Saric v Vukasovic
[2019] VSCA 57
•18 March 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2018 0072
| GRGO SARIC | Applicant |
| v | |
| TANJA VUKASOVIC (who is sued as the executrix of the will and estate of DANKA SARIC, deceased) | Respondent |
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| JUDGES: | TATE, NIALL and EMERTON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 7 February 2019 |
| DATE OF JUDGMENT: | 18 March 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 57 |
| JUDGMENT APPEALED FROM: | [2017] VSC 759 (McMillan J) |
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TESTATOR’S FAMILY MAINTENANCE — Appeal — Application for provision by husband — Testator’s will made no provision for husband and only made provision for three adult children of the marriage — Applicant contended provision should be made for husband of absolute interest in family home — Judge made provision of life interest in smaller investment property — Marriage unhappy in later years — Whether judge wrongly took into account conduct of applicant towards deceased — Whether judge took into account irrelevant considerations and failed to take into account relevant consideration — Relevance of financial position of beneficiaries — No error — Leave to appeal refused — Administration and Probate Act 1958 s 91(4).
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr W Gillies | Pro Bono |
| For the Respondent | Mr R Boaden | Dominic Tesoriero & Co |
TATE JA
NIALL JA
EMERTON JA:
Introduction
Danka Saric died on 1 June 2014 at the age of 60. She was survived by her husband, the applicant, and their three adult children: Tanja, Marija and Andrija. Tanja, as the executrix of the deceased’s will, is the respondent to this application for leave to appeal (and, if leave is granted, the appeal).
By her will made on 31 October 2013, the deceased left her estate to her three children, with greater provision being made for Andrija, who, in addition to a third of the estate, is to receive the amount of $200,000 from the sale of the family home.
The deceased did not make any provision for the applicant in her will. The will contains the following declaration by the deceased:
I DECLARE that I have made no provision herein for my husband because I believe that he has adequate assets of his own in Australia and in Croatia to be sufficiently financially secure and to allow him a comfortable life, such as he requires nothing further from me for his security in life, and I firmly believe that our children will attend to his other needs in his old age.
The principal assets of the deceased at the time of her death were a half-share in the family home at 68 Ford Street, Ivanhoe, valued at $775,000, and a half-share in a smaller property at 3/64 Ford Street, Ivanhoe (‘Unit 3’), valued at $310,000.
When the deceased executed her will, the two properties were owned jointly by the deceased and the applicant. Before her death, the deceased and the applicant took steps to change the form of ownership of the properties to become tenants in common in equal shares. This was done at the request of the deceased in order to enable her to leave her interests in the two properties to her children. The documents changing the form of ownership were lodged at the Land Titles Office on 23 June 2014, some three weeks after the deceased died.
In 2017, the applicant brought proceedings in the Supreme Court pursuant to s 91 of the Administration and Probate Act 1958 (‘the Act’) seeking provision for his proper maintenance and support. He sought provision of the whole of the deceased’s interest in 68 Ford Street absolutely. The respondent, as executor, agreed that further provision should be made for the applicant, but submitted that proper provision for him would be an extended life interest in the deceased’s half-share in either 68 Ford Street or Unit 3.
The judge below decided that the applicant’s claim for an absolute interest in 68 Ford Street did not accord with his known financial needs and that it disregarded the deceased’s testamentary intentions, which were to leave her assets to her three children.[1] Her Honour concluded that in view of the deceased’s moral responsibility to the applicant, the size of the estate, the needs of the applicant and those of the beneficiaries, as well as the testamentary intentions of the deceased, an extended life interest in Unit 3 was a proper provision for the applicant’s maintenance and support.[2]
[1]Re Saric; Saric v Vukasovic [2017] VSC 759 [84] (‘Reasons’).
[2]Ibid [81]–[86].
Statutory framework
Section 91 of the Act[3] confers on the Court discretion to order that provision be made out of the estate of a deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision. The discretion may be exercised in favour of a person if the Court is of the opinion that the distribution of the estate of a deceased person effected by his or her will does not make adequate provision for the proper maintenance and support of the person.
