Rogers v Rogers

[2018] NSWSC 1982

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Rogers v Rogers [2018] NSWSC 1982
Hearing dates:	12 – 13 November 2018
Date of orders:	13 November 2018
Decision date:	18 December 2018
Jurisdiction:	Equity
Before:	Hallen J
Decision:	The Court: (a) Orders that the Statement of Claim be dismissed. (b) Orders, subject to the order in Paragraph (c), that the Plaintiff pay the Defendant’s costs, calculated on the ordinary basis, incurred prior to 4 April 2018; and pay the Defendant’s costs, calculated on the indemnity basis, after that date. (c) Orders that the Defendant pay the Plaintiff’s costs of the part of the proceedings relating to the production of the Will of the deceased, up to, and including, 4 December 2017, (excluding the filing fee of the Statement of Claim). (d) Orders that the Exhibits be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rule 31.16A and rule 33.10) and Practice Note No SC Gen 18.
Catchwords:	SUCCESSION — FAMILY PROVISION — The Plaintiff, an adult child of the deceased, makes a claim for a family provision order — No dispute as to the Plaintiff’s eligibility as a child of the deceased — Proceedings commenced within time prescribed by Act — Nature of relationship of the Plaintiff and the deceased — Lengthy estrangement and lack of any contact between the Plaintiff and the deceased for over 25 years — Estate comprises, at the date of hearing, primarily of the deceased’s home in which one son of the deceased has lived for many years — Right of residence given to that son for as long as he wishes to reside therein, or until his death, and thereafter, the estate divided between 5 of the deceased’s 6 children — No provision made for Plaintiff — Competing claim of each of the beneficiaries — Plaintiff, at the hearing, does not seek immediate provision but provision after right of residence is terminated — Reasonably large estate in value — Whether family provision order should be made, and if so, the nature and quantum of the provision to be made — Order that claim for family provision order be dismissed COSTS — Offer of Compromise served about 7 months prior to the date for hearing — Defendant obtained order no less favourable than offer made — Whether Court’s discretion should be exercised to depart from UCPR and order the Plaintiff to pay the Defendant’s costs, calculated on the indemnity basis, from the day after the date of service of the Offer of Compromise — Whether overall justice of the case warrants exercise of the Court’s discretion
Legislation Cited:	Family Provision Act 1982 (NSW) Succession Act 2006 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Probate and Administration Act 1898 (NSW)
Cases Cited:	AB v Curry (No 2) [2015] NSWSC 1209 Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 Bartlett v Coomber [2008] NSWCA 100 Bates v Cooke (2015) 14 ASTLR 22; [2015] NSWCA 278 Bates v Cooke (No 2) [2014] NSWSC 1322 Boettcher v Driscoll (2014) 119 SASR 523 Bondelmonte v Blanckensee [1989] WAR 305 Borebor v Keane [2013] VSC 35 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327 Briggs v Mantz (No 2) [2014] VSC 487 Burke v Burke (2015) 13 ASTLR 313; [2015] NSWCA 195 Butcher v Craig [2009] WASC 164 Chan v Chan [2016] NSWCA 222 Chapple v Wilcox (2014) 87 NSWLR 646 Christie v Manera [2006] WASC 287 Condello v Kim [2018] NSWSC 394 Crossman v Riedel [2004] ACTSC 127 de Angelis v de Angelis [2003] VSC 432 Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235 Diver v Neal [2009] NSWCA 54 Flathaug v Weaver [2003] NZFLR 730 Foley v Ellis [2008] NSWCA 288 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397; [1988] FCA 202 Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep) Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31 Goodsell v Wellington [2011] NSWSC 1232 Gorton v Parks (1989) 17 NSWLR 1 Grey v Harrison [1997] 2 VR 359 Hamod v State of New South Wales (2002) 188 ALR 659; [2002] FCA 424 Hawkins v Prestage (1989) 1 WAR 37 Heyward v Fisher (Court of Appeal (NSW), Kirby J, 26 April 1985, unrep) Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 Hunter v Hunter (1987) 8 NSWLR 573 In the Estate of Puckridge, Deceased (1978) 20 SASR 72 Jvancich v Kennedy (No 2) [2004] NSWCA 397 Kay v Archbold [2008] NSWSC 254 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Kohari v Snow [2013] NSWSC 452 Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391 MacGregor v MacGregor [2003] WASC 169 Marks v Marks [2003] WASCA 297 Mayfield v Lloyd-Williams [2004] NSWSC 419 McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 Meres v Meres (No 2) [2017] NSWSC 523 New South Wales Insurance Ministerial Corporation v Reeve (1993) 42 NSWLR 100 Nicholas v Tubb [2016] TASSC 53 Nock v Austin (1918) 25 CLR 519; [1918] HCA 73 Palagiano v Mankarios [2011] NSWSC 61 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52 Re Sherborne Estate (No 2); Vanvalen v Neaves; Gilroy v Neaves (2005) 65 NSWLR 268; [2005] NSWSC 1003 Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 Richardson v Armistead [2000] VSC 551 Rogic v Samaan (No 2) [2018] NSWSC 1573 Salmon v Osmond [2015] NSWCA 42 Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473 Sgro v Thompson [2017] NSWCA 326 Singer v Berghouse (1993) 181 CLR 201; [1993] HCA 35 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297 Smith v Whittaker [2016] VSC 287 Sreckovic v Sreckovic [2018] NSWSC 1597 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stott v Cook (1960) 33 ALJR 447 Sung v Malaxos [2015] NSWSC 186 Szypica v O’Beirne [2013] NSWSC 297 Taylor v Farrugia [2009] NSWSC 801 Tobin v Ezekiel (2012) 83 NSWLR 75; [2012] NSWCA 285 Toscano v Toscano [2017] NSWSC 419 Underwood v Gaudron [2014] NSWSC 1055 Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) Webb v Ryan [2012] VSC 377 White v Barron (1980) 144 CLR 431 Wilcox v Wilcox [2012] NSWSC 1138
Texts Cited:	R Atherton, “The Concept of Moral Duty in the Law of Family Provision – a Gloss or Critical Understanding?” (1999) 5(1) Aust J Leg Hist 5
Category:	Principal judgment
Parties:	Sandra Mary Rogers (Plaintiff) Michael Edward Rogers (Defendant)
Representation:	Counsel: Mr D C Price (Plaintiff) Mr F Austin (Defendant)   Solicitors: Glass Goodwin Solicitors (Plaintiff) Gerard Malouf and Partners (Defendant)
File Number(s):	2017/333434

Judgment

Introduction

1. HIS HONOUR: These are contested family provision proceedings in which, effectively, siblings are pitted against each other in respect of the estate of their mother, Mary Rogers (“the deceased”), who died on 5 November 2016, aged 92 years.

2. The children of the deceased are divided into two groups, one constituted by the Plaintiff, Sandra Mary Rogers, alone, and the other constituted by the Defendant/executor, Michael Edward Rogers, and four siblings, Robert John Rogers, Terence Patrick Rogers, Eric Francis Rogers and Clare Frances Schultejohann.

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

4. Unhappily, this is also case where a central issue between the parties is the lack of contact, and, thus, the lack of quality of the relationship, between Sandra and the deceased. Despite the number of affidavits, and the theme of those affidavits, there was no dispute that, despite encouragement from her siblings to see the deceased, Sandra had maintained no contact, at all, with her, from 1989, or 1990, until the deceased’s death, about 27 (or 26) years later. Their estrangement, which reduced the relationship between child and parent, during the whole of that period, to the point of extinction, lies at the heart of this case. However, the family relationship between them is one, but not the only, factor in the assessment of Sandra’s claim.

5. This is also a case in which an adult child of the deceased, who is, and has been for many years, independent and self-sufficient, wishes to obtain a share of the estate of her mother, in circumstances where her mother, after due consideration, came to the view, that Sandra was not entitled to any provision from her estate.

6. Antagonism, which, at least in part, is directed by Sandra towards the deceased, and, perhaps, to a lesser extent existing between her and her siblings, appears to be deep, bitter, and longstanding. However, despite the submissions of each party about the other’s motivation, I am not able to conclude that Sandra, or Michael, was motivated, in instituting and maintaining, or defending, respectively, the litigation, by an improper purpose. Amongst other things, Sandra was obliged to attempt to explain, from her point of view, the reasons for the estrangement, whilst Michael was, and his siblings were, required to respond.

The Proceedings

7. Sandra commenced the proceedings by Statement of Claim filed on 3 November 2017. In the Statement of Claim, initially, she sought an order under s 54(3) of the Succession Act 2006 (NSW) (“the Act”), namely that Michael, as the person who had possession or control of a will of the deceased, produce it in a court. This aspect of the claim for relief was resolved well before the hearing.

8. The costs issue in relation to that part of the Statement of Claim was not resolved entirely. On 20 November 2017, Michael, as executor, was ordered to pay Sandra’s costs of the mention. On 4 December 2017, the Court noted that, on 24 November 2018, he had informally produced the original of the deceased’s Will to the solicitor for Sandra, and the issue of the balance of her costs relating to the production of the Will, was reserved, presumably to be determined at the hearing of the balance of the proceedings.

9. The balance of the proceedings relate to Sandra’s claim for an order for provision out of the deceased's estate and notional estate pursuant to the Act and an order for costs in relation to the family provision claim. It is those aspects of her claim for relief that are to be determined in these proceedings.

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

11. Michael is the executor named in the deceased’s duly executed Will, dated 28 September 2012. This Court granted Probate of the Will to him on 2 March 2018.

12. There was no Defence filed in answer to the Statement of Claim, but the parties agreed that since the issue concerning the production of the deceased’s Will had been resolved, there was really nothing to be gained by the filing of the draft Defence (a proposed version of which had been provided to the Plaintiff and to the Court shortly before the hearing).

13. It was also clear that Michael opposed any family provision order in favour of Sandra being made. His siblings supported his defence of the proceedings, and at least one affidavit, from each, in opposition to Sandra’s claim, was read. The sole question for determination is whether the Court is satisfied, at the time when it is considering the application, that adequate provision for the proper maintenance, education or advancement in life of Sandra, the person in whose favour the order is to be made, has not been made by the Will of the deceased. Naturally, the question of the costs of the proceedings looms large, whatever the result.

