Russell v NSW Trustee and Guardian - [2013] NSWSC 370

Supreme Court

New South Wales

Medium Neutral Citation: Russell v NSW Trustee and Guardian [2013] NSWSC 370
Hearing dates: 19 March 2013
Decision date: 18 April 2013
Jurisdiction: Equity Division
Before: Hallen J
Decision:
(a) Order that the Plaintiff's Summons be dismissed.
(b) Make no order as to the Plaintiff's costs to the intent that he will bear his own costs of the proceedings.
(c) Order that the Defendant's costs, calculated on the indemnity basis, be paid, or retained, as the case may be, out of the estate of the deceased.

Catchwords: SUCCESSION - FAMILY PROVISION - The Plaintiff seeks a family provision order out of the estate of the deceased under the Succession Act 2006 as a person who was a member of the household of which the deceased was a member and partly dependent on the deceased - The Defendant is the executor to whom Probate granted - Nearly whole estate left to charity - Dispute as to Plaintiff's eligibility and as to factors warranting the making of the application - Whether to make a family provision order - If order for provision made, how the burden of that provision should be borne - Plaintiff not eligible and no factors warranting the making of the application - No need to determine whether and if so, what family provision order should be made.
Legislation Cited: Civil Liability Act 2002
Family Law Act 1975
Family Provision Act 1982
Inheritance (Provision for Family and Dependents) Act 1975 (UK)
Property (Relationships) Act 1984
Probate and Administration Act 1898Succession Act 2006Succession Amendment (Family Provision) Act 2008
Cases Cited: Amaca Pty Ltd v Novek [2009] NSWCA 50
Alexander v Jansson [2010] NSWCA 176Allardice, In re; Allardice v Allardice (1909) 29 NZLR 959
Anasson v Phillips (NSWSC, 4 March 1988, unreported)
Andrew v Andrew [2012] NSWCA 308
Barlevy v Nadolski [2011] NSWSC 129
Bartlett v Coomber [2008] NSWCA 100
Benney v Jones (NSWSC, 13 February 1990, unreported)
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Brown v Faggoter [1998] NSWCA 44
Churchill v Roach [2002] EWHC 3230; [2003] WTLR 779
Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Cormick; Re [1984] HCA 79; (1984) 156 CLR 170
Curran v Harvey [2012] NSWSC 276
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89
Dix (dec'd), Re; Gully v Dix [2004] 1 WLR 1399
Evans v Levy [2011] NSWCA 125
Fede v Dell'Arte [2010] NSWSC 1113
Fiorentini v O'Neil [1998] NSWCA 79
Foley v Ellis [2008] NSWCA 288
Fry v Lukas; Brown v Fry; Estate of Honey; Application of Fry [2011] NSWSC 1329
Fulop Deceased, Re (1987) 8 NSWLR 679
Gardiner v Gardiner (NSWSC, 28 May 1998, unreported)
Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Gray v Insurance Corporation of British Columbia (1987) 46 DLR 269
Graziani v Graziani (NSWSC, 20 February 1987, unreported)
Hakim, Re Estate of; Simons v Permanent Trustee Co Ltd [2005] NSWSC 223
Kay v Archbold [2008] NSWSC 254
Keep v Bourke [2012] NSWCA 64
Kembrey v Cuskelly [2008] NSWSC 262
Kingsland v McIndoe (1989) VR 273
Jenkins v Livesey (1985) AC 424
Lumsden v Sumner [2012] NSWSC 1440
Markulin v Drew (NSWSC, 12 August 1993, unreported)
McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566
Mcgrath v Troy [2010] NSWSC 1470
McKenzie v Baddeley [1991] NSWCA 197
Maio v Sacco [2009] NSWSC 413
Mayfield v Lloyd-Williams [2004] NSWSC 419
Munro v Lake (NSWSC, 8 February 1991, unreported)
Palaganio v Mankarios [2011] NSWSC 61
Penfold v Perpetual Trustee [2002] NSWSC 648
Petrohilos v Hunter (1991) 25 NSWLR 343
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
Porthouse v Bridge [2007] NSWSC 686
Puckridge, Deceased, In the Estate of (1978) 20 SASR 72
Sammut v Kleemann [2012] NSWSC 1030
Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100
Santos v Santos [1972] Fam. 247; [1972] 2 WLR 889
Simmons v Pizzey [1979] AC 37
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Skinner v Frappell [2008] NSWCA 296
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Stiles v Joseph (NSWSC, 16 December 1996, unreported)
Stott v Cook (1960) 33 ALJR 447
Tsivinsky v Tsivinsky [1991] NSWCA 269
Verzar v Verzar [2012] NSWSC 1380
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Wagstaff v Wagstaff (NSWSC, 6 November 1991, unreported)
Walker v Walker (NSWSC, 17 May 1996, unreported)
Wilcox v Wilcox [2012] NSWSC 1138
Wolff v Deavin [2012] NSWSC 1315
Wright v Canadian Group Underwriters Insurance Co (2002) BCCA 254
Category: Principal judgment
Parties: Tim Russell (Plaintiff)
NSW Trustee & Guardian (Defendant)
Representation: Counsel:
Mr M Thompson (Plaintiff)
Mr L Ellison SC (Defendant)
Solicitors:
Gerard Malouf & Partners (Plaintiff)
NSW Trustee & Guardian (Defendant)

File Number(s): 2011/212912

Judgment

The Nature of the Claim

HIS HONOUR: These reasons relate to proceedings commenced by the Plaintiff, Timothy Russell, who applies for a family provision order under Chapter 3 of the Succession Act 2006 ("the Act") upon the basis that he is a person who was a member of the household of Norman Frederick Bunter ("the deceased"), and who was wholly, or partly, dependant upon the deceased at that, or other, particular time. 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 ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is an order made by the court, under Chapter 3, in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person.

The Plaintiff commenced the proceedings by Summons filed on 30 June 2011, that is, within the time prescribed by s 58(2) of the Act (not later than 12 months after the date of the death of the deceased).

The Defendant named in the Summons is the NSW Trustee & Guardian (formerly the Public Trustee of New South Wales), the executor appointed in the deceased's Will to whom Probate was granted.

Formal Matters

The following facts are uncontroversial.

The deceased died on 11 August 2010. He was then aged 90 years.

The deceased left a Will that he made on 17 June 2002, Probate in common form of which was granted, by this Court, to the Defendant, on 27 June 2011. The deceased left a pecuniary legacy of $200,000 to a friend, Hilton Shallala, and the remainder of his estate to be divided equally between five named charities. No provision was made for the Plaintiff, and he was not referred to, otherwise, in the deceased's Will.

The deceased's estate, including assets in New South Wales and in Queensland, as disclosed in the Inventory of Property attached to the Probate document, was disclosed as having a gross value of $7,681,266. Liabilities of $15,449 were also disclosed leaving a net estate, at the date of death, of $7,665,817. (I have omitted any reference to cents and shall continue to do so. This will explain any apparent errors of calculation disclosed.)

The Defendant has estimated the value of the deceased's estate, at the date of hearing, at $7,638,372. Liabilities of the estate (other than the costs and disbursements of the proceedings) are estimated to be $51,100, leaving a net estate (excluding costs and disbursements of the proceedings) with a value estimated to be $7,587,272.

The parties agree that the pecuniary legacy payable to Mr Shallala should be paid to him and that the legacy should not bear part of the burden of the provision, if any, that is made for the Plaintiff. (The principal submission for the Defendant is that the Plaintiff's proceedings should be dismissed.)

The Defendant is entitled to make a claim on the estate for commission on both capital and income and intends to make such a claim. Capital commission is claimed on the realisation of the asset and has been estimated, in total, to be approximately $95,000 of which about $20,000 has been charged, leaving estimated capital commission to be $75,000. The commission payable on income earned is charged at the rate if 5.25 per cent per annum on the amount of income earned by the estate during the period of administration. There is no estimate of the commission payable on income.

There may be additional costs and expenses incurred on the sale of unrealised assets, as well as a liability for GST, which have not, as yet, been calculated.

In calculating the value of the actual estate, finally available for distribution, the costs of the proceedings should be considered, since the Plaintiff, if successful, normally, will be entitled to an order that his costs be paid out of the estate of the deceased, whilst the Defendant, as executor, irrespective of the outcome of the proceedings, normally, will be entitled to an order that its costs be paid out of the estate.

The Plaintiff's solicitor has estimated the Plaintiff's costs and disbursements of the proceedings, including counsel's fees, calculated on the ordinary basis, to be about $79,848 (inclusive of GST and upon the basis of a two day hearing). Calculated on the indemnity basis, the estimated costs of the Plaintiff are said to be $84,091.

The Defendant's solicitor has estimated the Defendant's unpaid costs and disbursements of the proceedings, including senior counsel's fees, calculated on the indemnity basis, to be $58,500 (inclusive of GST and upon the basis of a two day hearing).

The parties accepted, for the purposes of the hearing, that I should determine the Plaintiff's application upon the basis that the estimated value of the net distributable estate, after the payment of the pecuniary legacy and the estimated legal costs and expenses of each of the parties, will be about $7.3 million at the date of hearing, excluding the Plaintiff's costs, and about $7.225 million if the Plaintiff obtains an order for costs and disbursements to be paid out of the estate. (Even if the value of the estate is less, taking into account expenses that have been identified, but not precisely calculated, the value of the estate is very large.)

The parties agreed that in the event that the Plaintiff is successful, the usual costs orders should be made. The Defendant also agreed that in the event the Plaintiff is unsuccessful, the only costs order that should be made is one providing for the Defendant's costs, calculated on the indemnity basis, to be paid or returned, as the case may be, out of the estate of the deceased.

