photograph of herself and the deceased. The precise reasons for this behaviour on Deborah's part are difficult to fathom, and do not need to be decided. Deborah's text messages to her children throw some light on the issue: she accuses her mother of jealousy and hatred towards her. All that can be said is that there is no evidence of such things from the deceased from the most reliable witnesses in the case, Dr Broeng-Nielsen and Mr Frederick Smith.
Deborah denied that this conduct ever took place. She insisted that she refrained from contact with the deceased after October 2007 on the advice of her solicitors. Instead, she highlighted the efforts she took to ensure Kailah maintained a relationship with the deceased. Deborah says she drove Kailah to visit her grandmother regularly, and that she did not bear any ill will towards her mother following the incidents surrounding the ADVO and the sale of her share in 89 Bowden Street. It is certainly true that Deborah did assist Kailah to have continuing contact with Dell, her grandmother. But this is where acceptance of Deborah's version of her post 2007 relationship with her mother ends.
I prefer Selena's evidence on this issue. Regrettable though this finding is, it must be made: I find that Deborah pursued a deliberate course of freezing her mother out of her life between 2007 and 2011, despite Dell's attempts to maintain a reasonable relationship with her.
Throughout this tension between Deborah and the deceased, Justyn and Selena's relationship with the deceased understandably continued to be close. Once again Dr Broeng-Nielsen and Mr Frederick Guido Smith assist the Court in reaching the findings on this issue.
Dr Broeng-Nielsen's evidence describes the permanent effects of the October 2007 ADVO incident. Dr Broeng-Nielsen says that "Dell remained upset by the events of October 2007 for the rest of her life". Dr Broeng-Nielsen also recalls, and I accept, that from the time of this incident there was no further contact between Dell and Deborah and that "Dell found it very painful to talk about their relationship". Dell confided to her "I felt betrayed by Deborah". I accept Dr Broeng-Nielsen's evidence that Dell repeated this sentiment to her "on many occasions". Dr Broeng-Nielsen was not aware of any communication from Dell which indicated a reconciliation between Dell and Deborah prior to Dell's death.
Mr Smith, Dell's brother has a clear recollection, which I accept, of discussing Dell's testamentary intentions in about August 2010 with her. What the deceased said to him relevantly confirms Dr Broeng-Nielsen's recollection and was as follows:
"I must get my Will in order. I have promised Mark the property in Macpherson Street so I must give him that. As regards Deborah I have already provided for her. I purchased 89 Bowden Street as a home for her, as a single mother, and the children. After she married Grant she threatened to force the sale of the property so I was then required to find the money to buy out her interest. She has cut off all communications with me. I'm very worried about the position of Justyn and Selena. I feel that she will do nothing for them, so I'll do so, giving them 89 Bowden Street. They are a big part of my life."
By the time Mr Smith visited Dell in Sydney in August 2010 the estrangement between Deborah and Dell was almost three years old. Mr Smith gives a compelling account of an incident which makes clear that it was Deborah who was rejecting her mother's attempts at reconciliation. Mr Smith says that during his August 2010 visit Deborah brought Kialah around to 8 Bowden Street to see Dell. When they arrived by car Kialah came into the house but Deborah stayed outside in her motor vehicle. Mr Smith offered to go outside and "speak to Debbie" to try and persuade her to come inside. The deceased said to him "it would be good if you could", and the deceased encouraged this. Mr Smith went outside and said to Deborah "Deb come in and we will patch things up". Mr Smith's diplomatic entreaty was met with what for him became a memorable communication from Deborah, who said, "No I won't come in. I will never speak to her [meaning the deceased] again".
Finally, Mr Smith gives further compelling evidence as to the bitterness that Deborah launched at her mother over this period. I accept his evidence that Dell said to him after one Christmas, that Dell had "sent Debbie a Christmas card and she sent it back to me torn to pieces and with some unpleasant words written on the envelope". This well corroborates Selena's evidence. I prefer Mr Smith's evidence to Deborah's denials of engaging in such conduct.
