Oxley v Oxley

[2018] NSWSC 91

Supreme Court

New South Wales

Medium Neutral Citation:

Oxley v Oxley [2018] NSWSC 91

Hearing dates:

27 – 29 November 2017

Date of orders:

14 February 2018

Decision date:

14 February 2018

Jurisdiction:

Equity

Before:

Hallen J

Decision:

(a) Orders that the Amended Summons be dismissed.

 

(b) Makes no order as to the costs of either of the Plaintiffs, noting that there is a conditional costs agreement made with his, and her, solicitors, so that neither will have any obligation to pay any costs and disbursements of the proceedings.

 

(c) Orders that the first Defendant’s costs, calculated on the indemnity basis, of the proceedings, be paid, or retained, as the case may be, out of the estate of the deceased.

 

(d) Makes no order as to the costs of the second Defendant.

 

(e) Notes that to the extent that there is insufficient in the estate to pay the first Defendant’s costs and disbursements, the Defendants will resolve, between themselves, how the balance of any unpaid costs and disbursements should be borne.

(f) Orders that the Exhibits be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rule 31.16A and rule 33.10) and Practice Note No SC Gen 18.

Catchwords:

SUCCESSION – FAMILY PROVISION – Claim for family provision order under Part 3.2 of the Succession Act 2006 (NSW) by two adult children of the deceased – The first Defendant, the executor of the Will of the deceased to whom Probate granted and also a child of the deceased – Actual estate consisting of small amount of cash all of which will be expended in first Defendant’s costs of the proceedings - Jointly held property transmitted to second Defendant, as the surviving joint tenant, on the deceased’s death – Order sought designating deceased’s interest in jointly held property as notional estate - Whether adequate and proper provision not made in Will of the deceased for each of the Plaintiffs – Nature and quantum of provision, if any, that ought to be made for each of the Plaintiffs - Whether order designating property as notional estate should be made.

 

PRACTICE AND PROCEDURE – Joinder of necessary party – Late application to join holder of property sought to be designated as notional estate as the second Defendant in the proceedings.

  COSTS – PRACTICE AND PROCEDURE – Conditional costs agreement – No uplift factor – Whether legal representative of each party has obligation to include the fact of the conditional costs agreement and its terms in any affidavit of costs –Practice Note SC Eq 7

Legislation Cited:

Civil Procedure Act 2005 (NSW)
Family Provision Act 1982 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Alexander v Jansson [2010] NSWCA 176
Anderson v Hill [2017] NSWSC 1149
Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Bartlett v Coomber [2008] NSWCA 100
Baulderstone Hornibrook v HBO & DC [2001] NSWSC 821
Baychek v Baychek [2010] NSWSC 987
Bkassini v Sarkis [2017] NSWSC 1487
Blacket v Barnett [2017] NSWSC 1032
Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86
Bondelmonte v Blanckensee [1989] WAR 305
Borebor v Keane [2013] VSC 35
Bosch v Perpetual Trustee Co Ltd [1983] AC 463 Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327
Burke v Burke [2015] NSWCA 195
Butcher v Craig [2009] WASC 164
Carey v Robson (No 2) [2009] NSWSC 1199
Cetojevic v Cetojevic [2006] NSWSC 431
Chan v Chan [2016] NSWCA 222
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Christie v Manera [2006] WASC 287
Cook v Pasminco Pty Ltd (No 2) (2000) 107 FCR 44; [2000] FCA 1819
Crossman v Riedel [2004] ACTSC 127
CSR Limited v Eddy (2008) 70 NSWLR 725; [2008] NSWCA 83
de Angelis v de Angelis [2003] VSC 432
Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235
Dion Giuseppi Sergi by next friend Aileen Solowiej v Sergi [2012] WASC 18
Diver v Neal [2009] NSWCA 54
Flathaug v Weaver [2003] NZFLR 730
Foley v Ellis [2008] NSWCA 288
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)
Gibson v Haselgrove; Delmont v Haselgrove [2009] NSWSC 496
Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31
Goodsell v Wellington [2011] NSWSC 1232
Gorton v Parks (1989) 17 NSWLR 1
Graphite Energy Pty Ltd & Anor v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326
Grey v Harrison [1997] 2 VR 359
Halpin & Ors v Lumley General Insurance Ltd [2009] NSWCA 372
Hamod v State of New South Wales [2011] NSWCA 375
Harkness v Harkness (No 2) [2012] NSWSC 35
Hawkins v Prestage (1989) 1 WAR 37
Henry v Hancock [2016] NSWSC 71
Heyward v Fisher (Court of Appeal (NSW), Kirby J, 26 April 1985, unrep)
Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; [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
Jones (a pseudonym) v Smith (a pseudonym) [2016] HCASL 310
Jones (a pseudonym) v Smith (a pseudonym) [2016] VSCA 178
Kavalee v Burbidge; Hyland v Burbidge (1998) 43 NSWLR 422
Kay v Archbold [2008] NSWSC 254
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Kohari v NSW Trustee & Guardian [2017] NSWSC 1080
Kohari v Snow [2013] NSWSC 452
Lewis v Warner [2016] 3 WLR 1545; [2016] EWHC 1787
MacGregor v MacGregor [2003] WASC 169
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
McGrath v Eves [2005] NSWSC 1006
McKenzie v Topp [2004] VSC 90
Palagiano v Mankarios [2011] NSWSC 61
Penninger v Penninger [2017] NSWSC 892
Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19
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
Robinson v Tame (Court of Appeal, 9 December 1994, unrep)
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 [2014] NSWSC 473
Sgro v Thompson [2017] NSWCA 326
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
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)
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Stott v Cook (1960) 33 ALJR 447
Sung v Malaxos [2015] NSWSC 186
Szypica v O’Beirne [2013] NSWSC 297
Taylor v Farrugia [2009] NSWSC 801
Underwood v Gaudron [2015] NSWCA 269
Verzar v Verzar [2012] NSWSC 1380
Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11
Vincent v Lewis [2006] NZFLR 812
Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep)
White v Barron (1980) 144 CLR 431; [1980] HCA 14
Wilcox v Wilcox [2012] NSWSC 1138
Williamson v Williamson [2011] NSWSC 228
Yee v Yee [2017] NSWCA 305

Texts Cited:

R Atherton, “The Concept of Moral Duty in the Law of Family Provision – a Gloss or Critical Understanding?” (1999) 5(1) Aust J Leg Hist 5

 

R Croucher, "Contracts to Leave Property by Will and Family Provision after Barns v Barns [2003] HCA 9” (2005) 27(2) SydLR 263

  John Dyson Heydon and Mark James Leeming, Jacobs' Law of Trusts in Australia, (7th ed 2006, LexisNexis Butterworths)

Category:

Principal judgment

Parties:

Gordon James Oxley (first Plaintiff)
Gloria Valerie Frazier (second Plaintiff)
Gregory Terence Oxley (first Defendant)
Cindy Therese Oxley (second Defendant)

Representation:

Counsel:
Mr F Austin (Plaintiffs)
Mr P Menadue (Defendants)

  Solicitors:
Gerard Malouf & Partners (Plaintiffs)
Sean Wilkins & Company (Defendants)

File Number(s):

2016/161703

Judgment

Introduction

1. HIS HONOUR: These are contested family provision proceedings in which four of five siblings are pitted against each other in respect of the estate of their mother, Edna Valerie Oxley (“the deceased”), who died on 6 July 2015, aged almost 93 years. The four children of the deceased are divided into two groups, one constituted by the Plaintiffs, Gordon James Oxley and Gloria Valerie Frazier, and the other constituted by the first Defendant/executor, Gregory Terence Oxley, and Cindy Therese Oxley, who is the holder of property, the deceased’s interest in which is sought to be designated as notional estate of the deceased. Following an application made on the morning of the first day of the hearing, she is now the second Defendant in the proceedings. (The only other surviving child, Mark Anthony Oxley, of the deceased has played no part in the proceedings.)

2. Without intending to convey undue familiarity, with no disrespect intended, and for convenience and clarity, I shall refer, hereafter, to the parties, after introduction, by her, or his, name used during the hearing. I shall also refer to the deceased’s husband as such.

3. Unhappily, this is also case where a central issue between the parties, at least in the numerous affidavits read in the proceedings, is the frequency of contact, and the quality of the relationship, between each of Gordon and Gloria and the deceased during the deceased’s lifetime.

4. Antagonism, which, at least in part, is directed by each of the Plaintiffs towards the deceased, and, perhaps, to a lesser extent existing between the parties themselves, appears to be deep, bitter, and longstanding. It can only be such antagonism that prompted the case to be listed for four days (although it finished in three), and to have caused the parties incur the costs and disbursements, where on any view, the value of the deceased’s estate, and the value of the deceased’s interest in the property sought to be designated as notional estate, in total, is likely to be no more than $580,000 (less any costs ordered to be paid, or retained, as the case may be, and any costs associated with the sale of the property sought to be designated as notional estate of the deceased).

5. That this is not too harsh a view of the claims is evidenced by, amongst other evidence, the following passages that appear in the affidavit evidence:

Gordon – “My mother very rarely took notice of the fact that she had her own family and was so pre-occupied with her own life and drinking, we were neglected as children. This emotional abuse has scarred me for life.”

…

“The one positive thing that I can take from my childhood is that I am completely opposite to my mother when it comes to the way that I deal with my children and my family…They have not been in abusive relationships and I have made sure that they never had to deal with the emotional abuse that my siblings and I have had to go through.”

Gloria – “I simply could not bear to live in that home and to be exposed to the filthy talk from my mother and be treating (sic) as a human boxing bag and being abused on a constant daily basis.

…

“I also want to be recognised by my mother’s estate as being a biological child of the deceased and a person that is in need. As a result of the pain I was put through as a child and all of the abuse that I received from my mother in my earlier years, my entire life has been plagued by psychiatric conditions and issues.”

6. Gordon and Gloria each seeks an order for further provision out of the deceased's estate and notional estate pursuant to the Succession Act 2006 (NSW) ("the Act"), “[A]ny other order the Court deems fit given the circumstances”, and an order for costs for family provision orders out of the estate and notional estate.

7. The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is one for the maintenance, education, or advancement in life, of an eligible person. Such an order may be made in relation to property that is not part of the deceased person’s estate, but is designated as “notional estate” of the deceased person by an order under Part 3.3 of the Act: s 63(5).

8. Gregory is the executor named in the deceased’s Will, which she made on 22 November 2011 (“the 2011 Will”). This Court granted Probate of the 2011 Will to him on 10 December 2015.

9. Section 57(1) of the Act provides that “eligible persons” may apply to the Court for a family provision order. It is not in dispute that, as a child of the deceased, each of the Plaintiffs is an eligible person within s 57(1)(c) of the Act. The language of the sub-section is expressive of the person’s status, regardless of age, as well as her, or his, relationship to the deceased.

10. It is also not in dispute that the proceedings were commenced within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased): s 58(2) of the Act. The Summons was filed on 26 May 2017. An amended Summons was filed, without opposition, and by leave of the Court, on the first day of the hearing.

11. The parties also agreed that there is no scope for the operation of the intestacy rules so that, hereafter, it is only necessary to refer to the Will of the deceased.

