Sim v Public Trustee, White v Public Trustee

[2005] NSWSC 751

CITATION:	Sim v Public Trustee, White v Public Trustee [2005] NSWSC 751
HEARING DATE(S):	13 July 2005
JUDGMENT DATE :	28 July 2005
JURISDICTION:	Equity Division
JUDGMENT OF:	Associate Justice McLaughlin at 1
DECISION:	In each proceeding I make the following orders: (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. (3). I order that the Defendant be entitled to recoup out of the estate of the late Rose Ellen Jones ("the Deceased") the difference between the foregoing costs which he may recover from the Plaintiff and the costs of the Defendant on the indemnity basis. (4). The exhibits may be returned.

CATCHWORDS:	Succession. Family Provision. Claims by two adult daughters. Deliberate estrangement of each Plaintiff from Deceased. Statements by Deceased. Financial and material circumstances of each Plaintiff. Whether either plaintiff has been left without adequate provision for her proper maintenance. Significance of estrangement to community expectation. Estrangement is relevant to exercise of Court's discretion.
LEGISLATION CITED:	Family Provision Act 1982 Testator's Family Maintenance and Guardianship of Infants Act 1916
CASES CITED:	Singer v Berghouse (1994) 181 CLR 201 Walker v Walker (17 May 1996, unreported)
PARTIES:	Carolyn Dianne Sim (Plaintiff 2709 of 2004) Lynette Helen White (Plaintiff 4059 of 2004) The Public Trustee (Defendant in each proceeding)
FILE NUMBER(S):	SC 3709 of 2004; 4059 of 2004
COUNSEL:	C. Locke (Plaintiff 3709 of 2004) R. Lovas (Plaintiff 4059 of 2004) B. Townsend (Defendant in each proceeding)
SOLICITORS:	J. A. Kavanagh & Co (Plaintiff 3709 of 2004) A. E. Dunne (Plaintiff 4059 of 2004) B. Maher (Defendant in each proceeding)

LOWER COURT JURISDICTION:

- 17 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Thursday, 28 July 2005

3709/04 - CAROLYN DIANNE SIM –v- THE PUBLIC TRUSTEE

4059/04 - LYNETTE HELEN WHITE –v- THE PUBLIC
TRUSTEE

JUDGMENT

1 HIS HONOUR: These are two proceedings under the Family Provision Act 1982.

2 By summons 3709 of 2004 filed on 30 June 2004 Carolyn Dianne Sim claims an order for her education, maintenance and advancement in life out of the estate of her late mother, Rose Ellen Jones (to whom I shall refer as “the Deceased”).

3 By summons 4059 of 2004 filed on 21 July 2004 Lynette Helen White claims an order for provision for her education, maintenance and advancement in life out of the estate of the Deceased.

4 On 4 August 2004 orders were made by consent that the two proceedings be heard together and that the evidence in each proceeding be evidence in the other. (Those orders were replicated in a further order made by consent on 27 April 2005.)

5 The Plaintiffs are the only children of the Deceased. I shall, without intending to them any disrespect, refer to Carolyn Dianne Sim as Carolyn, and to Lynette Helen White as Lynette. Carolyn was born on 1 January 1945, and is presently aged 60. Lynette was born on 26 December 1948, and is presently aged 56.

6 The Deceased died on 27 August 2003. She left a will dated 3 November 2000, probate whereof was on 12 December 2003 granted to the Public Trustee, the executor named in such will (who is the Defendant to each of the present proceedings).

7 By that will the Deceased made a gift of shares and gave pecuniary legacies to the three children of Lynette. (Those gifts have a total monetary value of less than $7,000.) The Deceased then gave legacies of $10,000 to the Victor Chang Cardiac Research Centre, $15,000 to the Royal Society for the Prevention of Cruelty to Animals (subject to that entity providing a home and care for the two dogs owned by the Deceased at the time of her death), a further legacy of $30,000 to the Royal Society for the Prevention of Cruelty to Animals. The Deceased gave the residue of her estate to the New South Wales State Cancer Council.

8 The inventory of property discloses the assets of the Deceased to consist of a house property situate at and known as 2 Lee Street, Warrawong, to which an estimated value of $210,000 was attributed; household furniture and goods, to which an estimated value of $1,000 was attributed; moneys in bank accounts, totalling $12,909; shares and other investments of a value totalling $7,880.