14. Sandra, and each of her siblings, was cross-examined, although Michael and the siblings called were cross-examined briefly.

15. The matter was listed for hearing for two days and it was completed within that time. At the hearing, Mr D C Price of counsel appeared for the Plaintiff and Mr F Austin of counsel appeared for the Defendant.

16. Following the conclusion of the submissions, I stated that I was prepared to state the principal order that I proposed to make, and would deliver reasons subsequently, with the consequence that I could deal with costs of the proceedings immediately. I stated that if one, or both, of the parties preferred it, I would deliver, and publish my reasons, in the usual way, and then adjourn the proceedings to hear any argument on costs. I noted that the latter course would result in some delay as, even if I were able to deliver written reasons before the end of the Law Term, any argument on costs would be unlikely to be listed, for hearing, until the new Law Term.

17. After obtaining instructions, each party asked that I state the principal order I proposed to make, so that the argument on costs could be heard immediately.

18. After a short adjournment, I returned, and stated that I proposed to order that Sandra’s Statement of Claim be dismissed. I indicated that I would deliver my reasons for doing so as soon as I was able. These are my reasons.

19. The parties then made submissions on how the burden of costs should be borne. I shall refer to the evidence relied upon on the issue of costs later. Having heard the submissions, I reserved my decision on how the costs should be borne, and stated that, at the conclusion of the reasons for judgement, I would deal with, and make, orders in regard to the burden of costs and how those costs should be calculated.

20. During the course of the argument on costs, commendably, the parties were able to agree that the Defendant should pay Sandra’s costs, calculated on the ordinary basis, of the part of the Statement of Claim relating to the production of the deceased’s Will, that were incurred up to and including 4 December 2017. They also agreed that those costs were not to include the filing fee of the Statement of Claim. That order will be made.

Some uncontested formal matters

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

22. It is also not in dispute that the proceedings relating to the family provision order were commenced within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased): s 58(2) of the Act.

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

24. They also agreed that there is no property that may be designated as notional estate of the deceased, so that it is only necessary to refer to the estate of the deceased.

Background

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

26. The deceased was born in August 1924. She married her husband, Edward James Rogers, in October 1951, but he predeceased her, having died in July 1989, aged 67 years. The children of their marriage were Michael, who was born in August 1952, and who is now 66 years old; Terence, who was born in September 1954, and who is now 64 years old; Robert, who was born in June 1956, and who is now 62 years old; Sandra, who was born in January 1958, and who is now 60 years old; Eric, who was born in December 1959, and who is now 59 years old; and Clare, who was born in February 1963 and who is now 55 years old.

27. The deceased’s Will provided:

“4.    I give to my Executor the [property at Thornleigh] and direct that my Executor is to permit my son TERENCE PATRICK ROGERS (known as TERRY) to live in the property and to have the use of household items and that neither the property nor the household items are to be sold without TERRY’S consent while he continues to reside in the property and comply with the conditions set out below.

5.   TERRY must:

(a)   pay the premiums on any insurance policies taken out by my Executor on property and its contents;

(b)   pay the rates, taxes and other outgoings in respect of property;

and

(c)   keep property in repair to the reasonable satisfaction of my Executor.

6.   On the death of TERRY or if he ceases to reside on a fulltime basis in the property or if he has not, in the reasonable opinion of my Executor, complied with his obligations under clause 5 above then the property and the household items will form part of my residuary estate my Executor may, in his discretion, exercise his power of sale.

7.   In addition to the powers given to them by this Schedule, my Executor may exercise the powers given to him by law and the rest of this will.

8.   If either or both of my grandson ZACHARY VAUGHAN SCHULTEJOHANN and my granddaughter IMOGEN JADE SCHULTEJOHANN has not attained the age of 21 years at the date of my death then I give to each of them as has not attained age 21 years the sum of $1,000.00.

9.   I GIVE the residue/whole of my estate to such of my sons MICHAEL EDWARD ROGERS, TERENCE PATRICK ROGERS, ROBERT JOHN ROGERS, ERIC FRANCIS ROGERS and my daughter CLARE FRANCES SCHULTEJOHANN as shall survive me and if more than one then in equal shares absolutely.”

28. The deceased did not state the reasons why she had not included Sandra, as a beneficiary, with her other children, in the Will. However, at the hearing, there was produced an original letter, dated 29 January 2011 (Ex. 1), which I am satisfied was in the handwriting of the deceased, and bearing her signature, (matters that Sandra was not prepared to admit through her counsel), and addressed to Michael, which dealt with the reasons why she had made the Will in the terms that she had. (Although the letter was not produced until the hearing, reference had been made to the part of it relating to Sandra in one of Michael’s early affidavits.)

29. The letter was addressed to Michael, who is a solicitor, and commenced with the statement “Having given this a lot of thought...”. The deceased, first, described the reasons why she was making the provision for Terence:

“Terry has lived here since your father’s death; he has paid his way generously over this time, sent me on a trip to Ireland, had the extra care of me after illness and accidents, and without him now I would certainly be much certailed [sic] in getting out”.

30. In relation to the other children named in the Will, the deceased wrote:

“[E]ach and every one of you have been so thoughtful to me over the years, shared time with me, and especially you and Clare, who have shared your wonderful children. I hope everyone will understand why I have made this Will as I have; my love and thanks to you all for being such generous, loving children.”

31. Relevantly, so far as Sandra is concerned, the letter stated:

“The greatest sadness to me is the estrangement from Sandra. However it is her wish and she has made it plain on several occasions she just does not want to have anything to do with me. For this reason she has no part in my Will.

…

My daughter, Sandra Mary Rogers, having declared quite publicly in 1989, that she no longer had any wish to see me or have anything to do with me, has no claim whatever on my Estate.”

32. (It was the first paragraph that had been identified, verbatim in Michael’s affidavit. Surprisingly, it might be thought, there was no evidence that Sandra had sought to inspect the original letter prior to the hearing.)

33. It will be noted that the letter was written a few years prior to her death, and more than 20 years after the deceased had last spoken with Sandra. Another 5 years were to pass before the deceased’s death, during which time there was no change in the relationship between the deceased and Sandra and there was no contact between them.

34. It was conceded that the contents of the letter, generally, were accurate, and there were no parts of it with which Sandra, by her counsel, expressed any disagreement. (Counsel did make submissions on the evidence suggesting the reasons why Sandra was justified in her conduct.)

35. In my view, the letter identified the deceased’s freely made, and considered, choice of beneficiaries.

36. No other Will made by the deceased was placed into evidence. However, Sandra gave evidence that in 1989, at the time of the death of the deceased’s husband, the deceased had told her that she and her husband had made mirror wills that left the entire estate of each to the other, and, if the other did not survive, divided the estate equally between the six children.

37. In the Inventory of Property attached to, and placed inside, the Probate document, the deceased’s estate, at the date of death, was disclosed as having an estimated, or known, value of $1,436,150. The estate was said to consist of the real estate at Thornleigh (“the Thornleigh property”) ($1,400,000), money in bank ($927), and shares ($12,221). (I have omitted, and shall continue to omit, any reference to cents in amounts to which I refer. This will explain any apparent mathematical miscalculations.)

38. Although no liabilities of the estate are identified in the Inventory of Property, in a letter dated 26 July 2017, Michael wrote to Sandra’s solicitors, Glass Goodwin, stating that there was a credit card debt of the deceased ($16,500) and funeral expenses of $15,300.

39. (The Thornleigh property is described as “an older style 4 bedroom timber home that requires a fair amount of work and may be a possible knock down. It is situated on a fantastic level block over 1200 sqm, which lends itself to a potential subdivision”.)

40. In an affidavit affirmed on 18 October 2018, Michael disclosed that there had been no distributions of cash and that the shares had not been sold. In an affidavit affirmed on 7 November 2018, he stated that the estate comprised the Thornleigh property ($1,350,000 - $1,425,000) and the shares in public companies ($38,445).

41. At the hearing, the parties agreed that the Court should estimate the value of the Thornleigh property at $1,387,500 (the mid-point in the range). It follows that the gross value of the estate, at the date of the hearing, is estimated to be $1,425,945.

42. The parties agreed if the Thornleigh property is sold, the costs and expenses of sale would be about $30,000.

43. Michael also stated that the estate was required to pay, or reimburse, some of the siblings for payments made to satisfy, certain liabilities, being the credit card debt ($15,021), funeral expenses ($13,525), and a “catering account” ($1,814), as well as to pay disbursements incurred to obtain Probate ($2,032 and $45). These expenses total $32,438.

44. On the second day of the hearing, the parties also accepted that it would be necessary to purchase a bronze memorial plaque for the deceased ($2,000): T93.23 – T93.49.

45. There was also no dispute that the pecuniary legacy of $1,000 gifted to two of the deceased’s grandchildren, Zachary and Imogen, should be paid to each, in accordance with the terms of the deceased’s Will.

46. Michael stated that he did not intend to make a claim for executor’s commission or to charge professional fees for the services provided to the estate in applying for Probate, other than for the disbursements referred to above.

47. It follows that the estimated value of the net estate of the deceased, at the date of hearing, after deducting the estimated costs and expenses of sale of the Thornleigh property if sold ($30,000), the expenses outlined above ($32,438), the cost of the bronze memorial plaque ($2,000), and the two pecuniary legacies ($2,000), is $1,359,507. As is obvious, this estimate does not take into account the costs and disbursements of the proceedings.

48. The only persons described as eligible persons, within the meaning of the Act, in Sandra’s notice of eligible persons filed 2 March 2018, are the children of the deceased. Only Sandra has made an application for an order under the Act. Each of Sandra’s siblings raised his, or her, financial circumstances. Each gave evidence about the nature of his, or her, relationship with the deceased and the reasons why he, or she, respectively, has a legitimate claim on the bounty of the deceased.

49. In an affidavit sworn on 6 November 2018, Mr G Kolokossian, the solicitor acting for Michael, gave evidence, not the subject of dispute, that he had “caused notice to be given pursuant to Schedule J rule 1.4(2), by serving on each of [Robert, Terrence, Eric, Clare and Michael] by post/email a Notice of Claim”. The correspondence enclosing the notice of claim, annexed to the affidavit, is dated 2 March 2018.

