Kingwright v Pin

[2004] NSWSC 249

CITATION:	Kingwright v Pin [2004] NSWSC 249
HEARING DATE(S):	2, 3, 4 December 2003
JUDGMENT DATE:	1 April 2004
JURISDICTION:	Equity Division
JUDGMENT OF:	Master McLaughlin
DECISION:	(1). I order that the proceedings be dismissed; (2). I order that the Plaintiff pay the costs of the Defendant, such costs to be on the party and party basis; (3). I order that the Defendant be entitled to recoup from the estate of the late Fira Glucksman ("the Deceased") the difference between the foregoing costs which she may recover from the Plaintiff pursuant to order 2 hereof and the costs of the Defendant on the indemnity basis; (4). The exhibits may be returned.
CATCHWORDS:	Succession - Family Provision - Claim by adult granddaughter - Whether Plaintiff was partly dependent upon Deceased - Financial and material circusmtances of Plaintiff - Lack of frankness on part of the Plaintiff - Whether Plaintiff has been left without adequate provision for her maintenance, education and advancement in life - Whether there are factors which warrant the making of the application - Proceedings out of time - Competing claim of beneficiary.
LEGISLATION CITED:	Family Provision Act 1982
CASES CITED:	Re Fulop Deceased (1987) 8 NSWLR 679 Dare v Furness (1998) 44 NSWLR 493 Massie v Laundy (7 February 1986, unreported) Singer v Berghouse (1994) 181 CLR 201 Setiz v Morgans [2001] NSWSC 1188, 20 December 2001) Tsivinsky v Tsivinsky (Court of Appeal, 5 December 1991, unreported)
PARTIES :	Natalie Jaye Kingwright (Plaintiff) Della Pin (Defendant)
FILE NUMBER(S):	SC 4632/02
COUNSEL:	M. Tzannes (Plaintiff) P. Strasser (Defendant)
SOLICITORS:	Marsdens Law Group (Plaintiff) Landerer & Company, Solicitors (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Thursday, 1 April 2004

4632/02 NATALIE JAYE KINGWRIGHT -v- DELLA PIN

JUDGMENT

1 MASTER: These are proceedings under the Family Provision Act 1982.

2 By summons filed on 17 September 2002 the Plaintiff, Natalie Jaye Kingwright, claims an order for provision for her maintenance and advancement in life out of the estate and/or notional estate of her late grandmother Fira Glucksman (to whom I shall refer as “the Deceased”).

3 In addition, by her summons the Plaintiff seeks an order that the time for the making of the present application be extended up to and including the date of the filing of the summons. That relief is necessary, since the proceedings were not instituted within the prescribed period of eighteen months after the death of the Deceased, that is, on or before 9 December 2001.

4 The Deceased, who had been born at Kiev in the Ukraine, died on 9 June 2000, aged seventy six. She was a widow at the time of her death. She left a will dated 23 June 1986 (together with two codicils thereto, dated respectively 6 November 1993 and 26 May 2000), probate whereof was on 6 September 2000 granted to Della Pin, the executor named in such will (who is the Defendant to the present proceedings).

5 By that will the Deceased gave certain specified items of jewellery and a legacy of $5,000 to the Plaintiff, and the residue of her estate to the Defendant, who was the only surviving child of the Deceased.

6 The principal asset in the estate of the Deceased was a shareholding in a company Excel Developments Pty Limited (to which I shall refer as ”Excel Developments”). Despite the estimated value of $600,000 attributed to that shareholding in the inventory of property, it was noted (on the third day of the hearing before me) that the parties agreed that the assets in the estate include shareholding in Excel Developments Pty Limited of a value of $411,491.

7 The only other asset disclosed in the inventory of property is a Daewoo Cielo motor vehicle, to which an estimated value of $11,000 was ascribed.

8 In addition, there were jointly owned assets disclosed in the inventory of property, being a bank account of $3,700 (held by the Deceased conjointly with the Defendant), and another bank account of $24,028 (held by the Deceased conjointly with Excel Developments).

9 The liabilities of the estate disclosed in the inventory of property totalled $28,437.

10 In calculating the value of the estate available for distribution the costs of the present proceedings must be taken into account. The costs of the Plaintiff are estimated to total about $35,500, whilst those of the Defendant are estimated to total $41,400.

11 Accordingly, the value of the distributable estate is about $317,000.

12 It is appropriate here to record that the company Excel Developments Pty Limited went into voluntary liquidation, and was deregistered on 3 September 2002.