Of course, depending upon the result of the Plaintiff's claim and any order made as to costs, the costs and disbursements, if payable out of the estate, will be able to be formally assessed, unless otherwise agreed by the parties. It follows that the amounts referred to are estimates only.

The only person who is, or who may be, an eligible person, within the meaning of the Act, is the Plaintiff. (In saying this, it should be noted that the Defendant disputes that the Plaintiff is an eligible person within the meaning of that term in the Act.)

The Defendant did not file any evidence by, or on behalf of, any of the charities. Even so, I am not entitled to disregard the interests of each of the charities as a beneficiary named in the Will of the deceased in the event that the Plaintiff establishes that he is an eligible person and that there are factors warranting the making of an application.

The Statutory Scheme

Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. Although I have set out some of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions in their application.

The wording of the Act is similar to the wording of the former Act. However, it is necessary to remember the warning of Kirby P in Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100, at 76,304:

"Purposive construction of the Act

There is always a danger where a reformed Act borrows heavily upon ideas which previously existed in the common law or in an earlier statute, that lawyers will approach the construction of the Act affected by the previous law. Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 2 NSWLR 475, 478. That danger is but an illustration, in the specialised activity of law, of a universal phenomenon of psychology long established in relation to human perception generally. We tend to perceive what we expect. We expect that with which we are familiar.

There is a particular danger in the case of the Family Provision Act in construing its terms by reference to the law which developed around the Testators' Family Maintenance and Guardianship of Infants Act 1916. That Act was passed in earlier times to govern the entitlements of a testator's family, as narrowly defined. The definition by s 3(1) of that Act confined applications to those made by "the widow, husband or children of such persons". There was no mention in it of former spouses. Doubtless this was because, for the early part of this century, divorce was relatively infrequent and then based upon concepts of matrimonial fault which would make interference in the testamentary disposition of the deceased unlikely. When enacted, the statute was a radical interference in the power of testamentary disposition. That was a significant power over private property, the disturbance of which was regarded as highly exceptional."

Whilst the relevant amendments made by the Act are not as significant to those made by the former Act, it remains necessary to bear his Honour's warning in mind in construing the statutory framework. In doing so, a construction that promotes the purpose, or object, of the Act is to be preferred to a construction that would not promote that purpose or object. In my view, the principles applied by the courts to the former Act continue to apply, except to the extent that the Act otherwise requires.

The former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008. A new Chapter 3 was added to the Act, which dealt with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. Importantly, this should not be taken to mean that the Act confers upon those persons, a statutory entitlement to receive a certain portion of a deceased person's estate. Nor does it impose any limitation on the deceased's power of disposition by his, or her, will. It is only if the statutory conditions are satisfied, that the court is empowered, under the Act, to alter the deceased's disposition of his, or her, estate, to produce a result that is consistent with the purpose of the Act. Even then, the court's power to do so is discretionary.

Eligibility

The key provision is s 59 of the Act. The court must be satisfied, first, that an applicant is an eligible person within the meaning of s 57(1) (s 59(1)(a)). In New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made.

Relevantly, in this case, the Plaintiff relies upon the category of eligibility referred to in s 57(1)(e) of the Act, namely that he is a person who was, at any particular time, wholly or partly dependent on the deceased, and who was, at that particular time, or at any other time, a member of the household of which the deceased was a member.

The first limb that must be established is a relationship of dependence, whether wholly or partly, upon the deceased. It is clear that whole, or partial, dependency does not have to be at the same time as the applicant was a member of the household of which the deceased was a member.

Neither the former Act, nor the Act, contains any definition of the words "dependent on". In general, the word "dependent" connotes a person who relies upon support of another, financial and/or emotional. Dependency is not limited only to the class of persons actually in receipt of financial assistance from the deceased. The authorities reveal that the words are wide enough to cover any person who would naturally rely upon, or look to, the deceased, rather than to others, for anything necessary, or desirable, for his, or her, maintenance and support.

In Amaca Pty Ltd v Novek [2009] NSWCA 50, Campbell JA, with whom other members of the Court of Appeal agreed, said (in the context of a claim under s 15B of the Civil Liability Act 2002):

"45 In my view, the law remains accurately stated by the joint judgment of Sugerman P, Jacobs and Mason JJA in Middleton v Kiama District Hospital [1970] 3 NSWR 136. Their Honours said, at 138:

'Dependency is, moreover, a complex question of fact, which may involve the consideration of many elements, including both past events and future probabilities. It is not necessarily correlative with a legal duty to maintain. A person may in fact be dependent upon another who is under no legal duty to maintain him; and may be so dependent even though there is also in existence one who has legal duty to maintain, eg a husband his wife. On the other hand there may be no dependency in fact upon a person who is under a legal duty to maintain. The existence of the legal duty is, however, one of the many elements to be taken into account in deciding upon a question of dependency in fact. Dependency and actual support are not necessarily correlative. There may be dependency although for the time being there is no actual support. And it seems to us to be possible to figure cases in which there may have been a provision of support, or of some measure of support, at least for a short time or for some special purpose, which did not amount to dependency. The definition of "dependants" does not merely refer to one who was in fact supported by the deceased worker at the time of his death; a "dependant" is a member of the workers' family who was "wholly or partly dependent for support upon the worker at the time of his death". Dependency refers to a state or condition of being dependent, to having been in this relationship to the deceased. As to all the above matters see Hodges v Scotts' Provision (Wholesale) Pty Ltd [1963] WCR 161 and cases there cited.'"

In Skinner v Frappell [2008] NSWCA 296, Young CJ in Eq, (with whom Campbell JA agreed) sitting in the Court of Appeal, wrote, at [85]:

"The matter as to what is required for dependency was fully dealt with by this Court in Petrohilos v Hunter (1991) 25 NSWLR 343. Although dependency is not limited to financial dependency, it does involve one person being beholden to another person for some material, or physical, help or succour, emotional dependency is not enough."

In Petrohilos v Hunter (1991) 25 NSWLR 343, at 346-347, it had been said by Hope AJA:

"I would respectfully disagree with the Master in both respects. The word "dependent" is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependency is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of the language. This accords with what Samuels JA said in Ball v Newey at 491, that "'Dependent' in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed". If the correct view were that the context of the statute requires a limitation of the word to "financial or material" matters as McClelland J said in Re Fulop (dec'd) or to "other forms of dependence analogous to but distinct from financial dependence" as Samuels JA suggested in Ball v Newey (at 491), then surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them. To suggest that, in a money sense they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for their well-being does not make them partly dependent upon her. In my opinion it does. The same considerations apply to a step-child or his or her step-mother when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example by Powell J in Dunn v Public Trustee (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period."

In Re Estate of Hakim; Simons v Permanent Trustee Co Ltd [2005] NSWSC 223, Palmer J, at [42], said:

"Dependence for the purpose of s 6(1)(d), so far as the cases have discussed, is seen as the giving of financial or other material assistance by the deceased over a significant period of time in order to meet a need of the eligible person, with the result that the recipient has come ordinarily to rely upon that assistance."

In McKenzie v Baddeley [1991] NSWCA 197, Priestley JA (with whom Hope AJA agreed) held that the word "partly" in the phrase "partly dependent", whilst a word of "some elasticity", does not mean "substantially", but means "more than minimally", or perhaps, "significantly". Meagher JA commented that "[c]ommon sense requires that certain trivial activities should be disregarded".

A similar view was taken by the Court of Appeal, more recently, in Alexander v Jansson [2010] NSWCA 176 at [13].

The question of dependency, whether whole or partial, is a question of fact.

The second limb of s 57(1)(e) is being "a member of the household of which the deceased person was a member". (The difference between this sub-section and the former Act, which referred to "a member of a household of which the deceased person was a member", is not relevant in the present case. A useful discussion of the difference between the two sections is found in Wolff v Deavin [2012] NSWSC 1315.)

The Act does not state any requisite period of time during which an applicant must be a member of the household of which the deceased person was a member. However, for some period, the applicant and the deceased must be members of the same household.

It is necessary to consider the meaning of the words "member of a household". I do so, remembering that the words must be given their normal meaning in the context in which they appear. There is no definition of the phrase in the Act.

In considering the phrase, I note that the word "household" may be contrasted with the word "house" (which is not used). The word "house" denotes something physical, whereas the word "household" has an abstract meaning.

The Oxford English Dictionary defines "household" as "the inhabitants of a house considered collectively; a group of people (esp. a family) living together as a unit; a domestic establishment (including any servants, attendants, etc.)". In this definition, it is the characteristics and dimension of the domestic relationship that make it a household.

Some discussion of the phrase and the word is to be found in Benney v Jones (NSWSC, 13 February 1990, unreported) per Young J at 22:

"A good list of the Canadian and United States authorities is contained in the decision of Muir v Royal Insurance Company (1981) 125 DLR (3d) 172 in which case is referred the decision of Wawanesa Mutual Insurance Co. v Bell (1957) 8 DLR (2d) 577 in which it was said the word 'household', in the broad sense of a family, is a collective group living in a home acknowledging the authority of a head, the members of which, with few exceptions, are bound by marriage, blood, affinity, or other bond, between whom there is an intimacy and by whom there is felt a concern with, and an interest in the life of all that gives it a unity. It may for example, include such persons as domestic servants and distant relatives permanently residing within it. To some degree they are all admitted and submit to the collective body, its unity and its conditions, particularly that of the general discipline of the family head. They do not share fully in the more restricted family intimacy or interest or concern, but they participate to a substantial degree in the general life of the household and form part of it."

