Nielsen v Kongspark - [2019] NSWSC 1821

Supreme Court

New South Wales

Medium Neutral Citation: Nielsen v Kongspark [2019] NSWSC 1821
Hearing dates: 18 and 19 November 2019
Date of orders: 18 December 2019
Decision date: 18 December 2019
Jurisdiction: Equity
Before: Hallen J
Decision:
Orders that the Plaintiff’s Summons be dismissed
The Court will hear the parties on the question of costs if that question is not able to be agreed, on a date mutually convenient to the legal representatives of the parties and to the Court, which date will be arranged at the time these reasons are published.
Catchwords:
SUCCESSION – Family Provision – The Plaintiff, a now adult child, applies for a family provision order under Chapter 3 of the Succession Act 2006 (NSW) in respect of the estate and notional estate of both his father and of his mother – Father died in 2009 intestate – Mother died in 2017 – No application for administration in respect of either estate – Following commencement of hearing, the Plaintiff states that he does not wish to proceed with the claim in respect of father’s estate – Only claim in respect of mother’s estate

Extension of time for the making of the application required in respect of the claim in relation to the mother’s estate – Defendant does not consent to the application being made out of time pursuant to s 58(2) of the Succession Act – Plaintiff required to satisfy the Court that there is sufficient cause for the making of the application

Period of estrangement in relation to the mother – Attempts made by Plaintiff said to be in order to resurrect, or attempt to resurrect, contact – The mother not interested in resurrecting contact with the Plaintiff – Plaintiff’s attempts causing additional anguish to the mother

The Defendant is another now adult child of the parents – His competing claim, as sole beneficiary named in Will considered – Only property that can satisfy an order for provision and costs is the interest in real estate held by the mother, as joint tenant, with the Defendant – Need for notional estate order to be made – Whether there are special circumstances that justify the making of a notional estate order
Whether adequate and proper provision not made for the Plaintiff by the Will of the mother and if so the nature and quantum of the provision to be made – Whether notional estate order should be made
Legislation Cited: Civil Procedure Act 2005 (NSW)
Family Provision Act 1982 (NSW)
Legal Profession Uniform Law (NSW)
Practice Note SC Eq 7
Probate and Administration Act 1898 (NSW)
Succession Act 2006 (NSW)
Succession Amendment (Family Provision) Act 2008 (NSW)
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Andre v Perpetual Trustees WA Ltd (as Executor of the Will of Barbara Helen Owen Stewart) [2009] WASCA 14
Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Bartlett v Coomber [2008] NSWCA 100
Benham v Benham [2004] NSWSC 416
Boettcher v Driscoll (2014) 119 SASR 523
Bondelmonte v Blanckensee [1989] WAR 305
Borebor v Keane [2013] VSC 35
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327
Butcher v Craig [2009] WASC 164
Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748
Campbell v Chabert-McKay [2010] NSWSC 859
Carey v Robson (No 2) [2009] NSWSC 1199
Cetojevic v Cetojevic [2006] NSWSC 431
Chan v Chan (2016) 15 ASTLR 317; [2016] NSWCA 222
Chapple v Wilcox (2014) 87 NSWLR 646
Charnock v Handley [2011] NSWSC 1408
Christie v Manera [2006] WASC 287
Crossman v Riedel [2004] ACTSC 127
Curnow v Curnow [2014] NSWSC 896
Davison v Staley (Supreme Court of New South Wales, Bryson J, 21 August 1986, unrep)
de Angelis v de Angelis [2003] VSC 432
Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235
Diver v Neal [2009] NSWCA 54
Durham v Durham & Ors (2011) 80 NSWLR 335; [2011] NSWCA 62
Foley v Ellis [2008] NSWCA 288
Ford v Simes [2009] NSWCA 351
Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195
Galt v Compagnon (Supreme Court (NSW), Einstein J, 24 February 1998, unrep)
Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep)
Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31
Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31
Goodsell v Wellington [2011] NSWSC 1232
Gorton v Parks (1989) 17 NSWLR 1
Grey v Harrison [1997] 2 VR 359
Gwenythe Muriel Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Deceased) v Lathwell [2008] WASCA 256
Harkness v Harkness (No 2) [2012] NSWSC 35
Hawkins v Prestage (1989) 1 WAR 37
Heyward v Fisher (Court of Appeal (NSW), Kirby J, 26 April 1985, unrep)
Hills v Chalk [2009] 1 Qd R 409; [2008] QCA 159
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 149; [1979] HCA 2
Hunter v Hunter (1987) 8 NSWLR 573
Ilott v The Blue Cross [2017] 2 WLR 979; [2017] UKSC 17
In the Estate of Puckridge, Deceased (1978) 20 SASR 72
John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19
John v John [2010] NSWSC 937
Kavalee v Burbidge; Hyland v Burbidge (1998) 43 NSWLR 422
Kavalee v Burbidge; Hyland v Burbidge (1998) 43 NSWLR 422
Kay v Archbold [2008] NSWSC 254
Kearns v Ellis (NSW Court of Appeal, Glass, Mahoney and McHugh JJA, 5 December 1984, unrep)
Keep v Bourke [2012] NSWCA 64
Kohari v NSW Trustee & Guardian [2017] NSWSC 1080
Kohari v Snow [2013] NSWSC 452
Lemon v Mead [2017] WASCA 215
Lewis v Warner [2016] 3 WLR 1545; [2016] EWHC 1787
MacGregor v MacGregor [2003] WASC 169
Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146
Manuel v Lane [2013] NSWCA 61
Marks v Marks [2003] WASCA 297
Mayfield v Lloyd-Williams [2004] NSWSC 419
McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82
McCosker v McCosker; Kleinig v Neal (No 2) [1981] 2 NSWLR 532
McGrath v Eves [2005] NSWSC 1006
Moore v Randall [2012] NSWSC 184
Palagiano v Mankarios [2011] NSWSC 61
Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361
Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24
Poletti v Jones [2015] NSWCA 107
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19
Pontifical Society for the Propagation of the Faith v Scales at 19; McKenzie v Topp [2004] VSC 90
R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52
Re Dennis (Deceased) [1981] 2 All ER 140
Re Salmon, Deceased [1981] Ch 167 at 175
Salmon v Osmond [2015] NSWCA 42
Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 & Anor [2014] NSWSC 473
Shannon & Anor v Steinmetz [2019] HCASL 332
Singer v Berghouse (1994) 181 CLR 201
Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522
Smith v Dayman [1994] NSWCA 286
Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297
Smith v Woodward (Supreme Court (NSW), Macready M, 9 September 1994, unrep)
Soens v Rathborne [2018] NSWSC 302
Steinmetz v Shannon [2019] NSWCA 114
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Stone v Stone [2016] NSWSC 605
Strang v Steiner [2019] NSWCA 143
Sung v Malaxos [2015] NSWSC 186
Szypica v O’Beirne [2013] NSWSC 297
Taylor v Farrugia [2009] NSWSC 801
Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572
Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269
Valbe v Irlicht [2001] VSC 53
Vaughan v Curran [2019] NSWSC 1562
Verzar v Verzar [2012] NSWSC 1380
Verzar v Verzar (2014) 12 ASTLR 523; [2014] NSWCA 45
Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11
Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep)
Wheat v Wisbey [2013] NSWSC 537
White v Barron (1980) 144 CLR 431
Williamson v Williamson [2011] NSWSC 228
Yee v Yee [2017] NSWCA 305
Texts Cited: Heydon and Leeming, Jacobs' Law of Trusts in Australia, (7th ed 2006, LexisNexis Butterworths)
New South Wales Government Gazette, No 38, 20 February 2009
New South Wales Law Reform Commission, Report 110 Uniform Succession Laws: Family Provision (May 2005)
R Atherton, “The Concept of Moral Duty in the Law of Family Provision – a Gloss or Critical Understanding?” (1999) 5 Australian Journal of Legal History 10
R Croucher, “Contracts to Leave Property by Will and Family Provision after Barns v Barns [2003] HCA 9” (2005) 27(2) Sydney Law Review 263
Category: Principal judgment
Parties: Ole Nielsen (Plaintiff)
John Kongspark (Defendant)
Representation:
Counsel:
Ms S Clemmett (Plaintiff)
Mr A F Stevens (Defendant)
Solicitors:
Glass Goodwin (Plaintiff)
CCC Law (Defendant)

File Number(s): 2018/316092

Judgment

Introduction

HIS HONOUR: The Court is concerned, yet again, with a family dispute between siblings regarding, in this case, the disposition of the estate and notional estate, initially, of both of their deceased parents. The case provides another example of the high level of emotion that is generated in relation to the distribution of the property of a deceased parent or parents. The raw level of emotion, particularly in the case of the Plaintiff, was palpable during the course of the proceedings and even during submissions.
Like almost all of the family provision cases that are now being heard involving mature adult children seeking provision, or additional provision, out of the estate of a parent, the major issues revolve, principally, around the character and conduct of the applicant, his or her relationship with the deceased, the deceased's views of the relationship, and the relationship of the deceased with one, or more, of the beneficiaries named in the last Will of the deceased.
Despite various opportunities given to the parties to resolve the proceedings, they did not do so, and instead conducted the proceedings, the hearing of which lasted 2 days, at a combined estimated cost (calculated on the indemnity basis) of about $150,000.
The Plaintiff, Ole Harding Nielsen, and the Defendant, John Harding Kongspark, are the only, now adult, children of Knud Harding Kongspark (“the father”) and Alice Evelyn Kongspark (“the mother”).
(The Plaintiff’s birth name was Ole Harding Nielsen but his parents changed their surname to “Kongspark”. By Statutory Declaration dated 24 January 1997, the Plaintiff changed his surname back to “Nielsen” and he has been known by that surname since then.)
The father died, intestate, on 29 June 2009. As will be read, his actual estate, under the operation of the rules of intestacy, passed to the mother. (I shall refer to his interest, as a joint tenant, in certain real estate, which passed by survivorship to the mother and the Defendant, later in these reasons.)
The mother died on 14 September 2017. She left a duly executed Will, dated 28 February 2012, in which she left the whole of her estate to the Defendant absolutely. (I shall refer to her interest, as a joint tenant, in the real estate, which passed by survivorship to the Defendant later in these reasons.)

