Langford, Owen v Cleary, Shirley May
[1998] TASSC 37
•24 April 1998
37/1998
PARTIES: LANGFORD, Owen
v
CLEARY, Shirley May
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M469/1989
DELIVERED: 24 April 1998
HEARING DATE/S: 23, 24, 25, 26, 29, 30 September and
1 October 1997
JUDGMENT OF: Slicer J
CATCHWORDS:
Succession - Family provision and maintenance - Failure by testator to make sufficient provision - Duty of testator - Duty to children - Adult son.
Bosch and Another v Perpetual Trustee Company Limited, and Others [1938] AC 463, applied.
Gerlach, Gerlach, Pointon and Thorsen v Public Trustee 153/1997; O'Connor v Tasmanian Trustees Limited B47/1995, followed.
Hunter v Hunter (1987) 8 NSWLR 573; Anderson v Teboneras [1990] VR 527, considered.
Aust Dig Succession [308]
Evidence - Facts excluded from proof - On grounds of privilege - Mediation - Evidence of "without prejudice" settlement negotiations - Admissibility - Whether subsequent evidence admissible.
Biala Pty Ltd v Mallina Holdings Ltd (1990) WAR 174, followed.
AWA Ltd v Daniels (t/as Deloitte Haskins & Sells) and Ors (1992) 7 ACSR 463, considered.
Field v Commissioner for Railways for New South Wales (1957) 99 CLR 285, applied.
Aust Dig Evidence [72]
REPRESENTATION:
Counsel:
Applicant: T J Williams
Respondent: J E Green
Solicitors:
Applicant: Gunson, Pickard and Hann
Respondent: John Green
Judgment category classification:
Court Computer Code:
Judgment ID Number: 37/1998
Number of pages: 12
Serial No 37/1998
File No M469/1989
IN THE MATTER OF THE TESTATORS FAMILY
MAINTENANCE ACT 1912
OWEN LANGFORD v SHIRLEY MAY CLEARY
REASONS FOR JUDGMENT SLICER J
24 April 1998
The applicant is the 62 year old son of the testator who bequeathed the whole of his estate to his daughter, the respondent, the only other child. The testator died on 15 January 1989, leaving assets then valued in the sum of approximately $88,000, worth, at the date of hearing, between $90,000 and $110,000. There is no claim that the respondent is in need of the benefit of the inheritance. She has adequate means of income and capital. There is evidence that the testator and the applicant did not have (at least until some days before the death of the father) a good relationship for a long period of time. The testator had made a will in July 1985 in which he had devised his estate to his daughter. In October 1988, the testator revoked that will and appointed the respondent sole executrix and declared her to be the beneficiary. The similarity in the terms of each will indicates a consistent intention on the part of the testator to benefit only one of his two children. At all material times the testator had a good relationship with the respondent.
The applicant claims entitlement by reason of:
Ill health.
Absence of income and capital assets.
Necessity.
The claim of entitlement is subject to a two-phase test. The first is whether, at the date of the testator's death, a just parent judged by the application of the standard of the community, had a moral responsibility to make provision for his or her child, and, if so, whether at the time of the hearing of the application for entitlement, the subjective condition of that child was such as to justify provision from the estate on the basis of need.
The questions of need and moral claim have been subsumed in consideration of the applicant's circumstances as of the date of death, relations between the testator and the applicant and the extent of the estate and the strength of other claims (In Re Harrison (Deceased), Thomson v Harrison [1962] NZLR 6, Re Elwell [1977] Qd R 141). It has been defined as a consideration of a wise and just parent, judged in accordance with prevailing community values (Bosch and Another v Perpetual Trustee Company Limited, and Others [1938] AC 463). Evidence of the quality of the relationship, basis of disentitlement, changed social values, age and circumstance of the child, or mistaken beliefs held by a parent are matters relevant to the first question, whilst the particular physical and economic circumstances of the claimant are relevant to the second.
Two further matters are raised by this application. The first is whether the quality of the relationship gives rise to moral entitlement. The second is whether the age of a descendant militates against entitlement. It is difficult in a case involving family history and relationship, competing interests and the circumstances of descendants, to separately examine evidence which is relevant to the above questions. It is convenient to set out the evidence relevant to the two primary questions in chronological sequence and then to apply the relevant legal principles to the findings made in relation to those areas of evidence.