12. At the commencement of the hearing, the parties also accepted that, if an order for provision were to be made in favour of Gordon and/or Gloria, the proceeds of sale of real property sought to be designated as notional estate could be the only source of the payment to satisfy the family provision order(s). In such circumstances, an order designating the deceased’s interest in that real property, as notional estate of the deceased, will be required to be made. As a consequence, if the Court makes a notional estate order in favour of either, the real property will have to be sold.

13. Gregory has opposed any such order being made. Cindy, the second Defendant has not been separately represented. Since she was joined, and previously, whilst only a beneficiary, she, also, has opposed any such order being made.

Application for Joinder of Cindy

14. On Thursday, 23 November 2017, my Associate, at my request, sent an email to the parties asking whether consideration had been given to the joinder of Cindy, as she was the sole owner of the Kingsford property, the deceased’s interest in which was sought to be designated as notional estate.

15. Counsel for Gregory responded promptly, by email, stating that the Plaintiffs had not sought such joinder, and that, Gregory, as executor, “has a responsibility to defend the actual and alleged notional estate. As a consequence, it (sic) will be defending the interests of the owner of the property. That view has been conveyed to the owner of the property.”

16. The solicitor for Gordon and Gloria responded to the email from the Court, later the same day, stating that the view of their counsel was:

“[W]e will need to amend the summons to join Cindy…as the second Defendant in these proceedings. In a separate email, I will enclose the filed Notice of Motion and Affidavit. We respectfully request the Notice of Motion can be heard first thing Monday morning prior to the commencement of the hearing.”

17. Late on 23 November 2017, the Plaintiffs’ solicitors sought to file a notice of motion seeking an order that leave be granted to file an amended Summons joining Cindy as the second Defendant in the proceedings and an order that the costs, of, and incidental to, the notice of motion, be costs in the cause.

18. In support of the notice of motion there was filed, and read, an affidavit sworn 23 November 2017, of Mr G Kolokossian, the solicitor with the day to day carriage of the matter for the Plaintiffs, to which was annexed a copy of the proposed amended Summons, as well as an affidavit of Mr V Vartanian, a mortgage broker who had been instructed to provide “an opinion with respect to the borrowing capacity of Cindy”.

19. The leave of the Court was not sought in relation to the filing, and serving, of the notice of motion, or the affidavits, although the notice of motion was made returnable at 10:00 a.m. on 27 November 2017 (the first day of the hearing). (There was no available time to deal with the notice of motion on 24 November 2017.) Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) rule 18.4, provides that “unless the court orders otherwise, a notice of motion must be served at least 3 days before the date fixed for the motion”. However, at the hearing, there was no objection to the Court dealing with the notice of motion.

20. On the morning of the hearing, counsel for Gregory informed the Court that there was no objection made by Gregory to the joinder of Cindy as the second Defendant. Cindy was present in Court and she expressly consented to her joinder. Counsel confirmed that his solicitors then acted for Gregory and Cindy.

21. (Whilst the affidavit of Mr Kolokossian was read on the notice of motion, the Court, upon the objection of counsel for Gregory and Cindy, did not grant leave to read the affidavit, sworn 23 November 2017, of Mr Vartanian, because it had been served later than a reasonable time before the occasion for using it had arisen: UCPR rule 10.2; and because the Defendants did not have any opportunity to respond to it: T33.08 – T33.24. (The affidavit was marked “MFI1” and remains on the Court file.))

22. UCPR rule 6.24(1) provides:

“(1) If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party.”

23. Accordingly, I made the following orders:

“1.    That Cindy Therese Oxley be joined as a second Defendant in these proceedings.

2.   That leave is granted to the Plaintiffs to file an Amended Summons by 4:00 p.m. on 27 November 2017.

3.   There be no order as to the Plaintiffs costs of the notice of motion filed 23 November 2017, noting that those costs are not to be borne out of the estate even if an order is made for the Plaintiffs’ costs to be borne out of the estate.”

24. The amended Summons was filed in the Registry, by the Plaintiffs’ solicitors on 27 November 2017.

25. The joinder of Cindy as the second Defendant was necessary in all the circumstances. 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”.

26. Handley JA had earlier remarked, in Smith v Dayman [1994] NSWCA 286, 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].

27. The purpose of the joinder of Cindy was to allow her an opportunity to be heard, to bind her to the outcome of the proceedings, and to minimise any risk of a multiplicity of proceedings. In the circumstances, she is a proper Defendant. Furthermore, there have been no additional costs incurred by Gregory and Cindy as a result of the late application for joinder. As counsel had asserted, Gregory had been defending her interests.

Background

28. In a claim for a family provision order, factual context is necessary. It is convenient to begin with a short statement of background facts, since these provide that context. Many of these facts are taken from the affidavits read in the proceedings and are uncontroversial. In relation to any factual matters that were in dispute in those affidavits, or otherwise, to which I refer, the background facts set out hereunder should be regarded as the findings of the Court.

28. The deceased was born in August 1922. She married her husband, Gordon James Oxley Snr, in September 1946, but he predeceased her, having died in December 1987. The children of their marriage were Cecil John Oxley (known as “Johnny”), who was born in late 1941, and who died in about 1993 or 1994; Gloria, who was born in April 1947, and who is now 70 years old; Margaret Ann Oxley, who was born in July 1948, and who died in 2000; Gordon, who was born in July 1950, and who is now 67 years old; Gregory, who was born in February 1955, and who is now 63 years old; Deborah Marie Oxley, who was born in June 1958 and who died in June 1980; Mark, who was born in June 1960, and who is now 57 years old; and Cindy, who was born in October 1965 and who is now 52 years old.

29. The 2011 Will provided for a gift of “my gold watch with brown leather band and engraving…” to the deceased’s granddaughter, Alycia Deborah Maree Oxley (Cindy’s daughter); a gift of “all my rings and the rest of my jewellery to my daughter, Gloria…”; a gift of “my household goods and personal effects to my daughter, Cindy…”; and a gift of “the whole of the residue of my estate after payment of my just debts, funeral and testamentary expenses in equal shares to such of my children who survive me, namely, Mark … Gloria, … Gordon … Gregory and Cindy…”.

30. (It can be seen from the terms of the Will that, despite the complaint made by Gloria, the deceased did recognise her, as a biological child. The deceased made a specific bequest of some personal items to Gloria and divided her residuary estate equally between her five surviving children.)

31. In the Inventory of Property attached to, and placed inside, the Probate document, the deceased’s estate, at the date of death, was disclosed as having an estimated, or known, value of $86,060. The estate was said to consist of money in bank ($85,760), jewellery ($300), and personal effects (of no commercial value). (I have omitted, and shall continue to omit, any reference to cents in amounts to which I refer. This will explain any apparent mathematical miscalculations.)

32. In addition, Gregory disclosed jointly held property, being real estate at Kingsford (“the Kingsford property”), a suburb of Sydney, which the deceased held as a joint tenant with Cindy. The deceased’s interest therein, was disclosed as having an estimated value, then, of $500,000. It is that interest which is sought to be designated as the notional estate of the deceased.

33. (Practically, unless there is an alternative method of satisfying any family provision order, the Court would have to make an order that the Kingsford property be sold, and, then, an order designating so much of the share of the proceeds of sale as notional estate as is necessary to satisfy any order for provision and, if necessary, the costs of the proceedings.)

34. In an affidavit sworn on 16 August 2016, Gregory disclosed that whilst there had been no distributions of cash to any beneficiary after the deceased’s death, he had paid funeral and associated expenses ($13,685), an electricity account ($199), and legal costs and disbursements for probate and administration ($2,429) from the estate.

35. In a subsequent affidavit, sworn on 22 November 2017, Gregory disclosed that the current amount held, on behalf of the estate, in bank, was $27,900. He stated that, since his earlier affidavit, he had paid out of the estate funds, solicitors’ costs ($35,649) and counsel’s fees ($6,600) in respect of these proceedings.

36. The parties agreed that the cash that would have been available for distribution (before any costs and disbursements of the proceedings were paid) was $69,446. It was accepted that had no proceedings been commenced, each of the five children of the deceased would have received $13,889, calculated as a one-fifth share of the residuary estate.

37. The parties also agreed that, at the date of hearing, the gross value of the Kingsford property was $1,100,000. They also agreed, for the purposes of calculations, that the gross value of the deceased’s interest in the Kingsford property could be no more than $550,000. Finally, they accepted that if the Kingsford property were sold, the costs and expenses of sale would be about $30,000, and that those costs should be paid out of the proceeds of sale that could be designated as notional estate, leaving a net amount that could be designated as notional estate as no more than $520,000: T4.42 – T4.46.

38. Gregory stated that he did not intend to make a claim for executor’s commission.

39. The only persons described as eligible persons, within the meaning of the Act, by the Plaintiffs, are the parties and Mark, all of whom are the children of the deceased. Gregory stated that Alycia is also an eligible person, but there is no evidence that she ever was, at any particular time, wholly, or partly, dependent on the deceased. (Rather, it may be that she was dependent upon her mother, Cindy, in the period that she lived in the deceased’s home.)

40. Only Gloria and Gordon have made an application for an order under the Act.

41. Mark, who is not a party, and Alycia, as a beneficiary, have been served with the notice of the Plaintiff’s application and of the Court's power to disregard his, and her, interests, in the manner and form prescribed by the regulations or rules of court. The Court was informed from the Bar table, by each counsel, that none of the parties had been contacted by Mark: T115.00 – T115.09.

42. Cindy has raised her financial circumstances, as the holder of property sought to be designated as notional estate, in the proceedings. Gregory stated that he would “not be raising my financial, material or other circumstances … as a competing claimant”.

43. The Court may not disregard the deceased's freedom of testamentary disposition and the preferable disposition to each as the beneficiaries, regardless of her, and his, financial position or needs, respectively: s 61 of the Act.

44. It was accepted that the bequests of personal property made in the deceased’s Will should be distributed to the relevant beneficiary. However, as a result of the costs order that is to be made, at the request of the parties, none of the residuary beneficiaries will receive any share of the residuary estate.

Costs and Disbursements of the Proceedings

46. Usually, in calculating the value of the deceased's estate and notional estate available from which an 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 applicants, if successful, normally would be entitled to an order that his, and/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 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.

47. As Basten JA put it in Chan v Chan [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.”

48. 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: 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.

49. In another affidavit sworn by Mr G Kolokossian, Gordon’s costs and disbursements, calculated on the ordinary basis, from the commencement, to the conclusion, of the proceedings, including any work required to be done after the conclusion of the hearing, were estimated to be $65,979, inclusive of GST. In the same affidavit, Gloria’s costs and disbursements, calculated on the ordinary basis, from the commencement, to the conclusion, of the proceedings, including any work required to be done after the conclusion of the hearing, were estimated to be $67,384, inclusive of GST.

50. Thus, the total of the Plaintiffs’ costs and disbursements, calculated on the ordinary basis, of the proceedings, was estimated to be $133,363. Mr Kolokossian estimated the total of the Plaintiffs’ costs, calculated on the indemnity basis, to be $146,880.

