Porthouse v Bridge - [2007] NSWSC 686

No judgment structure available for this case.

CITATION: PORTHOUSE v BRIDGE [2007] NSWSC 686

HEARING DATE(S): 28-29/06/2007

JUDGMENT DATE :
6 July 2007

JURISDICTION: EQUITY

JUDGMENT OF: Bryson AJ at 1

DECISION: Provision $35,000: see [47]

CATCHWORDS: Adult son - step-son - no provision by deceased (aged 87) - estate about $440,00 to neighbour - stepson who left home about 37 to 40 years before death of testator and lived mostly interstate - issues of fact about membership of household and dependence - found, an eligible person - claimant aged 55, no capital assets (house, car or other), never married, rented accommodation, earnings sufficient for maintenance - appraisal of relationship - neighbour not in need - provision ordered $35,000 as reserve against contingencies.

LEGISLATION CITED: Family Provision Act 1982

CASES CITED: Brown v Faggoter CA 13 November 1998
Coates v National Trustees, Executors and Agency Co. Ltd (1956) 95 CLR 494
Goodman v Windeyer (1980) 144 CLR at 502
Gorton v Parks (1989) 17 NSWLR 1
Kearns v Ellis (CA 5 December 1984 unreported)
Monaco v Keegan [2006] NSWSC 825
Munro v Lake (McLelland J 8 February 1991)
Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24
Singer v Berghouse (1994) 181 CLR 201
Vigolo v Bostin (2005) 221 CLR 191
Williams v Legg (16 March 1993 CA)

PARTIES: Anthony James Porthouse - Plaintiff
Beverley Joyce Bridge - Defendant

FILE NUMBER(S): SC 2944/2005

COUNSEL: M.K. Meek - Plaintiff
M. Bradford - Defendant

SOLICITORS: Russell McLelland Brown - Plaintiff
Thomas & Bisley - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON AJ

6 July 2007

BEVERLEY JOYCE BRIDGE

Estate of the late Eric James Scott

JUDGMENT

1 HIS HONOUR: Eric James Scott late of 19 Rawlinson Avenue Wollongong, retired wharf labourer, died on 17 July 2004 at 87 years of age. His last will dated 16 June 2000 gave all his property to the defendant Mrs Beverley Joyce Bridge and appointed her his executrix. This Court granted probate of the will to Mrs Bridge on 30 August 2004. Mrs Bridge had no family relationship with Mr Scott; she and her husband Mr R.H. Bridge were neighbours who lived a few houses away at 33 Rawlinson Avenue. The will made alternative gifts to Mr Bridge which did not take effect. Mr Bridge died on 16 December 2005, later than Mr Scott. The plaintiff Mr Anthony James Porthouse claims provision under s 7 of the Family Provision Act 1982 for his maintenance and advancement in life out of the estate or notional estate of Mr Scott.

2 Mr Scott’s principal asset was his house, the value of which was said to be $340,000 in the Probate Inventory. He also owned bank accounts and a Life Policy. After administration of the estate and realisation of his assets Mrs Bridge received $100,784.72: she placed this in a separate bank account several years ago, and not all of it is still available.

3 An affidavit of Mr Porthouse’s solicitor estimates the costs of the proceedings as follows: professional costs including counsel’s fees approximately $50,000 plus GST: disbursements approximately $10,000 plus GST. In my understanding this means that the costs were estimated at approximately $66,000. The defendant’s solicitor gave an estimate on affidavit of the defendant’s costs and disbursements at $35,000.

4 Mr Porthouse claims that he is an eligible person. So far as can be known there are no other persons who are or might be eligible persons. No one else made a claim.

5 Section 6(1) gives this definition:

Eligible Person

…

(d) a person:

(i) who was, at any particular time, wholly or partly dependent on the deceased person, and

(ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of a household of which the deceased person was a member.

6 It is disputed that Mr Porthouse is an eligible person and he bears the onus of proving dependency upon Mr Scott and membership of a household of which Mr Scott was a member. Section 9 (1) provides:

9 Provisions affecting Court’s powers under secs 7 and 8

eligible person

7 This provision gives no clear indication of the nature of the factors which should be regarded as warranting the making of the application. Decision whether there are factors which warrant the making of the application is committed to the Court in extremely general language; the Court is to have regard to all the circumstances of the case (whether past or present). The effect is that a very broad power is given to the judge who hears the case to recognize and assess the significance of the circumstances of the case and what regard should be paid to them, what the factors are and what they warrant. There may be very cogent factors which demonstrate that the making of the application is warranted, but it is unlikely that this will often be the case, and the section commits to the Court a power of determination which is difficult to distinguish from a discretion of the broadest kind.

