Raymond v Public Trustee

[2006] NSWSC 489

CITATION:	Raymond v Public Trustee [2006] NSWSC 489
HEARING DATE(S):	27 and 28 April 2006
JUDGMENT DATE :	26 May 2006
JURISDICTION:	Equity Division
JUDGMENT OF:	Associate Justice McLaughlin at 1
DECISION:	(1). I order that the summons be dismissed. (2). I order that the Plaintiffs pay the costs of the Defendant, such costs to be on the party and party basis. (3). I order that the Defendant be entitled to recoup from the estate of the late Stanley Norman Crunkhorn (“the Deceased”) the difference between the foregoing costs which he may recover from the Plaintiffs and the costs of the Defendant on the indemnity basis. (4). The exhibits may be returned.
CATCHWORDS:	Succession. Family Provision. Claims by two adult children. Financial and material circumstances of Plaintiffs. Obligation upon applicant for provision to place before the Court as fully and as frankly as possible all available information concerning her or his financial and material circumstances. Asserted needs of Plaintiffs. Whether each Plaintiff has been left without adequate provision for her or his maintenance. Competing claim of chief beneficiary, who was also a child of Deceased. Plaintiffs must establish their claims upon their own merits. Claims of Plaintiffs cannot be established, or enhanced, by proving that chief beneficiary, had he been an applicant for provision, might have been unsuccessful in his claim.
LEGISLATION CITED:	Family Provision Act 1982.
CASES CITED:	Blore v Lang (1960) 104 CLR 124 Singer v Berghouse (1994) 181 CLR 201 Vigolo v Bostin (2005) 79 ALJR 731
PARTIES:	Susan Raymond (first named Plaintiff) Trevor Crunkhorn (second named Plaintiff) Public Trustee (Defendant)
FILE NUMBER(S):	SC 5123 of 2004
COUNSEL:	Mr. D. Williams (Plaintiffs) Mr. A. Hill (Defendant)
SOLICITORS:	Herbert Weller (Plaintiffs Anthony Lentini (Defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Friday, 26 May 2006

5123 of 2004 SUSAN RAYMOND and TREVOR CRUNKHORN –v- PUBLIC TRUSTEE

JUDGMENT

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

2 By summons filed on 20 September 2004 the Plaintiffs, Susan Raymond and Trevor Crunkhorn, claim an order that provision be made for their maintenance and advancement in life out of the estate of their late father, Stanley Norman Crunkhorn (to whom I shall refer as “the Deceased”).

3 The Deceased (who was a widower, his wife having died in July 2002) died on 21 June 2004, aged 76. He left a will dated 17 October 2002, probate whereof was on 31 August 2004 granted to the Public Trustee, the executor named in such will (who is the Defendant to the present proceedings).

4 The Plaintiffs are two of the three surviving children of the Deceased. The first named Plaintiff, Susan Lee Raymond, was born on 7 May 1955 and is now aged 51. The second named Plaintiff, Trevor Rodney Crunkhorn, was born on 27 January 1957 and is now aged 49. The third surviving child, Jeffrey Paul Crunkhorn, was born on 27 September 1958, and is now aged 47. A fourth child, Stephen Crunkhorn, who was born in the 1950s, died in 1980.

5 At the time of his death the Deceased held the following assets (to which the following values, or estimations thereof, were attributed in the inventory of property):

House property situate at 94 O’Connells Point Road,
Beauty Point - $260,000

Moneys in banks or financial institutions

Horizon Credit Union Limited account number S55 - $625

Horizon Credit Union Limited

account number I61 - $5,101

Horizon Credit Union

account number S8 - $220

Subtotal - $5,946

6 At the time of his death the Deceased had the following liabilities:

Commonwealth Bank line of credit - $10,930
Commonwealth Bank bank card debt - $2,686

7 Since the death of the Deceased the Defendant has paid liabilities totalling $5,372.

8 According to the affidavit of the administrator all assets of the Deceased have been realised, apart from the house property at Beauty Point and a motor vehicle valued at $3,000 (to which there is no reference made in the inventory of property). The Beauty Point property (located near Bermagui on the South Coast of New South Wales) had been the family home of the Deceased and his wife since 1990, when they had removed their residence from Heathcote (near Sydney).