9 The liabilities of the estate at the time of the Deceased’s death, consisting essentially of funeral expenses, totalled about $5,540.

10 All the assets of the estate (other than shares, which have been specifically bequeathed, and jewellery, having an estimated value of $715) have been realised. The executor’s corpus commission on those realised assets has been paid. The Defendant holds about $218,000 in its common fund. A small amount of commission will be payable in respect to the foregoing shares and jewellery.

11 It will be appreciated that in calculating the value of the estate available for distribution the costs of the present proceedings must be taken into account. It has been estimated on behalf of Carolyn that her costs will total $24,000 and on behalf of Lynette that her costs will total $23,700, whilst it has been estimated by the Defendant that his total costs in respect of the two proceedings will be $30,000.

12 It follows, therefore, that the value of the distributable estate will be no more than $195,000 (since the Defendant, irrespective of the outcome of the proceedings, will be entitled to his costs out of the estate), and possibly as little as $147,300, if the costs of both Plaintiffs are ultimately payable out of the estate.

13 Carolyn left school at the age of 14 to take employment. It was her evidence that she was required to do so by the Deceased and that thereby she missed opportunities which she might have had if she had remained in school. She married at the age of 21 in 1966, two children, Karen (now aged 36) and Scott (now aged 34), being born of that marriage.

14 Carolyn, her husband and their children subsequently removed to Nowra. It was a source of problems between Carolyn and her mother that, according to Carolyn, she and her family were required to travel from Nowra to Sydney at the insistence of the Deceased to celebrate Christmas each year.

15 Carolyn’s marriage came to an end in 1973. She received $74,000 by way of a divorce settlement, and used that money to purchase a block of land, upon which she had a house constructed, using funds borrowed from a bank for that purpose.

16 In 1995 Carolyn entered into a de facto relationship with Keith Sim, whom she subsequently married on 30 January 2004. Carolyn had known Mr. Sim since childhood and his parents had been close friends with her parents.

17 According to Carolyn their present residence at Bald Hills in Queensland, which is jointly owned by them, is worth about $240,000, and is subject to a mortgage of $55,000. Carolyn owns a 1998 Hyundai motor vehicle, said to be worth about $10,000 - $12,000. She stated that she cannot afford to purchase a new motor car. She has about $300 in a bank account, and about $100 in a cash management account. She has a superannuation entitlement with Sun Super in an amount of about $16,000.

18 Carolyn’s husband works from home as a self-employed accountant, earning about $500 a week. He drives a Toyota Echo motor vehicle (which he has purchased relatively recently upon some form of time payment). He has no other assets or investments. However, he did receive two inheritances, from his parents, at some stage before he and Carolyn married. Mr. Sim also entered into an unsuccessful business venture in the United Kingdom. He has a small superannuation entitlement, which in May 2003 had a value of $2673 (Exhibit B).

19 Carolyn is employed as a secretary by a cardiovascular physician at the Wesley Private Hospital in Brisbane. In that employment she receives $571 net a week. She calculates her expenditure (which I assume to be the conjoint expenditure of herself and her husband) as totalling $521 a week. That expenditure includes mortgage repayments of $150 a week.

20 In 2002 Carolyn was the victim of a mugging by a bag-snatcher. She fell heavily to the concrete pavement, and in consequence she sustained a prolapsed disc, which she says now requires surgery. She also suffers from arthritis affecting her neck, her back and both hands. She suffers from high blood pressure, for which she takes medication. In August 2004 she was diagnosed as suffering from hypertension and coronary artery disease, for which conditions she takes medication. In October 2004 she underwent a coronary angiogram.

21 Carolyn received victim’s compensation of $10,000 in respect to the bag-snatching incident. That money has been expended on medical treatment.

22 Carolyn estimates that the furniture and personal effects owned by herself and her husband have a market value of about $2,000 to $3,000.

23 Carolyn has not yet undergone the surgical procedure in respect to her prolapsed disc. She has been advised that the cost of such surgery will total about $6,500. A medical report from Dr. William E. Ryan, orthopaedic surgeon and spinal surgeon, states that Carolyn’s prognosis is very good in the long term. If she has an operation she will be expected to return to full activities with minor pain three months from the date of surgery.