In Re Cormick [1984] HCA 79; (1984) 156 CLR 170, at p 178, Gibbs CJ referred to the term "household" as appeared in section 5(1)(f) of the Family Law Act 1975 (Cth) and said of that term that it was "a wide word which would include any relative, friend or servant, ordinarily living in the house." The word is wider than "family". However, Deane J seemed to be of the opinion that being a member of the household inferred a form of special familial relationship.

Another authority to which reference should be made is Kingsland v McIndoe (1989) VR 273, in which Gobbo J gave a useful discussion of the authorities dealing with the meaning of "member of the household". He said, in summary, that the concept of membership of a household, connotes a degree of continuity and permanency of mutual living arrangements. It also connotes a form of special familial relationship.

McLelland CJ in Eq in Munro v Lake (NSWSC, 8 February 1991, unreported) dealt with the situation where a stepdaughter and her mother stayed with the deceased each weekend for several years. In that case he held that the plaintiff was not a member of the household as he found that there was no continuity and permanency of mutual living arrangements.

In Wagstaff v Wagstaff, (NSWSC, 6 November 1991, unreported), Master Windeyer (as his Honour then was), concluded that the ordinary meaning of being a member of a household requires the member to live in that household. He said that a child living at home with the family is a member of both the family and the household, but upon moving out to live elsewhere, remains a member of the family, but not of the household. Regular visiting, when this is not accompanied by regular overnight stay, is not sufficient.

In Markulin v Drew (NSWSC, 12 August 1993, unreported), Young J concluded that:

"What is to be learnt from the cases, particularly the Court of Appeal decisions in Benney v Jones and Light v Anderson is that one can be a member of a household for the purpose of the Family Provisions (sic) Act provided that there is, in fact, a household and that the Plaintiff has some intimate connection with the householder or another member of the household even though the Plaintiff does not fall into the category of a quasi-wife or quasi-child... However, it all becomes a question of fact in each case."

In Porthouse v Bridge [2007] NSWSC 686, Bryson AJA commented in regard to what constitutes being a member of the household. He said:

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

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

Reference may also be made to some overseas decisions. In the Canadian case of Wright v Canadian Group Underwriters Insurance Co (2002) BCCA 254 (18 April 2002), a decision of the Court of Appeal for British Columbia, Low JA (with whom Finch CJ and Ryan JA agreed) said, at [30] - [37]:

"The insurer argues that the Supreme Court of Canada decided this issue in its favour in Wawanesa Mutual Insurance Co v Bell, [1957] S.C.R. 581; (1957) 8 D.L.R. 92d) 577. In that case, a policy of automobile insurance provided coverage for a replacement vehicle unless the insured party was driving a vehicle "owned by a person of the household of which the insured is a member". At the time of the accident, the insured was driving a car owned by his brother, his own car being in a garage for repairs. The insured had lived in the brother's home for three years, paid room and board, had certain privileges in the home, but no duties or responsibilities within the home, and was engaged to be married and intending to set up a household of his own. The trial judge held that the insured was not a member of his brother's household. The Ontario Court of Appeal and the Supreme Court of Canada upheld that decision.

The insurer here relies upon the distinction made between "of the household" and "in the household" in the Wawanesa case. Although counsel for the insurer does not say so specifically in his written submissions, the insurer's position is really that "of the household" means within a family or other unit of people living together collectively while "in the household" means within a house. In my opinion, the cases do not go nearly that far, as I shall attempt to demonstrate. It seems to me that this argument ignores the use of the word "household" in the exclusionary clause under consideration. The understood definition of the term must have some meaning within the context of the clause. Otherwise, why would the person drafting the policy employ the word?

The trial judge in Wawanesa, Aylen J., (reported at (1956) 5. D.L.R. (2d) 759) at 761-2 sought to find a definition for the term "household". He referred to the definition in The Shorter Oxford Dictionary: "....the inmates of a house collectively; a domestic establishment." He thought the word "establishment" implied "some sort of organization". The 1998 edition of the Canadian Oxford Dictionary defines the term this way: "1. the occupants of a house regarded as a unit. 2. a house and its affairs."

Aylen, J. went on to quote definitions from "Words and Phrases", perm. Ed. Vol. 19, at p.701 including the following:

"Webster gives the primary meaning as '....a household including parents, children, and servants, and it may be lodgers or boarders;' but the cases do not generally sustain the inclusion of the latter. To constitute the family relation between persons living together, it must be permanent and domestic in character, and not temporary. It embraces a household composed of parents, children, or domestics; in short, every collective body of persons living together within one curtilage subsisting in common and directing their attention to a common object."

Applying the above definitions, he concluded that the insured's brother was not a member of the household although he was resident in the household. He said this (at 765):

'There appears, therefore, to be a distinction made in the policy between persons "in" the household and person who are "members of the household". Any special privileges which the insured enjoyed in the household arose because of his relationship to the head of the household, and cannot be used as a means of judging his real status in the household, which was that of a boarder. If the policy was intended to except all residents in the household it should have provided so specifically,....'

In a short oral judgement (found in the same report as the trial judgement) the Ontario Court of Appeal upheld the decision. Laidlaw, J.A. said (at 766) that the insured driver "was in reality a resident member in the household, and the fact that he was the brother of the head of the household does not of itself make him a member of that household" (my emphasis).

The appeal to the Supreme Court of Canada produced three separate judgements all agreeing in the result with the decision in the courts below. Kerwin, C.J.C., with whom Taschereau, J. agreed, simply observed that it was impossible to define the clause in the insurance policy to cover all cases and that, in the circumstances of the case, it could not be said that the lower courts arrived at a wrong conclusion (at 578).

Rand, J., with whom Cartwright, J. agreed, approached the meaning of the term "household" in the following manner (at 578):

'Both the Oxford and the Century dictionaries make it clear that the term "household" is of flexible meaning. In the general understanding it is associated and at times identical with what is connoted by "family" or "domestic establishment". The characteristics of the relations between members of a household are so varied and of such different degree of significance that it is quite impossible to define the word in detailed terms applicable to all cases; and to come to a conclusion as to its scope as it is used in the policy requires that we resort to the ordinary aids to interpretation. The exception is in the language of the company, and if it is ambiguous, the ambiguity must be resolved in favour of the insured; and a material consideration to be taken into account is the purpose intended to be served by it.'"

In Gray v Insurance Corporation of British Columbia (1987) 46 DLR 269, Carrothers JA (with whom Craig J.A. concurred), at 273-274, when dealing with the question whether insurance benefits were available for members of the household of the insured, said:

"I consider the use of the word "member" to be significant. The legislature could have used such words as "tenant", "resident" or "occupant" but it chose the word "member". To my mind to be a "member" of a household implies a constituent, an integral part or a component of a whole, thus supporting the trial judge's concept of a bond or affinity as an essential element of what constitutes a member of a household ...

The word "household" in the statute implies a "householder" which in turn implies some form of relationship between the "member" and the "householder". This relationship imposes on the "member" a certain deference to the "householder", compliance with a degree of propriety and responsibility and an active sense of participation in "household" functions and to defer to the wishes of the "householder" in this regard."

In Simmons v Pizzey [1979] AC 37, Lord Hailsham, after considering the Oxford Dictionary and the Words and Phrases definitions of the term "household", concluded, at page 59:

"I do not find any of these references particularly helpful except to make clear to me that I would have supposed in any case that both the expression 'household' and membership of it is a question of fact and degree, there being no certain indicia the presence or absence of any of which is by itself conclusive."

In Churchill v Roach [2002] EWHC 3230; [2003] WTLR 779, Judge Norris QC, sitting in the Birmingham High Court, Chancery Division, said:

"It is, of course, dangerous to try and define what 'living in the same household' means. It seems to me to have elements of permanence, to involve a consideration of the frequency and intimacy of contact, to contain an element of mutual support, to require some consideration of the degree of voluntary restraint upon personal freedom which each party undertakes, and to involve an element of community of resources. None of these factors of itself is sufficient, but each may provide an indicator. ...It is perfectly possible to have one household and two properties. But what does seem to me to be the case is that there were two separate establishments with two separate domestic economies. There was, of course, a degree of sharing when the two met at weekends and some of those weekends were long. But that does not mean that they lived in one household."

In Re Dix deceased [2004] 1 WLR 1399, a claim was brought under the Inheritance (Provision for Family and Dependents) Act 1975 (UK). Ward LJ in the Court of Appeal (with whom Mummery and Rix LJJ agreed) addressed the meaning of the word "household". At [23] and [24], his Lordship approved a definition of "household" in Santos v Santos [1972] Fam. 247; [1972] 2 WLR 889 as meaning "people held together by a particular kind of tie, even if temporarily separated", and said "[t]hus they will be in the same household if they are tied by their relationship. The tie of that relationship may be made manifest by various elements, not simply their living under the same roof, but the public and private acknowledgement of their mutual society, and the mutual protection and support that binds them together ...".

Factors Warranting the Making of the Application

Where an applicant falls within the definition of eligible person within s 57(1)(e) of the Act, the Court must next consider and be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application (s 59(1)(b)).

The Act does not specify the "factors which warrant the making of the application". As Pembroke J in Wilcox v Wilcox [2012] NSWSC 1138, noted at [16], "[N]o legislative assistance is given as to the intended scope or meaning of this enigmatic requirement".

However, in considering the meaning of what he described as "this poorly conceived and clumsily expressed subsection" in the former Act (which did not form part of the Draft Bill produced by the Law Reform Commission), M McLelland J said, in Re Fulop Deceased (1987) 8 NSWLR 679 at 68 (approved in substance by the Court of Appeal in Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241), that the factors are factors which, when added to facts which render the applicant an eligible person, give him, or her, the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased.