With his usual skill Mr Ellison SC put the best construction possible on Deborah's lack of contact with Dell after the ADVO incident. Picking up Deborah's evidence on the subject he submitted that Deborah "was determined to keep her distance from her mother as a consequence of the AVO". This is certainly half right. Deborah was determined to keep her distance from Dell. But I do not accept Deborah's evidence that a solicitor advised her to follow the extreme course that she did: of having no contact with Dell of any kind, even when Dell sought contact out and was looking beyond the incident of the ADVO; or, of failing to explore what future contact with Dell might be possible, once Dell had conspicuously failed to attend Court to follow through the ADVO. Deborah's blaming her own lawyers' advice was an attempt to camouflage her deliberate withdrawal of affection from her mother after 2007.
The Deceased's Intention to Make a New Will - 2010 to 2011
At the time of the deceased's death, her latest will had been drafted in 1968 and deposited with the Public Trustee of Queensland. Deborah recovered this will shortly after the deceased's death. The 1968 will left a minor legacy to her mother and the residue of her estate to Mark and Deborah. Dell's mother predeceased her. Despite the age of this will, as Mr Ellison SC rightly pointed out it take effect under Succession Act, s 30 "as if it had been executed immediately before the death of the testator".
This 1968 will is the legal record of the deceased's intentions, at the time of her death, more than 40 years later. But whether she in fact took steps to draft a new will in the months preceding her death was a question also debated by the parties. Selena claims that from at least December 2008, when the deceased was hospitalised with pneumonia (a little over two years before her death), she expressed an intention to draft a new will to replace the 1968 will, and to revise the disposition of her property.
Selena says that in early 2010, the deceased asked Selena to accompany her to instruct Mr Theo Cassimatis of Sparke Helmore to draft a new will for herself, as well as a will for Selena. Mr Cassimatis saw each of them. Selena was not privy to what occurred during the separate conference between Mr Cassimatis and the deceased. Mr Cassimatis did not provide drafts of either will before Dell's death. But as will be seen that is because when she died Dell was proposing to go back and see him to give him final instructions for her will.
Deborah says that Mr Cassimatis told her that when he discussed the will with the deceased privately, she had instructed him that she did not wish to draft a new will. But that is not consistent with the evidence, see below, of Dr Broeng-Nielsen and Mr Frederick Guido Smith and I do not accept it is accurate.
Selena and Justyn say that from about 2008 the deceased discussed her testamentary intentions with them on a number of occasions. They each say that the deceased told them that she intended that they should have 89 Bowden Street as a family home, her cash and shares, the cars she had purchased for them, and also that she wanted them to have 87 Bowden Street as an investment, or in the alternative for them to share this property with Kailah. Mark was to have 2 Macpherson Street. They say that the deceased told them that she had already provided sufficiently for Deborah.
I find she did say to them at least that she would give them 89 Bowden Street in her will. I accept their evidence to this extent. A note in the deceased's own hand in her notebook "89- Justyn Selena" tends to confirm this.
The deceased seems to have seen Mr Cassimatis more than once. He was not called to give evidence, and produced no notes. No party clearly could have been expected to call him.
Once again the evidence of Dr Broeng-Nielsen and Mr Frederick Smith helps to resolve this issue. Dr Broeng-Nielsen visited Dell, her friend and patient after she was admitted to Concord Hospital. The deceased continued to repose great confidence in Dr Broeng-Nielsen, disclosing to her things that were not made obvious to anyone else. Dr Broeng-Nielsen recalls, and I accept, that after December 2008 the deceased spoke to her about the deceased changing her will and saying "I want a new will which will see Justyn and Selena ultimately have 89 Bowden Street as a home".
Dr Broeng-Nielsen also recalls Dell explaining to her that she had been to a solicitor about a new will. As a result Dr Broeng-Nielsen concluded, the deceased had made a new will. Dr Broeng-Nielsen only discovered, to her surprise, after Dell had died that she had not made a new will. But in all of these conversations Dr Broeng-Nielsen's firm recollection is that the deceased desired to give 89 Bowden Street to Selena and Justyn. Dr Broeng-Nielsen heard not just the words that the deceased spoke to her about Justyn and Selena. But she is an excellent judge of the sentiment that lay behind them. Dr Broeng-Nielsen observed at all times the deceased was "very protective and supportive of Justyn and Selena" and it was clear to Dr Broeng-Nielsen that the deceased "had a deep affection and love for them". I prefer Dr Broeng-Nielsen's insights on this subject to the limited contrary evidence from Deborah; limited of course, because Deborah had such little contact with her mother in the last four years of her life.