24 It was the evidence of Carolyn that, although she would like retire by the age of 65, it will be necessary for her to continue working beyond that age in order to pay off the mortgage on her residence. She estimated that if she were to retire at the age of 63 (when she will become entitled to receive the age pension) she would receive superannuation benefits of about $20,000.

25 Lynette left home when she was aged 16 in about 1966, and she resided in a flat with a cousin a Croydon Park, whilst she was working for the Bank of New South Wales. Lynette married her present husband, James Leonard White, on 26 February 1974. At the outset they lived in rented accommodation at Summer Hill, but in 1976 Lynette and her husband purchased a residence at Mt. Druitt. The deposit of $5,000 required for that purchase was lent to Lynette and her husband by the Deceased. They repaid that amount (together with agreed interest) in 1979 from the proceeds of an inheritance which Lynette’s husband received from his father.

26 Lynette and her husband have three children (born respectively in 1975, 1977 and 1980), who are the three personal beneficiaries named in the will of the Deceased.

27 Lynette’s husband, who is presently aged 54, has suffered from a kidney disease since 1983. Subsequently he was diagnosed with diabetes and has suffered heart problems. He also requires reconstruction of both knees, and wears orthopaedic braces on each leg (as a result of an accident which he suffered at work in 1980).

28 Lynette herself has for the past twenty years suffered from an under-active thyroid, for which she takes medication. One thyroid has been removed. She is also having investigative treatment for a rotator cuff injury to her right shoulder. She has been informed by her treating orthopaedic specialist that she will require a shoulder reconstruction in the short term future.

29 Lynette has for the past fifteen years been employed as an office manager by a company, R. B. Maher Electric Pty Limited, which rewinds motors. She works three days a week and receives $23,000 gross a year. However, Lynette’s employment future is uncertain, since her employer is elderly, and both he and his wife are in poor health. Lynette has no personal savings.

30 Lynette’s husband has been employed for the past 28 years by the P&O Ports Limited as a serviceman repairing machinery. He earns $66,000 gross a year. He has no savings. According to Lynette his employment prospects are doubtful.

31 Lynette and her husband have embarked upon an aggressive financial enterprise of acquiring real estate investments, funded by interest only loans. At the present time they own nine pieces of real estate in New South and in Queensland, having a total gross value (at Lynette’s own estimations) of $3,895,000, in respect of which they owe amounts (secured by mortgage) totalling $2,506,000. In addition, they have a Power

Vantage account with HSBC Bank, in which there is a present credit of $173,800, and they own shares in public companies, having a total value of a little over $18,000.

32 Lynette and her husband have superannuation entitlements totalling $396,000.

33 Their residence at 16 Todd Court, Wattle Grove has, according to Lynette, an estimated present value of $650,000. Lynette estimated that the furniture and furnishings were worth about $60,000. There is no suggestion that its contents and furnishings are in anyway defective, or are unsuitable for the quality of life of Lynette and her husband. They obviously maintain a comfortable lifestyle. They have enjoyed a holiday in Europe in 2004, and have travelled on two cruises in the past five years (the most recent being in January 2004), and they are planning to go on another cruise next year. Their lifestyle also includes spending some time in Queensland once or twice a year, for the primary purpose of conducting inspections of their various properties in that State.

34 It is the intention of Lynette and her husband ultimately to make large capital gains on their real estate investments. They are in a financial position to service all their mortgage loans. Indeed, their bank statements show very substantial credit balances. In their Power Vantage account those balances in the period from February 2003 to September 2004 have ranged from as little as $4,000 to as much as $254,000. At most times the credit balances were in excess of $100,000, and often in excess of $200,000.

35 Upon the foregoing figures Lynette and her husband have net assets totalling about $1,577,000. Even if the value of their family home ($650,000) is deducted from that figure, they still have net investments worth almost $927,000.

36 The total annual income of Lynette and her husband from their respective employments is $89,000. In addition, they receive by way of rents from their various investment properties an annual amount of $80,767, giving to them a total income of almost $170,000.