[3]As the judge identified in footnote 2 of the Reasons, the amendments made by the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 do not apply because the deceased died prior to 1 January 2015.
Section 91(4) sets out the factors to which the Court must have regard, first, in determining whether the deceased had responsibility to make provision for a person, secondly, in determining whether the distribution of the estate of the deceased person makes adequate provision for the proper maintenance and support of the person and, thirdly, in determining the amount of provision (if any) which the Court may order. The factors are as follows:
(e)any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship;
(f)any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate;
(g)the size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject;
(h)the financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future;
(i)any physical, mental or intellectual disability of any applicant or any beneficiary of the estate;
(j) the age of the applicant;
(k)any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased;
(l)any benefits previously given by the deceased person to any applicant or to any beneficiary; and
(m)whether the applicant was being maintained by the deceased person before that person’s death either wholly or partly and, where the court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility.
In Davison v Kempson,[4] the Court of Appeal set out the simple proposition that in deciding what is adequate and proper provision, the Court’s discretion, while broad, is to be exercised carefully and conservatively according to prevailing community perceptions of the provision that would be made by ‘a wise and just testator’.[5]
[4][2018] VSCA 51.
[5]Ibid [35].
There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. Instead, there is a range of appropriate provisions and minds may legitimately differ as to the provision that should be made. In Grey v Harrison,[6] Callaway JA borrowed from the analogy of sentencing to say that what is required is an ‘instinctive synthesis’ that takes into account all the relevant factors and gives them due weight.[7]
[6][1997] 2 VR 359.
[7]Ibid 367.
Grounds of appeal
In the application for leave to appeal dated 20 June 2018, the proposed grounds of appeal were expressed as follows:
1. Her Honour failed to take into account properly or at all that:
(a)the Applicant had built a house which he sought to have transferred to him and it was the matrimonial home of him and the Deceased;
(b)the Deceased had made no provision for her husband and their children would look after him in his old age despite the evidence that there has been no contact between the Applicant and his children;
(c)the Deceased had significant land holdings in Croatia;
(d)the Applicant had cared for the Deceased and lived under the same roof for all of their marriage except for the last few months.
2. Her Honour wrongfully took into account or gave too much weight to:
(a)the relationship at the end of the marriage finding that the marriage deteriorated;
(b)the assertion that the Applicant took pleasure in inflicting suffering on the Deceased;
(c)the Applicant would be unlikely to leave any of his assets to his children.
3.Her Honour wrongfully failed to take into account the financial circumstances of the beneficiaries of the Estate.
The applicant was represented by counsel on the hearing of the appeal. In oral submissions, the applicant’s challenge to the judge’s exercise of her discretion was reformulated by reference to three propositions. It was submitted that:
(a) The judge made a series of findings that were not supported by the evidence which infected her Honour’s reasoning and caused the judge to order a lesser provision than was adequate.
The impugned findings relate to the applicant’s treatment of the deceased which, in her Honour’s judgment, was ‘reprehensible’.
(b) It was irrelevant that the applicant would be unlikely to leave his assets to his children.
(c) The judge did not adequately deal with the financial position of the beneficiaries, who were all comfortable financially.
The decision below
The judge identified a number of factual areas of dispute between the parties[8] before setting out a brief family history.[9]
[8]Reasons [17]. The areas of factual dispute were identified as follows: (1) the circumstances surrounding an argument in 2009 between the deceased and the applicant; (2) whether the living arrangements between the deceased and the applicant were such that they were living separately under the same roof; (3) the circumstances surrounding the removal of the deceased from the family home at 68 Ford Street on 9 May 2014; (4) the severance of the joint tenancies of Unit 3 and 68 Ford Street; and (4) the applicant’s construction of a home in Croatia and his assets in Australia and Croatia.
[9]Ibid [18]–[23].
The applicant was born on 20 February 1946. He and the deceased married in Croatia in 1972 and came to Australia that year. The applicant worked as a builder. The deceased engaged in a variety of unskilled work while raising the three children. In the period between 1976 and 2000, the applicant and the deceased bought[10] five properties in Melbourne, including 68 Ford Street and 64 Ford Street. The applicant and the deceased subdivided 64 Ford Street and built three units. Units 1 and 2 were sold and the family moved into Unit 3. In 2002, the house at 68 Ford Street was demolished and a new house was completed on the site in 2008. The applicant and the deceased moved into the new house at 68 Ford Street in that year.