The Claim

The Plaintiff, by Summons filed on 9 October 2018, made a claim for a family provision order out of the estate and/or notional estate of each of the father and the mother, pursuant to the Succession Act2006 (NSW) (“the Act”).
Following the short adjournment on the first day of the hearing of the proceedings, counsel for the Plaintiff, Ms S Clemmett, stated that the Plaintiff did not wish to maintain his claim in respect of the father’s estate. Naturally, other than seeking costs thrown away, counsel for the Defendant, Mr A F Stevens, stated that there was no objection to this part of the Plaintiff’s claim not proceeding. Thus, it will only be necessary, hereafter, to refer to the estate and notional estate of the mother, although some facts in relation to the estate and notional estate of the father will need to be included in these reasons.
The Family Provision Act 1982 (NSW) (“the former Act”) was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008 (NSW). However, under clause 11(2) of Schedule 1 of the Act, the provisions of the former Act "continue to apply in relation to the estate of a person who dies before the commencement of this clause, in so far as they are not affected by the operation of this Part." That clause commenced on 1 March 2009: s 2(1) Succession Amendment (Family Provision) Act 2008 and New South Wales Government Gazette, No 38, 20 February 2009 at 1036. (In this case, there is no dispute that both the father and the mother died after 1 March 2009.)
A family provision order is an order made by the Court in relation to the estate, or notional estate, of a deceased person, to provide from that estate and/or notional estate, for the maintenance, education, or advancement in life, of an eligible person.
In the present case, a further issue is whether the Plaintiff’s application in respect of the mother’s estate should be permitted to be made since it was not commenced within the time permitted by the Act (12 months from the date of the death): s 58(2) of the Act. An application to extend the time for the making of the claim has been made by the Plaintiff.
A family provision order may be made in relation to property that is not part of the deceased’s estate, but is designated as “notional estate” of the deceased by an order under Part 3.3 of the Act: s 63(5). A notional estate order is an order made by the Court under Chapter 3 designating property specified in the order as notional estate of a deceased person” (s 3 of the Act). The effect of a notional estate order is that a person’s rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act.
It has been said, in respect of the notional estate provisions in the former Act, that an applicant for provision “may now apply in the same proceedings for orders for relief and designating property as ‘notional estate’ thereby compelling the ‘disponee’ of a ‘prescribed transaction’ to provide money, or property, for the purpose of making financial provision for the applicant”: Kavalee v Burbidge; Hyland v Burbidge (1998) 43 NSWLR 422 at 441.
The parties agreed that if the Plaintiff is successful, there would be a need to be property designated as notional estate of the mother, as there are no assets, of sufficient value, in the actual estate of the mother, to satisfy the making of the family provision order, and any order as to costs, that the Court is of the opinion should be made: s 88(b) of the Act.
The concession referred to did not extend to agreeing that the Court should make a notional estate order. Indeed, for reasons to which I shall come, whether any notional estate order should be made was a matter of significant contest in the proceedings.

Some formal matters

There has not been a grant of administration in respect of the testate estate of the mother.
It is unnecessary to consider the father’s estate as the whole of his estate has been distributed. It is, however, necessary to consider whether any grant of administration is necessary in respect of the estate of the mother.
In Wheat v Wisbey [2013] NSWSC 537, I discussed whether it was necessary for there to be a grant of administration in an estate, before an application for a family provision order can be dealt with. I also concluded that a grant of administration is not required at the time an application for a family provision order is made. I referred to s 58(1) of the Act which specifically provides that an application for a family provision order may be made whether or not administration of the estate of the deceased person has been granted.
I shall not repeat all that I wrote in Wheat v Wisbey. I referred to s 91 of the Act, and to the “rare” case in which there is only property that may be designated as notional estate. This is one such case. I concluded, at [57]-[59], that:

“In summary, then, in a case where there is an application for a family provision order in respect of the estate of a deceased person, or deceased transferee, or a notional estate order, in relation to which administration has not been granted:
(a) Where there is real and personal estate of which the deceased person dies seised, or possessed of, or entitled to, in New South Wales, at the date of death, a grant of administration is required before an application for a family provision order can be dealt with and it would be proper to make an order under s 91.
(b) In any other case, where there is no such real or personal estate, if:
(i) the holder of the property the subject of the application for a notional estate order is a party to the proceedings;
(ii) a family provision order and a costs order is made in favour of the applicant;
(iii) a notional estate order is, or may be, made in respect of the property the subject of the application for a notional estate order for the purposes of a family provision order, or for the purposes of an order that the whole, or part, of the costs of proceedings in relation to the estate or notional estate of a deceased person be paid out of the notional estate of the deceased person;
(iv) an order is made that the holder of the property the subject of the notional estate order, or that person agrees, to satisfy the family provision order; and
(v) the court makes an order that the family provision order not take effect as set out in s 72(a) or (b),
then, it may not be ‘proper’ to make a s 91 grant.
In stating my view, there is much to be said for the view expressed by Young J in Re Estate Harriett Cassel [2000] NSWSC 294, although in that case, he was speaking of the former Act:
‘[8] The grant under s 41A is not a grant entitling the grantor to administer the estate in any way at all. It is a grant purely to get over the barrier that would otherwise prevent an application being made under the Family Provision Act.
[9] Accordingly, what usually occurs in this sort of case is that a grant is made to the plaintiff who is about to bring proceedings under the Family Provision Act. The Court, when hearing those proceedings, then needs to appoint a person to represent the estate under Pt 8 r16, or some other rule under Pt 8.
[10] All this seems rather pointless. A grant is made purely to remove the barrier to the Family Provision Act claim. It does not provide for the administration of the estate, provide authority for anyone to enquire as to the deceased's assets or the identity or wishes of the beneficiaries. It is left to the plaintiff to make a series of applications, (1) to the Probate Court for a grant; and (2) to the Equity Court for directions as to who should be a representative defendant. These costly applications confer no real benefit on anyone. It may well be that s41A should be amended or the Family Provision Act amended so as to permit applications to be made without a grant, provided that the Court is able to appoint a person to represent the estate.’”

I have repeated these views in a number of cases, including Curnow v Curnow [2014] NSWSC 896, and, most recently, in Soens v Rathborne [2018] NSWSC 302.
In John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19, at [131], the plurality of the High Court accepted the submission that “where a court is invited to make, or proposes to make, orders directly affecting the rights or liabilities of a non-party, the non-party is a necessary party and ought to be joined”.
In Smith v Dayman [1994] NSWCA 286, Handley JA had earlier remarked that “[a] court could not, ordinarily, make orders designating property as notional estate without the owners being parties to the proceedings”. Both of these decisions were recently referred to by Gleeson JA (with whom Simpson JA agreed) in Yee v Yee [2017] NSWCA 305, at [196]-[198].
The Defendant is now entitled to be registered as the sole proprietor of real estate, situated at Wyee Point, a far southern suburb of the City of Lake Macquarie, in New South Wales (“the Wyee Point property”), the interest, as a joint tenant, of the mother, at the date of her death, which is sought to be designated as notional estate. The failure to sever an interest as a joint tenant may be a “relevant property transaction”: s 76(2)(b) of the Act. There was really no dispute about this.

The Defendant appeared by counsel at the hearing and has otherwise participated in the proceedings since its commencement. In the circumstances of this case, there is no need for an order under s 91 of the Act as the Defendant is a party/Defendant and if an order designating property as notional estate is made, he will be required to satisfy that order. If a problem arises in him doing so, the court can make consequential and ancillary orders for the purpose of giving effect to the family provision order: s 66(1) of the Act.
As stated, the Plaintiff commenced the proceedings 1 year and 3 weeks after the mother’s death, in other words three weeks after the expiration of the time prescribed by the Act. He found out about the death of the mother a few days after the expiration of the period prescribed by the Act and the proceedings were commenced very promptly thereafter. It is not suggested that the Plaintiff had found out earlier than the time he had revealed in his evidence.
The Plaintiff seeks an order that the time for the making of his application be extended to the date of the filing of his Summons, pursuant to s 58(2) of the Act. As the consent of the Defendant was not given, the Plaintiff will have to satisfy the Court that there is “sufficient cause” for the application being made out of time.
Section 57 of the Act provides that “eligible persons” may apply to the Court for a family provision order in respect of the estate of a deceased person. There is no dispute that the Plaintiff, as a child of the mother, is an eligible person within the meaning of that term in s 57(1)(c) of the Act.
The only other person who is an eligible person, within the meaning of that term in the Act, is the Defendant. The Act, in s 61, provides that in determining an application for a family provision order, the Court may disregard the interests of any other person by, or in respect of, whom, an application for a family provision order may be made (other than a beneficiary of the deceased person's estate) but who has not made an application. Even though the Defendant has not commenced proceedings under the Act, he has given evidence of the bases of his claim on the bounty of the deceased, as the only beneficiary named in the mother’s Will, and otherwise. He has raised his financial circumstances. As is now clear from its terms, the section is not directed towards enabling the court to disregard the claims of those to whom a deceased may have had an obligation which obligation had been adequately discharged by the provision made for that person in the deceased's will.
The Defendant has also raised matters going to whether a notional estate order should be made. He was cross-examined.

Background Facts

It is impossible to reach clear findings of facts in all of the areas of dispute. Nor is it necessary to trawl through all of the detail of the affidavits filed. It is difficult, if not impossible, to reconcile the contradictory expressions of fact and opinion which the affidavits reveal. I have endeavoured to recite findings of fact, some of which are not contested, and some of which I find on the balance of probabilities. Other facts are identified as being in issue between the parties.
The father was born in Copenhagen, Denmark, in September 1920. He died in 2009, at the age of 87 years. The Plaintiff was not informed of the father’s death until early 2012, in circumstances to which I shall come.
The mother was born in Copenhagen, Denmark, in April 1922. She died in 2017, at the age of 94 years. It was accepted that the Plaintiff was not informed of the mother’s death until about mid-September 2018, in circumstances to which I shall come: Tcpt, 18 November 2019, p 2(10-23). The father and the mother were married in about 1945. There were two children of the marriage, being the Defendant, who was born in Copenhagen, in August 1947, and the Plaintiff, who was also born there, in June 1951.
The family came to Australia in September 1956.
In July 1958, the father and the mother purchased, as joint tenants, a property situated at Carina Road, Turramurra (“the Turramurra property”). The father built the home on this property in which the family lived for some years.
Each of the Plaintiff and the Defendant, as soon as he found work whilst he was living with his parents, paid board, respectively, to them. (Although the Plaintiff asserted that the Defendant did not do so, I do not accept his evidence on this topic.)
In 1967, the Plaintiff moved out of the Turramurra property. He moved back there in 1969 for a short period of time.
In about 1969, the Plaintiff met Georgena Hamilton Simpson, with whom he was in a de facto relationship, subsequently, for about 40 years. Their relationship is said to have ended in about October 2013, although, at the time of the hearing, they remain living under the one roof, with one of their children, in a home said to be owned by two of their other children.
Ms Simpson was a witness in the proceedings. She, too, was cross-examined. I shall return to some of her evidence later in these reasons.
The Plaintiff and Ms Simpson have three children, namely Adam Kongspark, who was born in February 1973, Michelle Kongspark, who was born in July 1984, and Andrew Nielsen, who was born in June 1985. Only Andrew was to be a witness in the proceedings. He lives with the Plaintiff and Ms Simpson in a 4 bedroom home that he and his sister, Michelle, are said to own, in Mowbray, Tasmania. The three members of the household share equally the living expenses of the household: Tcpt, 18 November 2019, p 35(29-43).
Andrew’s affidavit, which had been served shortly before the hearing, was not read, as he was not available for cross-examination. However, as a person with whom the Plaintiff was co-habiting, there was tendered some documentary evidence, to which I shall refer, going to his financial circumstances.
In 1995, the father and the Defendant purchased, as joint tenants, a property at Blue Haven, a suburb on the Central Coast of New South Wales (“the Blue Haven property”). The purchase price was $162,250. The Blue Haven property was unencumbered following its purchase. The Defendant said that he paid about $80,000 towards the purchase price of the Blue Haven property, with the father paying the balance thereof together with the stamp duty and the legal costs of purchase. I shall return to this assertion as whether he did so was an issue in the proceedings.
The Defendant stated that at the time of the purchase of the Blue Haven property, the solicitor acting for his parents and him, one Mr Higgins, explained to the three purchasers, the effect of purchasing the property as joint tenants. The evidence was not objected to and the Defendant was not cross-examined on the conversation to which he had referred.
Initially, the Blue Haven property was used as a weekender, which the father, the mother and the Defendant, visited. They moved into the Blue Haven property, on a full-time basis, in about September 2000.
In about September 2000, the father and the mother sold the Turramurra property for $480,000.
In August 2001, the father, the mother, and the Defendant, purchased the Wyee Point property, as joint tenants. The purchase price was $480,000. The Defendant says that the purchase price was paid as to one half, by his parents, and as to the other half, by him. I shall return to this assertion as whether he did so was an issue in the proceedings.
In 2002, the father and the Defendant sold the Blue Haven property for $280,000. The Defendant said that his one half share of the net proceeds of sale was paid to the father to reimburse him for his contribution to the purchase of the Wyee Point property, the title to which had been registered in the name of the father, the mother, and the Defendant.
The Defendant has not lodged, with the NSW Land Registry, a notice of death and transmission application in respect of either the father’s interest, or the mother’s interest, respectively, in the Wyee Point property: Tcpt, 18 November 2019, p 2(48) – p 3(4). There was no dispute that he is now entitled to be registered as the sole proprietor of that property: Tcpt, 18 November 2019, p 3(10-24).
The Defendant stated, in his affidavit made 14 March 2019, at par 15, that “I have lived with my parents for all of my life except when I went to Cessnock to do my pilot training with NASA when I spent 1 - 2 years living at the academy”.