9 By his will the Deceased gave the Beauty Point property to the Defendant on trust to allow his son Jeffrey to live there for two years following the death of the Deceased, with a right to exclusive occupation thereof until the right of residence ends. Subject to Jeffrey’s right of residence the Deceased gave the property to the Defendant to sell and from the proceeds of such sale to pay to each of the Plaintiffs the sum of $10,000. The Deceased gave the residue of his estate to pay estate liabilities and then the remainder to his son Jeffrey.

10 It will be appreciated that the right of residence given to Jeffrey by the terms of the will terminates on 21 June 2006. Thereafter the Beauty Point property must be sold, any outstanding liabilities must be paid from the proceeds of sale, then the two legacies of $10,000 each must be paid to the Plaintiffs. Jeffrey is entitled to what then remains.

11 At the present time the Defendant, after paying liabilities totalling $5,372, has a credit balance of $599 in the estate ledger. There still remain liabilities of about $13,600 to be paid out of the proceeds of sale of the Beauty Point property. There will doubtless be certain costs and expenses associated with that sale. Upon the assumption that the property can be sold for $260,000, it is unlikely that the net value of the estate will exceed about $235,000.

12 It will be appreciated, however, that in calculating the value of the estate available for distribution the costs of the present proceedings must be taken into account, since the Plaintiffs, or either of them, if successful, will be entitled to an order that her or his costs be paid out of the estate, whilst the Defendant, irrespective of the outcome of the proceedings, will be entitled to have his costs paid out of the estate. It is estimated on behalf of the Plaintiffs that their costs will total about $42,000, whilst it is estimated on behalf of the Defendant that his costs will total about $36,000. It follows, therefore, that if the totality of the costs of both parties be payable out of the estate the value of the distributable estate will be no more than about $157,000.

13 The first named Plaintiff, Susan Lee Raymond (to whom I shall for convenience, and without intending any disrespect, refer as “Susan”), who is now aged 51, lived with her parents until her first marriage in 1974, when she was aged 19. She subsequently separated from her first husband and was divorced in 1980. In the following year Susan married her second husband, from whom she later separated and was subsequently divorced in 1999. Susan has two children, Courtney (who is now aged 24) and Jordan (who is now aged 18), born of her second marriage.

14 After her second divorce Susan qualified in nursing at the University of Western Sydeny, graduating as a Bachelor of Nursing in 1998. She supported herself and her two children during that period by working in a group home.

15 On 8 September 2001 Susan married her present husband Stephen Lesley Raymond. At that time Susan and Stephen were both employed as registered nurses at the Westmead Childrens’ Hospital. In November 2002 they removed to Coffs Harbour, and ultimately Susan obtained employment on a casual basis at the Coffs Harbour Hospital in mid-2003.

16 In July 2002 Susan purchased what is now her present residence at 28 St. Andrew’s Drive, Woolgoolga (near Coffs Harbour) for $157,500. Although Susan originally purchased that property with a view to renting it out as an investment property, nevertheless she and her husband now reside therein. The house property in which they had formerly resided at Bowen Mountain (which apparently had devolved upon Susan in consequence of the termination of her second marriage) was ultimately sold in May 2003.

17 According to her affidavit evidence Susan’s assets consist of the house property at Woolgoolga, to which an estimated value of $320,000 is attributed; furniture, having an estimated value of $15,000; and a Honda motor vehicle, having an estimated value of $12,000. The Woolgoolga property is subject to a mortgage, upon which an amount of $158,380 is presently outstanding. Susan makes repayments of $440 a fortnight in respect to the mortgage debt.

18 It was Susan’s evidence that, apart from a Toyota motor vehicle owned by Susan’s husband, Stephen Raymond (to which a value of $12,000 was attributed), neither she nor her husband has any significant assets.

19 Susan gave evidence of the state of health of herself and of her husband. She has been suffering from hypothyroidism for more than eighteen years. She stated that this causes her severe depression, stress and fatigue, with sleeplessness and headaches, resulting in the necessity for her to take time off work. She is under medical treatment, and is required to have a blood test in respect to her hormone level every six months. Those tests cost $150 on each occasion. She takes medication costing a total of $60 a month.

20 According to Susan, her husband also suffers serious health problems. He has undergone surgery and radiation treatment for cancer of the kidneys, which has involved the removal of most of one kidney. In addition to that cancer Mr. Raymond has for more than eight years suffered from Crohn’s Disease. Medication for that condition costs him about $100 a month. He requires a CT scan every six months as part of the treatment for his cancer. Each such scan costs $500, of which he is refunded about 75 percent by Medicare. According to Susan, the prognosis for her husband is poor. Mr. Raymond, who has not worked since 1 January 2006, is currently in receipt of workers compensation of about $800 a fortnight. There was no evidence of when it was expected that he would be able to return to work.