51. Mr S P Wilkins, in an affidavit sworn on 30 October 2017, stated that the costs and disbursements, calculated on the indemnity basis, of Gregory, as the Defendant, were estimated to be $80,839, inclusive of GST. He did not refer to the costs and disbursements that had already been paid out of the deceased’s estate, but at the commencement of the hearing, it was accepted that Gregory had paid $42,249, on account of those costs and disbursements, leaving $38,590 to be paid: T4.50 – T5.13. It was agreed that there had been no costs and disbursements separately incurred by Cindy, as the second Defendant, in the proceedings.

52. If the estimate of Gregory’s costs and disbursements proves to be accurate, it is clear that the cash currently held in the estate will be insufficient to pay the balance of those costs and disbursements not already paid out of the estate. Upon the estimates provided, the shortfall will be $10,690. At the commencement of the proceedings, the Court was informed, without objection, that an arrangement would be made by Gregory and Cindy as to the payment of the unpaid costs and disbursements: T6.00 – T7.14.

53. All of the costs estimates, if proved to be accurate, and not reduced because the hearing was concluded in three, rather than four, days, are horrifying, when one considers reasonableness and proportionality.

54. Somewhat surprisingly, bearing in mind the relationships between the parties, and considering that Gordon and Gloria had entered into a conditional costs agreement with their solicitors (to which I shall return), which meant that they would not have to bear any part of the burden of their own costs and disbursements if they were unsuccessful, counsel for Gregory and Cindy stated that, in those circumstances, other than requiring Gordon and Gloria to contribute the amount to which each would have been entitled to receive out of the estate of the deceased had the proceedings not been commenced, Gregory and Cindy would not seek any order that the Plaintiffs bear any other part of the costs of the proceedings. In other words, the remaining three residuary beneficiaries will be required to contribute his, and her, share of the estate to meet those costs, with the result that none will receive any part of the deceased’s estate.

55. Counsel for Gordon and Gloria accepted that if each of them was unsuccessful, no order for his, and her, costs, respectively, should be made. Counsel also accepted that in the event that either or both, of Gordon and Gloria is, or are, successful, the Court has power to depart from the usual order for costs to be assessed and 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 assessment of the gross sum to be awarded “must represent a review of the successful party's costs by reference to the pleadings and complexity of the issues raised on the pleadings; the interlocutory processes; the preparation for final hearing and the final hearing” and “should be based on an informed assessment of the actual costs having regard to the information before the court”: Hamod v State of New South Wales [2011] NSWCA 375 at [819] – [820].

56. Counsel for Gregory and Cindy stated that they would make an application that the Plaintiffs’ costs be “capped” in the event that one, or both, of the Plaintiffs was, or were, successful. It is not necessary to refer to costs capping considerations again.

Matter of Practice – Disclosure of a Conditional Costs Agreement

57. There is a point of practice, in this case, which requires articulation and restatement.

58. I wrote in Anderson v Hill [2017] NSWSC 1149 at [35] - [38], and at [40] - [41]:

“As I understand it (since this was not disclosed to the Court until the Court raised a question during submissions, and even then a copy of the [conditional costs] agreement was not produced to the Court), this type of agreement is of the type referred to in Part 4.3, s 181 of the Legal Profession Uniform Law Application Act 2014 (NSW), being “a costs agreement (a conditional costs 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” and may, so far as I know, contain an “uplift fee”, which also was not referred to. A “costs agreement” simply means an agreement about the payment of legal costs.

As I recently re-affirmed in Blacket v Barnett [2017] NSWSC 1032 at 258:

“…the observations of Young J in ERS Engines Pty Ltd v Wilson (1994) 35 NSWLR 193 at 197, referred to, with approval, in McGrath v Troy [2010] NSWSC 1470 at [124], per White J (as his Honour then was) and by me in The Estate of Juliana Voros; Cooney & Ors v Cherry [2016] NSWSC 1603 at [71] should also be repeated:

“It cannot be emphasised too greatly that one’s obligation in making an affidavit is the same as when one is giving evidence in the witness box. One is to tell the truth and the whole truth. It is completely unacceptable for a solicitor to prepare an affidavit in which a witness gives a half truth and it is completely unacceptable for a witness … to only give the Court a half truth.”

It is equally unacceptable, when the deponent of the affidavit is an experienced solicitor, who regularly practices in the jurisdiction, and, who is, or ought to be, well aware that the Court requires disclosure of the costs of the parties, and, for example, whether those costs include any uplift factor.

To simply state, as counsel for the Plaintiff did, when asked for an explanation, after taking instructions from the deponent of the affidavit, that “There's no explanation I can give you apart from the fact that it was just overlooked” (T55.10 – T55.11), is also unacceptable, even if accompanied, as it was in this case, by an apology to the Court.

…

Furthermore, I accept that “[C]onditional costs agreements also discharge an important utilitarian function in facilitating access to justice. Many potential litigants are deterred from enforcing their legal rights and entitlements due to inadequate economic resources. Conditional costs agreements allow for the re-allocation of risk among the litigant and the legal practitioner. In exchange, the legal practitioner is entitled to a modest uplift fee reflecting their assumption of a proportion of the risk by conducting the matter on a speculative basis”: Frost v Miller [2015] QSC 206 at [16] (Carmody CJ).

(Of course, in reaching this conclusion, the Court should not be seen as condoning the conduct of the solicitor who swore the costs affidavits, or the conduct of counsel, who, presumably, was also aware that he would not be paid any fees unless the Plaintiff was successful, and who did not advise the solicitor to amend the affidavit to include, or otherwise inform the Court of, the conditional costs agreement.)”

59. In the present case, after the conclusion of cross-examination of the available witnesses, on the second day of the hearing, the Court raised with counsel for the Plaintiffs the question whether the Plaintiffs had entered a conditional costs agreement with their solicitors.

60. The discussion between Bench and Bar on this topic, at the time it was first raised, is found at T198 – T199:

“HIS HONOUR: …Mr Kolokossian has sworn the costs affidavit. In that affidavit he hasn't identified that each of the Plaintiffs has entered into a conditional costs agreement or whether they haven't. …do I assume correctly that because it hasn't been mentioned, that it's not a conditional costs agreement? And if it hasn't been mentioned, why hasn't it been mentioned?

AUSTIN: Well, I'll take instructions about that but it is a conditional costs agreement.

HIS HONOUR: Mr Austin, I shouldn't, at the end of the second day of hearing, have to, through inquiry, ascertain that there's a conditional costs agreement entered into. Why am I raising it with you at this stage and why hasn't it been raised by you or Mr Kolokossian before 3.25 on the second day of the hearing?

AUSTIN: I can only, for the moment, speak for myself until I get instructions but I've overlooked that and I'm sorry. I apologise to the Court.

HIS HONOUR: Mr Menadue, were you aware that there was a conditional costs agreement?

MENADUE: I did assume there was one, your Honour.

HIS HONOUR: You assumed but you didn't know?

MENADUE: I wasn't aware.

HIS HONOUR: I see. I take it, Mr Austin, that it's a conditional costs agreement in the usual sense? That is to say that if the plaintiffs are unsuccessful, they will not have to bear the burden of the costs to their own legal representation?

AUSTIN: I'll just take instructions.

HIS HONOUR: Thank you.

AUSTIN: Yes, that's correct. It's costs and disbursements.”

61. (It is clear from the last answer provided by Mr Austin that if the Plaintiffs are unsuccessful, they will not have to bear any part of the costs and disbursements identified by Mr Kolokossian in his final costs affidavit referred to above.)

62. In this exchange, the Plaintiffs’ solicitor, Mr Kolokossian, was also said to have expressed his sincere apology to the Court for the omissions from the affidavit of costs, an apology that I accepted. The Court was also informed by counsel, from the Bar table, that the conditional costs agreement did not include an uplift factor.

63. On the next day, counsel for the Plaintiffs, without objection, sought, and was granted, leave to file an affidavit sworn by Mr Kolokossian, which included the following paragraphs:

“…

6.   It has always been my understanding that it was my obligation as the Plaintiff’s solicitor under Practice Notice No.SC EQ 7 in particular paragraph 17.1 of the abovementioned Practice Note…

7.   I am not aware of any changes made to the Practice Note referred to above. I have as recently as 28 November 2017, conducted a further review and believe the Practice Note I referred to above is current.

8.   Following the Court’s comments and the reference made to an August judgment of His Honour Justice Hallen, I searched and found a decision of Anderson v Hill [2017] NSWSC 1149 (30 August 2017). Having read the decision, I don’t understand that the decision is critical of the solicitor on the basis of a failure to disclose the conditional costs agreement per se, but rather the failure to disclose an uplift factor.

9.   I confirm my earlier Affidavit referred to above, I have identified both Plaintiffs costs on an indemnity and ordinary basis. I confirm that no payments have been made by the Plaintiffs with respect to costs and/or disbursements. I also confirm that although the Plaintiffs have entered into a conditional costs agreement with the firm, in the sense that if they are unsuccessful that they are not liable to pay the firm’s costs or disbursements, their cost agreement does not include an uplift factor, and further there is no uplift factor included in the calculation of the Plaintiffs costs.”

64. A copy of the conditional costs agreement entered into between Gordon and Gloria and the solicitors was not annexed to this affidavit.

65. When I read this affidavit, I raised with counsel, then, and later during the submissions, what had, in fact been stated in Anderson v Hill as set out above, and commented that a proper reading of Anderson v Hill made it clear, particularly at [41], that the comments quoted above, related not only to the failure to disclose the uplift factor, but also to the failure to disclose the existence of the conditional costs agreement.

64. Counsel for Gordon and Gloria appeared to not be prepared to accept the proposition that the Plaintiffs’ legal representatives had an obligation to disclose to the Court, or, it would seem, to the legal representative of the Defendants, the fact that a conditional costs agreement had been entered into.

65. Counsel stated that he wished an opportunity to provide written submissions on the topic. I directed that the submissions be delivered to the Court by 4:00 p.m. on Friday 1 December 2017.

66. Counsel provided those submissions, which, on this topic, stated:

“The plaintiffs’ legal representatives apprehend the Court’s concern as articulated on the morning of 29 November 2017, is that mere compliance with clause 17.1 of the Practice Note is not sufficient if there is other information relating to costs relevant to the Court’s consideration of the proceedings; and that such information ought to be disclosed. The plaintiffs’ legal representatives apprehend that the basis for this proposition is their overriding duty to assist the Court.

In this sense the Court related that even if a conditional cost agreement did not include an uplift factor, it ought nonetheless be disclosed, together with any other unique provisions, such as for example, any provision limiting the solicitor’s recovery of costs to costs capped by the Court.

The plaintiffs’ legal representatives accept this proposition wholeheartedly and will ensure that such information is included in the future.

However, the failure of the plaintiffs’ legal representatives to disclose that they had entered into a conditional cost agreement that did not include an uplift factor does not necessarily mean that they acted in bad faith, with neglect or without candour.

It is submitted that there is a degree of ambiguity with cl 17.1 of the Practice Note in the sense that whilst it positively requires the solicitor to disclose costs already paid on account of costs and disbursements it does not positively require the disclosure of the fact that no costs had been paid. In circumstances that costs had already been paid, one could rightly assume that the plaintiff and solicitor had entered into an unconditional cost agreement as opposed to a conditional cost agreement (without an uplift factor); and it follows that in circumstances where there has been no disclosure that costs had been paid, one could reasonably assume that the plaintiff and the solicitor had entered into a “no win, no fee” type conditional cost agreement.

