Sassoon v Rose

[2013] NSWCA 220

Court of Appeal

New South Wales

Case Title:

Sassoon v Rose

Medium Neutral Citation:

[2013] NSWCA 220

Hearing Date(s):

11 July 2013

Decision Date:

19 July 2013

Before:

Meagher JA at [1];
Gleeson JA at [29]

Decision:

(1) Application for leave to appeal dismissed.

(2) Applicant pay respondent's costs of the application.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - application for leave to appeal from two decisions - each decision involved exercise of discretion or discretionary judgment - neither arguably attended by error of kind described in House v The King (1936) 55 CLR 499 - leave to appeal refused

Legislation Cited:

Family Provision Act 1982, s 16
Succession Act 2006, ss 58, 59
Uniform Civil Procedure Rules 2005, rr 7.36, 42.1

Cases Cited:

Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Churton v Christian (1988) 13 NSWLR 241
Diver v Neal [2009] NSWCA 54
Foley v Ellis [2008] NSWCA 288
House v The King (1936) 55 CLR 499
Mulcahy v Weldon [2002] NSWCA 206
Re Fulop Deceased (1987) 8 NSWLR 679
Sassoon v Rose (Supreme Court of New South Wales, White J, 15 November 2012, unreported)
Sassoon v Rose [2011] NSWSC 378
Sassoon v Rose [2012] NSWSC 1554
Singer v Berghouse [1994] HCA 40; 181 CLR 201

Category:

Principal judgment

Parties:

Aliza Alice Sassoon (Applicant)
Adrian Rose (Executor of the estate of I J Beder) (Respondent)

Representation

- Counsel:

Counsel:
A A Sassoon (in person) (Applicant)
T Bors (Respondent)

- Solicitors:

Solicitors:
Denes Ebner Lawyers (Respondent)

File Number(s):

2013/7578

Decision Under Appeal

- Court / Tribunal:

Supreme Court

- Before:

White JMacready AsJ

- Citation:

Sassoon v Rose (Supreme Court of New South Wales, White J, 15 November 2012, unreported)Aliza Alice Sassoon v Adrian Rose[2012] NSWSC 1554

- Court File Number(s):

2011/82496

JUDGMENT

1. MEAGHER JA: The applicant, Ms Aliza Alice Sassoon, seeks leave to appeal from two decisions in proceedings brought by her against Mr Adrian Rose as executor of the estate of her former husband, Isaac Joseph Beder (the deceased), who died on 24 August 2009. Those proceedings included an application by Ms Sassoon for provision under the Family Provision Act 1982 or the Succession Act 2006: see Sassoon v Rose [2011] NSWSC 378 (Brereton J) at [8] and Sassoon v Rose (Supreme Court of New South Wales, White J, 15 November 2012, unreported) at [3].

2. Ms Sassoon's summons making that application was filed on 14 March 2011, more than 12 months after the deceased's death. For that reason she required an extension of the time for making it: see s 58(2) of the Succession Act, which is in similar terms to s 16(3)(b) of the Family Provision Act.

3. On 10 July 2012 the Registrar of the Equity Division listed for hearing before Macready AsJ on 5 December 2012 Ms Sassoon's application for an extension of time and her application for a family provision order. On 2 November 2012 Ms Sassoon filed a notice of motion seeking to vacate that hearing date. That application was heard by White J on 15 November 2012. His Honour dismissed that motion with costs. By paragraph 2 of the orders sought by her summons in this Court, the applicant seeks to have White J's costs order "dismissed".

4. The hearing before Macready AsJ proceeded on 5 December 2012. On 14 December 2012 his Honour delivered judgment (Sassoon v Rose [2012] NSWSC 1554) allowing the application for an extension of time, dismissing the application for family provision and ordering that Ms Sassoon pay Mr Rose's costs of the proceedings. By paragraph 1 of the orders sought by her summons in this Court, the applicant seeks an order that the judgment of Macready AsJ be "scrapped, and Retried".

5. By her summons in this Court, the applicant also seeks the following further orders:

   "3. That the Executor in Melbourne, Adrian Rose, be dismissed.

   4. That Housing and Community services be included in this Appeal.

   5. That I need a PROPER Legal Representative to take my simple instructions to resolve all this stress and traumas I have sustained because I DID NOT EVER GET A DIVORCE SETTLEMENT ..."

6. None of these claims involves an appeal or proposed appeal from, or review of, any earlier decision of a judge of the Supreme Court of New South Wales or any other court or tribunal in relation to which this Court either has appellate or supervisory jurisdiction.