[10]And in some cases, also sold.
By 2008, the family’s assets comprised 68 Ford Street and Unit 3. There was (and remained at the time of the death of the deceased) a mortgage over Unit 3, but 68 Ford Street was unencumbered. In addition, they each owned some property in Croatia, although the extent of that property ownership (and any attendant liabilities) was not made clear at trial.
In 2005, the deceased was diagnosed with breast cancer and ceased her employment. The cancer was treated successfully but returned in 2009. With the return of the cancer, the deceased’s health progressively deteriorated.
Some of the findings of fact made by the judge about the relationship between the applicant and the deceased in the later years of their marriage are disputed by the applicant.
What is not disputed is that between April 2009 and the death of the deceased in June 2014, the applicant took out three intervention orders against the deceased. The judge understood the intervention orders to have been obtained on an ex parte basis. The first order was taken out in April 2009. On 19 March 2010, that order was extended so as to expire on 19 March 2011, unless extended or varied prior to that date. On 28 April 2014, the applicant obtained a further intervention order against the deceased, claiming that she was aggressive towards him. On 9 May 2014, the police were called to 68 Ford Street to remove the deceased from the premises on the ground that she was in breach of an intervention order. Thereafter, the deceased lived in Marija’s home in Brunswick until she was admitted to hospital on 27 May 2014, just days before she died.
The applicant told the Court below that the deceased was not forcibly removed from the family home in May 2014 and that she chose to move to Marija’s home because her daughter could better care for her.[11] However, he also conceded that he called the police. The judge did not accept the applicant’s evidence that the deceased chose to move to Marija’s house, describing his evidence on this issue as inconsistent.[12]
[11]Reasons [35].
[12]Ibid.
There was also a dispute about the extent (if any) of the care provided by the applicant to the deceased. The respondent deposed that when the deceased lived at 68 Ford Street with the applicant, they lived separately and the applicant did his own shopping and cooking. The deceased and Andrija, who lived at home, cooked for themselves. The applicant disputed this account, stating that although he and the deceased lived separately under the one roof, they were not in fact separated and he provided ongoing support to the deceased. The judge did not accept the applicant’s evidence that he took care of the deceased until she died and she found his evidence on this issue to be inconsistent and unreliable.[13]
[13]Ibid [30].
As to the financial position of the applicant, the judge found the applicant’s own interests in Unit 3 and 68 Ford Street to be valued at approximately $1,085,000.[14] The applicant’s liabilities were half of the liability for the mortgage on Unit 3, as well as smaller liabilities for tax and legal expenses.[15] The applicant received the aged pension from the Australian government and a Croatian pension of approximately $40 a month.[16]
[14]Ibid [45].
[15]Ibid [47]–[48].
[16]Ibid [46].
Her Honour also made findings in relation to the financial position of each of the beneficiaries of the estate, which are uncontroversial, at least as to the identification of their assets and liabilities.[17]
[17]Ibid [49]–[53].
The judge applied her findings to the relevant factors in s 91(4)(e) to (p) of the Act as follows.
In relation to the nature of the relationship between the deceased and the applicant, the judge found that towards the end of the deceased’s life, the marriage was unhappy, and referred to ‘the multiple ex parte intervention orders’ taken out against the deceased when she was ill with cancer.[18] Her Honour also referred to the events on 9 May 2014, when the deceased was removed from her home, stating:
The [applicant’s] conduct and the removal of the deceased from her home in the late stages of her illness was extraordinary, selfish and understandably caused distress and significant emotional turmoil for the family. The [applicant] showed little understanding of the deceased’s position. At no stage did he show any remorse for his conduct. His portrayal of himself as a caring husband who looked after the deceased during her long illness is fanciful. The evidence established that the deceased and the [applicant] lived separately and apart at 68 Ford Street from around 2009 onwards, with the adult children primarily caring and looking after the deceased.[19]
[18]Ibid [54].
[19]Ibid [55].
