Lindsay John Hunt v Pepetual Trustee Company Limited

[2007] NSWSC 411

CITATION:	Lindsay John Hunt -v- Perpetual Trustee Company Limited and Anor [2007] NSWSC 411 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	27 and 28 November 2007
JUDGMENT DATE :	30 April 2007
JUDGMENT OF:	Associate Justice McLaughlin
DECISION:	1 I order that the proceedings be dismissed; 2 I order that the Plaintiff pay the costs of the Second Defendant; 3 The exhibits may be returned.
CATCHWORDS:	Succession. Family Provision. Claim by adult son. Under will Plaintiff receives one fourth of estate. Financial and material circumstances of Plaintiff. Obligation upon applicant for provision to place before the Court as fully and as frankly as possible all available information concerning his financial and material circumstances. Whether Plaintiff has been left without adequate provision for his proper maintenance. Competing claim of Second Defendant. Proceedings not instituted within the prescribed period. Estate fully distributed.
LEGISLATION CITED:	Family Provision Act 1982
CASES CITED:	Blore v Lang (1960) 104 CLR 124 Singer v Berghouse (1994) 181 CLR 201 Vigolo v Bostin (2005) 221 CLR 191
PARTIES:	Lindsay John Hunt (Plaintiff) Perpetual Trustee Company Limited (First Defendant) (Proceedings discontinued) Geoffrey Bernard Hunt (Second Defendant)
FILE NUMBER(S):	SC 5628 of 2005
COUNSEL:	Mr J. Turnbull (Plaintiff) Mr G. Waugh (Second Defendant)
SOLICITORS:	Hosie & Partners (Plaintiff) Glover & Glover (Second Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Monday, 30 April 2007

5628 of 2005 LINDSAY JOHN HUNT –v- PERPETUAL TRUSTEE COMPANY LIMITED and ANOR

JUDGMENT

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

2 By summons filed on 28 October 2005 Lindsay John Hunt claims substantively an order for provision for his maintenance out of the estate of his late mother Joan Pamela Hunt (to whom I shall refer as “the Deceased”). Subsequently, an amended summons was, by leave in that regard granted at the outset of the hearing, filed on 28 November 2006. The only alteration to the relief sought in the amended summons was the addition of a prayer claiming costs.

3 The proceedings as originally constituted named two Defendants, being Perpetual Trustee Company Limited as First Defendant and Geoffrey Bernard Hunt as Second Defendant. Subsequently the Plaintiff by notice of discontinuance filed on 21 March 2006 discontinued the proceedings against the First Defendant. In consequence, the proceedings have remained on foot against only the Second Defendant, Geoffrey Bernard Hunt.

4 The Deceased died, aged 80, on 21 September 2002. She left a will dated 12 January 1996. Letters of administration with that will annexed were on 4 March 2003 granted to the First Defendant (the reason for such letters of administration, rather than probate, being granted was that the will named as executor Perpetual Trustees Australia Limited (a company of which the First Defendant is a wholly owned subsidiary)).

5 The Deceased was a widow at the time of her death (her husband, Bernard Arthur Hunt, having died on 4 August 1994). The Deceased was survived by the two children of her marriage, being the Plaintiff and the Second Defendant. The Plaintiff was born on 7 August 1951 and is presently aged 55. The Second Defendant was born on 15 January 1948 and is presently aged 59.

6 By her will the Deceased directed that, after payment of debts, funeral and testamentary expenses, her estate should be divided into sixteen equal parts; that eight such parts be paid to the Second Defendant, four such parts be paid to the Plaintiff, and the remaining four such parts to be divided equally among the grandchildren of the Deceased who should survive her for 30 days and should attain the age of 21 years. There are four such grandchildren, two being the children of the Plaintiff and two being the children of the Second Defendant.

7 The inventory of property discloses the following assets,

House property situate at and known as 199A Connells Point Road, Connells Point, to which an estimated value of $825,000 was ascribed.
Furniture and effects, to which an estimated value of $985 was ascribed.
Moneys in bank accounts, totalling $58,951.
Term deposits, totalling $145,640
Total $1,030,576

8 The assets of the estate have all been realised and the estate has been fully distributed. Upon that distribution the Plaintiff received three payments, totalling $212,553. Each of the grandchildren of the Deceased is entitled to receive about $53,000. For each of the two grandchildren who were aged under 21 at the time of the death of the Deceased (those being the two children of the Plaintiff), that sum was held in trust for that grandchild. The only such grandchild who is presently under the age of 21 is the Plaintiff’s son Alexander (who had completed his Higher School Certificate shortly before the hearing of the present proceedings and who hopes to pursue tertiary education).