21 Susan also supports her son Jordan, who resides at home with his mother and stepfather. Jordan, who is now aged 18, left school at the end of 2004, having completed year 11. He commenced work as an apprentice carpenter early this year, earning about $280 a week, of which he gives his mother $50 a week for board.

22 Susan is paid $26 an hour in her casual employment at the Coffs Harbour Hospital, to which she is on call and where she usually works about 25 hours a week. That is, her average weekly income when working is about $650. However, she has not had any work since late March of this year.

23 Susan gave evidence concerning the nature of her close and affectionate relationship with the Deceased. According to Susan, after the death of her mother in July 2002, Susan offered to construct a flat at the back of her residence at Woolgoolga where the Deceased might live so that she and her family could look after him. However, the Deceased preferred to remain in his own residence at Beauty Point on the South Coast of New South Wales.

24 The second named Plaintiff, Trevor Rodney Crunkhorn (to whom I shall for convenience, and without intending any disrespect, refer as “Trevor”), is presently aged 49. He lived with his parents until he married on 20 April 1983. He and his wife have three children, Beau (who is aged about 20), Ben (who is aged about 17, and who is still at school) and Cassie (who is aged about 10 and who is also still at school).

25 Since 1999 Trevor and his wife have conducted a lightning protection business, through the vehicle of a company, Lightning Down Under Pty Limited. Trevor’s wife performs bookkeeping work for that business. Evidence was given by Trevor that he drew a gross wage of $40,000 from the company for the year ended 30 June 2004, and that his wife drew a similar wage from the company. He said that in that financial year the company had made a trading loss of $20,000, and that he and his wife were barely surviving financially.

26 According to Trevor’s affidavit evidence he and his wife own a house property situate at East Kurrajong, which is their family home.

Although in his primary affidavit Trevor attributed to that property an estimated value of $500,000, in his updating affidavit he presented a market appraisal in the sum of $450,000. That house property is subject to a first mortgage to the ANZ bank in an amount of $220,000 and is also security, by way of a second mortgage, for a secured overdraft respecting a loan for Trevor’s business, in an amount of $85,000. The only other assets revealed by Trevor in his affidavits were the balance in an ING joint account, in an amount of about $3,000; furniture, having an estimated value of $10,000; shares in public companies having a value of about $3,000. Trevor is repaying the mortgage debt on his house at the rate of $750 a fortnight.

27 According to Trevor the equity of his wife, himself and their company has a negative value, since the company has few assets and has a substantial debt to the ANZ bank (secured by the second mortgage of $85,000). The company leases premises at McGraths Hill for $2,000 a month and leases a vehicle from the ANZ bank for $600 a month. Those lease payments have been personally guaranteed by Trevor and his wife.

28 According to Trevor his health is not good. He is a type 2 diabetic and requires constant medication (costing about $70 a month). He said that he had been diagnosed as having problems with his liver, pancreas and kidney. He also said that his wife suffers from eczema, for which she requires medication costing about $40 a month.

29 Trevor gave evidence concerning what he described as “a close relationship with both my parents and particularly my father”. That evidence was, however, hardly consistent with a letter which Trevor wrote to his parents on 16 January 1996 and which was placed in evidence, or with the fact that there had been a total estrangement between Trevor and his mother for a period of at least two years.

30 In his affidavit of 24 April 2006 Trevor said that if he received money from the estate his first priority would be to reduce the mortgage indebtedness upon his residence, which presently is in a total amount of $305,000. He said that the house required urgent repairs, which he presently was unable to afford. However, he did not identify the nature of those repairs, or the estimated costs thereof. He also expressed concern that he should set aside money for the education of his children. However, no particulars or monetary quantification were offered in this regard.

31 It will be appreciated that the claims of the Plaintiffs must be approached in the light of the competing claim of their brother Jeffrey Crunkhorn, who is the chief chosen object of the testamentary beneficence of the Deceased.

32 Jeffrey (to whom I shall for convenience, and without intending any disrespect, so refer) was the youngest child of his parents. He was born on 27 September 1958 and is presently aged 47. For thirteen years he had been an ambulance officer by occupation until he was medically discharged in late 1989. From June 1999 Jeffrey resided with his parents at Beauty Point, and acted as full-time carer for both of them until the death of his mother in 2002 and thereafter for his father. As their full-time carer Jeffrey was in receipt of a carer’s pension. After his mother’s death Jeffrey and the Deceased shared equally the outgoings on the house property and all the expenses associated with the Deceased’s motor vehicle. Before removing to Beauty Point Jeffrey had been residing at Helensburgh, where he was living with a friend.

