Singer v Berghouse

[1994] HCATrans 314

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S58 of 1993

B e t w e e n -

BERNICE SINGER

Appellant

and

MAXWELL BERGHOUSE

Respondent

MASON CJ

DEANE J

TOOHEY J

GAUDRON J

McHUGH J

Singer(2) 1 10/5/94

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 10 MAY 1994, AT 10.22 AM

Copyright in the High Court of Australia

MR M.M. HILBERX:  May it please Your Honours, I appear for

the appellant. (instructed by Theodore Freilich) I

understand that I should assume that Your Honours

have read by submissions, and I do not intend to

repeat them -

MASON CJ:  I think you might allow us to allow Mr Broun to

announce his appearance for the respondent before

you embark on this exercise.

MR M.D. BROUN, OC:  I appear with MS E.A. COHEN, for the

respondent. (instructed by Maxwell Berghouse &

Ives)

MASON CJ: Yes, Mr Hilbery. Now, your assumption is

correct.

MR HILBERY:  Thank you, Your Honours. The appellant

contends that the master's refusal to interfere

with the result of events upon the provisions of

the testator's will was an error. The case comes

before the Court as the first occasion on which the

provisions of the Family Provisions Act 1982 has

been under the consideration of the Court, as I

understand it, and it will be my submission that

the "ought" question has certainly by no means been

diminished, and may well have been magnified by the

intention and effect of the later Act.

The provisions of the new Act differ

materially, in my submission, from those which

obtained under the previous Act. There have been
repeated declarations to the courts of appeal that

the principles to be applied are the same and,

substantially, I would not attempt to argue to the

contrary. But I do feel, with great respect, that

what the Act does illustrate is something that was

said by Mr Justice Stephen in White v Barron,

144 CLR, when he made the remark at page 439:

This area of law is peculiarly the
creature of statute.	A wave of legislation

beginning in New Zealand in 1900 and extending

State by State and Province by Province throughout Australia and most of Canada until

finally reaching England in 1935 -

I believe that actually that should have read
1938 -

has restricted testators' former freedom of

testamentary disposition by enacting varying

versions of testators' family maintenance

legislation. From time to time the enactments

have been amended, almost always in the

Singer(2) 2 10/5/94

direction of wider access to the relief which

the legislation affords.

In the present Act, there is no doubt about the

question that the moral question is put first. It is certainly put first in order of sequence of the sections in the Act. In section 7 the power is to order that:

provision be made out of the estate or

notional estate -

and I wish to come to that later -

or both, of the deceased person as, in the

opinion of the court ought, having regard to

the circumstances at the time the order is

made, to be made for the maintenance,

education or advancement in life of the

eligible person.

It was, of course, by reference to the phrase,
"having regard to the circumstances at the time the

order is made", that the appellants took the view

that unless they disputed the findings of the

master the findings of the master at the date of the hearing were the findings of fact before the court and any evidence that was then established

and uncontroverted would be the only basis on which

the appellant could proceed.

Section 7 is followed by a provision to which

I made some reference in my submissions, namely,

that if an order, no matter how minimal, is once

made there is provision for additional provision;

but section 9 is the controlling section, and it

says that in the case of an order under

section 8 - I refer to subsection (2) - the

provision is made if the court is satisfied that

the provision made -

is at the time the Court is determining

whether or not to make such an order,
inadequate for the proper maintenance,

education and advancement of life of the

eligible person -

it is not to make an order. What seems clear in

that scheme is that the "ought" question comes

first and the adequacy and the propriety of the

provision are even made subordinate to that central

issue.

There are other differences in the Act which,

in my respectful sub~ission, indicate an intention

on the part of the legislature that the court

should have a more ample power than they have

Singer(2) 10/5/94

heretofore exercised with respect to the

disturbance either of testamentary disposition or,

as it may be in this case, in my respectful

submission, the frustration by events, the

premature death of the deceased, of testamentary

intentions.

In the first place it is now clear under

section 24 that distributed estate may be declared

to be notional estate. There is now no need to

consider those questions which were agitated in

this Court as regards the question when

distribution occurs.

It is quite clear that conduct entitling, as

well as disentitling, is contemplated to be within the purview of the court which is deciding whether

adequate provision has been made, whether the

testator or the intestacy has rendered a result

which ought to stand. Similarly, there has been an

amplification which has cleared the questions which
have previously agitated the Court as regards
statements made by the deceased. It is now clear

that they are evidence of the facts stated therein

and, no doubt to some extent, if sufficiently

cogent, coherent and precise, they would certainly

cast some burden upon a person who sought to

disturb the provisions of the will or the

intestacy. That provision is made by section 31.

TOOHEY J:  Mr Hilbery, what is it in the Act that empowers

the court to inquire into past conduct?

MR HILBERY:	Only the "ought", I would think, Your Honour.
TOOHEY J:	I ask it having regard to section 7 which says:

having regard to the circumstances at the time

the order is made - - -

MR HILBERY:  I respectfully accede to what Your Honour says.

It seems to exclude past conduct.

TOOHEY J:  I am not suggesting it does, I am just asking

whether there is anything else in the Act, or

anything in the Act at all, which might point in

either direction.

MR HILBERY:  I do not think so, Your Honour. I have perused

it many, many times and I am not prepared to claim
for a moment that I completely understand it, but I

have not seen any obvious reference.

TOOHEY:	I mean, there is, in a sense, I suppose, in which
the circumstances of the time reflect matters past.

Singer(2) 4 10/5/94

MR HILBERY:  They might still be reflective of those facts,

yes, Your Honour. But otherwise one takes the

facts as they are then apparent. Perhaps,

Your Honour, past conduct might throw some light on

people's future possible problems or needs. But,

certainly, there is no reference now in terms to

conduct disentitling, except - I see a reference in

9(3)(b), Your Honour:

In determining what provision (if any) ought

to be made in favour of an eligible

person ..... the Court may take into

consideration:

Under (b) -

the character and conduct of the eligible

person before and after the death of the

deceased person.

It comes in there, Your Honour.

TOOHEY J: Yes, it does. It also comes in in the context of

"determining what provision, if any". In other

words, it does not seem to go merely to the quantum

of any order that might be made, but whether any

orders should be made at all.

MR HILBERY:  Yes, Your Honour.

TOOHEY J: Thank you.

MR HILBERY:  There are other significant differences, in my

submission, Your Honour. There is the whole

question of notional estate. I did not think that

it would be appropriate to attempt to expound those

sections as to their full implications because this

is a case in which quite clearly there is no

suggestion that any part of the deceased's property ever would have formed part of his notional estate.