The deceased died suddenly. Dr Broeng-Nielsen explains that although the deceased was a chronic smoker and had emphysema, her death was nevertheless unexpected. Dr Broeng-Nielsen says "it [the deceased's death] was certainly not expected by me and I am sure it was not expected by her".
Mr Frederick Guido Smith has a clear recollection, which I accept, of discussing with his sister Dell her testamentary intentions in about August 2010. What the deceased said to him relevantly confirms Dr Broeng-Nielsen's recollection and was as follows:
"I must get my Will in order. I have promised Mark the property in Macpherson Street so I must give him that. As regards Deborah I have already provided for her. I purchased 89 Bowden Street as a home for her, as a single mother, and the children. After she married Grant she threatened to force the sale of the property so I was then required to find the money to buy out her interest. She has cut off all communications with me. I'm very worried about the position of Justyn and Selena. I feel that she will do nothing for then, so I'll do so, giving them 89 Bowden Street. They are a big part of my life."
The deceased specifically consulted Mr Smith to help her with her will making late in 2010. Before Christmas that year the deceased said to him on the telephone that she had discussed a proposal for another will with her solicitor and that the solicitor had advised her that she was "making too much provision for Justyn and Selena". I accept Mr Smith's account that the deceased asked him to come down to Sydney so that he could accompany her to see her solicitor with her. As Dell explained to him: the object of his visit was to "give me [Dell] a hand in making my will". He made appointments and booked an airline ticket to come to Sydney on 23 February 2011. But Mark telephoned him on 16 February to say that the deceased had died.
Mr Smith's evidence, in my view, is the best explanation of why the deceased did not execute a new will before her death. She was having difficulty in reconciling her desire to make very substantial provision for Justyn and Selena with her moral obligations to other members of her family about which her solicitor was reminding her. She wanted the brother to whom she was close to help her in this important life decision. I accept Mr Smith's evidence that Dell said to him about the solicitor's advice, (no doubt speaking of Mr Cassimatis):
"He said that he thought I was making too much provision for Justyn and Selena. He said the will would be heavily weighted in their favour. He said there are other members of the family and grandchildren as well."
I infer especially from Dr Broeng-Nielsen's and Mr Smith's evidence that the deceased had an enduring desire to substantially benefit Selena and Justyn in a new will that she wanted to make in February 2011. But just how that was to be achieved, consistent with her other moral obligation, was something about which she was seeking her younger brother's assistance.
Deborah and Mark submit that the Court should not infer that the deceased intended to benefit Selena and Justyn, contending that if she had really contemplated benefiting her grandchildren for up to 12 months before her death it is strange that she still failed to change her will. The defendants' submission is that the only proper inference in the circumstances is that the deceased chose not to change her 1968 will.
This submission is not persuasive. There are several answers to it which the Court accepts. First, the submission is incompatible with Mr Frederick Guido Smith's evidence that the deceased was seeking to reconsider her old will with his assistance, at an appointment planned for only a week after she died.
Secondly, nothing in the deceased's conduct before her death indicates that she had deliberately chosen to leave her will the way it was after due consideration. On the contrary she was consulting solicitors about the subject and had clearly signalled she wanted more assistance to make what was proving to be a complicated decision. And her relationship with Deborah was so poor and her vocalised concern for the future welfare of Selena and Justyn so clear, it is objectively likely that she was reconsidering the testamentary dispositions of her 1968 will.
The Deceased's Death and Subsequent Incidents - 2011 to 2013
A few days after her death on 16 February 2011 a caretaker discovered the deceased's body in her apartment in 87 Bowden Street. The defendants argue that the delay in the discovery of the deceased's body belie Justyn's and Selena's assertions of a close relationship with their grandmother. All the delay really proves is that Selena and Justyn were not seeing their grandmother daily in February 2011. But that is not proof of a poor relationship and they both had jobs at the time.
...
[160] In Vigolo v Bostin [2005] 221 CLR 191, at 228, Callinan and Heydon JJ said:
"[T]he use of the word "proper" ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the "station in life" of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future.""
