Reiner v Stevens

[2003] NSWSC 1216

CITATION:	Reiner v Stevens [2003] NSWSC 1216
HEARING DATE(S):	3 December 2003
JUDGMENT DATE:	19 December 2003
JURISDICTION:	Equity
JUDGMENT OF:	Master Macready at 1
DECISION:	See paragraph 57
CATCHWORDS:	Family Provision Act -- Claim by husband of deceased -- Large estate left to daughters of deceased's prior marriage -- Legacy to plaintiff substantially increased
LEGISLATION CITED:	Family Provision Act 1982
CASES CITED:	Singer v Berghouse (1994) 181 CLR 201 Marshall v Carruthers [2002] NSWCA 47 Anasson v Phillips Unreported
PARTIES :	Anton Reiner - plaintiff Yolanda Stevens and Elizabeth Green - Estate of Maria Reiner - defendant
FILE NUMBER(S):	SC 5427/02
COUNSEL:	Mr P Hallen SC for the plaintiff Mr D E Baran for the defendants
SOLICITORS:	Tress Cocks & Maddox Lawyers for the plaintiff Dorrough Smart Solicitors & Attorneys for the defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Master Macready

Friday 19 December 2003

5427/02 Anton Reiner v Yolanda Stevens and Elizabeth Green

JUDGMENT

1 Master: This is an application under the Family Provision Act 1982 in respect of the estate of the late Maria Reiner who died on 4 April 2002 aged 76 years. The deceased was survived by the plaintiff her widower and her two children from her first marriage, who are the defendants in the proceedings.

The will of the deceased

2 The deceased made her last will on 4 May 1983. Under that will, she appointed the defendants as her executors, left a legacy of $30,000 to the plaintiff, a legacy of $25,000, together with a devise of the real estate situated at, and known as, 29 Wallangra Road Dover Heights to the second defendant, Elizabeth Green, and the residue of her estate was to be divided equally between the two defendants.

3 Probate of the deceased’s will was granted to the defendants on 14 October 2002.

The estate of the deceased

4 The assets in the estate, disclosed in the inventory of property attached to the Probate parchment, are real estate situated at and known as 29 Wallangra Road Dover Heights, several home units (1, 2, 5, 6, 9 and 10) situated at, and known as, 76 Albion Street Randwick, and 400 shares in the NRMA (now IAG). The estate was disclosed as having an estimated, or known value, at that time, of $2,481,220.

5 The real estate has, recently, been the subject of a “kerbside valuation” by two valuers, appointed by the plaintiff, and agreed to by the defendants. The values of the real estate given by each of these valuers, respectively, totals $5,110,000 and $4,730,000. The parties are not agreed on the value but the mean value of 29 Wallangra Road Dover Heights is now $2,650,000 and that of the remainder of the real estate is $2,270,000.

6 There was no disclosure in the probate of cash in the estate. There is an issue whether $131,000 in cash was located after the death of the deceased in the matrimonial home. The plaintiff asserts that of this amount he received $11,000 (in French money) and that $80,000 was given to the second defendant and $40,000 was given to the first defendant. Each of the defendants denies this assertion that they received such funds.

7 There is also a question about the withdrawal of almost $243,749.72 from an account conducted in the name of the deceased in the St George Bank Limited in or about April 2002 and its deposit in early May 2002 into an account conducted in the joint names of the plaintiff and the deceased with the Commonwealth Bank. The amount was subsequently withdrawn from that account on 24 May 2002.

8 The second defendant asserts that the plaintiff withdrew the amount, and that he has retained it. The plaintiff denies this. He says that he does not know what happened to the amount.

9 The parties have obviously incurred costs in the proceedings. The plaintiff's costs are estimated to be about $58,715 (plus costs of the valuer engaged by the plaintiff). The defendants’ costs have been disclosed in affidavits served on 2 December 2003 as a debt due by each of the defendants ($45,000 and $25,000 respectively) and total $70,000.