History of Relationship
The applicant was born in 1928. As he grew up, he helped his parents by working in casual forms of employment as and when he could. In 1945 he commenced work with a firm of accountants and assisted in his father's work of a fisherman by maintaining books of account and attending to purchases and sales. He lived at home until 1951, the year in which his mother died. Following his own marriage in 1952, the applicant lived at Kingston and claimed that he had sold his home to help his father and uncle purchase a fishing boat, following which he returned with his family to live at his father's residence for some three years. In 1962, the applicant and testator commenced a business in market gardening and flower production. It would appear that although it was a joint exercise, each maintained his own property, the applicant having purchased adjoining land in 1961, and pooled resources for the eventual product. In 1967, much of the enterprise ceased due to damage caused by bush fires. During the period of the joint enterprise and beyond, the applicant continued in his employment as a paint technologist until 1971. In that year, he commenced a florist retailing business in Margate, an outlet through which his father sold produce until its sale in 1978. In that year, the applicant separated from his second wife whom he had married in 1970 following the death of his first wife in 1969. His second wife made no property claim with respect to the business, and in the following year he purchased further adjoining land, part of which, following subdivision, he gave to his son. He remarried in 1984 and he and his wife conducted a florist shop in Kingston. Following the breakdown of that marriage, the applicant was involved in extensive family law proceedings, resulting in the payment by him of moneys for property settlement and costs.
During the period 1978 - 1988 there were few, if any, business dealings between father and son. The extent of their familial relationship is the subject of disputation. Suffice to say there was no economic dependency of the applicant on his father.
Relationship and Moral Claim
The questions of the quality of the relationship and the concurrent moral obligation have often been the subject of judicial comment and criticism (Bosch v Perpetual Trustee Company Limited (supra), Coates v National Trustees, Executors & Agency Co Ltd (1956) 95 CLR 494, Singer v Berghause (1994) 181 CLR 201 and Grey v Harrison [1997] 2 VR 359), and have recently been extensively examined in this jurisdiction by Underwood J, Gerlach, Gerlach, Pointon and Thorsen v Public Trustee 153/1997, and require no elaboration in this judgment. I would follow the approach taken by Underwood J, when he observed at 6:
"With respect, I think that there is a great deal to be said for the observations of the third member of the Victorian Court of Appeal in Grey v Harrison (supra), Callaway JA, when he said at 366 that "[i]t may well be that too much has been read into the dictum and that ultimately it is intended only as a warning against departing too far from the language of the statute." For my part, I see very little difference between the test as expounded by Salmond J in In re Allen (supra) and that propounded obiter dicta by the High Court in Singer. After all, Salmond J's wise and just testator, sitting in his armchair, was always just as hypothetical as that ubiquitous passenger sitting in his seat on the Clapham omnibus. Just as the reasonable person's perspective is used as the yardstick to measure the conduct of a defendant in a negligence case, so is the conduct of a wise and just, rather than fond and foolish testator, used as a yardstick to measure the conduct of the deceased in a Testators Family Maintenance Act case."
A secondary question affecting entitlement concerns the quality of relationship between claimant and testator. In some respects, that question is inextricably linked with that of an "adult child". The Testators Family Maintenance Act 1912 (Tas) ("the Act"), s3(1), provides that the court has discretion to order that provision be made from a deceased's estate for any person who is "left without adequate provision for his proper maintenance or support thereafter." The question of moral responsibility becomes that of interpretation or understanding of the wishes of the testator. A testator is entitled to have his or her wishes respected by the courts. Contrary is the proposition that a spouse or parent ought not exclude benefit from another by reason of prejudice, misbelief or sheer "cussedness". Thus, a testator who fails to make provision for a "deserving" dependant because of a "mistaken" or "unacceptable" belief ought to have his or her intentions "modified" by the application of a "socially desired" statute. Such accords with the purpose of the legislation. But intervention should not be extended to circumstances where the decision of the testator is, judged by community standards, reasonable by reference to a particular attitude to a potential beneficiary. It is in that context that the question of "moral responsibility" or "entitlement" ought be regarded. The Act applies where a testator has regard to standards or values which are not acceptable to the society existent at the date of death and whose adherence to such standards results in detriment to a person otherwise entitled. The Act has no application to the exclusion of a person who claims entitlement solely on the basis of need at the time of the hearing of the application.