13 The only asset of Excel Developments at the date of the death of the Deceased was real property situate at and known as 358 Livingstone Road, Marrickville. That property was sold on 21 December 2000 for $1 million. In consequence of the voluntary liquidation and subsequent deregistration of Excel Developments the four shareholders in that company received dividends. The Deceased was the principal shareholder. The other shareholders in Excel Developments were David Glucksman (son of the late Moses Glucksman and stepson of the Deceased), Mark Kingwright (son of the Deceased and father of the Plaintiff), and Katja Grynberg (née Glucksman) (daughter of the late Moses Glucksman and stepdaughter of the Deceased).

14 The Deceased had been married twice, firstly to George Pizerovski, in about 1946, and subsequently to Moses Glucksman, in about 1958. Of her first marriage the Deceased had one child, Mark George Kingwright, who was the father of the Plaintiff. Of her second marriage, to Moses Glucksman (who already had a son and a daughter by a previous marriage), the Deceased had two children, Della (now Mrs Pin), who is the present Defendant, and Clive (who died shortly after birth). In consequence, the Plaintiff is a niece of the half-blood to the Defendant (the Plaintiff’s father having been the half-brother of the Defendant).

15 The Plaintiff (who was born on 10 April 1976, and is now aged twenty-seven years) is the only child of the first marriage of her father, Mark Kingwright to her mother Jocelyn. They married in 1974 and divorced in 1980, when the Plaintiff was aged only four. Subsequently the Plaintiff’s father married Elaine in about 1982. In 1984 the Plaintiff’s father died by his own hand, leaving no will.

16 The Plaintiff asserts that she is an eligible person in relation to the Deceased, being such within paragraph (d) of the definition of that phrase contained in section 6(1) of the Family Provision Act, in that she is a grandchild of the Deceased and that she was partly dependent upon the Deceased. It will be appreciated that unless she can establish that she is an eligible person, the Plaintiff does not have the standing to bring the present proceedings.

17 There is no dispute that the Plaintiff, as the daughter of the son of the Deceased, is a grandchild of the Deceased. Nevertheless, the Defendants do not concede that the Plaintiff was partly dependent upon the Deceased.

18 It is necessary, therefore, at the outset, to resolve this question of dependency of the Plaintiff upon the Deceased, since unless the Plaintiff can establish that dependency, she is not an eligible person. If she is not, she does not have the standing to bring the present proceedings, and her claim must therefore be dismissed.

19 It was the case of the Plaintiff, upon her affidavit evidence, that after her parents divorced in 1980 she spent every afternoon with the Deceased, whilst the Plaintiff’s mother was in full-time employment. The Plaintiff also said that she spent all her school holidays with the Deceased, from 1993 until 1997, each school holidays being for a period of one to two weeks, and those periods occurring three or four times a year. The Plaintiff said that on one occasion she stayed with the Deceased for two months whilst the Plaintiff’s mother was travelling overseas. According to the Plaintiff, the Deceased made contributions towards her expenses and paid moneys into the Plaintiff’s bank account. Those moneys identified by the Plaintiff totalled $5,100 in the period from October 1994 until September 1997.

20 According to the Plaintiff’s affidavit evidence, the Deceased also paid in part for orthodontic treatment required by the Plaintiff. After the death of the Deceased the Plaintiff said that she incurred expenses for further orthodontic treatment, totalling $3,000, which expenses she is paying at the rate of $250 a month.

21 It was the evidence of the Plaintiff that she kept in very close contact to the Deceased to the time of her death, and that during periods whilst the Plaintiff was residing away from Sydney it was her practice to speak with the Deceased by telephone each week, or at least each fortnight. Further, whilst the Plaintiff was residing in Sydney she was in the habit of visiting the Deceased at least once a week.

22 According to the Plaintiff, whilst she was growing up she enjoyed what she described as an above average lifestyle, her family residing in commodious residences.

23 It would appear from the will and the two codicils of the Deceased that the Deceased was residing at 3 Shaw Street, North Bondi, at the time when each of those testamentary instruments was executed, and she appears to have continued to reside there to the time of her death. It would appear that the Deceased enjoyed a life estate in that residence under the terms of the will of her second husband, Moses Glucksman, and that upon the death of the Deceased that residence devolved upon the Defendant under the terms of her father’s will.

24 The evidence of the Plaintiff’s mother, Mrs Jocelyn Kingwright, discloses that at the time of her divorce from the Plaintiff’s father, the family was residing at Mittagong, and that already at that stage, in 1980, the Deceased was residing at 3 Shaw Street, North Bondi. In 1987, as a result of a work transfer of Mrs Jocelyn Kingwright’s de facto partner, she, her partner and the Plaintiff removed from Vaucluse where they were residing in Sydney to Mount Eliza near Melbourne, where they resided in comfortable homes with many luxuries and maintained a very comfortable lifestyle. The Plaintiff said that whilst at school in Melbourne, she was in the habit of flying to Sydney every two to three months to spend time with the Deceased (those flights being at the expense of the Plaintiff’s mother and her mother’s partner).