What he left was what he had. But the notional

estate provisions do quite clearly seem to indicate

that prior dispositions at almost any time made

could come to be reviewed by a court which was

considering the adequacy of the provision made.	It
appears that if the court believes that the
provision made is inadequate and the estate is not
adequate to deal with other claims upon it, then
resort can be had to tRe notional estate.	My basic

submission is of course that none of these changes

is restricting the discretion or the power of the
court or restricting in any sense the broad
amplitude of the moral question.

My friend has made submissions, Your Honours, which I have not examined in detail, I must

confess, because I received them rather late,

Singer(2) 5 10/5/94

regarding the ante-nuptial agreement. I have of

course referred to that in my submissions in

writing. I would only say this, with respect,

Your Honours, that I was somewhat fortified in my

submission that that is to be totally disregarded

by what was said in Lieberman v Horris not only as

regards the basic findings in that case, but by an

interesting observation of Mr Justice Williams, and

I think others, but certainly Mr Justice Williams

made at pages 93 and 94 of volume 69 reciting the

limitation of time. His Honour drew attention to

the former Act which endured until the Act was
finally repealed, Your Honours - I did check that
point - which provided that within 12 months of the

grant of probate:

the children and the husband or the

wife •.... may agree in writing at any time

before the expiration of this term to be bound

by the will, and, if there be infants, such

agreement may be confirmed by the court.

Considerable reliance had been placed by the court

at first instance by Mr Justice Harvey:

as showing an intention to allow contracting

out. But the sub-section does not, in my

opinion, throw any clear light on the problem

either way •..•• and it can only be made after

the testator's death when the contents of the

will and the value of the estate are both

known.	So far as the proviso throws any light
at all -

and of course I am looking forward to saying

shortly something about section 32 of the present·

Act -

it appears to support the view that, since the

legislature only expressly authorized

contracting out to this limited extent when

dealing with the subject, the maxim expressio

unius est exclusio alterius would apply and

that any other contracting out would be
opposed to the policy of the Act.

In my respectful submission, the provisions in

section 32, as to obtaining the consent of the

court before validly contracting out, are so
detailed and so clear that they are, in my

respectful submission, entirely to be construed as

showing an intention that that is something which

people are not to do except under conditions of

approval by the court with, no doubt, a total
disclosure of their present circumstances and

prospective needs. In fact, as far as I am aware

there is no reported case to illustrate the

Singer(2) 6 10/5/94

procedure that might be followed between parties

who are contemplating marriage, and as far as I am

aware no such approval has ever been given.

In any event, were it to be sought, the

remarks of this Court in Smith v Smith,

(1985/86) 161 CLR 217, would of course have some

considerable force, in my respectful submission.	I
particularly would wish to refer only shortly to the passages in 235, 242 and 251, to which I made
some reference in my submissions.

I would only say that the thrust and the clear

understanding that was expressed by the Court is

that the task between those who are making
antenuptial agreements, and the task of the court
which is presiding over the dissolution of a

marriage and the disposition of the property of the

parties, are entirely different tasks to that which

faces a court which is exercising jurisdiction, or

contemplating exercising jurisdiction, under the

Family Provision Act. Of course the central

difference is the very brutal one of the two

parties, if one might so consider a deceased person and his widow, one is not going to need any further

provision. They are out of it, and it is the

survivor whose needs, prospective and immediate,

that are to be considered.

Your Honour, I am constrained to say that if

the Court does follow the remarks which have been

made in the course of the cases, sometimes

deliberately, sometimes directed only to the
particular facts of the case, that what one looks
to is immediate need, then I am certainly obliged

to sit down now, because it is quite clear that, as

at the date of hearing, although the appellant

disclosed many conditions which might give rise to

problems in the future, it could not have been said

that she was going to be unable to look after

herself for the next week, and it is really the

amplitude of what is to be considered under the	heading of "prospective needs" that the appellant
has to base her appeal.

I drew attention to those contrasting

situations between the deceased's son, to whom it

was quite clearly acknowledged by all, advisers,

client and all, that the testator had a moral duty.

If he had no other source of moral duty, he had the

duty to leave him the house which his mother and

father had occupied until their marriage had been

dissolved by death, and had occupied, according to
the evidence in this case, for many years.

The matter becomes, in the end, a matter of proportion, and I would wish to close,

Singer(2) 7 10/5/94

Your Honours, merely by referring back to the attitude and the example, and it was a very

important example which the Privy Council set in

Bosh's case. When Bosch's case was before the

Council, the Estates Act of 1938 was passing

through the English legislature, and it was

contemplated that a similar Act to that which was

already in force in Australia would come into force

in England. And I think it is not only what Their

Honours said, because I would regard it as otiose

for me to repeat that, but it is what Their Honours

did that I respectfully draw Your Honours'

attention to.

Their Lordships had before them a very

considerable estate. I acknowledge that matter and, of course, it must bear on what is proper,

adequate, what ought to be done, but the sons had

been left 15,000 pounds and, Your Honours, I know

that one should not give evidence from the bar

table, but in that case Their Honours did say
expressly that it was a class of case in which the

court's knowledge of social conditions is of the

utmost important. I might refer to the particular

passage in which this was mentioned, Your Honours;
page 479 of the Appeal Cases.

Lord Romer at the middle of page had referred to Allardice which had been, of course, before the

board. The board had said:

These are essentially questions for the discretion of the local courts who are

entrusted with the administration of the Act.

They are well acquainted with all the local conditions as to employment, standard of

living and other matters necessary to be borne
in mind in adjudicating on questions of this

class, and Their Lordships would be slow to

advise any interference with the discretion

That was the basis, Your Honours, of my making the founded upon such knowledge.

submission that in this case the doctrine of

judicial knowledge is to be taken to its fullest

extent, unless anything I put on the way of the

facts of the case or its surrounding circumstances

would not be fair unless my learned friend could

contradict it.

I feel it is appropriate to draw attention to

the significance of what Their Honours did in 1938

when they were considering the circumstances of the

Bosch family. The two boys had been given

15,000 pounds. It was a time at which a

substantial house in Rose Bay north or Vaucluse

could be bought for 5000 pounds. The inflation

Singer(2) 8 10/5/94

which has occurred in house prices since 1938 is

did estate. They granted each child the equivalent of

now one hundred fold, but that not deter

another two houses at Vaucluse. That was their

view of what would be an adequate provision to make

for the contingencies of life if one's estate were

adequate for the purposes. In my respectful

submission, that was intended as an indication to

the courts that would be exercising the

jurisdiction for all time of the amplitude of

provision which might be thought adequate.

In the present case, Your Honours, my

respectful submission is that the authorities were

read but they were not understood; they were not

applied; that the widow had a house certainly;

she had many years to live; she had no earning

capacity; she had two children and she had, in my

submission, a limited estate. The duty of the

deceased, in my respectful submission, raises a

question of principle: the duty was that if his

means permitted, having regard to the other moral

claims upon him which are uncontested, to augment

the resources which his widow would have at her
disposal to a significant extent without

entrenching upon the claims of his son, he was

obliged, he ought to have done so in order to make

proper provision for his widow.