The relationship existent at the time of death is a matter relevant to the question of whether the testator "as a just and reasonable parent" had an obligation to make provision for the applicant.
Position of Adult Child
The applicant was aged 54 at the date of death of his father. The legislation was intended (inter alia) to make provision for children dependent upon their parent. An adult descendant who had made his or her way in life could hardly expect to have recourse to the legislation simply because a sibling has received greater benefit. A disabled or disadvantaged child could expect benefit because a caring and fair parent could be expected to make provision for a child rendered disadvantaged by reason of incapacity, misfortune, chosen relationship and the like, irrespective of age. Entitlement would be more readily assumed if the caring parent was unaware of the circumstances of the child. In cases where the parent had disinherited a child by reason of prejudice (eg, marriage to a person of a different religion or race), the law ought pay regard to a notion of "just parent" but it is not required to make a similar assumption where the claimed need is based solely on "economic circumstance". The approach has historically been based on the characterisation of the term "adult son", although it should now be considered by reference to the term "adult child". There is a divergence of approach between the Victorian and New South Wales courts in relation to the issue of whether the characteristics pertaining to an adult child are pertinent to the responsibility of a "just and responsible parent". In Hunter v Hunter (1987) 8 NSWLR 573, Kirby P stated at 580:
"The notion that an able-bodied adult son is in a special class, prima facie disentitled to the benefits of the Act, dies hard in this field of jurisprudence: see Re Fuller (1917) 17 SR (NSW) 348; 34 WN 136; Re Sherrard (1938) 55 WN (NSW) 38 and McCosker v McCosker (1957) 97 CLR 566. It is evident, in terms, in the judgment of Barwick CJ in Hughes (ibid at 139):
'... He was an able-bodied adult able to fend for himself. For my part, the fact that he had long trespassed on the indulgence of his parents gave him no claim on their continuing bounty.'
It is my opinion that Helsham CJ in Equity, in his approach to the claim of the appellant, adopted this now discarded categorisation. There is no warrant for it in the Act. It limits, in an unnecessary and artificial way, the consideration of all of the circumstances of the case. It frustrates the object of the statute. It diverts attention from the focus which the Act requires upon the proved needs of the applicant and a comparison of those needs with the provision made by the will."
That view followed the analysis at 579 by Kirby P of the judgment of Gibbs J in Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134, but was rejected by Orminston J in Anderson v Teboneras and Another [1990] VR 527, when he stated at 538:
"For myself I can see no basis for the assertion by Kirby P in Hunter v Hunter (1987) 8 NSWLR 573, at p 579 that Gibbs J in this passage had 'discouraged acceptance of this line of authority'. In the light of Gibbs J's earlier statement that more recent cases had confirmed Fullagar J's views, a passage not referred to in Kirby P's judgment, there can be no doubt that those carefully expressed views now have the endorsement of the majority in Hughes' Case, omitting for present purposes Murphy J's judgment based upon a curious view as to what constitutes a 'moral claim': see at pp 158 - 60, especially the last paragraph on p 159."
A problem which arises from stare decisis is one of extension by logic. A doctrine originally stated to meet the needs for a particular circumstance is, once accepted, extended by incremental shifts, to encompass a circumstance different, on any conceptual approach, to the original case. (See In Re Sinnott [1948] VLR 279, The Pontifical Society for the Propagation of the Faith and Anor v Scales (1962) 107 CLR 9, McCosker v McCosker (1957) 97 CLR 566, Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (supra)). With respect to either of the above positions, one can say that whilst each may justify the making of a particular award or order, neither should be elevated in its own right to a statement of principle. The principle remains that of a statutory remedy available to a person, vulnerable and disadvantaged, who would be entitled to receive from a parent, judged by the standard prevailing at the time of determination, benefit commensurate with the detriment occasioned by disadvantage. An adult child, unable to establish that he or she comes within that characterisation, should bear a high burden in establishing entitlement under the legislation and ought show special need (O'Connor v Tasmanian Trustees Limited B47/1995). In the circumstances of this case, the age of the applicant is a significant factor in the determination of the first question affecting entitlement (see generally Grey v Harrison (supra)).