The nature and value of the father’s estate and notional estate

The parties, in accordance with directions made, provided a Schedule of Property (“the Joint Schedule”), which was marked as Ex. JS1, from which the following values have been taken. In what follows, I have omitted the reference to cents.
It is necessary, first, to say something about the father’s estate and notional estate, even though the Plaintiff’s claim for provision out of that estate and notional estate did not proceed.
As there was no application for a grant of administration of the father’s estate, there was no Inventory of Property, contemporaneous, or near contemporaneous, with the father’s death, that was filed, which Inventory of Property disclosed the nature and value of the father’s assets and liabilities at that time.
The Defendant, however, disclosed that the father’s actual estate, at the time of his death, consisted of cash ($10,000), a car ($15,000), a second car ($2,000), and furniture and personal effects ($5,000). There were funeral expenses of about $5,500. It follows that the distributable actual estate of the father was about $26,500.
Section 61B of the Probate and Administration Act 1898 (NSW), which section has since been repealed, applied at the date of the father’s death in 2009 because Chapter 4 of the Act did not come into operation until 1 March 2010. By s 61B(3), since the value of the estate (excluding any household chattels) did not exceed the prescribed amount, the whole estate was held in trust for the mother and, subsequently, was distributed to her. The value of the father’s estate was, thus, negligible.
The father’s interest in the Wyee Point property passed, by survivorship, to the mother and to the Defendant. After the father’s death, the mother and the Defendant were entitled to be registered as joint tenants. However, title to the Wyee Point property remained, and even now, remains, registered in the three names as joint tenants.
There is no evidence of the value of the Wyee property at the time of the father’s death in 2009, and the Defendant did not disclose in his first affidavit, the father’s interest, as joint tenant, in the Wyee property, as property that could be designated as the father’s notional estate. However, counsel for the Defendant, in his written outline of submissions, accepted that the father’s interest in the Wyee Point property passed to the mother and to the Defendant by survivorship and that the father’s interest in the Wyee Point property at the date of his death, was, notionally, a one third interest.
In the Joint Schedule (Ex. JS1), no mention was made of the father’s interest in the Wyee Point property at the date of his death either. However, the parties agreed that, after payment of the liabilities (including $550 for the Notice of Death forms), the estimated gross value of the Wyee Point property that could have been designated as notional estate was $337,283. (Of this amount, the value of the one third interest in the Wyee Point property was estimated to be $333,333.)
It might be said, therefore, that the mother and the Defendant, as a result of the father’s death, each received an interest in property with a value of $166,666.

The nature and value of the mother’s estate and notional estate

Similarly, there was no application for a grant of Probate of the mother’s Will. Thus, there was no Inventory of Property contemporaneous, or near contemporaneous, with the mother’s death, that was filed, which disclosed the nature and value of the mother’s assets and liabilities at that time.
In his first affidavit, the Defendant disclosed that the mother’s actual estate consisted of cash ($889), a car ($5,000) and furniture and personal effects ($5,000). There were funeral expenses of $7,383, which the Defendant has paid out of his own funds. It follows that the value of the actual distributable estate of the mother was about $3,500. It, too, was of negligible value.
Under the terms of the mother’s Will, the whole of her estate passed to the Defendant. The whole of the actual estate appears to have been distributed to the Defendant although he has paid some expenses associated with her estate.
The mother’s interest in the Wyee Point property passed, by survivorship, to the Defendant. He acknowledged that the mother’s interest, as joint tenant, in the Wyee Point property, could be “considered notional estate”. Counsel for the Defendant, in his written outline of submissions, accepted that her notional interest in the Wyee Point property, at the date of her death, was a one half interest. At the date of her death, the estimated total value of the Wyee Point property was $912,000. The parties agreed that, at the date of her death, the gross one half value of the mother’s notional interest in the Wyee Point property was $456,000.
The parties also agreed that, at the date of hearing, the total value of the Wyee Point property was $1,000,000. They agreed, then, that the gross one half notional interest of the mother, in the Wyee Point property, was $500,000, and as the assets had been distributed to the Defendant, the value of the car ($5,000), and the furniture and personal effects ($5,000) should be added to that estimated value. The parties then deducted the mother’s funeral expenses ($7,933), leaving property that could be designated as notional estate with a gross value of $502,066. This amount is the maximum value of the property that could be designated as notional estate (without taking into account any costs of the proceedings), although the Court must not designate, as notional estate, property that exceeds that necessary, in the Court's opinion, to allow the provision that should be made, or, if the Court makes an order that costs be paid from the notional estate under s 99, to allow costs to be paid as ordered, or both: s 89(2) of the Act.
It was not in dispute that if an order for provision, or for costs, were made, then it would be necessary for the Defendant to sell the Wyee Point property. The estimated costs and expenses of sale of the mother’s interest in the property were estimated to be $16,250.
It follows that, after deducting the relevant share of the costs and expenses of the sale of the Wyee Point property, the maximum value of the property that could be designated as notional estate of the mother out of which an order for provision could be made, is $485,816. This estimate does not take into account any costs and disbursements of the proceedings.
Unsurprisingly, the Defendant stated that he does not seek any commission, or percentage, for his pains and trouble, as is just and reasonable, out of the estate of the mother, pursuant to s 86 Probate and Administration Act.

The Costs of the proceedings

Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Chapter 3 of the Act, in relation to the estate and notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate, or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.
Usually, in calculating the value of the deceased's estate or notional estate available from which a family provision order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that his, or her, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate and/or notional estate of the deceased; while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that his, or her, costs, calculated on the indemnity basis, should be paid out of the estate and/or notional estate. The size of the deceased’s estate and notional estate, and the conduct of a party, may justify a departure from what is said to be the usual rule.
As Basten JA put it in Chan v Chan (2016) 15 ASTLR 317; [2016] NSWCA 222, at [54]:

“In considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs.”

However, this statement does not mean that parties should assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate or notional estate: Carey v Robson (No 2) [2009] NSWSC 1199; Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195; Harkness v Harkness (No 2) [2012] NSWSC 35. I have made this statement, many times, in the context of a claim for a family provision order.
Ms L Gidley, the solicitor on the record for the Plaintiff, estimated the Plaintiff’s costs and disbursements, calculated on the indemnity basis, which will be incurred by the Plaintiff to the completion of the hearing (based on an estimated of a two day hearing) inclusive of GST are $72,069. Those costs and disbursements, calculated on the ordinary basis, were estimated to be $54,957. The Plaintiff has not paid any of his legal costs and disbursements.
(Of the total of the indemnity costs, the amount of $30,966 is the estimated costs and disbursements payable to Ms Gidley’s firm, which has acted for the Plaintiff from 11 September 2019. The balance is made up of costs and disbursements payable to two firms of solicitors who previously acted for the Plaintiff, namely Turnbull Hill Lawyers ($24,183), which firm acted for the Plaintiff from 21 September 2018 until 8 February 2019, and Charter Law Legal ($15,540 and $1,379 for the assessment of their costs), which acted for the Plaintiff between 13 March 2019 and 11 April 2019.)
On 1 October 2019, Charter Law Legal obtained a judgment for $17,203 against the Plaintiff for the outstanding legal fees. The Plaintiff was served with a Bankruptcy Notice on 22 October 2019 requiring payment of the judgment debt within 21 days after service on him of the Bankruptcy Notice.
Ms Gidley stated that none of the solicitors who had acted for the Plaintiff had, or has, entered into a conditional costs agreement with the Plaintiff. (Section 181 of the Legal Profession Uniform Law (NSW) deals with "conditional costs agreements" and states that such an agreement may provide that the payment of some, or all, of the legal costs is conditional on the successful outcome of the matter to which those costs relate. Section 182 provides that a conditional costs agreement may provide for the payment of an uplift fee.)
Counsel for the Defendant, in his written Outline of Submissions, stated that “[c]osts will need to be dealt by way of a separate hearing. If the Plaintiff is successful, given the size of the estate, consideration will need to be given to a gross sum cost order in respect of the Plaintiff's costs.”
There can be no doubt that the Court has power to depart from the usual order for costs to be assessed to make an order, under s 98(4) of the Civil Procedure Act 2005 (NSW) for a specified gross sum, instead of assessed costs. The power may be exercised when, for example, it is desirable to avoid the expense, delay and aggravation likely to be involved in contested costs assessment.
The Court also has power to cap the Plaintiff’s costs of the proceedings: see par 24 of Practice Note SC Eq 7 and s 98(4) of the Civil Procedure Act.

Mr W H Allan, the Defendant’s solicitor, estimated the Defendant’s costs and disbursements, calculated on the indemnity basis, of the proceedings, to be $80,000. (Those costs and disbursements calculated on the ordinary basis were $66,000.) Mr Allan stated that the Defendant has not entered into a conditional costs agreement with the firm of solicitors acting for him.
The Defendant, personally, has paid $3,877 of the costs and disbursements.
Mr Allan also made the following disclosure in his affidavit sworn on 15 November 2019:

“4.   In the event that the defendant is not required to sell his home as a result of the outcome of these proceedings, I am prepared and have agreed with the defendant that any professional costs he owes to my firm will be paid:
a.   firstly, from any personal assets he has; and
b.   secondly, by way of a payment plan over time.
5.   I will not take any steps to require the defendant to sell his home or obtain any finance over the home to pay the professional legal costs but rather I will allow him to pay off the profession [sic] costs over time.
6.   I have explained to the defendant he will be required to immediately pay, irrespective of the outcome of his case, counsel fees and disbursements that have been incurred on estimated to be $23,000 inclusive of GST.”