50. If each of the deceased’s children was not a witness in the proceedings, the evidence given by Mr Kolokossian may not have been sufficient proof of service of the notice by post. However, as the question of service does not arise, nothing more need be written, other than to suggest to legal representatives, generally, that if service of a notice required under the Act is by post, or email, it may avoid any concerns regarding service, if there were an acknowledgement of service requested from the recipient, and there was evidence of the acknowledgement given.

51. The Court may not disregard the deceased's freedom of testamentary disposition and the preferable disposition to the beneficiaries, regardless of her, and his, financial position or needs, respectively: s 61 of the Act. It is necessary, when considering whether the deceased breached her duty, to take into account the duty to her other children as well as to Sandra.

52. The notice of claim has not been served on two grandchildren of the deceased, as beneficiaries, named in Clause 8 of the Will. However, as the legacy is to be paid to each of them, and as it is not suggested that either is an eligible person, I am satisfied that service of the notice upon each is unnecessary.

Costs and Disbursements of the Proceedings

53. Usually, in calculating the value of the deceased's estate and notional estate available from which an order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant, if successful, normally would be entitled to an order that his, or her, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate (and/or notional estate) of the deceased, while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the proceedings, normally will be entitled to an order that his, or her, costs, calculated on the indemnity basis, should be paid out of the estate.

54. As Basten JA put it in Chan v Chan [2016] NSWCA 222 at [54]:

“In considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs.”

55. In an affidavit sworn by Ms L Gidley, solicitor, Sandra’s costs and disbursements, calculated on the ordinary basis, from the commencement, to the conclusion, of the proceedings (a two day hearing), inclusive of GST, were estimated to be $69,906. (Sandra’s costs, calculated on the indemnity basis, were estimated by Ms Gidley, to be $82,406.)

56. Ms Gidley also stated that Sandra had paid $38,000, on account of costs and disbursements to the date of hearing. (At the hearing, it was confirmed that there was no conditional costs agreement between Sandra and her solicitors.)

57. In an affidavit sworn on 26 February 2018, Mr J Glass, solicitor, had estimated Sandra’s costs and disbursements, calculated on the ordinary basis, of the part of the case relating to the production of the deceased’s Will, to be $7,195.

58. In an affidavit sworn on 5 October 2018 (wrongly dated in the body of the affidavit as 5 March 2018), Mr Kolokossian stated that the costs and disbursements, calculated on the indemnity basis, of Michael, as the Defendant, were estimated to be $78,604, inclusive of GST. He did not refer to the costs and disbursements that had already been paid out of the deceased’s estate, because Michael had informed the Court, in his affidavit affirmed 18 October 2018, that “there is an agreement with Gerard Malouf & Partners that all legal fees and disbursements will be paid, on an indemnity basis, at the conclusion of the matter”.

59. At the hearing, counsel for Michael, initially, stated at T6.08 – T6.33:

“…if it came to a situation where the Plaintiff was not successful but costs did not follow the event, then the Defendant would be asking your Honour to make an order that the, firstly, and I just say this in very general terms at the moment, these are my instructions, that the property be sold and that costs be paid from the sale of the Thornleigh property. Then the balance be held by the defendant to purchase a property so that Terence Rogers would live there…[for] the balance of his life, so to maintain the integrity of the will to the best… [of his] abilities.”

60. When the Court asked whether the beneficiaries had any capacity to pay costs, in order to avoid the sale of the Thornleigh property, or the balance of the costs, if costs were ordered to be paid by Sandra, counsel responded at T6.35 – T6.38:

“…there would be no agreement by the siblings to equally fund the costs because some of the siblings don't have the means.”

61. On the second day of the hearing, however, Michael’s counsel refined this submission, stating at T95.09 – T95.15:

“My instructions are that their intention is if there's a shortfall between costs recovered, say on the ordinary basis, and solicitor/client costs, then [the beneficiaries] will come to an arrangement between themselves to pay that difference. Yes. There's no definitive arrangement in terms of what siblings would pay what portion of it but the intention is to preserve the deceased's obvious testamentary disposition and for the siblings to bear those costs.”

62. It will be necessary to return to the issue of costs later in these reasons.

63. For the purposes of the determination of the family provision proceedings, the parties agreed that if an order were made that all of the costs ($155,705) were to be paid out of the deceased’s estate, the value of the estate out of which a family provision order would be made was estimated to be $1,203,803.

Sandra’s Claim

64. In the written submissions provided by counsel for Sandra, it was put that Sandra had identified her primary “needs” to be: supplementing her superannuation; funds to complete work currently being carried to the home in which she and her de facto partner, Peter Geelan-Small, live; an amount for a new car; and a fund to protect to her against the exigencies of life. It was then submitted, in writing, that the “appropriate” provision for Sandra is that she receive one-sixth of the residue of the estate on the termination of Terence’s interest in the Thornleigh property.

65. Sandra deposed that she and Peter needed to continue with renovations to their home, and that the costs would be about $90,791. She estimated the costs for the car at $25,000.

66. Sandra admitted, in cross-examination, that it was not her wish to force the sale of the Thornleigh property so that she could have immediate provision: T51.40 – T51.42. However, as will be read, the order that had been sought by her at the hearing was not the order that she had sought when she served an Offer of Compromise, to which reference will be made, about 5 weeks before the hearing.

67. It was submitted, on behalf of Michael, that the Court should infer from Sandra’s submission that, at the date of the hearing, she had no immediate need for provision for her maintenance or advancement in life. On that basis, as well as other bases, he submitted that her claim should be dismissed.

68. I should mention that s 65(2) of the Act provides for the ways in which a family provision order may be made and includes:

1. by payment of a lump sum of money,

2. by periodic payments of money,

3. by application of specified existing, or future, property,

4. by way of an absolute interest, or a limited interest only, in property,

5. by way of property set aside as a class fund for the benefit of 2 or more persons,

6. in any other manner the Court thinks fit.

69. Section 66(1) provides that the Court may, in addition to, or as part of, a family provision order, make orders for, or with respect to, all or any of the following matters for the purpose of giving effect to the family provision order, including “(g) the sale of or dealing with property of the estate, (h) the disposal of the proceeds of any sale or other realising of property of the estate … and (l) any other matter the Court thinks necessary”.

70. Section 66(2) permits the Court to make “such additional orders as it considers necessary to adjust the interests of any person affected by a family provision order and to be just and equitable to all persons affected by the order”.

71. Thus, it seems to me, that even though the Court, at the time when it is considering the application, must be satisfied that adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the Will of the deceased, if it is so satisfied, it may make such order for provision out of the estate of the deceased as the Court thinks ought to be made, having regard to the facts known to the Court at the time the order is made. That order may require such provision to be paid to the applicant at a later time.

72. Perhaps, what Sandra’s claim, as framed shortly prior to the hearing, reveals, is a desire to be recognised as belonging to the family and of having been a part of the overall life of the deceased. If that is so, it is ironic that she seeks recognition now, when over the last 26 or 27 years of the deceased’s life, she chose not to recognise the deceased.

The Credibility of Witnesses

73. Ultimately, there were not very many factual issues raised in the affidavits. It is, however, necessary to express some views about the evidence.

74. In relation to each of Sandra’s siblings, I accept his, and her, evidence. One reason for so doing is that that evidence was not only credible, but it was not the subject of any real challenge. Indeed, other than Michael, each of the other witnesses was hardly cross-examined at all.

75. To the extent that it was put to each that he, or she, respectively, no longer had a relationship with Sandra, and that each considered the breakdown of the relationship to have been caused by her, I accept the evidence of each. Whilst, of course, I have not forgotten that each has an interest in preserving his, or her, remainder interest in the deceased’s estate, I do not accept that the evidence given by him or her, respectively, was for that reason, or because of the breakdown of the relationship with, or motivated by any desire to punish, Sandra.

76. For the most part, the evidence that each gave was consistent with other evidence given in the case, other than, on a few matters, with the evidence of Sandra. To the extent that there are differences, I prefer the evidence of Michael and the siblings called by him.

77. Some criticism was made of Michael. Questions were asked about a loan made to him by Sandra and the repayment of the loan only after proceedings were instituted against him by her, as well as Sandra having made a professional conduct complaint. I do not accept the criticism made of him, but accept his explanation of the events that occurred at the time.

78. In relation to Sandra, much of her case relies upon what is said to be the conduct of the deceased, and depends upon conversations that Sandra says that she had with the deceased, which conduct and conversations, almost entirely, is not corroborated in any way. The deceased is unable to respond.

79. Michael acknowledged, however, in his affidavit in reply, that the deceased’s beliefs “did not necessarily align with Sandra’s beliefs”. Terence also said that the deceased “may have expressed disagreement” with Sandra’s lifestyle. However, these are hardly startling, or remarkable, admissions.

80. None of the deceased’s children gave evidence of hearing any conversation in which the deceased berated, or criticised, Sandra. Each was cross-examined and, without prevarication, stated that he, or she, had not heard any of the criticisms alleged by Sandra. It was not put to any of them that the deceased had told him, or her, about any of the conversations upon which Sandra relied, or that the deceased had complained to him or her about Sandra as she had asserted. This seems surprising, as it is likely that if there had been criticism expressed by the deceased, one or more of the family would have heard it. It does not appear to have been a family in which the dynamics of the family members were kept private.

81. It follows that Michael, who might have wished to challenge Sandra’s evidence, has been limited in his ability to directly contradict Sandra.

82. Whelan J in Webb v Ryan [2012] VSC 377 at [22], referred to the difficulties in assessing evidence in a case such as this, stating:

“An important matter which may arise in these kinds of cases is the difficulty of assessing evidence concerning things allegedly said by a person who is dead. The court can never be certain it knows all the circumstances, and more often than not one may be sure that the court knows few of them. It is impossible to hear what the other party to the conversation, the deceased, says about it. There is a significant risk of reconstruction. There are dangers in relying on evidence of what may have been a casual observation made to a person who at the time had no reason to remember the exact words used. In the light of these concerns, a substantial burden is placed upon an applicant whose case relies upon such evidence. Such evidence must be very carefully examined.”