The Court must now decide what is appropriate provision in this case. The defendants submit that the appropriate provision in their favour is only a modest legacy each out of the estate. Selena and Justyn in contrast submit that the appropriate order for provision in the circumstances is that they each have a half share in 89 Bowden Street.
Selena and Justyn Ng stand in an unusual position, in claiming against the estate of their grandparent. For the last eight years of their lives from 2003, their mother had chosen to leave their household and to live elsewhere. She did so because she made a choice to be with her new husband and her youngest child rather than her two eldest children. After she left the only evidence of any contact between Deborah and her children quickly spiked into conflict. The deceased filled the gap that their mother left in their lives, as best as she could. She appears to have done that well enough becoming an important semi-maternal figure for both Selena and Justyn. I infer this from many things, the not least of which was the complete absence of any demonstration of any maternal feeling from Deborah towards Selena and Justyn in the courtroom.
Even before 2003 the same pattern was emerging, although less obviously so. A woman who disengaged from her son and daughter physically by 2003, in my view had already emigrated in other ways from their lives and been replaced by their grandmother in a semi-maternal role.
In my judgment these two grandchildren should be judged not simply as the grandchildren they are, but more analogously with children. Comparisons were made with such cases as Wilcox v Wilcox [2012] NSWSC 1138, Wilcox v Wilcox (No. 2) [2014] NSWSC 88, Simons v Perpetual Trustee Co Ltd [2005] NSWSC 223, and the principles stated in Sammut v Kleeman [2012] NSWSC 1030 at [107]. But it seems to me that this case has special features that distinguish it and place Selena and Justyn in an unusually close role in relation to their grandmother.
Justyn and Selena need financial stability in their lives now. What is a proper measure of provision out of the deceased's estate is closely influenced by a number of factors. Their needs for capital are present rather than future. Selena is recently unemployed. Although Deborah's needs for medical care in the future may be high, she has in substantial capital available to her.
The deceased's views about what was proper for Justyn and Selena do not bind the Court but they are not irrelevant. The deceased's focus was not only upon the need for secure accommodation for Justyn and Selena but she was also interested in their proximity to her. And it must be recognised that a 31 year old woman and her 29 year old brother may find many reasons in the future not to occupy the same house. But that being said, they are now at 89 Bowden Street and certainly see their short to medium term future as being there together in the near term. When the time comes they are the ones best equipped to decide how to turn that asset to account later.
In my view the appropriate provision out of the deceased's estate is for them each to be given a half interest in 89 Bowden Street, free of any mortgage liability. That will be the order for provision of the Court. In Selena's case that will come with the condition of repayment of the estate discussed earlier in these reasons.
And the future administration of the estate is probably likely to involve the liquidation of 2 Macpherson Street and 87 Bowden Street, two properties which even after the payment of estate expenses will still provide many of the defendants' expectations. Their proceeds would allow Deborah to carry out the renovations and repairs to her home at Merrylands that she wishes. Mark has a substantial negative gearing debt of over $1,000,000 that he wishes to reduce from the proceeds of the estate. He will still be able to effect a very substantial reduction in this debt after 89 Bowden Street has been set aside for Selena and Justyn. But if the defendants want to arrange their affairs to keep one of the estate properties, they may be able to pursue that option as well.
The Possession Proceedings
On 1 May 2013 the Commonwealth Bank commenced proceedings for possession of 89 Bowden Street, Ryde ("the possession proceedings"). In the Statement of Claim in the possession proceedings the Bank sought judgment for $248,039.24 and possession of 89 Bowden Street. The Bank alleged, and it was not in contest, that the Bank had provided credit in December 2008 to Dell in the sum of $250,000 the repayment of which was secured by mortgage over 89 Bowden Street. The estate defaulted under the agreement after Dell's death so that by 13 March 2012 payments due and not paid totalled $13,368. From 13 March 2012 until April 2013, shortly before the commencement of the possession proceedings, despite a lump sum payment in July 2012 payments due to the Bank had been continually in arrears.