8 Several expositions of s 9(1) were collected in Monaco v Keegan [2006] NSWSC 825 at [13] (Barrett J):

Churton v Christian

Dijkhuijs (formerly Coney) v Barclay

Re Fulop deceased

9 In my respectful view the expositions by Priestley JA and McLelland J differ significantly from the exposition by Mahoney JA: a person may be considered a natural object of testamentary recognition without there being any duty owed by the testator to that person. Adult children and grandchildren, and people who have long been treated as such, would be generally regarded as natural objects of testamentary recognition whether or not they had any grounds for seeking provision for maintenance, education and advancement in life; whether or not they were already rich. The terms of s 7 and s 9(1) themselves show that decisions under those two provisions are made on different bases. The presence of a case in support of a claim under s 7 which is reasonably arguable or otherwise worthy of consideration could I suppose be regarded as a factor warranting of the making of the application. This test appears to have been treated as a relevant matter in Brown v Faggoter CA 13 November 1998. The recognition of factors and their weight is left to the determination and opinion of the Judge. In my opinion it would be an error to treat the strength of a claim for provision under s 7 as determinative, either way, of the question under s 9(1). Factors, however strong, which show that the making of the application is not warranted are not the object of enquiry and appear to be irrelevant. The use of language referring to a plurality of factors (“there are factors”) is not in my opinion to be understood literally as meaning that the Court must recognize separately more than one factor; in my opinion the plural is used to indicate the generalised nature of the matter under determination.

10 Mr Porthouse was born in Hobart, Tasmania on 11 June 1952, so he is now 55 years of age. His parents had five children of whom Mr Porthouse is the youngest. They were divorced in 1957 when Mr Porthouse was five years of age. After the divorce Mr Porthouse first lived in Hobart with his father who had custody, and he made visits to his mother during Christmas school holidays, and for some years also in the May school holidays. His mother Dorothy Lorraine Porthouse left Tasmania in 1959 and in about 1959 or 1960 she began to live with Mr Scott who at about that time purchased the house property at 19 Rawlinson Avenue. They later married; the Certificate of Marriage seems to be dated 10 November 1962 (although the year is uncertain). Mrs Scott died on 10 February 1985.

11 It is Mr Porthouse’s evidence that he first met Mr Scott at Christmas 1963. He was then aged 11 and visited his mother and Mr Scott at Rawlinson Avenue for the period of the Christmas school holidays. He visited his Mother and Mr Scott there again twice a year in each of the following five years. He left school in 1968 at age 16 and, as he claims, went to live with his mother and Mr Scott. He says “I returned to Tasmania for a while as I got homesick and felt sorry for my dad. I again returned to live with my mother and stepfather in 1971”. Mr Porthouse’s father died in 1971. In his evidence “I lived with them on and off. I moved out a couple of times and took a flat for while and then moved home, formed a relationship and moved out again, and when it broke up I moved home again”. Speaking of 1971 he says “My mother was not working and the deceased never asked me to contribute to any household expenses .. [Mr Scott] never once asked me for any money. At the age of the 18 I was working and earning. However, I paid a nominal amount of board of $20 per week. However my mother returned this money to me in the form of gifts for my birthday and at Christmas.” Not all the board money was returned in this way.

12 Mr Porthouse was cross-examined extensively on when and for how long he lived in the house at Rawlinson Avenue. He was unable to give exact or even general indications of how long the periods were when he lived in the house day by day, and the other periods during which he lived elsewhere in and near Wollongong. His evidence was that from the age of 18 (in June 1970) he was working and earning, and that he has worked ever since with no substantial interval. He worked at several places as packer, storeman or sales clerk before working as a clerk with Dunlop Tyre Service at Keira Street, Wollongong. His employment with Dunlop brought a transfer to employment by Dunlop in Drummoyne; travelling from Wollongong was very difficult; this brought about, not straight away, his move away from Wollongong to various shared dwellings and flats in Sydney suburbs, Marrickville and Leichhardt. Then he was employed by Olivetti, also in Sydney. Olivetti transferred his employment to Melbourne and he went to live in Victoria where he has lived ever since.

13 Evidence including cross-examination of Mr Porthouse dealt, at rather more length than I thought was appropriate, with the state of and events in the relationship between Mr Scott and Mr Porthouse’s mother. There was a separation between them in 1973; no evidence establishes clearly how long the separation was. During the separation Mrs Scott went to stay in Geelong, Victoria with Dennis, another son, and there was litigation in a court in Geelong relating to her maintenance; Mr Porthouse who at that time had not yet moved to Victoria travelled to Geelong and gave evidence in the proceedings on behalf of Mr Scott. The separation ended and Mrs Scott returned to live with Mr Scott at 19 Rawlinson Avenue; which remained her home until she died in 1985. Mr Porthouse’s evidence is that after the separation had ended he again returned and at times lived in the house at Rawlinson Avenue.

