Pawlowska v Zajglic

[2011] NSWCA 118

Court of Appeal

New South Wales

Case Title:	Pawlowska v Zajglic
Medium Neutral Citation:	[2011] NSWCA 118
Hearing Date(s):	2 May 2011
Decision Date:	02 May 2011
Jurisdiction:
Before:	Campbell JA
Decision:	(1) Notice of Appeal struck out. (2) No order as to costs on the appeal. (3) Appellant to pay the costs of the Notice of Motion filed by the Respondent on 14 April 2011. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	APPEAL - Right of appeal - Jurisdiction of the Court of Appeal - Supreme Court Act 1970 s 101(2)(r)(ii) - Whether leave to appeal required - Whether claim of appellant that appeal involves a matter at issue amounting to $100,000 or more is both credible and realistic - WILLS - Application under Family Provision Act 1982 (NSW) - Whether realistic prospects on appeal - PRACTICE AND PROCEDURE - Requirements of Notice of Appeal - Identification of grounds relied upon in support of appeal - COSTS - Costs of appeal - UCPR 51.41 - notice of motion seeking to strike out Notice of Appeal must be filed within 28 days - Costs of notice of motion - UCPR 51.41 inapplicable - costs follow the event
Legislation Cited:	District Court Act 1973 Family Provision Act 1982 Judiciary Act 1903 (Cth) Supreme Court Act 1970 Uniform Civil Procedure Rules
Cases Cited:	Cole v Commonwealth (1961) 106 CLR 653 Durham v Durham [2011] NSWCA 62 Ebert v Union Trustee Co of Australia Ltd (1957) 98 CLR 172 Gillard v Hunter Wire Products Pty Ltd t/as Hunter Screen Products (No.2) [2001] NSWCA 450 Grygiel v Baine [2004] NSWCA 377 Hampson v Hampson [2010] NSWCA 359 Hooper v Rowley [2004] NSWCA 398 House v The King (1936) 55 CLR 499 Najdovski v Crnoljlovic [2008] NSWCA 175; [2008] NSWCA 175; (2008) 72 NSWLR 728 Pawlowska v Zajglic [2010] NSWSC 864 Pegela Pty Ltd v Oates [2010] NSWCA 186 Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 Singer v Berghouse (1994) 181 CLR 201 Trad v Harbour Radio Pty Ltd [2010] NSWCA 41 Vigolo v Bostin (2005) 221 CLR 191
Texts Cited:
Category:	Interlocutory applications
Parties:	Helena Pawlowska (Appellant) Andrzej Mieczyslaw Zajglic (Respondent)
Representation
- Counsel:	Counsel G Foster (Appellant) R Hanrahan (Respondent)
- Solicitors:	Solicitors Jay Olszanicki (Appellant) Drexler & Partners (Respondent)
File number(s):	280532 of 2008
Decision Under Appeal
- Court / Tribunal:
- Before:	Ball J
- Date of Decision:	05 August 2010
- Citation:	Pawlowska v Zajglic [2010] NSWSC 864
- Court File Number(s)	2008/280532
Publication Restriction:	Nil

Judgment

1. HIS HONOUR : This is an application to strike out an appeal on the basis that the appeal is incompetent. The appeal in question is from a decision Ball J gave on 6 August 2010 in Pawlowska v Zajglic [2010] NSWSC 864. The judge dismissed an application that the Appellant had brought under the Family Provision Act1982 seeking provision from the estate of her late mother.

1. A Notice of Intention to Appeal was filed on 1 September 2010, and a Notice of Appeal was filed on 4 November 2010 purportedly as of right. The order that was sought in the Notice of Appeal was that, apart from allowing the appeal and setting aside the judgment of the court below:

"in lieu of the legacy of $10,000 left to the Appellant by her late mother, Cecylia Zajglic, the Appellant be paid a provision of $90,000 (or such other sum as the Court may think appropriate) out of the estate of the late Cecylia Zajglic for the maintenance, education and advancement of the life of the Appellant".