The family history

10 I will adopt with some alterations the plaintiff’s submissions in this history that are supported by the evidence.

11 The deceased was born on 26 June 1926. She married her first husband, Joseph Green (Jozek Zielinski) in Poland. They immigrated to Australia in about 1951. They were divorced in or about 1974. He died in about 1985.

12 The plaintiff was born in Paris, France, on 11 February 1927 and is almost 77 years of age. He met the deceased in about 1951. She was then a married woman. They commenced a relationship, which continued until the deceased was divorced from her husband in about 1974 after which she married the plaintiff on 24 July 1976 and remained married to him until her death on 4 April 2002. There were no children of the marriage of the plaintiff and the deceased. The deceased, of course, had two children by her prior marriage; the children being the defendants.

13 The second defendant was born in Poland, on 14 February 1946, and is aged 57 years. She has never been married and has no children.

14 The first defendant was also born in Poland, on 4 October 1948, and is aged 55 years. She has been married twice. She has 3 children by her first marriage each of which is an adult. She has had no children in her second marriage.

15 The evidence of the plaintiff is that he had a close and loving relationship with the deceased and that they were happily married. The evidence of the plaintiff is supported by an affidavit from a number of independent witnesses each of whom was a friend of his and of the deceased and each of who had an opportunity to observe the plaintiff and the deceased together. Each describes the plaintiff as being attentive to the needs of the deceased. The plaintiff’s relationship with the deceased is the subject of some dispute by the defendants.

16 The plaintiff, who worked throughout the marriage, had his wages paid by direct transfer into the joint account of the plaintiff and the deceased in the Commonwealth Bank. They had another joint bank account with the NAB into which his and her German War Compensation pension was paid.

17 There seems to be no issue that the deceased was responsible for the financial aspects in the marriage and she appears to have provided the plaintiff with a small allowance. The plaintiff, for his part, appears to have accepted the deceased’s control over their day-to-day living. All the evidence seems to be that the deceased looked after the plaintiff well in the physical sense and that they continued their marriage for some 26 years without any interruptions or separations.

18 The plaintiff asserts that he assisted the deceased in repairing and maintaining her properties. He states that he carried out handyman jobs at the Albion Street units and at the property in Wallangra Road.

19 There is no explanation given as to why the deceased left the plaintiff only the legacy of $30,000. There is an allegation that the deceased regarded the plaintiff as being “hopeless with money”. The will was made in 1983 about 7 years after the marriage of the plaintiff and the deceased and about 19 years before her death.

The eligibility of the plaintiff

20 The plaintiff as the widower of the deceased is an eligible person. In applications under the Act, the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two stage approach that a Court must take. At page 209 it said the following:-

"The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."

The plaintiff’s situation in life

21 As I have said, the plaintiff is aged almost 77 years. He lives in a rented property into which he moved in about January 2003. He has a total monthly income of $2,030 (subject to fluctuation) and total monthly outgoings including rent of $975, of $2,122. There is a shortfall of income of about $92.00 per month. He has no assets other than an old car ($4,000) and his unpaid legacy which, with interest, is about $31,000. He has a debt of $33,500 but this debt will be repaid if an order is made for costs out of the proceedings as it was borrowed to pay part of his legal costs and some disbursements.

22 He is in reasonably good health for his age. He has no major illnesses, although since the death of the deceased his blood pressure has risen and he has been prescribed a drug to help control it. He has also been prescribed an anti-depressant. He has recently met an old friend who he sees on a weekly basis but there is no suggestion that they will marry. They live separate and independent lives.

23 His relationship with the deceased was obviously happy although there are some suggestions of disputes in the last few years. The evidence does little more than to suggest that there were some arguments during the night about assistance that the deceased needed from the plaintiff in getting to the toilet. I do not regard it as of great importance having regard to the length of the relationship.

24 There is no evidence to suggest that the plaintiff contributed to the estate of the deceased other than in minor ways. The estate was derived from the property settlement between the deceased and her former husband. The plaintiff did of course work for substantial periods during the relationship and contributed his wages to the relationship.