Further, uplift factors are only lawful in relation to conditional costs agreements, thus in the circumstance that clause 17.1 only refers to cost agreements that provide for uplift factors, a legal practitioner could be forgiven for drawing the inference that disclosure of a conditional cost agreement which did not provide for an uplift factor was not necessary.

Obviously a solicitor swearing any affidavit is under the same obligation as any witness, as the Court noted: - to tell the truth, the whole truth and nothing but the truth.

However a failure to disclose a matter relating to costs, does not mean that the solicitor has not told the whole truth, if the solicitor deposes is telling the truth best of his/her knowledge, information and belief.

It is respectfully submitted that to suggest otherwise, in the absence of clarity in the Practice Note, would be to exact too high a standard.”

69. (There was no submission made that the conditional costs agreement might be a privileged communication. In view of cases such as Cook v Pasminco Pty Ltd (No 2) (2000) 107 FCR 44; [2000] FCA 1819, at [47] (Lindgren J) and CSR Limited v Eddy (2008) 70 NSWLR 725; [2008] NSWCA 83, at [67], that submission would be unlikely to be accepted. However, that question is not raised in the present case.)

70. Before referring to the specific paragraph of Practice Note SC Eq 7 to which reference was made, I should refer to s 15 of the Civil Procedure Act 2005 (NSW) which provides:

“(1) Subject to rules of court, the senior judicial officer of the court may issue practice notes for that court in relation to civil proceedings to which this Act applies.

(2) A practice note must be published in the Gazette.

(3) Sections 40 and 41 of the Interpretation Act 1987 apply to a practice note in the same way as they apply to a statutory rule.”

71. Practice Note SC Eq 7 has been issued pursuant to s 15.

72. It has been said that this section suggests that Practice Notes “bear the character of legislative instruments rather than merely public announcements of the internal administrative arrangements of a court”: The Handbook: Thompson’s Guide to Uniform Civil Procedure in NSW (2005) Edited by G Lindsay SC (now his Honour) at [1.100].

73. In Baulderstone Hornibrook v HBO & DC [2001] NSWSC 821, Bergin J (as her Honour then was), observed:

“Mason P in Atkins v Abbey Group [1998] 43 NSWLR 539 said at 543 that Practice Note 39 ‘governed’ proceedings in the Commercial Division. Practice Notes need to be read in conjunction with the rules and one must be careful not to elevate a Practice Note to a status that it does not have. A Practice Note governs or guides the way in which the proceedings are expected to be administered. Practitioners, and thus the parties, should be aware of the requirements of the Practice Note, and it is to be expected that orders and/or directions will be made consistently with the Practice Note which governs a particular list.”

74. It has also been said that “As a matter of principle, a practice note is subservient to the Civil Procedure Act and cannot be inconsistent with it”: Halpin & Ors v Lumley General Insurance Ltd [2009] NSWCA 372, Basten JA, at [14]. It co-exists with formally promulgated rules of court.

75. Brereton J, in Graphite Energy Pty Ltd & Anor v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326, at [14] (referring to Practice Note SC Eq. 11), observed:

“It is not a statute, nor is it a rule of the Court. It guides, but does not govern, the disclosure process…the importance of its purpose means that it will be in a rare case that the Court will depart from its guidance.”

76. I respectfully agree with the views expressed by each of the learned judges.

77. One purpose of a Practice Note is to aid consistency and orderliness in the preparation of cases. In relation to Practice Note SC Eq 7 (in its earlier form), Palmer J in Carey v Robson; Nicholls v Robson (No 2) [2009] NSWSC 1199, at [32], wrote:

“The Court has now issued a Practice Note as to the conduct of family provision cases (SC Eq 7). It applies to claims both under the Family Provision Act 1982 and under its replacement, Chapter 3 Succession Act 2006 (NSW). The Practice Note, in conjunction with other Practice Notes relating to proceedings in the Equity Division generally, is intended to further the overriding purpose of the Civil Procedure Act 2005 (NSW), which is to facilitate the just, quick and cheap resolution of the real issues in dispute in the proceedings: s 56(1) CPA.”

78. A Practice Note is, deliberately, not designed, expressly, to answer every question which could arise in the course of the preparation of a case for hearing. It is designed to provide a compass to guide the Court, the litigants, and the legal advisers, as to the general course that will be usually be followed. The Practice Note does not have binding effect but enables flexibility. In other words, it does not tie the hands of the court.

79. Paragraph 17.1 of Practice Note SC Eq 7 provides that the plaintiff’s final affidavit as to costs and disbursements should identify the costs and disbursements calculated on the indemnity basis, and those costs and disbursements calculated on the ordinary basis, and the amount, if any, already paid on account of costs and disbursements. If there is any uplift factor included in the calculation of the plaintiff’s costs, or any agreement that provides for such an uplift factor, the quantum thereof and the terms of any such fee agreement should be identified in the costs affidavit.

80. Paragraph 17.2 provides that the administrator’s final affidavit as to costs and disbursements should identify the costs and disbursements calculated on the indemnity basis and the amount, if any, already paid out of the estate, or otherwise, on account of costs and disbursements.

81. It can be seen from these paragraphs of Practice Note SC Eq 7, that the Court is obviously concerned with the costs and disbursements of the parties in the proceedings up to, and including, the hearing. The specific matter identified in Paragraph 17.1 is the “uplift factor”, being the legal practitioner’s remuneration entitlement, contingent on success, for an amount in excess of a normal fee, being a premium reflective of the risk run by the legal practitioner for the possibility of non-payment, plus compensation for not receiving payment on account.

82. There are, and have been for many years, increasing concerns, particularly in claims for a family provision order, about the level of legal costs and disbursements, particularly in an estate and/or notional estate of relatively modest value. (The gross value of the remaining estate ($27,900), and the deceased’s interest in the property that may be designated as notional estate ($550,000) is, as stated above, about $577,900).

83. On another level, as stated earlier, the Court needs to have the necessary information to enable calculation of the value of the net distributable estate, and by how much the gross value of the estate, or notional estate, might be reduced if an order were made for the plaintiff’s, and/or the defendant’s, costs and disbursements to be paid out of the estate.

84. The context of these paragraphs, on yet another level, relates to the financial circumstances of the parties to the proceedings. It is important for the Court to know if either party has come to an agreement with his, her, or their, solicitors that is other than what might be regarded as a usual retainer. As stated, the Practice Note refers explicitly to an uplift factor. An example, otherwise, is if there is an agreement that provides that the party will not have to pay any costs and disbursements in the event that he, or she, is unsuccessful. In that event, the party’s financial circumstances, if relevant (and in the case of an applicant for a family provision order, that will usually be so), will not be diminished by having to pay any part of his, or her, costs and disbursements of the proceedings.

85. Furthermore, if the defendant sought costs, in the event that the applicant was, or the applicants were, unsuccessful, the fact that he, she, or they, had no obligation to pay his, her, or their, own solicitor’s costs and disbursements, could be relevant to how the burden of the defendant’s costs should be borne.

86. By way of further example, if a costs agreement provided that the party would not be charged an amount in excess of an agreed figure, or would not be liable for any amount in excess of the amount recovered from the other party, because of an agreement between the solicitor and the party as to capping costs, each would be a relevant matter for the Court’s consideration also.

87. (These are only some of “the unique provisions” (as described by counsel for the Plaintiffs in his submissions) that may be relevant.)

88. It follows that if there is any conditional costs agreement, the nature of that agreement, and its effect on the payment of the costs of the party, including any term relating to an uplift fee, should be disclosed in each affidavit of costs that is relied upon by either party.

89. I should make it clear that I have no reason to doubt the explanation proffered by Mr Kolokossian for his failure to include any reference to the conditional costs agreement in his final affidavit as to costs. It was not the subject of cross-examination by counsel for the Defendants. My comments, during the hearing, related to the submissions made by, and on behalf of, experienced practitioners, that seemed to not grasp the significance of the omission from a costs affidavit that was relied upon in the proceedings, and the attempt to justify that omission by relying upon a strict, literal, and, perhaps, a limited reading of Paragraph 17.1 of the Practice Note.

90. (I should also emphasise, for the benefit of the parties, that the robust debate between the Bench and the Bar regarding this issue related to a matter of practice and procedure rather than to the merits of the Plaintiffs’ case.)

The Bondi Beach Property

91. In December 1982, the deceased and her husband were badly injured in a motor vehicle accident. Subsequently, the deceased received damages (about $89,000), most of which was used to pay the purchase price of a two bedroom home unit, situated at Bondi Beach (“the Bondi Beach property”), which was purchased in the name of the deceased and her husband, as joint tenants.

92. Gloria gave evidence that she had recommended to the deceased that she should contact a lawyer and should seek compensation, which the deceased did, resulting in what Gloria described as “a favourable payout”. (Cindy denied this although she acknowledged that there had been discussions between the deceased and Gloria about going to a firm of solicitors where Gloria had known a secretary who was employed there.)

93. Following her husband’s death, in December 1987, the deceased became the sole registered proprietor of the Bondi Beach property.

94. The deceased lived in the Bondi Beach property until about late 2010, when she sold it for about $800,000. It was from the net proceeds of sale, that the deceased purchased the Kingsford property.

95. From about 1987, until it was sold, Cindy lived there with the deceased continuously. Although there was some dispute about whether the deceased had asked Cindy to move there, in order to look after the deceased’s husband, and then the deceased herself, I accept Cindy’s evidence that the deceased did make that request of her. (In this regard, Kim Leane Sammut corroborated Cindy’s evidence and although cross-examined on the topic, confirmed that she had heard the deceased request Cindy to move to the Bondi Beach property.)

The Kingsford Property

96. The Kingsford property was purchased on 15 March 2011 for $690,000. The Transfer appears to have been registered on 22 March 2011, and identified the deceased and Cindy as joint tenants: Ex. 2.

97. The Kingsford property had been converted from a three bedroom villa to a two bedroom villa, but the deceased and Cindy converted it back. The deceased, Cindy, and Alycia lived there for about one year after its purchase, until Alycia moved out. Since then, Cindy remained living in the Kingsford property with the deceased until her death, and she has continued to live there, alone, since then.

98. Mr Wilkins acted for the deceased on the purchase of the Kingsford property. He gave evidence of a conversation that he had with the deceased (whilst Cindy was present), in which the deceased told him that she wanted to purchase the property in Cindy’s name. She said: “Cindy is [to] get the property and I don’t [want] any arguments about it after I am gone.” He advised the deceased against placing the property in Cindy’s name, and suggested that it could be purchased in joint names, with the result that it would pass to Cindy on the deceased’s death. The deceased accepted the advice.

99. Mr Wilkins was not cross-examined. I accept his evidence.

100. Before the Kingsford property was purchased, the deceased confirmed in a conversation with Cindy:

“I want to put the house in both our names. I want you to have this place when I am gone.”

101. A copy of the Notice of Death, dated 28 September 2015, was registered on about 8 October 2015, following which the Kingsford property was registered in Cindy’s sole name: Ex. 2.

Prior Wills of the Deceased

102. The deceased made a Will on 2 December 1993 (“the 1993 Will”). At this time, the deceased was living in the Bondi Beach property.