Basis of Claim
The applicant claims that by reason of ill health, he is unable to earn income and that his assets have been depleted by reason of payments required as a consequence of family law proceedings. He claims that his home is deteriorating through impecuniosity and that he has no business dealings which would enable him to adequately maintain himself. It is necessary to consider his situation both as of the time of death (Coates v National Trustees, Executors & Agency Co Ltd (supra)) and the hearing of the application. It is necessary for the applicant to show affirmatively the state of his health and financial position, not for the respondent to show disentitlement.
Credibility of Applicant
The Court does not accept the applicant as a credible or reliable witness. It was for him to put before the Court a comprehensive account of his financial circumstances at the relevant time. He failed to do so. He did not produce relevant documentation or forms of verification, claiming on occasion that he could locate and produce the same if required, or if time permitted. He was unable to recall details and attributed responsibility to others. His accounts of periods of business, rates of return and income and capital derived from those businesses and property transactions were confusing and misleading, designed to avoid open disclosure. The following subjects of his evidence, not exhaustive, are examples of failure to make full account of his affairs and provide reason why he should not be accepted as a credible witness.
Family Court Proceedings
The affidavit sworn by the applicant in 1991 in respect of these proceedings claimed that he owed his son considerable moneys advanced to him with respect to the costs of family law proceedings in 1988 and that he had been obliged to mortgage land to his son as security. Yet, evidence discloses that a significant proportion of those costs could not have been incurred until at least 1993. In evidence given at the trial he claimed to have expended some $80,000 in legal costs, later making some modification to that figure on a basis unexplained. His answer:
"You mentioned that you'd spent some eighty thousand dollars in legal costs in the Family Court proceeding.
How do you arrive at that figure? ... Well, at this point of time I wouldn't have a clue how I arrive at it but I would have it written down somewhere. It is a figure that I arrived at with my son and myself going back over the years of the different things, amounts that he had put in and the different lawyers that I had paid. But I haven't got a tabulated form of the various amounts for different lawyers and that but that is the amount I estimated."
was not much improved in subsequent responses to cross-examination by counsel.
Evidence connected with the family law proceedings raised further matters concerning credibility. In those proceedings he had deposed that during the course of his marriage he had worked up to sixty hours per week. Such contradicted his contention in these proceedings that he was unable to work, and he had stated in an affidavit that he had not worked since 1978. His explanation given in cross-examination that such work consisted primarily of the answering of telephones, sweeping, banking and receiving flowers is inherently improbable.
Ownership of Vessel
He claimed to have divested himself of ownership of a vessel which at various times he described as having been owned solely by himself, jointly with his sons, or by his own son, Ian, alone. In an affidavit sworn on 30 August 1991, the applicant referred to giving his "interest" in a sail boat named "Pot of Gold" to his son. This was at least consistent with his claim that the vessel had been jointly owned. In contrast, the son claimed that a sole ownership had been transferred when, in his affidavit sworn on 31 August 1991, he averred:
"I can consider myself to be the owner of the sailing boat known as 'Pot of Gold' which was given to me by my father."
The attempts by both deponents to explain the contradiction, or to give clear account of the precise nature of ownership or circumstances giving rise to transfer, were unsatisfactory, and impact on the credibility of both.
The son explained the discrepancy in answers to cross-examining counsel in the following terms :
"In paragraph 13 you say that you are the owner of a sailing boat, Pot of Gold? ... That's correct.
How did your father transfer the boat to you? How did he transfer ownership to you? ... The Pot of Gold was basically a family boat.
No. I asked you how did your father transfer ownership of the boat to you? ... It wasn't with a legal document. Verbally.
Verbally? ... Yes.
So your father said, 'I give you the Pot of Gold'? ... He didn't say, 'I give you the Pot of Gold'. The boat collectively belonged to the four of us.
No, I asked you what he said to you? ... My father's share? My father's share are you talking about?
Hang on. You've said in paragraph 13 that you consider yourself to be the owner of the sailing boat known as the Pot of Gold. 'I can consider myself to be the owner of the sailing boat known as Pot of Gold which was given to me by my father.' Is there anything there to suggest that anything less than the whole of the boat was given to you by your father? ... No, not in that actual statement there, no.
