Singer v Berghouse

[1993] HCATrans 103

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl00 of 1992

B e t w e e n -

BERNICE SINGER

Applicant

and

MAXWELL BERGHOUSE

Respondent

Application for special leave

to appeal

DEANE J

TOOHEY J

GAUDRON J

Singer 1 30/4/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 30 APRIL 1993, AT 3.18 PM

Copyright in the High Court of Australia

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

the applicant. (instructed by Theodore Freilich)

MR M.D. BROUN, OC:  May it please, Your Honours, I appear

for the respondent, with my learned friend,

MS E. COHEN. (instructed by Maxwell Berghouse)

DEANE J: Yes, Mr Hilbery.

MR HILBERY:  Your Honours, in view of the hour, I propose to

confine my remarks to 10 minutes. If Your Honours

want to hear anything more from me then I will be

very pleased to attempt to answer, but I know that

my friend wishes to oppose the application.

DEANE J:  Our experience indicates that the best

applications for special leave normally take about

10 minutes, Mr Hilbery.

MR HILBERY:  Thank you, Your Honour.

DEANE J: If you have to go beyond 10 minutes, you are

normally downhill all the way.

MR HILBERY:  I hope to come to the point before then,

Your Honour.

Your Honour, the refusal of Mrs Singer's

application would not normally attract the
attention of this Court but for the fact that two

matters seem to have had great bearing on the
decisions which were given, both at first instance

and in the Court of Appeal. Shortly, those two

factors are that the judge at first instance and in

the Court of Appeal, what I can only describe as

"houseroom" was given to the antenuptial agreement,

and it was given in the most extraordinary way in

the Court of Appeal. It was given in the form of

indicating that it might come in under section 9(3)
of the Act.	Do Your Honours have a copy of the

Family Provision Act?

DEANE J: Yes, we have.

MR HILBERY:  In case they had not been provided,

Your Honours, I have three copies here. It came

in, of course, as conduct and, indeed, 9(3) is in

such width that perhaps almost anything else could be brought in. That is perfectly true, but it was

then actually considered as a statement by the

deceased under section 32 of the Act in

Mr Justice Sheller's reasons. I will draw

Your Honours' attention to the page. At page 47,

line 6, after dealing with the fact that - which I

will come back to, about section 31,

Mr Justice Sheller said:

Singer 2 30/4/93

Section 32(2) of the Act provides -

for statements, and indicated the expanded

definition.

In my respectful submission, Your Honours, the only statement that the deceased could have made

was that he had entered into the agreement, and I
would have thought, with great respect, that that
would not have been admissible on that account.

The real problem, however, is what section 31(2)

and (3) say. They make it quite clear,

Your Honours, in my submission, that unless an

agreement of this kind has been sanctioned by the

Supreme Court of New South Wales, it has no effect

except as provided in subsection (3), and

subsection (3) says that it cannot have effect

until it has achieved the sanction of the court.

TOOHEY J: But the President, although in dissent on the

outcome of the application, was of the same mind as

the other members of the court regarding the use to

which the Master had put the antenuptial agreement,

was he not?

MR HILBERY:  I saw that, Your Honour, and I would, perhaps,

if the appeal did proceed, with to make certain

submissions on that. I see the great public

importance - Your Honour, I think this part of my

application would be undeniable: these

antenuptial agreements of this kind are, it is

thought, becoming fairly widespread. They are

usually, of course, invoked in Family Law

proceedings. This Court has laid down in the

clearest terms in Smith v Smith the distinction of

purpose and function of agreements sanctioned under

section 87 of the Family Law Act and matters that

are dealt with under this Family Provision Act and

I do not think I should expatiate on that.

The other main point, Your Honours, that I

would wish to come to is the way in which, in the

assessment of the discretion which had been

exercised below, Mr Justice Sheller quite clearly
based very substantially his disapproval of the

appeal on the fact that detailed - broadly

speaking, putting it at its highest, no detail had

been given as to what Mrs Singer's future plans

were or what her future needs might be. But

against that, Your Honours, was the fact that this

Court had twice considered the position of widows

who had means, in 1979 and 1980, in White v Barron

and Goodman's case, and between those two cases

seven members of the High Court gave their views

and analysis and, in my respectful submission, the

spirit, if not the exact reasoning of at least six

of them would have supported some consideration

Singer 3 30/4/93

being given to the widow and to the contingencies

which she might face. She was 61, she was in bad

health; I do not want to go into the merits of this

case unless Your Honours feel that is of some

significance.