14 It was his evidence that before 1977 he was living at 19 Rawlinson Avenue; and he also said that he had flats between times, one near Dairy Farmers in Wollongong, one at North Wollongong. He also spoke of a flat near Mt Pleasant. He was quite unable however to specify the periods or the length of the periods during which he lived at these various flats, and the periods during which he lived at 19 Rawlinson Avenue. His evidence was that in 1977 he left Wollongong; he lived in Sydney for a time, and then moved to Melbourne about 1977 or 1979. Since he left Wollongong to live in Sydney, and later in Melbourne, he has always had a dwelling away from 19 Rawlinson Avenue. His evidence was so indefinite that it is not altogether clear that he left Wollongong permanently as late as 1977: this may have happened earlier. He also said that there was a last occasion towards the end of 1978 or in 1979 before he was actually transferred to Melbourne when he stayed at 19 Rawlinson Avenue only for a very short time before the transfer. He was on holiday and the visit was short.

15 Mr Porthouse had a troubled adolescence. It was his evidence that when he was a child his father had custody of him but he wished to live with his mother, and that when he turned 16 he left school and went to Wollongong so that he could live with his mother. When he turned 18 two years later he had employment, and a number of changes of employment, in low-level positions. He had an eventful relationship with a woman with whom he was at one time engaged, and he experienced emotional turmoil, in the course of which he attempted suicide and was in hospital for about 4 days in March 1973, at which time he was 20 years of age. As time passed more order appeared in his life. During all his youthful turbulence he did not according to his evidence ever experience any difficulty in being received back in the house at 19 Rawlinson Avenue when he returned to live there. The times when he lived there cannot be characterised as visits. The arrangements and the circumstances of his presence were not defined, exactly or generally, so as to establish how long he was to be there and in what circumstances he was to leave; when he arrived, he arrived to stay indefinitely, and he did stay until the next turn of events. He had his own bedroom there. It was his evidence, which can of course be based only on what he observed when he lived or visited there, that Mr and Mrs Scott occupied one of the two bedrooms, and that the other was his bedroom. The circumstances of the separation and maintenance proceedings in which he gave evidence for Mr Scott must have placed his reception back into the house under a severe test, which it passed.

16 Mr Porthouse’s account of having his home and usual address at 19 Rawlinson Avenue is corroborated by several accounts and receipts with dates in 1973 directed to him at that address. One receipt dated 28 August 1973 gives a different address at Pleasant Avenue North Wollongong; this is consistent with his evidence of having lived at flats including one at North Wollongong for relatively short periods. Some bear no address. However overall the documents, including three income-tax group certificates and two motor vehicle driving licences, confirm that 19 Rawlinson Avenue was the address he usually quoted to business and government in 1972, 1973 and 1974.

17 During the period from 1968 when he left school and went to live at Rawlinson Avenue, until the age of 18 when he began working, Mr Porthouse had no earnings and can have had no significant resources. It is his evidence that Mr Scott never asked him to contribute to any household expenses, and he says that Mr Scott paid all the household expenses such as the council and water rates and electricity and accounts. Mr Porthouse is not in a position to have complete knowledge of what arrangements there were about paying the household expenses, and I treat this passage of his evidence as saying no more than what he understood was happening; there were times when his mother worked as a house cleaner for neighbours, and worked part-time as a cleaner for the Commonwealth Bank in Crown Street Wollongong. However the probabilities are in accord with Mr Porthouse’s interpretation, that Mr Scott paid all expenses such as council and water rates and electricity and like accounts, or paid most or a significant part of them. When Mr Porthouse began to work and paid a nominal board of $20 per week it is likely that Mr Scott still made a disproportionate contribution to the expenses of conducting the household.

18 The concept of dependency is a broad concept and is not limited to financial dependence. The concept was discussed by the Court of Appeal in Williams v Legg (16 March 1993 CA). In a passage not set out in the report at 29 NSWLR 687 the Court of Appeal (Handley, Sheller and Cripps JJA) said:

Petrohilos v Hunter

Ball v Newey

19 Mr Scott and Mrs Scott constituted a household at 19 Rawlinson Avenue for the whole period from about 1960 when Mr Scott acquired that house and they went to live there until Mrs Scott died in 1985; with the exception of the period of separation in 1973 when Mr Scott continued to maintain a household there. The household continued even if he were the only member of it. Precise findings on how long Mr Porthouse was resident in the house and for what periods cannot be made, and this is not surprising in view of the interval of time and his then circumstances. The household at 19 Rawlinson Avenue, and the membership of it of his mother and her husband, explain his presence in New South Wales; they explain his leaving Hobart and his father who had custody of him when an infant, and they explain his return to Wollongong after his father’s death in 1971. His absences for months at a time can be seen in retrospect as attempts which did not succeed to form a household of his own, at times with his woman friend; these became intervals in his residence at 19 Rawlinson Avenue, to which he was always able to return when he wanted to: to a roof, a bed, a meal table and the presence of his surviving parent. He put his relationship with his stepfather and his mother, and his membership of the household to severe tests, including introducing his woman friend, without permission, to the house and to the marital bed when his elders were absent; and attempting suicide to sufficient effect to require hospitalisation; yet he returned to live in the house after these events.