Now you are the sole owner of the pot of gold at the moment, aren't you? ... Correct.
And do you have idea as to what that boat is worth?
...
WITNESS: The value - approximately $20,000 I would imagine.
MR WILLIAMS (Resuming): It has gone down in value since your father bought it? ... It has deteriorated a bit, yes.
Don't you look after it? ... No, I haven't got time. I wish I did have.
Why haven't you sold it then? ... I've always had a dream to use it one day."
The applicant had earlier conceded that the vessel had at one stage been valued at $35,000, although he could only estimate a current value. He further conceded that he continues to lease land for a jetty at Margate. Documentation discloses transfer of registration of the vessel well after the commencement of these proceedings. Neither father nor son claimed that consideration had been provided for transfer and it is reasonable to conclude that the change of registration was effected to divest capital and enhance the applicant's case.
Land Valuation
In his statement of assets made in 1990, the applicant fixed as a value for his property the sum of $80,000. His affidavit in 1991 disclosed that as of 1987, the Valuer General had assessed the capital value of the property at $160,000. No further reference to value was made in his 1995 affidavit, whilst at trial, he conceded that the relevant capital valuation as of 1992 was $220,000. His attempts to explain the failure to make disclosure do not enhance his credibility. There was evidence from a qualified valuer that, making allowance for structures erected by Ian Langford (the son), the value of the land and remaining buildings in 1993 was in excess of $300,000. In a further assessment made in 1997, with the use of an alternate method of calculation, and deducting the value of the son's dwelling, the value was assessed to be $220,000. The evidence given on the trial by a valuer establishes that, setting aside the son's interests, the estimated value of the property far exceeds that disclosed by the applicant. It is correct that the government valuation figures do not reflect the fact that his son had erected his own dwelling on some of the land and presumably had some equitable interest, although that common use of the land and the nature of the arrangements support the conclusion that the business affairs of the son are also those of the father. There is evidence of communality of financial interests which belie the claim of impecuniosity.
Employment of Housekeeper
The applicant had claimed that in 1992 he had employed a woman of mature years to perform household tasks for a remuneration of $50 a month When questioned as to affordability, he answered that on payment she would return the money in kind as she would not take it. Despite that return he continued to make payment and accept the return. The response is inherently unlikely.
"Muskett" Transaction
Certain property owned by the applicant was leased to a Mr Muskett until 1990, with the rental being received by the applicant. It was subsequently transferred to Muskett, but the applicant claimed that he did not receive the purchase price since the property had passed to his son because he, the applicant, had granted it by way of gift or "recompense".
In his affidavit sworn on 30 August relating to the "Muskett" transaction he deposed at par20:
"I transferred to my son Ian by Transfer No B133314 Mortgage No A942512 on the 9th September 1987. The mortgage was to secure the balance purchase moneys upon the sale of land comprised in Certificate of Title Volume 3941 Folio 49. I did this as I regarded the land comprised in the said Certificate of Title as being rightfully my son's land. I understand that my son received a principle [sic] sum of $24,000 upon the final repayment of the mortgage."
His evidence given on this hearing was a model of obfuscation as the following exchange with counsel demonstrates. On 25 September 1997 he gave the following answers in relation to the transaction:
"In 1983 were you in receipt of any money from the sale of a florist shop. ... Not that I am aware of. I'm not sure.
Did you lease the florist shop to any person from 1983 onwards? ... 1983 onwards - I'm not sure of the date that the florist shop was sold and what have you.
Did you receive any proceeds from the sale of the florist shop? ... I'd have to check my records, I'm sorry.
So you are completely unaware whether you received any proceeds of sale from a florist shop sold in approximately 1983? ... Without checking back fifteen years, yes, I'm sorry. I can't remember.
Do you know whether a caveat was secured over the real estate that comprised the florist shop and was there any ongoing income received from people running that shop until it was finally transferred in 1990? ... I'd have to check my records on that one. I can recall a caveat."
On the following day counsel returned to the issue during the following exchange:
"Now you remember yesterday I was asking you about the sale of a florist's shop in 1983, did you sell a florist shop about that time to Christopher George Muskett? ... Correct.