In Re Fulop, M McLelland J also said, at 683:

"In the case of Mr Fulop the main factor is that from an early age (about 4 years) he became a child of the family unit comprising the deceased and his father and remained so until he left home at 18 years of age in the normal course and thereafter the family relationship thus established was recognized on all sides as continuing as if Mr Fulop were a child of the deceased as well as his father."

In Graziani v Graziani (NSWSC, 20 February 1987, unreported), Cohen J, in dealing with an application by stepchildren, said, at 8-11:

"There is nothing in the section to indicate what is meant by "factors", or how far the Court has to take the matter in order to warrant the making of the application ....

... In order to look at the factors which warrant an application in the case of a plaintiff who establishes that he or she is an eligible person under par (d) of the definition, it is necessary to look not only at the nature of the relationship, but the quality of it. The Court should consider the circumstances in which it arose and to some extent it must also look at the weight of the application which might lead to the finding that the plaintiff has been left without adequate provision for his or her proper maintenance, education or advancement in life. The circumstances must vary in every case and it would be foolish to seek to limit them in any way. Where, however, the plaintiff has established a position as a stepchild of perhaps a foster-child then there would be a number of relevant matters in my opinion which the Court should consider in deciding whether factors exist. These include the closeness of the relationship, that is whether it was one which might be properly described as parent and child, whether the plaintiff was brought up as a permanent member of the family, what was the age of the plaintiff when he or she became a member of that family, and the extent to which the plaintiff was supported by the deceased, whether it be financially, educationally or emotionally.

If a consideration of these matters leads the Court to the opinion that the plaintiff was brought up and treated as a child of the testator and if all of the other circumstances show that there may have been a moral duty on the part of that testator to provide for the plaintiff then there are factors which would warrant the making of the application. The presence of only some of these factors, or of others which have not been listed might also justify the Court's coming to the same opinion. The potential for inclusion in that part of the definition of 'eligible person' as is contained in par (d) is enormous. The range of persons who may be admitted is very great and it includes not only stepchildren but also parents, brothers and sisters, temporary foster children and many others who may have formed part of the household and for a period have been partly dependent upon the deceased. Accordingly it seems to me that those who were raised as part of the family as stepchildren would have less difficulty in establishing factors which warrant their application than would those at the other end of the spectrum who may have been members of the family for only a brief period and with only limited dependence."

Kirby P, in Tsivinsky v Tsivinsky [1991] NSWCA 269, in dealing with the section of the former Act, said, at 13:

"Insofar as s 9(1) gives any guidance concerning the factors 'which warrant the making of the application', it is Delphic. The language used is extremely broad in its generality ('all the circumstances', 'whether past or present', 'factors ... warrant making the application', 'satisfies'). The only real clue as to what is meant is to be derived from the apparent policy of confining this additional, preliminary procedure to the particular categories of 'eligible person' contained in the definition paras (c) and (d) in s 6(1) of the Act."

In Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal constituted by Sheller JA, Sheppard and Fitzgerald AJJA, there was the suggestion that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and, perhaps, an easier, test than that which the Court of Appeal approved in Churton v Christian.

In Penfold v Perpetual Trustee [2002] NSWSC 648, Windeyer J did not follow Brown v Faggoter. Bryson AJ also commented in Porthouse v Bridge:

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

[9] ... The recognition of factors and their weight is left to the determination and opinion of the Judge. In my opinion it would be an error to treat the strength of a claim for provision under s 7 as determinative, either way, of the question under s 9(1). Factors, however strong, which show that the making of the application is not warranted are not the object of enquiry and appear to be irrelevant. The use of language referring to a plurality of factors ("there are factors") is not in my opinion to be understood literally as meaning that the Court must recognize separately more than one factor; in my opinion the plural is used to indicate the generalised nature of the matter under determination."

In Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89, Basten JA, with whom Allsop P and Ipp JA agreed, said of s 9(1) of the former Act:

"[8] As noted above, compliance with this requirement was not the first issue addressed by the primary judge, although s 9(1) envisages that it is to be determined before the Court decides whether to "proceed with the determination of the application". In practice, the factors relevant to the issue raised as a preliminary matter are, to a significant extent, co-extensive with those which must be addressed in determining whether the testator made adequate provision for the applicant: see Churton v Christian (1988) 13 NSWLR 241 at 242-243 (Hope JA) and 248-249 (Priestley JA). Nevertheless, the express distinction between two classes of eligible person must be recognised. It appears to have been drawn on the basis that persons falling within the first category (comprised of those identified in pars (a) and (b)) are "regarded as natural objects of testamentary recognition", whereas those falling within the second category (identified in pars (c) and (d)) are potentially appropriate objects of testamentary recognition, depending upon their circumstances: see Churton at 252 (Priestley JA) applying the analysis of McLelland J in Re Fulop Deceased (1987) 8 NSWLR 679 at 681."

More recently, in Evans v Levy [2011] NSWCA 125, Young JA, with whom Campbell JA and Sackville AJA agreed, said:

"[62] It would seem that what the drafter of the legislation of 1982 did was to endeavour to avoid some of the complications that had been found to exist with cases under the 1916 Act as to just who was an eligible person by broadening the category to a very extensive degree. However, to provide some sort of filter, s 9(1) was enacted so that, without the estate having to get into a great expense, the question of whether the application could possibly succeed would be determined early. Unfortunately, experience has shown that that was a vain hope.

[63] However, the intended result of the wide nature of para (d) of the definition of "eligible person" and s 9(1) is to seek to restrict people whose claims should proceed to a hearing to those who are in very similar categories to those who are within paras (a) and (b) of the definition.

[64] On s 9, the decision of M McLelland J in Re Fulop (dec'd) (1987) 8 NSWLR 679 has stood the test of time."

It can be seen that the trend of authorities does not favour the view suggested in Brown v Faggoter. With great respect, I also regard the views expressed in the authorities referred to by Windeyer J, Bryson AJ, Basten JA and Young JA as correct and propose, in the circumstances, to follow their decisions. I have done so in other cases: see, for example, Fede v Dell'Arte [2010] NSWSC 1113; Curran v Harvey [2012] NSWSC 276; Sammut v Kleemann. Other judges have done so as well: Barlevy v Nadolski [2011] NSWSC 129, per Slattery J, at [196]; Fry v Lukas; Brown v Fry; Estate of Honey; Application of Fry [2011] NSWSC 1329, per White J, at [82]; Wilcox v Wilcox at [16]; Lumsden v Sumner [2012] NSWSC 1440, per Slattery J at [88].

Inadequacy of Provision

It is only if eligibility and, as is necessary in this case, factors warranting the making of the application are found, that the court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)).

Then, it is only if the court is satisfied of the inadequacy of provision, that consideration is given to whether to make a family provision order (s 59(2)). In this way, it has been said that the court carries out a two-stage process.

Allsop P in Andrew v Andrew [2012] NSWCA 308, has recently commented, at [6]:

"... the expression of the task in s 59 is subtly different from the previous legislation. A prohibition against making an order unless satisfied of circumstances of an evaluative character, is different in emphasis from a permission to make an order if satisfied of circumstances of an evaluative character... The exercise of power to make the order is conditioned on the Court being satisfied of certain things in s 59(1). The order that may be made is described in s 59(2). The two elements are described in s 60(1)(b) as "whether to make [an] ... order and the nature of any ... order." Section 60(2) provides a detailed body of considerations for the task in s 59."

Basten JA in Andrew v Andrew, at [26], put the differences this way:

"As appears from the language of the relevant provisions set out at [66]-[67] below, the Succession Act differs from the Family Provision Act in three significant respects. First, although both conferred similar powers on the Court, the conditions of their exercise differ. The Family Provision Act required that the Court "shall not make an order ... unless it is satisfied that" the provision made by the testator is "inadequate": s 9(2). The Succession Act provides that the Court "may ... make a family provision order ... if the Court is satisfied that" the testator has not made "adequate provision" for the applicant: s 59(1). The changes in language may have been intended to remove double negatives, but there is a resultant change in emphasis. The apparent effect is to widen the discretion vested in the court. That which could satisfy a court that the provision made is "not adequate", for the purposes of the Succession Act, might not have been sufficient to remove the prohibition under the Family Provision Act, which operated in the absence of affirmative satisfaction that the provision was "inadequate". There may well be no bright line boundary between adequacy and inadequacy."

Other than by reference to the provision made in the Will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both, s 59(1)(c) leaves undefined the norm by which the Court must determine whether the provision, if any, made is inadequate for the applicant's proper maintenance, education or advancement in life. The question would appear to be answered by an evaluation that takes the Court to the provision actually made in the deceased's Will, or on intestacy, or both, on the one hand, and to the requirement for maintenance, education 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, education or advancement in life of the applicant.

It was said in the Court of Appeal (per Basten JA) in Foley v Ellis [2008] NSWCA 288 at [3], that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254, at [126], White J said that the assessment of what provision is proper involved "an intuitive assessment".

Under s 59(1)(c) of the Act, the time at which the court gives its consideration to the question is the time when the court is considering the application. Under s 59(2), the Court has regard to the facts known to the court at the time the order is made.

"Provision" is not defined by the Act, but it was noted in Diver v Neal at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime".

Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at 228-229, said, of the words "maintenance", "support" and "advancement":

"'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education."