33 Jeffrey has not been in employment since June 1999, when he became the full-time carer for his parents. He is presently in receipt of Centrelink payments, by way of a disability pension, of $235.50 a week (totalling $12,142 a year), which he receives on account of health problems, being arthritis in his back, neck and both wrists. He has no other income.

34 According to Jeffrey his living expenses and outgoings total $186.50 a week. The difference between that figure and his disability pension is expended on medication and medical bills. He has no debts.

35 Jeffrey gave evidence concerning his health. He suffers from gall bladder problems. He requires dental treatment, but has not been able to afford what he expects will cost between $1,000 and $2,000. He is short sighted and requires spectacles. He suffers problems with breathing, on account of a broken nose when he was aged 20. This will require corrective surgery. Jeffrey is also on medication, including anti-depressants and blood pressure tablets. His medical practitioner has referred him to a psychologist, on account of depression.

36 The entirety of Jeffrey’s income is expended in maintaining himself and the house at Beauty Point. His lifestyle is a very frugal and modest one.

37 After 21 June 2006 Jeffrey will need fresh accommodation. Evidence was presented, both by Jeffrey and by the Plaintiffs, of the cost of home units in Bermagui, at prices ranging between $119,500 (for a one bedroom unit) to $160,000 - $200,000 (or more) (for a 2 bedroom unit).

38 A considerable quantity of evidence was presented to the Court (especially on behalf of the Plaintiffs) concerning the respective relationships between each of the three surviving children of the Deceased and their father and amongst those children themselves.

39 It is in the light of the foregoing evidence and especially the financial and material circumstances of the Plaintiffs and of Jeffrey that the Court must proceed to a consideration of the claim of each Plaintiff.

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

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

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

43 At the outset it cannot be emphasised too strongly that an applicant for an order for provision has an obligation to place before the Court as fully and as frankly as possible all relevant evidence concerning the financial and material circumstances of that applicant. Each of Susan and Trevor signally failed to do so, at least in their respective affidavit evidence.

44 For example, Susan failed to disclose in her affidavit evidence, and it emerged only under cross-examination, that she has a superannuation entitlement of about $3,700, whilst her husband has a superannuation entitlement of about $7,500. In her oral evidence in chief Susan referred to the increase in the mortgage over her house property to an amount of $158,380, stating that that increase had been made necessary in consequence of significant damage to the deck and surrounding area at her house and a very small part of the roof, as a result of storm damage in 2005. That reference to storm damage being the reason for the increased mortgage was quite misleading. Indeed, it could be described as untrue.

45 Susan did not in her affidavit evidence place before the Court any information concerning her weekly expenditure. According to her oral evidence, elicited under cross-examination, that expenditure includes $440 a fortnight in repayment of the mortgage home loan, and $150 a month in respect to household insurance and the insurance of the various motor cars owned by members of her household. It emerged under cross-examination that the true reason for the increase in the mortgage debt was to pay for deck replacement at her residence at a cost of between $25,000 and $30,000, to pay for major dental work for herself, in an amount of $5,500; to construct a pergola on the front of the house and replace front decking, costing $5,000; to purchase a motor car for her son at a cost of $5,000; to pay for tree removal ($2,500) and for the trimming of another tree ($1,500); and to pay for repairs to the front fence ($4,000). In addition, Susan said that she had made payments totalling $1,900 in respect to what she described as legal fees and ancillary payments. She referred to major repairs being performed to one of the three household motor vehicles, being a Toyota 4WD Landcruiser, at a cost of about $2,500.

46 In respect to the cost of the decking which had been damaged by the storm, it emerged from Susan under cross-examination that the insurer would not cover that cost, because the decking was already in a deteriorated condition.

47 Similarly, Trevor did not place before the Court in his affidavit evidence an accurate or complete picture of his financial or material circumstances. Presumably as a result of the superannuation entitlement of Susan and her husband being elicited from Susan under cross-examination, Trevor in his oral evidence in chief volunteered that he presently has a superannuation entitlement in an amount of about $40,000, which he said he was not able to access until he reaches the age of 65 (he is presently aged 49). Further, he said that his wife has a superannuation entitlement of about $3,000 - $4,000.