25 It is necessary, then, to see how the plaintiff says that he has been left without adequate and proper provision for his maintenance, education and advancement in life. He asserts that he is in need of secure housing. He also submits that he is in need of a fund of money to meet adverse circumstances in life, which exist in potential for persons of his age and which might, at any time, become actual notwithstanding the generally favourable appearance of his present health circumstances.

26 The plaintiff puts forward examples of various home units that he has inspected. He has enquired as to the asking price of two bedroom home units, which range from between about $500,000 and $750,000. There will be costs and expenses of purchase including stamp duty. On a purchase price of $695,000 these would be $30,777.40. He has no furnishings and appliances and will need to buy some at a cost which he estimates at $26,086. He has insufficient funds to enable him to go on a holiday which would cost $7874.26. He has an old motor vehicle that he says that he wants to replace at a cost of between $37,971 and $45,941.50.

27 In the event that the plaintiff does receive a lump sum sufficient to enable him to purchase accommodation and provide for an exigency fund, he will not need any specific amount by way of additional income, other than that which is provided by the fund, because his monthly expenses will be reduced by about $975, that amount being the rent that he presently pays. Of course, there will be some expenses in relation to that accommodation, such as strata levies and insurance, which will need to be paid.

28 There was some debate before me as to whether the plaintiff would need a two-bedroom unit and there were discussions between the parties prior to proceedings being commenced concerning a proposed purchase of a one bedroom unit. Having regard to the lifestyle the plaintiff enjoyed with the deceased which included the provision of tailored suits at a cost of in excess of $4000 per suit and the fact that the plaintiff has family in Europe who might visit him it is appropriate to judge his accommodation needs by reference to a two-bedroom unit.

29 The plaintiff’s claim in monetary terms, based upon midrange two-bedroom unit together with a $300,000 fund for contingencies was put forward at between $1,000,000 and $1,100,000. In order to consider whether this might be appropriate it is of course first necessary to refer to the situation of the others who have claims on the bounty of the deceased. In this case they are the deceased’s two daughters.

The situation of Elizabeth Green

30 Elizabeth Green is 57 years of age and presently lives in the estate property and 29 Wangaratta Dover Heights. She has few assets, mainly a loan due to her in the sum of $25,982. She has borrowed $12,800 from her sister to cover a shortfall in her living expenses and amounts for costs of these proceedings. Her earnings are a $385 net per fortnight by way of sickness benefit and she has a monthly shortfall of her income over expenditure of $277. Under the terms of the will of the deceased, absent any order in favour of the plaintiff, she will receive the house at Wallangra Road Dover Heights worth in the order of $2,650,000 and the sum of about $1,000,000.

31 Elizabeth is not in good health having been diagnosed with cancer. She underwent a craniotomy on 9 December 2002 when she was in hospital for three weeks and this led to a variety of problems including headaches, lost sight, scarring and damage to her head. It also caused acute depression, blood pressure, diabetes that is at present controlled and insomnia. The week before the hearing she was in hospital again for further surgery in respect of the cancer and is undergoing radiotherapy treatment.

32 She has been given no prognosis at present but clearly is having a difficult time and requires extensive further medical treatment. Fortunately she has medical insurance. Apart from dealing with her health problems it is likely that she will also need plastic surgery to adjust the facial disfigurements caused by the operations. Notwithstanding the seriousness of her recent hospitalisation she was able to give her evidence in a reasonably clear way.

33 There is no suggestion that Elizabeth has contributed to the estate of the deceased. Prior to 1992 Elizabeth had been living with her sister but after that house was sold she moved in to live with her mother. She was able to assist her mother in coping with her asthma and take her to various doctor’s appointments and at times hospital.

The situation of Yolanda Stevens

34 Yolanda Stevens is 55 years of age. She is married and has children from her former marriage who are not dependent upon her. She and her husband live in a property at 30 Lancaster Road Dover Heights and the share of that which is held by Yolanda is worth $1,300,000. She has a BMW car worth $35,000 and bank accounts of about $20,000. She and her husband presently have a mortgage of $350,000 over the house. Her husband has recently sold his businesses and is now unemployed. At the moment they are living on capital pending the outcome of this case. Yolanda has not worked since 1989 and says that she has problems with skin cancer which needs to be treated from time to time. She has problems with her back which have required surgery and which may require further treatment.