During oral submissions, counsel submitted that apart from the possibility of the Defendant seeking a gross sum costs order, the Court could not determine how costs should be borne, as there are, or may be, documents that could be relevant to this question. Regrettably, whatever the result of the proceedings, unless the parties are able to agree, it will be necessary to set the matter down for a costs argument following the delivery of these reasons for judgment.

The estimated value of the notional estate at the date of hearing out of which an order for provision could be made

Taking into account the estimated gross value of the mother’s property, as at the date of hearing, that could be designated as notional estate ($485,816), and deducting the estimated costs and disbursements, calculated on the ordinary basis, of the Plaintiff ($54,957), and the estimated costs and disbursements, calculated on the indemnity basis, of the Defendant ($80,000), the maximum amount out of which an order for provision for the Plaintiff could be made is $350,859: Tcpt, 18 November 2019, p 7(24-30).
On any view, the value of property out of which an order in favour of the Plaintiff could be made is not large.

The Witnesses

The Plaintiff, Ms Simpson, and the Defendant were the only witnesses who were cross-examined. It is necessary to say something about the credibility of each.
I was not impressed with the evidence of the Plaintiff, who made clear his intense dislike of the Defendant, and who was prepared, gratuitously, and with little hesitation, to make a number of derogatory remarks, and otherwise cast aspersions about him, such as him being “a …greedy old man sitting over there. He can’t even look me in the eye”: Tcpt, 18 November 2019, p 44(11-19); “my brother … is a nut and he’s got barbed wire everywhere”: Tcpt, 18 November 2019, p 47(42-46); “…he starts going on like some maniac like he does”: Tcpt, 18 November 2019, p 48(7-11).
Importantly, the Plaintiff asserted that it was all “totally” the Defendant’s fault that he had not had any contact with the mother for many years prior to her death. Indeed, the Plaintiff stated that he had no responsibility at all for the lack of contact between him and her: Tcpt, 18 November 2019, p 48(13-18). The result, so it was asserted, was the Plaintiff’s attribution of the lack of contact with the mother, to be entirely due to the Defendant’s manipulation of her.
The Plaintiff’s evidence provides a reliable window into the state of mind of the Plaintiff and reveals that he was not prepared to face, let alone to take, at least some of the responsibility for the mother’s expressed attitude that she wished to have nothing to do with him. Whilst I think his belief is subjectively genuine, and entrenched, I do not accept it as according with reality.
The Plaintiff was also referred to the statement in the Guardianship Tribunal’s Reasons for Decision, to the effect that the mother believed that the Plaintiff had treated her, her husband, and the Defendant, “badly”. Whilst he did not expressly deny the assertion, which I accept was made by the mother to the Guardianship Tribunal, his responses were “Well what can I do. People can say what they like”; that he had “[n]ever done anything wrong by my mother”; and that “I have a clear conscience”: Tcpt, 18 November 2019, p 54(16-36).
The Plaintiff stringently maintained his position, later acknowledging having seen a copy of the letter dated 1 June 2012, from the Defendant’s solicitor, to his solicitor, which stated that the mother “was quite adamant in instructing us she wished to have absolutely no contact” with him. I have no reason to doubt the instructions recorded in the letter came from the mother. However, when asked about the statement of the mother’s wish, he said “we don’t know what state of mind she had”: Tcpt, 18 November 2019, p 53(37-39). One might think, that the passage quoted made her state of mind clear.
It did not seem to occur to the Plaintiff, or if it did, he was not prepared to accept, that his previous conduct towards other members of his family may have provided the basis for the mother expressing the views that she did. It is hard to have any confidence in the Plaintiff’s protestations about his prior behaviour and his attribution of blame only to the Defendant.
The Plaintiff expressed his views very definitely, and unequivocally. His lack of insight, in my opinion, colours the reliability of some of his evidence, particularly about his relationship with the mother. Even during submissions, he expressed, audibly, his exasperation at the Court raising some matters about his conduct with his counsel, who, I might say, engaged with the Court in a professional and courteous manner, clearly understanding the purpose of the discussion and the need to respond to the concerns of the Court.
There was also other evidence which makes it clear that the Plaintiff clearly harboured deep resentment towards the Defendant because of feelings that the father and the mother had shown the Defendant favouritism, during the parents’ lifetimes, and even after the death of each.
I do not accept, as an adequate reason for the Plaintiff’s failure to contact the mother, that he did not want to see, or speak with, the Defendant. He seemed to have no difficulty with the Defendant within the confines of the Court and it was the Plaintiff who aimed the barbs at the Defendant to which I have referred.
I also formed the view that the Plaintiff was extremely emotional about the terms of the mother’s Will and sought, by these proceedings, to be “recognised” as a child of both of his parents: Tcpt, 18 November 2019, p 48(29-36).
Whilst in New Zealand, it has been said that “[A] child's path through life is supported not simply by financial provision to meet economic needs and contingencies but also by recognition of belonging to the family and of having been an important part of the overall life of the deceased” (see Williams v Aucutt [2000] 2 NZLR 479; [2000] NZCA 289, at [52]), the Act, in New South Wales, does not expressly refer to such a consideration.
However, by requiring the applicant to prove that he, or she, is an eligible person, in this case a child of the deceased person, there is the recognition of the relationship. It may also recognise the relationship, as will be read, in s 60(2)(a), (b), (h), and (m), to which sub-sections I shall refer later in these reasons.
Furthermore, the word “support” referred to in the similar New Zealand legislation (the Family Protection Act 1955 (NZ)), does not find its way into the Act. To include “recognition”, on its own, in the Court’s consideration, as the basis for provision, does not take into account the respective needs and contributions of other competing claimants, and could exclude claims by a person with a greater claim on the bounty of the deceased.
In this case, also, the relationship of the Plaintiff and the mother is said to have become non-existent by the time she died. The lack of contact between the Plaintiff and the mother during the years before her death is a matter to be taken into account.
The Plaintiff also said that he would like an order for provision by way of a lump sum out of the notional estate of the mother, to enable provision to be made for his own children: Tcpt, 18 November 2019, p 33(23-34). This ground suggests that provision is not being sought, entirely, for his own maintenance or advancement in life, but rather, at least in part, for the benefit of his children. Whilst “actual and potential burdens on the financial resources of an applicant … including those for which there was only a moral and not a legal responsibility, could be material circumstances in considering an applicant's claim”: Kleinig v Neal (No 2) [1981] 2 NSWLR 532, in circumstances where only one of the children continues to live with the Plaintiff, and where there is no evidence that the other children require assistance, it is difficult to see the relevance of the basis of the Plaintiff’s claim on this ground.
Other written evidence, served as recently as October 2019, stated that the Plaintiff wished to purchase accommodation for himself “so that I am no longer a burden upon my children”. His evidence on this topic included that such accommodation would cost between about $349,000 and $395,000. He also claimed he needed a fund to purchase electrical appliances ($10,000 to $15,000), an amount to discharge his liabilities, which, in total were said to amount to $49,006 (which are for the legal costs and disbursements incurred in these proceedings), and the costs of having dental work done (the amount claimed was not read, an objection to the evidence having been made).
On the topic of debts, the Plaintiff gave evidence that Ms Simpson had lent him $5,000, which amount he had not repaid, in order to enable him to pay for a container to ship his goods to Denmark, when, in about 2013 or 2014, he had the intention to move there. However, that alleged debt had not been included in the “liabilities” of $49,006 referred to above.
Provision of the amounts claimed as “needs”, by order of the court, would result in all of the value of the property that might be designated as notional estate of the mother being paid to him, leaving nothing for the Defendant out of the deceased’s interest in that property. This also seems to demonstrate the Plaintiff’s own unjustified, and unrealistic, sense of entitlement to a share of the mother’s estate.
The Plaintiff disputed that he had received a copy of the Guardianship Tribunal Reasons for Decision dated 12 March 2012. Indeed, he denied he had seen a copy of the reasons (Tcpt, 18 November 2019, p 40(39-43)), despite the fact that a copy had been annexed to his first affidavit. When this was pointed out to him, he said that he had probably not read the affidavit before he signed it: Tcpt, 18 November 2019, p 41(14-17). Subsequently, in answer to questions from the Bench, he seemed to accept that he did receive a copy saying “we must have”: Tcpt, 18 November 2019, p 49(41-48).
His evidence, on this topic, was not persuasive, and I do not accept that he did not receive a copy of the Guardianship Tribunal Reasons for Decision. To the contrary, I am satisfied that he did. In this way, he must have read about the mother’s state of mind.
The Plaintiff acknowledged that one of the reasons he had made the application for the appointment of a financial manager was because he did not know what plans the Defendant had about their parents’ estate. This, in my view, was not a legitimate reason for making the application for a financial manager, particularly when he had no knowledge of the mental state of the mother at the time the application was made. The making of the application, on that basis, in my view, demonstrated a lack of consideration of the effect upon the mother that the receipt of such an application might have.
Another aspect of the Plaintiff’s evidence that goes to his conduct towards the mother relates to requesting the Police to attend at the Wyee Point property at different times, after the Guardianship Tribunal proceedings, knowing that the Tribunal had been satisfied that she did not lack capacity.
The attendances of the Police were, as the Defendant wrote, extremely distressing to the mother. Again, the Plaintiff did not seem to have considered the effect of doing what he did.
Naturally, the Plaintiff maintained that the steps he took demonstrated a concern for the welfare of the mother and this conduct should be taken into account, in a positive, rather than in a negative, way, in determining his proceedings. There might have been some merit in this submission, but there was no satisfactory explanation for him not having attempted to visit the mother at any time after he returned to live in New South Wales (if necessary at the time of the Police attendances which he had orchestrated). Once again, he blamed the conduct of the Defendant, but he did not provide any evidence to substantiate the assertion.
I have taken into account the attempts said to have been taken in order to resurrect his relationship with the mother. However, in doing so, I also take into account the effect of what he did to an elderly person who, so far as can be seen, was not a person who required a guardian, or a financial manager, and who appeared to be content to rely upon the Defendant.
Following from the last paragraph, there is another aspect of the Plaintiff’s evidence that does not assist him on this topic. It is clear that Ms Simpson played a significant role in the steps taken, with third parties, as referred to above.
No evidence was given by Ms Simpson of how otherwise she had “tried to assist [the Plaintiff] with a reconciliation with his parents and that all mechanisms that you have tried [were] unsuccessful”. There is no evidence of any steps taken by her to attempt to repair the fractured relationship that existed between the mother and the Plaintiff by any communication directly with the mother.
Turning then to Ms Simpson, I was also not overly impressed with some of her evidence in the witness box. She too, in my view, held a degree of animosity towards the Defendant and endeavoured to justify the application of the Plaintiff and his conduct towards the deceased.
Importantly, whilst she acknowledged her obligation to give truthful evidence, there was one aspect of the facts, that was mentioned during the cross-examination of the Plaintiff (at Tcpt, 18 November 2019, p 32(43) – p 33(21)), that had been omitted, completely, from her affidavit, namely that she, herself, had previously commenced proceedings for a family provision order in 2013, in this Court, in which proceedings she sought greater provision than that made for her by the Will of her mother, Wilhelmina Hamilton Simpson. Those proceedings had been resolved by orders of the Court made on 4 July 2013, at a court-annexed mediation. Pursuant to those orders, Ms Simpson had received a greater share of her mother’s estate: Ex. JS2. The share (25 per cent of the residuary estate) that she received, after the payment of costs, equated to $234,000: Tcpt, 18 November 2019, p 59(3-4).
She also gave oral evidence, not previously disclosed, that she had used part of the amount received to purchase the property, in the names of her two children, in which the Plaintiff, she, and Andrew, have lived since early 2014. The amount that she said she had contributed was $120,000: Tcpt, 18 November 2019, p 68(33-36). She did not disclose what she had done with the balance.
Ms Simpson sought to explain the omission by stating that she had not been asked about these matters by the Plaintiff’s legal representatives. I do not accept her evidence in circumstances where she had stated in her affidavit (as had the Plaintiff):

“I currently live in a house owned by my son, Andrew, and my daughter, Michelle.”