In relation to the obligations or responsibilities of the deceased to the applicant, the judge recorded the respondent’s acceptance that the deceased had a moral obligation towards the applicant as her husband, albeit ‘limited’.[20] The judge found that, notwithstanding that the applicant and the deceased were not divorced, the marriage was one in name only, with husband and wife living separately under the one roof.[21]
[20]Ibid [56].
[21]Ibid.
In this context, the judge approached the assessment of the moral obligation of the deceased to the applicant as follows:
The [applicant’s] behaviour towards the deceased is difficult to comprehend. Any moral obligation of the deceased towards the [applicant] is limited in light of the [applicant’s] behaviour towards the deceased in the last years of her life; her own intention to benefit her adult children on her death and the fact that the [applicant] and the deceased were living separately under the one roof.[22]
[22]Ibid [57].
The judge observed that the deceased also owed a moral responsibility to her three adult children.[23]
[23]Ibid [58].
As to the size and nature of the deceased’s estate, the judge described it as ‘not large’.[24]
[24]Ibid [59].
As to the financial resources of the applicant himself, the judge found that apart from his interest in the two properties and his pensions in Australia and Croatia, the applicant’s financial circumstances were unclear and remained unexplained. Her Honour observed that the applicant’s responses to questions in relation to his bank accounts were non-responsive or evasive.[25]
[25]Ibid [60].
The judge did not accept that the applicant had any physical, mental or intellectual disability, despite claims of shoulder and hip problems. Her Honour recorded that the applicant had failed to produce any current medical evidence to support these claims.[26]
[26]Ibid [63].
The judge rejected the applicant’s submission that he had some kind of superior claim to 68 Ford Street and Unit 3 because he built them. This submission, so her Honour said, failed to take into account the deceased’s significant contribution to the marriage, the raising of the children, and the fact that she worked long hours for much of her married life. Both the applicant and the deceased contributed to building up the assets of the marriage and contributed to the welfare of the family.[27]
[27]Ibid [65].
In relation to the character and conduct of the applicant generally, the judge found that he presented as stubborn and unable to accept views that did not accord with his own. Her Honour observed that in giving his evidence, the applicant exhibited bullying behaviour, and was evasive and non-responsive. Overall, the judge found that the applicant did not present as a credible witness.[28]
[28]Ibid [69].
Finally, the judge considered it to be relevant that the deceased had a clear wish to benefit her three children on her death. This was a wish expressed to the children and the applicant over many years and the applicant was aware of the deceased’s wishes.[29]
[29]Ibid [70].
Based on these findings, the judge identified three questions for determination:
(d) at the date of death of the deceased, whether the deceased had a responsibility to make provision for the proper maintenance and support of the applicant;
(e) if so, whether the deceased’s will made adequate provision for the proper maintenance and support of the applicant; and
(f) if not, what amount of provision (if any) should the Court order.[30]
[30]Ibid [71].
The judge readily accepted that the deceased had a responsibility to make provision for the proper maintenance and support of the applicant and that the deceased’s will did not make adequate provision for his proper maintenance and support. This was not contested by the respondent.[31]
[31]Ibid [73], [75].
In these circumstances the task that remained for the Court was to determine what amount of provision the Court should order, having regard to the factors in s 91(4) and the findings that had been made.
The judge referred to the general principle that a testator should ensure that a spouse has a secure home, an income sufficient to permit the spouse to live in a style to which he or she is accustomed and a fund to meet any unforeseeable contingencies.[32] Where there are competing claims, this necessarily involves a balancing exercise between the claims of other beneficiaries and the needs of an applicant, having regard to the size of the estate.[33] The appropriateness of each of the solutions, and indeed whether there is in fact an obligation to provide a home for an applicant, depends on all the facts and circumstances of the case, including the moral obligation owed by the testator to an applicant for the provision.[34] In determining what is the appropriate provision in all of the circumstances, an applicant must adduce relevant evidence that supports his or her financial circumstances and an applicant should bring this information to the Court ‘as fully and frankly as possible’.[35]
[32]Ibid [79], citing Luciano v Rosenblum (1985) 2 NSWLR 65, 69-70.