I want to say some other things, Your Honour,

shortly in amplitude of that. I did refer in my

submissions to the facts that there is more to be

done for one.	I do not think it is just that I
have reached the age at which the testator died.	I
do not think it is just that necessarily one's
views alter with age.	My impression everywhere is

that people feel less secure than they would have

40 years ago with comparable amounts of capital at

their disposal.

I find it palpable and universal amongst my

contemporaries, who have retired and ceased to have

earning capacity, that anxieties concerning their

total financial dependency upon their capital

resources is a distinct anxiety. I am not saying

they all live in misery and anxiety about it but it is at the back of people's minds in a way which, in

my submission, it was not formerly.

There is also another question which I feel,

with great respect - it may be a minor

consideration but it surely ought to have been

present to the mind of the testator. The appellant

has two grown up children. I would think,

Your Honours, that in 1938 most parents felt that

if their children's education was completed they

Singer(2) 9 10/5/94

were off their hands - as the lay expression goes.

My respectful submission is that at this stage the

fact that one's children have completed their

education by no means ensures that they have
earning capacity and, indeed, the extent to which

parents feel that their children are not off their

hands has probably increased even since this Court

last determined and considered the position of a
widow in 1980 in the dual cases of White v Barron

and Goodman v Windeyer.

My respectful submission is that it is a

matter in the end, of course, of first impression but that the impression to me is overwhelming and that is that most women with less than $300,000 or

$400,000 to dispose of are not complacent about

their situations once they have no earning

capacity, once they know what their health might do

to them and once they know that they have an ever

lengthening life expectancy, partly due to advances

in medicine. I referred, of course, to the

peculiar difficulties which anybody has in reliance

upon a pension or medical resources in America. But even in this country the government has

expressed concern as to the capacity of the social

service system to deliver the same level of

pensions that formerly obtained and it has taken

active steps to ensure that nearly every citizen

will be involved in some superannuation situation.

The position, as I see it, with respect, was

simply that by adding something between $50,000 and

$100,000 to the estate of the disposable assets of

the widow it was overwhelmingly clear that she

would be in a better position to face vicissitudes

that might easily erode her capital to a point of

acute anxiety.

MASON CJ: Thank you, Mr Hilbery. Mr Broun.

MR BROUN:  Thank you, Your Honours. I have prepared a

summary of contentions and some annexures.

MASON CJ: Thank you, Mr Broun. Yes.

MR BROUN:  Yes, thank you, Your Honours. To the summary of

the contentions we have added a summary of the case

law presently as it stands, which we hope may be of

assistance to the Court, with references and

dividing them up into matters which they

illustrate. We have added also some brief notes on

premarital and ante-nuptial agreements referring to

the sort of circumstances when you practise they

arise, and to certain legislation and, indeed, to

committee on certain aspects of the operation of the recent recommendations of the joint select

Singer(2) 10 10/5/94

the Family Law Act, and the government's response

to that. We have also, on the last page, annexed a

chronology, and before that there is another

document which Your Honours may or may not think

appropriate to refer to.

Our contention, of course, is that this case

is primarily a question involving factual issues,

and the exercise of discretion upon those factual

issues, and that there is, except perhaps for the

attitude to be adopted to any premarital agreement,

no substantial legal issue arising here.

TOOHEY J:  Mr Broun, what do you mean when you say, "There

is a question of discretion involved."?

MR BROUN: Well, Your Honours, this Court in Goodman v

Windeyer seems to have taken the view that the

initial question which, on the face of it, looks

like a factual one, namely, "Has there been an

inadequate provision for the eligible person?",

that that apparently factual issue is, in fact, a

discretionary one, a disguised, discretionary

question. So that although, on the face of it, it

looks like a factual question that the courts must

make an infirmative finding about, namely, that

there has been an inadequate provision for the

proper maintenance, et cetera, of the eligible

person - - -

GAUDRON J: What do you mean by "discretionary" though, in

that context? One in which you can pick out any

answer, as it were, or - - -?

MR BROUN:  No, Your Honour, we would perhaps in that regard

refer to the decisions of this Court, particularly

in Minister of Aboriginal Affairs v Peko-Wallsend,

but it is a matter where properly informed,

properly advised, and applying proper principles,

different judges may come to a different view.

TOOHEY J: But, I just have difficulty with that concept in

this area. If a judge concluded that a husband had

made inadequate provision for his wife, in other

words that the terms of the Act had been met, what

discretion would the judge have to refuse any

relief at all?

MR BROUN:  Your Honour, if he has come to that initial

conclusion, then I would have thought it

necessarily follows that his conclusion is that

there is an inadequate provision. Assuming then
that there are funds from which an order might be
made or that balancing the inadequacies of the
provision for the eligible person with the other

provisions made in the will and the respective

Singer(2) 11 10/5/94

moral claims of the other beneficiaries under the

will, then an order of some kind would be made.

TOOHEY J: Yes, but are you saying that the discretion is as

to the amount which will be ordered out of the
estate or that there is a discretion as to whether

or not any order will be made?

MR BROUN: 

Your Honour, looking at the legislation, one

would have thought that the first question, the
initial hurdle, as it were, as to whether there has
been an adequate or proper provision made for the
applicant - and that is the question in

section 9(2) - that looks like a factual one but

this Court in Goodman v Windeyer seems to have

taken the view that reaching the answer to that
question does involve the exercise of a discretion,

that is to say that properly informed and properly

considering the relevant principles, different

judges may come to a different view.

MASON CJ: But it is a different kind of discretion, is it

not? After all, if you look at page 502 in the

judgment of Justice Gibbs, he is saying it is

discretionary in the sense that:

There are no fixed standards, and the court is left to form opinions upon the basis of its

own general knowledge and experience of

current social conditions and standards. of discretion in that sense.

MR BROUN:  Yes, indeed, Your Honour. It is a different sort

TOOHEY J: A value judgment might have to be brought to	bear, for instance, in the Family Law Act where the
welfare of the child is paramount. Some assessment has to be made of the welfare of the child but, once made, it is difficult to see that as some sort
of discretion vested in the court.

MR BROUN:  Your Honours, I think perhaps the word

"discretion" used in our contentions needs to be

qualified in the sense that it is a different sort

of assessment, but it is discretionary in the sense

that different judges may come to different views

without any error of principle. So that is the way

in which we would describe it, as being a matter of

the exercise of discretion.

GAUDRON J: Does the question in this case boil down to

whether the widow had no need?