7. To the extent that the relief sought by paragraph 5 can be understood as being for an order for referral to the Pro Bono Panel under the Uniform Civil Procedure Rules 2005 (UCPR), r 7.36, in my view this Court should not make such a referral. Having regard to the history of the applicant's earlier referrals for legal advice, as recorded in the unreported judgment of White J (at [6]-[16]), and to the further delay which would result from such a referral, it would not be in the interests of the administration of justice for an order for referral to be made.

8. It is convenient to deal first with Ms Sassoon's application for leave to appeal from the costs order made by White J and then to consider the application in relation to the orders of Macready AsJ.

The costs order of White J

1. The matters which are relevant when considering an application for leave to appeal to the Court are summarised by Basten JA (Tobias AJA agreeing) in Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[37]. An applicant for leave must establish something more than that the primary judge was arguably wrong in the conclusion arrived at. Ordinarily leave will only be granted in matters which involve issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable.

2. The decision of White J that Ms Sassoon pay the costs of her notice of motion involved the exercise of a discretion. To successfully challenge that decision, the applicant must establish an error on his Honour's part of the kind described in House v The King (1936) 55 CLR 499. The general rule in relation to the exercise of the discretion as to costs is that costs follow the event unless it appears that some other order should be made: UCPR, r 42.1. The relevant "event" in relation to Ms Sassoon's motion was that it be dismissed. The application of the general rule would mean that Ms Sassoon should pay Mr Rose's costs. Ms Sassoon argued before White J she should not be ordered to pay those costs because she was impoverished and would not be able to meet such an order. His Honour rejected that argument. He did not err in doing so. The fact that an unsuccessful party is or may not be able to meet an order for costs is not a good reason to deprive the successful party of the opportunity to enforce or attempt to enforce such an order. His Honour did not err in the exercise of his discretion and Ms Sassoon's application for leave to appeal from that decision should be refused.

The orders of Macready AsJ

1. Macready AsJ dismissed Ms Sassoon's application for a family provision order for two reasons. The first was that his Honour was not satisfied for the purposes of s 59(1)(b) of the Succession Act that there were factors which warranted the making of the application by Ms Sassoon, as a former wife of the deceased: [37]. The second reason was that his Honour was not satisfied for the purposes of s 59(1)(c) of that Act that inadequate provision had been made for the proper maintenance, education or advancement in life of Ms Sassoon. The Court was required to be satisfied as to that matter before it could exercise the discretion to make a family provision order.

2. Each of these determinations involved an evaluative judgment requiring consideration of the extent of the deceased's estate and the respective circumstances, needs and claims of Ms Sassoon and the beneficiaries named in the will, taking into account community standards and expectations of those making testamentary dispositions. A review of the primary judge's determination of those questions on appeal to this Court is to be undertaken according to the principles applicable to the exercise of a discretionary power: Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 212; Mulcahy v Weldon [2002] NSWCA 206 at [24]; Foley v Ellis [2008] NSWCA 288 at [5], [83]. Accordingly, on her application for leave to appeal Ms Sassoon must identify an arguable error of law or mistake of fact or other error such as the taking into account of an irrelevant consideration or the disregarding of a relevant consideration.

3. Ms Sassoon's written and oral submissions to this Court do not focus upon the identification of such errors. That is not a criticism of her submissions. It is not to be expected that someone who is not a lawyer, and not familiar with the relevant principles, should do so. Those submissions address several matters, many of which are not directly relevant to the application before this Court. Ms Sassoon makes a number of complaints as to subjects which include her treatment by the deceased, her mother, her brother and his wife, the respondent, the Housing Commission and Jewish Care. In some cases the subject matter of those complaints extends back over a number of years. In relation to the deceased, she maintains that she was never properly divorced from him and that she was therefore entitled, on his death, to the whole of his estate. In relation to the proceedings before Macready AsJ, Ms Sassoon complains about the conduct of the senior counsel to whom she was referred under the Pro Bono scheme. In her oral submissions to this Court, she said that she had never really intended to make a claim under the Family Provision Act and identified, as matters of concern to her, the property settlement recorded in the orders made by the Family Court at the time of her divorce and that adequate provision had not been made for each of her children under the deceased's will.

4. Taking these submissions and concerns of Ms Sassoon into account, it is necessary to consider whether there are arguable errors in Macready AsJ's determination of her application.

5. In addressing the question whether there were factors warranting the making of her application, Macready AsJ correctly identified the relevant principles as those stated by McClelland J in Re Fulop Deceased (1987) 8 NSWLR 679 at 681, approved by this Court in Churton v Christian (1988) 13 NSWLR 241 at 252 and applied in cases such as Diver v Neal [2009] NSWCA 54 at [8]. Those "factors" are ones which, when added to the facts which render the applicant an "eligible person" (in Ms Sassoon's case the fact that she is the former wife of the deceased), give her the status of a person who would generally be regarded, according to community standards and expectations, as a natural object of testamentary recognition.