On 3 July 2013 Gadens Lawyers acting on behalf of the Commonwealth Bank e-filed a Notice of Motion seeking default judgment. On 9 July 2013 judgment was entered for the Bank for possession of the land and for debt in the amount of $254,596.35. On 18 July 2013 Gadens Lawyers e-filed a motion seeking the issue of a writ of possession in relation to 89 Bowden Street. And on 20 August 2013 the Sheriff of New South Wales issued a notice to vacate the property by 25 September.
But by the time of the hearing of the proceedings the date to vacate the property was imminent. Selena and Justyn sought a stay on the Bank's execution of its judgment for possession by motion. At the same time Selena and Justyn sought orders for interim provision from the estate to assist in funding the terms of any stay order made against the Bank.
By the time of the last scheduled continuous hearing date Monday, 2 September 2013 it was becoming apparent that the Commonwealth Bank's 20 August 2013 notice for Selena and Justyn to vacate 89 Bowden Street by Wednesday 25 September needed to be addressed. A date was set for the parties to bring any motions to stay the Bank's action. There were a series of directions hearings and motions heard respectively on 13, 18, 19, 20 and 25 September to deal with these questions. Throughout this period, with the assistance of Ms Rae from Gadens, the Bank showed commendable practical flexibility in dealing with the issues thrown up by this dispute.
The estate's lawyers Barwick Boitano Lawyers contended in early September that there were then insufficient funds in the estate accounts to pay arrears on the mortgage. This was correct. They reported by letter dated 3 September 2013 that they had been negotiating with the Bank on behalf of the estate but that the Bank had threatened foreclosure. Barwick Boitano Lawyers reported on 3 September that although they had been able to negotiate the making of a lump sum payment to the Bank in July 2012 to bring the arrears of mortgage up to date, they were not in a position to make any further payments because: estate funds had been almost exhausted; Ms Curnow had no current source of income other than a pension; and, Mr Mark Morgan had no spare income to assist in funding the estate's liabilities to the Bank. Barwick Boitano Lawyers declined to give any undertakings to the lawyers for Selena and Justyn for them to remain in occupation of 89 Bowden Street.
This was the position when the stay issue arose. The evidence on the motion showed both the state of accounts between the estate and the Bank and the estate's resources from time to time.
At the time of the deceased's death in February 2010 the mortgage over 89 Bowden Street was not in default, but it went into default immediately thereafter. It can safely be said on the evidence that the executors have not given priority to the payment of the Commonwealth Bank's mortgage over 89 Bowden Street.
On the income side, between Dell's death and the hearing the estate received the total sum of $282,528.10: being $107,771.23 from the proceeds of the deceased's St George Bank account; being $153,698.97 for a superannuation death benefit; being $3,147.55 for the sale of miscellaneous furniture and other items and the surrender of property; being $2,840.82 for the sale of shares; being $14,486.60 for rental money; and, being $582.93 for refunds for water usage.
On the expenditure side, the estate has paid a total of $274,851.74 from the death of the deceased until just before the hearing. The estate's expenditure included fees for solicitors and counsel in relation to proceedings against the estate, insurance premiums, payment of credit card debts, land tax, council rates and other utility rates in respect of estate property and other small sums. The largest single class of this expenditure was legal fees. The estate made only one payment on account of the mortgage after the deceased's death: on 10 July 2012 it paid $26,528 to the Bank to bring arrears up to date, to avoid initiation of earlier possession proceedings. No other payment was made to the Bank before or after this date.
The Barwick Boitano Lawyers trust account statement for the estate an account through which all estate funds flowed do not perfectly reconcile with the figures given earlier but the figures are very close. For the period 19 May 2011 to 21 August 2013 the trust account statement shows receipts of $285,583.69 and withdrawals of $274,851.74, leaving a net balance of $10,731.95. The running balance of the trust account approximately every six months during this period reveals a steadily declining bank balance. On 26 October 2011 the estate account balance was $261,500.10. On 8 May 2012 it was $85,044.69. On 19 November 2012 it was $4,310.25.
It is remarkable that after the payment of $26,528 was made to the Commonwealth Bank on 10 July 2012 leaving an account balance of $45,980.25, that none of that remaining money was applied to the monthly accruing mortgage liability to the Bank. Although council and water rates were paid on 89 Bowden Street after July 2012 about 80 per cent of what remained in the account was spent on legal fees rather than in preserving the estate property. It must have been obvious to well advised administrators at that time, July 2012, that there would soon be another default on the Bank's mortgage, and that something would need to be done to preserve the value of this part of the estate's property. It was certainly not beyond the wit and ingenuity of prudent administrators to do something with the estate's significant reserves of equity to avoid short term default whilst these proceedings were entrain.