MR BROUN:  Your Honour, we would say that the widow had an

obligation or requirement to show some sort of need

and some sort of moral obligation which had not

Singer(2) 12 10/5/94

been met. The onus was on her, as it were, to show

those two matters.

GAUDRON J: All right, but at the end of the day does it

come down in this case to the question whether she

had no need?

MR BROUN:  Your Honour, whether she had established that she

had a need, we would put it.

GAUDRON J: Notwithstanding that she had established that

she had lost her employment and lost the

opportunity of further employment, lost the

security of employment in consequence of her

marriage?

MR BROUN:  No, Your Honour, that was not the evidence, with

respect. The evidence was that the job had gone,

and indeed she seems to have left the job prior to

even the engagement, presumably on some sort of

leave, then had resigned from the job at a later time, but that the job no longer existed. There

was no suggestion that she had applied for other

jobs, and indeed the great trouble factually in the

case was that there was no evidence as to what her

income from her investments was, and that she had

substantial investments. Indeed, it would seem

that they were perhaps understated, but she had

substantial investments and there was no evidence

at all as to what her income from them was. There

was further no evidence of what her outgoings were.

There was not any indication that her outgoings exceeded or even equalled her income. When the

master was left in that position -

GAUDRON J: But need is not simply a matter of income and

outgoings, is it?

MR BROUN: That is, one might think, the first step in

establishing some sort of need, to show what the

income is. Indeed, in a Family Provision Act

matter one normally expects that to be the first

thing the eligible person puts forward: to show

what their need is, to show what their income is,
what their available resources are, what their

assets are and what their outgoings are and what
their needs are. In this case the applicant, the
eligible person, the widow, did not present any
evidence of what her income was and did not present

any evidence as to what her outgoings were.

So that the master was left in a position of

saying, in effect, "How do I find that there is a
need?". Justice of Appeal Sheller also referred to
the same matter in his judgment in the passage to

which our contentions refer. So that in the

absence of any evidence of the income, an absence

Singer(2) 13 10/5/94

of any evidence of what the outgoings were, the

establishment of a need was left in a very

difficult position. In fact, the master could not

be satisfied, was not satisfied, and

Justice Sheller observed, in effect, the same

matter.

In fact, it is, in our submission, the

strangest thing about this case, that there was
that absence of what is usually the first piece of

evidence the eligible person, the applicant, puts

forward. In point 4 of our contentions we have set

out what appear to be some factual errors that the

President of the Court of Appeal made. It seems

that His Honour was led into those by referring to

the applicant's first affidavit, which had been

corrected by her in the second affidavit, and

further corrected, or expanded, in her oral

evidence. We have given Your Honours the

references there.

But at the end of the first page we refer to a document which came into existence for the purposes

of an application for security for costs in this

Court. Namely, the only statement we have ever

received in the course of these proceedings,

certified by any accountant or referring to tax

returns, which gave an account of the applicant's

financial position, both around about the date of
the original hearing.

We have annexed a copy of that to these contentions but, of course, it is a matter for

Your Honours as to whether that should be received

or considered at all, in view of the fact that it is, in effect, evidence of matters that came into

existence - I am sorry, the document came into
existence after the original hearing, though it
does purport to throw light on the position of the

applicant at the time of the hearing. So we have

annexed a copy for Your Honours to allow for the

possibility that Your Honours may think it relevant

to consider that document, though - - -

MASON CJ:	We feel we have not got jurisdiction to receive fresh evidence.
MR BROUN:	Your Honours, I think that is right, but it did

come into existence in the course of these

proceedings in this Court in an application - - -

MASON CJ: But how does that affect the matter? It came

into existence in relation to a totally different

issue?

Singer(2) 14 10/5/94

MR BROUN:	Your Honour is quite right, but it was, of course, before Your Honour Justice Gaudron on the
interlocutory - - -
MASON CJ:	I have no doubt Her Honour will manage to exclude

it from her mind.

MR BROUN:  Your Honours, I accept that; that it should be

excluded. But, Your Honours, we put it forward

also as a suggestion that, indeed, it would be

somewhat risky to rely on the speculative matters

that Mr Hilbery has put before Your Honours, and

indeed, one speculative matter which the President

of the Court of Appeal referred to.

In addition to those matters which we have set

out, Your Honours, in point 4 of the contentions, only receive a pension at age 65. In fact, the
at point b, on page 2 of an error made by the
evidence was she was going to receive a pension at

age 62, which has long since passed, and which

would increase at age 65, which falls in about a

couple of months time.

I have given Your Honours the references there

in subparagraph b. Your Honours may care to note

the reference in the master's judgment, which is at

appeal book 121, lines 23 to 25, where he expressly

sets out the existence of the pension at 62 and the

increase which would be occurring at age 65. The

President of the Court of Appeal also suggested that the appellant was obliged to live on capital,

and that may again have been drawn from the first

affidavit to which we have given the references,

but it is not supported by any evidence at all

given in the course of the proceedings, and

indeed -

GAUDRON J:  Is it contradicted by evidence in the course of the proceedings?

MR BROUN:	Your Honour, I would submit, yes, because the applicant, the widow, was cross-examined as to her
means and needs, and the master makes his finding
on that issue, as to whether she was obliged to
live on capital, and the relevant questions, at page 121 of the appeal papers, at about line 18, where he says:

There is no evidence of the present income of

the plaintiff from those investments but she

does receive income from them and she also

receives rent from her daughter for the

upstairs flat of $460 per month but agrees

that the proper rental is approximately $630

Singer(2) 15 10/5/94

per month. She will be entitled to a

pension ..... at age 62 -

of $370 per month, going to $460 per month at

age 65.

GAUDRON J:	Do you rely on any particular part of the cross-examination?
MR BROUN:	Your Honours, the questions directed to her on

the matter of her means are an extensive part of

the cross-examination of the applicant, but

particularly beginning from page 69, substantially

to the end of the cross-examination; page 69 of the

appeal papers, which tries to investigate her

financial position, and Your Honours will see in

that material, we just were not able to get any

sort of a picture as to what was happening, or any

sort of a picture as to what her means and needs

were.

Your Honours, one other matter that the

President of the Court of Appeal assumed, we would say without any justification, was that the

President assumed at appeal book 139, lines 9 to

13, that there was an inadequate health care system

in the United States. Now, we have obtained an

official government publication from the

United States as to the health care that is provided for people over the age of 65 which, but

for the matters that Your Honour the Chief Justice

has already raised, we would seek to tender. But

in our submission, Your Honours, it is not a

justified assumption for the President of the

Court of Appeal to have made.

MASON CJ: But I do not suppose a government publication is

making a frank admission that the health care

system in the United States is no good.