[33]Ibid, citing Grey v Harrison [1997] 2 VR 359, 366-7 (Callaway JA); Friend v Brien [2014] NSWSC 613, [59].
[34]Ibid.
[35]Ibid [80].
There is no complaint about these statements of legal principle.
The judge recorded the respondent’s submission that an extended life interest in the deceased’s half-share of 68 Ford Street or Unit 3 would provide for the applicant’s proper maintenance and support, having regard to his existing property entitlements. She observed that it was difficult to assess the applicant’s financial needs as it was difficult to know what his true financial position was, especially in relation to his assets in Croatia and his bank accounts.[36]
[36]Ibid.
The judge considered that the character and conduct of the applicant reduced the extent of the deceased’s moral duty to him, stating:
The character and conduct of an applicant is also relevant for the purposes of reducing or ‘limiting’ the moral duty that a testator may have otherwise owed an applicant. This factor is generally determined by reference to what is right and proper according to accepted community standards. A number of instances adduced in evidence demonstrated the [applicant’s] reprehensible behaviour towards the deceased when she was ill with cancer and in the final years of her life. It cannot be said to be acceptable for ex parte intervention orders to be taken out against an elderly ill person or to call the police to have that person removed from her home in the weeks before her death. Even more disconcerting is the fact that the plaintiff exhibited no awareness or remorse for his behaviour in such distressing circumstances. This conduct is relevant when assessing the totality of the circumstances in terms of the moral responsibility of the deceased towards the [applicant].[37]
[37]Ibid [81] (citations omitted).
The judge held that the applicant’s claim for an absolute interest in 68 Ford Street did not accord with his known financial need and disregarded the deceased’s testamentary intention, which was to leave her assets to her three children.[38] By contrast an extended life interest in Unit 3 would provide a secure home for the applicant’s lifetime. The sale of 68 Ford Street would enable the mortgage over Unit 3 to be discharged and would provide an additional amount of around $650,000 to secure the applicant’s future. Upon the death of the applicant, the remainder interest in the deceased’s interest in Unit 3 (or any replacement property) would pass to the deceased’s children.[39] Her Honour concluded:
In the circumstances of the deceased’s limited moral responsibility to the [applicant], provision of an extended life interest in Unit 3 for the [applicant] is proper provision for his maintenance and support.[40]
[38]Ibid [84].
[39]Ibid [86].
[40]Ibid.
The applicant’s three propositions
By the first proposition, the applicant submits that the judge made a series of findings that were not supported by the evidence and which affected her reasoning, resulting in a smaller provision than was appropriate, that is, in the provision of a life estate in Unit 3 rather than in the conveyance to him absolutely of the deceased’s interest in 68 Ford Street.
The impugned findings to which the applicant refers are to be found, in particular, in [81] of the Reasons, which is extracted at [41] above.
The applicant submits that there was no evidentiary basis for these findings. The evidence before her Honour was that the applicant obtained an intervention order against the deceased for an assault which she committed against him. The applicant gave uncontradicted evidence that the deceased had been aggressive on other occasions and that he had reported these events to the police because he did not want to hit the deceased back when she hit him. The only evidence before the judge was that the applicant was struck by the deceased. There was no evidence that the applicant struck the deceased — the evidence was all one way. According to the applicant, it cannot be said that obtaining an intervention order is reprehensible in circumstances where there is no explanation for the intervention order other than that the applicant was being struck by the deceased.
The applicant also took issue with the judge’s findings about his treatment of the deceased more generally, maintaining that there was no evidence to contradict his evidence that he cared for the deceased in the last years of her life. While the applicant confirmed that the marriage ‘ended up in an unsatisfactory state’, he said that this did not make his conduct ‘reprehensible’.
The applicant submitted that it was clear that the judge had taken a ‘very dim view’ of him and that, as a consequence, her Honour awarded him a provision that required him to move out of the matrimonial home and to downsize. This, so the applicant submitted, was unprecedented and perverse, as there was no real competing need.