9 It will be appreciated that the present proceedings were not instituted within the prescribed period of eighteen months after the death of the Deceased (as required by section 16(2) of the Family Provision Act). It is for that reason that the Plaintiff seeks an order extending the time for the making of the application up to and including the date of the filing of the summons herein.

10 It will also be appreciated that, because the estate has been fully distributed and the only part remaining under the control of the First Defendant is that part to which the Plaintiff’s son Alexander is entitled (which the First Defendant holds as trustee for that beneficiary), the Plaintiff seeks an order that any order for provision to which he might otherwise establish an entitlement should be paid out of the notional estate of the Deceased, and, to that extent, that the benefit received by the Second Defendant should be designated such notional estate of the Deceased. The Plaintiff does not wish the benefits to which the grandchildren of the Deceased are entitled under the will to be disturbed by any order for provision which might be made in his favour. That is, he seeks that any such order for provision be paid entirely out of the benefits which the Second Defendant has received from the estate of the Deceased.

11 After completing his School Certificate, the Plaintiff qualified as a compositor. He remained living at home with his parents and his elder brother at the Connells Point residence (which was their family home) until he and the Second Defendant travelled to the United Kingdom in 1972. The Plaintiff remained in the United Kingdom for about five years, marrying his first wife, Lindsay Joy Adams in London in 1975. No children were born of that marriage. The Second Defendant returned to Sydney less than a year after arriving in London. The Plaintiff and his first wife came back to Sydney for a short time, but returned to London in 1977. That marriage broke down in 1981, and the Plaintiff and his first wife subsequently divorced. The Plaintiff again returned to Australia in December 1982. Throughout his periods in London, and subsequently in Sydney, the Plaintiff attempted to achieve qualifications in the fields of art, design and architecture. During his various periods in Sydney, the Plaintiff (and also, for at least one period, his first wife) resided with his parents at the Connells Point residence.

12 In about 1984 the Plaintiff met his present wife Corinne. They lived together from about March 1984 until they married in 1987. Two children were born of the Plaintiff’s second marriage. Their daughter Laura Elizabeth was born on 4 December 1985, and is presently aged 21. Their son Alexander was born on 9 September 1988, and is presently aged 18.

13 On at September 1991 Mrs Corrine Hunt suffered a catastrophic cerebral haemorrhage, resulting in significant physical and mental disabilities. The Plaintiff is her carer and receives a carer’s pension.

14 In 2000 the Plaintiff and his wife purchased land at Modanville (which is a rural community, located about 14 kilometres from Lismore). Since then the Plaintiff has been employed in a part-time capacity as a lecturer in applied design at the Penrith TAFE. He had previously been employed by KVB College, North Sydney, and on two occasions, in 1988 and 1990, was employed at the Billy Blue School of Graphic Design at North Sydney.

15 According to the Plaintiff, he suffered psychological injury at work in 1999 and as a result has been in receipt of worker’s compensation payments since that time.

16 The Plaintiff had had little contact with his father, Bernard Arthur Hunt, for a number of years before the latter’s death in 1994. Thereafter the Plaintiff had little or no contact with the Deceased, until her death some eight years later.

17 The Plaintiff has suffered from psychological and psychiatric problems in recent times. Medical reports by his treating psychiatrist, Dr Ian Hayes, were admitted into evidence.

18 The Plaintiff gave detailed evidence concerning his respective relationships with this father (whom he asserted was physically and mentally abusive to him throughout his childhood), his mother (whom he blamed for not intervening to defend him against the abuse and assaults by his father) and his brother, the Second Defendant (whom he appears to resent, if only because the Second Defendant received from the estate of the Deceased twice what the Plaintiff himself received). The Plaintiff gave evidence concerning the psychiatric problems which have in recent years been experienced by his daughter Laura, and the physical problems experienced by his wife Corinne. Laura is presently studying psychology at the University of Queensland. The Plaintiff’s son Alexander completed year 12 at Trinity Catholic College, Lismore in 2006.

19 The Plaintiff’s assets consist of the house property situate at and known as 1 Dunromin Drive, Modanville, to which an estimated value of $300,000 is ascribed; a station wagon motor vehicle, to which a value of $10,000 is ascribed and cash invested with Colonial First State Investment (in the name of the Plaintiff’s wife) in an amount of somewhat less than $60,000.