DEANE J:  We have all read the judgments which fills us in.

MR HILBERY: Yes, Your Honour, I appreciate that. But,

Your Honours, if that is a serious ground for

refusing to exercise a discretion in favour of an

applicant whose present needs are being met from

her resources, I can only say that it was not a

ground which was followed within two months by the

same court in a decision which I would like to hand

up to Your Honours now.	It is an unreported
decision of the Court of Appeal.	I belatedly have

provided my friend with a copy, but I am afraid

this matter was only brought to my attention in the

last two days.

The facts have so many points of distinction,

perhaps, that I will not put them, except in the

very briefest form. The application was made by a

middle aged lady who was married; her husband was

in work; against a somewhat larger estate than this

in the $700,000 or $800,000 which had belonged to

her mother and it was conceded that there were no

other persons who had a strong moral claim on the deceased's estate. What was significant, though,

in my respectful submission, is what the profession

would draw from the manner in which this problem of

detailed future needs was dealt with by the Court

of Appeal on this occasion. On page 11,

Your Honours, we have this passage:

In his judgment the Master remarked upon

the difficulty of pointing out any need of the

applicant. Unfortunately in this application,

as in many under the Act, a great deal of

evidence has been led about the relationship

between the deceased and the appellant and the

devotion and loyalty of the appellant -

I must say, with respect, in my submission that

evidence would have been totally admissible because

of the provisions of section 9. But that is not to

the point here.

but very little tc demonstrate any particular

need of the appellant;

Further on, Your Honours, at about point 5:

The appellant and her husband, or she alone if

he predeceases her, had two houses, one

comfortable and the other in the country and

Singer 4 30/4/93

in disrepair. No evidence was led whether the

husband would be likely on retiring to obtain

other full or part-time employment. He is a

qualified accountant and, as the Master

observed, seemed to have had little difficulty

in getting employment. It is not known how

long he planned to continue working.	The
impact of inflation and social service

benefits was not addressed. Neither the

appellant nor her husband gave evidence of
their future plans, whether they proposed to

leave their family home and retire to

Blackheath or elsewhere, perhaps to a

retirement village.

The next paragraph begins with the word "If" and

goes on, Your Honours, and on page 12, what was

said in the first non-integral paragraph is that:

A fund of $80,000 is inadequate to provide

properly for such eventualities. All this is

said without regard to the effects of

inflation or the particular exigencies of

unexpected expenses brought about, for

example, by ill health.

It seems, Your Honours, on the basis of those

possibilities, notwithstanding the fact that the

applicant in that case was obviously supported by

her husband, and who was still in employment and

would not have any difficulty in obtaining it, the

court increased the award made in the first

instance from $80,000 to $250,000.

In the present case, Your Honours, it would

appear that a different and, indeed, I would
respectfully submit a totally contrary view was

taken about such uncertainties, having recited

matters which I would have thought strongly
supported the application.	But at page 55 it was
said, at line 12:

There is no evidence of her earnings from that

employment.

She had given up her employment on marriage.

He found that she no longer worked and the job

she held previously no longer existed. Her

health was not good and he thought it should

be taken that she would not work in the

future. The thrust of the appellant's

argument ..... It was said that we should take

account of the well-known expense of health

care in the United States and the effects of

inflation. It was acknowledged that the

Singer 5 30/4/93

deceased's son had a competing claim for

provision under the will.

The appellant argued that it was strange

and unusual that the deceased made no

provision whatever in his will for his wife to

whom he had been happily married.

Then His Honour said - and this seems, in my

submission, to be quite the basic ground of the

objection:

I find it extraordinary that the appellant presented scant or no evidence as to her present income and outgoings or as to her

intentions or needs for the future or as to

what lump sum provision applying appropriate
discount tables would be required to meet
these claims or needs, if they existed. In my
opinion ..... in the absence of any such

evidence, to make an order for the payment to

the appellant of a lump sum is to do no more
than act on speculation and, contrary to the

prohibition contained in s9(2) of the Act, to

alter ..... in the absence of proof that he has

inadequately provided for the appellant.

In my submission, Your Honours, what is quite freely resorted to in the case of Eggler v

Mitchelmore, with the conclusion of which, with

great respect to Their Honours, I could only

respectfully cite in future cases, is that

speculation is a useful way of disclosing the sort

of contingencies that a middle aged woman, of

indifferent health, aged 61 with some life

expectancy of about 20 years, might well be

confronted with. As Your Honours indicated in

Goodman v Windeyer, it is not appropriate for her

to be forced to resort to her own assets

necessarily in order to meet those future

contingencies.