MR BROUN:  Your Honour, that is certainly not the thrust of

what the publication suggests. The publication

suggests that there is a scheme in existence for the support, and ensuring of proper medical care for what are called "seniors", at a very modest

charge. There are, of course, in existence in the

United States other health insurance schemes such as occur in Australia.

TOOHEY J: But it is not just an accounting exercise,

Mr Broun, is it? Here you have a situation in

which a man dies; providing for an adult son by

leaving a house of considerable value, makes no
provision for his wife. There are assets left in
the estate after allowing for the house, which
would enable a legacy of not less than $50,000,

possibly more, to be made without disturbing the

Singer(2) 16 10/5/94

gift of the house to the son. Now, when it is seen

in that light it is very hard to conclude otherwise

than that inadequate provision has been made.

MR BROUN: Well, Your Honours, may I put to Your Honours the

problem. That while it is not a matter of

accounting evidence solely, surely one should start

with the applicant giving the facts and disclosing
what her income is and what her needs are, and the

failure to do so must, inevitably, leave a court in

a position where it is at least difficult to make

an affirmative finding in her favour, as required

by section 9(2).

TOOHEY J:  I see the force of that, but it would have

greater force in a situation in which the testator

had made some provision for his wife and the

adequacy of that provision was being challenged.

But here we have a situation in which no provision

has been made.

MR BROUN: Well, Your Honours, suppose that the evidence,

properly revealed, had revealed her to be a woman

of great substance and great wealth, keeping in

mind that where we have an applicant who is

resident in a different country and the subpoena,

as it were, is not available to turn up the

information in the ordinary way, that we are very

dependent upon her disclosure and her information.

Suppose that there had been a revelation of

considerable wealth. Then the circumstances of

this case would have not seemed in breach of

section 9(2).

One has to keep in mind, of course, the

additional factor in this case; that the parties,

both of them, had mutually agreed before they got

married that the assets they had at the time of

their marriage were going to pass to their

respective children. The widow having in fact two

children of her previous marriage, the deceased

having one by his.

for the advantage of both of them and to fulfill Now, they had expressly agreed,

the expressed intentions of both of them, that
there was to be a setting aside of their premarital

assets in that way, without any limitation on what

was to happen to assets acquired after the

marriage.

Now, in fact, because the deceased died so soon after the marriage, there had not been any

assets acquired. So that it is not right to say

that the will made no provision for her. The will

did make a provision, namely as to what she was to

get, what was to happen about assets acquired

during the course of the marriage, and to give her

a life estate, for example, in any home acquired.

Singer(2) 17 10/5/94

But, in fact, because the deceased died so soon the

way the will in fact operated was that she got

nothing. There was a provision but, in fact,

having agreed to exclude the premarital assets for

the benefit of their children, no benefit accrued

under the will, which is perhaps a different

matter.

Your Honours, that question of the premarital

agreement, which Your Honours will find set out at

page 104 of the appeal papers, it is perhaps to be

understood as not an agreement at all of the kind

envisaged by section 31 of the Family Provision

Act. Section 31 of the Family Provision Act seems

to be used in practice in two situations: one, a

settlement of matters between members of the family

after the death when after the estate, as it were,

has come into existence. The court is permitted to

approve agreements by which all those involved can

give up their rights against the estate. The other

situation in which section 31 of the Family

Provision Act is regularly used is where there has

been a dissolution of marriage and both parties are

still alive, and a settlement of property has been

made upon terms that that also recognizes any claim

under the estate, and there is, as it were, a

pathway from the Family Court to the supreme court for those approvals. In fact, now with the cross- vesting legislation quite often the section 31 of

the Family Provision Act matter is also dealt with

in the Family Court.

But, this deed, in the present case, at

page 104 beginning at line 14, records that:

Bernice -

now the widow -

desires that her present assets or any assets

into which the said assets may be converted

shall be for such use or disposition as she

shall herself desire and shall be,
testamentarily held for the benefit of her
children and/or other descendants -

of the deed essentially do that - they set aside the assets for the benefit of the children.

then there is the corresponding provision about

Now, Your Honours, as I have put in my notes

on - what I have called the Policy Questions about

Premarital Agreements, that is a very common sort of provision in a premarital agreement because a person of advanced years, marrying with children,

will want to assure the children that the marriage

Singer(2) 18 10/5/94

is not to their disadvantage in order to maintain

domestic harmony; in order not to, as it were,

upset the children; in order, in fact, to make the
marriage possible in various social situations
without totally disrupting the family or causing
anxiety in the descendants. It is frequently of

vital importance for somebody entering into a

marriage late in life to be able to assure their
children that the marriage will not deprive their

children of their expected inheritance, and that

there is no need for resentment towards the spouse,

or opposition to the marriage.

That is an important factor which occurs

frequently, and which clearly occurred in this

case. There are sound reasons why her assets for her children, and to assure them

that her assets would not pass to her husband.

There were sound reasons why Mr Lionel Singer would

have wanted to be able to assure his descendant,

his son, that the marriage was not going to

prejudice him.

The very mutuality of this agreement, the very

substance of it, in our submission, tends to show

what a reasonable thing it was, but the master and

the Court of Appeal took it into account, in our

submission, only to a limited extent and in a way

which, in our submission, was appropriate as

showing that the widow did not expect that the

marriage was going to give her a share of those
assets, and did not expect that she was, as it

were, innnediately adding additional security or

additional benefits to her financial position and,

as it were, as indicating an acceptance of what was

to happen.

That premarital agreement, Your Honours, is

perhaps the most important feature of this case

when we live in a period where the development of

rather than courts determining their rights for the law is back towards agreement between parties them. We are, as it were, moving away from what

might be thought to be the paternalistic attitude

of the law from the 1930's through to more recent

times, and indeed I attached in those notes the

recommendations or references from recent

Parliament inquiries and recent government

statements of intention as to what is going to

happen in that regard.

So I would urge Your Honours that whatever

view Your Honours come to in this case,

Your Honours should be careful not to prejudice or

limit the somewhat limited use that may presently

be made of premarital agreements when parties want

Singer(2) 19 10/5/94

to agree to something, do it for good reasons, do

it in the situation which is apparently fair and

apparently reasonable, in our submission, it would

be a retrograde step to take away such effect as

that agreement may have, keeping in mind, of

course, that the agreement did not - we do not
contend that it does - take away the Court's

legislation which talks of agreements of this kind	jurisdiction to make an order. Indeed, all
does leave open the possibility of a court
reviewing it for injustice that has arisen or for significant change of circumstances that would make
it inappropriate to be carried forward.