103. In the 1993 Will, the deceased appointed the Public Trustee of New South Wales as the executor and trustee. She gave the same gold watch referred to earlier, to Alycia; gave all of her rings and the rest of her jewellery to those of her daughters, Margaret and Gloria, who survived her by one calendar month; gave a camera to Mark; divided equally, moneys (including income paid after death) in banks, building societies, credit unions, or other similar institutions, between Mark, Gloria, Margaret, Gordon and Gregory; gave her goods, household goods and personal effects, to Cindy; gave Cindy a right of residence in the Bondi Beach property for the rest of her life, or until the right of residence ended, upon certain terms and conditions; subject to her right of residence, gave Cindy a one half share in the residence if she survived the deceased by one calendar month; and the other half share, subject to Cindy’s right of residence, was to be divided equally between those of Margaret, Mark, Gregory, Gordon and Gloria, who survived the deceased by one calendar month; the rest and residue, in equal shares, was given to Margaret, Mark, Gregory, Gordon, Gloria and Cindy.

104. The deceased made a Codicil to the 1993 Will, on 22 December 1997, in which she appointed Gregory to be the executor and trustee of the 1993 Will, in place of the Public Trustee of NSW, and, in other respects, confirmed the 1993 Will.

105. The deceased made a Will on 17 April 2002 (“the 2002 Will”). In that Will, relevantly, she revoked all earlier Wills and Codicils; she appointed Gregory as her executor; she gave the same gold watch referred to earlier, to Alycia; gave all of her rings and the rest of her jewellery to Gloria, gave a camera to Mark; divided equally, moneys (including income paid after death) in banks, building societies, credit unions, or other similar institutions, between Mark, Gloria, Gordon, Gregory and Cindy; gave her goods, household goods and personal effects to Cindy; gave Cindy a right of residence in the Bondi Beach property for the rest of her life, or until the right of residence ended, upon certain terms and conditions; subject to her right of residence, gave Cindy a one half share in the residence if she survived the deceased by one calendar month; and the other half share, subject to Cindy’s right of residence, to be divided equally between those of Mark, Gloria, Gordon and Gregory who survived the deceased by one calendar month; and gave the rest and residue, in equal shares, to Mark, Gloria, Gordon, Gregory and Cindy.

106. The deceased made another Will on 7 April 2004 (“the 2004 Will”), in which she revoked all prior Wills and testamentary instruments; she appointed Gloria and Mark as the executors; she gave the same gold watch referred to earlier, to Alycia; gave all of her rings and the rest of her jewellery to Gloria, gave a clock to Gordon; gave a camera to Mark; gave her household goods and furniture to Cindy; directed that the Bondi Beach property be sold and the proceeds divided between those of Gloria, Mark, Gordon, Gregory and Cindy, who survived the deceased, as joint tenants. She left the residue of her estate between those five children who survived the deceased, as joint tenants.

107. A letter dated 8 March 2004, was sent by Ross A Clarke & Associates, Solicitors and Attorneys, to the deceased, which refers to the deceased having attended the office on 19 February 2004. Interestingly, the letter is addressed to the deceased, but the address stated on it was Gloria’s address. The letter contains some handwritten amendments. No questions were asked of Gloria, whose counsel produced it, going to whether the amendments were on the letter when it was received, or whether those amendments were made subsequently.

108. Bearing in mind the terms of the 2002 Will, which altered the 1993 Will and the 1997 Codicil, principally to remove the reference to Margaret who had died, it is difficult to know in what respects the 2002 Will was not in accordance with the deceased’s wishes. No evidence was given on this topic and the author of the letter did not provide an affidavit going to what were said to be the deceased’s instructions.

102. It is hard to accept the assertion made in the letter that the deceased informed those solicitors that “Cindy gave instructions to the solicitor” and that the deceased “was asked to sign the Will without being allowed to read it”. Importantly, in this regard, Mr Wilkins is one of the attesting witnesses to the 2002 Will made by the deceased and he gave evidence of having drafted the 2002 Will for the deceased. As stated, he was not cross-examined. One might have thought that if the Court was to be asked to accept, as evidence of the truth of the representations in the letter, each of the representations would have been put to Mr Wilkins.

103. (Ex. B reveals that an Office Account Receipt dated 7 April 2004 from Ross A Clarke & Associates, Solicitors and Attorneys, in the name of “E. Oxley” for $394 “on account of costs and disbursements prep of Will” had been issued. Although there was a factual issue about this, I am satisfied that the deceased paid the account.)

104. (The Invoice dated 9 March 2004, sent by Ross A Clarke & Associates, Solicitors and Attorneys, to the deceased also confirmed that the deceased made a Power of Attorney and an Enduring Guardianship authority at the same time she made the 2004 Will.)

105. The deceased made another Will on 14 September 2009 (“the 2009 Will”), which Will was in similar terms to the 2002 Will. At that time, she was still living in the Bondi Beach property.

106. It can be seen from the above summary of the contents of the Wills made before the 2011 Will, that, other than the 2004 Will, whilst the deceased had treated her children equally in relation to her residuary estate, she wished to ensure that Cindy had secure accommodation in the Bondi Beach property, for as long as she wished to reside in it.

107. The last Will of the deceased was the 2011 Will to the contents of which reference has earlier been made. By the date of this Will, the Kingsford property had been purchased in joint names to enable Cindy to own it, solely and absolutely, if she survived the deceased.

The Credibility of Witnesses

115. There were many factual issues raised in the affidavits. It is necessary to express some views on the credibility of the witnesses. I shall do so hereunder, but also shall make reference to other facts later in these reasons that have impacted the credibility of the parties. It is impossible to identify all of the factual disputes that existed on the affidavits. What follows are some of the more important features of evidence.

116. I found that Gordon, generally speaking, tried to give his oral evidence truthfully. However, on the matters of the family finances, I found him to be somewhat unknowing and, generally, very vague. In relation to amounts spent on gambling, I am of the view that he endeavoured to suggest an amount less than he and his wife, in fact, spend gambling.

117. For example, Gregory tendered Ex. 1, which comprised a copy of various bank statements relating to accounts conducted by Gordon and his wife, or by Gordon, upon which Gordon was cross-examined. Part of Ex. 1 (at page 152) was a “Schedule showing large deposits to [a] joint bank account of Gordon and Kerryne Oxley and [a] bank account of Gordon Oxley”.

118. The summary showed that, between 2011 and 2015, there had been paid into the joint account, sums totalling $227,898, and that in the period between October 2012 and June 2014, there had been paid $48,500 from Gordon’s superannuation, into one, or other, accounts. (In addition, Kerryne had received $15,000 from her father in 2008, which she had spent on “stuff”, including “more furniture, a washing machine and dryer”. She received $15,765 in April 2013, as part of her inheritance, which had been spent to “help my children out, we bought things with it”: T51.19 – T51.38; and another $36,356 in May 2013, as the balance of her inheritance: T52.23 – T52.36.)

119. Gordon only provided very limited information when asked how these moneys had been spent, namely, on furniture and fittings, on painting the home in which he and his family lived, on gifts and payments to some of his children and grandchildren (“large sums”), and on gambling expenditure (“not a great deal”). He acknowledged that he and Kerryne had not saved any of the moneys that had been deposited in the accounts and that they did not have “any rainy day money saved”: T62.30 – T62.49.

120. When asked about an expenditure of $5,000, he said he thought he had given it to his son, Jason, but his son had paid him back by making contributions to “the punter’s club” of which Gordon was a member and “I think he used $3,000 to buy a lounge, now I think of it”: T44.13 – T44.39. When he was asked about a withdrawal of $41,700 on 14 October 2011, he acknowledged that “It must have been for something big, I can't remember what it was”: T50.45 – T51.14.

121. Gordon was also asked questions about the number of cohabitants in his home and he mentioned five persons, one of whom was his granddaughter, Tayler, who is about 20 years of age. He denied that he charged her any rent, for her occupation, despite the fact that she was receiving an income (by way of a single mother’s pension), but admitted that she paid for her own food and that she paid some board: T38.31 – T38.33; T80.19 – T80.28.

122. Gordon asserted in his affidavit that, in 2004, the deceased had told him that she wanted her estate divided equally between her children. In his oral evidence he said that prior to that being said, she “had always said ‘I’ll look after all my children. I love youse (sic) all - all the same’”: T72.46 – T73.5. He stated that he had not known, until these proceedings, about the Wills made by the deceased, in which the right to reside in the Bondi Beach property and one half of the proceeds of sale had been gifted to Cindy, stating that the deceased did not tell him the truth: T73.31 – T73.42.

123. I do not accept that Gordon did not know about the contents of at least some of the prior Wills. He acknowledged that he knew Gloria had found out about at least one of the earlier Wills (the 2002 Will about which she acknowledged she had known), in 2004, and that “she was shocked about the contents”: T73.50 – T74.05. It is hard to believe that he would not have enquired why she “was shocked” or that she did not explain to him the reasons for her shock. Indeed, he said that Gloria had told him that the deceased had left her entire estate to Cindy, which, if said by Gloria, was clearly untrue, as none of the earlier Wills of the deceased had been in those terms. (Gordon acknowledged that he had never seen a Will made by the deceased in which that had been done: T75.05 – T75.10.)

124. Gordon was asked about benefits he provided to his children and grandchildren at T48.50 – T49.8:

“Q. Are you saying you’re very generous with grandchildren?

A. I am.

Q. Basically if they ask you for money you pretty much give it to them?

A. If I’ve got it I will give it to them.

Q. If you received any money from this court proceedings and they ask you for money you’ll give it to them, won’t you?

A. I won’t just give it to them. If I can help them I will help them.”

125. Later, he confirmed the evidence that he had given large sums of money to his children and to his grandchildren: T62.30 – T62.35. He did not give evidence about how much that had been given to them.

126. Gordon was asked whether he knew that it had been the deceased who had, in 1987, asked Cindy to leave the property at Seven Hills, in which she was living, and move to Bondi Beach. He denied having any such knowledge, but it is hard to accept that denial when he accepted that it was “known within the family that it was Cindy who moved in and looked after [the deceased’s husband], initially with [the deceased] and then was there to assist [the deceased] after [the deceased’s husband] died: T70.26 – T70.44, T71.35 – T71.40.

127. (In this regard, I accept the evidence of Ms Sammut, a grandchild of the deceased, who had lived with Cindy in the Seven Hills property in 1986 and 1987. She confirmed that the deceased had asked Cindy to come and live at the Bondi Beach property, although the request was couched in terms of “we will help you look after the baby”: T 207.32 – T207.50. Later, it was put in terms of Cindy providing the deceased with help.)

128. Gordon did admit, in cross-examination, however, that he knew Cindy had moved into the Bondi Beach property, and that she had lived with the deceased until the deceased’s death 28 years later, in 2015, that she was always very caring and attentive to the deceased and that she gave the deceased the best possible care that she could give to her: T71.20 – T71.22; T71.44 – T71.50. The credit given to Cindy in Gordon’s affidavits was far less generous.

129. Gordon was asked about a meeting, in 2007, following the deceased having had some bad falls at the Bondi Beach property. He had stated in an affidavit that whilst he accepted that “I did have my own family to look after…I always offered assistance with respect to my mother and often offered to have myself or my children to look after mum”. He added that “if Cindy was not capable or available to look after mum, we would have made other arrangements”.