25 Various pieces of jewellery given to her by the will of the Deceased (to which a total value of $7,000 was ascribed by the Defendant), together with the legacy of $5,000, were received by the Plaintiff in January 2001 and October 2000 respectively. One of the items referred to in the will, being “Gold 1898 American Twenty Dollar Coin”, apparently could not be located by the Defendant, and in place thereof the Defendant gave to the Plaintiff a number of other items of jewellery, being a gold ring with lapis lazuli stone (having an estimated value of about $1,000), three gold friendship rings set with coloured stones (having an estimated value of approximately $500) and a pearl ring (having an estimated value of about $500). However, the Plaintiff disputes that she received the pearl ring. Further, the Plaintiff disputes the value of the other items of jewellery received by her which had belonged to the Deceased.

26 Mark Kingwright, the father of the Deceased, became entitled, upon the liquidation of Excel Developments, to receive a net distribution of $31,486. On 5 February 2001 the Plaintiff made application for administration of the intestate estate of her late father. However, a requisition has been raised in the Probate Registry of the Court in respect to that application, arising from the fact that the Plaintiff’s father was married at the time of his death, to Mrs Elaine Kingwright, and that in the absence of evidence that that widow has disclaimed her interest in the estate of Mark Kingwright, the Plaintiff herself has no beneficial interest in the estate, and thus no entitlement to a grant of administration. That requisition states that in consequence the Court “will prefer that the Public Trustee administer the estate”.

27 Of course, it is open to the Plaintiff to make a claim for provision out of the estate of her late father. However, she has not chosen to do so.

28 The Plaintiff, after completing her schooling, attended the Southern Cross University, where she obtained the degree of Bachelor of Business in 2001. According to the Plaintiff’s substantive affidavit in support of the summons, she was at that time trying to establish herself in a “tour guide English language business”. Her business plan was annexed to that affidavit. It would appear that the Plaintiff and her partner, Matthew Reddy, spent some time (a period of a year and a half) in Japan, teaching the English language. It is their intention, according to the Plaintiff, to establish a tour guide English language business in the Northern Rivers area of New South Wales. The Plaintiff stated that the establishment of such a business would require about $200,000, and that her half share contribution to the establishment of that business would be (somewhat curiously) also in the amount of $200,000. The Plaintiff offered no explanation or justification for these asserted amounts.

29 According to the Plaintiff, she and Matthew Reddy spent exactly eighteen months living in Japan, from January 1999 to June 2000, being there on a working holiday visa. Whilst in Japan they purchased a second-hand sports car which they imported into Australia and sold in March 2000 for $25,000. The Plaintiff and Mr Reddy shared equally the proceeds of that sale.

30 It was the evidence of the Plaintiff that she was unemployed for six months between July 2000 and December 2000. She subsisted on her savings (from the sale of the sports car) during that period, and then removed from Melbourne to the Southern Cross University at Lismore. The Plaintiff said that she had expended the $5,000 which she received from the estate of the Deceased towards orthodontic treatment (in an amount of $3,000) and the balance towards the costs of the present proceedings.

31 According to her affidavit of 18 July 2003 the Plaintiff at that time was employed on a casual basis as an emergency teacher at Swinburne University, that employment being expected to terminate at the end of June 2003. She was then proposing to begin a post-graduate course on teaching English to students of other languages at a TAFE college at the end of July 2003, with a view to improving her employment prospects. At that time the Plaintiff stated that she had a credit card debt of $3,000.

32 The foregoing information concerning the Plaintiff’s financial and material circumstances was supplemented in her affidavit of 22 September 2003, where she stated that she had been receiving Newstart Allowance since January 2002, the amount of such allowance being adjusted depending upon the Plaintiff’s part-time earnings. The maximum amount which she has received is $442.23 a fortnight. She will receive Newstart Allowance until she obtains full-time employment in teaching or until she starts her own business.

33 In her affidavit of 1 December 2003 (filed on the first day of the hearing, 2 December 2003) the Plaintiff gave what she described as up to date information concerning her current circumstances.