It is true that there was no evidence to support a finding that the applicant’s exercise of his legal right to obtain an intervention order was ‘reprehensible’. The judge did not have before her any evidence other than the evidence of the applicant about the basis for the grant of the intervention orders. We consider, however, that it is clear from [81] of the Reasons that the judge considered that there were a ‘number of instances adduced in evidence’ that ‘demonstrated the [applicant’s] reprehensible behaviour towards the deceased’; the conduct found by her Honour to be reprehensible was not limited to the applicant taking out the intervention orders. It included causing the deceased to be removed from her home just weeks before her death, a matter to which her Honour expressly adverted in [81] of the Reasons and which she described as ‘extraordinary, selfish and [that] understandably caused distress and significant emotional turmoil for the family’.[41]
[41]Reasons [55]. See also [20]-[21] above.
In any event, for the reasons that follow, we have concluded that the impugned finding did not materially affect the provision that was made by the judge, having regard to the analysis that she undertook to determine the amount of provision that a wise and just testator would make for the applicant. Whatever her impression of the character of the applicant, the judge expressly recognised that it was ‘not the role of the Court to punish the [applicant] for his behaviour towards the deceased during the latter years of her life’.[42]
[42]Ibid [82].
The judge’s findings about the relationship between the applicant and the deceased and, as a corollary, the extent of the deceased’s moral obligation to the applicant, were relevant to each of the determinations that her Honour was required to make under s 91 of the Act: whether the deceased had a responsibility to make provision for the applicant; whether the will made adequate provision for him; and, if not, what amount of provision the Court should order. The judge was satisfied that the deceased had a responsibility to make proper provision for the applicant and that the provision made by the will was not adequate. Her Honour identified the nature and extent of the deceased’s responsibility by reference to established authority in terms that are uncontroversial.[43] In then determining the amount of provision that the Court should make for the applicant, the judge considered the financial resources and needs of the applicant, insofar as they could be discerned from the evidence, having regard to the size and composition of the estate. It was uncontroversial that the applicant needed to be provided with somewhere to live. The question was whether he was entitled to remain in the larger house at 68 Ford Street or whether it was sufficient for him to return to live in Unit 3.
[43]Ibid [79], citing Luciano v Rosenblum (1985) 2 NSWLR 65, 69-70; Gigliotti v Gigliotti [2002] VSC 279, [13]; Penn v Richards [2002] VSC 378, [33]; Litchfield v Smith [2010] VSC 466, [92]; Grey v Harrison [1997] 2 VR 359, 366-7 (Callaway JA); Friend v Brien [2014] NSWCA 613, [59].
The judge reasoned that if the applicant were to receive an absolute interest in 68 Ford Street and Unit 3 were instead to be sold, the mortgage repaid and the net proceeds divided between the applicant and the children, the applicant would receive a fund of only $160,000 and very little would remain for the children.[44] In contrast, the sale of 68 Ford Street would enable the mortgage over Unit 3 to be discharged and would provide an additional amount of around $650,000 to secure the applicant’s future. Her Honour concluded that there was no reason in providing for the applicant to tie up the far greater capital in 68 Ford Street, simply to allow the applicant to live there. The applicant’s claim for an absolute interest in 68 Ford Street did not accord with his known financial needs and it disregarded the deceased’s testamentary intention, which was to leave her assets to her three children.[45]
[44]Ibid [85].
[45]Ibid [84].
There is therefore no clear nexus between the finding that the applicant’s behaviour towards the deceased was in some respects ‘reprehensible’ and the provision that the judge decided that he needed from the estate in order to satisfy his needs. The judge had regard to the nature of the relationship between the applicant and the deceased, along with the surrounding circumstances, but focussed on objective considerations: what value there was in the estate; what money and property was owned by the applicant; what his needs were; and to what extent those needs could be catered for from the assets of the estate. The ‘limited’ moral obligation of the deceased to the applicant was a relevant factor, but the judge did not attribute much, if any, weight to that factor when actually determining the amount of the provision. Far more important was her Honour’s consideration of the needs of the applicant and what was required to be taken from the estate to meet those needs.
As a result, we are not persuaded that the exercise of her Honour’s discretion miscarried by reason of her finding that some of the applicant’s behaviour towards the deceased was ‘reprehensible’.