130. He gave the following evidence at T76.15 – T76.35:

“Q. Do you recall having a meeting with Gregory, Gloria and Cindy to discuss what to do with your mother because of her increasing frailty?

A. It never happened.

Q. You say you had no meeting whatsoever?

A. No, never sat down and talked about my mother.

Q. Are you saying you never had any discussions with Cindy or Gregory about your mother’s care?

A. Never.

Q. But Cindy told you, didn’t she, that around that time she would have to leave the bank to look after her mother?

A. No.

Q. You said, “I’ve got my own family to look after”?

A. No.

Q. So, as far as you were concerned Cindy was the first option for looking after your mother in old age, wasn’t she?

A. Yes.”

131. I do not accept Gordon’s evidence that a meeting did not take place.

132. I accept the evidence of Cindy and of Gregory in this regard. Without repeating all of the evidence that each gave on this topic, there was one passage, in Gregory’s evidence, in questions by the Court, that I found very cogent and believable, at T188.25 – T188.50, and which leads me to the view that Gordon’s denial about a meeting and what had been discussed should not be accepted:

“Q. Do you remember that meeting that Mr Austin just referred you to?

A. I - I do recall that meeting.

Q. Who was present at the meeting?

A. Gordon, Gloria, Cindy and myself.

Q. What was the subject of the meeting?

A. It was about mum’s - the - the - the couple of falls that she had and she was deteriorating in health and we sort of had to come up with a decision to - she was going to - it looked like she was going to require fulltime care and it was just we were trying to work out between us who could look after her fulltime.

Q. Was any decision made by the group?

A. Well, the question was put to each of us, basically, that my sister - I think, I - I can’t remember the exact words, but I believe she said, “You live with her”, talking of Cindy, “You live with her”--

Q. Which sister said that?

A. Gloria.

Q. Gloria said, yes?

A. That, “You live with her. She” - I don’t want to say the wrong words, “She’s your problem” or something like that and my brother, Gordon, stated that he had his own - own family to look after and I basically didn’t put my hand up either. I was - I didn’t want the responsibility.”

133. Counsel for Gordon and Gloria, accepted that Gregory’s evidence “had the ring of truth to it”: T221.24 – T221.37. I agree and I have no hesitation in accepting Gregory’s evidence.

134. Gordon described his parents as “alcoholics”. However, during cross-examination, he admitted he did not understand what an “alcoholic” was. Then he said that his father drank alcohol “nearly every day”, but was not an alcoholic. He also said that his mother was not an alcoholic, but drank excessively: T64.34 – T64.37, T65.49 – T66.11.

135. In his third affidavit (made in April 2017) he said that his father was a “functional alcoholic.” During cross-examination he said he did not understand what that phrase meant: T65. 39 – T65.40.

136. I have earlier set out several passages of Gordon’s evidence. Yet, in his first affidavit in reply, in responding to one of Cindy’s affidavits, he stated that he had “vivid memories of mum cooking for us”.

137. Finally, it was put to Gordon that in his affidavits, he had sought to blame Cindy for the estrangement between Gloria and the deceased. He accepted that this had been “a complete concoction”: T77.33 – T77.41.

138. These matters, as well as having observed Gordon, Gregory and Cindy in the witness box, lead me to the view that Gordon’s evidence should not be accepted when it is in conflict with the evidence of each of Gregory or Cindy.

139. I was singularly unimpressed with Gloria as a witness. It was necessary to remind her, many times, to listen to the question asked of her and to answer it. She rarely answered questions directly and was often evasive. She also indicated that her first (and her principal) affidavit contained errors because of her then mental state. She did not identify the errors although asked by her counsel before cross-examination whether there were any changes to her affidavits that she wished to make.

140. There were several matters that lead me to the view that her evidence should not be accepted, particularly when it is in conflict with the evidence of Gregory or Cindy.

141. The first question and answer in cross-examination is a prime example of the manner in which Gloria gave some of her evidence. She was asked: “You are still married to Allan James Frazier, aren’t you?” Her answer was “We’re not romantically linked”: T83.43 – T83.44.

142. Firstly, I refer to the passage of her affidavit evidence quoted above. When cross-examined, she accepted that it was not the deceased who had “[treated] her as a human punching bag”; that the deceased had not been physically abusive; and there had only been two occasions when the deceased had struck her: T95.23 – T95.43. Later she stated that “My mother was verbal, my father was physical…My father used me as a boxing bag”: T96.34 – T96.41.

143. When it was suggested that in the affidavit, Gloria had not differentiated between the conduct of the deceased, and that of her husband (Gloria’s father), when she wrote about being treated “as a human punching bag”, this provided the opportunity for Gloria to assert “I can’t answer that honestly because I’d not long been out of hospital and was on psychiatric drugs, heavily”: T95.50 – T96.03. (She had not made any such suggestion when asked about whether she wished to make any changes to her affidavits).

144. Another matter related to the evidence of the family meeting in 2007. She denied having any knowledge of the deceased having any falls at the Bondi Beach property and that she had never had “any discussions with Cindy or Gregory around that time” about the deceased's health.

145. If that evidence is true, it does not demonstrate that Gloria had a very close relationship with the deceased. If the evidence is not true, the untruthfulness significantly affects Gloria’s credit.

146. On this topic generally, Gloria denied any conversations with Cindy and Gregory about how the deceased could be looked after. She denied ever making any statement like “[s]he lives with you, she’s yours”: T109.17 – T109.18.

147. I do not accept Gloria’s evidence on this topic. Indeed, I regard the evidence as untruthful. (I have earlier referred to Gregory’s evidence on the topic and to my acceptance of that evidence.)

148. In her affidavit in reply, Gloria stated that “Mum wasn’t reliant on Cindy until the last five years of her life”. The source of this knowledge, bearing in mind they had little contact during almost the whole of the five year period and how it was different to the deceased’s reliance on Cindy previously, is unknown. Yet, it was asserted by her as a fact.

149. Gloria described the deceased as having been “illiterate”. She admitted, however, that she had seen photographs, annexed to Cindy’s affidavit, which depicted the deceased reading a newspaper or a magazine. She was also able to identify, a card, in the handwriting of the deceased, addressed to Cindy.

150. The next matter relates to the cause of the estrangement that existed between Gloria and the deceased from about 2010, about which there was no dispute. Counsel put to Gloria that she had told the deceased that she (the deceased) must have been raped by her (the deceased’s) father. She denied this, and the following passage of Gloria’s affidavit was put to her:

"I said words to the effect of, 'Mum, I have been getting counselling and I have been seeing a psychologist and they have come up with the conclusion that you must have been sexually assaulted as your father was a deviant and you were left at home with him after your mum passed away.'"

151. When asked about the apparent difference in her sworn evidence, Gloria said:

“If I said that - well, I must have if it's written there, your Honour.”

152. (Cindy gave evidence that the deceased did not believe Gloria’s assertion that she had been sexually assaulted as a child. She described it as “another story made up by Gloria. It did not happen.” Cindy also gave detailed evidence relating to the conversation that took place between the deceased and Gloria which I shall not repeat: see Paragraph 5 of Cindy’s affidavit sworn 5 May 2017.

153. A further matter relates to Gloria’s relationship with her husband, Allan, who was not a witness in the proceedings, but who had attended the hearing on two of the three days, despite, according to Gloria’s evidence having “just recently had two strokes”. (This statement was made in the context of him not having made an affidavit in the proceedings.) When pressed about why he had not provided an affidavit despite the proceedings being on foot for about 18 months, she responded: “Yes but it's not Allan's, it's mine, this is to do with my life”: T83.44 – T83.45.

154. In her affidavit, Gloria had stated that she and Allan had been separated from 1994. When she was pressed on the topic at T83.03 – T83.19:

“Q. I think you say in your affidavit that you were separated from him in 1994?

A. Yes, on and off.

Q. You mean you’ve had an on and off relationship with him since that time?

A. Certainly, yes.

Q. You can say that since 1994 you have been romantically involved with him?

A. No, I haven’t.

Q. Perhaps "romantic" is the wrong word. Emotionally involved with him?

A. Not in a loving - as in emotion.

Q. But isn't that what you meant when you said that you'd had a relationship with him on and off since then?

A. I'd say since 1994 whatever feelings I had for Allan as a wife went out the door, we were more companions.”

155. Gloria admitted in cross-examination, that after Allan received an inheritance of about $160,000 from his mother in 2002, he had bought her some presents, including a refrigerator, washing machine, two televisions and microwave oven: T92.33 – T92.49.

156. She maintained that she knew nothing about Allan’s financial and material circumstances, although she acknowledged that they live under the one roof, and that they share expenses. Furthermore, details of his financial circumstances appear in one, or other, of her affidavits and she annexed a copy of some of his bank statements to her affidavit made in October 2017.

157. The copy medical records annexed to Gloria’s affidavits are instructive on this topic. Most described Allan as her “husband” or “partner”. A “Client Information Sheet”, made in late 2001, records “Gloria’s husband went missing two months ago”; later, in February 2002, records “Gloria found her husband … They are reunited and Gloria is considering moving into his mother’s home on the Central Coast”; and in April 2002, records “Agreed to go to marriage counselling”. A report dated 7 April 2006, from the Prince of Wales Hospital & Community Health Services, refers to their relationship seeming “turbulent” and that Gloria now “lives alone (this consultation was in the presence of [Allan]”. A Patient Medical Summary made in March 2016 described her marital status as “Married”. Another report dated 1 April 2016, from the Prince of Wales Hospital & Community Health Services, addressed to Mr Kolokossian, described “Gloria and her husband Allan have been known to me and our service …since June 2015” and describes him as being “Gloria’s main support throughout” (since her mother’s death), but that “[H]e is finding it hard to continue to support Gloria due to the ongoing stress and ordeal of this Legal Matter”.

360. Gordon has been married to his wife Kerryne since 1969. In his affidavit, sworn 5 May 2016, Gordon stated his assets total $5,235, consisting of cash at bank ($1,235) and a motor vehicle ($4,000). His joint assets with his wife were said to be cast at bank ($443) and home contents (estimated at $15,000).

361. In his affidavit sworn 10 October 2017, Gordon updated his assets. Then, the assets comprised superannuation ($256) and cash at bank ($177). Although he did not list the motor vehicle he had referred to in his earlier affidavit as an asset, at the hearing, reference was made to him still owning this: T50.18 – T50.20.

362. In cross-examination, Gordon was asked about a number of superannuation payments from his superannuation fund HESTA, which in July 2012, had a balance of $50,836: Ex1/143. However, Gordon stated that his superannuation balance was, at the date of hearing, closer to $1,200, having withdrawn and expended the difference: T54.14 – T54.33.

363. In his first affidavit, Gordon deposed that he receives income in the form of an aged pension of $657 per fortnight. His wife received Centrelink benefits totalling $746 per fortnight. Their combined fortnightly income was $1,403. Their fortnightly expenses were said to be $2,098 leaving a shortfall of $695 per fortnight. Their only liability was said to be the repayment of $25 per week towards a credit card debt of approximately $1,600, which is included in their weekly expenditure.