34 According to that affidavit the Plaintiff receives about $2,000 gross a month. That income is derived from sessional teaching at Swinburne University. She has full-time work until 19 December 2003. In consequence of her receiving income from employment over twelve consecutive weeks her Newstart Allowance had ceased. However, she will be reapplying for Newstart on 19 December 2003. The Plaintiff in that affidavit sets forth current expenses totalling $2,034 (which I assume to be per month). The Plaintiff’s assets are disclosed as consisting of:

Motor car - $4,500

Household furniture (half share) - $2,000

Jewellery and personal effects - $2,500

35 The Plaintiff discloses the following current liabilities:

Personal loan from John Cooper - $2,500


DEET Austudy Supplement loan - $18,317

HECS debt - $8,027

ANZ Credit Card - $3,971

CBA Credit Card - $2,700

Outstanding orthodontic treatment - $3,000

Total: $35,815

36 The Plaintiff has recently completed a graduate certificate in Teaching English to Students of Other Languages (TESOL). She also has aspirations ultimately to commence her own business. However, she states that as she has considerable liabilities and no employment security it is impossible for her to obtain a bank loan which would be necessary to start a business of her own.

37 The Plaintiff and her partner, Matthew Reddy, have been together for almost nine years. According to the Plaintiff, Mr Reddy commenced employment in mid-2003 in business development with Landcare Australia. The Plaintiff expressed the aspiration of herself and Mr Reddy eventually to move north and commence the study tour business. She also stated that they would like to purchase a house, settle down and start a family.

38 In her affidavit of 1 December 2003 the Plaintiff set forth what she would do with any provision which might be made for her out of the estate of the Deceased. Her intentions included re-payment of her various debts and liabilities; tooth implant; laser corrective surgery to the eye; surgical procedure to her foot in respect of a bunion; holiday with Mr Reddy; commencement of the study tour business; purchase of a home; investment in superannuation and other areas for her future.

39 The claim of the Plaintiff must be approached in the light of any competing claims upon the testamentary bounty of the Deceased. The only such competing claim is that of the Defendant, who is the only surviving child of the Deceased. That competing claim was recognised by the terms of the will of the Deceased, under which the Defendant was the principal chosen object of the testamentary beneficence of her mother.

40 It will be appreciated that the Plaintiff must establish her own claim upon its own merits. The competing claim of the Defendant upon the testamentary beneficence of the Deceased, a claim which was recognised by the terms of the will of the Deceased, cannot in any way enhance the claim of the Plaintiff. That competing claim of the Defendant can have the effect only of reducing, or even extinguishing, any order for provision an entitlement to which the Plaintiff might otherwise have established.

41 The Defendant was born on 24 August 1959, and is presently aged forty-four. She has two children, Dominique (who was born on 25 January 1986 and is presently aged eighteen years) and Marco (who was born on 2 May 1989 and is presently aged fourteen years). The Defendant and Mino Pin, the father of her children, were divorced in 1998. Although she shares with Mr Pin custody of the children, the Defendant is their primary carer.

42 The Defendant’s elder child Dominique was born with a condition known as microcephaly, in consequence whereof she is profoundly intellectually and physically disabled. Medical evidence concerning Dominique’s condition and evidence from the Defendant concerning the nature of her responsibilities for and role towards Dominique, especially in her capacity as Dominique’s primary carer, together with the details of the financial costs associated with Dominique’s maintenance, education and upbringing, were placed in evidence before the Court.

43 The house property at 3 Shore Street, North Bondi (which apparently devolved upon the Defendant in consequence of the death of her father, Moses Glucksman) was sold by her in December 2001 for $770,000. From the proceeds of that sale the Defendant and her current de facto partner, Ervin Zurell, purchased in November 2001 a home unit at 53/228 Moore Park Road, Paddington for $1,500,000 of which the Defendant advanced one half of the purchase price. The Defendant and Mr Zurell are currently attending relationship counselling. If that relationship comes to an end it will be necessary for the Paddington unit to be sold, and for the Defendant to acquire a residence for herself and her two children.

44 The Defendant is currently involved in proceedings against her former husband in the Family Court of Australia. Until September 2003 the Defendant was paying to her former husband $111 a month by way of child support. The amount of those payments has now been reduced to nil. However, the Plaintiff was in arrears in an amount of almost $500 in respect to child support by the end of September 2003. The Defendant’s former husband proposes to return to Europe. In that event, the total responsibility for the custody, care and maintenance of her two children will rest upon the Defendant. For respite care for Dominique it will be necessary for the Defendant to rely upon various voluntary organisations.

45 I have already referred to the fact that the present proceedings were instituted out of time, about six months after the expiry of the prescribed period (being, as provided by section 16(1) of Act, the period of eighteen months after the death of the Deceased).

46 For that circumstance the Plaintiff offered the following explanation. The Plaintiff in fact filed a summons on 23 November 2001, in proceedings 5669 of 2001, that summons having been filed only about two weeks before the expiry of the prescribed period. However, that summons named Leslie Michael Steven Pozniak as Defendant.