20 Before Mr Porthouse came to Wollongong in 1968 he had spent school holidays, two weeks in August and about six weeks at Christmas, in each of five years staying with his mother and stepfather in the house. The school holiday periods, notwithstanding that some were as long as six weeks, were visits and he did not become a member of the household during those periods. They come under consideration on the question whether Mr Porthouse was at any particular time partly dependent on Mr Scott. The fact that he had so often and for such extended periods visited the household on holidays assists the conclusion that when his schooldays ended and he came from Tasmania to live at the house with no definite plans to leave he was soon assimilated into the household. From his return from Tasmania after 1971 he was even more clearly entrenched in the household; his father had died and he had nowhere else to go. His association with the household was much stronger than the regular visits and weekend stays referred to in Munro v Lake (McLelland J 8 February 1991), and in my opinion there was the degree of continuity and permanency of mutual living arrangements which the concept of membership of a household connotes. It is probable that the sum of the periods of time he spent there is the equivalent of two years or more.

21 I find that Mr Porthouse was a member of the household at 19 Rawlinson Avenue of which Mr Scott was the head for significant periods. Membership of the household is testified eloquently by his being received back there, time and time again, during his turbulent years when he moved out on several occasions and lived in flats, encountered vicissitudes, and returned to the house where his mother and stepfather lived. It is said to be a test of where one’s home is that the people there must let you in when you go back. The facts that Mr Porthouse made several attempts to establish himself in living independently before he finally left forever, and that he was received back after each attempt, testify to his having been, and when received back still being a member of the household.

22 In my finding Mr Porthouse is an eligible person as defined.

23 According to his evidence Mr Porthouse had a continuing association with Mr Scott after he moved away from Wollongong. It is Mr Porthouse’s evidence that he kept in touch with Mr Scott and Mr Scott kept in touch with him by telephone and mail. He has put in evidence several letters and cards from distant days, probably from about the period 1980 to 1986 long after Mr Porthouse ceased to live in Wollongong, with contents of no great seriousness but indicating a continuing pleasant relationship and shared interests. Mr Porthouse does not produce any letters or cards from Mr Scott which can be dated later than 1986. The letters and cards that he does produce contain ordinary communication among family members, none of much length and not about important matters. The letters deal with small matters which would not be of interest to anyone who was not a family member – holiday journeys, the weather, and the well-being of the domestic dog. Mr Porthouse gave evidence that when business brought him to Sydney from Melbourne he would spend time with Mr Scott when able to do so, for example on visits at night or weekends. When his mother was alive he would spend a few days with Mr and Mrs Scott before starting his holidays or at the end of his holidays. He telephoned every couple of weeks or there would be an exchange of letters. He maintained telephone contact although it was very hard to hold a conversation with Mr Scott by telephone as he had very few interests. Mr Porthouse came from Melbourne to Sydney specifically to see Mr Scott in Liverpool Hospital the day after he had bypass surgery. Their last meeting face-to-face was in 1998.

24 Mr Porthouse gave evidence about his relationship with Mr Scott, which he says was very good; that Mr Scott helped him and gave him advice, they used the names “Eric” and “Tony” and “on the odd occasion called me ‘son’”. Mr Scott assisted in teaching Mr Porthouse spelling and counting, assisted him with a failing transaction about purchasing a car and with a crisis when a car was damaged; and gave him advice, as a parent would. He assisted Mr Porthouse in work as a scout leader and took him out on social occasions, and on occasions (which were probably rare) he referred to Mr Porthouse as his son when speaking to others. A framed photograph portrait of Mr Porthouse which Mrs Scott had had taken by a photographer in Wollongong hung in a prominent position in the lounge room of the house, and was still there when last seen by Mr Porthouse in 1998. Photographs exist and are in evidence of Mr Scott, Mr Porthouse and others together in pleasant social and recreational situations. In 1988 they travelled separately to Perth where they spent a holiday with a sister of Mr Porthouse who then lived there. On the return Mr Scott visited Mr Porthouse in Geelong.

25 Mr Porthouse has long had a personal association with Mr Alan Brewer; he says they were once in a relationship; since 1985 he has lived as a tenant in a house property owned by Mr Brewer, having a dwelling or unit in a separate building. His evidence shows that he pays rent for this. Mr Scott knew of this relationship, met Mr Brewer, did not express offence or disapproval, and expressed kindly interest in Mr Brewer’s welfare in letters which are in evidence. Mr Porthouse’s association with Mr Brewer was not a source of any conflict between Mr Porthouse and Mr Scott.