364. In his updating affidavit, Gordon stated that he received income of $1,254 per fortnight, comprised of an aged pension of $518, and part-time employment, as a bus driver/handy man, of $735. His wife was said to receive Centrelink, and other government benefits, that total $1,148 per fortnight, giving them a combined income of $2,402 per fortnight.

365. Their combined fortnightly expenses were said to be $2,412 (or $1,206 per week), leaving an estimated shortfall of about $10 per fortnight. It is to be noted, however, that the estimated expenditure included an amount of about $100 per fortnight on gambling, $300 per fortnight on cigarettes and tobacco, and also takes into account the repayment of a number of liabilities including an outstanding tax debt of ($1,800), a personal loan ($1,000), and a credit card ($1,150). (In an earlier affidavit, his fortnightly expenditure on cigarettes was $420.)

366. In answers to questions from the Bench, Gordon said that he estimated that he spent about $50 per week, whilst his wife spent about $20 per week on gambling and about $220 per week on cigarettes: T80.33 – T81.10.

367. In cross-examination, Gordon agreed that once these outstanding debts were repaid, which he projected would be completed by November 2018, the fortnightly expenditure would be reduced by $116: T39.21 – T39.41.

368. Gordon deposed that as his youngest daughter, Marnie, had her first child at the age of 17 years, he has continued to support both her and his granddaughter, Tayler (who is now 19 years of age), stating that “[g]rowing up my wife and I provided for her financially and emotionally”.

369. Gordon also claimed that he and his wife have “the care and maintenance” of Reece, Marnie’s second child. With regards to Reece and Tayler, Gordon stated “I look after them like they are my children”. Reece, Tayler, and Tayler’s son, Xavier, all live with Gordon and Kerryne, and Gordon stated that, to some degree, he financially supported all three, stating “I am like their father and look after them in all aspects of their life”. The family expenditure includes $140 per fortnight for child care for one great grandchild (Xavier).

370. Although Tayler is in receipt of a single parent payment from Centrelink, she does not pay board: T38.31 – T38.32.

371. Gordon also gave evidence that he gave his son, Craig, $25,000, “because he was in debt and needed my help”. In return, “he has promised to pay for funerals for my wife and I”.

372. Gordon was cross-examined extensively about the extent to which a number of cash withdrawals, detailed in Ex. 1, had been expended upon gambling. He agreed with counsel for the Defendants’ suggestion that he had given large sums of money to his children and grandchildren, and that some of this money had also been spent on gambling: T62.30 – T62.38. I am satisfied that his and Kerryne’s current financial circumstances are partly attributable to their expenditure on their children and grandchildren and partly on their gambling habits. These matters have had a significant impact on his financial capacity to retain capital.

373. Gordon deposed his “needs” as “money for a rainy day” (amount undisclosed), funds for a holiday, a new car (estimated between $15,000 and $22,000) and new furniture that is “durable and child friendly”. He also stated he required a hearing aid, although he did not quantify the cost. At the hearing, his counsel submitted that an appropriate amount for provision would be “not less than $50,000”: T214.39.

374. He stated that Cindy “has already received the benefit of a 50% share of [the Kingsford property] that she has not actually contributed to the purchase of” and that “she… has had the benefit of residing with my mother for the majority of her life rent free”.

375. Gloria also resides in public housing, paying rent of about $307 per week (of which Gloria is said to pay $157 and Allan pays $150): Ex. A. There is no evidence that her accommodation needs are not being met by the accommodation in which she lives.

376. I have earlier referred to Gloria’s assertion that although she and Allan live together and share expenses, they are “no longer in a romantic relationship”. Bearing in mind the earlier conclusions I have come to concerning her credit as a witness, I am satisfied for the purpose of assessing Gloria’s financial and material circumstances that it is relevant to also take into account the financial circumstances of Allan as they are living in the one home and sharing expenses.

377. In her May 2016 affidavit, Gloria deposed that her personal assets comprised household furniture ($3,000) and cash at bank ($6,246). At the hearing, she clarified that the cash savings had been reduced to $6,070, having recently bought Christmas gifts for her grandchildren and great-grandchildren: T84:15 – T84.19.

378. Allan’s assets were said to include personal effects ($2,000) and cash at bank ($5.00). She deposed to no liabilities.

379. Gloria’s income, at the time of her first affidavit, was said to comprise a Disability Support Pension of $620 per fortnight (after allowing for deductions for rent). In her affidavit of 11 October 2017, her income was disclosed, in bank statements annexed, to have increased to $651 per fortnight.

380. Under cross-examination, she clarified that she is in receipt of an Aged Pension, rather than a Disability Support Pension: T85.13 – T85.20; and that taking into account her rental supplement from Centrelink, her total income was actually $960.83 per fortnight: T87.16 – T87.21.

381. Allan receives an Aged Pension and a Carer’s Pension from Centrelink, with a combined income totalling $1,084 per fortnight, which at the time of the hearing, had increased to $1,107.

382. Their joint weekly expenditure was said to be $887. Although in her updated affidavit Gloria deposed that their weekly expenditure “has changed slightly”, no details of this were provided. Their combined income is sufficient to meet their estimated expenses.

383. Gloria set out her “needs” as being funds “for a rainy day…to live comfortably for contingencies”. She stated that she requires provision out of the estate of the deceased so that she can obtain private health care (including private psychiatric assistance), purchase a sleep apnoea machine, and undergo surgery. She stated she also requires funds to take a holiday “in order to assist with my mental health”. She would also like to be able to employ the services of a cleaner to assist with domestic duties that she claims that neither she, nor Allan, can complete.

384. Although none of these “needs” were quantified, her counsel in written submissions stated that “In essence her claim is for a ‘buffer’ to meet the contingencies of her life”. At the hearing, counsel stated that appropriate provision for Gloria would be “something in the vicinity of not less than $30,000”: T35.44 -T35.45.

385. Cindy gave evidence of her financial resources. She is now the sole registered proprietor of the Kingsford property. She has $11,800 in bank accounts; bank shares with a value of about $78,000; superannuation of $124,000 and a car ($15,000).

386. She is currently employed in administration at the Prince of Wales Hospital in a permanent position. She earns a net weekly salary of $854. She also received a laundry allowance of $242 over the last year. She has regular weekly expenses of $834 (which amount includes $10 per week to maintain the grave of each of her parents).

387. Counsel for Gordon and Gloria submitted that Cindy’s income was higher than she had stated ($908) and that her expenses were lower ($596). He accepted, however, that there had been cash withdrawals averaging about $98 per week. Whilst he put these matters to Cindy, he did not suggest to her that she had additional savings that had not been disclosed or that she had attempted to mislead the Court about her financial circumstances.

388. Furthermore, Cindy had described her expenses as “regular expenses”. It was clear that they did not, necessarily, include “one-off” expenses that sometimes arise.

389. Cindy stated that if she was required to sell the Kingsford property and purchase another property, she will have to pay stamp duty (on a purchase price of $700,000) of $27,000 and legal costs of $3,500.

390. She suffers from a number of medical conditions, including menorrhagia (with an increased risk of cervical cancer), eczema, peripheral edema, which is a condition that causes swelling from excess fluid in her ankles and legs, obesity, and depression and anxiety.

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

392. I have already referred to the financial circumstances of the persons with whom each of Gordon and Gloria is cohabitating.

(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

393. Gordon deposed that he suffers from high blood pressure, asthma, asbestosis, and pain as a consequence of varicose veins in his left testicle. He uses an inhaler. He says that he requires a hearing aid but says that he is not aware of its cost.

394. The ‘Patient Health Summary’ from his General Practitioner, printed on 5 October 2017, annexed to his most recent affidavit, listed his ‘Past History” as Asbestosis, Asthma, Calculus ureter (kidney stones), Labyrinthitis (inner ear disorder), left varicocoele (an enlargement of the veins within the scrotum), hypertension, left sialadenitis (bacterial infection of a salivary gland), osteoporosis with fracture and hearing impaired.

395. Gloria deposed that she suffered from a number of medical conditions: Rheumatoid arthritis, sleep apnoea and post-traumatic stress disorder.

396. The undated “Patient Medical Summary” that was annexed to her most recent affidavit, said to be from her General Practitioner, listed her “Current Problems” as plantar fasciitis (right), Derkham’s disease (rare condition characterized by generalized obesity and fatty tumors in the adipose tissue), renal calculus (kidney stones), ovarian cyst, depression, diverticular disease, hypercholesterolaemia (elevated amounts of cholesterol in the blood), gastritis, calcaneal spur, sleep apnoea, cataracts (bilateral), rotator cuff tear (right), lumbar intervertebral disc disorder with radiculopathy, cervical disc disorder with radiculopathy, and Splenectomy.

397. In her affidavit of 11 October 2017, Gloria stated that she requires a “Right Shoulder Replacement”, following which she estimated she will require a “significant level of personal care and assistance for a period of 6 months noting the surgery will be undertaken to my dominant arm”. Although she annexed medical evidence which detailed a CT Lumbar Periradicular Injection she had undergone in June 2014, a CT guided Right Perineural injection in April 2016, and a right shoulder injection in December 2016, there was no direct evidence going to the need for surgery.

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

398. Gordon is aged 67 years. Gloria is aged 70 years.

(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

399. There is no suggestion that either Gordon or Gloria made any contribution (whether financial or otherwise) to the acquisition, conservation and improvement of the estate or of the Kensington property of the deceased.

400. Gloria deposed in her affidavit sworn 9 May 2016, that following the motor vehicle accident in which the deceased had been involved, she had encouraged the deceased to seek compensation for the injuries she had sustained. Gloria recounted that as a result, the deceased received a “favourable compensation sum” that was used to purchase the Bondi Beach property.

401. Gloria went on to assert “If we didn’t have that conversation and I didn’t advise her accordingly, [the deceased] would have continued living in Seven Hills in a housing commission home never owning any assets”.

(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

402. There is no evidence of any provision made for either Gordon, or Gloria, during the deceased’s lifetime. But for these proceedings, each would have received a one fifth share of the moneys in bank, after the payment of debts, funeral and testamentary expenses.

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

403. I have set out evidence of the prior testamentary intentions of the deceased. But for the 2004 Will, her testamentary intentions remained consistent. She wished to ensure that Cindy had secure accommodation throughout her lifetime.

(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

404. Neither Gordon, nor Gloria, was being maintained wholly, or partly, by the deceased in the years before the deceased’s death.

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

405. Apart from the Commonwealth government’s responsibility to continue to provide each with an aged pension, and his, and her, spouse’s responsibility, respectively, to do so to the best of her, and his, ability, there is no person who is liable to support Gordon or Gloria. In addition, each appears to be living in secure accommodation.

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

406. There are no matters, going to character and conduct, of each of Gordon and Gloria, to which reference has not already been made.

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

407. Neither Gordon, nor Gloria, disputed that Cindy greatly assisted the deceased during the later years of her life. Gordon, for example acknowledged that the deceased needed assistance, “especially towards the later years just before she died and this was provided by Cindy”.

408. It is clear that of the deceased’s children, Cindy was the person who, as the deceased herself recognised, assisted her the most from at least 1987. Merely because the deceased did not require constant care and attention at that time, does not mean that the child who lives with the parent does not provide for the parent’s welfare by simply being there.