I only want to say this, in conclusion, about

these aspects of the matter, Your Honours: this was

10 years after Goodman v Windeyer and White v

Barron. Those cases have gone, in my respectful submission, certainly in their spirit when one read

them and reread them, there was a remarkable unity

of approach, in my submission, although there may
have been different reasons given. But contingency

was a serious matter to consider, particularly with

regard to people who a."Ce middle aged, have no

capacity to either retrieve their capital if it is

lost, to re-accumulate capital to a figure above

that which they had, and who are facing not only

increasing possible medical expenses, but the range

of those treatments that are available, the

Singer 6 30/4/93

enormous expenses that are incurred with them, have

markedly increased in that 10 years. No more

striking example could be given of what has

happened in those 10 years than the anticipated

inflation figures that were given in Goodman v

Windeyer and had been cited by the Court, accepted

in evidence, of some figure of the nature of
7 per cent. In point of fact, in the intervening

10 years, the price of houses, for example in

Sydney, had risen threefold; a figure far in excess

of anything that was contemplated in 1980.

Even since this decision was given in the

Court of Appeal we have seen wild gyrations in the

rates both of inflation and of interest. My

submission is that the appellant is entitled to

say, "The deceased had a moral duty to two people."

And in the event, notwithstanding what his will

contemplated, even despite the original agreement,

in the event he made absolute provision for one and

absolutely no provision for another. I should

perhaps have put it more firmly than "that was a

striking circumstance", it seems to me to be, in

the result, a most extraordinary circumstance.

Attention has been drawn in the cases to the

fact that what a testator has attempted to do by

will can sometimes give an indication to the court

of how the discretion should be exercised. What we

know about this case, on the findings that

Your Honours have read, is that quite clearly the

deceased anticipated that he would have put his

wife in an entirely different position before he

died. They were seeking for property; the

likelihood was that it would be put in both names

as joint tenants - that was in the evidence and

accepted. The extraordinary thing is that what was

passed over, it seems to me with respect, in the

references to the will and to the antenuptial

agreement was that if he had done so, the

presumption of advancement would have applied and

there would have been nothing for his executors to

do, let alone be bound to the antenuptial

agreement. The joint tenancy would have operated

in her favour and she would have survived his

property, whatever he had agreed to or contemplated

at the time of making the antenuptial agreement.

I do not think that, when Your Honours have

read what has been put in the judgments, I can add

to - the points obviously emerge as having some

public significance in this case. This is the
first case that has come before the Court, as I
understand it, since Goodman v Windeyer in the last

12 years. It is the first case that would involve,

in the practical application of a discretion, the

new 1982 Act and it would be the first case in

Singer 7 30/4/93

which the significance, if any, to be attributed to

an unsanctioned antenuptial agreement would be

under consideration.

DEANE J:  Thank you, Mr Hilbery. Yes, Mr Broun.

MR BROUN:  May I say, firstly, that this is of course very

much an appeal in a discretionary matter where,

indeed, any judge considering the matter may come

to a different conclusion. It is a case very much

depending upon its own unique facts. It might be

many many years before any case with any

significant similarities crop up again. And also,

of course, as the judgment of the President of the

Court of Appeal indicates, it is essentially a very

small question. And if I may perhaps refer - - -

TOOHEY J:  Do you mean small in monetary terms?

MR BROUN: Small in monetary terms, yes.

TOOHEY J: Small for whom?

MR BROUN:  Your Honour, small in relation, perhaps, if I

might put it this way, in relation to the costs

that are involved in it. It is a case where,

indeed, Mr Justice Kirby himself in Hunter -
indeed, he refers to it in his judgment at

application book 30, line 8, refers to the fact

that appeals in discretionary matters such as this

can be acrimonious, prolonged and expensive and

can, unless they are severely limited, lead to

costs eating away the benefit of the estate anyway.

TOOHEY J: They could also be settled.

MR BROUN: That is true, Your Honour, of course. But of

course none of the courts below and Your Honours

would not be told what, if anything, had ever

happened on those questions.

submission, primarily it is a matter where it is of So that, in my

a discretionary kind where one would think that

there would be very little this Court could say

that would assist in the resolution of any other

cases.

GAUDRON J: Except that it does seem extraordinary, does it

not, that a widow can actually end up slightly

worse off than before she started, and it can be

held that there was no obligation to provide for

her maintenance.