The agreement itself, Your Honours, was

apparently - we refer to this in point 9 of our

contentions. The wife clearly understood the

agreement, and that is covered by the master's

judgment, and indeed, the wife herself gave

evidence of that. The wife agreed that it was as

much to protect her children as to protect her

husband's children. It was taken seriously by both

parties; they executed it twice, in the United

States and again in Australia so that they were

making doubly sure it was intended by both of them

to be taken seriously. The master refers

particularly to that at appeal book 119 lines 25

and at 120 line 13.

Your Honours, there is the additional factual

matter from the evidence that the appellant does

seem to have led the deceased to believe that his

premarital assets would be preserved, a point we

make in our contentions on top of page 3, because it, and by the agreement itself she seems to have
there was the knowledge of what was in the will.

accepted that this was what was to happen,

certainly when there was a death such a short time

after the agreement.

At point 10 of our contentions, Your Honours,

we submit that the agreement could be seen as

extinguishing a moral claim in the circumstances

which have occurred. Indeed, it might be wondered

how the widow could have a moral claim when she had

so recently before the date of the death expressly
agreed that the assets that were left were going to

pass to the deceased's son and not to her. That

surely must be at least a qualification to the

moral claim. It is also, of course, obviously

relevant conduct under section 9(3)(b), and we

would submit it is also relevant under those other

sections that we have referred to.

We would invite Your Honours to test the master's decision by considering what would have

Singer(2) 20 10/5/94

been the position had it been the other way around.

Suppose it had been the widow who had died first.

Could Lionel Singer or his representatives have

urged seriously that he should be looked after or

was an eligible applicant?

We still have, perhaps, in the law a tendency

to see a widow as somebody especially in need of
protection because, of course, all the cases until

relatively recent times have dealt with the

position where the widow was the one who needed

help and was in the inferior economic position.

She had normally been supported during the course

of the marriage by the man. But we are coming into

a time where, from time to time, there are women

who are in a financial position roughly equivalent

to the man and, indeed, that seems to have been, as
far as we can work out, pretty close to the
situation here.

Each had a home, each had investments. The amount of their investments were not significantly

different. They were not vastly different. So, in

our submission, the Court should be careful to put
out of mind any presumption in favour of widows.

One has to look at the particular circumstances of

the particular widow. This was not one who had

spent years of financial dependence upon her

husband or, it would seem, one who had ever been

financially dependent upon her husband. In our

submission, therefore, one could really test what

is the fairness by looking as if the other death

had occurred and we were looking at the other

applicant. In our submission, there is no real

difference to be seen in the way that they would be

approached.

TOOHEY J: Are you not leaving one matter out of

consideration, Mr Broun? To begin with, the

parties presumably contemplated that they would

have had more years together than in fact turned

out to be the case. But also, it seems to have

been in contemplation that they would buy a house

together.

MR BROUN:	Your Honours, yes, but presumably, that must have meant that some of the assets - either some new
assets would have been acquired or some of their pre-existing assets would have had to have been
appropriated towards that. Had that, in fact,
happened, the disturbance of the assets of either of them, the appropriation of the assets of either of them to that common purpose, then under the terms of the will that would also have appropriated those assets to a life estate for the survivor of
them.

Singer(2) 21 10/5/94

So that, in effect, had there been that step

there would have been provision and there would

have been the life estate, determined not by any

judicial decision but determined by what of their

assets the parties chose to appropriate to that

common purpose which would then have led to the

existence of a life estate for the survivor.

We also refer in point 12 to suggest to

Your Honours that there might be some

consideration, really, as to how the widow might be

benefited by an additional $50,000, or such other

amount, as a discretionary judgment would lead to.

Justice Kirby had come to $50,000, but he did so in

an exercise of a discretion that was tainted by a

number of factual errors, so that it would be very

difficult to place any confidence on that exercise
of discretion when the errors seem to have been

quite significant.

But suppose it was $50,000. That reduces the

fund in the estate for the repair of the home, for

the. meeting of the mortgage and the meeting now of

a not inconsiderable amount of costs. To what
extent would it have assisted the widow? The

answer is: we really just do not know. We do not

know whether she would have been, as it were, able

to do something with that additional $50,000,

keeping in mind that transferring it to New York

would have reduced it to a lower number of US

dollars.	We do not know what she could have done
with it.	We do not know what interest rate she

could have earned from it, we do not know what

benefit of any concrete or precise kind would have

come to her.

Indeed, in the absence of any evidence of even

what her interest rates were on her investments,

she could not tell the court that. In our

submission, the court could not be confident that

$50,000 would give her a materially significant
improvement to her overall position.	On the face

of it, what it would do would just increase her

estate that in due course her children would

benefit from.

In point 13, we refer to some matters which we

would suggest tend to show positively that the

appellant did not have any present need for further

income. Maybe she had moneys in an investment

account which were used to obtain capital gain

rather than income, and we give the reference there
to the evidence but also the master specifically
referred to that at appeal book 121, line 18.

Further, Your Honours, she was leasing the top apartment of her house for less than its market value to her daughter, whereas her daughter had

Singer(2) 22 10/5/94

previously been living downstairs with her, sharing

her accommodation.

So the fact that she had, as it were, thrown

out her tenant, or her tenant had left, she put her

daughter upstairs at an amount that she conceded

was less than a commercial rental was evidence

tending to suggest the absence of any present

financial need. The master referred to that at

appeal book 121, lines 20 to 22.

Unless there are any other matters in which we

may assist Your Honours, those are our submissions.

MASON CJ:	Mr Broun, there is just one question I would like to ask. The notice of appeal with the Court of
Appeal was filed in May of 1990; the court's order
was not made until July 1992.
MR BROUN:	Your Honours, I believe those dates are correct,

yes. The Court of Appeal in New South Wales has

quite a large list at any one time. In fact, most

recently the Court of Appeal of New South Wales has

set aside a week just for Family Provision Act

matters and is moving them forward - - -

MASON CJ:  But was the lapse of time caused by the delay in

the case coming on for hearing?

MR BROUN:  I think there was also some delay in the settling

of the index and the filing of the appeal books.

It did not move with maximum speed, but I cannot at the moment tell Your Honours what the delay was before the appeal books were filed. But there was, from recollection, some delay in fixing the

appointment to settle the appeal index and then

filing the appeal books. Mr Hilbery may be able to

throw more light on that, Your Honours, than I can.

Your Honours, again for the reasons

Your Honour the Chief Justice has referred to, it

may presumably not be appropriate, but we are in a

position to do as we did before the Court of informing Your Honours as to the present balance of

the estate and what the present condition of the

estate is. If Your Honours were in a position to

receive that, we have had an affidavit prepared by

the executor showing the present assets and

liabilities of the estate as at yesterday. I

request to put that before Your Honours so that

Your Honours may rule on whether it should be

received.

GAUDRON J:  You put it forward in the event that this Court

is minded to exercise for itself a discretionary judgment making provision for the widow, do you?