The clear impression sought to be created by her evidence was that she did not have any interest in the house that was owned by two of her children.
This impression sought to have been created is made even more likely as Ms Simpson appears to have been given some advice about the effect of having contributed, in this way, to the purchase price of the house, in circumstances where she had not intended to make a gift of the amount to Andrew and Michelle. She referred to “a trust situation”: Tcpt, 18 November 2019, p 60(8-16), but then tried to suggest that she was talking about her “trusting that everybody is going to be nice to each other”.
I do not accept her evidence about this topic. In my view, what she had earlier referred to, and about what she was likely to have been given advice, was the concept of a resulting trust, and a beneficial interest that she might have in the house in which she and the Plaintiff lived. That is the “trust situation” to which I consider she was referring.
Some caution is also required in relation to the Defendant’s evidence. My concern regarding his evidence relates to the assertion that he contributed equally to the purchase price of the Blue Haven property and to the purchase price of the Wyee Point property.
His evidence in cross-examination was somewhat different to his written evidence. In his affidavit made 14 March 2019, he averred:

“35. In or about 1995 my father and I bought a property at [XXX] Blue Haven as Joint Tenants, for around $162,000. My father put in half of the money and I contributed half of the money from my savings I had accumulated from my various jobs. We each paid about $80,000 and my father took care of paying the lawyers and stamp duty. We never had a mortgage over this property.
…
42. on the 3rd of August 2001 my parents and I purchased a property at [XXX] Wyee Point NSW as Joint Tenants for $480,000. The money to purchase Larapinta was contributed equally with half from my parents and half from myself. I used the proceeds from my share of the sale of Blue Haven which was sold in 2002 and received $263,000 I ended up with around $125,000 I had accumulated over the years from working. I paid about $245,000 towards the purchase and my parents paid the balance including stamp duty and legal costs.”

However, in cross-examination, he stated at Tcpt, 19 November 2019, p 92(39) – p 93(45):

“Q. Then the Blue Haven property was sold for $263,000?
A. That's correct.
Q. The transfer was stamped on 18 July 2002.
A. That's right.
Q. So the Blue Haven property didn’t sell until the year after you'd bought the Larapinta Drive property, did it?
A. That's correct.
Q. So you couldn't have used funds from Blue Haven to buy the Larapinta Drive property?
A. No, but see, again, my father covered me for that until the funds were available.
Q. You didn't say that in your affidavit though did you?
A. Well I should have, but that's because that's on, on further reflection, that's the way it was. You don't always remember everything, but I put down things as truly and as honestly as I could, but that's what happened. Obviously I couldn’t pay for it so he, he covered me for that, for that amount of money, and later on when the property was sold then, then he was paid that money back.
Q. But in your affidavit, all you say is that you used the proceeds of sale from Blue Haven--
A. Yeah.
Q. --to buy the Larapinta Drive property?
A. Well that's, that's basically what it is, yes.
Q. Your parents' property at Turramurra sold for $480,000 as well?
A. That's right.
Q. About a year before the purchase of the Larapinta Drive property, didn't it?
A. That's right, yeah.
Q. It's correct, isn't it, that your parents in fact used the money from the sale of the Turramurra property to buy the Larapinta Drive property?

A. Well of course they would have used, they would have used some of the money for it, yes of course.
Q. That was the source of the funds for that purchase wasn't it?
A. No, I paid half of it.
Q. But you didn't have half at the time?
A. No, but yeah okay, if you want to look at it that way, they, they probably paid, paid most of the money in the beginning until I could pay them back for that amount I was paying in as half.
Q. Is it the case that in these proceedings you've tried to talk up the amount you've contributed to the purchases of the properties--
A. No, no, not at all.
Q. --because you think it would put you in a better position--
A. No, not at all.
Q. --for these proceedings?
A. No.

Having read all of the evidence, I do not think that the Defendant paid one half of the purchase price of each property, although I do not accept the Plaintiff’s submission, that the Defendant had not contributed at all. I tend to the view that he probably contributed his share of the costs of the purchase of the Wyee Point property by repaying the father from his share the proceeds of the Blue Haven property. He may have also made some contribution to the purchase price of the Blue Haven property, but how much is difficult to determine.
Whatever the true position, there can be little doubt, that the Defendant made a far greater financial contribution than did the Plaintiff, to the purchase of either property.

The relationship of the parties with each of his parents

The relationship of each of the parties with the deceased is, of course, an important consideration in the determination of the claims made by the Plaintiff. As will be read, the Act specifically provides for consideration of “the character and conduct of the applicant” and “the conduct of any other person”. (Although the reference to conduct does not expressly refer to the conduct of the deceased, “that must be a relevant factor in assessing the relationship of the deceased and any other person”: Poletti v Jones [2015] NSWCA 107, per Basten JA, at [25].)
The Plaintiff’s outline of written submissions includes, at [8]:

“The plaintiff’s evidence is to the effect that he was largely estranged from his parents from about 1999. (The circumstances surrounding, and reasons for, that estrangement are considered further below).”

The Plaintiff acknowledged that the last time he saw the mother, in person, was in 1993, but he maintained that he had been in contact with both the father and the mother, by telephone, up until 2004, with the mother, and sometime between 2000 and 2004 with the father. The Plaintiff did not communicate, directly, with either of them after early 2004, and he did not see either in the years following until his, and her, death, respectively.
The Plaintiff endeavoured to explain the reasons for the lack of direct contact. In 1994, the Plaintiff, Ms Simpson and their three children, moved to England where they lived for about 2 years. In June 1997, the Plaintiff, Ms Simpson and their three children, moved to Auckland, New Zealand, where they lived until January 2000. They then returned to Sydney. In January 2001, he, Ms Simpson and their three children, moved to Queensland. In 2003, the Plaintiff, Ms Simpson, and their three children, moved to Kilcare, on the Central Coast of New South Wales. One year later, they moved to Umina, also on the Central Coast. In 2005, they moved to Castle Hill.
In July 2004, the Plaintiff and Ms Simpson referred the father and the mother to the Hunter Region Aged Care Assessment Team. In a letter dated 16 August 2004, addressed to the Plaintiff and Ms Simpson, the following appears (Affidavit, Ole Nielsen, 23 November 2018, Annexure “I”):

“Mr and Mrs Kongspark was (sic) referred to the Aged Care Assessment Team by yourself on the 9th July 2004 and were contacted by mobile phone by Kim Broadhurst on the 26th July and 16th August 2004. The request was for assessment to assist with family reconciliation.
As you are aware Mr and Mrs Kongspark refused any ACAT home visit on the 26th July. You were verbally informed of that outcome and very distressed, reasonably, by their refusal. It was agreed on that day that ACAT would try to phone Mr Kongspark again with one further offer of counselling. Attempts have been made to make that call and the phone number has not been answered.
Today a further attempt was made and Mr John Kongspark answered the phone. He refused to accept any ACAT visit or support that could be offered to his parents.
On our last conversation I was very concerned for you Georgina [sic] – your level of distress was great. I understand that you have only tried to assist your husband with a reconciliation with his parents and that all mechanisms that you have tried unsuccessful, including our service.”

There is no evidence explaining how Ms Broadhurst, who is referred to in the letter quoted above, was able to contact the father and the mother “by mobile phone”. I infer that a mobile telephone number must have been given to her by either the Plaintiff or by Ms Simpson. This inference leads to the conclusion that the Plaintiff must have been aware of a mobile telephone number which could be used to contact either or both of the parents.
In December 2011, the Plaintiff made an application to the Guardianship Tribunal for a guardianship order and a financial management order for the mother. The application was dismissed on 2 March 2012. In the Reasons for Decision of the Guardianship Tribunal, the following appears (Affidavit, Ole Nielsen, 23 November 2018, Annexure “J”):

“Background
Mrs Kongspark is 88 years old and lives with her son, Mr John Kongspark in Wyee Point. She is a widow and has another son, Mr Ole Kongspark who is the applicant in these matters. In his application received by the Tribunal on 29 December 2011 Mr Ole Kongspark sought a guardianship order for Mrs Kongspark because he is prevented from having access to her. In a report to the Tribunal dated 23 February 2012, the Tribunal officer states that on 22 February 2012 Mr Kongspark stated that his application was also an application for a financial management order because he does not now know what plans Mr John Kongspark has about their parents’ estate. A hearing was therefore listed in respect of a financial management application.
The Hearing
At the end of these Reasons for Decision are lists of parties to the application and witnesses who attended the hearing.
Before it makes a decision the Tribunal must try to bring the parties to a settlement if this is possible and appropriate. Mr Ole Kongspark did not speak directly to the Tribunal and therefore it was not possible to attempt to bring the parties to settlement.
…
When the Tribunal telephoned Mr Ole Kongspark to commence the hearing a person identifying herself as Mr Ole Konspark’s wife, Georgina [sic], said that Mr Ole Kongsgpark was seriously affected by hypertension and did not wish to participate in the hearing. The Tribunal asked to confirm with Mr Ole Kongspark whether he was applying to withdraw the applications but the person to whom Mrs Kongspark spoke, whom the Tribunal assumed to be Mr Ole Kongspark, was heard to say that he did not wish to speak to the Tribunal. The Tribunal also heard words to the effect that he wished to withdraw the applications, but as it had not been able to discuss a withdrawal application with Mr Kongspark the Tribunal decided to proceed with hearing the applications.
…
In his application Mr Ole Kongspark did not indicate that Mrs Kongspark had any of the listed disabilities and commented ‘unknown’ in response to the question of what disabilities or other health related factors affect the person’s decision making capacity.
Mr Ole Kongspark declined to speak to the Tribunal and his partner, Ms Georgina [sic] Kongspark, who spoke briefly to the Tribunal, did not provide any evidence regarding any disability.
In a Health Professional’s Report dated 9 February 2012 Dr Pravesh Shah states that he has known Mrs Kongspark for five years and sees her every four to six weeks. He states that Mrs Kongspark does not have a disability.
Mrs Kongspark told the Tribunaal that she sees Dr Shah every 6 weeks and that he prescribes tables for her ‘blood pressure’. She said that she has been living with her son Mr John Kongspark for 10 years and that she is very happy there. She said that Mr John Kongspark takes her on outings including clothes shopping and to the cemetery after buying flowers to place on her husband’s grave. She said that she and her husband moved to reside with her son because her husband thought they would be better off there. Mrs Kongspark agreed that she is alienated from her son Mr Ole Kongspark whom she believes has treated her and her husband and Mr John Kongspark badly.
…
The application completed by Mr Ole Kongspark is silent on the matter of financial management and he provided no evidence at the hearing in relation to the application for financial management. The reported comments of Mr Ole Kongspark in the Report to the Tribunal dated 23 February 20112 [sic] do not refer to whether or not Mrs Kongspark is able to manage her affairs.
In his Health Professional Report dated 9 February 2012 Dr Shah states that Mrs Kongspark does not have a disability and is not affected with respect to her financial management.
On the basis of the evidence before it, the Tribunal was not satisfied that Mrs Alice Kongspark is incapable of managing her financial affairs. Therefore the Tribunal ordered that the application for financial management should be dismissed, and did not proceed to address the other issues set out above in relation to the application for a financial management order.”