35 She, like her sister, had a good relationship with the deceased and indeed the plaintiff. Unfortunately with the commencement of these proceedings the relationship with the plaintiff soured which has been to the detriment of his relationship with Yolanda’s children.

36 Under the terms of the will Yolanda would receive approximately $1,000,000.

Discussion of the plaintiff’s claim

37 The plaintiff is the deceased’s widower and it is necessary to consider what provision is normally appropriate for such a person. It goes without saying that reference to such general principles has to be with a careful consideration of the facts in each particular case. In Marshall v Carruthers [2002] NSWCA 47 Hodgson J had the following to say:-

“63 The Master found that Ms Carruthers had a strong claim, and I agree with that finding. However, the strength of a claim of a surviving partner does, in my opinion, vary with circumstances. Although the Family Provision Act does, in some respects, equate de facto spouses with de jure spouses, this does not, in my opinion, make the existence or otherwise of a marriage irrelevant. In my opinion, a formal and binding commitment to mutual support through good times and bad, other factors being equal, adds strength to a legitimate claim. In my opinion also, the strength of a claim can be affected by the length of a relationship and contributions to the relationship. One factor which may be particularly important in a claim by a woman is that a woman may have, to the detriment of her own financial prospects, taken a major role in raising the children of herself and the deceased.
64 The Master referred to the following statement of principle which appears in Luciano v Rosenblum 2 NSWLR 65 at 69
“It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies.”
65 I do not think it is to be assumed that this statement is to apply in all cases, particularly where factors such as those I have mentioned are absent. In my opinion, it is not clear that this statement would apply to applications by widowers. The difference in attitude that the Court may take to applications by widowers is due in part, I think, to economic disadvantages which women still face. One important aspect of this is the economic disadvantage occasioned by the greater responsibility which women often take in looking after children. That factor is of course absent here.”

38 In the present case the plaintiff and the deceased knew each other for some 50 years and were married for 25 years. It was a long and happy marriage, however, the plaintiff did not contribute to the estate. The plaintiff and the deceased did not have children together and accordingly that benefit was missing from their relationship. In terms of what His Honour has said in Marshall’s Case the deceased did not take on the burden of looking after children during the period of the marriage. In an economic sense the deceased was in the superior position because of her substantial assets in contrast to the plaintiff whose work only provided modest rewards. By the end of his working life he was a warehouse manager for Katie's.

39 The present estate is a reasonably large one and is more than adequate to provide for the children of the deceased and also provide for the plaintiff. The question of what is an appropriate provision in respect of a large estate is dealt with by Young J in Anasson v Phillips, 4 March 1988, where he said the following:

"... with a very large estate ... there is a great temptation on a court to be over-generous with other people's money. This is especially so when the court can see that plaintiffs have been very hardly done by at the hands of a domineering testatrix. However, the case should not be approached in this way as the application has to be determined in accordance with the legal principles. These principles include the fact that in Australia there is freedom of a person to leave her property in whatever way she wishes, to love whom she wishes, to hate whom she wishes and there is only when there has been a failure to comply with a moral duty to those who in the community's eyes she should have made proper provision for, that anyone can legally complain about another person's will. Even then, the court has no power to re-write the will, but can only adjust things, in substitution for the testatrix, in such a way as to fulfil her moral duty.
If the estate is a large one, the court has a slightly different approach. The basic principles are the same, that is, the will can only be affected to the extent that it is necessary to discharge the moral duty by making adequate provision for the plaintiffs, but where there is a large estate, competition between claimant and claimant, and claimant and beneficiary under the will is much reduced or eliminated. Further, there may be a more liberal assessment of the moral duty owed, to be reflected in what is proper provision for the plaintiffs. In particular, the lifestyle that has been enjoyed by the plaintiffs, because they have been associated with a wealthy testatrix is a relevant factor. These principles all, I think, flow from cases such as Re Buckland (1966) VR 404, especially at page 412."