26 Maintaining communication and a pleasant family relationship and showing an interest in Mr Scott and keeping in touch with him was a contribution of a kind to Mr Scott’s welfare and well-being; this must have contributed to his sense of having relationships with people and a place in the world and a family without the complexity involving strains, trouble, hostilities or responsibilities which familial ties often have. It is only in this sense that Mr Porthouse made a real contribution to Mr Scott’s life or well-being after he left Wollongong. After 1998 this participation in Mr Scott’s life faded to very little, and for the last two years also of his life when he was suffering from dementia and was in a nursing home, it had really faded to nothing.

27 There is little evidence of contact of Mr Porthouse with Mr Scott during the last six years of Mr Scott’s life. Mr Porthouse says, in relation to this period that he and his sister Helen were arranging a visit when Mr Scott wrote and told him not to come as he was having someone come to stay with him at that time. Mr Porthouse intended to visit Mr Scott in 2002 but could not get the time off work; he says that his sister Helen visited Mr Scott and later told him that Mr Scott’s dementia was bad. At some stage, which must have been late in Mr Scott’s life, Mr Porthouse’s evidence is that he was informed by his sister Helen that Mr Scott was in a nursing home; Mr Porthouse could not contact Mr Scott by telephone, but contacted the nursing home by telephone and was advised “your father has regressed back to his adolescence and will not recognize you”. He did not pay any visits to the nursing home.

28 Overall I find that there was good relationship between Mr Scott and Mr Porthouse in earlier years, an appropriate relationship between stepfather and son, although not particularly close. Aspects of the relationship included providing a home to which Mr Porterhouse was allowed to return to during an unsettled youth, going out with him to clubs and social events, and giving him some basic instruction and assistance, sharing recreations and scouting activities, and accepting him as a household member to be provided with housing and other advantages associated with household membership. Mr Scott helped him out when he was in poor situations through business inexperience. This period of relative closeness lasted about 10 years from 1968 to 1977 or thereabouts. It was put to something of a test when Mr Porthouse was asked to give and gave evidence in support of Mr Scott in the maintenance claim brought by Mr Porthouse’s mother. This was a significant contribution by Mr Porthouse to Mr Scott’s interests and position, and cannot have been easy. Indeed it is the closest thing to a positive contribution to Mr Scott’s welfare and interests in the whole case. Mr Porterhouse’s departure in 1977 was followed by a long period when the relationship was far less intense, and friendly visits, telephone and written communication, and a cordial and friendly relationship were maintained: usually at a distance. Factors which led to the relationship being less intense included the narrow range of Mr Scott’s interests and the distance at which Mr Porthouse lived. The relationship was cordial, appropriate for a stepfather and stepson (and not, I would think, for a father and son in all respects) but involved little contribution by Mr Porthouse towards Mr Scott’s well-being. From about 1998 onwards there was very little manifestation of the relationship at all. Mr Porthouse is not to be blamed for this having regard to his limited resources and the distance at which he lived, but this is a fact of the relationship.

29 A significant event was the holiday visit by Mr Scott and Mr Porthouse to Western Australia in February and March 1988; they visited Mr Porthouse’s sister Helen Williams and her husband who then lived in Western Australia. Mr Scott had few travels and few holidays away from his own home. Relationships were pleasant on the holiday and in Mrs Helen Williams’ observation they got on well together, very much like a father and son. Mr Scott made observations to Mrs Helen Williams which commended Mr Porthouse and spoke of him affectionately, and he gave an assurance of assistance – “ What your mother has left you is nothing but I will take care of your brother Tony and you”.

30 Mr Austin Latimore was a retired waterfront workmate of Mr Scott. He gave evidence which confirmed Mr Porthouse’s presence in Mr Scott’s household and Mr Scott’s treating him as a son. Mr and Mrs Otis who lived at 21 Rawlinson Avenue from 1972 on also gave evidence confirming Mr Porthouse’s presence and Mr Scott’s treatment of him as his own son. There was also some confirmation, of relatively slight weight, from Mrs Evelyn Gallagher, a relative of Mr Porthouse, who visited Mrs Scott in Wollongong between the years 1970 and 1985. Similarly there is confirmation, not of great weight, in the affidavit of Desley Spargo, a niece of Mr Scott, who with her husband visited Mr Scott every year from Melbourne from about 1985 to 2000. Her evidence shows that Mr Scott spoke positively and with commendation of Mr Porthouse.