47 Mr Pozniak, who is the solicitor for the Defendant in the present proceedings, was in the will of the Deceased named as substitutionary executor, in the event of the Defendant predeceasing the Deceased or being unable or unwilling to act as executor. The circumstances in which the Plaintiff instituted proceedings naming Mr Pozniak as Defendant are set forth in the judgment of Acting Master Berecry of 16 August 2002 upon the hearing of an application by Mr Pozniak for dismissal of the proceedings against him.

48 Even accepting that the photocopy of the will which was made available to the Plaintiff by the solicitors for the Defendant was not in an entirely legible form, there appears to have been little reason why the Plaintiff and her legal advisers could not have conducted a probate search, since the illegible copy of the will was made available in about August 2001, whilst probate had been granted on 6 September 2000, almost a year earlier. A probate search would be a usual, indeed a necessary, preliminary to the institution of proceedings under the Family Provision Act, since, by section 7 of that Act, an order for provision can only be made in relation to a Deceased person “in respect of whom administration has been granted”.

49 Whilst the Defendant does not point to any prejudice resulting from the proceedings not having been instituted within the prescribed period, nevertheless the Defendant opposes the order for extension of that period which is now sought by the Plaintiff. It will be appreciated that there is no purpose in making an order for the extension of the prescribed period unless the Plaintiff has otherwise established an entitlement to an order for provision. Accordingly, I shall consider the application for such extension after I have arrived at my conclusions concerning the entitlement of the Plaintiff otherwise to an order for provision for her maintenance and advancement in life out of the estate of the Deceased.

50 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.

51 I have had the benefit of receiving written outlines of submissions and chronologies from Counsel for the respective parties. Those documents will be retained in the Court file.

52 As I have already observed, the Plaintiff must at the outset establish that she is an eligible person in relation to the Deceased. In order to do so, she must establish that she was partly dependent upon the Deceased.

53 Dependency connotes the provision of shelter and sustenance. Where, as here, the Plaintiff was residing with her mother and was supported by her mother, the fact that from time to time she may have spent holidays with her grandmother, the Deceased, and the fact that the Deceased may have enhanced the Plaintiff’s lifestyle with gifts (including gifts of money) do not have the consequence that the Plaintiff was partly dependent upon the Deceased.

54 The present case is very different from those cases where a grandmother is, in effect, a surrogate parent to an applicant (see, for example, Tsivinsky v Tsivinsky (Court of Appeal, 5 December 1991, unreported); Seitz v Morgans [2001] NSWSC 1188, 20 December 2001).

55 It is my conclusion, therefore, that the Plaintiff was not partly dependent upon the Deceased. Therefore she is not an eligible person in relation to the Deceased. In consequence, she does not have the standing to bring the proceedings, and her claim must be dismissed.

56 Despite the conclusion which I have just expressed, which is fatal to the Plaintiff’s claim, I consider it appropriate, nevertheless, to proceed to a consideration of the other matters upon which the Plaintiff grounded her claim in the present proceedings.

57 It cannot be too strongly emphasised that it is incumbent upon an applicant for provision to place before the Court as fully and as frankly as possible all available information concerning the financial and material circumstances of the applicant. That the Plaintiff has signally failed to do in the instant case.

58 Areas in which the evidence of the Plaintiff concerning her financial and material circumstances was incomplete or inconsistent or where the evidence changed from that given by affidavit to that which emerged under cross-examination included the following.

59 The Plaintiff was questioned under cross-examination as to the source of a certain cash amount of $2,745 which she had paid on 11 May 2001 to Dr Roger Peate. At first she said that that amount represented part of the proceeds of sale of the motor car. Subsequently during her cross-examination she said that the proceeds of the sale of the motor car were used to purchase shares. She then said that the amount of $2,745 was paid out of the $21,500 withdrawn from the cash management account on 11 May 2001, but that that payment was for the purchase of shares. The contract note, in the name of Mr Reddy, reveals that that sum was paid for the purchase of shares. It follows that the cash amount of $2,745 could not have come out of that payment. There were no banking records produced to show the source of that cash payment of $2,745. When further pressed on this point, the Plaintiff said that that money came from the proceeds of sale of shares. That explanation cannot stand either, since the amount of $2,745 was paid on 11 May, that being the same date as that upon which the shares were purchased.

60 It is a legitimate inference that the Plaintiff had access to unexplained and unidentified sources of funds. (It should also here be observed that there was no reference whatsoever to the purchase or sale of shares, either by the Plaintiff or by Mr Reddy, in the affidavit evidence filed on behalf of the Plaintiff.)