83. I also remember that in Richardson v Armistead [2000] VSC 551, Hansen J, at [36], stated that:

“In such circumstances the self-interest of a claimant to give evidence favourable to his or her case is obvious... in such a case much caution is exercised before the evidence of the claimant is accepted.”

84. There is also the statement of Pembroke J in Wilcox v Wilcox [2012] NSWSC 1138 at [10] which encapsulates the concerns about Sandra’s evidence:

“… the need for caution is even greater in relation to uncorroborated statements attributed to a deceased person where the deceased is, or would have been, the only person in the world capable of rebutting the accuracy of what is attributed to him or her. Here again, self-interest is an important factor reinforcing the need for caution and sometimes scepticism.”

85. Sandra gave evidence that “over time”, she had become estranged from the deceased; it was her belief that this “was not due to a single incident but to an accumulation of her emotional abuse to me and her derogatory commentary on my lifestyle”. She gives some examples of incidents that are said to have led to the estrangement. These included the deceased’s expectation, upon Sandra’s engagement in about 1981, that Sandra would get married sooner rather than later, and that “you will leave university and, like me, become a full-time housewife once you are married”; the deceased’s expressed disappointment, 5 or 6 years later, that Sandra was not getting married; that Sandra was not preparing herself for marriage, by gathering linen, towels, embroidered table linen, and a “glory box”; disappointment that Sandra was not having any children; and that, in a letter from the deceased in 2007, which was not produced, that Sandra was the cause of trouble within the family.

85. Sandra, in her affidavit affirmed on 2 November 2018, stated that the deceased, “made constant belittling criticisms of my life, my partner and my career” which “was a constant part of our relationship in my young adulthood”; that the deceased had called her “selfish, arrogant, thoughtless inconsiderate, troublesome, churlish and wilful”; and that the deceased had said “‘You’re too modern’, in a disparaging sense, or ‘you question too much’”. Sandra said she was also told that she was “too smart for your own good”. She provided other examples of what the deceased had said.

86. Importantly, as accepted by her counsel, at T98.49 – T99.25, the conversations upon which Sandra relied, were, for the most part, devoid of context. Her evidence of conversations was given in a most generalised way.

87. I have carefully considered the nature of the conversations that Sandra alleges that she had with the deceased and the statements alleged to have been made by the deceased to her. Whilst I am unable to conclude the conversations did not occur, or that the statements were not made, I am unable to accept, from the evidence, overall, the validity of Sandra’s criticisms of the deceased. The failure to provide the context in which the conversations occurred, or the circumstances in which the statements were made, weakens the impact of the evidence relied upon.

88. Sandra regarded as very significant, if not pivotal, in her relationship with the deceased that, at Clare’s wedding reception, in 1989, the deceased did not acknowledge her presence, or speak to her, and that when she approached the deceased, the deceased ignored her. Sandra complained that both she and Peter were ignored. The approach was made by her at the table where the deceased and the children were sitting. Sandra described this as a “public shaming”. In fact, she later stated, in her oral evidence, that the “public shaming” meant “In front of my family, she didn't acknowledge me… at a public event”: T60.31 – T60.43.

89. I have described it as a pivotal incident because Sandra acknowledged that “This event was the final event which prevented [her] for the next … 27 years … from having anything to do with [her] mother”: T61.13 – 61.14. However, it was only one plank of Sandra’s case because she did not suggest that she had otherwise enjoyed a normal loving relationship with the deceased up until then. To the contrary, she suggested that there had existed tension in their relationship for some time.

90. It was not in dispute that on the day, Sandra did not, at any time prior to the wedding reception, approach the deceased. She did not do so at the Church, although she saw her there, or at any time before the deceased was seated at the table at the reception: T58.10 – T58.41. She gave no satisfactory explanation for not having approached the deceased before the time she did so at the reception when, it seems, there was opportunity to do so.

91. Sandra also seemed to blame the deceased for the seating arrangements at the wedding, which involved Sandra and Peter not being seated with other members of the immediate family. She referred to a conversation with Clare, in which Clare was said to have repeated what the deceased had said about this matter. (I shall refer to Clare’s denial of the conversation shortly.)

92. Peter, who was present at the wedding, was not a witness called to give any evidence in Sandra’s case. Bearing in mind its importance, at least in Sandra’s view, and because Sandra said he had also been ignored, he would have been expected to be called to describe what he recollected about the incident and also about what he had observed about the relationship of Sandra and the deceased in the years prior to 1989.

93. There was no explanation for the failure to call him to give evidence on this extremely significant plank on which Sandra heavily relied to explain her subsequent conduct. I have borne the failure to call Peter as a relevant matter in considering the weight to be placed on Sandra’s evidence on this topic.

94. Michael, who attended the wedding, stated that he did not “recall any drama whatsoever involving Sandra” at the wedding. He said that he “was not even aware that this had allegedly taken place and as far as I can recall, the wedding was a very pleasant affair and everyone had a good time”.

95. Terence, who also attended the wedding, did not recall any events deposed to by Sandra or “any member of the family ignoring my sister”.

96. Eric denied that Sandra was “publicly shamed” at the wedding. He pointed out that the time when the wedding took place, was a difficult time for the deceased (having lost her husband a few weeks before).

97. Clare did not respond to the part of Sandra’s affidavit going to the event at the wedding. However, Clare did state that it was she, not the deceased, who had organised the seating arrangements, and that the deceased had not influenced her, in any way, in this regard. She also explained the reasons why she had done so, being that “Sandra’s issues with the family already existed by this stage and I felt that Sandra would enjoy the wedding more if seated with some of our other friends”. She also denied the conversation with her that Sandra had asserted. I accept Clare’s evidence.

98. Sandra, as stated above, alleged “emotional abuse” by the deceased. The following passage, at T64.22 – T64.42, of evidence demonstrates a somewhat egocentric view:

“Q. You say that her failure to contact you was a form of emotional abuse?

A. Yes.

HIS HONOUR

Q. What about your failure to contact her? Was that also a sign of emotional abuse to her?

A. I had asked different--

Q. No, could you answer my question. If you say that her failure to contact you was a form of emotional abuse the question that I'm putting to you is if that's correct was your failure to contact her in all the years after 1989 a form of emotional abuse to her by you?

A. No, I wouldn't accept that.

Q. Why is that? Why is there a difference?

A. Because when I tried to find out her attitude towards me through my siblings, sorry, they would give various answers which indicated to me that either they weren't interested or it was somehow not important and it wasn't - from that I understood it wasn't important to my mother so it wasn't - she wasn't hurt by it.”

100. The last answer, of course, is inconsistent with what the deceased had written describing her estrangement from Sandra as “the greatest sadness to me”. It is also inconsistent with what is an undisputed fact, namely that each of Sandra’s siblings encouraged Sandra to contact the deceased. Indeed, each of them gave evidence that the deceased encouraged him, or her, to invite Sandra to family functions.

101. Terence stated that the deceased “would always encourage us to invite Sandra to family functions as this would have been a great way for her to be reintroduced into the family … she [believed] that this would have been a good opportunity to reconcile the relationship…”. Eric corroborated this evidence. Michael stated that “at no stage throughout my mother’s life did she ever suggest that we not invite Sandra”.

102. Considering the closeness of the relationship of each of the deceased’s other children with the deceased, it would be highly unlikely that any would have encouraged such contact, or would have invited Sandra to family functions at which the deceased was to attend, as they regularly did after 1989, until about 2005, if the deceased had not wanted Sandra to be there, or if the deceased had said she would not accept an invitation if Sandra was attending the event. This type of conduct hardly suggests that the deceased was not concerned.

103. It is also consistent with some evidence given by Clare that the deceased had said to her that she did “not know what else to do to mend the relationship”.

104. Bearing in mind the evidence, overall, it is difficult to accept Sandra’s evidence that “My mother never said or acted in any way towards [me] that demonstrated that she wanted to reconcile her relationship with me”. Whilst it may be true that there was no direct oral contact by the deceased, I am satisfied that there was indirect contact made through the other children.

105. Sandra’s reference to having “to find out her attitude towards me through my siblings” appears in her affidavit evidence of having “sought support from Robert and Clare” and saying to them separately “What’s going on with Mum’s attitude towards me. Can you ask her to be more reasonable?”. That hardly demonstrates a desire to ascertain the deceased’s attitude.

106. Furthermore, Michael’s counsel put to Sandra that the conversations regarding marriage and children ought to have been considered in the context of the deceased being a woman with strong Catholic family values; who had been born in the 1920s; who held conservative, traditional, Catholic views on marriage, and having children; and that consequently, what the deceased said was the product of her own upbringing, education, and generation. Sandra agreed: T56.42 – T56.46; T57.21 – T57.24.

107. However, despite that admission, Sandra maintained that the deceased’s views were, even in the 1980s, “unreasonable”: T56.48 – T56.50. Some might regard as unreasonable, Sandra’s rejection of the deceased, because, amongst other things, the deceased had expressed those views, which did not accord with Sandra’s.

108. Even accepting that what Sandra relies upon did occur, in relation to marriage and children, bearing in mind when the conversations are said to have occurred, I find it difficult to conclude that they provide a reasonable basis for Sandra choosing to have no contact between 1989 and the deceased’s death, over 25 years later.

109. In this regard, as was stated by Holland J in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, at 540:

“[P]erfect harmony between parent and child is in the nature of things not to be looked for … Differences of outlook between different generations is not exceptional, it is the general rule…”

110. Furthermore, there was some evidence, given by Sandra, which suggests that the deceased’s desire for Sandra to have children was no more than a hope that she would be able to meet those grandchildren. Sandra gave evidence that the deceased had said “If you and Clare don’t have children soon, your children will never know their grandmother”. It would appear that Sandra did contemplate such a reason for the deceased’s comments.

111. Furthermore, it was accepted by Sandra, in answers to questions from the Bench, at T66.09 – T66.27, that despite what Sandra said were criticisms of her lifestyle and the fact that she was not getting married, or having children, the deceased had not rejected Sandra in the period between about 1984 and 1989, being the first years that Sandra and Peter commenced to live together. She admitted that, during these years, the deceased and she had remained in contact with each other.

112. Indeed, in her first affidavit, Sandra had acknowledged that “[W]hile my father was alive, my parents, on occasion, visited Peter and me. I can recall them coming to the house we purchased at Blaxland a few times. At these times, my mother said to me: ‘You should be married’”.

