Salerno v Price

[1999] NSWSC 637

CITATION:	Salerno v Price [1999] NSWSC 637 revised - 31/08/99
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	2961/98
HEARING DATE(S):	25 June 1999
JUDGMENT DATE:	25 June 1999
PARTIES :	Rita Salerno (P) Albert Price (D)
JUDGMENT OF:	Master McLaughlin

COUNSEL :	Mr. R. Maurice (P) Mr. R. Wilson (D)
SOLICITORS:	Patrick Lim & Associates (P) Daly Bussoletti & Co. (D)
CATCHWORDS:
ACTS CITED:	Family Provision Act 1982
DECISION:	See para 25

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SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

FRIDAY, 25 JUNE 1999

2961/98 - RITA SALERNO v ALBERT PRICE -
ESTATE OF ROBERT PRICE

JUDGMENT

1 MASTER: These are proceedings under the Family Provision Act 1982. By summons filed on 26 June 1998, the plaintiff, Rita Salerno, seeks an order for provision for her living expenses, education and advancement in life out of the estate of her late father, Robert Price (to whom I shall refer as “the deceased”). 2 The deceased died on 17 February 1998, aged 75. He left a Will dated 8 December 1997, probate whereof was on 27 November 1998 granted to Albert Price, the executor named in such Will (who is the defendant to the present proceedings). 3 The plaintiff is the eldest of the three children of the deceased. She was born on 7 February 1953 in Italy and she is presently aged 46. The plaintiff and her parents came to Australia in 1961. Two other children were subsequently born to the deceased and his wife. They were two sons, Frank and Albert. Albert was born on 10 December 1971 and is presently 27 years of age. The deceased separated from his wife in about 1973. Albert, at that time, was a very small child. He remained with his mother. However the deceased had access to him and they saw much of each other. Since about 1993, Albert resided with the deceased. 4 The plaintiff married on 8 March 1975. Of her marriage were born two children: a daughter Bianca, who is presently aged 22, and a son Matthew, who is presently aged 20. The plaintiff separated from her husband Albert Salerno in September 1994. A year later consent orders, by way of property settlement, were made in the Family Court of Australia between the plaintiff and her former husband. At the time of her separation from her husband, the plaintiff went to live with the deceased for a period of about three months, that being in the latter part of 1994. Thereafter the plaintiff, who was at that time residing in Sydney, stayed intermittently with the deceased at his residence in Wollongong. 5 The assets of the estate consist of a house property known as 1A Strathern Avenue, Wollongong. That house property consists of two self-contained dwellings in the form of a duplex. The deceased and the defendant resided together in the upper of those two dwellings. The lower, and apparently much smaller, dwelling, was occasionally rented out by the deceased. The parties have agreed that the present value of the house property is $210,000. 6 Apart from the house property, the other assets in the estate of the deceased consist of money held with the Commonwealth Bank, either in an account or by way of a term deposit, totalling about $30,000, and the contents of the house, various chattels, and several dogs. The defendant has continued to reside in the property at 1A Strathern Avenue since the death of his father. The self-contained lower flat is presently rented out for an amount of $80 a week. 7 I have already observed that consent orders were made in favour of the plaintiff in her proceedings in the Family Court of Australia with her former husband. As a result of those consent orders, the plaintiff received $400,000. With that money she acquired a house property at Blakehurst, in which she resided, and an investment residential unit at Lakemba. At the end of 1998 the plaintiff sold those two properties, and with the proceeds of sale - being $260,000 less expenses in respect to the Blakehurst house; and $106,000 less expenses in respect to the Lakemba unit- she purchased her present residence, which is unit 2/45 Church Street, Wollongong. The purchase price of that residential unit was $245,000. When legal fees, stamp duty and other associated expenses are taken into account, the acquisition of her present residence cost the plaintiff $253,672. Apparently that is a new unit which had not previously been occupied. In addition, the plaintiff owns a motor vehicle which is a 1993 model BMW motor car, to which she has ascribed a value of $24,000. That motor vehicle came to her as a result of the property settlement with her former husband. 8 The plaintiff, whilst married, was essentially a homemaker and mother, working for only a very short period during her married life. However, since her separation from her husband, the plaintiff has been in almost continuous employment. She was formerly working in a kitchen capacity with the Department of Juvenile Justice on a part time basis. She is currently employed as what is described as a casual telemarketer in Wollongong, in which position she receives $11 an hour before tax, and has been working an average of about ten hours a week. She is also in receipt of partial unemployment benefits being in the category of a Newstart allowance from Centrelink. That allowance and the plaintiff's wages total $284.57 a fortnight before tax. 9 The plaintiff has, from the proceeds of sale of her two pieces of real estate in Sydney, retained a balance of an amount in excess of $90,000, which has, however, been reduced to a present figure of $80,000, that amount being invested in a Cash Management Account with the Commonwealth Bank of Australia. The plaintiff redeemed an amount of $4,000 in January 1999, and a further amount of $9,000 in 1999 from the original sum invested. Upon the present investment of $80,000, the plaintiff receives interest which she has estimated to be about $3,200 a year. For the financial year ended 30 June 1998, the plaintiff's taxable income was $37,098. 10 The plaintiff's daughter, Bianca, who is presently aged 22, lives mainly with her father. However, she intermittently stays with the plaintiff, who provides necessities for her. Apparently Bianca is not in employment and suffers from an epileptic condition. 11 It was not disputed that there had been a close and affectionate relationship between the plaintiff and the deceased. There was placed in evidence an earlier Will which the deceased had made only six days before the date of the Will which was admitted to probate. That earlier Will gave a pecuniary legacy to each of the four grandchildren of the deceased. There was a legacy of $5,000 to the two children of Frank. Apparently those children are infants of tender years. There was a legacy of $10,000 each to the plaintiff's two children. In that earlier Will the deceased then gave the residue of his estate equally among his children. 12 In the Will of 8 December 1997, the deceased gave the same legacies to his four grandchildren. He then gave the residue of his estate to his son Albert. Clause 4 of the Will is in the following terms:

I declare that it was the wish of my son Frank Price that I give property to his children Natasha Price and Daniel Alexander Price and not to him, personally.

I make no provision for my daughter Rita Salerno directly for personal reasons.

13 The personal reasons, which are referred to in Clause 4 of the Will, have not otherwise been identified. 14 It should be recognised that the Family Provision Act and the discretion vested in the Court to make orders for provision, constitute a qualification upon the general principle of freedom of testamentary disposition to which every person in this State is entitled. 15 The plaintiff as a daughter of the deceased is an eligible person within paragraph (a) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such, she has the standing to bring the present proceedings. The defendant, as a son of the deceased, also is an eligible person, as is the other child of the deceased, Frank. 16 It is, however, at the outset, the responsibility of the plaintiff to establish that she is entitled to an order for provision out of the estate of her late father. 17 Orders for provision are not made to reward good services, nor are they withheld in any way on account of what might be considered as shortcomings on the part of an applicant. In the instant case, the plaintiff is secure in her accommodation. She has been in regular employment for the last four years. She has a qualification as a cook Grade 1, having acquired that qualification as a result of a TAFE course. She has a not inconsiderable fund invested, to which she may resort in order to meet unexpected contingencies and which also provides her with an income additional to that which she is capable of earning. She has a relatively recent motor vehicle of a not inconsiderable value. 18 I am not satisfied that the plaintiff has established any relevant need. That conclusion, of itself, is sufficient to dispose of the plaintiff's claim. Nevertheless, even if (contrary to that conclusion) the plaintiff were to be regarded as having established some relevant need, it would be necessary for the Court to consider that claim in the light of any competing claims upon the testamentary bounty of the deceased. 19 The only such competing claim is that of the defendant. The other child of the deceased, Frank, has not made any claim against his father's estate. It must be recognised that the defendant is the chosen object of the testamentary beneficence of the deceased. It is not necessary for the defendant to prove anything. He does not have to establish anything. The relevance of his financial and material circumstances is that they may have the effect of reducing, or even extinguishing, any order for provision an entitlement to which the plaintiff might otherwise have established. 20 The defendant is 27 years of age. He is a single man. He lived with his father from the age of 20. He continues to live in the residence occupied by his late father. The defendant has qualified as a carpenter. He, however, has a preference to following the career of a fisherman. He has worked for a period as a carpenter, but loves the work of a fisherman and is employed as such at the present time. The defendant was cross-examined to the effect that he could earn more as a carpenter than as a fisherman. That may be so. But the defendant is entitled to work in whatever occupation he chooses, and, as he rightly pointed out, he has always been employed and has never been on the dole. 21 The defendant's present financial position is that he receives an average of $350 a week from working six days a week as an employed fisherman. That work, however, is seasonal, and depends upon the weather. He receives $80 a week from the rental of the lower flat in the Strathern Avenue residence. The defendant owns a motor car which is 17 years old, to which he ascribes the value of $1,000; a boat and outboard motor valued at $3,500; fishing equipment worth $500. In addition, the defendant has the responsibility for three dogs, which apparently were owned by himself and his father during his father's lifetime. It emerges that the defendant and the deceased had a close and affectionate relationship. They enjoyed common interests in dogs and in fishing. 22 Evidence has been placed before the Court by the respective parties concerning the approximate costs of the present proceedings. The costs of the defendant will, in any event, be paid out of the estate. They will total about $12,500. Much of the balance of the estate, apart from the house property, will be expended in paying the defendant's costs and in paying administration costs of the estate and reimbursing the defendant for his father's funeral expenses. There will be little left in the estate, apart from the house property. 23 Any order for provision, an entitlement for which the plaintiff might otherwise have established, will, of necessity, require either that the house property be sold, or that the defendant find some funds of his own to meet that order for provision. There is no reason whatsoever why the defendant should be forced to vacate his home. Neither do I see any reason why - even if he had the financial capacity to do so - he should find funds from his own pocket to meet any order for provision for the plaintiff. 24 As I have already recorded, the plaintiff has not established any relevant need, and that fact of itself is sufficient for the dismissal of her claim. But even if she had established any relevant need, I consider that the competing claim of the defendant upon the bounty of his father would have the consequence that any entitlement to an order for provision which the plaintiff might otherwise have established would be totally extinguished. In all the circumstances, I propose to dismiss the proceedings. I make the following orders: 25 (1) I order that the summons be dismissed.

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


The exhibit may be returned.

I certify that this and the preceding
pages are a true copy of the reasons for
judgement of Master McLaughlin

Dated: 25 June 1999
Associate: Mark A. Provera

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Last Modified: 06/30/2000