So, did you sell a florist's shop in 1983? ... Apparently. Yes, I checked last night on my figures - on my information.
And where did you check? ... In my file and I found a letter.
So what did the letter say? ... I didn't do a copy of it. I didn't think it was relevant to sort of bring a copy in, I'm sorry.
Okay. Can you remember what the letter's purport was? ... Not exactly. I didn't memorise the letter or bring it in with me, I'm sorry.
Okay. Well when did the - how much was the sale for? ... I didn't take any note of the details - only that there was a document.
Now did you sell the real estate along with the flower shop, or the florist's shop? ... Yes, I did.
How much did you receive for the real estate? ... It's the same information, I didn't go through all the details, I'm afraid.
And the real estate wasn't transferred - well, do you know when the real estate was finally transferred to Mr Muskett? ... No, that I do not know either, without a lot of work.'"
The son had not ceased full-time employment until 1988, and any entitlement to the proceeds of sale could only have been by way of gift. The conclusion permitted is that either the applicant was divesting himself of assets (possibly because of family law proceedings) or was using the capital in the conduct of a joint enterprise with his son. The latter is the more probable explanation since it explains an ongoing commercial relationship between the two. Further, the inability of the applicant to provide detail or documentation weakens any claim of credibility.
Credibility of Ian Langford
The account given by the son is inextricably linked to the version afforded by the applicant and suffers from the same inconsistencies, contradictions and improbabilities. His account of the various property transactions, the state of his business interests, income and the condition of his father, is not accepted except where it is corroborated by other reliable witnesses or clear documentation. Even accepting that a sum of $30 per week is paid to the applicant from the business earnings, such would be only to preserve the apparent entitlement to Social Security benefits. The Court is satisfied that the applicant is a business partner with access to capital. Ian Langford's statement that he was aware that building on his father's land might disadvantage his children should he predecease his father, but that he believed he could bequeath the house in any event (such belief based on telephone advice from a solicitor whose name he could not remember) is no more than an attempt to avoid acceptance that Ian Langford and his father operated their capital jointly. His account of the "Muskett" transaction matched that of the applicant in its vagueness and contradiction. Having initially denied knowledge, he, like his father, had the advantage of an overnight adjournment to consider his answer. On resumption, he also, like his father, claimed to have discovered documentation (unproduced) but took little note of its contents. The Court does not accept the evidence of Ian Langford, except where it is corroborated by other reliable witnesses or clear documentation.
Claim Based on Disability
The applicant has been in receipt of Social Security benefits since 1981 and claims to have received, since 1987, additional payments of $30 per week from his son as recompense for some light work. He was involved in various forms of business activity, although, as his counsel pointed out, there is "no evidence whether the florist shop ... made any profit and if so how much [and] ... no evidence as to what profit if any that [the son's] business made in 1989." The point remains that it is for the applicant to place before the Court clear evidence of his state of finances and not rely on absence of contrary evidence. Proceedings under testator family legislation are not proceedings against other beneficiaries. They are proceedings seeking the exercise of judicial and legislative power so as to modify provisions made by a deceased concerning the disposition of that person's property. The evidence does suggest that the applicant was able to perform work at relevant times. The medical evidence is to the effect that the applicant is overweight, has high blood pressure and shows signs of a congestive cardiac problem and nervous tension. The evidence of Dr Cooper is accepted as is his opinion that the applicant ought be able to perform some twenty hours of sedentary work per week. Evidence from Doctors Sharman and Prasad as to the existence of depression is likewise accepted. However, their evidence, honestly given, is susceptible to doubt, given that much of it depends on the history presented by the applicant. His account to them was one of incapacity, stress and depression. Yet the history presented by the patient shows that the causes were that of overwork and hard physical exertion. The following precis of the casenotes maintained by Dr Prasad illustrates the point:
8 November 1992 Patient felt is overworked.
8 April 1993 Still working long hours and complaining of exertion.
27 March Short of breath from exertion.
28 OctoberWorking too hard, seven days a week 6.30am til 10pm, helping son with accounting work. Wants to take holiday but can't as no one to replace him in family business.
16 May 1995Contesting contents of sister's will. Feels depression made worse by stress of divorce case. Two EGs show condition as essentially normal.