113. Sandra gave evidence of Clare having lived with her then partner, now husband, Dieter, prior to their marriage. There is no evidence that the deceased had expressed similar adverse comments about Clare’s lifestyle or domestic arrangements.

114. I consider that Sandra’s statement that the deceased not having responded to her at Clare’s wedding, was a “public shaming” to be a gross exaggeration, and an over-reaction to what is said by her to have occurred. Again, relying upon this event as a cause for having no contact with the deceased for such a long period of time, in my view, was unreasonable conduct by Sandra.

115. Sandra’s evidence is also inconsistent with the description of the deceased given by some of the other witnesses. Michael, for example, described her as a “very caring and loving person who treated … her children equally”. Robert described her as a “very loving, caring and thoughtful person who liked the family to be together”. Terence, who lived in the Thornleigh property with the deceased for the longest period (his whole life except for about 18 months) and who was her carer in the deceased’s last years, said that the deceased was “never heavy-handed” and that she was “always very supportive of all of her children’s academic achievements”. He stated that she “never attempted to dictate to any of her children what they should do. She was always a loving person who provided her opinion”. She may also, as Sandra stated, have “had very definite views about what was appropriate for women to do with their lives”: T56.29 – T56.31.

116. Robert also gave evidence that the deceased had known that Sandra had “published a paper on Indian women. My mother said words to the effect of ‘I am so proud she has researched and published a paper’” and that the deceased was “always very proud of Sandra’s academic achievements”. Terence corroborates this description of the deceased and notes that Sandra was the first daughter in the family to attend university. Eric corroborated the evidence generally.

117. There are other aspects of evidence that do not assist Sandra and are relevant to the determination of her case for a family provision order.

118. It was not in dispute that in the early 1990s, the deceased had heart by-pass surgery. Each of her siblings contacted Sandra and encouraged her to get in touch with the deceased. Sandra refused to do so, stating that it was the deceased who should contact her, after the surgery “when she feels well again as we have many matters to discuss”.

119. Terence gave evidence, about which he was not cross-examined, that despite Sandra being contacted by all of the siblings, “to notify her that her mother was unwell … she still did not make any attempt to visit Mum, to enquire about her well-being, or to even take the opportunity to bridge the gap”. This conduct does not suggest that Sandra attempted rapprochement. It also demonstrates somewhat unloving, and insensitive, conduct towards the deceased by Sandra.

120. Eric gave evidence, about which he was not cross-examined, of a conversation with Sandra on one occasion, when he had asked Sandra whether she wanted to be kept up to date about the deceased’s health, she responded, saying “only when she’s dead”.

121. During the course of submissions, I described this as a “callous and hurtful thing to say” (T97.33 – T97.41). I do not, even now, having re-read all of the evidence, find that description to be inaccurate, whether the statement made by Sandra was communicated to the deceased or not.

122. Sandra’s evidence in reply to Eric’s evidence was that she had said “I need to be notified when Mum is dead”. This response to the question he had asked really does not assist Sandra or otherwise do her credit.

123. Sandra acknowledged that she never took any steps to contact the deceased after having made it known to her siblings prior to the deceased’s open-heart surgery that she was willing to accept the deceased contacting her: T64.00 – T64.04. She stated that “[B]ecause of my mother’s conduct towards me it became my standard response, when invited to a family function [to say] ‘I will not attend if Mum is to be present because she will not communicate with me’”. This response was made in relation to birthday celebrations, Christmas Day, Mother’s Day, and New Year’s Eve celebrations.

124. On one occasion, at a birthday party for Robert, the deceased was unexpectedly present. Sandra who had been invited, attended but then left after being informed, by Robert, that the deceased was there.

125. Clare gave evidence that the day after, Sandra had telephoned and they had argued about the fact that the deceased had attended the birthday, having been taken there by Clare. The conversation ended when Sandra said words to the effect “in my mind, mum is dead … I never want to hear anything about her anymore”. (Clare said that she did not repeat the conversation to the deceased.) That the conversation had not occurred was not put to Clare in cross-examination.

126. Robert also gave evidence that on one occasion, having told Sandra that he and his wife would not attend Christmas at her home, suggested that as they were going to the deceased’s home, Sandra should come there. Sandra refused this invitation also.

127. When Eric was married, in 2004, Sandra refused to attend the wedding because the deceased would be present and because “I do not want Peter [her partner] or I to be publicly shamed and ignored as we were at Clare’s wedding”. Upon what she based the view, bearing in mind 15 years had passed since Clare’s wedding, was not the subject of evidence by her.

128. Sandra stated that because of her relationship with the deceased and with her siblings, over many years, she “did not have the opportunity to provide assistance in my mother’s care and because of the absence of communication from my mother or any of my siblings, I was not aware of any need for assistance which my mother may have had”. Bearing in mind her conduct, and the statements set out above, the sentiment expressed in her evidence does not ring true.

129. Furthermore, as Clare wrote in her affidavit:

“Sandra made no attempt to find out if any assistance was needed and had she done so, she would have known that mum did require care and assistance. Mum was receiving care services when she died and the remaining siblings all participated in assisting with her care as required. Sandra could have contributed towards this, but she did not.”

130. In February 2017, Sandra “discovered” that the deceased had died in November 2016. None of her siblings had informed her of the death of the deceased. She says she was unable to attend the deceased’s funeral as she did not know she had died.

131. Each of the siblings confirmed that he, or she, did not inform Sandra because of her having been estranged from the deceased for such a long time before the deceased’s death. It is difficult to understand why Sandra complains of not having been informed, or of being unable to attend the deceased’s funeral, when for over 25 years before the deceased’s death, she had refused to have any contact with the deceased, despite encouragement to do so.

132. When asked what steps she had taken to attempt to reconcile the relationship with the deceased, she seemed to suggest that “leaving the door open … as long as [the deceased] contacted [her] would be an attempt to try and reconcile”: T62.26 – T62.48. In any event, there was only evidence of one such occasion when that had occurred. I do not agree.

133. Whilst Sandra acknowledged receipt of a letter in about 2007, from the deceased, she says that it was “an abusive letter in which I was blamed for all the conflict within the family”.

134. I tend to accept the evidence of Terence, who stated that Sandra responded by returning the letter sent by the deceased, with abusive comments in the margin. Perhaps, its return to the deceased explains why Sandra was not able to produce the original of the letter at the hearing.

135. (Although Clare gave evidence of a conversation with the deceased in which the deceased referred to having written “letters” to Sandra and not having received any response from her, the latter denied having received any other letters. I do not rely upon the statement made by the deceased to Clare in the circumstances since there is no way of ensuring its accuracy. In any event, I am not sure that to do otherwise would assist in the determination of the case.)

136. There was no evidence that Sandra had sent the deceased any Christmas, birthday, or Mother’s day, cards; or that she had written to the deceased (other than in response to the 2007 letter from the deceased to her); or that she had informed the deceased where she was living after 1989 (although the information may have been given through her siblings with whom Sandra had contact). On the other hand, the deceased had lived in the Thornleigh property and continued to do so after 1989. Sandra could easily have contacted her there had she chosen to.

130. For her part, it appears that the deceased was not prepared to contact Sandra, directly, other than on the occasion that she sent a letter in 2007. However, as previously stated, the conduct of Sandra’s siblings, in inviting Sandra to attend family events at which the deceased was to be present, having been encouraged by the deceased to do so, demonstrates an indirect attempt at reconciliation. As I have stated, it is unlikely that without the acquiescence of the deceased, the invitations would have been made to Sandra. Also, there was no evidence that the deceased had refused to attend any of the family celebrations because Sandra was to attend.

131. There can be little doubt that Sandra believed that her unmarried status and not having children was a cause of the estrangement. She gave evidence of what were said to be the negative attitudes on the part of the deceased. That belief may provide some basis for a potential source of pain and anguish on Sandra’s part. Yet, in family relationships, hurts are inflicted or suffered, sometimes consciously, and sometimes unconsciously. Regrettably, this is part of family life.

132. I am unable to accept, however, that the difference in views complained about by Sandra provides a sufficient, or reasonable, justification for her having completely rejected the deceased after 1989, as she did. In this regard, based upon all of the evidence, I think it is more likely than not, that it was Sandra who chose to place distance between herself and the deceased and it was she who maintained that distance between them.

133. But, no matter how the estrangement was caused, it is clear that there was a complete, and permanent, estrangement between Sandra and the deceased. The fracture of their relationship did not occur at a time close to the deceased’s death; it was not of short duration; nor was it one where there appears to have been a rupture to an otherwise long and loving relationship. The alienation of one from the other existed for a long period – in fact for almost half of Sandra’s life.

134. The abandonment of the relationship may have been mutual, in the sense that there was no direct contact between the deceased and Sandra after 1989. It does not appear to have been brought about by a specific incident, although the incident at Clare’s wedding was one of some significance for Sandra. There was no vitriol on either side with the other once it began, because their relationship was non-existent. No suggestion of unreasonable conduct on the part of the deceased is advanced in the years that followed 1989 for the same reason.

135. What can be concluded from the evidence is that Sandra was prepared to, and continued to, maintain it. She was not prepared to meet the deceased unless a request was made by the deceased for a meeting. In my view, the dominant reason for the failure of attempts at reconciliation was Sandra’s inflexible, and unforgiving, nature. I do not accept, as Sandra has asserted, that the fault was all on the side of the deceased. So far as Sandra was concerned, her conduct included the rejection of any attempt by each of her siblings to assist in mending the relationship by having Sandra and the deceased meet at a family event.

136. Also, this is not a case, unlike some, in which an applicant for provision, prior to the estrangement, made personal, or financial, sacrifices in caring for the deceased during her life, or in contributing to the estate before the estrangement.

137. Unlike Sandra’s criticisms of her, the deceased in her signed handwritten letter to Michael, simply reflected on Sandra’s conduct, about which conduct there can be no dispute. The deceased, from the grave, did not condemn Sandra, but simply pointed to the undisputed fact that they had not been in contact, principally, at Sandra’s behest, for many years. For over 25 years prior to the deceased’s death, Sandra had maintained a complete, and unequivocal, severance of ties with the deceased.