In Alexander v Jansson, Brereton J (with whom Basten JA and Handley AJA agreed), at [18] stated:

"'Proper maintenance' is not limited to the bare sustenance of a claimant [cf Gorton v Parkes (sic) [1989] 17 NSWLR 1], but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility."

In In the Estate of Puckridge, Deceased (1978) 20 SASR 72, at 77 King CJ said:

"The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an earlier period of life in the members of the family: Blore v Lang (1960) 104 CLR 124, per Dixon CJ at 128."

Master Macready (as his Honour then was) in Stiles v Joseph (NSWSC, 16 December 1996, unreported) said, at 14-16:

"Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application ... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses the financial assistance which an applicant may need for his or her maintenance and advancement in life in the following terms:- If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that ... [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need (at 541).

In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of ... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274...

In Certoma, The Law of Succession In New South Wales (2nd Ed) at 208, it is said:

'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, an income-producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.'

The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995) ... notes ... that:

'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'"

In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J at [114] noted:

"In the context of the Act the expression "advancement in life" is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase "advancement in life" has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the "maintenance and support" of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support."

In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said:

"The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)."

The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, whereas "proper" prescribes the standard, of the maintenance, education or advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 at [72] and at [77], per Buss JA.

Each of the words was considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463, at 476:

"The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances."

Dixon CJ and Williams J, in McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word 'proper', that:

"It means "proper" in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."

In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, Gibbs J said at, [18]:

"[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards."

In Vigolo v Bostin, at 228, Callinan and Heydon JJ said:

"[T]he use of the word "proper" ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the "station in life" of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."

Santow J pointed out in Gardiner v Gardiner (NSWSC, 28 May 1998, unreported), that "adequate" and "proper" are independent concepts. He said at 12:

"'Adequate' relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. 'Proper' depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied ..."

In Palaganio v Mankarios [2011] NSWSC 61, at [72], White J observed that the question of what provision for a person's maintenance, education or advancement in life is "proper" and the question of whether the provision made by the deceased was "adequate" for that person's maintenance, education or advancement in life involve value judgments on which minds can legitimately differ, and there are no definite criteria by which the question can be answered.

Until recently, it was unanimously thought that there are two stages of the determination. The first stage, provided for by s 59(1)(c), has been described as "the jurisdictional question": Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-209. At this stage, the court will consider whether it can make an order for provision for the maintenance, education or advancement in life of a particular applicant. The Court does this by determining whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the will of the deceased and/or by operation of the intestacy rules, for the applicant. If it is not so satisfied, then the Court is precluded from making a family provision order.

It is an element in determining whether "adequate" provision has been made for the "proper" maintenance, education or advancement in life of the applicant in all of the circumstances: Collins v McGain [2003] NSWCA 190 (Tobias JA, with whom Beazley and Hodgson JJA agreed). Whether the applicant has a "need" or "needs" is a relevant factor at the first stage of the enquiry.

In Collins v McGain Tobias JA said:

"42. Further, there can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focussed. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies.

...

47. As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is "proper maintenance etc" of the eligible person. It is because of that context that, in the present case, the "proper maintenance etc" of the appellant required consideration of a need to guard against the contingency to which I have referred."

In Devereaux-Warnes v Hall (No 3) at [81] - [84], Buss JA said, in respect of the first stage of the process:

"The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227.

'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks (1989) 17 NSWLR 1 per Bryson J at 10-11.

The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other. See Hunter per Kirby P at 575.

Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6-11; Collicoat v McMillan [1999] 3 VR 803 per Ormiston J at 816 [38], 820 [47]."

As Callinan and Heydon JJ emphasised in Vigolo v Bostin, at 231 the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum" or "by looking simply to the question whether the applicant has enough on which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. The whole of the context must be examined.

In the event that the court is satisfied that the power to make an order is enlivened (i.e. it is satisfied that the applicant is an eligible person, and, where necessary, that factors warranting have been satisfied, and that adequate provision for the proper maintenance, education or advancement in life of the person has not been made by the will of the deceased and/or by operation of the intestacy rules), then, the court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the court at the time the order is made: s 59(2) and s 60(1)(b).

Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that the decision made at the second stage involves an exercise of discretion in the accepted sense. The fact that the court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour.

Basten JA, in Andrew v Andrew, said of the two stage process referred to:

"29 The combination of changes requires that the court address the nature of the exercise being undertaken. Three potential consequences may be identified. First, there is a simplification of the structure of the process. There is no longer a two-stage process required. A degree of artificiality has thus been removed. The court should now ask what, taking all relevant factors into account, would have been adequate provision for the applicant. There is no first stage of determining whether the actual provision was "inadequate", followed by a discretionary exercise of determining what would be adequate and what should in fact be done.

...

41 As noted above, the language of the Succession Act is not consistent with the two-stage inquiry which was a common feature of earlier legislation: cf Singer v Berghouse at 208-209. In Keep v Bourke [2012] NSWCA 64 the Court appears to have assumed that the two-stage process continued to operate under the Succession Act: at [24]-[29]. However, the issue not having been directly addressed, there is no constraint on this Court now adopting a different approach. Nor does earlier High Court authority construing an earlier statutory scheme govern the approach to be adopted to materially different legislative provisions."

In Andrew v Andrew, Allsop P, at [6], said:

"Whether the process engaged in by the Court in s 59 can still be described as "two-staged" in the sense discussed in Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 208-211 may be an analytical question of little consequence. The task involves an evaluative assessment and a choice as to consequence therefrom, appeal from which is governed by the principles concerning discretionary judgments: Singer v Berghouse at 211 and DAO v R [2011] NSWCCA 63; 278 ALR 765 at [93]."

Barrett JA disagreed with Basten JA, in Andrew v Andrew, saying:

"65 This is the second occasion on which this Court has been called upon to deal with a claim under s 59 of the Succession Act. In the earlier case, Keep v Bourke [2012] NSWCA 64, the Court proceeded on the basis that approaches taken under s 7 of the now superseded Family Provision Act 1982 remained relevant and applicable. That matter was explored in greater detail in the course of argument in the present case. For reasons I am about to state, I am of the opinion that the earlier approaches should continue to be followed in cases such as the present case and Keep v Bourke, that is, cases in which the applicant is a child of the deceased and no previous order for provision out of the estate has been made in favour of that applicant.

...

79 First, it is necessary, having regard to s 59(1)(c), for the court to be satisfied that, at the time when it is considering the application, "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 person, or by the operation of the intestacy rules in relation to the estate of the deceased person". Whereas the former s 9(2) provided that an order was not to be made unless the court was "satisfied" in the specified way, the present legislation permits the court to make an order if "satisfied" in the specified way and, by necessary implication, precludes the making of an order if the court is not so "satisfied".

80 Second (and if the court is "satisfied" in the specified way), the "family provision order" that the court is empowered to make is, under s 59(2), "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"; and the court may, pursuant to s 60(1)(b), have regard to the matters specified in s 60(2) in deciding whether to make an order and the nature of the order.

81 Under s 59 and s 60, therefore, the task of the court, in a case of the kind under discussion, is:

(a) to determine the extent of the provision made for the maintenance, education and advancement in life of the applicant by the deceased's will or the intestacy laws;

(b) to form an opinion of the adequacy of that provision;

(c) if the opinion is one of inadequacy, to make an evaluative judgment as to what provision, if any, ought to be made out of the estate of the deceased person 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; and

(d) in making that evaluative judgment, to take into account, as discretionary factors, the matters in s 60(2).

...

94 As stated in Keep v Bourke (above), the structure and effect of the Succession Act provisions warrant continuing adherence to the two-stage approach indicated by the decisions of the High Court in Singer v Berghouse and Vigolo v Bostin."

It seems to me that the two stage approach adopted in the myriad of cases determined under the former Act and under the Act, including Keep v Bourke [2012] NSWCA 64, enables me, despite what has been said by Basten JA, and until uncertainty is resolved, to continue to follow that approach in determining cases under the Act. As Allsop P said, "it may be an analytical question of little consequence" since what has to be decided by the Court is whether to make a family provision order and the nature of any order.

Section 60 of the Act, at least in part, is new. It provides:

"(1) The court may have regard to the matters set out in subsection (2) for the purpose of determining:

(a) whether the person in whose favour the order is sought to be made (the "applicant") is an eligible person, and

(b) whether to make a family provision order and the nature of any such order.

(2) The following matters may be considered by the Court:

(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,

(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate,

(c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,

(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate,

(e) if the applicant is cohabiting with another person - the financial circumstances of the other person,

(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated,

(g) the age of the applicant when the application is being considered,

(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,

(i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate,

(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,

(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,

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

(m) the character and conduct of the applicant before and after the date of the death of the deceased person,

(n) the conduct of any other person before and after the date of the death of the deceased person,

(o) any relevant Aboriginal or Torres Strait Islander customary law,

(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."

It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew at [37] as "a multifactorial list", and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380, at [123], as "a valuable prompt" to which the court may have regard, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order. The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of such of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed is, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender.

Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical. For example, when considering eligibility under s 60(1)(a), some of the matters in s 60(2) will be largely, if not wholly, irrelevant. Others may be useful to consider, such as (a), (b), (g), (h), (i), (j), (k) and (m).

There is no definition in the Act of "financial resources" (which term is only referred to in s 60(2)(d)). However, there is a definition of that term in s 3 of the Property (Relationships) Act 1984, which I consider helpful:

"'financial resources' ... includes:

(a) a prospective claim or entitlement in respect of a scheme, fund or arrangement under which superannuation, retirement or similar benefits are provided,

(b) property which, pursuant to the provisions of a discretionary trust, may become vested in or used or applied in or towards the purposes of the parties ...,

(c) property, the alienation or disposition of which is wholly or partly under the control of the parties to the relationship or either of them and which is lawfully capable of being used or applied by or on behalf of the parties to the relationship or either of them in or towards their or his or her own purposes, and

(d) any other valuable benefit."