The applicant’s first proposition, insofar as it stands as a proposed ground of appeal, is not made out.
We turn to the second proposition advanced by the applicant, which centres on the judge’s observation that the applicant would be unlikely to leave his assets to his children. This, so it was submitted, was an irrelevant consideration.
It is necessary to consider the impugned observation in the context in which it appears in the Reasons. It appears in a paragraph in which the judge dealt with the applicant’s financial position and his preference to live in the house at 68 Ford Street. The judge commented that apart from his expressed preference and the fact that he built 68 Ford Street, it remained unclear why the applicant would wish to live in a large family home given that the applicant had also built Unit 3 and the family had lived in both properties over the years. Her Honour continued:
In reality, the [applicant’s] preference derives from his belief that 68 Ford Street should be his property in its entirety. His position was that if he remarries and does not provide for his children, his children could make a claim on his estate. Given the breakdown in the relationship between the plaintiff and his three children, it can be inferred that the plaintiff is unlikely to leave any of his assets to his children at all on his death.[46]
[46]Ibid [83].
The observation that it was unlikely that the applicant would leave any of his assets to his children upon his death therefore elucidated a submission made by the applicant. It flowed from the applicant’s argument. There is no sign that it played any role in the judge’s decision not to give the applicant an absolute interest in 68 Ford Street. As we have discussed, there were other reasons for this decision.
The second proposition, that it was irrelevant that the applicant was unlikely to leave his assets to his children, is correct as a proposition. However, the impugned observation was not a factor taken into account by the judge in the exercise of her discretion. It played no part in the path of reasoning to the conclusion that the applicant should have a life interest in Unit 3 rather than an absolute interest in 68 Ford Street.
In our view, the second proposition does not establish that the judge acted upon a wrong principle or allowed an extraneous or irrelevant matter to guide or affect the exercise of her discretion. The error alleged by the second proposition is not made out.
The third proposition, which is the alleged failure by the judge to properly take into account the financial position of the beneficiaries, is raised in support of the contention that the applicant should have been granted an absolute interest in 68 Ford Street, as there was no competing need for that asset.
In exercising her discretion as to the provision that should be made for the applicant, the judge was required to, and did, consider the extent to which the estate could accommodate the needs of the applicant, having regard to his circumstances, including his financial position. As the judge stated — correctly — it was unnecessary for any of the beneficiaries of the estate to show need or establish a moral obligation to be entitled to the provision left to them by the deceased. [47]
[47]Ibid [53].
In any event, the facts before the judge did not show an absence of need on the part of the children. There was no challenge to the judge’s findings about the assets and liabilities of the children. Having regard to those assets and liabilities, even if it could be said that the respondent, Tanja, was ‘well off’, the other children were not. At the time of the decision below, Marija was employed as a part-time teacher earning an annual salary of $45,000. Her husband was employed as a manager with a gross salary of $125,000. They owned a property valued at approximately $1.4 million but had a mortgage of $850,000. They had three young children, aged 6, 3 and 1. Andrija lived in rented accommodation in London and worked as an accountant. He had savings of approximately $50,000. In the circumstances, it would have been well open to the judge not to increase the provision for the applicant on the ground that the respondent was ‘well off’ given the needs of the other beneficiaries.
The applicant’s third proposition, insofar as it stands as a proposed ground of appeal, is not made out.
Conclusion
As s 91 of the Act confers a discretion on the Court, the principles in House v The King[48] are applicable to any challenge to the determination of the judge. The applicant had to persuade the Court that the judge’s discretion miscarried in that she acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect her decision, mistook the facts, failed to take into account some material consideration, or the result was unreasonable or plainly unjust.[49]
[48](1936) 55 CLR 499, 504–505.
[49]Ibid 505.
None of the propositions advanced on behalf of the applicant has persuaded us that the provision made by the judge should be set aside. The applicant has not established the exercise of discretion miscarried so that her decision cannot stand.
Given that the challenge to the judge’s decision was made by way of the three propositions rather than by reference to the proposed grounds of appeal in the Notice of Appeal, it is inappropriate to grant leave to appeal on those grounds and then dismiss the appeal. Instead, leave to appeal will be refused.
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