138. In her letter to Michael, the deceased appears to have weighed the testamentary claims upon her, in an apparently sensible way, and by considering all of her children. It appears to be a case where the deceased did “expose to the world the delicate, and perhaps indefinable, relations that exist within [her] family circle” or where she “felt quite justified from [her] own standpoint in limiting [her] family benefit, and for reasons which sufficiently appealed to [her], but which no one else could mentally measure or appreciate”: Nock v Austin (1918) 25 CLR 519; [1918] HCA 73, per Isaacs J, at 527.

139. In my view, the deceased’s expressed view was understandable and must be given weight. Of course, it does not relieve the Court of its duty to engage in the inquiry directed by the Act, but it does cast light on the relationship between the deceased and Sandra, at least from the deceased's perspective.

140. Yet, the apportionment of blame for the breakdown of the relationship is not the critical question in determining the result of the proceedings; what is the critical question is the application of community standards as to the propriety of Sandra’s exclusion from any share of the deceased’s estate. The Court is required by the Act to approach the matter (in the case of a long estrangement), by an evaluation of all the relevant factors revealed by the evidence in the particular case.

141. It is, of course, necessary to remember what has been written by White JA in Sgro v Thompson [2017] NSWCA 326, at [86]:

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

Estrangement

149. On the topic of estrangement, in Underwood v Gaudron [2014] NSWSC 1055, I set out the principles at [230] – [233]. An appeal was dismissed: Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269, with the summary of principle not disturbed on appeal.

150. That summary of the principles was referred to by Ward JA (as her Honour then was) (and with whom Meagher JA agreed) without any dissent, in Burke v Burke (2015) 13 ASTLR 313; [2015] NSWCA 195 at [95]. It was also referred to, more recently, in Nicholas v Tubb [2016] TASSC 53 at [21], by Holt AsJ, with approval, in Toscano v Toscano [2017] NSWSC 419, by Robb J, at [90], and by Kunc J in Condello v Kim [2018] NSWSC 394, at [190]. I repeated the principles, most recently in Sreckovic v Sreckovic [2018] NSWSC 1597.

151. I repeat what I wrote in that case:

“On the topic of the relationship between an applicant and the deceased, Campbell JA (with whom Giles JA and Handley AJA agreed) noted, in Hampson v Hampson [2010] NSWCA 359, at [80]:

‘The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad-brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge.’

Because, in this case, there is a factor raised by the deceased (and by Mary and Kathryn) that bears on the quality of the relationship, being that Helen was estranged from the deceased for about 20 years before death, it is necessary to set out some other general principles which should be remembered:

(a)    The word ‘estrangement’ does not, in fact, describe the conduct of either party. It is merely the condition that results from the attitudes, or conduct, of one, or both, of the parties to the relationship. Whether the claim of the applicant on the deceased is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case: Gwenythe Muriel Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Deceased) v Lathwell [2008] WASCA 256, at [33].

(b) The nature of the estrangement and the underlying reason for it is relevant to an application under the Act: Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361, at [88] - [94]; Foley v Ellis. In Palmer v Dolman, Ipp JA, after a review of the cases, observed, at [110], that:

‘... the mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement under the Act.’

(c) There is no rule that, irrespective of a Plaintiff’s need, the size of the estate, and the existence or absence of other claims on the estate, the Plaintiff is not entitled to ‘ample’ provision if he, or she, has been estranged from the deceased. The very general directions in the Act require close attention to the facts of individual cases.

(d)    The court should accept that the deceased, in certain circumstances, is entitled to make no provision for a child, particularly in the case of one ‘who treats their parents callously, by withholding, without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility’: Ford v Simes [2009] NSWCA 351, at [71], per Bergin CJ in Eq, with whom Tobias JA and Handley AJA agreed.

(e)    As was recognised by the New South Wales Court of Appeal in Hunter v Hunter (1987) 8 NSWLR 573, at 574 - 575, per Kirby P (with whom Hope and Priestley JJA agreed):

‘If cases of this kind were determined by the yardstick of prudent and intelligent conduct on the part of family members, the appeal would have to be dismissed. If they were determined by the criterion of the admiration, affection and love of the testator for members of his family, it would also have to be dismissed. Such are not the criteria of the Act. The statute represents a limited disturbance of the right of testamentary disposition. It establishes a privilege for a small class of the immediate family of a testator (the spouse or children) to seek the exercise of a discretionary judgment by the Court for provision to be made out of the estate different from that provided by the testator’s will.’

(f) Even if the applicant bears no responsibility for the estrangement, its occurrence is nevertheless relevant to the exercise of the court’s discretion under s 59(2) of the Act to make a family provision order where the jurisdictional requirements of s 59(1) are met. That the applicant had no relationship with the deceased for some years, and that there did not, therefore, exist between them the love, companionship and support present in normal parent/child relationships, during those years, is a relevant consideration: Keep v Bourke [2012] NSWCA 64, per Macfarlan JA, at [3].

(g)    The poor state of the relationship between the applicant and the deceased, illustrated by the absence of contact for many years, if it does not terminate the obligation of the deceased to provide for the applicant, may operate to restrain amplitude in the provision to be made: Keep v Bourke, per Barrett JA, at [50].

(h) Where the applicant has been estranged from the deceased, the application of the Act requires that the estrangement be appraised and its causes considered. In addition, s 60(2)(m) permits the court to consider the character and conduct of the applicant at the second stage of the process. Care should be taken not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of raw emotions experienced at the time: Foley v Ellis, at [102].

In Andrew v Andrew, Basten JA endorsed what I had said about estrangement, much of which is set out above, as follows:

‘As explained by the primary judge, the term “estrangement”, which was aptly applied, does not describe conduct, but the condition which results from the attitudes or conduct of one or both parties. It is a term sometimes applied to the “natural” process of separation of child from parent, which often peaks in adolescence, but may well continue into adult life, sometimes without resolution of the underlying tension. At least when kept within reasonable bounds, the negative consequences of such a process should arguably be ignored or at least not given disproportionate significance when assessing the expectation that a parent will provide for a child whose condition in life is financially disadvantageous, when compared with other claimants on the testator’s conscience.’

His Honour added:

‘The cases referred to above support the proposition that in the case of estrangement between an applicant and a testator, attention may need to be paid, so far as the evidence permits, to the apparent causes of the estrangement. Thus, if the immediate cause is overt hostility on one side, it may be necessary to apportion blame (or at least responsibility) for that situation.

…

Without rejecting the analysis as inappropriate, there are at least limits on how far a court should go in seeking justification for the absence of “love and support” from a child for his or her parent. It goes without saying that some children feel greater love and affection for their parents than do others and that some children provide higher levels of support for their parents in their aging than do others. These are all considerations relevant to an assessment of the adequacy of the provision made by the testator for the proper maintenance, education and advancement of a child. However, whether in a particular case it would warrant the exclusion, or virtual exclusion, of the child from benefit under the mother’s will, is another question. The appellant did not seek, in her evidence, to blame her mother for the breakdown in their relationship. Although the causes thus remained obscure, reticence, which may limit damage to her relationships with her siblings, is not to be discouraged. Although estrangement was no doubt painful to the mother, such conduct was surely less reprehensible than open hostility.

…

Although the mother’s reaction was entirely understandable and might have been shared by many parents, I am not persuaded that it justified the reduction of the daughter’s share in the estate from that which might otherwise have been expected to a largely nominal sum. In these circumstances, the appeal should be allowed, and provision made for the appellant.’”

152. Acrimony or estrangement does not necessarily destroy the bonds of parental ties: Diver v Neal [2009] NSWCA 54 at [27].

153. The comments of Sackville AJA in Foley v Ellis [2008] NSWCA 288, at [102], should also be remembered:

“… Care should be taken, however, not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of raw emotions experienced at the time.”

154. As Allsop P (as his Honour then was) wrote in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308, at [7]:

“Inevitably in such a case, the rhetorical question is asked: Why should a mother leave anything to an adult daughter who has drifted away over a long period and become estranged? The word ‘should’ in the question embodies various suppressed [premises] based on parental, filial and moral duties. If no articulation can be made as to why any parental duty recognised by society has been breached, why should the court intercede and interfere with the expressed testamentary wish?”

155. That is a question that must be asked in these proceedings.

The Statutory Scheme

156. Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. It is the mandatory legislative imperative in s 59 of the Act that drives the ultimate result, and it is only if the Court is satisfied that the provision is neither adequate nor proper that consideration is given to whether to make a family provision order (s 59(1)(c)). Only then, may “the Court… make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made” (s 59(2)). The Act stipulates no automatic entitlement to provision and the deceased’s Will applies unless a specific application is made to, and acceded to, by the Court.

157. In Sgro v Thompson, the Court of Appeal also made clear that what is required is a multi-faceted evaluative approach to the question posed by s 59 of the Act as to whether adequate provision was made for the proper maintenance, education or advancement in life of an applicant.

158. The parties were largely agreed as to the principles to be applied on this topic so it is not necessary to re-state them in detail. (I have dealt with them in many cases, one of the most recent of which is Sreckovic v Sreckovic.)

159. For the benefit of the parties, I shall repeat the relevant principles.

160. Relevantly, other than by reference to the provision made by the Will of the deceased, s 59(1)(c) leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for an applicant’s proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the Court to the provision made for the applicant in the Will of the deceased, on the one hand, and to the requirement for maintenance or advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance or advancement in life of any applicant.

161. In Grey v Harrison [1997] 2 VR 359 at 366-367, Callaway JA observed:

“There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight.”

(k)    whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so

289. There is no evidence that Sandra was being maintained by the deceased in the years immediately prior to the deceased’s death. Indeed, Sandra acknowledged that she had been financially independent of the deceased for many years prior to her death.

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

290. There is no person with any liability to support Sandra. However, it is noted that she is in a stable and long term relationship with Peter. No doubt, this prompted her counsel to submit that they “are co-dependent and mutually support each other”.

(p)    any other matter the court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered

291. There are no other matters that I consider relevant.

Determination

292. Having established eligibility, and that the proceedings were commenced within time, the question for determination is whether, at the time the Court is considering the application, adequate provision for the proper maintenance or advancement in life, of Sandra, has not been made by the Will of the deceased.