1. On 2 February 2011 at a directions hearing before the Registrar, counsel for the Respondent submitted that the Notice of Appeal on its face disclosed that the appeal was incompetent.

1. The appeal papers do not appear to include any affidavit of competency of the type that is required by UCPR 51.22. That rule applies, pursuant to UCPR 51.22(1):

"[I]f an appeal ... as of right is restricted by any Act by reference to:

(a) a specified amount or value, or

(b) any other specified circumstance or matter (such as a restriction based on questions of law)."

1. In such a case UCPR 51.22(2) requires an appellant, on filing the notice of appeal, to file and serve an affidavit that:

"(a) identifies the nature of the restriction (including a reference to the provision of the Act that imposes the restriction), and

(b) sets out the material facts on which the appellant ... relies to show that the restriction does not apply."

1. The matter is now before me pursuant to a notice of motion that was filed by the Respondent on 14 April 2010 seeking to strike the appeal out as incompetent. There is also before me an affidavit that Mr Olszanicki, solicitor for the Appellant, swore on 4 April 2011, that seeks to remedy the breach of UCPR 51.22. After recording that the judgment below awarded the Appellant no money, the affidavit continued:

"Accordingly, as the claim is in respect of property being the estate, which property is valued at more than $100,000, I believe that the appeal does not require leave and there is accordingly no restriction of appeal as of right".

The Judgment Below

1. The judgment of Ball J shows that the claim was brought by the daughter of a testatrix. The testatrix died, leaving a house as, for most practical purposes, her only substantial asset. The testatrix's last will left to the Appellant a legacy of $10,000, and to the Respondent, who is the Appellant's brother, the residue of the estate.

1. The Appellant was aged 58 at the date of trial. She was married with one son. She and her husband both worked in positions that required hard manual work and she had some health problems. The Respondent had moved to Australia from Poland, following a divorce in 1998. The testatrix was diagnosed with lung cancer in 2005. The Respondent, as the judge found, acted as her carer from then until her death in 2008.

1. The judge found that the Respondent had no significant assets apart from what he stood to inherit under the will and a flat in Poland which the parties agreed was worth approximately $30,000. That flat is one that he had acquired from the Polish Government, after his mother had in some fashion transferred to him a right of occupancy of the flat that she had held before she migrated to Australia. The Respondent's former wife continued to live in the flat as part of their divorce agreement until a short time before the trial.

1. The judge found that the Appellant had not been left without adequate provision for her proper maintenance, education and advancement in life. He said, at [17]:

"The estate is small, and apart from what the defendant stands to inherit from it, he has virtually no assets and limited prospects. The evidence is that the deceased asked him to come to Australia to look after her in her old age and that is what he did. The fact that he did so has, at least to some extent, contributed to the position he now finds himself in. The plaintiff sought to suggest that the defendant's position was largely of his own making. It was put to the defendant that he did a limited amount of work when he was in Poland and it was suggested that it suited him not to work here.

The plaintiff, on the other hand, has worked very hard all her life. In my opinion, the plaintiff has sought to exaggerate how little work the defendant did in Poland, although I accept that he has not worked nearly as hard as her and that it suited him to stay with his mother and look after her. Three facts, however, remain. First, the defendant has, apart from his inheritance more or less nothing; and the amount that he stands to inherit, even if no provision is made for the plaintiff, is approximately $330,000, less the $10,000 that must be paid to the plaintiff and less any legal costs the estate will incur.

Second, the defendant did look after his mother and had a very good relationship with her. Those two factors provide the defendant with a strong claim on the estate.