40 In the present case, I would have thought the amount proposed by the plaintiff is appropriate. This, however, is subject to the question which involved most of the time in this case namely whether or not the plaintiff has already received substantial benefits from the estate. The resolution of this question will require a careful consideration of the affidavit material and the cross-examination of the relevant witnesses.

41 The plaintiff’s principal affidavit was sworn 17 April 2003 and is the first one filed in the proceedings. He referred to the probate application disclosure of assets and stated that he did not understand why certain amounts were not disclosed in the probate application. The three amounts were a sum of cash of $120,000 which was kept at the home at the date of death, a sum of $11,000 in French money, which was also kept in the house and the third was a sum of $243,749.72 which was an amount in the St George Bank account at the date of death of the deceased. In paragraph 40 of his affidavit the plaintiff recounts the discovery of the first two amounts and in paragraph 48 he said that the $120,000 was divided as to $80,000 between Elizabeth and $40,000 to Yolanda. According to him he was told that he could take the French money, which he did. This occurred before the deceased’s will had been found.

42 There is no doubt that the plaintiff took the $11,000 as he clearly indicated in his first affidavit that he did receive that amount. Yolanda Stevens in paragraph 24 of her affidavit of 10 September said that the allegations regarding the $120,000 and the $11,000 being hidden in the deceased bedroom and the matters attributed to her were untrue. Her sister, Elizabeth Green, did not deal with the allegations about the $120,000. Although in evidence she denied that she had received $80,000 she conceded that the plaintiff received the $11,000.

43 In respect of the $243,749.72 withdrawal Elizabeth Green annexed a withdrawal slip for the amount from the account which she said was signed by the plaintiff. She recounted how there was a discussion between the plaintiff and herself about the withdrawal of the money from the Commonwealth Bank and that she attended with him when he withdrew the amount. After he did so, according to her, he said that he wanted to keep the money upstairs, an area which was locked.

44 In his affidavit in reply of 22 October 2003 the plaintiff denied that the handwriting on the withdrawal slip was his handwriting and said that the signature appearing thereon was not his signature. He denied any knowledge of the transaction, or having attended the Commonwealth Bank with Elizabeth and withdrawing monies. There is also one other withdrawal to which reference was made in the evidence and that is a withdrawal on 16 April 2002 when the plaintiff withdrew $56,980 in cash from the National Australia Bank joint account which he conducted with the deceased. He says that he gave half of that to Elizabeth. However, she does not respond to that allegation. As it was from a joint bank account I will put that matter to one side for the purposes of the consideration of the present problem.

45 Of importance according to the submissions of the plaintiff was the fact that it was the plaintiff himself who raised the question of the missing monies. In the submission made on his behalf it was suggested that it would be quite unlikely that he would raise the matter if he had in fact taken the money.

46 Of interest is the very clear denial of the plaintiff that he did not sign the withdrawal slip and that he took no part in such transaction.

47 When cross examined the plaintiff, at transcript 11, maintained his affidavit version that it was not his signature and said that it was possible that someone had forged his signature to the withdrawal slip on 24 May from the Commonwealth Bank. He was showed, at transcript 13, his driver’s licence and was asked to compare that with the relevant signature on the withdrawal slip. He did not concede that the signatures were similar. At transcript 14 he referred again to why the proceeds were taken by Elizabeth Green which he had indicated in his affidavit evidence. That was that at some stage during the life of the deceased he had opened an envelope which showed a bank statement for a substantial amount of money and interest. He said that he talked to the deceased about it she said that the money was Elizabeth Green’s and that it was in the deceased’s name as Elizabeth Green did not want to lose the pension.

48 At transcript 15 there was a return to the events that might have occurred at the Commonwealth Bank on 24 May and the following evidence was given by the plaintiff in cross examination:

“Q. Let us take it in steps. You were at the bank on the day when the $243,000 was withdrawn, weren’t you?
A. I beg your pardon?