31 I turn to consider Mr Porthouse’s needs. Mr Porthouse left school at age 16 and did not receive any trade training or tertiary education. Nonetheless he has achieved positions with management responsibility. He did not receive any significant advancement in life at any stage: he received $2000 from his father’s estate and $685 from his mother’s estate. Mr Porthouse’s income and earning capacity are quite sufficient to provide to his maintenance. His affidavit evidence did not disclose his earning capacity and actual income frankly or truthfully; cross-examination established that he usually receives significant weekly payments from his employment as a bookshop manager for working extra shifts, in addition to his salary which is based on part-time employment, and that he sometimes receives other income from gardening for friends; his capacity to earn income from gardening is not large; these should have been disclosed. This had an adverse influence on my assessment of Mr Porthouse’s credibility generally, in a case where credibility was important. Notwithstanding this difficulty, I do not think I should reject his evidence about the times and circumstances in which he lived in the household at 19 Rawlinson Avenue. A person who was not giving evidence of those events in a sincere way would not have acknowledged many difficulties in dealing with matters of detail, as Mr Porthouse did. There is a general air of probability about his account in which, at a young age and without any other establishment to live in, after divorce and unfortunate family circumstances, he was received, and repeatedly and readily received back, into the household where his mother lived. If he had been minded to overstate the facts and prove a clear case, he would have offered evidence of a much clearer case. He gave evidence of events largely in broad outline, and I am satisfied as a matter of probability that the broad outline he depicts is correct.

32 His evidence shows that as of 25 June 2007 he had a bank account containing $2500, and personal items and furniture which he valued at $20,000. He had liabilities on a loan from the bank of Melbourne and on credit cards totalling $15,100. He has never married, does not own any housing, and has lived in the same rented property at Belmont near Geelong since 1985. He does not own a motor car. He puts forward the following needs:

33 I recognise all these as needs but not as pressing needs: and this is far from saying that they are matters for which provision ought to be ordered out of Mr Scott’s estate for Mr Porthouse’s advancement in life. What is strikingly absent in his position overall for a man in middle life is that he has no reserve whatever against adverse events or contingencies. In addressing what provision should be made within the terms of s 7, I am of the view that provision should be ordered on a quite modest scale, directed to providing a back-stop or buffer of reserve funds to meet pressing needs and adverse contingencies, but not to providing significant capital assets such as housing or a business. Buying a business, and buying a dwelling, are simply out of any scale that I regard as appropriate to be ordered according to the requirements of s 7. To be an effective advancement the provision ordered should at least be sufficient to repay all his current debts. Whether he should use all or part of his resources for purchasing a motor car, or going on an overseas holiday or purchasing a computer is for his judgement; it is for him to decide the balance between keeping a fund as a buffer against adverse events and contingencies, and recognizing particular needs and deciding to spend money on them.

34 Mrs Bridge owns the house at 35 Rawlinson Avenue which she has long owned as an investment, the house in which she lives at 33 Rawlinson Avenue which she inherited from her husband, and a half interest with one of her sons in the house at 37 Rawlinson Avenue. She also owns the late Mr Scott’s house at 19 Rawlinson Avenue which has been transmitted to her. She is a co-owner of land and business premises at 312 Windang Road, Windang and sole owner of adjacent vacant land at 310 Windang Road. Mrs Bridge has an interest in and an income from her sons’ business. She is a director of and has shares in the family company which conducts the business; in arrangements commonly encountered with small private companies, she is, according to the company’s records, entitled to and being credited with income, but this income does not reach her pocket and is in some way absorbed in the company’s affairs. There are large debts to banks secured on properties which she owns; these obligations result from arrangements to furnish her sons and enterprises with capital, the actual burden of repayment does not fall on her and there is no reason to think that that burden is likely to do so. She is not a woman of wealth but has adequate resources, and Mr Porthouse’s claim and the provision which I propose to order do not work adversely to her economic position in any real way. There were large unexplained movements in and out of the bank account of Mr Scott in 2002; these remain unexplained and there is no reason for thinking that there is a significant asset which had not been discovered or has not been disclosed.

35 The evidence is replete with side issues and complex unimportant matters and the litigation can be disposed of in a just way without resolving many of these. Late in his life Mr Scott reposed considerable trust in Mrs Bridge, and in Mr Bridge, and obtained assistance from them in managing his property and affairs. A significant part of Mrs Bridge’s evidence appears to be directed to explaining, justifying and showing good grounds for the testator’s decision to benefit her in his will. This is superfluous; she has a right to whatever benefits he conferred on her, and her legal entitlement is more important than any good reasons that may have existed for the testator’s decision to benefit her. She also deals with aspects of the relationship between Mr Scott and Mrs Scott and events apparently put forward as adverse to Mrs Scott in that relationship. I do not regard these as significant for Mr Porthouse’s claim.

36 Mrs Bridge’s evidence also dealt with her relationship with Mr Porthouse, essentially a lack of acquaintance with Mr Porthouse whom she says she first met at Mrs Scott’s funeral. There was no particular association or acquaintance between Mr Porthouse and the Bridges; I do not see why there was likely to have been, and I do not regard its absence as significant or as an indication adverse to acceptance to what Mr Porthouse says about the time he spent at 19 Rawlinson Avenue. I accept that Mr Scott did not when speaking to Mrs Bridge refer to Mr Porthouse as his son or otherwise than as Tony; there do not seem to have been many people to whom he used this expression, and the evidence that he did so relates to an earlier period. There was also evidence about facts and circumstances adverse to other relatives of Mr Porthouse, which I do not see as having any significance. There was also evidence about conflicts in the past about Mrs Scott’s household goods, and about gold and gold sovereigns and other assets which Mr Scott is said to have owned in the past and kept in a safe in the floor of his garage or elsewhere around the house; there are stories here and there in the evidence about hidden gold, hidden money and rumoured valuables. I do not feel that I should have any regard to these. If Mr Scott ever really had any cache of gold, he had plenty of time to sell it, spend any proceeds and dispose of them in some way. I ignore a number of red herrings and rabbit burrows in giving this judgement.