61 In her affidavit of 18 July 2003 the Plaintiff said that in the approximate six month period, June-December 2000, she had a total expenditure of $18,000 (including living expenses of $11,000), that during that period she was unemployed, and that the $18,000 was funded as to $12,500 from the sale of the motor car. However, it will be observed that the motor car was not sold until March 2001 some three months after the end of that six month period. Once again, it is a legitimate inference that the Plaintiff must have had some other source of funds from which her living expenses were paid. She subsequently attempted to explain the foregoing inconsistencies by saying that the “savings and expenses” referred to in paragraph 9 of her affidavit were for the period June 2000 to December (not January) 2001 and that her living expenses for the earlier six month period of June 2000 to December 2000 were in the range of only $3,000-$5,000.

62 In respect to the motor car, the proceeds of sale in March 2001 were deposited into the Plaintiff’s bank account. On 11 May 2001 $21,500 was withdrawn from that account and shares were purchased in the name of Matthew Reddy. Those shares were subsequently sold, during 2001 and 2002, and the proceeds were paid into Mr Reddy’s bank account. Neither the purchase nor the sale of those shares was disclosed in the affidavit evidence of the Plaintiff. The Plaintiff clearly had a beneficial interest (probably the sole beneficial interest) in those shares and in the proceeds of sale thereof. The payment of the proceeds of sale of those shares into Mr Reddy’s bank account (rather than into the Plaintiff’s bank account), a fact which also was not disclosed in the Plaintiff’s evidence, could have been intended only to conceal this transaction from the Court.

63 The Plaintiff asserted that she is paying off the cost of her orthodontic treatment at the rate of $250 a month (affidavit of 4 May 2002). In her affidavit of 18 July 2003 the Plaintiff said that an amount of $3,000 had been set aside for orthodontic work (“to pay for my braces”) from the $5,000 which she had received by way of legacy from the estate of the Deceased. In fact, the Plaintiff had made the final payment of $2,745 for this orthodontic work to Dr Roger Peate in cash on 11 May 2001 (that is, more than sixteen months before the commencement of the proceedings). The actual orthodontical procedure had been performed by Dr Peate only a few days earlier, on 7 May 2001. The assertion that she had been paying off that amount at the rate of $250 a month and the subsequent assertion that she had put aside $3,000 from her legacy to pay that amount were both false and, presumably, were deliberately intended to mislead the Court.

64 The foregoing constitute instances of the failure of the Plaintiff to fulfil her obligation to place before the Court as fully and as frankly as possible all available information concerning her financial and material circumstances. In addition, they are matters which adversely affect the credit of the Plaintiff. Other matters which adversely affect her credit include the following.

65 It emerged under cross-examination that from her part-time employment as a printer in 1996 the Plaintiff had earned almost $12,000, but that those earnings and that employment were not included in her appropriate income tax return. Additionally, in the latter half of that year the Plaintiff had earned further income of about $6,000.

66 At paragraph 24 of her affidavit of 4 May 2002 the Plaintiff said that she was at that time working for Duchamp, a retail clothing shop, in a temporary capacity for three weeks. Under cross-examination she first said that she worked for that employer in January and February. She then changed her evidence and said that she worked there for a period of six weeks. She also said that she went back to work for Duchamp in June/July.

67 In her application for a Newstart allowance the Plaintiff falsely denied that she was in a de facto relationship. Under cross-examination she admitted that in this regard she had deliberately misled Centrelink in order to obtain a financial benefit.

68 At paragraph 6 of her affidavit of 18 July 2003 the Plaintiff said that she had never received any advice from Mr Pozniak. However, under cross-examination she admitted to receiving two letters of advice from him, and she further admitted that she had misled the Court in this regard.

69 At paragraph 13 of her affidavit of 4 May 2002 the Plaintiff said that she stayed with the Deceased on each school holidays three or four times a year. Under cross-examination, when confronted by the fact that at the relevant time there were only three school holidays each year, the Plaintiff conceded that she only spent about two holidays each year with the Deceased, rather than the three or four originally alleged.

70 In her affidavit of 4 May 2002 the Plaintiff referred to her proposed business venture, stating in paragraph 18 that this enterprise was to be in the joint ownership of herself and Mr Reddy. Under cross-examination the Plaintiff said that the business was to belong to her alone, and that Mr Reddy was merely going to assist therein. The following day under cross-examination the Plaintiff said that the business name had to be registered in her name alone, whereas on the preceding day she had said that the business name had in fact been registered in the names of both herself and Mr Reddy. She continued to maintain that the business was to belong to her alone, even though at paragraph 18 of her affidavit she spoke of the amount which she was seeking being for “my half”.