Third, the question under the FPA is not what is fair or what the court would consider the most appropriate thing to do in the circumstances. The question is whether the deceased failed to provide adequately for the proper maintenance etc of the plaintiff taking account of the facts as they exist today. In my opinion, she did not. The deceased was entitled to form the view that the plaintiff had her own life, that she had a husband that could provide her with support, that together they were able to afford to buy a house and make provision for their son and that the likelihood is that, no doubt with considerable effort on their part, they will be able to keep their house in their retirement. I do not think anything has changed since the deceased's death. When compared with the position of the defendant and the effect of any further provision for the plaintiff on him, I do not think the deceased failed to make adequate provision for her daughter." (My paragraph divisions)

1. The judge found at [14] that the assets of the Appellant were as follows:

"There was some dispute about the value of the plaintiff's and her husband's assets. They own a property at Wentworthville. It appears that their son has built a second house on the property and the land is in the process of being subdivided. The current title search indicates that the plaintiff, her husband and her son each have a third interest in the property. There is no evidence of the total value of the property as it stands. However, each of the two duplex houses is estimated to be worth $450,000 and I accept the defendant's submission that it is reasonable to assume that the total value of the property is approximately $900,000. The plaintiff and her husband currently have a mortgage of $287,000. She and her husband recently sold an investment property from which together they realised an amount of $84,000. In addition, the plaintiff has superannuation to the value of $25,000 and her husband has superannuation to the value $32,000."

1. The judge found that the Appellant earns approximately $48,000 gross per annum, and that her husband was earning approximately $900 per week after tax. He made findings about her at [13] as follows:

"She works a significant amount of overtime and has a long trip to and from work. She clearly works very hard. She has a back problem and experiences strong pain in her right arm which is associated with her back problem."

Construction of s 101(2)(r) Supreme Court Act

1. Section 101(2)(r) Supreme Court Act1970 requires leave before there can be an appeal from:

"a final judgment or order in proceedings of the Court, other than an appeal:

(i) that involves a matter at issue amounting to or of the value of $100,000 or more, or

(ii) that involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more."

The present appeal clearly involves an appeal from a final judgment or order of proceedings in the Court.

1. As can be seen above, there is a general prohibition in the chapeau of s 101(2)(r), on appealing without leave against any final judgment or order in proceedings of the Court. Before it could be established that s 101(2)(r)(i) took the present appeal out of the general prohibition (ie that the present is an appeal that involves a matter in issue amounting to or of the value of $100,000 or more) it would be necessary for the Appellant to establish that she had a realistic prospect of obtaining $100,000 or more if she were to succeed in the appeal.

1. Similarly, if she were to bring herself within s 101(2)(r)(ii), it would be necessary for her to show that she had a realistic prospect of obtaining $100,000 or more on the appeal. Concerning the provisions of s 35 Judiciary Act1903 (Cth) on which s 101(2)(r)(ii) is based, in Ebert v Union Trustee Co of Australia Ltd (1957) 98 CLR 172 at 175 the High Court said that, "the plaintiff must show prejudice through the order made that sounds in the required sum of money" .

1. Concerning the first limb of s 101(2)(r), Priestley JA and Sperling J in Gillard v Hunter Wire Products Pty Ltd t/as Hunter Screen Products (No.2) [2001] NSWCA 450, said at [11]-[12]:

"What then is meant by 'at issue' on appeal? The legislature cannot have meant whatever variation from the judgment below might be claimed on appeal. Were that so, an appellant appealing against quantum of damages would have an appeal as of right merely by claiming $100,000 more or less (as the case may be) than the damages assessed below, irrespective of merit. The phrase 'at issue' must be construed as meaning truly at issue or, inversely, not unrealistically at issue.

It follows that an appellant, appealing against quantum of damages, has an appeal as of right if there is a realistic prospect of changing the result by $100,000 or more. Otherwise leave is required."

Those words have often been referred to with approval, including in Grygiel v Baine [2004] NSWCA 377 at [30] .

1. Concerning the Judiciary Act s 35 (which as previously noted contained essentially the same requirement as s 101(2)(r)(ii)), the judges of the High Court in Cole v Commonwealth (1961) 106 CLR 653, said that an appeal against an order denying a new trial was competent if, "what the plaintiff really seeks to establish by a new trial is a bona fide claim to damages which might readily be assessed at 1,500 [more than the amount she was first awarded]".

1. Their Honours said that the appeal was permissible when " the plaintiff's initial figure on which she founds her prejudice" (ie the amount she contends the jury should have awarded her) " is susceptible of reasonable support " .