293. What is written below should be read as a continuation of what has been written above. In addition, I have regarded the factual matters written above, so far as they are relevant, to the circumstances set out below.

294. Sgro v Thompson (White JA at [86], with whom McColl JA agreed at [1]; and Payne JA agreed at [6]) makes clear that what is required by s 59(1)(c) of the Act is an evaluative judgment as to the adequacy of provision for the applicant’s proper maintenance, education or advancement in life having regard to all the relevant circumstances, not merely the parties’ financial circumstances; that inquiry includes taking account of matters such as the competing claims on the deceased’s testamentary bounty and the family circumstances.

295. As stated, the test established by s 59 of the Act has regard not only to what is “adequate” by reference to the applicant’s needs, but also to what is “proper” in all the circumstances of the case. Whether the deceased ought to have made provision for Sandra is influenced by an assessment of her circumstances, including the nature and extent of her present and reasonably anticipated future needs, the size and nature of the deceased’s estate, the relationship between her and the deceased, including her conduct towards the deceased, the competing claims of the other children of the deceased, as other persons with a legitimate claim upon the bounty of the deceased and as the chosen objects of the deceased’s bounty, and the circumstances and needs of each: see, for example, McCosker v McCosker, at 571–572; Singer v Berghouse, at 210; Vigolo v Bostin, at [16], [75], [112]; and Tobin v Ezekiel (2012) 83 NSWLR 75; [2012] NSWCA 285 at [70].

296. This is a case where, for over 25 years of their joint lives, there was no relationship at all between Sandra and the deceased. I have endeavoured to set out earlier, as much as I reasonably can, the circumstances regarding their relationship. There is no suggestion that Sandra made any contribution whatsoever to the building up of the deceased’s estate or to the deceased’s welfare during that period.

297. I have also set out the financial resources of Sandra and Peter. Their relationship has lasted for about 34 years. Sandra is secure in accommodation; she has a capital sum available to her for exigencies of life (as does Peter); a reasonably large amount of superannuation; a block of land which, it seems, is used occasionally as a retreat, and, which, if sold, the proceeds could be used to assist in paying for the renovations.

298. One cannot, and must not, ignore the claims of each of the competing claimants, who the deceased chose as the recipients of the whole of the remainder estate after Terence’s right of residence in the Thornleigh property is terminated. I am more than satisfied that each of them, particularly Terence, throughout his, and her, joint life with the deceased, was a loving and dutiful child, and that each assisted the deceased to the best of his, and her, ability. Each supported the deceased, and the deceased supported each, emotionally and, in other ways, as reflected in the deceased’s letter. Compared with Sandra, each has a far superior, and powerful, competing claim that the deceased, herself, recognised.

299. There can be little doubt that the deceased considered, and understood, her obligation to all of her children. Respect must be given to the judgment of a competent will maker as to what provision is adequate for a person’s proper maintenance and advancement in life if it can be seen that she, or he, has given due consideration to the claims on her, or his, estate. This recognises that the deceased was better placed to make such a judgment and her superior position must be recognised.

300. In any event, it is difficult not to agree with the deceased’s view of what was adequate and proper provision for Sandra, having regard to the relevant circumstances. The deceased was entitled, notwithstanding the fact that Sandra was one of her children, to regard Sandra as a person undeserving of any benefit from her estate. In all the circumstances of this case, it would not be appropriate for this Court to interfere with her testamentary intentions.

301. Taking into account all of the material before me, I am not satisfied that, considered at the time of this application, the deceased’s Will does not make adequate provision for the proper maintenance and advancement in life of Sandra.

302. The circumstances stated above provide the reasons for the order dismissing Sandra’s Statement of Claim.

The Costs of the Proceedings

303. Although the parties had requested the Court to not deal with the issue of costs as part of the reasons, consequent upon the order dismissing the proceedings, they proceeded to make submissions on costs.

304. Counsel for the Defendant tendered a letter dated 3 April 2018, to which was annexed a copy of an Offer of Compromise: Ex. 3. The terms of the offer made were that Sandra should receive a lump sum, out of the deceased’s estate, of $30,000. As the Offer of Compromise did not provide otherwise, and as it did provide for the payment of money, it was taken to provide for the payment of that lump sum within 28 days after acceptance of the offer: Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), rule 20.26(8).

305. Had Michael’s offer made in his Offer of Compromise been accepted, since it proposed an order for provision in favour of Sandra in respect of the claim, she would have been entitled to an order for her costs in respect of the claim, assessed on the ordinary basis up to the time when the offer was made: UCPR rule 42.13A(2).

306. Counsel for Sandra did not dispute that the offer made was an "offer of compromise" within the meaning of the UCPR, or that the offer made was one that could truly be called a genuine compromise. Nor did counsel dispute that the Offer of Compromise specified the period of time within which the offer was open for acceptance: UCPR rule 20.26(2)(f). Finally, it is clear that the offer, if accepted, was capable, upon the making of an order in accordance with it, of bringing the proceedings to an end.

307. There is no evidence of any response to the offer. Indeed, the Court asked counsel for Sandra whether he wished to tender any correspondence passing between the solicitors, following the service of the Defendant’s Offer of Compromise, which would demonstrate any desire, on Sandra’s part, to negotiate a resolution of the proceedings. After instructions were taken, no correspondence was tendered.

308. Counsel for Michael also tendered a copy of an Offer of Compromise dated 5 October 2018 made by Sandra: Ex. 4. The offer was made to resolve the proceedings upon the basis that Sandra receive out of the deceased’s estate, a lump sum of $100,000, plus her costs, calculated on the ordinary basis, interest upon any part of the lump sum that was unpaid, calculated from the 90th day after the day of entry of orders, at the rates provided for unpaid legacies, by s 84A(3) of the Probate and Administration Act 1898 (NSW). The offer was open for acceptance until 4:00 p.m. on 2 November 2018.

309. It must have been obvious to Sandra that the acceptance of her offer by Michael, in all probability, would have resulted in the sale of the Thornleigh property.

310. The terms of Sandra’s offer were very different from the way in which it was submitted, at the hearing, that the Court should deal with her claim, namely that she should receive one-sixth of the Thornleigh property on termination of Terence’s right of residence.

311. In Chapple v Wilcox, at [27], in dealing with claims for a family provision order, Basten JA stated:

“Whether or not an unsuccessful applicant should be allowed to litigate without expense to the estate will depend on a variety of circumstances. There is always a discretion in the Court when making an order pursuant to s 98 of the Civil Procedure Act 2005 (NSW). The discretion conferred on the Court by that provision is subject to the rules of court (s 98(1)) and thus to r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW), which provides that costs will follow the event unless it appears to the Court that some other order should be made. That rule is not disapplied in relation to family provision orders. Nor should applicants for such orders have any expectation that, as a general rule, the discretion will be applied so as to exempt them from liability for costs incurred by an estate in the case of an unsuccessful application. In some cases applicants will already be beneficiaries of the estate and may thus have some incentive to ensure that the costs of litigation are kept within tight bounds. However, that is not always the case. Where an applicant is entirely unsuccessful, an order that he or she should pay the costs of the estate may well be the appropriate order.”

312. UCPR rule 42.15A, which is relevant because of the Offer of Compromise, relevantly provides:

“42.15A Where offer not accepted and judgment no less favourable to defendant

(1) This rule applies if the offer is made by the defendant, but not accepted by the plaintiff, and the defendant obtains an order or judgment on the claim no less favourable to the defendant than the terms of the offer.

(2) Unless the court orders otherwise:

(a) the defendant is entitled to an order against the plaintiff for the defendant's costs in respect of the claim, to be assessed on the ordinary basis, up to the time from which the defendant becomes entitled to costs under paragraph (b), and

(b) the defendant is entitled to an order against the plaintiff for the defendant's costs in respect of the claim, assessed on an indemnity basis:

(i) if the offer was made before the first day of the trial, as from the beginning of the day following the day on which the offer was made, and

(ii)...”

313. In Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368, Spigelman CJ, Beazley and McColl JJA, wrote, at [15]:

“... Rules 42.14, 42.15 and 42.15A ... provide that, when the relevant costs rule is engaged, a party is entitled to indemnity costs from a specified time (usually one day after an offer of compromise is made), ‘unless the court orders otherwise’....”

314. In circumstances where a proper offer of compromise has been made, but not accepted, and that party has obtained a judgment no less favourable than the terms of the offer, there is a clear onus on the other party to persuade the Court that indemnity costs should not be ordered.

315. In this case, it was accepted that the onus was on Sandra to persuade the Court that indemnity costs should not be ordered. She must demonstrate the basis on which an order should be made denying Michael’s entitlement to indemnity costs.

316. Kunc J in Bates v Cooke (No 2) [2014] NSWSC 1322 (which was cited, with approval, by White J in AB v Curry (No 2) [2015] NSWSC 1209 at [4], and by the Supreme Court of Victoria in Briggs v Mantz (No 2) [2014] VSC 487 at [33]-[35], and Smith v Whittaker [2016] VSC 287 at [36]) wrote at [33]:

“Taking into account the language of r 42.15A, a party seeking to persuade the Court to order otherwise must identify some feature or features of one or more of the proceedings, the claim, the offer (including, for example, when it was made) and the order or judgment obtained by the successful party which provide a rational basis for the Court to displace what the rule specifies is the costs order to which ‘the defendant is entitled’.”

317. (An appeal from the substantive judgment of Kunc J was dismissed in Bates v Cooke (2015) 14 ASTLR 22; [2015] NSWCA 278. Nothing was written by the Court of Appeal about the costs judgment.)

318. In Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391, McColl JA repeated an observation of Gleeson CJ in New South Wales Insurance Ministerial Corporation v Reeve (1993) 42 NSWLR 100, in relation to an earlier version of UCPR rule 42.15, that it is impossible exhaustively to state the circumstances in which the discretion to depart from the prima facie rule might be exercised, and then wrote, at [48]:

“…The mere fact that it was reasonable for the litigant to take the view that he or she did in rejecting the offer is not enough to displace the rule … However that does not mean that reasonableness of the rejection is an irrelevant consideration …”. (Citations omitted.)