37 Lynette estimates her domestic and household expenses at $47,930. The liabilities of herself and her husband in respect to the loans on the various investment properties (totalling $114,996), council rates ($8,794) and agency fees ($7,192) total $130,983. That is, their expenses and outgoings total $178,913. Upon the foregoing calculations the expenses and outgoings of Lynette and her husband exceed their annual income by $9,146. Nevertheless they are able to maintain the lifestyle which I have described. Lynette frankly conceded that she and her husband were not desperate and were not destitute.

38 A considerable quantity of evidence was directed to the relationship between each Plaintiff and the Deceased. Carolyn and her mother had a very poor relationship, and they were totally estranged for the last twenty-three years of the Deceased’s lifetime. Various written communications between the Deceased and Carolyn were placed in evidence, as well as statements in writing addressed by the Deceased to her solicitor and made at the time when she made her will. Those statements by the Deceased are in evidence pursuant to section 32 of the Family Provision Act.

39 Lynette and her mother also had a very poor relationship, although not quite so bad as that which obtained between Carolyn and the Deceased. Lynette and the Deceased were estranged from 1996, and the last time Lynette saw her mother was in 1998, some five years before the Deceased’s death. The estrangement between Lynette and her mother, was due, at least in part, to the insistence by Carolyn that a term of the reconciliation between Carolyn and Lynette in the mid-1990s was that Lynette should cease to have any contact with their mother.

40 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claim of each Plaintiff.

41 In each matter I have had the benefit of receiving from Counsel for the Defendant a written outline of submissions and a chronology. Those documents will be retained in the Court file.

42 Each Plaintiff, as a child of the Deceased, is an eligible person in relation to the Deceased. As such, each Plaintiff has the standing to bring her present proceedings. There are no other eligible persons in relation to the Deceased. None of the three personal beneficiaries (who are grandchildren of the Deceased, being children of Lynette) is an eligible person in relation to the Deceased.

43 I would here interpolate that neither Plaintiff, in bringing her present claim, seeks to disturb the benefits given by the will to the three personal beneficiaries. In consequence, the net value of the estate which may be the subject of any order for provision in favour of one or both of the Plaintiffs will be reduced by a further $7,000. It should also here be noted that the Plaintiffs, who were represented by the same solicitors and Counsel sought that they should receive equal benefits from the estate of the Deceased.

44 Neither Plaintiff was aware of any contact by the Deceased with either the Victor Chang Cardiac Research Centre or the New South Wales State Cancer Council. There was no evidence that the Deceased during her lifetime made any donations or other contributions to either of those entities. However, the Deceased during her lifetime made regular contributions to the Royal Society for Prevention of Cruelty to Animals. Nevertheless, each of the foregoing entities must be recognised as being a chosen object of the testamentary beneficence of the Deceased, whose entitlement under the will of the Deceased should not lightly be interfered with, and then only in accordance with settled legal principles.

45 It should at the outset be observed that an order for provision is not made as a reward for services or good conduct on the part of an applicant. Neither is such an order withheld as punishment for perceived bad conduct on the part of an applicant. The relationship between a applicant and a testator is, of course, relevant to the exercise of the Court’s discretion to make an order for provision in favour of the applicant.

46 Also, it is appropriate here to emphasise that it is incumbent upon an applicant for provision to present to the Court as fully and as frankly as possible all information concerning the applicant’s financial and material circumstances. A defendant executor should not be required to elicit that information from a reluctant applicant. There were significant omissions in the information presented to the Court by Lynette. For example, in her primary affidavit one of the pieces of real estate was omitted. It also emerged from her oral evidence that various shareholdings by Lynette and her husband and various bank accounts maintained by them were not disclosed in her affidavit evidence.

47 I have already referred to the items of correspondence between the Deceased and Carolyn and statements made about Carolyn by the Deceased. Carolyn denied many of the assertions made to and about her in those documents. It is not necessary that I should separately deal with each such assertion made by the Deceased and denied by Carolyn. It should, however, be appreciated that testators are only human. The fact that a statement is made by a testator does not mean that the Court must necessarily accept without question that statement as being true and accurate, especially since the testator cannot be cross-examined concerning the statement.

48 Having said that, however, it clearly emerges from the written communications between the Deceased and Carolyn that Carolyn was content to have nothing to do with her mother. Such an attitude was expressed by Carolyn in her oral evidence at the trial. The Deceased sent to Carolyn a birthday card for Carolyn’s fiftieth birthday (which fell on 1 January 1995), in which the Deceased said that she wished to extend the hand of friendship to Carolyn. Carolyn rejected those conciliatory overtures in a letter to the Deceased, whose tone and content were described by Counsel for the Defendant as being insulting and rude.