409. The deceased described Cindy to Sandra Whitfield, a volunteer biographer with the Sacred Heart Hospice who had interviewed the deceased shortly before she died, as having “always stuck with me through thick and thin. She’s looked after me, kept with me, and lived with me. Anything I want that she knows I should have, she’ll get. If she thinks I don’t feel well, she’ll take me straight away to the hospital…”.

410. In a birthday card, addressed to Cindy, and given to her a couple of years before death, the deceased wrote:

“…thanking you for all the kindness you have gave me all the years”.

411. Dr Ursula Christopher, who had known her for 15 years, in a letter dated 27 September 2005, described her as an “outstanding … daughter to her mother”.

412. Upon moving to the Kingsford property, Cindy even made it clear, in a note addressed to the deceased, that “You will never be put in a nursing home … So stop worrying and enjoy the rest of your life”. She made good her promise as the deceased was not put into a nursing home. (Both Gordon and Gloria acknowledged that the deceased had often told her children that she did not want to be put into a nursing home.)

413. Cindy lived with the deceased for 48, of her 52, years. There is no doubt that she had an extremely close relationship with the deceased and that for many years, it was she who provided the deceased with companionship and emotional and other support. Her contribution to the welfare of the deceased cannot be underestimated and it is a very important matter to which regard must be had in considering Cindy’s competing claim on the bounty of the deceased.

414. These are also matters that are to be considered on the question whether to make a notional estate order. They go to, amongst other things, “the substantial justice and merits involved in making or refusing to make the order": s 87(1)(b) of the Act.

415. Gordon and Gloria submit that Cindy received a significant financial benefit in having lived with the deceased for so many years. Under cross-examination, Gordon conceded, that as both his father, and the deceased, were pensioners, without any other source of income, they would not have had the resources to support Cindy financially: T72.31 – T72.38. Gloria also admitted that she was unaware of the particular financial arrangements that existed between Cindy and the deceased: T101.6 – T101.31.

416. Although it is true that Cindy would have received some financial benefits from living in the home of the deceased, I accept, despite the denial of Gordon and Gloria, that it was the deceased, initially, who had requested Cindy to come to live with her; thereafter, they appeared to be financially inter-dependent, with each contributing towards the costs of the household and other expenses: T157.41, T159.12 – T159.15; and that, from at least 2007, until the deceased’s death about 8 years later, it was Cindy who bore the principal, if not the sole, responsibility for looking after the deceased to the extent that she required looking after, as each of the deceased’s other children expressly abrogated his and her responsibility for doing so.

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

417. Gloria deposes in her affidavit of May 2016 that “I am of Aboriginal descent however I am not aware as to whether or not any customary law applies in the consideration of this application”.

418. In addition, at the hearing, Gloria made reference to her and her husband residing in “Aboriginal Housing”: T86.21 – T86.22, T90.6.

419. Neither party, by counsel, made any submissions on the relevance, if any, of Aboriginal customary law. In the circumstances, I do not consider that Aboriginal customary law is of significance in this case.

(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

420. The deceased had made a number of Wills in which accommodation was provided to Cindy. Cindy also was aware, from the time of its purchase, that she and the deceased owned the Kingsford property as joint tenants. No doubt, she (and the deceased) reasonably expected that Cindy would inherit the Kingsford property by survivorship.

421. I have earlier referred to issues of credit.

DETERMINATION

422. I have borne in mind what was written by Basten JA in Chan v Chan at [22]:

“A significant set of factors in many cases is that identified as ‘the financial resources (including earning capacity) and financial needs, both present and future, of the applicant…’. However, it is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs. The background to any consideration of the appellant’s needs required determination of the size of the estate and the claims of others on the beneficence of the testator.”

423. Thus, in determining what is adequate for the proper maintenance, education or advancement in life of an applicant, the Court also considers the nature, extent and character of the estate and the other demands upon it, and also what the deceased regarded as superior claims or preferable dispositions.

424. Thus, as stated the Court does not focus exclusively, or primarily, on an applicant’s financial needs. Those needs, as well as the financial needs of any other person with a claim on the testamentary bounty of the deceased, are important, but not the sole considerations.

425. It seems clear that the deceased considered that she owed the greatest obligation and responsibility to Cindy, particularly in relation to accommodation, over and above that which she owed to her other children. That obligation rested upon the recognition that she and Cindy had lived together for almost all of Cindy’s life, and that Cindy, of all the children, had cared for her and provided for her welfare. The deceased wished to ensure that the Kingsford property would pass to Cindy upon her death. This is hardly surprising.

426. The statements the deceased made to Mr Wilkins, to others, and to Cindy herself, to which I have earlier referred, evidence this intention. Had the deceased taken the step of having the Kingsford property in Cindy’s name at the time of the purchase, a step, not unnaturally, advised against by Mr Wilkins, there would have been virtually no actual, and no notional, estate out of which to make any family provision order for either Plaintiff.

427. Both Plaintiffs approached this case on the basis that the deceased ought to have treated all of her children equally in the disposition of her estate. Indeed, this was the approach taken by the deceased, herself, in the distribution of her residuary estate. However, to approach the disposition of the Kingsford property in this same way would overlook the very strong obligation and responsibility that the deceased recognised that she owed to Cindy.

428. In assessing whether the provision made for each of Gordon or Gloria was inadequate for what, in all the circumstances, was the proper level of maintenance or advancement in life, appropriate for him and her respectively, I have had regard, amongst other things, to the totality of the relationship between each of them and the deceased, including, by way of some explanation, the allegations of parental misconduct asserted by each of them; the nature, extent and character of the estate, and notional estate, and the other demands upon it; the financial needs of each of Gordon, and of Gloria, and of Cindy; the claim of Cindy, as the surviving joint tenant, and otherwise, which claim the deceased regarded as superior to the claim of any of her other children; that generous provision was made for Cindy during the deceased’s lifetime, including that Cindy shared the deceased’s accommodation rent free, and that she was registered, as a joint tenant with the deceased, on the title of the Kingsford property without having made any financial contribution to the purchase price; and that Cindy’s competing claim is to be found in her contributions to the deceased, both financially, and in other ways, for a significant period of the deceased’s life, particularly after 2007, when the other children of the deceased, including Gordon and Gloria, abrogated the responsibility for her day to day care to Cindy.

429. There can be no doubt that for many years, Cindy performed a significant caring role for the deceased. It was that care that enabled Cindy to grant the wish of the deceased to not be placed in a nursing home. The deceased was taken to the hospital a few days before her death.

430. I have also borne in mind that Cindy did receive a carer’s pension whilst she was unemployed and whilst she looked after the deceased.

431. (In stating that I have considered the allegations of parental misconduct made by each of Gordon and Gloria, I have borne in mind the competing evidence of Gregory and Cindy. I have also borne in mind that there can be only limited contradiction of Gordon’s and Gloria’s evidence as to his, and her, relationship, and dealings, with the deceased.)

432. Furthermore, even if Gloria’s view that the provision made for her is so small as to leave a justifiable sense of exclusion from participation in the family estate, that does not require an order to be made under the Act. There is no “presumptive testamentary entitlement of an offspring”: Underwood v Gaudron [2015] NSWCA 269 at [73] (Basten JA).

433. In my view, the deceased took considerable care in determining how her property should be distributed. As to her actual estate, the deceased chose to make specific bequests to individuals, including to Gloria (“my rings and the rest of my jewellery”) and to Cindy (“my household goods and personal effects”). The deceased also recognised that she should, so far as there was residue, after payment of debts, funeral and testamentary expenses, treat her surviving children equally, and she did so by leaving the residuary estate to them in equal shares.

434. At the time of the purchase of the Kingsford property, the deceased’s instructions to Mr Wilkins were clear, unambiguous, logical, and unsurprising. She was in a better position to determine how the property, to which neither Gordon, nor Gloria, had made any financial, or significant other contribution, should be held when purchased, and the effect, on the nature and value of her estate if, for example, she purchased it in the name of Cindy, or if it was purchased as a joint tenant with Cindy. To conclude otherwise, would elevate the financial need of Gordon, and of Gloria, respectively, over what the deceased regarded as her primary obligation to Cindy, which whilst not determinative, must be borne in mind.

435. Furthermore, in considering, and following, the advice of Mr Wilkins, the deceased appears to have been capable of giving due consideration to questions of distribution of her property in her lifetime, and upon her death.

436. The Court should, and does, give considerable weight to the deceased’s wishes in recognition of the better position in which she was placed. Of course, this is subject to the qualification that the Court’s determination under s 59(1)(c) and s 59(2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased’s death or will: Slack v Rogan; Palffy v Rogan at [127].

437. As has recently been written by White JA in Sgro v Thompson [2017] NSWCA 326, at [86]:

“I adhere to the view I expressed in Slack v Rogan; Palffy v Rogan. To recognise that the court is not in as good a position as a capable testator to assess what maintenance or advancement in life is proper for an applicant having regard to all of a family’s circumstances, including the relationships between the applicant and the deceased, and the merits and claims of other family members, is not to put a gloss on the statute. Rather, it is to acknowledge the superior position of the testator. The most important word in s 59(1)(c) is “proper”. Until the court has identified what is proper maintenance, education and advancement in life for an applicant, it cannot assess whether the provision made, if any, is adequate. What is proper requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties’ financial circumstances. Whilst the court will know the latter, it will only have an incomplete picture of the former. Of course, the court’s assessment of what is proper maintenance, education and advancement in life must be made when the court is considering the application. That does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate.”

438. In all the circumstances, I am not satisfied that the provision made for either Gordon, and for Gloria, is inadequate for his, and her, proper maintenance and advancement in life, respectively. It follows that it is not necessary to determine whether to make any order for provision for either out of the estate or notional estate of the deceased, having regard to the facts known to the Court at the time the order is made. It is also unnecessary to consider whether to make a notional estate order.

439. Whilst it is true that failing to sever the joint tenancy did involve an omission to exercise a right that, at some time after the purchase was entered into, could have been exercised by the deceased, so as to result in a benefit to the estate of the deceased, by increasing its value, it is also necessary for the Court to consider the importance of not interfering with reasonable expectations in relation to the Kingsford property, the substantial justice and merits involved in making or refusing to make a notional estate order, and any other relevant matters in the circumstances.

440. Had it been necessary to consider what provision “ought to be made” for each of Gordon and Gloria, as a matter of discretion, having regard to all of the matters identified in s 60(2) and other matters referred to above, I would have made no further provision for him and her respectively. In that case, also, it is unnecessary to consider whether to make a notional estate order.

441. Accordingly, the Court:

1. Orders that the Amended Summons be dismissed.

2. Makes no order as to the costs of either of the Plaintiffs, noting that there is a conditional costs agreement made with his, and her, solicitors, so that neither will have any obligation to pay any costs and disbursements of the proceedings.

3. Orders that the first Defendant’s costs, calculated on the indemnity basis, of the proceedings, be paid, or retained, as the case may be, out of the estate of the deceased.

4. Makes no order as to the costs of the second Defendant.

5. Notes that to the extent that there is insufficient in the estate to pay the first Defendant’s costs and disbursements, the Defendants will resolve, between themselves, how the balance of any unpaid costs and disbursements should be borne.

6. Orders that the Exhibits be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rule 31.16A and rule 33.10) and Practice Note No SC Gen 18.

**********