Of course, s 60(2)(d) refers also to "earning capacity", which means no more than the capacity to find employment to earn or derive income.

Furthermore, consideration of some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and of other eligible persons as well as of the beneficiaries, whilst others do not. Importantly, also, many of the matters in sub-s (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).

Leaving aside the question of eligibility, the Court may have regard to the matters referred to in s 60(2) on "the discretionary question", namely whether to make an order and the nature of any such order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently.

This does not mean, however, that some of the matters referred to in s 60(2) will not be relevant to the jurisdictional question to be determined at the first stage. I am comforted in reaching this conclusion by the following comments made in Singer v Berghouse (at 209-210):

"... The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

Of a night, Uncle Norman used to go to bed fairly early. In the evenings, particularly in winter time, Uncle Norman could go to bed as early as 6pm sometimes. If not, we would watch a bit of television together. He had an old television in the lounge room and always insisted on it being tuned to the ABC. He particularly liked the ABC News at seven o'clock each night.

Uncle Norman never asked me to pay board.

Uncle Norman paid all the electricity bills. He did not have the gas the connected. He also paid for the water and the rates.

Uncle Norman had a phone connected and paid for that too but I never used to use his phone. I had my own mobile phone.

I would do most of the shopping for us. We would pool our money for this. Uncle Norman would give me money for meat and groceries and I would combine what he gave me with some of my pension money. I would also buy bread. When I got back to the house, all of this was packed away by me in Uncle Norman's pantry and refrigerator.

There was a Sara Lee Factory nearby at Engadine. I used to regularly drive there and buy frozen foods, particularly frozen lasagnes. I would also but a range of different things now and again. I would take them back and put them in Uncle Norman's freezer.

Uncle Norman lived fairly simply. He had a microwave in his kitchen. He had a stove and all the usual kitchen utensils were there as well.

I remember that Uncle Norman liked rice and it didn't matter whether it was brown or white, just so long as it was rice.

Uncle Norman used to only eat small meals.

When I cooked for Uncle Norman (which was several times each week) I would wash up afterwards. I would clean the kitchen. I used Uncle Norman's dishwashing liquid for this. We used Uncle Norman's plates, crockery and cutlery.

I used to keep Uncle Norman's house fairly tidy. I never has to use the vacuum cleaner as, with only two of us living there, it never really got that dirty. I also occasionally washed the windows in the house.

I would help out wherever I could. I'd do a bit of home maintenance for Uncle Norman every now and again.

I also used to look after Uncle Norman's front yard. I would rake the leaves up regularly and keep the place neat.

I never used to mow the lawns. Uncle Norman always had someone come in to mow his lawns for him.

I remained living with Uncle Norman until roughly March 2007. At that stage, a house became available for me at 24 Snowden Avenue, Sylvania where I still reside."

The Plaintiff was cross-examined and the version he gave was different to that set out above. Firstly, he accepted that the deceased was not a blood relation. The deceased was married to Mary, a cousin of the Plaintiff's mother.

Next, he accepted that he was asserting, in the proceedings, that he had lived in the deceased's house "continuously" for about one year before he moved into "the housing commission house" which he currently occupies. He then gave the following evidence:

"Q. Most days and nights you would be found there, that is your evidence?

A. That is not true.

Q. What do you say about most days whether we could find you there?

A. I have been heavily involved in surfing for 40 years and I used to live with, under the house where I lived, early, like dawn, every morning and because I am involved in snooker tournaments, I am a member of Cronulla RSL, Miranda RSL, here is my badges, Caringbah RSL and Gymea trade union club, Gymea bowling club, before that Bondi, Paddington, Maroubra Seals I was a member of all those clubs and would regularly go around at night playing snooker tournaments.

Q. The question was you disagreed with me that most days and nights we would find you at xxxx xxxxxxx xxxx. Are you saying most nights or regularly you would go out?

A. I would leave there in the morning and go home quite late at night.

Q. What is leaving in the morning, what time?

A. Six o'clock.

Q. Sunrise or so you would leave Mr Bunter's house at xxxx xxxxxxx xxxx and you would be away for the day with your own activities?

A. Yes.

Q. And you would go home 10 or 11?

A. Sometimes nine, 10.

Q. Well into the night?

A. Yes, sometimes later.

Q. And that was a fairly regular pattern?

A. I still do the same to this day.

Q. Having been out all day and a bit of the night you would crash and get up again?

A. I will qualify, at that time --.

Q. Answer the question. Was that your regular pattern go in the morning early, come home late at night, have your sleep whatever and then go again next morning?

A. I would just like to make this one comment, my father -- .

Q. Please answer the question. Was that your regular pattern when you were staying at xxxx xxxxxxx xxxx?

A. Yes, yes.

...

Q. But it was always only ever going to be a temporary thing whilst you fixed up your accommodation, correct?

A. That is right.

Q. You were always going back to housing commission once they gave you appropriate, suitable accommodation, correct?

A. That is right.

Q. As soon as your current accommodation in Sylvania became available you left and moved in in early 2007, correct?

A. That is correct.

...

Q. Is your affidavit the truth the whole truth and nothing but the truth?

A. That is right.

Q. It doesn't leave out --?

A At the time I lived at Norman Bunter's house under the house my mother was put in a nursing home and my father in a retirement village at Kincumber and I went up regularly also to stay with my father, that is the truth.

Q. Your father lived on the Central Coast?

A. That is right, so I was oscillating between the two residences for about one year.

Q. In fact, you were away for long periods of time if it was the case you were staying at xxxx xxxxxxx xxxx you were away for long periods of time on the Central Coast, weren't you?

A. I would look after my father -- .

Q. Answer the question?

A. Not long periods of time, that is not true."

And later, he said:

"Q. Do you say when you were not with your mother and father on the Central Coast you were living at xxxx full time?

A. In the tool room on and off for about a year on and off. I was not there all the time, that is the truth, and every time I went there I took Norman food."

The Plaintiff accepted that he had not informed the RTA that he had moved from the address shown on his driver's licence at any time and that he was living at the address of the deceased's home.

The Plaintiff was shown a copy of a handwritten letter, received by the Department of Housing NSW, which is dated 6 July 2006 (Part of Ex. 2), which commences "I am up here in Queensland spending time with my kids". An earlier document dated 6 June 2006, in the hand of the Plaintiff, described as a "Rejection Statement" addressed to the Department of Housing (Ex. 4) stated "I was up Tweed Heads visiting my children & was unable to come back for house inspection. I deeply regret this FACT."

The Plaintiff was shown a letter received by the Department of Housing NSW, Miranda office, bearing date received stamp 28 August 2006 (Ex. 5), which he had written and signed in which he stated that "I have been away a long time" (meaning he had been away from the Sutherland Shire for a long time) and that he would be "back by late September".

The Plaintiff was shown a facsimile transmission letter dated 7 September 2006, from the Department of Housing, Tweed Heads office, to the Department's Miranda office, in which it was said that the Plaintiff had attended at the Tweed Heads office on that date.

He was shown a letter dated 12 October 2006 from his doctor, Dr Ayjam to the Department of Housing (Ex. 3) relating to the deceased's state of health. The letter, whilst it referred to various places in which the Plaintiff had been living, made no mention of the deceased or that the Plaintiff had been living in the deceased's home.

The Plaintiff also admitted that he had been to Bali for 10 days during the period of time that he said he had been living in the deceased's home.

Having been shown the Exhibits referred to, the Plaintiff gave the following evidence:

"Q. The fact is once you moved out of the place at the start of 06 that had been flooded by sewage, you left the Shire for 12 months so far as where you were living is concerned. Correct?

A. That is not true.

Q. You lived in Bali. You lived on the central

A. I was 10 days in Bali. That is not true.

Q. You lived on the Central Coast. Correct? Correct?

A. I looked after my father in between Norman's and Uncle Norman's and my father's.

Q. And you lived in your father's home at Kincumber while you looked after him?

A. Yes, and I'm a good cook. I cook for him.

Q. Yes, and you had decent accommodation in a proper house with proper facilities. Correct?

A. Yes, it is it was comfortable.

Q. Yes, and then you went up further north in the middle of the year to be with your son on the Far North Coast of New South Wales. Correct?

A. Yes.

Q. And the fact is you never lived in the tool room or any other room at Norman's house as you say in your affidavit.

A. That's what you're saying, and I'm not saying that. I lived in the tool room, as I said, on and off. I also lived in my Holden panel van sometimes. It wasn't a nice life.

Q. You were never part of his household, were you?

A. I wasn't part of the upstairs household, no.

Q. If you were there, it was like ships in the night: he'd be asleep in the morning when you left. Correct?

A. That's right.

Q. And he'd be probably asleep at night when you came home. Correct?

A. Yes, but I used to talk to him sometimes."

And a little later:

"Q. The fact is, sir, you never lived in xxx, did you?

A. Yes, I did.

Q. It wasn't your home.

A. I never lived in the house. I stayed in the tool room. I said that all along. And I used to take food to Norman Bunter from Sarah Lee at the Sutherland factory outlet all the time. And when I lived when I over the years, his home..."

And finally:

"Q. When you accessed this tool room area, you used that door directly from the yard into the tool room. Is that right?

A. That's right."

In re-examination, the Plaintiff gave the following evidence:

"Q. During the time that you resided in the tool shed of your uncle's house, how regularly were you away?