49 The Deceased was not a part of the life of Carolyn for her last twenty-three years or a part of the life of Lynette for her last seven years. Both Plaintiffs were quite content to accept that situation, and Carolyn expressly rejected her mother’s overtures for a reconciliation. However, each of the Plaintiffs now seeks to receive a benefit from the estate of their deceased mother, whom each deliberately rejected in her lifetime and whom each expressly did not wish to be any part of her own life.

50 The Defendant relies upon the foregoing facts as constituting what was (in relation to the Testator’s Family Maintenance and Guardianship of Infants Act 1916, being the statutory predecessor of the Family Provision Act) formerly known as conduct disentitling, and submits that, in the light of such conduct, each of the Plaintiffs should be denied the benefit of any order for provision out of the estate of her mother.

51 In carrying out the first stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 at 208 the Court must first establish whether each Plaintiff has in consequence of the terms of the will of the Deceased been left without adequate provision for her proper maintenance.

52 In considering Carolyn’s financial and material circumstances those of her husband must be taken into account. According to Carolyn, her husband’s income is “about $500 per week”. However, no information was given by her or by her husband concerning her husband’s expenses. Apart from the expenses which Carolyn herself listed as totalling $521 a week (which I have already stated I assume to be the conjoint expenditure of herself and her husband), the only other expenses of her husband appear to be those associated with the purchase of his Toyota Echo motor vehicle, which he acquired at some unspecified time between 6 September 2004 and 12 May 2005, and which he is paying off over a period of four years. The combined weekly income Carolyn and her husband is about $1,071, whilst their expenditure (apart from the unquantified payments made be her husband in respect to his new motor vehicle) total less than half that amount, being $521 a week.

53 Carolyn expressed her needs as being the improvement of what she described as the present precarious financial position of her husband and herself, and the ability to pay for necessary medical treatment and to improve the quality of their life generally. In this latter regard Carolyn set forth a wish list concerning entertainments and a cruise to Europe. In submissions Counsel for the Plaintiffs refined those needs as being the cost of surgery and a capital fund to meet future contingencies.

54 Upon the information which she has placed before the Court, Carolyn and her husband have a combined weekly income of at least twice their weekly expenditure. They have no difficulty in meeting the mortgage repayments on their residence. Carolyn’s husband has in quite recent times been in a position where he was able to acquire on some form of time payment a new motor vehicle (the price and payments in respect whereof Carolyn has chosen not to place before the Court); he presumably felt confident that he would be able to make the repayments.

55 The only specific need which has been quantified in monetary terms relates to the surgical procedure which Carolyn requires in respect to the prolapsed disc in her lumbosacral spine. An estimation of the costs of that procedure (totalling $6,521) includes various hospital fees (totalling $3,740), as well as fees for the surgeons and anaesthetist (totalling $2,781). In presenting this total amount of $6,521 Carolyn has not taken into account her membership of the Medical Benefits Fund (for which she pays $18 a week), or her entitlement to refunds from Medicare. It is quite apparent that the proposed surgical procedure will not cost Carolyn personally anything like the amount of $6,521.

56 Carolyn and her husband appear to have no difficulty in meeting the mortgage payments on their residence.

57 In these circumstances I am not persuaded that Carolyn has been left without adequate provision for her proper maintenance.

58 It is unnecessary, therefore, for me to proceed to a consideration of the second stage in the foregoing two-stage process. Were it necessary for me to do so, however, I consider that the conduct of the Plaintiff in accepting an estrangement from the Deceased extending over almost a quarter of century (irrespective of the cause of such estrangement – and doubtless there were faults on both sides), even after the Deceased attempted to effect a reconciliation, and now, after her mother’s death, in wanting benefits from her estate, would be a very relevant consideration in the exercise of the Court’s discretion to make an order for provision in favour of Carolyn. It will be appreciated that the character and conduct of an applicant are among the matters expressly referred to in section 9(3) of the Act which the Court may take into consideration in the exercise of its discretion in determining what provision (if any) ought to be made in favour of the applicant.