48 Trevor was cross-examined concerning the extraordinary and most unfilial letter which he had written to his parents in January 1996. In that letter he denounced not only the Deceased and his mother, but also his sister Susan (with whom he now makes common cause in the present proceedings), as well as his brother Jeffrey. Even to the present time Trevor was not prepared to acknowledge the help and assistance given by Jeffrey to his parents, saying, “I don’t accept anything unless I see it myself”, despite what he had been informed by his mother. Trevor’s asserted reconciliation with his mother about two years after he had written the foregoing letter apparently did not cause him to change his views on the accuracy of what his mother told him had been Jeffrey’s role in looking after their parents.

49 Trevor was cross-examined concerning the financial situation of his company Lightning Downunder Pty Limited and its most recent company tax return, that for 2005 (Exhibit C). Despite Trevor’s assertions that he did not know to what many of the items in the return referred, nevertheless, it emerged that each of Trevor and his wife has the use of a company motor vehicle, which are held by the company on leases, and neither of which was referred to in his affidavit evidence. Those leases are personally guaranteed by Trevor and his wife.

50 Each of Trevor and his wife receives a salary from the company. Although in his primary affidavit Trevor stated that in the year ended 30 June 2004 he drew a gross wage of $40,000 and that his wife drew a similar wage, somewhat curiously in his supporting affidavit he said that his wife and he were “presently each drawing salaries of $25,000 per year as we found it impossible to live on the single salary of $45,000”. The reference to “the single salary of $45,000” is totally inconsistent with the two salaries each of $40,000 referred to in his earlier affidavit. Further, references by Trevor to, first, two salaries of $40,000 (totalling $80,000); second, a single salary of $45,000; third, two salaries of $25,000 each (totalling $50,000) are all quite inconsistent with the evidence which emerged from the company return, that Trevor, his wife and their three children drew from the company in the year ended 30 June 2005 salaries totalling $92,979, and that superannuation contributions were made on behalf of Trevor and his wife totalling $8,155.

51 In his oral evidence Trevor, under cross-examination, said that he and his wife were each now drawing $23,000 a year, an arrangement which he said had been in place for one or two weeks preceding the hearing.

52 The responses given by Trevor under cross-examination concerning the company tax return for 2005 presented a very different picture of the financial and material circumstances of Trevor and his family from that which he sought to present in his affidavit evidence.

53 I have already referred to the fact there was a considerable quantity of evidence placed before the Court concerning the respective relationships between each of the three children of the Deceased with their father (and their mother) and between those children with each other. Much of the evidence presented on behalf of the Plaintiffs apparently was intended to establish that the relationship between Jeffrey and his father was not a particularly good or close relationship, and that Jeffrey had not been a loving and caring son to his parents during the period whilst he was living with them and during which he held himself out as being their full-time carer.

54 It cannot be emphasised too strongly that an applicant for an order for provision must establish her or his claim upon its own merits. That claim cannot be enhanced by establishing, if such be the case, that the chosen object of the testamentary beneficence of the Deceased, if he himself had been omitted from such testamentary provision, would not have been successful in an application for provision. In this regard it is appropriate that I should set forth the following salutary admonition of Windeyer J in the High Court of Australia in Blore v Lang (1960) 104 CLR 124 at 137

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

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

56 In carrying out the first stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 (the correctness of which test was affirmed by the High Court in Vigolo v Bostin (2005) 79 ALJR 731) the Court must determine whether in consequence of the provisions of the will of the Deceased each of the Plaintiffs has been left without adequate provision for her or his proper maintenance.

57 According to her primary affidavit, that of 11 December 2004, Susan’s greatest need is for assistance to pay off or reduce her home mortgage, in order to give financial security to herself and her family. Despite that assertion, Susan in 2005, subsequent to swearing that affidavit, increased her mortgage from the amount of about $100,000 (which was outstanding at the time when she instituted the proceedings). She did not state the precise amount of that increase, but the amount presently outstanding is about $158,000.

58 It is no part of the Court’s function to tell an applicant how to conduct her life or arrange her lifestyle or, indeed, how she should expend her finances, or to criticise her for the manner in which she carries out those activities. Nevertheless, when performing the first stage in the two-stage process to which I have already referred, the Court must consider the fact that Susan, despite at the end of 2004 expressing concern for her financial position on account of her mortgage being in an amount of about $100,000, nevertheless, only a matter of several months later, felt that she was in an appropriate financial situation where she could very significantly increase that mortgage, for purposes which included the enhancement of her residence (upon which she expended in excess of $40,000), and the purchase of a motor car for her teenage son (then aged 17), costing $5,000. It is difficult to accept that a household which, according to Susan, suffers from the financial constraints expressed in her primary affidavit, requires three separate motor vehicles for the three members of the household, especially where Susan’s husband is not in employment.