A. I would go up to my father's, apart from that, two or three weeks at Tweed Heads. I was oscillating between my father, looking after my father, and back at Norman's because I love Cronulla and Caringbah. I grew up there. My brother's there, all my friends are there and that's where I'm from. So I would be there two or three nights, and then back at dad's.

Q. During the times you were away from your Uncle Norman's, did you continue to leave your futon bed there?

A. Yeah, I had a I used to teach yoga at Northern Rivers College of Advanced Education, and I've been sleeping on a yoga mat for the last 30 years.

Q. Did you, while you were away from your Uncle Norman's, continue to leave your personal effects in his house?

A. Only in the tool room. I had a yoga mat and some blankets and put them in a clean garbage tin."

In answer to some questions from me, the Plaintiff gave the following evidence:

"Q. Now, can you just tell me, this tool room that you mentioned

A. Yeah.

Q. That was under the house I gather?

A. Yeah.

Q. And was it connected to the house?

A. Not in any way.

Q. So it was a completely separate room?

A. Yes, and it had electricity.

Q. And how far away from the house was it?

A. It was directly under the balcony, so it would be walking 20 metres around the the side of the house. It had windows. For me it was

Q. Did it have a door?

A. It had a door. I had a key to the room.

Having considered all of his evidence, I am of the view that the Plaintiff's evidence, as set out in the affidavits, painted a significantly different picture to the picture painted by his oral evidence. From his oral evidence, which I consider is more likely to be accurate, it seems clear that in the period that he had said he was living in the deceased's home, he was, in fact, living a lifestyle that could not be regarded as settled. I do not accept that he was staying in the tool room as often as he had maintained in his affidavits and when he did stay there, he did not see the deceased as often as his affidavits suggested.

There was, however, other evidence, upon which the Plaintiff relied to support his case, which I have also considered. The Plaintiff relied upon an affidavit of Susan Ann Lee, a friend of his. She and her partner, Jim Adams, were taken to the deceased's home together, on one occasion only, at a time after the Plaintiff had stayed there.

In her affidavit, Ms Lee gave evidence that the deceased and she had the following conversation:

"Susan - "Norman, you have a lovely home".

Norman - "Yes, I know. Timothy lived with me for about a year. It was really good. We are very close, I am going to leave my house to Tim, I appreciate his visits and helpfulness".

Sue - "I can see how close you both are". "

Ms Lee was cross-examined and gave the following evidence:

"Q. And do you remember what Mr Bunter said? Sorry. Was there any conversation apart from, you know, social things, you know, "how are you" or

A. Well, it was mainly social and he and I looked around the house. It was beautiful. I said, "You've got a beautiful home here." The view was beautiful out on the river and I commented about that and his home and his health and and he said "yes". And we spoke about many things, about Tim, he spoke about Tim. I took a photo of him. Tim asked me to take a picture. They were close. And "you and Tim are close." He said, "Yeah," he said, "close family friend." And...

...

A. And he told me that Tim had sent him a lot of letters, a lot of whenever he went, he sent letters or postcards to him. He always stayed in contact with him. He phoned him. He was he said he was a good, close family friend. That's what he said to me. And he said that he'd been doing it hard and he said to me that he would he said, "I've got a lot of time for Tim and his family." He said that he would he would leave him the house in the future if he passed on. That's what he said to me. I said, "Well, that's very kind." He said, "Well, Tim has been very kind to me."

...

Q. Now, are you sure that he said he was going to leave the house or give the house to Tim?

A. That's what he said he'd like to do. That he's what he he said that to me and I thought, well, that's very nice. I said Tim had been doing it hard and he said the family had been very kind to him.

...

Q. He didn't say anything about Tim living in the house or in the tool room or anything, did he?

A. He did. He said he did mention that. He did tell me that Tim had been living there. He said, "He stayed with me for about a year."

Q. Are you sure of that?

A. Yes, I am sure. That's what he said to me, yeah.

...

Q. But are you sure that he said that Tim had lived there?

A. He told me that Tim had yeah, he was dependent on him for a time. He said about a year. That's what he said to me.

Q. He was dependent on him?

A. Well, Tim was homeless. He'd been living in and out of his car. And he'd helped him out by letting him stay in his room downstairs. That's what he said.

Q. So Norman - -

A. I didn't really I didn't see the room. I didn't look all around the house. I just stayed up the top there and you could see the water. I didn't even know where the tool room was. I don't know anything about the room. All he said to me was that Tim did live there with him on and off. He lived in his car. He'd let him stay there. He gave him access to stay there downstairs in a room. That's what he said."

There is no reason not to accept the evidence of Ms Lee. My impression of her, at the time she gave her evidence, was that she was doing her best to recollect the conversation that she had with the deceased. I accept that the conversation of which she gave evidence had occurred.

However, that conversation, so far as it relates to the Plaintiff staying at the deceased's house is captured most aptly, it seems to me, when taken with the Plaintiff's evidence, by the statement that the deceased helped the Plaintiff out by letting him stay in the tool room downstairs.

I should also refer to the evidence called by the Defendant. Christopher Stephen Gschwind, an immediate neighbour of the deceased, swore an affidavit and was not cross-examined. He said that he had "never seen any person living in [the deceased's] house" during the 10 years that he knew the deceased. He also described the tool room under the deceased's house which was visible from his kitchen:

"He had a workshop under the house in which he kept his tools. The workshop had a cement floor and a workbench...I have never seen a bed in this area or any indication that anyone was living or sleeping there. The area is not habitable. It is very damp open underground area. There are maiden hair ferns growing in the dirt above the concrete floor. I could see white and green mould on the walls.

...

The lights in Norman's house were usually out by 6:00 p.m. I have never seen any lights under the house or any movement there. I have never seen anyone down there in the evening."

Another witness who swore an affidavit, but who was not cross-examined, was Mr Shallala. He had been an immediate neighbour of the deceased since the mid-1960's. Following the death of the deceased's wife, Mr Shallala would see the deceased on most days, and after the deceased sold his car, he would take the deceased to do his errands, every Monday and Tuesday, including to buy groceries, and to doctor's appointments. He would put out the deceased's garbage bins and would bring in his mail.

Mr Shallala would talk with the deceased who told him about visitors he had or telephone calls he received. He told Mr Shallala about his wife's brother's daughters. He never mentioned the Plaintiff or informed Mr Shallala that anyone was living with him. Mr Shallala met the Plaintiff only once.

Mr Shallala also described the area of the tool room:

"...under the house is a partly concreted area with a work bench where Norman kept his tools. This area is about 3 metres wide. The rest of the area under the house is earth floor and house pillars. ... There is a sink but no shower or toilet."

The copy photographs annexed to Mr Shallala's affidavit confirm the description of the area given by him.

Mr Shallala said that he never saw the Plaintiff in the deceased's yard doing any cleaning up or cleaning windows.

I accept the evidence of Mr Gschwind and Mr Shallala.

Finally, I consider s 60(2) of the Act.

I have earlier referred to the relationship between the Plaintiff and the deceased, including the nature and duration of the relationship.

It was not suggested that there were any obligations or responsibilities owed by the deceased to the Plaintiff.

The Plaintiff was born in November 1957. Accordingly, in 2006, he was about 48 years of age.

It was not suggested that the Plaintiff had made any contribution (whether financial or otherwise) to the acquisition, conservation and improvement of the estate of the deceased. I have earlier referred to the Plaintiff's evidence regarding his contribution to the deceased's welfare.

No other provision appears to have been made for the Plaintiff by the deceased, during the deceased's lifetime and none was made from the deceased's estate.

I have referred to the conversation between the deceased and Ms Lee, which I accept regarding the deceased's then testamentary intention.

It was not suggested that the deceased maintained, either wholly or partly, the Plaintiff before the deceased's death (other than as referred to).

Conclusion regarding Eligibility

The Plaintiff's written submission on this topic were limited to one paragraph:

"For the period January 2006 to March 2007 the deceased provided accommodation for the Plaintiff in circumstances where he had a need for same having been caused to leave his public housing. During this period they shared a common household."

More was said during oral submissions, reliance being placed, principally on what was said by Priestley JA in McKenzie v Baddeley. Counsel also submitted that the fact that the deceased did not charge the Plaintiff was relevant. He pointed to the sharing of the occasional meal, sharing cups of tea, and the fact that the Plaintiff retained the futon in the toolshed evidenced "a household". (The Plaintiff's evidence was that he "had a yoga mat and some blankets and put them in a clean garbage tin".)

The Defendant's written submissions also were limited to one paragraph which stated:

"For the Plaintiff to be eligible he must come within s 57(1)(e), being a person who was wholly or partly dependent upon the deceased and at some time a member of the household of which the deceased was a member. The Defendant contests these allegations of fact.

In his oral submissions, senior counsel for the Defendant criticised the evidence of the Plaintiff and said that his evidence did not go far enough to satisfy the court of the Plaintiff's eligibility. Although he stated that the Defendant disputed that the Plaintiff was partly dependent, not much more was said other than that free accommodation might amount to "partial dependency".

Senior counsel also pointed to the limited occasions during the period relied upon by the Plaintiff, that the Plaintiff actually was present at the tool room. He submitted that this was clear from the evidence of each of the deceased's neighbours, neither of whom had ever observed the Plaintiff (and who the Plaintiff accepted that he had not seen).