Q. You were at the bank on the day when the $243,000 was withdrawn from the Commonwealth Bank?
A. Excuse me, you told me quarter of a million dollars in front of me and I take it, that is cheek.
Q. I will ask the question again?
A. Yes please, I didn’t.
Q. Were you at the bank - -
A. No.
Q. Were you at the bank on 24 May 2002, the Commonwealth Bank?
A. No.
Q. Where were you?
A. Possibly in the car, possibly nowhere. I don’t know. But I haven’t been.
Q. Possibly in the car, possibly anywhere?
A. Possibly I took her to the bank. That is very much possible.
Q. That is very possible, isn’t it?
A. Possibly.
Q. It is also possible that a withdrawal was made of $243,000?
A. No it is not possible. I can see it in her handbag, for goodness sake.”

The topic was again returned to at transcript 17 when the following evidence was given:

“Q. Did you at any time after 24 May 2002 have a discussion with Elizabeth about the $243,000?
A. No.

Q. You told us just a minute ago there was a discussion where she got very cranky, what was all that about? Was that about the $243,000?
A. No, $120,000 what she took with the $40,000 from me.

Q. Do you have any witness or person you can call to verify where you were on 24 May 2002?
A. I don’t know. I have not idea so help me.
Q. You went to the bank with Elizabeth Green on 24 May 2002, didn’t you?
A. I don’t know.”

This evidence shows a shift by the plaintiff from his absolute denial in his affidavit in reply to having attended the Commonwealth Bank with Elizabeth on 24 May 2002.

49 The question of the signature was returned to at transcript 20 where the plaintiff was shown a number of withdrawal slips which had been signed immediately prior to 24 May in respect of the same account:

“Q. Mr Reiner, some documents have been produced by the Commonwealth Bank?
A. Yes.
Q. These are the documents which referred to other transactions. This withdrawal of $8600, do you see that, on 9 April 2002?
A. Yes.
Q. Is that your signature?
A. Yes.
Q. Do you recall making that withdrawal?
A. No. I tell you why, because at that time - -
Q. I will ask the question again. Do you recall making the withdrawal?
A. I don’t remember I wrote this. It is very much possible.

Q. That is your signature on 9 April 2002?
A. Yes.

Q. We are at 22 April 2002 and there is a withdrawal for $1870 on 22 April 2002, is that your signature?
A. Yes.

Q. Again there is another one for $6,100 on 26 April?
A. May I say something. That is what I am signing. I never checked. She is collecting the money. I never had the money but I signed it. But yes I did.

Q. But is that your signature?
A. Yes.

Q. On 24 May, this is $243,00 and that is your signature there?
A. Yes.

Q. Yes?
A. No, I don’t think I signed this.”

50 One of the things that was plainly obvious from the way in which the plaintiff gave the last answer and his demeanour was that this is a very clear retraction of the absolute denial which appears in paragraph 39 of his affidavit in reply. There is probably a very good reason for this because, although the signature on the withdrawal slip of 24 May does not flow as well as the others, looking at some of the withdrawal slips there are some noticeable similarities. For example in the way the letter ‘a’ is written and on one occasion as to how the last letter ‘r’ in his name is written.

51 There were a number of criticisms raised in the cross examination of Elizabeth Green and these included:

(a) Her failure to disclose the cash assets existing at the date of death in the Application for Probate and the affidavits of the executrixes in defence of the Application.
(b) Failure to disclose income received during the period from the date of death.
(c) The failure to make a disclosure to the Registrar in Probate of the existence of the cash assets once they were discovered.
(d) Failure to deny receipt of the $80,000 alleged to be given to her by the plaintiff in her affidavit.

52 A number of things have to be borne in mind in relation to these matters. It is not suggested that Ms Green had any particular training that would make these maters readily apparent to her and no doubt she was entitled to rely on her solicitors as she appears to have done. Although at times she attempted to advocate her case (see for example my comment at transcript 52) she generally tried to give her evidence, in my view, in a fairly straightforward way.