There is no reason to believe that the Reasons for Decision inaccurately described the events that occurred at the hearing, or the evidence provided to the Guardianship Tribunal referred to in the Reasons. Certainly, the Plaintiff did not suggest any inaccuracies in those Reasons.
The Plaintiff retained solicitors in May 2012. In a letter, dated 18 May 2012, from Thomas Booler & Co, to the Defendant, the following appears (Affidavit, Ole Nielsen, 23 November 2018, Annexure “K”):

“We act for your brother Mr Ole Nielsen.
We understand that your father Knud Harding Kongspark died on 29 June 2009. Unfortunately our client had to find this out through the Guardianship Tribunal because you did not communicate your father’s death to him or any other member of the family.
We also understand that you live with your mother Mrs Alice Kongspark. You have consistently refused our client the right to visit his mother or communicate with her at all, and similarly with his father during his lifetime, resort to verbal abuse when contacted.
Our client is concerned about your behaviour and your intentions and wishes to ascertain the following:
In relation to Alice:
1. Her current state of health;
2. Where she is currently living.
In relation to Knud:
1. Please provide us with a copy of his death certificate;
2. Please provide us with a copy of his will;
3. We are aware that probate has not been applied for. Please advise why not and why a Notice of Death has not been registered in relation to the property at XXX, Wyee Point.
4. Please provide us with an inventory of property of the deceased.
In relation to both Alice and Knud:
1. Please provide us with a copy of the authority you rely on to conduct your mother’s and previously your father’s affairs, be it Enduring Power of Attorney or other;
2. If Power of Attorney, please produce a copy of accounts and records of how you have handled Alice and Knud’s affairs;
3. Please advise the consideration provided by you that resulted in your joint tenancy with your father for the property at XXX Blue Haven; and
4. Please advise the consideration provided by you that resulted in your joint tenancy with your parents over the property at XXX, Wyee Point.
In light of your aggressive behaviour towards our client, his family and members of Hunter Health when approached in relation to either of your parents our client, as an interested party, has no choice but to believe that you have carried out your responsibilities as Power of Attorney with the interests of the donor(s) at heart and that you have benefited from the donors contrary to the fiduciary duties of a Power of Attorney.”

Bearing in mind the lack of contact between the Plaintiff and the mother over many years, it is difficult to know the factual bases for the allegation that the Defendant had not “carried out your responsibilities as Power of Attorney with the interests of the donor(s) at heart” and that he had “benefited from the donors contrary to the fiduciary duties of a Power of Attorney”. Nor are there any specific details provided in the letter of the Defendant’s “aggressive behaviour towards our client, his family and members of Hunter Health when approached in relation to either of your parents”.
In a letter dated 1 June 2012, from Mr Shane Boesen, solicitor, to Thomas Booler & Co, the following appears (Affidavit, Ole Nielsen, 23 November 2018, Annexure “L”):

“We write to advise we act for John Kongspark.
Mr Kongspark has provided us with a copy of your letter of May 18, 2012 addressed to him.
It may well be you have not received detailed instructions from your client as there was a Guardianship Tribunal application by your client in respect of his mother Alice Kongspark in March this year. The application was for guardianship and financial management.
We enclose a full copy of the Tribunal’s reasons for decision.
We note in your letter you request details of Mrs Kongspark’s current state of health and where she is currently living. With respect your client is well aware of both these matters given he would have viewed all of the documentation lodged with the Guardianship Tribunal including a full Health Professional’s Report by Doctor Pravesh Shah and especially so given your comment in paragraph two of your letter.
We advise we took instructions from Mrs Alice Kongspark when your client lodged the applications in the Guardianship Tribunal. Mrs Kongspark was quite adamant in instructing us she wished to have absolutely no contact with your client. This is confirmed in the Tribunal’s report.
We realise this may be distressing to your client however with respect your client needs to ‘get on with his life and move on’.
His mother wishes to have no contact with him.
[text cut off]…relation to the estate of the late Knud Harding Kongspark we advise Mr Kongspark died intestate.
Any assets of his estate were transmitted to his surviving spouse.”

The Plaintiff deposed that he then “did not pursue the matter further.” However, that is not quite accurate, as, apparently, he, and/or Ms Simpson, wrote a letter, dated 29 October 2012, to the Guardianship Tribunal (a copy of which is not in evidence), which prompted a letter dated 30 October 2012, from the Guardianship Tribunal, in the following terms (Affidavit, Ole Nielsen, 23 November 2018, Annexure “M”):

“Dear Mr & Mrs Kongspark,
I refer to your letter to the Guardianship Tribunal which was received on 29 October 2012. In relation to your request, the Tribunal is unable to contact Mrs Alice Kongspark on your behalf.
The Guardianship Tribunal is a legal tribunal which considers applications made to it in relation to people with disabilities.
I hope this information is of assistance to you.”

Again, it is difficult to know the reasons why the Plaintiff did not attempt to telephone the mother, or otherwise attempt to be in touch with her directly.
It is very difficult to make findings that attribute responsibility entirely to the Plaintiff, or to the mother, for the breakdown in their relationship principally because the direct evidence is so limited. No precise conduct appears to have been identified by the deceased to Mr Boesen, or for that matter, to the Guardianship Tribunal.
I am unable to attribute the cause of the breakdown of the relationship of the Plaintiff and the mother to the Defendant. I am not persuaded by the Plaintiff’s evidence, which is vague and non-specific, that the Defendant’s role in the breakdown was as significant as the Plaintiff endeavoured to portray.
Ultimately, however, whatever its causes, I find that this was not a short-term relationship breakdown, or a case where an otherwise long and loving relationship between a son and his parent had been ruptured shortly prior to death. It was not a temporary, but a longstanding, breakdown of relationship. For many years, there was a severance of ties between the Plaintiff and the mother. Its occurrence, and its deep-seated nature, has been established.
Also, this is not a case, unlike some, in which an applicant for provision, prior to the estrangement, has made personal, or financial, sacrifices in caring for his, or her parent, or in contributing to the parent’s estate. On the contrary, it was the Defendant and the mother who had lived together for almost all but a short period of the Defendant’s life. There is no evidence to suggest that the Defendant’s relationship with each of his parents was other than a close and loving one. The mother described herself as “happy” that she lived with the Defendant.
Of course, I have borne in mind that the Court must exercise caution in determining whether to accept the statements attributed to the deceased, and that, if accepted, the Court must carefully consider the weight to be attached to them. In Benham v Benham [2004] NSWSC 416, Master McLaughlin made the point, at [81], that:

“[T]he Court should not, however, overlook the fact that testators are human. A statement by a testator (which, by definition, cannot be tested under cross-examination), although admissible in evidence, need not be accepted by the Court unquestioningly or uncritically.”

The Plaintiff’s explanation for the delay in commencing proceedings

On 21 September 2018, the Plaintiff found out, it is said, “by chance”, that the mother had passed away twelve months and one week earlier. On the same day, Ms Simpson telephoned Turnbull Hill Lawyers and these proceedings were commenced a little more than two weeks later. There was no delay in the commencement of the proceedings after the Plaintiff found out that the mother had died.
Counsel for the Plaintiff submitted, in writing, that the Court should order that time for making the application in the mother’s estate should be granted, that such an order would cause no prejudice to the Defendant, in circumstances where the estate had not been fully administered, and that the Plaintiff’s explanation for the delay in respect of the making of the application in relation to the mother’s estate is “as complete an explanation as can be proffered – the [P]laintiff did not know she was deceased (and the reasons for the estrangement are considered below); sought legal advice on the same day of that discovery; and commenced proceedings very promptly (18 days) thereafter.”

Financial position and needs of the Plaintiff

The Plaintiff appears to be in quite a weak financial position. He owns a 19 year old car ($15,000); has a nominal sum in his bank account which fluctuates from time to time, by reason of receipt of a pension of $926 per fortnight; and he has some personal effects. He lives with Ms Simpson, and with Andrew, in the house in Tasmania that is owned by two of his children.
The Plaintiff has current liabilities of about $49,000, being the costs of these proceedings, said to be owed to his previous lawyers, which he has no means to meet. One firm of lawyers, which had acted for him in these proceedings, already have a judgment. If he does not succeed in his claim before this Court, he is at risk for an adverse costs order.
The Plaintiff suffers from high blood pressure and depression, for which he is medicated.
Ms Simpson is in receipt of an aged pension. I have referred to an interest that she may have in the property in which she and the Plaintiff live with Andrew.

The Defendant’s income is the age pension of about $2,027 per month ($933 per fortnight). This income exceeds his expenditure. He is able to live within his means and has a surplus amount at the end of the month. There is no need for him to sell the Wyee Point property, unless an order for provision and/or costs in favour of the Plaintiff is made.

(e) if the applicant is cohabiting with another person-the financial circumstances of the other person

The Plaintiff lives with Ms Simpson and their son, Andrew. Their financial positions are disclosed. It is not said how this family or household unit share expenses.

(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated

The Plaintiff suffers high blood pressure and depression. His medical expenses per fortnight are $40: Affidavit, Ole Nielsen, 22 October 2019 at par 12 and Annexure “C”.
The only disclosed medical condition of the Defendant is distress and anxiety (said to be caused by the prospects of having to relocate from his home of over 18 years): Affidavit, John Kongspark, 23 October 2019, par 27.

(g) the age of the applicant when the application is being considered

The Plaintiff was born in June 1951 and is 68 years old.

(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant

There are no disclosed contributions by the Plaintiff to the mother. By contrast, the Defendant has lived with his parents for virtually all of his life and provided them with considerable emotional and physical care and support.