1. Similarly, in applying such tests to the Family Provision Act , this Court in Hooper v Rowley [2004] NSWCA 398 at [17] held:

"In the present case the measure of the value of the appellant's right in the property (should that right be established) could not exceed $80,000. That is to say, the proceedings do not involve a claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more. Hence, leave to appeal is essential."

1. That kind of test has also been referred to with approval in Najdovski v Crnojlovic [2008] NSWCA 175; [2008] NSWCA 175; (2008) 72 NSWLR 728 at [9] and in Trad v Harbour Radio Pty Ltd [2010] NSWCA 41 at [17].

1. In Pegela Pty Ltd v Oates [2010] NSWCA 186, Young JA, with whom Allsop P and McColl JA agreed on this point, said at [63] of the provision of the District Court Act 1973 that corresponds with s 101(2)(r) Supreme Court Act :

"we must reject the proposition that just because the parties are focussing on a share in a property worth over $100,000 the appeal is to be classed as a 'claim in respect of property amounting to $100,000 or more'. It is the realistic worth of the claim that must exceed $100,000."

1. In accordance with these principles, the basis upon which Mr Olszanicki sought to contend in his affidavit of 4 April 2011 that the appeal was one that lay as of right is unsustainable.

1. Today, Mr Foster, counsel for the Appellant, made submissions that put the matter on a different basis. He appears to accept that it is the extent of the prejudice that the appellant has suffered that will govern the right of appeal.

Application to Facts

1. I am not satisfied that this is a case where it has been demonstrated that the extent of any prejudice exceeds $100,000.

Grounds of Appeal

1. The grounds of appeal in the present case were:

1. The primary Judge erred in finding that in all the circumstances the deceased did not fail to provide adequately for the proper maintenance, education and advancement in life of the Appellant.

2. In all the circumstances the primary Judge erred in failing to find that the deceased failed to provide adequately for the proper maintenance, education and advancement in life of the Appellant.

3. The primary Judge did not give sufficient weight to the financial and other circumstances of the Appellant including:

a. the Appellant's need for a new car and desire for travel to her homeland,

b. the Appellant's state of health,

c. the Appellant's low skilled employment history and poor income earning capacity,

d. the Appellant's poor command of her English language,

e. the Appellant's age,

f. the Appellant's overall good relationship with her deceased mother,

g. the Appellant's poor asset position approaching retirement,

h. the Appellant's limited means of support now and upon retirement,

i. the deceased's declaration of the intention that she would give the Appellant 60% of her estate and give the respondent 40%,

j. the Appellant's family arrangement requiring subdivision of the residential property, resulting significantly diminished assets remaining to the Appellant,

which, if given sufficient weight, would have led the primary Judge to make a finding that the deceased failed to provide adequately for the proper maintenance, education and advancement in life of the Appellant.

4. The primary Judge did not give sufficient weight to the following matters:

a. that the deceased had already provided a home unit in Poland to the respondent,

b. that the deceased allowed the respondent to reside in her home in Poland and later in Penrith rent free for many years prior to her needing domestic assistance,

c. that the respondent continues to live in the deceased's home in Penrith rent free,

d. that the respondent has successfully obtained 2 degrees, which would have the effect of significantly increasing his earning potential and allow the respondent to earn significant income,

5. The primary Judge gave too much weight to the financial and other circumstances of the respondent, including:

a. the respondent's current health,

b. the respondent's claimed language difficulties,

c. the respondent's age,

d. the respondent's assertion that he has no assets apart from the unit in Poland,

e. the respondent's assertion that he has no-where else to live (but in the deceased's house),

f. the respondent's current income and outgoings,

which if given proper weight, would have led the primary the [sic] Judge to make a finding that the deceased failed to provide adequately for the proper maintenance, education and advancement in life of the Appellant.

6. The primary Judge incorrectly found that the respondent has, apart from his inheritance, more or less nothing when the evidence disclosed he has the benefit of a unit in Poland worth approximately AUD$30,000.00.