Singer(2) 23 10/5/94

MR BROUN:  Yes, Your Honours, we certainly put it forward on

that basis, though we had, I must say, assumed that

if Your Honours came to the view that there had

been some error, Your Honours would remit the

matter back for a re-exercise of discretion rather

than attempting to do it on the spot. But if it

comes to the question of the exercise of a

discretion, we would seek to put before

Your Honours an affidavit as to the present

position of the estate, keeping in mind of course

that costs inevitably cut the estate down a bit as

we go along. I have the requisite numbers of

copies of the affidavit and a copy for - - -

MASON CJ:	You have shown it to Mr Hilbery?
MR BROUN:	It was, I regret to say, prepared only yesterday

when the thought occurred that it may be in some

circumstances of assistance to Your Honours.

MR BROUN:  May I ask, perhaps, to leave the copies,

Your Honours, with the Court orderlies, so that if

Your Honours determined that it should be looked

at, then it may be looked at?

MASON CJ: Yes.

MR BROUN:	I have the requisite number of copies. Would Your Honours care to see it now or to wait until
such time - - -?

MASON CJ: No, we will resist our natural curiosity,

Mr Broun.

MR BROUN:  Thank you, Your Honours. Unless there is any

other matter with which we can assist Your Honours,

that is our submission.

DEANE J:  Mr Broun, what is the current state of authority,

in terms of the relevance of events between the

primary hearing and the making of an order by the

the estate, and so on? first appellate court, in terms of how much is in

MR BROUN:  Your Honours, the general principle, as I

apprehend it, is still the fresh evidence rule -

Oram Homes and so on - but certainly in the Court

of Appeal we were invited to put the material
before the court in case the court should come to

the re-exercise of the discretion and, as I

understand it, that was the basis upon which it was

received in the Court of Appeal, but there was not

a formal application before the Court of Appeal, by

either party, to present fresh evidence. Thank

you, Your Honours.

Singer(2)	10/5/94
MASON CJ: Mr Hilbery.	First of all, do you want to say

anything about this affidavit?

MR HILBERY:  Yes, Your Honour, I do. Your Honours, my

impressions are contrary to those of my friend.
Your Honours, I sent up, through the courtesy of

the kindness of the Registry in Sydney, a number of

unreported judgments, and I am sorry that I do not

have the immediate reference, but somewhat to my

surprise there were distinct statements in them that the practice of the Court of Appeal was to

require disclosure of the existing situation in the

estate. If that bears upon what the Court decides should be the course to be followed here, I find

myself in a slight state of puzzlement when I read

this affidavit, which I have not seen before,
considering the findings that - - -

Your Honours, it is at page 118 that the exact

condition of the estate, as agreed upon virtually
at the course of the hearing, was stated:

The estate of the deceased at death consisted

of property 55 Beaumont St Rose Bay valued at

$275,000 and other assets -

financial assets to $291,735:

making a gross estate of $566,735. There were

liabilities of $111,979 -

left an estate of $450,000 net. The master then

follows at the last lines of the page:

The estate now consists of the Rose Bay

property having an agreed value of $380,000

plus money in the bank of $176,000 excluding

an amount of approximately $8,400 which seems

to have been taken by the widow/plaintiff - and I refer to that matter in my submissions, about

the $8000.

Well, Your Honour, I cannot, without embarking

on the contents of this affidavit, say more. But I

only draw the Court's attention to the fact that as

at the date of hearing that was certainly the

position.

MASON CJ:  Mr Hilbery, it does seem to me that in the

circumstances we ought to have a look at the
affidavit, because it may be that unless we have a
look at the affidavit we cannot understand what

your submissions are.

MR HILBERY: That of course is so, Your Honour. But the

only thing is that if the Court is disposed to look

Singer(2) 25 10/5/94

at the affidavit there are a number of things that

I could not possibly answer or explain. In effect,

Your Honours, $176,000 has ceased to exist and

there is a house. I would not be trespassing, I

believe, Your Honour, when I said that I understood

that some of the expenditure of $176,000 has been

on improvements to the house. First repairs then,

more substantially it would seem, improvements.

Otherwise it seems to have been used in -

"rebuilding" is the expression used in page 3b,

Your Honour.

MASON CJ: What we really need, if this is going to be of

any use whatsoever, is some itemization, as between

a,b,c,d and e, in paragraph 3 of this affidavit.

MR HILBERY:  Your Honour, I do not have the responsibility

for preparing it.

MASON CJ:	I realize that, Mr Hilbery.
MR HILBERY:	I only say this, with respect, Your Honours,

there has been no doubt in anybody's mind that the

appellant would make this claim from day one,

virtually, and what the executor and the

beneficiary have decided to do with respect to it,

as there is no disclosure of any compelling

personal need for expenditure on the part of the

son, I am afraid I would have to summarily say

that, in my respectful submission, it is his

problem - if I might use the vernacular - and

should not be my client's.

Similarly, Your Honours, I would gather that

Your Honours have decided that the reference to

Mr Steinkohl's statement should be excluded. If

Your Honours were to review that matter, I only

would say that it discloses more than I think my
friend says and it particularly does not refer to

the taxation deductions from the appellant's income

that had been made, notwithstanding the fact that

the evidence was that she is taxed by three

authorities in the United States. So that that

would be a very unreliable guide, also,

Your Honours, to the present position of the

appellant. I am afraid, Your Honours, I can throw

no more light on the affidavit.

There were one or two matters I did want to

refer to, if I might, very shortly, Your Honours.

The initial question, as it was formerly put, as to whether that is a discretionary matter:

Your Honours, might I just shortly refer to the	relevant passages in the two cases in which this
matter was extensively discussed in this Court in
White v Barron and Goodman v Windeyer.

Singer(2) 26 10/5/94

GAUDRON J: Perhaps I should also Mr Broun. I take it

though that the executor has taken it upon himself
to rebuild the house without distributing the

estate? That is the way I take it.

MR HILBERY:  Your Honours, we have not been consulted about

anything that was done.

TOOHEY J:  I suppose, from your point of view, Mr Hilbery,

you invite the Court to look at the state of the

estate as it was before the Court of Appeal.

MR HILBERY:  That would be the last two matters because the

Court of Appeal has taken the view that - - -

TOOHEY J: That is to your advantage, is it not, because the

value of the house had risen, had it not, between

the time that it was before the master and the time

it was before the Court of Appeal?

MR HILBERY: That is certainly so, Your Honours, and judging

from what one knows of local conditions it would

have fallen marginally since 1990, although there

seems to be signs of recovery in this particular

area of the market.