MR BROUN:  Your Honour, I would contest that, as to whether

the facts ever showed that, that she was slightly

worse off. If she was worse off, it would have to

be slightly. But it was not made clear by any

Singer	30/4/93 evidence that she was in total monetary terms lower
down than she had been at the beginning.

GAUDRON J: Well, she is without employment.

MR BROUN:  But she was, at the other hand, so many years nearer to the receipt of her pension. She only

has, in fact, approximately another year to go now

before she will be in receipt of the larger pension

that begins to be payable to her on her 64th

birthday. At the age of 62, in fact, she became

entitled to a partial pension which, it would seem,

she was receiving. So she had an income, a secure

income; she had substantial investments - in fact,

at the date of the death, larger than the estate

had; she had a home to live in with two units of

occupation, one which she had previously occupied

with her daughter and the other one rented; she had

her daughter upstairs in the second unit, paying

less than she conceded was an economic rent; so

that she, in effect, appeared, in the way she was

conducting herself, as if she thought she was

better off in that she had surrendered income that

she had previously been receiving, namely what we

might call a commercial arm's length rental from

the upstairs flat of her home. So, on the face of

it, there were indications that she either was

better off or perceived herself as being better

off, than she had been. Certainly there was no
clear evidence to suggest that she was in fact

worse off and no evidence offered that she was in
need.

Now, the Court of Appeal and the trial judge obviously must give some weight to that, when the widow is, on the face of it, better off than the

estate; when the person benefited from the estate

has a very clear strong moral claim; when there was

in fact, for accidental reasons or unforeseen

called for the exercise of difficult questions of	all of those matters, one would have thought, reasons, a very short marriage of only 11 months;	judgment and discretion which, in many courts or
many different judges, could come to different
conclusions. But the question is, essentially, there are traditional ways of looking at
discretionary questions, has there been such a
miscarriage of that discretion as would lead an
appeal court to intervene. Even Justice Kirby in
his dissenting judgment was not able to point to
any precise or clear statement which could be said
to be error.

GAUDRON J: One never can in cases such as this, of course,

but none the less, it is extraordinary that in an

estate which is sufficient to make some provision

for both persons who have a moral claim, the end

Singer 9 30/4/93

result is that one has no provision made for her

at all and in circumstances of advancing years.	I
mean, that cannot be denied, that she is faced
with advancing years and all that that involves.

MR BROUN:  But in this particular case, those advancing

years helped her towards the pension that she had

been contributing to during her life and to the

security which, during her earlier life and her

previous marriage, she had provided for. So that

there was, in effect, an offsetting question in the

advancing years, namely her coming to that security

which had been provided for her prior to her very

short marriage to Mr Singer.

Your Honours, as to the quest _ raised by

Mr Hilbery as to whether the courts 2low gave

houseroom to the antenuptial agreement, houseroom

actually describes it. We did not get really much

mileage out of that pre-marital agreement. It is

dealt with in the Master's judgment,

Justice Kirby's judgment and Justice Sheller's

judgment as, in effect, only a matter to be taken

into account along with many other matters. It

does not seem to have been given great weight by

any of the three. The President, at application book 29, line 12, upheld or favoured the way the

Master had approached it saying that:

In the limited way in which he utilized

the antenuptial agreement between the testator

and the appellant I see no error -

Justice Sheller adopted a similar line to it. The

Master himself, application book 7, line 19, had

said merely that the:

relevance of the agreement is to show that the

parties thought it fair at the time so that

the plaintiff could not say that she had

expectations of a more affluent life than she

had led before marriage in the event of her

husband's death.

So that it is really taken into account in a very

limited way. In fact, one would scarcely think there was anything to provide any assistance to anyone in the future, as to how the use of the pre-

marital agreement may be made, keeping in mind that

he Ld not exclude, or even purport to exclude, any

ri,, :s to bring any application. It was merely a

mutual statement of desires and intention, designed

as much to protect the widow as to protect the

deceased, as to their antenuptial estate, the widow

expressing by the same agreement here desire to

protect her pre-marital estate for the benefit of

her daughter by her previous marriage and to

Singer 10 30/4/93

preserve it separate from might become involved

with Mr Singer, Mr Singer doing the same.

So it was, in effect, a mutual statement.

Quite common, relatively speaking, in absolute terms between people marrying relatively late in

life, that they wished to preserved the estate that

they have for the benefit of those they see to have

a strong moral claim against it, and to see the

estate that has been built up in their life to that

point as being protected.for their children or

indeed, otherwise, they may not wish to enter into

the marriage at all.