71 At page 5 of the “Business Plan for Jabiru English School (Incorporating Jabiru Tours)” which is Annexure D to the Plaintiff’s affidavit of 4 May 2002, she asserts that “She speaks Japanese competently”. When questioned in this regard under cross-examination she denied such an ability.

72 The foregoing matters reflect most unfavourably upon the credit of the Plaintiff. On occasion, I considered that the Plaintiff was deliberately lying in her evidence. Where in respect to any matter in issue between the parties the evidence for the Plaintiff consists merely of her uncorroborated oral assertion, I do not accept that evidence.

73 It is in my view of considerable significance that no evidence was placed before the Court by the Plaintiff’s partner Mr Reddy, with whom she has been in a relationship for almost nine years. That absence of evidence is especially significant, since the fulfilment of the asserted needs of the Plaintiff would, upon her evidence, equally benefit Mr Reddy.

74 The Plaintiff is a young woman now aged twenty-seven years. She has tertiary qualifications and has worked overseas, and (despite her denial) is competent in the Japanese language. She is an intelligent young woman, who has the potential for making her way in business or in a profession. She has for the past almost nine years been living in a stable relationship with a de facto partner who chooses not to reveal to the Court his financial and material circumstances.

75 The asserted needs of the Plaintiff include claims that the estate of the Deceased should fund for her a business enterprise and should pay off a HECS debt (which, in any event, does not require to be paid at the present time) and other debts. (It is unlikely, however, that Mr Cooper, her mother’s former partner, will ever call for repayment of the loan of $2,500.) In addition, the Plaintiff in her affidavit of 1 December 2003, asserted needs (although more in the nature of a wish list) which included also dental, optical and surgical treatment, a holiday, purchase of a residence, and investments. However, the responses of the Plaintiff under cross-examination concerning her current lifestyle and the various items which she is in the habit of purchasing did not support her assertion of any current relevant need. For example, the Plaintiff said, “If I find something I like, I buy it”. She spends $200 a month on the purchase of shoes, acquiring ten new pairs of shoes a year. She agreed under cross-examination that, whilst she has accumulated nothing by way of savings, she would like to continue “living a high lifestyle”. In respect to the asserted need of furnishing her residence, the Plaintiff spoke of the “place where we had our furniture made”.

76 I am not persuaded that the Plaintiff has established the first stage of the two-stage process identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 at 208-209.

77 I have already referred to the entitlement of the Plaintiff’s father to an interest upon the liquidation of Excel Developments, and to the fact that the Plaintiff has chosen not to make any claim for provision out of her late father’s estate. That fact is of significance in regard to the asserted needs of the Plaintiff. Whilst material presently before the Court concerning the intestate estate of the Plaintiff’s father and any competing claim upon that estate by the widow of the Plaintiff’s father is admittedly somewhat scant, nevertheless the available evidence in that regard suggests that the Plaintiff would have reasonable prospects of receiving an order for at last some provision out of the estate of her late father. Yet she has chosen not to make such a claim, but to pursue a claim against the estate of her grandmother.

78 But even if, contrary to the view which I have already expressed, the Plaintiff has established that she had been left without adequate provision for her proper maintenance, education and advancement in life, it would still be necessary for her to fulfil the requirement of section 9(1) of the Family Provision Act, since she is an eligible person only within paragraph (d) of the definition of that phrase contained in section 6(1) of the Act. Section 9(1) requires that in the case of an application by an applicant who, as here, falls within that paragraph of the definition, “the Court shall first determine whether, in its opinion, having regard to all the circumstances of the case (whether past or present), there are factors which warrant the making of the application”. That phrase was considered by McLelland J (as he then was) in Re Fulop Deceased (1987) 8 NSWLR 679. His Honour, at 681, said of “this poorly conceived and clumsily expressed subsection (which formed no part of the Draft Bill produced by the Law Reform Commission)”,

[T]he “factors” referred to in the subsection are factors which when added to facts which render the applicant an “eligible person” give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased.”

79 In the instant case, I do not consider that a grandchild of a testator who is residing with and is dependent upon at least one of her own parents throughout her own childhood and schooling, but who nevertheless may have been the recipient of grandmotherly gifts and generosity and who from time to time spent relatively short periods in the grandmother’s residence has by those facts established factors which warrant the making of the application. The Court is expressly enjoined by section 9(1) to “refuse to proceed with the determination of the application and to make the order unless it is satisfied that there is those factors”. I am not satisfied that there are those factors.

80 But even if, contrary to the conclusions which I have just expressed (that the Plaintiff is not an eligible person, that she has not been left without adequate provision for her maintenance, education and advancement in life, and that there are no factors which warrant the making of the application), the Plaintiff were otherwise to have established an entitlement to an order for provision, it would be necessary for the Court to approach the claim of the Plaintiff in the light of the competing claim of the Defendant.