13 October 1996 Said he was working long hours 7am til 10pm.
The contradiction is obvious. To the Court he contends that his medical condition precludes work, whilst to his doctor he complains that overwork has produced disability.
In evidence given during the course of family law proceedings, he also claimed to be working long hours. That evidence was pertinent to the issue of respective contribution made by the parties to a commercial enterprise for the purpose of a determination of property entitlement. In those proceedings, he claimed to be working sixty hours per week. His account given to his medical adviser and given in testimony to a court is in sharp contrast with his averment made in an affidavit in these proceedings sworn on 27 September 1990 that:
"26My second wife separated from me in 1978 and after a property settlement, and because of recurring heart problems I was given a sickness benefit pension.
27 I have not been able to work since that time."
The claim of disability brought about by a medical condition lacks credibility. Insofar as his present condition is concerned, the Court is not satisfied that it so existed at the time of his father's death, nor that it has prevented him from engaging in various commercial activities, including the business affairs conducted with and in the name of his son since that time.
Claim Based on Loss of Capital
The "Muskett" transaction has been detailed in the consideration of the applicant's credibility. Suffice to say that the evidence warrants a conclusion that the capital obtained by sale either remained with the applicant or formed part of the joint enterprise with his son. The applicant has been involved in other property transactions. In or about 1979 he purchased property known as "Kalbfels". Following subdivision, he sold one block for $57,500, a second for probably $17,000 and claimed to have given the third section to his son, who in turn sold it for $35,000, although there had been no record of transfer to his son. The Court is satisfied that significant capital has been placed in the business affairs conducted jointly by the applicant and his son, although operated in the name of Ian Langford. The conclusion that father and son remained engaged in a joint commercial enterprise is supported by the evidence of the witness Graham Cordwell. In addition, the applicant possesses assets in his own name valued at a sum greater than he has claimed.
The applicant possessed assets as of the date of his father's death, or at least had divested himself of assets so as to enhance his status as a recipient of benefit from public moneys provided under Social Security legislation. He ought not be entitled to use any divestment as a basis of claim against the estate of his father.
Entitlement by Contribution
The applicant and the testator operated separate businesses involving the growing and processing of plants. But mutuality of commercial interests does not establish testatory claim. The claimed contribution by the applicant to his father's economic affairs does not afford a basis of claim. Both parties benefited by association and no entitlement arises by virtue of that association. In any event, the commercial relationship had long ended and each party had conducted distinct financial concerns since that time. There is no entitlement based on previous contribution to the estate of the father.
Moral Claim
The applicant contends that the respondent had only established a good relationship with her father in the last weeks of his life. That contention is denied by the affidavits of Doctors Ridges and Pearson and the medical records of the Repatriation and the Royal Hobart Hospitals. Conversely, the conclusion that a less positive relationship existed between the applicant and the deceased is supported by the evidence of the witnesses Cleary, Coleman and Ayers. The respondent is entitled to compare her relationship with the deceased with that had by the applicant (Re Buckland [1966] VR 404). The evidence establishes that a wise and prudent testator, entitled to pay regard to his relationship with his children in determining his bequest, had cause to prefer the respondent. The evidence negates the assertion that a wise and prudent testator ought to make provision for the applicant on moral grounds.
Privilege or Agreement
The applicant contends that the respondent is bound by the terms of an agreement reached at a "settlement conference" held under the auspices of this Court. I have no knowledge of the terms of settlement other than that one was reached but subsequently repudiated or abandoned. The evidence provided includes a document addressed to the Registrar of the Supreme Court which includes the following terms:
"We jointly request that a settlement conference be held in this matter.
We acknowledge that the conference is without prejudice and any information, documents, proposals or concessions will remain confidential to the conference and cannot, without agreement of all parties, be used in the action or proceedings."