Taking all of the evidence that I have read and heard, the Plaintiff, in my view, was only a part time, impermanent, visitor to the deceased's tool room. Whilst there, he came and went as he pleased, and without having to communicate with the deceased. There was no requirement, it would seem, to inform the deceased of when, or for how long, he proposed to stay, and even when he was there, he did not, necessarily, see the deceased, because, even then, he often left early in the morning and came back to the tool room late at night. None of these capacities is sufficient to make him a member of the household of the deceased.

Furthermore, whilst there may have been some occasions he shared, intimately, in the domestic life of the deceased, and whilst there may have been a bond or affinity, to which the deceased referred between them, the Plaintiff played a very little part in the co-operative task of running a domestic unit. I did not get the impression that the Plaintiff was involved, in an active sense, of participation, in "household" functions.

The Plaintiff might, occasionally, have performed some household tasks, (although this is difficult to accept in the light of the evidence, particularly of Mr Shallala), but this does not seem to have been done consistently, or as part of any routine.

The Plaintiff might also have been supportive and co-operative with the deceased, but this was rarely in the period he claims to have been a member of the household of which the deceased was a member. It was his neighbours, particularly Mr Shallala, who assisted the deceased with what needed to be done. This is reflected by the pecuniary legacy given to Mr Shallala in the deceased's Will.

Furthermore, there is no evidence that the deceased included the Plaintiff as part of his life with his neighbours, or otherwise. I have referred to the evidence of each of the deceased's neighbours in this regard. Only one occasion is referred to by Ms Lee as having visited the deceased with the Plaintiff (although her partner may have visited the deceased with the Plaintiff on more than one occasion).

Finally, it seems to me, that had the deceased wanted to have "a household" of which the Plaintiff was a member, he would have invited the Plaintiff to stay "upstairs", rather than in a tool room under the house. He also would have permitted him to share, otherwise, what Ms Lee described as "a beautiful home". This the deceased did not do.

In my opinion, the Plaintiff was not, at any time, a member of the household of which the deceased was a member. He was no more than a visitor, or a guest, who the deceased permitted to use the tool roomas a place to sleep when in Sydney, and until his new accommodation, to be provided by the Department of Housing, became available. In this regard, it was always intended by the Plaintiff to be an impermanent arrangement.

A finding that the Plaintiff was partly dependent upon the deceased is probably unnecessary having found that he was not a member of the household of which the deceased was a member. However, should it be necessary, I do find that the Plaintiff was partly dependent upon the deceased for accommodation whilst he was in Sydney and whilst his other accommodation was not available during the short period referred to.

As stated, it is a precondition to success of a claim under the Act for the Plaintiff to establish that he is an eligible person. In this case, I am not satisfied that the person in whose favour the order is to be made is an eligible person, and, in those circumstances, the Plaintiff's claim fails.

In case I am wrong, I shall deal with the other aspect of the Plaintiff's claim, which he would have to establish before consideration could be given to whether a family provision order should be made, and if so, the nature of the order.

Factors Warranting the Making of the Application

The Plaintiff relied upon the deceased's conversation with Ms Lee and Mr Adams and the statement that the deceased and the Plaintiff were very close and that he was thinking of leaving his house to the Plaintiff.

In my view, simply being a "close family friend" and having a relationship that is described to a friend of the Plaintiff as "close", does not make the Plaintiff a natural object of testamentary bounty. A person might provide to such a friend generous assistance, including a place to stay; but neither the person, nor the recipient of his, or her, generosity, nor the community, would necessarily, or even ordinarily, conclude that, as a result of that generosity, the recipient was a natural object of testamentary bounty.

Nor does the deceased, at one time, expressing an intention to make provision for the Plaintiff, demonstrate that the Plaintiff was such a natural object. In this regard, I note that the deceased's Will was made in 2002, which was about 5 years, or more, before the visit of Ms Lee and Mr Adams to the home of the deceased. There is no evidence of any desire by the deceased to change his Will and the evidence of Mr Shallala, is that in a conversation, a few years before his affidavit was made, the deceased had said that he had left his estate to charity.

In all the circumstances, I am not satisfied that there are factors warranting the making of the Plaintiff's application.

Having found that the Plaintiff is not an eligible person and that I am not satisfied that there are factors warranting the making of the Plaintiff's application, it is unnecessary to go further and I dismiss the Summons.

In accordance with the order sought by the Defendant, I order that the Defendant's costs of the proceedings, calculated on the indemnity basis, be paid or retained as the case may be, out of the estate of the deceased. I make no order as to the Plaintiff's costs of the proceedings.

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Decision last updated: 18 April 2013

Medium Neutral Citation:	Russell v NSW Trustee and Guardian [2013] NSWSC 370
Hearing dates:	19 March 2013
Decision date:	18 April 2013
Jurisdiction:	Equity Division
Before:	Hallen J
Decision:	(a) Order that the Plaintiff's Summons be dismissed. (b) Make no order as to the Plaintiff's costs to the intent that he will bear his own costs of the proceedings. (c) Order that the Defendant's costs, calculated on the indemnity basis, be paid, or retained, as the case may be, out of the estate of the deceased.
Catchwords:	SUCCESSION - FAMILY PROVISION - The Plaintiff seeks a family provision order out of the estate of the deceased under the Succession Act 2006 as a person who was a member of the household of which the deceased was a member and partly dependent on the deceased - The Defendant is the executor to whom Probate granted - Nearly whole estate left to charity - Dispute as to Plaintiff's eligibility and as to factors warranting the making of the application - Whether to make a family provision order - If order for provision made, how the burden of that provision should be borne - Plaintiff not eligible and no factors warranting the making of the application - No need to determine whether and if so, what family provision order should be made.
Legislation Cited:	Civil Liability Act 2002 Family Law Act 1975 Family Provision Act 1982 Inheritance (Provision for Family and Dependents) Act 1975 (UK) Property (Relationships) Act 1984 Probate and Administration Act 1898Succession Act 2006Succession Amendment (Family Provision) Act 2008
Cases Cited:	Amaca Pty Ltd v Novek [2009] NSWCA 50 Alexander v Jansson [2010] NSWCA 176Allardice, In re; Allardice v Allardice (1909) 29 NZLR 959 Anasson v Phillips (NSWSC, 4 March 1988, unreported) Andrew v Andrew [2012] NSWCA 308 Barlevy v Nadolski [2011] NSWSC 129 Bartlett v Coomber [2008] NSWCA 100 Benney v Jones (NSWSC, 13 February 1990, unreported) Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Brown v Faggoter [1998] NSWCA 44 Churchill v Roach [2002] EWHC 3230; [2003] WTLR 779 Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241 Collins v McGain [2003] NSWCA 190 Cooper v Dungan (1976) 50 ALJR 539 Cormick; Re [1984] HCA 79; (1984) 156 CLR 170 Curran v Harvey [2012] NSWSC 276 Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89 Dix (dec'd), Re; Gully v Dix [2004] 1 WLR 1399 Evans v Levy [2011] NSWCA 125 Fede v Dell'Arte [2010] NSWSC 1113 Fiorentini v O'Neil [1998] NSWCA 79 Foley v Ellis [2008] NSWCA 288 Fry v Lukas; Brown v Fry; Estate of Honey; Application of Fry [2011] NSWSC 1329 Fulop Deceased, Re (1987) 8 NSWLR 679 Gardiner v Gardiner (NSWSC, 28 May 1998, unreported) Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Gray v Insurance Corporation of British Columbia (1987) 46 DLR 269 Graziani v Graziani (NSWSC, 20 February 1987, unreported) Hakim, Re Estate of; Simons v Permanent Trustee Co Ltd [2005] NSWSC 223 Kay v Archbold [2008] NSWSC 254 Keep v Bourke [2012] NSWCA 64 Kembrey v Cuskelly [2008] NSWSC 262 Kingsland v McIndoe (1989) VR 273 Jenkins v Livesey (1985) AC 424 Lumsden v Sumner [2012] NSWSC 1440 Markulin v Drew (NSWSC, 12 August 1993, unreported) McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 Mcgrath v Troy [2010] NSWSC 1470 McKenzie v Baddeley [1991] NSWCA 197 Maio v Sacco [2009] NSWSC 413 Mayfield v Lloyd-Williams [2004] NSWSC 419 Munro v Lake (NSWSC, 8 February 1991, unreported) Palaganio v Mankarios [2011] NSWSC 61 Penfold v Perpetual Trustee [2002] NSWSC 648 Petrohilos v Hunter (1991) 25 NSWLR 343 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 Porthouse v Bridge [2007] NSWSC 686 Puckridge, Deceased, In the Estate of (1978) 20 SASR 72 Sammut v Kleemann [2012] NSWSC 1030 Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100 Santos v Santos [1972] Fam. 247; [1972] 2 WLR 889 Simmons v Pizzey [1979] AC 37 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Skinner v Frappell [2008] NSWCA 296 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stiles v Joseph (NSWSC, 16 December 1996, unreported) Stott v Cook (1960) 33 ALJR 447 Tsivinsky v Tsivinsky [1991] NSWCA 269 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Wagstaff v Wagstaff (NSWSC, 6 November 1991, unreported) Walker v Walker (NSWSC, 17 May 1996, unreported) Wilcox v Wilcox [2012] NSWSC 1138 Wolff v Deavin [2012] NSWSC 1315 Wright v Canadian Group Underwriters Insurance Co (2002) BCCA 254
Category:	Principal judgment
Parties:	Tim Russell (Plaintiff) NSW Trustee & Guardian (Defendant)
Representation:	Counsel: Mr M Thompson (Plaintiff) Mr L Ellison SC (Defendant) Solicitors: Gerard Malouf & Partners (Plaintiff) NSW Trustee & Guardian (Defendant)
File Number(s):	2011/212912