(i) any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate

There is no evidence of any provision made for the applicant by the mother, either during her lifetime or made from her estate.

(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person

There is some evidence given by the Plaintiff that, in 1999, the father said that when he and the mother were no longer alive “the family home will go between you and your brother”: Affidavit, Ole Nielsen, 23 November 2019 at par 119. This conversation is inconsistent with the Defendant’s evidence. In any event, even if accepted, prior to the father’s death his position had changed with the deceased father saying to the Defendant in relation to the Wyee Point property, that “when our time comes you will take over this property and it will be yours”: Affidavit, John Kongspark, 14 March 2019 at par 71. This is consistent with the nature of joint tenancy.
There is no evidence about the mother’s testamentary intentions other than in the Will that she made.

(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so

There was no evidence that the Plaintiff was being maintained, either wholly or partly, by the mother before her death at any time after the Plaintiff moved out of home, aged 16 (in 1967) and again after he allegedly moved back to the home of the mother and father between ages 18-21 (in 1969-1972).

(l) whether any other person is liable to support the applicant

There is no such person disclosed.

(m) the character and conduct of the applicant before and after the date of the death of the deceased person

I have dealt with the character and conduct of the Plaintiff earlier in these reasons.

(n) the conduct of any other person before and after the date of the death of the deceased person

I am satisfied that the Defendant was a loving and dutiful child to the mother. He provided considerable care and assistance to his parents living with them his entire life (excluding 1-2 years, as has been discussed earlier). He contributed some money towards the Wyee Point property using sale proceeds from the Blue Haven property and some his savings, although perhaps, not as much as he had asserted, particularly in his affidavit evidence. The Wyee Point property was held as joint tenants with both of his parents.
The Defendant wishes to continue to live in the Wyee Point property as he has for about 17 years. He has a support network there: Affidavit, John Kongspark, 14 March 2019, at pars 42, 94, 96 and 99 and Affidavit, John Kongspark, 23 October 2019, at pars 27-28, about which he was not cross-examined.
In about 2005, the Defendant became a full-time carer, receiving a Centrelink carer’s pension: Affidavit, John Kongspark, 14 March 2019 at pars 50-51. There is really no reason to reject the Defendant’s evidence on the extent of the care and support given to each of his parents or in respect of the nature of their relationship.
He provided assistance with activities of daily living taking them to doctors, assisting around the home, taking them shopping, to the hospital, to banks, parks, social outings and doing the cooking and cleaning: Affidavit, John Kongspark, 14 March 2019 at pars 15, 38, 41, 49-51 and 67-68. There is no doubt that he has a very strong competing claim on the bounty of the mother, which she recognised through continuing to hold the Wyee Point property as joint tenants and by virtue of her Will.

(o) any relevant Aboriginal or Torres Strait Islander customary law

This paragraph is not relevant.

(p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.

There are no other matters that I consider relevant.

Determination

What is written below should be read as a continuation of what has been written above. In addition, I have regarded the factual matters referred to earlier, so far as they are relevant, to the circumstances set out below.
Claims for a family provision order present particular difficulties in proceedings where the estate is not large. Any provision made by the Court in favour of the applicant must, in this class of case, be made at the expense of the beneficiary who has had to defend the claim. The case becomes even more difficult where it is said that there is only property that can be designated as notional estate out of which an order for provision and costs may be made.
There being no dispute about the eligibility of the Plaintiff, I must determine whether sufficient cause is shown for the application not having been made within 12 months of the date of death.
In my judgement, the Plaintiff has provided a proper explanation for the application not having been so made. The reason was that he did not know of the mother’s death. Once he found out, arrangements were made for the filing of the Summons. The Summons was then filed promptly.
In the short period of three weeks, I cannot find that any prejudice was suffered by the Defendant. Nor can I find that there was any unconscionable conduct by either party. The Defendant could have informed the Plaintiff of the death of the mother, but, in the circumstances, it is understandable that he did not do so.
Subject to the answers to the other questions posed being favourable to the Plaintiff, in all the circumstances, I am satisfied that "sufficient cause" has been shown for the making of an order extending the time for the making of the Plaintiff’s application until the date of the filing of the Summons. However, for reasons to which I shall come, there is no point in making any order extending the time for the making of the application.
Since the preconditions for the making of an order designating property as notional estate is that it is for the purposes of a family provision order, or for the purposes of an order that the whole or part of the costs of proceedings in relation to the estate or notional estate of a deceased person be paid from the notional estate of the deceased person I must next consider whether, at the date of hearing, adequate provision for the proper maintenance or advancement in life of the Plaintiff has not been made by the Will of the deceased.
No provision was made for the Plaintiff in the Will of the deceased and there is no scope for the operation of the intestacy rules. However, the fact that the Plaintiff does not receive any provision does not, on its own, establish that the jurisdictional hurdle is established. Having considered the matters I am required to consider, the Plaintiff has failed to establish that the mother’s Will did not make adequate provision for his proper maintenance or advancement in life. The test established by s 59 of the Act has regard not only to what is “adequate” by reference to the applicant’s needs, but also to what is “proper” in all the circumstances of the case.
There is no doubt that his financial position is extremely modest, with no assets of any value to speak of, and a small surplus of income over expenditure. But his most significant debt relates to the costs that have been incurred in these proceedings. It is difficult to conclude that the Court should make a family provision order out of the estate of the deceased in order to ensure the payment of the costs of the proceedings. One asks rhetorically why a wise and just testatrix, or the application of contemporary community standards, would reasonably require that her Will should be altered in favour of an adult child who she excluded from her testamentary disposition, in order to provide for, amongst other things, the costs consequences of his decision to bring proceedings to effectively challenge that Will?
However, the question of costs of the proceedings cannot be determined yet because of the indication that there may be documents relevant to the determination of that issue. It must be accepted however, that some proportion of his own costs will have to be borne by the Plaintiff, whatever costs order is made.
I have considered the mother’s obligation to provide a capital sum, otherwise, for the Plaintiff’s advancement in life. But in considering all of the circumstances, I do not consider that the mother had any obligation in that regard. The Plaintiff’s relationship with her, for many years before her death, was virtually non-existent. There did not exist between them the love, companionship, and support, present in what may be described as “normal” parent/child relationships during those years, is a relevant consideration. Yet, I do remember, as Basten JA recognised in Andrew v Andrew, at [39], that “indifference, irritation or even outright hostility are also "natural" characteristics of some family relationships”. I have not yielded to the temptation to condemn, categorically, the behaviour of Plaintiff. It is clear, also, that he was financially independent of the mother throughout his adult life.
However, the Plaintiff’s conduct in taking the steps that he took, allegedly for the purpose of re-establishing contact with the mother, appear to have caused her greater anxiety and unhappiness. She was the subject of guardianship and financial management proceedings when the Plaintiff had no basis for making the assertion that she needed a guardian or a financial manager. Whilst she gave evidence in the guardianship proceedings, he did not, choosing not to participate when called upon to do so. It was also necessary for her to instruct lawyers in respect of the matter.
Subsequently, the Plaintiff made written allegations, by his solicitor, to which allegations the mother, by her solicitor, was required to respond in writing. Then, even after being informed, in writing, that the mother did not wish to have anything to do with him, he involved the Police. He had police attend at the Wyee Point property on a number of different occasions. Again, he did not attend with the police, but, simply left it to the mother, and the Defendant, to deal with the police officers on each occasion. Again, on each occasion, the attendance of the police would have been likely to cause the mother anxiety.
Also, there was no evidence, then available to the Plaintiff, to justify the involvement of the Police and certainly there is no evidence of any steps taken by the Police involving the mother from which it may be inferred that the Plaintiff’s so-called concerns were warranted or justified. These are matters in respect of which the Plaintiff bears sole responsibility.
The simple step of writing to the mother to explain his position and to seek to arrange a way, or at least try to arrange a way, of reconnecting with her, does not appear to have occurred to him, or if it did, he did not avail himself of that course.
The relationship of the mother and the Defendant was very different. He had a much greater claim, than did the Plaintiff, on her bounty. They had lived together for, virtually, the whole of the Defendant’s life and what the mother said about his role in her life could not be seriously challenged. Their financial circumstances, and their lives, generally, were intertwined. This is a case where there is also clear evidence to suggest that their relationship was extremely close and loving.
The deceased’s statements about the Plaintiff also must be considered even if they are not given determinative weight. They provide some evidence of the reasons why she made her Will in which she provided solely for the Defendant. Furthermore, her freedom of testamentary disposition is a relevant and important consideration.
The Court's discretion is not to be exercised for the purpose of making what may appear to be a fair distribution of the mother’s estate amongst her children. It is not part of the Court’s function to achieve some kind of equity between the children of the deceased. It has also been written many times, that the purpose of the jurisdiction under the Act is not the correction of the hurt feelings, or the sense of having been wronged. The jurisdiction is designed to provide for an eligible person where inadequate provision is made for his, or her, maintenance, education or advancement in life: Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24, per Kirby P, at 29.
In my view, this is not a case where the community would expect the mother to have made provision for the Plaintiff in all the circumstances. That conclusion does not alter even when the Plaintiff’s financial resources and needs are taken into account and even when the Court takes into account the degree to which the Plaintiff may not be capable, by reasonable means, of providing adequately for his own proper maintenance and advancement in life.
Accordingly, I am not satisfied that the Plaintiff has established that adequate provision for the Plaintiff’s maintenance and advancement in life has not been made by the Will of the mother.
But even if I were wrong, and the mother did have an obligation or responsibility to make provision for the Plaintiff, she had a much greater obligation or responsibility to make provision for the Defendant. Certainly, as the sole beneficiary named in her last Will, the mother recognised her obligation, or responsibility, to the Defendant.
In all the circumstances, even if I were wrong in considering that the Plaintiff fails at the jurisdictional threshold, I would not, as a matter of discretion, make any provision for him.
Even if I were wrong, again, there is another reason why the Plaintiff’s claim fails. I am not satisfied that a notional estate order should be made in all the circumstances of the case. It would not be just to do so. The Wyee Point property was purchased for, and by, the father, the mother and the Defendant many years before the death of each of the father and the mother. I am satisfied that, even if the Defendant did not provide half of the purchase price, he did make a significant financial contribution to its acquisition by paying his share of the proceeds of sale of the Blue Haven property to the father. He also contributed to its maintenance.
Furthermore, the Wyee Point property has been the home of the Defendant from the time of its purchase and has remained his home after the death of both the mother and the father. He has lived there for about 15 years and wishes to continue to do so.
It is likely, bearing in mind the advice that was given by the solicitor as to the nature of a joint tenancy, to the father, the mother and the Defendant, that each would have had a reasonable expectation that the survivor would take the other’s interest by survivorship. Bearing in mind the relationship that each had with the Plaintiff, it would not have been unreasonable for each to expect that he would have no claim on the Wyee Point property.
The Defendant’s reasonable expectation was also based on economic and moral considerations having regard to the lifelong financial, and other, arrangements, between each of his parents and him.
On the other hand, the Plaintiff could not have reasonably held an expectation that he would receive a share of the Wyee Point property. Not only had he made no contribution to its acquisition, conservation, or improvement, he had never visited the mother there. Indeed, he could not have had any reasonable expectation that he would inherit any part of the Wyee Point property.
Also, bearing in mind all of the circumstances of this case, the substantial merits of the Defendant’s case, favour refusing to make a notional estate order in respect of the mother’s joint interest in the Wyee Point property.
Of course, I have also considered the substantial justice and merits in respect of the Plaintiff. As I have said, he made no financial, or other, contribution to the acquisition, maintenance, or improvement, of the Wyee Point property. In addition, his relationship with the mother, for many years before her death, was hardly close.
Finally, for completeness, I should refer to s 90(2)(b) of the Act. The Plaintiff has not satisfied me that there are any special circumstances that justify the making of the notional estate order. For this reason, too, his claim fails.
In all the circumstances, the Court is not satisfied that the mother did not make adequate provision for the Plaintiff’s proper maintenance, education or advancement in life. No order for provision is to be made. Even if it were otherwise, the Court, in any event, would decline to make an order designating the deceased’s interest in the Wyee Point property, or any part thereof, as notional estate of the mother. Thus, there is no estate, or notional estate, out of which an order for provision could be made.
It follows that even if the Court had been satisfied that the provision for the Plaintiff was not adequate such that an order for provision should be made, the ultimate decision in these proceedings would be no different since all of the facts militate against the making of a notional estate order.
It is, therefore, unnecessary to make an order extending the time for the making of the Plaintiff’s application.
In the circumstances, the Court orders that the Summons be dismissed.
The Court will hear the parties on the question of costs if that question is not able to be agreed, on a date mutually convenient to the legal representatives of the parties and to the Court which date will be arranged at the time these reasons are published.
I should mention one other matter. On 4 December 2019, after the conclusion of the hearing, there was received in my Chambers an Express Post envelope which, on its reverse side, identified the Plaintiff as the sender. My Associate opened the envelope and informed me that it was a letter from the Plaintiff to the Court. As it appeared that a copy of the letter had not been sent to the Defendant’s legal representative, and as no leave had been sought, or granted, to provide the Court with any other evidence or document, I did not read the letter and requested my Associate to place it in an envelope marked “Not Read by the trial Judge”.