Your Honours, the preliminary question was

dealt with by three Judges in White v Barron:

firstly by Your Honour the Chief Justice at
pages 441 and 442; secondly by Justice Aickin at

pages 448 to 449 beginning at the very last

sentence. Indeed, what Justice Aickin said very

succinctly states the whole problem:

The first of these questions is one of

law in the sense that it involves the

application to the facts of a legal criterion,

notwithstanding that it involves a value

judgment by the court. It is however not the

exercise of a judicial discretion within the

ordinary meaning of that term.	The second
question -

that is to say, what is to be done -

does involve the exercise of such a

discretion.

Justice Wilson in that case also said at about

point 7 on page 456:

Section 3(1) does not describe the

jurisdiction of the court in terms which

confer a discretion; it provides simply that

if it be the fact that a testator disposes of

his property by will "in such a manner" -

Singer(2) 27 10/5/94

and so on.	The question was again raised in
Goodman v Windeyer.	Your Honour the Chief Justice

disposed of it very succinctly at page 492 in the

same volume of the reports:

I should have thought the question of

jurisdiction was not a matter of discretion

though it may involve a judge making a value

judgment. Once the jurisdiction hurdle is

overcome, the judge has a discretion whether
to make an order, and if so, what sort of

order he will make.

The same sentiments and reasoning was applied by

Justice Aickin at page 509 from about point 6 onwards.

There were a number of matters, Your Honours, which I am not going to recanvass in any sense,

except that I felt some strangeness in the

proposition that my friend was putting forward that there might be some equality of earning power or of

capital accumulation between married persons in

their sixties, but I will not comment further on that. What I do say, with respect, Your Honours,

is that it is quite clear in this case that both

the parties in fact disregarded the deed.

My client by her will, according to the evidence, left a bequest of $50,000 to her husband

and he made the elaborate provisions which

obviously he contemplated because the course of the
evidence shows it, that they would buy property

together with a distinct likelihood that he would

contribute more than she would, and that she would
have a life estate in it. In fact, it is the
events that frustrated that intention on his part.

Neither party, in my respectful submission, paid too much respect to the deed. What my friend says

about this deed, in my submission, is positively

incorrect. He said that it did not involve some

sort of a release, that it was not touched by

section 31 but subsection (2) says in terms:

A release by a person of his rights to make an

application in relation to a deceased person

has no effect except as provided in

subsection (3) -

which requires the sanctioning of the court, and

presumably some sort of a hearing and inquiry.

There may be value in such agreements,

Your Honours, but I would respectfully submit that

it might be left to the five million class, rather

than the 500,000 class. If it were shown that

Mrs Singer had an estate of $5 million I would have

Singer(2) 28 10/5/94

to accede that a marginal increase to that figure

by anything that was within her husband's power to

dispose of in her favour without entrenching too

far on his son's claims would have been a gesture.

The appellant does not seek a gesture.	The
appellant sought supplementary provision,
Your Honours.

TOOHEY J:  Mr Broun, could I ask you something about the

affidavit which really leaves as many questions

unanswered as it does answered. If we assume from

the master's judgment that putting the house to one

side there was about $176,000, excluding an amount

of $8400 which seems to have gone to the widow,

paragraph 3 purports to describe how the money has
been expended, but if you take the items one by one, and no amount is appropriated to each item,

discharging the debts of the estate must be taken,

in the light of paragraph 4a, to include some

payments on the mortgage which have gone to the

benefit of the son:

Rebuilding the house -

has gone to the benefit of the son.

Payment of legal and other fees in the administration of the estate -

we put that to one side.

Payment of moneys to the beneficiary to allow him to purchase a motor vehicle -

that is a benefit to the son.

Payment of the legal fees incurred in these

proceedings -

another benefit. It would seem that on the face of

it, the bulk of the money that has been expended

has gone to the benefit of the son.

MR BROUN:  No. Your Honour, may I put two qualifications to

that? First of all, the legal expenses of these

proceedings are not so much the benefit of the son,

it is the duty of the executor to uphold the will,

so that -

TOOHEY J: Well, I put to one side paragraph c.:

Payment of legal and other fees in the

administration of the Estate -

but, you may not have meant those.

Singer(2) 29 10/5/94

MR BROUN:  The more important one perhaps, or the much

larger one, is the costs of these proceedings

which, of course, is the executor's duty to uphold
the will, but I would remind Your Honours, of

course, that the evidence was clear that the house

was, shortly before the date of the death of the

deceased, in a state of ruin and not habitable, and

had to be, as it were, have extensive

reconstruction which has been going on. But,

Your Honours, I - - -

TOOHEY J: All I am putting to you is that on the face of it

most of the money which has been expended seems to

have gone to the benefit of the son.

MR BROUN:  Your Honour, as to the quantification of what has

gone for the benefit of the son, and what has been

used in costs of these proceedings, I am not

entirely sure, but I would expect Your Honour would

be right. But, could I tell Your Honours also that

the assets that were taken into account by the master included an amount of outstanding legal

fees, as I understand the affidavit evidence which

is in the appeal book. That is to say, fees due to

the deceased from his practice as a barrister, and

I think, ultimately, not all of those were

collected.

TOOHEY J: Well, there was an amount of $12,000 mentioned in

the papers.

MR BROUN:  Yes, that is it. Now, Your Honours, also the

statement which the parties placed before the Court

of Appeal of the present position of the estate,

upon which Justice Kirby acted, which is referred

to at page 152 of the appeal book, that is not

actually in the appeal book, and perhaps

Your Honours should be supplied with a copy of that. Unfortunately, we do not seem to have it

with us. But, there was a written statement of the

position of the estate as at the date of the

hearing of the appeal that should probably be

before Your Honours, which we would ask leave -

MASON CJ: We should have that, Mr Broun. That ought to be

material before this Court.

MR BROUN: Indeed, it would, Your Honour. So, we will

obtain a copy of that; check it with Mr Hilbery and

lodge it with the Registrar at the earliest

possible time. we would seek Your Honours' leave

to file an affidavit explaining what, or detailing

what, the break-up is of the amounts paid out of
the estate, as to what has gone for each of those

categories referred to, that Your Honour

Justice Toohey has just referred to, as to what the

items are. That will be a matter of going through

Singer(2) 30 10/5/94

the account records and just appropriating them to	those headings, and giving to Your Honours a detail
of that breakdown. We would seek leave to file an
affidavit to do that. But, of course, again, only
of importance should Your Honours come to the view
that this Court should exercise its own discretion in the matter.

MASON CJ: Very well, you have leave to file such an

affidavit.

MR BROUN:  Thank you, Your Honour. Unless there is any

other matter, Your Honour, there is nothing further

to put.

MASON CJ:  The Court will consider its decision in this

matter and will adjourn until 10.15 am tomorrow.

AT 11.50 AM THE MATTER WAS ADJOURNED SINE DIE

Singer(2) 31 10/5/94