37 I have not attempted to separate out consideration of the question under s 9(1) in advance of considering other matters in issue. Mr Porthouse is the testator’s adult stepson, he is in fact an eligible person as defined and he has a claim of sufficient substance to merit consideration under s 7. In the circumstances of the case to which I have had regard in these reasons, I am of opinion that there are factors which warrant the making of his application.

38 I have regard to the observations made in Singer v Berghouse (1994) 181 CLR 201 at 208 to 210 (Mason CJ, Deane and McHugh JJ) on the nature of the matters under decision, which their Honours arranged in a two-stage process. Generalised concepts of morality should not be substituted as the rule of decision for the tests stated, rather elaborately and not specifically, in ss 7 and 9, and the application of those tests is not to be approached idiosyncratically.

39 I also have in view the observations in Vigolo v Bostin (2005) 221 CLR 191 at 197[6] by Gleeson CJ on the nature of the criteria in s 7 and his Honour’s observation that fitness and propriety are value-laden concepts. Notwithstanding the observations in Singer v Berghouse at 209 on the use of the concept of moral duty, the observations of Gleeson CJ show, in my opinion, that decision on what ought to be ordered is not based on judgements on fitness and propriety special to the judge to whom it falls to determine a particular case, but have a source external to the decision-maker. The long history of use of concepts of morality and moral duty in the course of decision on family provision cases and of exegesis on the tests which are to be applied was restated in the judgment of Handley JA in Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24. Handley JA dissented from the reasons of the majority, but reached the same conclusions. As Handley JA said at 33A “References to moral duty, moral claims, and the making of orders to enforce the duty and remedy its breach were deeply entrenched in case law.”

40 References to moral duty of the testator can be used, and very commonly were used, in the way referred to by Kirby P at 31C-D, as a shorthand phrase for the “ought” in s 7 and the words “inadequate” and “proper” in s 9(2). The words “moral duty” also have value in any attempted exegesis of what is to be done in the application of s 7 and s 9, for the reasons shown by Gleeson CJ in Vigolo v Boston – fitness and propriety are value-laden concepts, and those values must have a source external to the decision maker. Their value in exegesis is limited, as concepts of morality and moral duty not clear or concrete, but as the expression was used in well considered judgements of high authority throughout the 20th century I do not find it possible to accept that it is not useful. It was more useful in expositions of earlier legislation under which decision was based on the state of facts at the death of the testator than it is under the Family Provision Act 1982 where decision is based on the facts at the time of making the order; but useful it remains.

41 The concept of the testator’s moral obligation was sufficiently entrenched to be used in s 23(b)(ii), expressly and repeatedly. The absence of reference to s 23 in Singer v Berghouse is remarkable. Section 23(b) was noticed by Kirby P at 28 but his Honour did not expound the lack of relevance of s 23(b) to understanding s 7 and s 9 which must be attributed to him.

42 It is to my mind remarkable with how little exposition Mason CJ, Deane and McHugh JJ thought it suitable, in Singer v Berghouse, to offer an obiter and tentative deprecation of references to “moral duty” or “moral obligation”. From a spring so profound most would have heeded the warning “drink deep or taste not”. Their Honours alluded without acknowledgement to references in dissenting judgements in Coates v National Trustees, Executors and Agency Co. Ltd (1956) 95 CLR 494 at 512, 522-523 to moral duty as a gloss on the family provision statutes; observations which acknowledged some function of the concept of moral duty. Until 1994 references to moral duty in this context had been treated as a useful epitomising restatement of the values underlying and expressed in the statutory test. “Moral duty” is a useful abbreviated reference to the statutory test, the terms of which should always remain in sight. Handley JA expounded the well understood limitation on the use of such references – see 32E-G. Handley JA adopted expressions from the same dissenting judgments in Coates when expressing conclusions at 36E: “Having carefully reconsidered the case law on the two Acts including Neil v Nott and given the dicta in Singer v Berghouse respectful consideration I have concluded that the moral duty test under the new Act is valid and remains ‘a useful yardstick’ and ‘a convenient factual test’”.