319. In Meres v Meres (No 2) [2017] NSWSC 523 at [43]-[44], I wrote:

“From the authorities, it appears the question for determination regarding the effect of what is said to be an Offer of Compromise involves a two-stage process. The first stage is to enquire whether the offer made is an ‘Offer of Compromise’ at all, within the meaning of the UCPR. This will depend, in part, on whether it satisfies the formal requirements laid down by UCPR rule 20.26. It also depends, in part, on whether the offer made is one that can truly be called a ‘compromise’.

If the court concludes that the offer which is made is an ‘Offer of Compromise’ within the meaning of the Rules, and that the offer made is one that can truly be called a compromise, then UCPR rule 42.15A(2) operates to establish a ‘default’ position, relevantly that, if the defendant obtains a judgment no less favourable than that which the defendant had offered to accept, then indemnity costs would follow. It is then that the second stage of the process arises, in that the court can ‘otherwise order’. The court will ‘otherwise order’ if it is persuaded that is appropriate, in the interests of justice, that the ‘default’ position ought not apply: Manly Council v Bryne (No 2) [2004] NSWCA 227, per Campbell JA, at [10]; Evans v Braddock (No 2) [2015] NSWSC 518, at [52].”

320. Counsel for Sandra submitted that an “otherwise order” should be made because Michael’s affidavit included the statement:

“On the information available to me and to the best of my belief, I am not aware of any beneficiaries which [sic] will or are likely to raise financial, material, or other circumstances, as a competing claimant.”

321. It was not until after the Offer of Compromise had lapsed that each of the beneficiaries gave evidence of his, and her, financial resources and competing claim on the bounty of the deceased. In other words, it was submitted that Sandra’s failure to accept the offer was not unreasonable because, during the period within which the offer was open for acceptance, she was ignorant of the true facts regarding the competing financial claim of each beneficiary.

322. There are a number of answers to this submission. First, there was no evidence that the failure to accept the offer in the Offer of Compromise was based on Michael’s statement quoted above. I am unable to conclude that Sandra’s refusal had to do with the statement previously made by Michael. Had it been otherwise, one would have expected there to have been evidence of attempts to negotiate with Michael’s lawyers following the subsequent affidavits by each beneficiary being served.

323. There is no evidence of Sandra attempting to negotiate until her Offer of Compromise served about 5 weeks before the hearing. Even then, the terms of her offer, in all probability, would have resulted in the sale of the Thornleigh property. Her failure to engage in communications regarding settlement prior to the service of her Offer of Compromise was not adequately explained.

324. As Kunc J wrote in Rogic v Samaan (No 2) [2018] NSWSC 1573, at [36]:

“It is now beyond argument that the parties’ obligations under s 56 of the Civil Procedure Act 2005 (NSW) … include giving proper attention to the possibility of settling litigation.”

325. Second, as stated earlier, even if there were no competing financial claims by any of the beneficiaries, that is only one of the matters the Court would have had to consider in relation to Sandra’s claim for a family provision order. At a hearing, the Court would not disregard the interests of each, as a beneficiary and a chosen object of testamentary bounty. I have earlier referred to s 61 of the Act.

326. In this regard, it was not suggested, during the hearing, that Sandra was unaware of the close, and loving, relationship that each of her siblings had with the deceased. The evidence of each, subsequently given, amplified the position of each vis-à-vis the deceased. That matter ought to have been relevant to Sandra’s decision whether to allow the Offer of Compromise to lapse.

327. Third, although Michael’s Offer of Compromise was served relatively early in the proceedings, when the evidence was not complete, Sandra, by that date, had seen a copy of the Will of the deceased and was also aware of the nature and value of the deceased’s estate. It would have been obvious that the continuation of the proceedings, and the resultant costs that would be incurred, could result in the sale of the Thornleigh property with the consequence that the right to reside therein, provided to Terence under the deceased’s Will, would not take effect. Sandra did not dispute his role in the life of the deceased, and her ultimate submission on the provision that ought to be made for her, demonstrates an acknowledgement that the terms of the Will, so far as it related to his entitlement to remain living in the Thornleigh property, was proper.

328. Next, Sandra would have been well aware of her own financial resources and the financial resources of Peter. They were hardly in straitened financial circumstances. They were self-sufficient. They had been, and were, in a long, and subsisting de facto relationship.

329. Also, Sandra would have been well aware of the undisputed fact, namely that she had had no contact with the deceased for over 25 years before the deceased’s death and that she had lived totally independently, of the deceased, emotionally and financially, for that period. Rejecting the invitation to family events because the deceased was going to be present at the event was a conscious, and deliberate, choice that Sandra made on more than one occasion.

330. Fourth, until the submissions were served by her counsel, one can only conclude that Sandra was seeking an order that would provide immediate financial benefit. Then, shortly before the hearing, in her counsel’s submissions, a more modest claim, at least as to when the provision would be satisfied, and one that may not have required the sale of the Thornleigh property, was advanced.

331. Fifth, the offer contained in the Offer of Compromise was clearly intended to avoid the continuation of the litigation. The offer, whilst not substantial, was not a walk-away offer, that is one "where the offeror expresses its willingness to settle on the ground that each party bears its own costs": Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) per McColl JA at [50] (with whom Gleeson JA and Sackville AJA agreed). The offer made in Michael’s Offer of Compromise did not call for Sandra to capitulate. She would have received some provision out of the estate of the deceased and her costs, calculated on the ordinary basis. The offer, albeit of a relatively small payment in satisfaction of Sandra’s claim, demonstrated a sufficient element of compromise.

325. Finally, I have considered that as part of the broad discretionary power given to the Court, an “otherwise order” may be made if the application of the default position would lead to, or cause, injustice, or would not meet the justice of the case.

326. It was put by counsel for Michael that Sandra’s claim was hopeless and that she should have realised that. He submitted that Sandra’s case could not have succeeded on the basis of the evidence that was then available. Although he did not specifically refer to it, in Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397, at 401; [1988] FCA 202 at [21], Woodward J, had written that it is appropriate to award indemnity costs whenever:

“… it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established laws….”

334. There was no evidence given about the nature of the advice given to Sandra regarding the prospects of success of her proceedings. She certainly had retained experienced, and competent, legal practitioners, to act for her throughout the proceedings. They would have been unlikely to have advised her that there was little risk, and probably much to be gained, in making the claim because even if the claim failed, she would be very likely to get her costs out of the estate, or that she would not be significantly out of pocket if a costs order was made if she failed. Undoubtedly, they would also have advised her of the possible consequence of refusing the Offer of Compromise.

335. However, as stated earlier, whilst she did not succeed, I am unable to conclude that she had no prospects of success. The pursuit of a weak claim will not usually, on its own, justify an order for indemnity costs, provided the claim was at least arguable. It seems to me that Sandra’s case was barely arguable, albeit that it carried a high risk of failure. Such claims, which have the prospect of dissipating the estate of the deceased, should not be encouraged.

336. Yet, it is also necessary to remember what Gray J wrote in Hamod v State of New South Wales (2002) 188 ALR 659, at 665; [2002] FCA 424 at [20]:

“Indemnity costs are not designed to punish a party for persisting with a case that turns out to fail. They are not awarded as a means of deterring litigants from putting forward arguments that might be attended by uncertainty. Rather, they serve the purpose of compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when the Court takes the view that it was unreasonable for the party against whom the order was made to have subjected the innocent party to the expenditure of costs.”

337. Naturally, I have remembered that Sandra’s claim was one for a family provision order and what was written by Gaudron J in Singer v Berghouse (albeit in the context of a security for costs application). I also remember that proceedings for a family provision order involve elements of judgment and discretion beyond those at work in most inter partes litigation: Jvancich v Kennedy (No 2) [2004] NSWCA 397; Re Sherborne Estate (No 2); Vanvalen v Neaves; Gilroy v Neaves (2005) 65 NSWLR 268; [2005] NSWSC 1003. This leads to claims for a family provision order, in some ways, raising issues with respect to costs that differ from those in other litigation and there being more flexibility where there has been an unsuccessful claim.

338. Yet, the terms of the offer made in Michael’s Offer of Compromise, bearing in mind the nature and value of the estate, and the liabilities to be paid, evidence of which had been given by Michael in his affidavit of 21 February 2018, suggested that unless one, or more, of the beneficiaries was, or were, prepared to contribute, the Thornleigh property would have to be sold. Contribution would be more unlikely if Michael’s costs were increased by the matter proceeding to a fully contested trial, with the result that there would be no choice, in order to pay costs, for the Thornleigh property to be sold.

339. As I wrote in Meres v Meres (No 2), at [47]:

“The Court is increasingly alert to the dangers of encouraging litigation, and discouraging settlement of such claims, at an early stage, if costs are allowed out of the estate. Where possible, all minds should concentrate upon the need, regularly, to address the strength, or otherwise, of the case, the benefits and detriments of advancing particular arguments, and the wisdom of searching for alternative forms of resolution of the dispute, whether by compromise or even abandonment: See, albeit in another context, Pearson & Ors (The Joint Administrators of Lean Brothers International (Europe)) v Lehman Brothers Finance SA & Ors [2010] EWHC 3044 (Ch), per Briggs J, at [12].”

340. Parties in all litigation, whether plaintiff or defendant, should always realise the potential financial expense involved and should not disregard what might be called the “usual rules as to costs” in the hope that the Court will exercise its discretion in his, her, or its favour. Legal practitioners would be well advised to ensure that the party represented understands, and appreciates, the potential costs consequences of unsuccessful litigation.

341. In all of these circumstances of this case, weighing up all of the matters upon which submissions have been made, including the making of the two Offers of Compromise, together with the other features to which I have referred, as well as the legal principles to be applied, I am of the view that the overall justice of this case is in favour of the application of the usual rule that Sandra should pay Michael’s costs upon the basis set out in UCPR rule 42.15A(2). An “otherwise order” should not be made.

342. The Court:

1. Orders that the Statement of Claim be dismissed.

2. Orders, subject to the order in Paragraph (c), that the Plaintiff pay the Defendant’s costs, calculated on the ordinary basis, incurred prior to 4 April 2018; and pay the Defendant’s costs, calculated on the indemnity basis, after that date.

3. Orders that the Defendant pay the Plaintiff’s costs of the part of the proceedings relating to the production of the Will of the deceased, up to, and including, 4 December 2017, (excluding the filing fee of the Statement of Claim).

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

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