59 I am not satisfied that Susan has established that as a result of the testamentary provisions of the Deceased she has been left without adequate provision for her maintenance. In this regard it should not be overlooked that under the terms of the Deceased’s will Susan will receive a legacy of $10,000.

60 Trevor is in a far better financial position than he would have the Court accept. I was most unfavourably impressed by his responses under cross-examination to questions concerning the company tax return of his company. He asserted a lack of knowledge concerning the benefits which he and his family receive from the company and he largely disclaimed responsibility for the facts and figures appearing in that return. The return discloses that Trevor, his wife, and two of their three children, receive salaries from the company totalling $92,979 a year, that being significantly more than the total of $80,000 referred to in Trevor’s affidavit evidence. Each of Trevor and his wife has a motor vehicle provided by the company. No reference to these vehicles was made in Trevor’s affidavit evidence or in his oral evidence in chief; their existence emerged only under cross-examination.

61 I am not satisfied that Trevor, who also will receive a legacy of $10,000 from his father’s estate, has established that he has been left without adequate provision for his maintenance.

62 The conclusions which I have just expressed are sufficient to dispose of the claim of each Plaintiff.

63 Nevertheless, even if (contrary to those conclusions) I were to have been satisfied that either or both of the Plaintiffs had been left without adequate provision for her or his maintenance, that conclusion must be approached in the light of any competing claims upon the testamentary bounty of the Deceased. The only such competing claim is that of Jeffrey. That competing claim was recognised by the Deceased, who by his will made Jeffrey the chief object of his testamentary beneficence. I am satisfied that Jeffrey was a devoted and loving son to his parents, for whom he gave up his independent life to become their full-time carer during a period of five years. The competing claim of Jeffrey cannot enhance the entitlement of either or both of the Plaintiffs, although it may have the effect of reducing, or even extinguishing, any order for provision an entitlement to which the Plaintiffs may otherwise have established.

64 Jeffrey is in extremely modest financial and material circumstances. His only income is a disability pension of $235.50 a week. It will be necessary for him soon to find alternative accommodation, since the two year period of occupancy of the Beauty Point residence, provided for him by the terms of his father’s will, shortly will expire. An attempt was made on the part of the Plaintiffs to establish by cross-examination of Jeffrey and also of a friend of his, Ms Irene Lohman, that Jeffrey and Mrs Lohman are in a de facto relationship. I am not satisfied that they are in such a relationship. But, in any event, even if they were in a de facto relationship, that would not alter his arrangements that when he leaves the Beauty Point residence he proposes to move into a room in Ms Lohman’s house, and to share with her the cost of electricity water and of telephone. Those arrangements cannot in any way enhance the claims of the Plaintiffs.

65 It will be appreciated that the practical effect of any additional provision for either Susan or Trevor would be to reduce the benefit which Jeffrey will receive from the estate of the Deceased. In any event, it is a consequence of the mere institution of the present proceedings (irrespective of any costs order which may ultimately be made) that the amount of that financial benefit to Jeffrey will be reduced. It is unlikely that, even if the benefit given to him by the will is not disturbed, Jeffrey will now receive from the estate a sum sufficient to enable him to purchase even the cheapest of the two bedroom home units available in Bermagui. I would not be disposed to reduce further the benefit given to Jeffrey under the terms of his father’s will.

66 Even if (contrary to the conclusions which I have already expressed) either or both of the Plaintiffs were to have established an entitlement to an order for provision, the competing claim of Jeffrey would totally extinguish such entitlement. But I would emphasise that I am not satisfied that either Plaintiff has established such an entitlement.

67 It follows, therefore, that the claim of each Plaintiff will be dismissed.

68 I make the following orders:

(1). I order that the summons be dismissed.

(2). I order that the Plaintiffs pay the costs of the Defendant, such costs to be on the party and party basis.

(3). I order that the Defendant be entitled to recoup from the estate of the late Stanley Norman Crunkhorn (“the Deceased”) the difference between the foregoing costs which he may recover from the Plaintiffs and the costs of the Defendant on the indemnity basis.

(4). The exhibits may be returned.

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