7. The primary Judge failed to give any reasons or appropriate reasons for finding that:

a. the respondent has, apart from his inheritance, more or less nothing,

b. in light of the legacy of $10,000.00 to the Appellant, the circumstances did not warrant any further provision out of the estate of $330,000.00.

8. The primary Judge erred in that he applied an inappropriate test, to wit whether or not the deceased "was entitled to form a view that the Appellant had her own life, a husband that could provide her with support, that together they were able to afford to buy a house a [sic] make provisions for their son and that the likelihood is that, no doubt with considerable effort on their part, they would be able to keep their house in their retirement", when the appropriate test is whether in all the circumstances it would be expected by the community that the deceased would have to make a greater benefaction then [sic] she in fact did make towards the Appellant.

9. The primary Judge erroneously failed to make any or any adequate provision in addition to the legacy of $10,000.00 to the Appellant pursuant to Section 7 of the Family Provision Act.

1. Those grounds in themselves are problematical. UCPR 51.18(1) requires that a notice of appeal should state amongst other things:

"(e) briefly, but specifically, the grounds relied on in support of the appeal."

1. UCPR 51.18(2) provides:

"Without limiting subrule (1), the appellant must also specify in the notice of appeal any material facts that the appellant contends that the court below should, or should not, have found."

1. The Notice of Appeal does not contend the judge has made an error in finding any material fact except to the limited extent of Ground 6. The grounds of appeal did not identify the respect in which it is contended that the judge has erred with the degree of specificity that is needed for a proper notice of appeal - see Durham v Durham [2011] NSWCA 62. That poses a problem for the Appellant in establishing that the particular Notice of Appeal that she seeks to show is competent has a prospect of obtaining for her more than $100,000.

1. It is to be recalled that the judge's decision as to jurisdiction can be successfully appealed against only in accordance with the test in House v The King (1936) 55 CLR 499, and that the quantum of any order that he might make, if jurisdiction were to be found, would likewise be appealed against in accordance with House v The King . A contention that the judge has given incorrect weight to factors can only fit within the last of the factors identified in House v The King as being a judgment concerning which no specific error can be identified, but that is so far outside the range of possible discretionary judgments applicable to the facts of the case, that an error must have been found: Hampson v Hampson [2010] NSWCA 359 at [83].

Realistic Prospects on Appeal

1. The findings that the judge made are ones concerning which, in my view, the prospects of appealing successfully do not lead to the appellant having a realistic prospect of obtaining more than $100,000, if she obtains anything at all. I have considerable doubt about the prospects of Ground 6 succeeding, as the judge made specific findings about the Polish flat, and in any event for a man of the Respondent's age to have a flat in Poland worth $30,000, in the context of the amount needed to maintain him, is to have "more or less nothing". However, even if it were to be decided the judge had underestimated the Respondent's assets by $30,000, I still do not conclude that the Appellant has a realistic prospect of obtaining more than $100,000 by the appeal.

Judge Applied Wrong Test?

1. One contention of the Appellant is that the judge applied an inappropriate test, namely, whether the deceased:

"... was entitled to form a view that the appellant had her own life, a husband that could provide her with support and together they were able to afford to buy a house [and] make provision for their son and the likelihood is that ... they would be able to keep the house in their retirement".

1. The Appellant submits that the appropriate test is that which was identified in the judgment of Sheller JA in Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 at 46:

"In deciding whether the provision for an eligible person is inadequate for that person's proper maintenance education or advancement in life the court should be guided by consideration of the provision which, in accordance with prevailing community standards of what is right and appropriate and in the circumstances mentioned in the Family Provision Act and then obtaining, ought to be made in favour of the eligible person: compare White v Barron (1980) 144 CLR 431 at 440, 445 and Kearns v Ellis (Court of Appeal, 5 December 1984, unreported) per Mahoney JA at 7. I do not think this approach produces any different result from that reached by reference to the concept of moral obligation or duty as that expression had generally been understood or used by the courts." (emphasis added)

1. I have significant doubt that the judge has applied a wrong test. In his judgment at [15] he stated, correctly, the two-stage test laid down by Singer v Berghouse (1994) 181 CLR 201 and Vigolo v Bostin (2005) 221 CLR 191.