20 In his affidavit of 24 July 2006 the Plaintiff disclosed as his only liability a mortgage secured over his residence in an amount of $51,923. In his oral evidence the Plaintiff under cross-examination said that he expended the amount of about $212,000 which he received from the estate by purchasing a motor car and by paying off the mortgage on his house. When asked how much it was he paid off he said “Just short of $100,000”. He also said that that payment resulted in the mortgage loan being paid out entirely. However, both in cross-examination (T38) and in re-examination (T44-45) the oral evidence of the Plaintiff suggested that there was still an outstanding mortgage over the house property. The Plaintiff’s evidence concerning any current mortgage liability was characterised by vagueness, uncertainty and lack of precision.

21 The Plaintiff receives worker’s compensation benefits of $417.80 a week, and a carer’s pension in a net amount of $198.65 a week. Thus his total weekly net income is $616.45. The Plaintiff gave evidence of his weekly expenses and outgoings, totalling $1,010.

22 In recent times the Plaintiff has purchased a Toyota Corolla motor car for his daughter Laura, at a cost of $6500, and has also purchased for her a new computer and printer ($1950), as well as making a contribution towards purchase of texts books ($94) and towards her motor car registration ($218). In addition, the Plaintiff pays Laura $50 a week whilst she is attending university, to assist her in her living expenses. The Plaintiff said that he intended to purchase a motor vehicle for his son and that he proposed to support Alexander in his tertiary studies, as he has been supporting Laura.

23 Evidence was placed before the Court concerning the financial and material circumstances of the Second Defendant, but not of his two children (each of whom is over the age of 21).

24 There was also evidence concerning the costs of the present proceedings. It was estimated on behalf of the Plaintiff that his costs would total $40,000 (inclusive of GST), whilst it was estimated on behalf of the Second Defendant that his costs would total $35,500 (plus GST).

25 It has already been observed that the proceedings were not instituted within the prescribed period of eighteen months after the death of the Deceased (that period having elapsed on 21 March 2004). The proceedings, which were instituted by the filing of the summons on 2 December 2005, were thus instituted more than eighteen months after the expiration of the prescribed period.

26 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.

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

28 The Plaintiff, as a son of the Deceased is an eligible person within paragraph (b) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such, he has the standing to bring the present proceedings.

29 It will be appreciated that the Second Defendant is also an eligible person in relation to the Deceased, coming within the same paragraph of the foregoing definition. Apart from the Plaintiff and the Second Defendant, there are no other eligible persons in relation to the Deceased.

30 It cannot be emphasised too strongly that an applicant for an order for provision has an obligation to place before the Court as fully and as frankly as possible all relevant information concerning the financial and material circumstances of that applicant. This the Plaintiff signally failed to do. His original evidence made no reference whatsoever to the receipt by him of amounts totalling $212,553, representing one fourth of the distributable estate of the Deceased. Neither did his evidence, even under cross-examination, indicate how that money was expended (apart from the purchase of a motor vehicle, apparently for $25,000, and the asserted discharge of the mortgage on his residence).

31 It emerged under cross-examination that the Plaintiff in 2003 or 2004 received a lump sum payment of worker’s compensation in an amount of almost $70,000. The Plaintiff did not make any reference in his affidavit evidence to that lump sum payment. Even in his oral evidence he did not offer any precise information about receipt of that payment or how it was expended. It emerged under cross-examination that the Plaintiff had, in fact, received worker’s compensation payments totalling $69,721. That lump sum payment was in addition to the continuing weekly payments which the Plaintiff currently receives. The only response given by the Plaintiff as to how the foregoing amount of almost $70,000 was expended was that he was “trying to finish off my house”.

32 No reference was made in the affidavit evidence to whether or not the Plaintiff’s wife receives any form of social security payments for her disabilities, or, if so, the amount of such payments. However, under cross-examination, the Plaintiff agreed that his wife receives a disability support pension, and when asked whether it would be in the same amount as the Plaintiff’s own carer’s pension, responded “probably would be”. It will be appreciated that the financial and material circumstances of the spouse or partner of an applicant for provision are relevant to the circumstances of the applicant, and that the applicant has an obligation to place before the Court full information concerning the financial and material circumstances of his spouse or partner.

33 In the course of cross-examination it emerged, almost by chance, that the Plaintiff had a claim arising out of a motor vehicle accident. The Plaintiff’s responses concerning that claim, which apparently has now been resolved, were vague in the extreme. When asked whether he received some money as a result of that claim, he replied, “Yes, only about $5000 I believe.” His response, when asked when he received that amount was, “I don’t know, a couple of years ago, two or three years ago.”