59 In this regard I would refer to the decision of the Young J (as he then was) in Walker v Walker (17 May 1996, unreported), where His Honour said,

It is often impossible to work out whether the degree of separation between parent and child at the date of the parent’s death is solely the fault of either or whether it has come about by factors too strong for either to control or somewhere in between.
The important matter is not fault, but, whether in all the circumstances it would be expected by the community that the testator would have to make a greater benefaction than he in fact did to constitute proper or adequate provision for the Plaintiff.
Accordingly, I reject the approach that all an applicant under this Act has to do is to prove that he or she is an eligible person and that he or she reasonably needs more financial assistance. The cases show that there must be a full investigation into all the facts and circumstances of the matter to see whether the community would expect that a person in the plight of this testator ought to have made provision or further provision for the applicant.

60 In the circumstances of this case the deliberate decision of Carolyn (a decision which was ultimately imposed upon and accepted by Lynette) to exclude the Deceased from her life, a decision to which she adhered despite the overtures of reconciliation made by the Deceased, is such that in my view it would not be expected by the community that the Deceased should have made any testamentary provision for Carolyn. It follows that the Court, in the exercise of its discretion, would not make an order for provision in favour of Carolyn. For that reason also the claim of Carolyn would be dismissed.

61 Lynette and her husband have embarked upon an aggressive financial enterprise of acquiring real estate properties by way of interest only loans secured by mortgage, with a view, in the expectation of a rising real estate market, to making significant capital gains.

62 The net assets of Lynette and her husband exceed their liabilities by $1,577,000. If the value of the family home ($650,000) be deducted from the foregoing figure, they have a net credit of assets beyond liabilities of $927,000. In addition, they have superannuation entitlements totalling $396,000, as well as two motor vehicles, together with the furniture and contents of their residence (having an estimated value of about $60,000).

63 Lynette and her husband maintain a comfortable lifestyle. They had a holiday in Europe for three weeks in 2004. Earlier in that year, in January 2004, they went on a cruise with Carolyn. They had been on one other cruise during the last five years, and they are planning to go on yet another cruise in 2006. They travel from their residence to Queensland once or twice a year, those visits being essentially, according to Lynette, for the purpose of conducting property inspections.

64 Lynette and her husband intend ultimately to make large capital gains on their real estate investments. They are in a position of being able to service all their real estate loans. Their bank statements show substantial balances (usually well in excess of $100,000).

65 It was submitted on behalf of Lynette that her relevant need was to repay capital on the interest only loans, in order to make provision for the future of herself and her husband. It was submitted that Lynette and her husband had made significant contributions of a material and familial nature to the welfare of the Deceased.

66 It is abundantly obvious from the financial and material circumstances of Lynette and her husband that Lynette cannot demonstrate that she has been left without adequate provision for her proper maintenance. That being so, it is not necessary for me to proceed to a consideration of the second stage in the foregoing two-stage process identified by the High Court of Australia.

67 In any event, the amount claimed by Lynette, about $70,000 (representing a one half share in the available distributable estate, after meeting the gifts to the personal beneficiaries), would do little, in the context of their heavily mortgaged investment properties, to reduce the financial liabilities of Lynette and her husband.

68 Nevertheless, if (contrary to the conclusion which I have just expressed) it were it necessary for me to proceed to the second stage in the foregoing two-stage process, I would take into account the conduct of Lynette in knuckling under to her sister’s requirement that, in order to renew a relationship with Carolyn, Lynette would have to renounce all contact with the Deceased, and the refusal of Lynette to have any such contact during at least the last five years of her mother’s life. As in the case of Carolyn, that conduct on the part of Lynette is such that the Court, in the exercise of its discretion, would not make an order for provision in favour of Lynette.

69 Even if Lynette were able to demonstrate some present need of a financial or material nature, that need could adequately be met if she and her husband sold one or more of their investment properties. But they have no need. Lynette has not been left without adequate provision for her proper maintenance. Accordingly, her claim will be dismissed.

70 In each proceeding I make the following orders:

(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.

(3). I order that the Defendant be entitled to recoup out of the estate of the late Rose Ellen Jones (“the Deceased”) the difference between the foregoing costs which he may recover from the Plaintiff and the costs of the Defendant on the indemnity basis.

(4). The exhibits may be returned.

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