1. However, it is not necessary to make a final decision about whether the judge has indeed applied the wrong test. That is because if he has applied the wrong test the proper response would be for the Court of Appeal to then exercise its own discretion in accordance with the correct test. In light of the very small size of the estate, and the disparity between the financial positions of the Appellant and the Respondent, I am not persuaded that, even on a re-exercise of discretion, there is a realistic prospect that the Appellant would succeed in obtaining more than $100,000.

Judge Misunderstood Appellant's Case, And Gave Inadequate Reasons?

1. Another submission of the Appellant is that the judge misunderstood the case being put to him, and failed to give adequate reasons. While I have considerable doubt about whether that contention would itself be likely to succeed, it is not necessary for me to form a final view concerning it, even if it were appropriate for a single judge to decide what is in effect an issue in the proposed appeal. That is because the appropriate curial response if such submissions were to be made good, would once again be for the court to exercise its own discretion. As I have said, I am not satisfied that there is a realistic prospect that the Appellant would receive more than $100,000.

Wrong Finding On Jurisdictional Question?

1. The first ground of appeal and the second ground of appeal are directed to the judge's finding on the jurisdictional question. Again, even if one overlooks inadequacies of expression of the grounds of appeal, and even if a challenge to the judge's finding on the jurisdictional question were to be made good, one would once again be in a situation of the appellate court exercising its own discretion in relation to the facts of the case.

1. For all these reasons, I am of the view that the appellant has not established that the appeal is one that falls within s 101(2)(r). In those circumstances the appropriate order is to order that the Notice of Appeal be struck out.

Costs of Appeal

1. The decision to which I have come raises questions about both the appropriate order for costs of the appeal and of the notice of motion that has been argued today. UCPR 51.41 provides:

"(1) A respondent who objects to the competency of an appeal must, by notice of motion filed and served on all other parties to the appeal within 28 days after service on the respondent of the notice of appeal, apply to the Court for an order dismissing the appeal as incompetent.'

(2) If the respondent fails to comply with subrule (1) and the appeal is nevertheless dismissed as incompetent:

(a) the respondent is not entitled to costs of the appeal unless the Court otherwise orders, and

(b) the Court may order the respondent to pay the appellant any costs of the appeal proving useless or unnecessary."

1. In the present case rule 51.41(1) was not complied with. The Notice of Appeal was filed on 4 November 2010 and it was only on 14 April 2011 that the formal notice of motion seeking to strike out the Notice of Appeal was filed. It is true that the objection to competency was foreshadowed at the directions hearing on 2 February 2011, but even that was well outside the twenty eight day period.

1. In support of a submission that the Appellant should bear the costs of the appeal Mr Hanrahan, for the Respondent, points out that there was no affidavit of competence filed with the Notice of Appeal, as the relevant Rule requires, and the first statement of grounds for competence was the affidavit of Mr Olszanicki of 4 April 2011 which contains a ground that is unsustainable.

1. There is, however, no evidence of any correspondence between the solicitors pointing out the lack of an affidavit as to competence. In these circumstances, I am not persuaded that it is appropriate to displace the prima facie rule provided by UCPR 51.41. Thus I propose to make no provision for the costs of the appeal.

Costs of Notice of Motion

1. The costs of the notice of motion seeking the order that I have granted are, it seems to me, in a different situation. UCPR 51.41(2)(a) deals with the general costs of the appeal, not with the costs of a notice of motion seeking to have an appeal struck out as incompetent. Concerning such a notice of motion, the prima facie position that costs should follow the event continues to apply. I have not been persuaded that there is any reason why that prima facie position should not apply concerning the costs of the notice of motion.

1. I order the Appellant to pay the costs of the notice of motion filed by the Respondent on 14 April 2011.

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