34 It emerged, but only from the medical reports of Dr Hayes, not from any information given directly by the Plaintiff himself, that he has problems with alcohol (going on drinking binges from time to time) and with gambling.

35 Regarding the Plaintiff’s financial and material circumstances, it should also here be recorded that his daughter Laura attained the age of 21 on 4 December 2006, and thereupon became entitled to receive from the estate of the Deceased an amount of somewhat more than $50,000. That sum of money presumably will go a considerable distance towards meeting Laura’s expenses whilst at the University of Queensland, and should relieve her father from the necessity to provide her with an allowance of $50 a week.

36 The evidence presented to the Court on behalf of the Plaintiff can be characterised as being skimpy regarding the Plaintiff’s financial and material circumstances, but ample regarding the Plaintiff’s respective relationships with each of his parents and with the Second Defendant. The Plaintiff appeared to consider that he was treated unfairly in the will of his mother by being given an amount that was not equal to what was given to the Second Defendant.

37 Further, the Plaintiff offered a quantity of evidence concerning what he understood to be the financial and material circumstances of the Second Defendant.

38 It will be appreciated that it is for an applicant for provision to establish his claim upon its own merits. That claim cannot be enhanced by establishing that the chief chosen object of the testamentary beneficence of the testator, had that person been omitted from provision, might not have succeeded in a claim for provision out of the estate of the testator. Here the only relevance of the financial and material circumstance of the Second Defendant is that his competing claim upon the testamentary bounty of the Deceased might have the effect of reducing, or even extinguishing, any order for provision an entitlement to which the Plaintiff might otherwise have established.

39 In this regard it is appropriate that I should set forth the following salutary admonition of Windeyer J, in the High Court of Australia in Blore v Lang (1960) 104 CLR 124 at 137,

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

40 Further, consonant with the foregoing admonition of Windeyer J, it should be emphasised that an order for provision is not made as a reward for past services or good conduct on the part of an applicant. Neither is an order for provision withheld as punishment for perceived bad conduct on the part of the applicant.

41 In carrying out the fist stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 at 208-210 (the correctness of which test was affirmed by the High Court in Vigolo v Bostin (2005) 221 CLR 191), the Court must first determine whether, in consequence of the testamentary dispositions of the Deceased, the Plaintiff has been left without adequate provision for his proper maintenance.

42 The Plaintiff has received one fourth of the estate of the Deceased, in an amount of in excess of $212,000. Except in the most general terms, he has not chosen to disclose to the Court what he has done with that amount. Neither has he chosen to disclose to the Court what he has done with the worker’s compensation lump sum payment of almost $70,000 or the amount (said by him to be, in his belief, “only about $5000”) which he received as a result of his motor accident claim. Neither has he chosen to disclose to the Court precise information concerning his wife’s disability pension.

43 The only liability of the Plaintiff may be a mortgage debt upon his residence, in an amount of almost $52,000.

44 The present proceedings appear to be motivated by a sense of injustice felt by the Plaintiff as a result of the disparity between the benefits given to himself and to the Second Defendant by the will of their mother. I have already observed that the Plaintiff must establish his claim upon its own merits. The Plaintiff has not suggested what he would do with any additional benefit which he might receive out of the estate of the Deceased. His responsibility for the detailed expenses which he enumerated regarding the tertiary education of this daughter will largely cease as a result of Laura receiving about $56,000 in December 2006.

45 I am not satisfied that the Plaintiff has established that, by reason of receiving in excess of $212,000 out of the estate of the Deceased, he has been left without adequate provision for this proper maintenance. It follows, therefore, that the claim of the Plaintiff must be dismissed.

46 But even if I were to be satisfied that the Plaintiff had been left without adequate provision for his proper maintenance by the terms of the will of his mother, the Plaintiff has not placed before the Court any evidence as to what he would do with any additional benefit which he might receive. It is possible that the Court would be entitled to infer he might seek to discharge any mortgage on his residence (if he has not already done so), with the consequence that his outgoings would be reduced by about $100 a week. But no explanation has been offered as to why, with the amount which he has already received from the estate of the Deceased, or with the lump sum payment of worker’s compensation, he has not discharged that mortgage. Neither, as I have already observed, has Plaintiff indicated what he has done with that lump sum worker’s compensation payment.