So it is merely a statement of common

intention, in this case equal - in fact, the widow

had a slightly bigger estate than Mr Singer - equal
intention for what, one would have thought, good
reasons. It is taken into account only as a matter
of a relevant piece of conduct, a relevant

circumstance, a relevant matter of their mutual

attention, and what was thought to be fair and

right at the time.

Your Honours, the case of Eggler v Mitchelmore

to which reference was made is a very different

sort of case. There was only the daughter with a

moral claim, there was a significantly larger

estate, and Mrs Eggler had a somewhat unclear

position, whereas Mrs Singer is in a relatively

clear position. She had a home, she had an

investment property, she had an investment capital

fund, she had a right to a pension - not of our

social services kind but one to which she had

contributed in her years of employment - so that

she was, on the face of it, secure. And there was

no evidence offered to suggest that there was any

threat or need or difficulty which had to be met.

In our submission, when the evidence is examined,

Court of Appeal, there was not really much of an	as was examined before the Master and before the
alternative as to what the Master could do. Justice Kirby, with his examination of the
evidence, came to the view that the award none the
less was a very small part of the estate.
His Honour fixed a figure of $50,000 less the $8000
she already had, $41,000-odd. So it was assessed
by the President as being, in the circumstances, a
relatively small provision that could be made or
was appropriate on the whole of that evidence.

Your Honours, inevitably, if Your Honours were

disposed to look at the leave question, it is

essentially those questions of the evidence that

the appeal would be about. What really was the

overall financial position of Mrs Singer? What

really was the overall financial position of the

Singer 11 30/4/93

son? How did each stack up against the other? The

pre-marital agreement looms as a very small aspect

and there is a matter where possibly the members of the Court, if exercising their discretion about it,

might each come to a different conclusion because

that is the feature of discretionary matters, that

anybody coming to the matter, although they would

fall hopefully within a reasonable range, would

come to a different conclusion as to what the fair

thing to do was in the circumstances.

TOOHEY J:  Mr Broun, there was cash available, was there?

MR BROUN: Oh yes. Approximately, I think, at the date of

the hearing - - -

TOOHEY J:  It would not have meant intruding into the Rose

Bay property?

MR BROUN:	That is so, Your Honour, yes. The President of the Court of Appeal referred to that.	I think it
was about $110,000.

TOOHEY J:	I notice in the notice of appeal the present applicant sought $100,000 in what the Court of
Appeal referred to as an ambit claim. How was the
matter presented to the Master?  I mean, was it
presented on the basis that there was cash
available from which provision could be made?
MR BROUN:	Yes, I think that is my recollection, that it was

not sought to bring about the sale of the house,

but I do not think, in fact, Mr Hilbery presented

to the Master a precise figure in the submissions

but it was left, as commonly occurs in matters of
this kind, that precise figures are not the subject

of submissions.

TOOHEY J:  I was not thinking so much of precise figures as

the availability of provision without intruding

son would have. into the property which it was contemplated the

MR BROUN:  That was certainly referred to but there was not

a disavowal before the Master of any desire to

intrude upon the house. If the Master thought that

the amount should be larger, then it could be

provided out of the cash sum. But it has to be

remembered that the cash sum, on the evidence, was

going to be needed to put the house back into a

habitable condition, it having been very seriously

damaged in storms, and the son, Mr Singer, having

embarked with his own personal labour in trying to

restore the house, there was still going to be need

to use some cash to put the house back into shape.

Also, of course, Mr Singer, the son, the

beneficiary, was in such a modest range of

Singer 12 30/4/93

employment that he was going to be in need of cash if he was to have any chance of continuing to live

in that house and to maintain it.

Indeed, Your Honours, I suppose we would have the problem that once we got to the Court, looking

at the facts, we would have to see what had

happened to the money again. As between the time

it was before the Master and the time before the

Court of Appeal it had gone down and some amounts had been used. Before the Court of Appeal we were

able to agree on the figure - the court was invited

to accept what the figure then available was.	It
would have gone down again, presumably, for the
same reasons.	So there would be a number of purely

factual matters that would have to be explored in

the appeal. Thank you, Your Honours.

DEANE J:  In this case a majority of the Court considers · ~

there should be a grant of special leave to appeal.

Accordingly, the order of the Court is that special

leave to appeal is granted.

AT 3.51 PM THE MATTER WAS ADJOURNED SINE DIE

Singer 13 30/4/93