Yet the executors did not take the initiative. They seemed strangely content to allow default to the Bank leading to Selena and Justyn's inevitable eviction. Co-operative action with the other parties to see what could be done to prevent mortgage default or individual action to try and re-finance were not taken. It should be said though in the administrators favour that they were defending hard fought litigation over this estate which they could reasonably have anticipated would continue to be expensive. And it can be said that both Selena and Justyn could have been more proactive in offering some contribution to the mortgage liabilities over 89 Bowden Street to prevent default to the Bank.
But the kind of prudent action that was called for was for the executors to ensure that something was done to husband the estate's limited resources to avoid the costs that have now been incurred to the Commonwealth Bank. Given the orders which the Court will make in the Succession Act application that conduct may not have any costs or other consequences in these proceedings other than for the administrators themselves, reducing their interests as residuary beneficiaries. It is not necessary therefore to consider these issues any further, other than to say that the Commonwealth Bank will have to be paid out very soon, and should not be required to wait much longer. The parties will have a 60 day extension on their existing stay of the possession proceedings. But they must comply with the existing terms of the stay for this extra period.
Conclusions and Orders
In summary the result of the two proceedings is as follows. In the possession proceedings the Court will continue the stay already granted, to prevent the Commonwealth Bank from executing on its judgment for possession for the period of only 60 days. But the estate must continue making payments to the Bank as a condition of the continuation of this stay. That should be sufficient time for the parties either to re-finance or pay out the Commonwealth Bank's mortgage security.
In the Succession Act proceedings the Court has found that Justyn and Selena Ng, the deceased's grandchildren, have established a dependency upon the deceased and are eligible persons under Succession Act, s 57(e). As these reasons explain in more detail the Court has found: that under the deceased's will they were both left without adequate means of support; that an order for provision should be made in their favour; and, that they should receive provision in the form of an equal share in the property at 89 Bowden Street, North Ryde free of any mortgage liability to the Commonwealth Bank. The estate will have responsibility for paying out that liability.
But because of Selena's involvement in the propounding of the forged will in 2011 after the deceased's death, she will be required to pay back to the estate as a condition of her receipt of the order for provision, the estate's probate and administration costs incurred as a result of Selena propounding the forged will. These are said to be about $60,000 but the parties will have an opportunity to try and fix a figure with more precision if necessary by agreement. Interest will also be payable to the estate at the rates fixed under Civil Procedure Act, s 100 on money the estate has expended on the wasted costs of the probate proceedings.
The Court will also require Selena to repay to the estate that portion of the estate's costs of these proceedings attributable to the forged will issue which the Court assesses at 15 per cent of the estate's total costs of these proceedings. Selena will not be allowed to recover from the estate 15 per cent of her own legal costs of these proceedings on the same basis.
Ordinarily the executors Mr Morgan and Mr Turner should have their costs out of the estate on an indemnity basis and the costs of the two plaintiffs should be paid out of the estate on the ordinary basis. One or other party may wish to argue for a different order.
And in any event the Court will order an adjustment to the usual form of costs order on account of Selena's propounding of the forged will. Moreover, there may be special costs orders to be made arising out of the circumstances in which the estate fell into and remained in default on the Commonwealth Bank mortgage over 89 Bowden Street. For these reasons the Court will not make costs orders at this stage. But the parties are invited, after considering the Court's reasons, to re-list the proceedings for any argument in relation to costs issues. The simple procedural orders of the Court will therefore be as follows:
1. Direct the parties within 7 days to bring in agreed, or in the alternative their competing short minutes of order, to give effect to these reasons.
2. List the proceedings for further argument in relation to costs at 9.30am on Tuesday, 20 May 2014, or such other date as the parties may arrange by agreement with my Associate.
Direct that by 4.00pm on Monday, 12 May 2014 both plaintiffs shall provide to the defendants an estimate of their party/party costs to date.
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Decision last updated: 08 May 2014
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