43 In Fraser v Walker the order under appeal received brief consideration in terms which show that the basis for any attack on it was slight at the best: see Kirby P at 31 and 32, Handley JA at 32B and Sheller JA at 47. All observations relating to the concept of moral duty were obiter dicta. The concluding observations of Kirby P at 32 include “The deceased ought to have made provision” of which it could be said that the earlier passages in the judgment had shown its irrelevance.

44 When I did not have the benefit of the decisions in Singer v Berghouse, Permanent Trustee Co. v Fraser or Vigolo v Bostin I said, in Gorton v Parks (1989) 17 NSWLR 1 at 10-11, in a passage cited by Handley JA in Permanent Trustee Co. v Fraser at 35F:

The legislation does not … spell out concepts of moral duty and of need; its method is to entrust to the court … the application of the general test … to particular facts … This part of the judicial function must be exercised contemporaneously … judges share with all members of the community access to the current moral beliefs of the community of which this legislation makes them the spokesman.

Goodman v Windeyer

Kearns v Ellis

Singer v Berghouse

Permanent Trustee Co. v Fraser

45 In these circumstances, in addressing the test in s 7 with s 9(2) and s 9(3), my opinion on the provision which ought to be made in the light of fitness and propriety is that extremely modest provision is appropriate. Mr Porthouse has received no provision for his advancement in life from Mr Scott or from any other source, and his circumstances are now inadequate in that respect. It is appropriate in the present circumstances to order a provision which will give Mr Porthouse an advancement in life by having a little money behind him to deal with life’s adverse contingencies. His earnings and earning capacity are such that he is in a good position to do rather better in providing for adverse contingencies, by making savings, than he has done so far, his income is more than adequate for the needs which he stated in his evidence, and I see no good reason why he cannot make significant savings. When challenged in cross-examination he was unable to give any real explanation why he could not. He has credit card and other debts which in relation to his circumstances are quite high; about half a year’s income. This is something which he could have managed much better in the past; and can manage much better in the future. It is significant that there is no other claimant and that any provision which might be appropriate would not disturb the economic well-being of Mrs Bridge. In my opinion the appropriate provision is that he should receive a capital sum of $35,000. He will probably apply some of this to paying his debts; he will then be in a better position to save and make his own provision for adverse contingencies.

46 As the assets in the estate are such that the orders made, including orders for costs cannot be satisfied without selling the house, it may be necessary to address making an order under s 24 of the Family Provision Act designating the house or perhaps other property as notional estate, and further dealing with notional estate. I will reserve liberty to apply for such orders.

47 My Orders are:

(1) Order that by way of provision out of the estate of the late Eric James Scott the defendant pay to the plaintiff the sum of $35,000.

(2) Reserve further consideration of the claim for provision to be made out of notional estate.

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Citations

Porthouse v Bridge [2007] NSWSC 686

Most Recent Citation

Thompson v The Public Trustee of New South Wales [2010] NSWSC 1137

Cases Citing This Decision

38

Chalik v Chalik [2025] NSWCA 136

Yee v Yee [2017] NSWCA 305

Amprimo v Wynn [2015] NSWCA 286

Cases Cited

10

Statutory Material Cited

1

Monaco v Keegan [2006] NSWSC 825

Singer v Berghouse [1994] HCA 40

CITATION:	PORTHOUSE v BRIDGE [2007] NSWSC 686
HEARING DATE(S):	28-29/06/2007
JUDGMENT DATE :	6 July 2007
JURISDICTION:	EQUITY
JUDGMENT OF:	Bryson AJ at 1
DECISION:	Provision $35,000: see [47]
CATCHWORDS:	Adult son - step-son - no provision by deceased (aged 87) - estate about $440,00 to neighbour - stepson who left home about 37 to 40 years before death of testator and lived mostly interstate - issues of fact about membership of household and dependence - found, an eligible person - claimant aged 55, no capital assets (house, car or other), never married, rented accommodation, earnings sufficient for maintenance - appraisal of relationship - neighbour not in need - provision ordered $35,000 as reserve against contingencies.
LEGISLATION CITED:	Family Provision Act 1982
CASES CITED:	Brown v Faggoter CA 13 November 1998 Coates v National Trustees, Executors and Agency Co. Ltd (1956) 95 CLR 494 Goodman v Windeyer (1980) 144 CLR at 502 Gorton v Parks (1989) 17 NSWLR 1 Kearns v Ellis (CA 5 December 1984 unreported) Monaco v Keegan [2006] NSWSC 825 Munro v Lake (McLelland J 8 February 1991) Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 Singer v Berghouse (1994) 181 CLR 201 Vigolo v Bostin (2005) 221 CLR 191 Williams v Legg (16 March 1993 CA)
PARTIES:	Anthony James Porthouse - Plaintiff Beverley Joyce Bridge - Defendant
FILE NUMBER(S):	SC 2944/2005
COUNSEL:	M.K. Meek - Plaintiff M. Bradford - Defendant
SOLICITORS:	Russell McLelland Brown - Plaintiff Thomas & Bisley - Defendant