47 Thus, even if (contrary to the conclusion which I have already expressed) the Plaintiff were to establish that he had, as a result of the testamentary dispositions of the Deceased, been left without adequate provision for his proper maintenance, he has not offered any evidence which would enable the Court to reach a conclusion as to what, if any, order for provision ought to be made.

48 Further, it will be appreciated that, even if the Plaintiff were to establish an entitlement to an order for provision, he must still establish that the Court should exercise its discretion under 16(3) of the Family Provision Act to extend the prescribed period for the bringing of the present proceedings.

49 The only ground upon which the Plaintiff relied in attempting to explain why he had not brought the proceedings within the prescribed period was that he was not aware of the existence of that prescribed period.

50 I regarded the Plaintiff’s evidence concerning his awareness of the terms of the will of the Deceased, and of his entitlement to receive one fourth of her net estate as being quite unsatisfactory. Throughout the relevant period of eighteen months from the date of the death of the Deceased the Plaintiff was in regular contact with a solicitor, Mr Gerard Egan, who was acting for him in his worker’s compensation proceedings. The Plaintiff said that there had been no discussion with Mr Egan concerning the entitlement of the Plaintiff under his mother’s will or concerning any rights which the Plaintiff might have to bring a claim under the Family Provision Act, or regarding any period of limitation for the bringing of such a claim. No evidence was offered from Mr Egan.

51 In exercising the discretion of the Court to allow a claim to be brought after the expiry of the prescribed period, the matters which the Court must consider include, first, the reason why the proceedings were not instituted within that period; second, whether there would be any prejudice to any other person if the Court were to grant leave to bring the proceedings after the expiration of that period.

52 It will be appreciated that the estate has been fully administered. That is the reason why First Defendant is no longer a party to the proceedings. The only involvement of the First Defendant in the administration of the estate is that it remains the trustee for the interest of the Plaintiff’s son Alexander, until that beneficiary attains the age of 21 years.

53 The Plaintiff seeks that any order for provision which might be made in his favour should be made in respect to the one half of the estate which has already been distributed to Second Defendant, and, to that extent, that the benefit received by the Second Defendant from the estate should be designated as notional estate of the Deceased.

54 The Second Defendant and his wife are in comfortable financial circumstances. I do not regard those circumstances as being such as would reduce, let alone extinguish, any order for provision an entitlement to which the Plaintiff might otherwise establish. Nevertheless, the Second Defendant received his benefit from the estate more than three years ago. After the expiry of the prescribed period the Second Defendant was entitled to proceed upon the basis that there would be no claim made against the estate, and that he could deal with the amount, in excess of $400,000, which he had received from the estate in whatever way he wished. He purchased an investment property with part of that benefit.

55 Even if (contrary to the conclusion which I have already expressed) the Plaintiff were to have established an entitlement to receive an additional benefit from the estate of his mother, I would not be satisfied, in the circumstances of this case, that it would be appropriate for the Court to exercise its discretion to allow the proceedings to be instituted after the expiration of the prescribed period, where, as here, the Plaintiff is desirous that that additional benefit be borne only by that part of the estate which has already been distributed to the Second Defendant, and where the Second Defendant has dealt with that part of the estate in the belief that no claim would be made against the estate.

56 I summarise, as follows, my foregoing conclusions.

57 The Plaintiff has not established that as a result of the testamentary provisions of his mother (by which he has received in excess of $212,000) he has been left without adequate provision for his proper maintenance. The Plaintiff has not established any specific area of need. The Plaintiff has not adequately explained why the proceedings were not instituted within the prescribed period of eighteen months from the death of the Deceased. I would not be disposed to exercise the discretion of the Court to extend that prescribed period where the effect of such extension might be that any order for provision in favour of the Plaintiff would be borne by the one half share of the net estate which had been received by the Second Defendant and a considerable part of which share had already been expended by the Second Defendant.

58 If follows, therefore, that the claim of the Plaintiff will be dismissed. Costs normally follow the event, with the consequence that the Plaintiff should pay the costs of the Second Defendant. However, I have not heard any submissions as to costs. If any party desires to seek some other costs order an opportunity will be given to him to do so.

59 Accordingly, unless with seven days of the date hereof any party arranges with my Associate for the matter to be listed for argument as to costs, I make the following orders:

1 I order that the proceedings be dismissed.

2 I order that the Plaintiff pay the costs of the Second Defendant.

3 The exhibits may be returned.

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01/05/2007 - Company name corrected - Paragraph(s) Coversheet and title