6. Ms Sassoon maintained before Macready AsJ, and repeated in this Court, that although there had been a property settlement in April 1983, she had not received any moneys in accordance with the orders made at that time. Macready AsJ found the position to be otherwise. The property settlement provided for the sale of a house at Maroubra and the payment to the applicant of 40 per cent of the net proceeds of that sale. Although Ms Sassoon initially denied that she had received any moneys from that sale, she subsequently agreed in cross-examination that she had been paid moneys by her solicitors from her share of the proceeds of sale of that property. She also agreed that in 2007 she had investments valued at approximately $137,000 which had been made from those payments and that in 2010 the value of those investments was approximately $56,000: [27].

7. Macready AsJ concluded that there was nothing arising from the terms of that settlement, or the way in which it was given effect, which constituted factors warranting the making of Ms Sassoon's application: [30]. In reaching that conclusion he noted that the applicant had been represented in the proceedings before the Family Court by senior and junior counsel and that no applications had been made subsequently to enforce, set aside or vary those orders.

8. His Honour also had regard to the relationship between the applicant and the deceased since the time of their divorce and the applicant's financial circumstances and needs, to the extent that the evidence permitted him to do so. He noted that the evidence showed that the applicant and the deceased had "little or no contact for the 30 years since their divorce": [36]. He also took into account her difficulties in obtaining accommodation which continued over a number of years. The evidence indicated that Ms Sassoon had resided in her parents' house up until 1999 and that between 1999 and 2007 she had had to rely upon the provision of public housing: [33]. Finally, he recorded that the evidence indicated that following the death of her mother in August 2012 Ms Sassoon was likely to receive "in the order of $270,000" as a result of the distribution of her share in her mother's estate: [35].

9. A consideration of his Honour's reasons, in the context of the submissions made and concerns expressed by Ms Sassoon, does not identify any arguable error which would justify a grant of leave to appeal from his determination that there were not factors which warranted the making of her application.

10. The position is the same with respect to his Honour's determination that he was not satisfied that inadequate provision had been made for Ms Sassoon by the deceased's will.

11. In addressing that question Macready AsJ considered the relationship between Ms Sassoon and the deceased, the circumstances of the other persons who had claims upon his bounty, the size of his estate and, to the extent that there was any relevant evidence of them, Ms Sassoon's present financial circumstances and needs.

12. The deceased and the applicant have five children who were born between 1966 and 1976. They are Roxanna, Regina, Sarah, Joel and Michael. Following the divorce in 1981 the deceased was given sole custody of Michael, Joel and Roxanna and thereafter had "very little contact with Sarah and almost no contact with Regina": [12].

13. By his last will made in April 1986 the deceased left his estate to be divided equally between Michael, Joel and Roxanna. In a codicil made in April 1988 he made a bequest of his home unit at Wiley Park to his daughter Roxanna. No provision was made for the applicant or for the daughters, Regina and Sarah.

14. The deceased's estate consisted of the home unit at Wiley Park, valued at approximately $220,000, and another property which was sold yielding net proceeds of approximately $249,000. The value of his estate after meeting liabilities was about $465,000.

15. Michael commenced his own proceedings for further provision from the deceased's estate. That application was compromised and notice was given to the other children. None of them has made a further application. The evidence before the primary judge indicated that Michael and Joel had limited assets. It was found that Michael lived in rented accommodation and that Joel lived in a small housing commission property in Dundas Valley. Michael was the deceased's full-time carer from 2002 to 2007. Joel continued to have a relationship with his father after he left home in 1997. Roxanna has an intellectual disability, lives alone in government housing and is in receipt of a disability pension.

16. The applicant led no detailed evidence as to her present financial circumstances and needs. As I have already noted, Macready AsJ found that in 2010 she had investments in the order of $56,000 and that, following the death of her mother in 2012, she would inherit an amount in the order of $270,000.

17. A consideration of these matters does not suggest any obvious error of fact or law on the part of the primary judge in his not being satisfied that inadequate provision had been made for the applicant. It follows that Ms Sassoon's application for leave to appeal from his Honour's decision to dismiss her application also should be refused.

Conclusion

1. Ms Sassoon's application for leave to appeal from the decisions of White J and Macready AsJ should be dismissed with costs.

2. GLEESON JA: I agree with Meagher JA.

   **********