Later on 4 December 2019, my Associate, at my request, sent an email to the legal representatives of each of the parties, in the following terms:

“This morning, there was received in his Honour’s Chambers, an Express Post envelope, apparently from the Plaintiff. His Honour has not read the document contained in the Express Post envelope as there was no leave granted to either party to forward to the Court any documents after the conclusion of the hearing and whilst judgment was reserved.
If the Plaintiff wishes his Honour to read the contents of the Express Post envelope, a formal application should be made. Otherwise, his Honour does not intend to read the document and has asked me to place the Express Post envelope, and its contents, in another envelope marked ‘Not read by the Trial Judge’, which I have done.”

No formal application has been made since the email from my Associate.

**********

Decision last updated: 18 December 2019

Medium Neutral Citation:	Nielsen v Kongspark [2019] NSWSC 1821
Hearing dates:	18 and 19 November 2019
Date of orders:	18 December 2019
Decision date:	18 December 2019
Jurisdiction:	Equity
Before:	Hallen J
Decision:	Orders that the Plaintiff’s Summons be dismissed The Court will hear the parties on the question of costs if that question is not able to be agreed, on a date mutually convenient to the legal representatives of the parties and to the Court, which date will be arranged at the time these reasons are published.
Catchwords:	SUCCESSION – Family Provision – The Plaintiff, a now adult child, applies for a family provision order under Chapter 3 of the Succession Act 2006 (NSW) in respect of the estate and notional estate of both his father and of his mother – Father died in 2009 intestate – Mother died in 2017 – No application for administration in respect of either estate – Following commencement of hearing, the Plaintiff states that he does not wish to proceed with the claim in respect of father’s estate – Only claim in respect of mother’s estate Extension of time for the making of the application required in respect of the claim in relation to the mother’s estate – Defendant does not consent to the application being made out of time pursuant to s 58(2) of the Succession Act – Plaintiff required to satisfy the Court that there is sufficient cause for the making of the application Period of estrangement in relation to the mother – Attempts made by Plaintiff said to be in order to resurrect, or attempt to resurrect, contact – The mother not interested in resurrecting contact with the Plaintiff – Plaintiff’s attempts causing additional anguish to the mother The Defendant is another now adult child of the parents – His competing claim, as sole beneficiary named in Will considered – Only property that can satisfy an order for provision and costs is the interest in real estate held by the mother, as joint tenant, with the Defendant – Need for notional estate order to be made – Whether there are special circumstances that justify the making of a notional estate order Whether adequate and proper provision not made for the Plaintiff by the Will of the mother and if so the nature and quantum of the provision to be made – Whether notional estate order should be made
Legislation Cited:	Civil Procedure Act 2005 (NSW) Family Provision Act 1982 (NSW) Legal Profession Uniform Law (NSW) Practice Note SC Eq 7 Probate and Administration Act 1898 (NSW) Succession Act 2006 (NSW) Succession Amendment (Family Provision) Act 2008 (NSW)
Cases Cited:	Alexander v Jansson [2010] NSWCA 176 Andre v Perpetual Trustees WA Ltd (as Executor of the Will of Barbara Helen Owen Stewart) [2009] WASCA 14 Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 Bartlett v Coomber [2008] NSWCA 100 Benham v Benham [2004] NSWSC 416 Boettcher v Driscoll (2014) 119 SASR 523 Bondelmonte v Blanckensee [1989] WAR 305 Borebor v Keane [2013] VSC 35 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327 Butcher v Craig [2009] WASC 164 Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748 Campbell v Chabert-McKay [2010] NSWSC 859 Carey v Robson (No 2) [2009] NSWSC 1199 Cetojevic v Cetojevic [2006] NSWSC 431 Chan v Chan (2016) 15 ASTLR 317; [2016] NSWCA 222 Chapple v Wilcox (2014) 87 NSWLR 646 Charnock v Handley [2011] NSWSC 1408 Christie v Manera [2006] WASC 287 Crossman v Riedel [2004] ACTSC 127 Curnow v Curnow [2014] NSWSC 896 Davison v Staley (Supreme Court of New South Wales, Bryson J, 21 August 1986, unrep) de Angelis v de Angelis [2003] VSC 432 Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235 Diver v Neal [2009] NSWCA 54 Durham v Durham & Ors (2011) 80 NSWLR 335; [2011] NSWCA 62 Foley v Ellis [2008] NSWCA 288 Ford v Simes [2009] NSWCA 351 Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 Galt v Compagnon (Supreme Court (NSW), Einstein J, 24 February 1998, unrep) Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep) Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31 Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31 Goodsell v Wellington [2011] NSWSC 1232 Gorton v Parks (1989) 17 NSWLR 1 Grey v Harrison [1997] 2 VR 359 Gwenythe Muriel Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Deceased) v Lathwell [2008] WASCA 256 Harkness v Harkness (No 2) [2012] NSWSC 35 Hawkins v Prestage (1989) 1 WAR 37 Heyward v Fisher (Court of Appeal (NSW), Kirby J, 26 April 1985, unrep) Hills v Chalk [2009] 1 Qd R 409; [2008] QCA 159 Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 149; [1979] HCA 2 Hunter v Hunter (1987) 8 NSWLR 573 Ilott v The Blue Cross [2017] 2 WLR 979; [2017] UKSC 17 In the Estate of Puckridge, Deceased (1978) 20 SASR 72 John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 John v John [2010] NSWSC 937 Kavalee v Burbidge; Hyland v Burbidge (1998) 43 NSWLR 422 Kavalee v Burbidge; Hyland v Burbidge (1998) 43 NSWLR 422 Kay v Archbold [2008] NSWSC 254 Kearns v Ellis (NSW Court of Appeal, Glass, Mahoney and McHugh JJA, 5 December 1984, unrep) Keep v Bourke [2012] NSWCA 64 Kohari v NSW Trustee & Guardian [2017] NSWSC 1080 Kohari v Snow [2013] NSWSC 452 Lemon v Mead [2017] WASCA 215 Lewis v Warner [2016] 3 WLR 1545; [2016] EWHC 1787 MacGregor v MacGregor [2003] WASC 169 Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146 Manuel v Lane [2013] NSWCA 61 Marks v Marks [2003] WASCA 297 Mayfield v Lloyd-Williams [2004] NSWSC 419 McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 McCosker v McCosker; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 McGrath v Eves [2005] NSWSC 1006 Moore v Randall [2012] NSWSC 184 Palagiano v Mankarios [2011] NSWSC 61 Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 Poletti v Jones [2015] NSWCA 107 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 Pontifical Society for the Propagation of the Faith v Scales at 19; McKenzie v Topp [2004] VSC 90 R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52 Re Dennis (Deceased) [1981] 2 All ER 140 Re Salmon, Deceased [1981] Ch 167 at 175 Salmon v Osmond [2015] NSWCA 42 Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 & Anor [2014] NSWSC 473 Shannon & Anor v Steinmetz [2019] HCASL 332 Singer v Berghouse (1994) 181 CLR 201 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Smith v Dayman [1994] NSWCA 286 Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297 Smith v Woodward (Supreme Court (NSW), Macready M, 9 September 1994, unrep) Soens v Rathborne [2018] NSWSC 302 Steinmetz v Shannon [2019] NSWCA 114 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stone v Stone [2016] NSWSC 605 Strang v Steiner [2019] NSWCA 143 Sung v Malaxos [2015] NSWSC 186 Szypica v O’Beirne [2013] NSWSC 297 Taylor v Farrugia [2009] NSWSC 801 Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572 Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269 Valbe v Irlicht [2001] VSC 53 Vaughan v Curran [2019] NSWSC 1562 Verzar v Verzar [2012] NSWSC 1380 Verzar v Verzar (2014) 12 ASTLR 523; [2014] NSWCA 45 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) Wheat v Wisbey [2013] NSWSC 537 White v Barron (1980) 144 CLR 431 Williamson v Williamson [2011] NSWSC 228 Yee v Yee [2017] NSWCA 305
Texts Cited:	Heydon and Leeming, Jacobs' Law of Trusts in Australia, (7th ed 2006, LexisNexis Butterworths) New South Wales Government Gazette, No 38, 20 February 2009 New South Wales Law Reform Commission, Report 110 Uniform Succession Laws: Family Provision (May 2005) R Atherton, “The Concept of Moral Duty in the Law of Family Provision – a Gloss or Critical Understanding?” (1999) 5 Australian Journal of Legal History 10 R Croucher, “Contracts to Leave Property by Will and Family Provision after Barns v Barns [2003] HCA 9” (2005) 27(2) Sydney Law Review 263
Category:	Principal judgment
Parties:	Ole Nielsen (Plaintiff) John Kongspark (Defendant)
Representation:	Counsel: Ms S Clemmett (Plaintiff) Mr A F Stevens (Defendant) Solicitors: Glass Goodwin (Plaintiff) CCC Law (Defendant)
File Number(s):	2018/316092