53 There are a number of things to be borne in mind when considering the question of the withdrawal from the Commonwealth Bank of 24 May. These are as follows:

1. It is clear that the funds were in the account and they were taken out on that day.
2. The plaintiff has made substantial concessions in cross examination, which makes his whole approach to the matter quite suspect.
3. Ms Green on the other hand appeared to give evidence in a fairly straightforward way.
4. There is no supporting evidence to deal with the allegation of the $120,000 said to have been given to the two defendants. The $11,000 is clearly conceded by the plaintiff.
5. Elizabeth Green’s version is supported by Mrs Stevens who was present in the car at the Bank.
6. The defendants’ approach that the money would be used towards the purchase of the unit for the plaintiff is consistent with what appears to have been the discussions at the time about making provision for the plaintiff.

54 I do not think the fact that the plaintiff first disclosed the matter in his affidavit in support has any real relevance. Clearly prior to the commencement of proceedings all parties knew of the withdrawal of the amount from the Bank and all of them knew that it would be an issue which would be raised one way or another in the proceedings.

55 Another matter, which occurred with respect to the plaintiff, was his quite extraordinary story in respect of the process which he engaged in while employed at Katies. He was asked whether he had any income he earned from any other source during the time that he worked for Katies, he responded yes. There then followed the following evidence:

“Q. From where?
A. I was a warehouse manager and I suppose I had the wire hangers which was not pinching, but I could sell it.
Q. You had wire hangers which you were not pinching but you could sell it?
A. Yes.
Q. What do you mean by that?
A. We changing the wire hangers to Katies. The hangers in the very beginning they throw out so I found out I can sell and I did sell it. Katies know about that.
Q. What did you say that you were not pinching, why did you use those words not pinching, why did you use those words?
A. I don’t pinch, I take it and that is all.
Q. Who would you sell them to?
A. Various people who want presses.

Q. On average how much money would you make?
A. $200 or $300

Q. What did you do with the $200 or $300 money?
A. Yes.
Q. Did you save that money?
A. I brought the television for the home.
Q. Is that the only business you were running on the side?
A. Yes, only business.

Q. And you say the people of Katies knew about this, do you?
A. That is right.

Q. And you saying to the Master that this was all done by way of cash or were records and invoices kept?
A. Cash.

Q. Are you suggesting to the court Katies permitted you to take hangers and sell them for cash?
A. Yes.
Q. How much would Katies get out of this?
A. I don’t follow.

Q. How much money would Katies receive from your selling the hangers?
A. As I said $200 or $300 a week.

Q. That is how much you received?
A. Yes, but I always pay something to my wife. I bought the crystal. I take my three granddaughters to Surfers Paradise.
Q. How much did you pay Katies for this?
A. Nothing. They don’t ask.
Q. Who at Katies gave you permission to do this, do you say?
A. No one give me permission. I was the warehouse manager and I do it. Why should I throw out all the rubbish when I can sell it.
Q. Did you ask or did you not have permission to sell it?
A. I didn’t ask.

Clearly the goods did not belong to the plaintiff. Clearly he did not disclose that he was selling them for his own benefit. This is quite extraordinary. Overall having considered the evidence of both the plaintiff and the defendants I prefer the evidence of the defendants on this aspect and I am satisfied that the plaintiff retained the sum of approximately $243,000 which was withdrawn from the Commonwealth Bank in May 2003.

56 In these circumstances there should be some deduction from the amount that prima facie the plaintiff would be entitled to and to which I have earlier referred. In my view it is appropriate that the plaintiff receive a legacy of $810,000 in lieu of the legacy of $30,000 provided to him by the will.

Orders

57 The orders that I make are as follows:

1. That in lieu of the legacy to the plaintiff of $30,000 that the plaintiff receive a legacy of $810,000.
2. Order that the plainitff’s costs on a party and party basis and the defendants’ on an indemnity basis be paid or retained out of the estate of the deceased.
3. Interest to be payable on the legacy in order one above at the rate provided for under the Wills, Probate and Administration Act if not paid within three months from today’s date as from that date.
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Last Modified: 12/22/2003