Acceptance of these terms is conclusive. An agreement acknowledged following the holding of such a conference may be enforceable, since it is a formal compromise. A promise of acceptance made in the course of a "settlement conference" does not afford remedy. In that sense, the document can be regarded as privileged. Privilege exists in respect of settlement negotiations (Cross on Evidence 5th ed (1996) par25380) which is only lost once negotiations have been completed and a binding contract made. Given the terms comprised in the request, that contract cannot be made until the conference has concluded and its terms ratified outside of the limits of such conference. Admissions made in an honest attempt to reach a settlement are ordinarily inadmissible in subsequent court proceedings relating to the same subject matter (Field v Commissioner for Railways for New South Wales (1957) 99 CLR 285). However, when negotiations succeed in agreement, then evidence may be subsequently admitted (Biala Pty Ltd v Mallina Holdings Ltd [1990] WAR 174). But policy requires that evidence of agreement reached at a settlement conference, if ratified at the conclusion of such conference may be admitted, but admissions of fact, tentative proposals and offers of compromise made during the course of the conference ought be inadmissible in subsequent proceedings. The reality of the agreement or denial may be pleaded in an action and evidence led in support of the respective pleadings, but not the circumstances giving rise to its making. In the circumstances of this case, the document contained a confidentiality clause and each party accepted a contractual protection of confidentiality (see generally Mediation: Principles, Process, Practice (1996) at 281 - 290). The applicant is precluded, by reason of estoppel or explicit agreement recognised by policy, from claiming any entitlement by reason of concession or agreement made by the respondent in the course of a settlement conference.
There is further reason why effect should not be given to any promise or acceptance made within the "settlement conference". These proceedings are not "inter partes". They are a consequence of a statute permitting courts to exercise discretion in adjusting the terms of a bequest. Even in cases where consent orders are proffered, the court retains responsibility for any variation of the wishes expressed by a testator concerning the disposition of his or her property. In some circumstances, a court might be obliged to reject consent orders and in all cases it should consider the material proffered, the implications of the preferred consent orders and only then exercise its own judgment as to their propriety. Even if the nature of the respondent's promise or agreement were made known, it would be of little, if any, use. At best, it could impact on credibility and reasonableness of conduct and might have some part in determining the nature of the relationship between beneficiaries. Whether a properly concluded agreement would afford a party entitlement by the establishment of a separate cause of action, or by way of estoppel, is a separate matter.
It is not necessary to express any concluded view on these wider questions, since, in the circumstances of this case, knowledge of any concession made by the respondent would not affect the determination made.
Evidence Subsequent to Conference
Counsel for the applicant did not rely solely on evidence that there had been agreement in the course of the settlement conference. He sought to tender three letters of the solicitors for both parties. The first, bearing the date 7 November 1995, was addressed to the Registrar of the Supreme Court and signed by the solicitors for each party. The terms of the letter were:
"By consent, we ask that orders be made in the following terms:
1That provision be made in favour of the applicant for the estate of Henry Herbert Langford late of 54 Esplanade, Margate, in Tasmania, retired Master Mariner in the sum of $... (the exhibit has been 'blacked' out).
2That there be no order as to costs."
The second letter, dated 8 November, was from the respondent's counsel forwarding the above memorandum to the applicant's solicitor. The third letter, dated 13 November, from the respondent's solicitors to the applicant's solicitor, states:
"We are instructed by our client to write withdrawing her agreement to the proposed settlement of this matter. A similar letter has been forwarded to Messrs Griffits and Jackson."
The respondent opposes the reception of the evidence. Evidence of a concluded agreement is ordinarily inadmissible in the course of subsequent proceedings (Biala Pty Ltd v Mallina Holdings Ltd (supra)). Leaving aside the special nature of testator family maintenance proceedings, evidence of admissions or acceptance of liability made in open form are admissible in the course of a trial of an action if they are relevant to an issue. Questions of privilege do not arise and the information contained in such a document can be used to the opponent's detriment (AWA Ltd v Daniels (t/as Deloitte Haskins & Sells) and Others (1992) 7 ASCR 463). It is difficult to see the relevance of the documents in these proceedings, but they will be admitted into evidence. Their reception however does not advance the applicant's case. They might reflect, in some small manner, on the respondent's credit in that one could infer that she, as sole beneficiary, has resisted the applicant's claim for reasons of gain or dislike, but it remains for the applicant to show entitlement. Given the conclusion that he has not, no effect is given to this evidence.
Conclusion
The applicant has not established entitlement as of either the date of death of the testator or the time of hearing. There was no moral responsibility on the part of the testator as a just parent to make provision for his adult child and no subjective condition of that child, as of the time of hearing, which would justify provision from the estate on the basis of need.
The application is refused.
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