81 I have already observed that that competing claim of the Defendant can in no way enhance the claim of the Plaintiff. It can, however, reduce, or even extinguish, an order for provision an entitlement to which the Plaintiff might otherwise have established. In the event (non-existent in my conclusion in the instant case) that the Plaintiff might otherwise have established an entitlement to an order for provision, the competing claim of the Defendant is overwhelming.

82 The Defendant is the chief chosen object of the testamentary beneficence of the Deceased. She is the only surviving child of the Deceased. As such she would generally be regarded as the natural object of testamentary recognition by her mother. In addition, the Defendant is the principal carer of a severely disabled daughter, who suffers both physical and intellectual disability and retardation. The Defendant is in a de facto relationship, the future of which is at present uncertain. She must also support her younger child, who is still at school. The competing claim of the Defendant is such that even if the Plaintiff were otherwise to have established an entitlement to an order for provision, that competing claim would have the effect of totally extinguishing any such order in favour of the Plaintiff. The Defendant requires the entirety of the benefit given to her by the will of the Deceased.

83 In the light of my foregoing conclusions, it is not necessary for me to proceed to a consideration of the Plaintiff’s claim that an order in her favour be made out of the notional estate of the Deceased (in consequence of the distribution by the Defendant to herself of the principal assets in the estate). Neither is it necessary for me, regarding the application for extension of time, to do more than merely express the view that even if the Plaintiff had established the various factors of the nature considered by Young J (as he then was) in Massie v Laundy (7 February 1986, unreported) and by Cohen J in Dare v Furness (1998) 44 NSWLR 493 at 501, the extension of the prescribed period in the circumstances of the instant case would constitute merely an exercise in futility. There is no purpose in extending the prescribed period if the Plaintiff cannot succeed on substantive grounds.

84 I summarise as follows my conclusions.

85 Firstly, I am not satisfied that the Plaintiff, although a granddaughter of the Deceased, was ever partly dependent upon the Deceased. It follows, therefore, that she is not an eligible person within paragraph (d) of the definition of that phrase contained in section 6(1) of the Act. In consequence, she does not have the standing to bring the present proceedings.

86 But, even if (contrary to my foregoing conclusion) the Plaintiff is an eligible person in relation to the Deceased, I am not satisfied that there are factors which warrant the making of the present application. In consequence, therefore, the Court, as required by section 9(1) of the Act, must refuse to proceed with the determination of the application and to make the order sought.

87 But, even if (contrary to my foregoing conclusion) the Plaintiff has established that there are factors which warrant the making of the application, I am not satisfied that the Plaintiff has established that she has been left without adequate provision for her maintenance, education and advancement in life. In this regard, I refer to the lack of frankness on the part of the Plaintiff in placing before the Court full information concerning her financial and material circumstances (and those of her de facto partner). As I have already observed, I consider that the foregoing lack of frankness was in many instances a deliberate attempt to mislead the Court. Further, I regarded the Plaintiff’s evidence in many respects as being totally unreliable, and at times as being deliberately false.

88 It follows from the foregoing that it is not necessary for me to embark upon a detailed consideration of the circumstances in which the Plaintiff failed to institute the proceedings within the prescribed period, or of the application of the Plaintiff for extension of that period. In this regard, suffice it to say that I am not persuaded that the provision to the Plaintiff of a copy of the will which was in part illegible constitutes, in the circumstances of this case, sufficient explanation for the failure of the Plaintiff to institute the proceedings within the period of eighteen months after the death of the Deceased. I would, in any event, therefore, decline to make an order for the extension of the prescribed period.

89 Further, in the light of my foregoing conclusions, it is unnecessary for me to proceed to a consideration of notional estate of the Deceased, and of property which might be designated as such notional estate, for the purposes of any order for provision in favour of the Plaintiff.

90 But even if (contrary to each of my foregoing conclusions), the Plaintiff were to have otherwise established an entitlement to an order for provision out of the estate of the Deceased, the competing claim of the Defendant is overwhelming, and would, in any event, have the effect of totally extinguishing the entitlement of the Plaintiff to such an order for provision.

91 It follows, therefore, that the claim of the Plaintiff will be dismissed.

92 I make the following orders:

(1). I order that the proceedings be dismissed.

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

(3). I order that the Defendant be entitled to recoup from the estate of the late Fira Glucksman (“the Deceased”) the difference between the foregoing costs which she may recover from the Plaintiff pursuant to order 2 hereof and the costs of the Defendant on the indemnity basis.

(4). The exhibits may be returned.

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Last Modified: 05/26/2004