Soens v Rathborne

[2018] NSWSC 302

Supreme Court

New South Wales

Medium Neutral Citation:

Soens v Rathborne [2018] NSWSC 302

Hearing dates:

1 February 2018

Date of orders:

14 March 2018

Decision date:

14 March 2018

Jurisdiction:

Equity

Before:

Hallen J

Decision:

(i) Orders that the matter be adjourned to a date mutually convenient to the Court and the parties, to enable the parties to agree upon the final form of the proposed orders, including any orders as to costs.

(ii) Direct the parties to bring in Short Minutes of Order to reflect the reasons and the proposed orders.

(iii) Orders that if agreement is reached, Short Minutes of Order may be forwarded to the Court, for consideration, in Chambers, so that the orders proposed may be made, and entered, and the adjourned date be vacated.

Catchwords:

SUCCESSION - FAMILY PROVISION - NOTIONAL ESTATE – The Plaintiff, a daughter of the deceased, seeks a family provision order out of the estate or notional estate of the deceased under the Succession Act 2006 – No grant of administration – No provision made for the Plaintiff in the Will – Very little actual estate - The Defendant is the widow of the deceased and the holder of all property that may be designated as notional estate - Whether provision should be made for the Plaintiff and, if so, the nature of the provision to be made - Whether property of the Defendant should be designated as notional estate

Legislation Cited:

Civil Procedure Act 2005
Family Provision Act 1982 (NSW)
Legal Profession Uniform Law (NSW)
Probate and Administration Act 1898 (NSW)
Succession Act 2006 (NSW)

Cases Cited:

Alexander v Jansson [2010] NSWCA 176
Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Andrew v Blair [2007] NSWSC 1003
Bartlett v Coomber [2008] NSWCA 100
Baychek v Baychek [2010] NSWSC 987
Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86
Bondelmonte v Blanckensee [1989] WAR 305
Borebor v Keane [2013] VSC 35
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327
Butcher v Craig [2009] WASC 164
Campbell v Chabert-McKay [2010] NSWSC 859
Cetojevic v Cetojevic [2006] NSWSC 431
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Christie v Manera [2006] WASC 287
Crossman v Riedel [2004] ACTSC 127
Curnow v Curnow [2014] NSWSC 896
de Angelis v de Angelis [2003] VSC 432
Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235
Dion Giuseppi Sergi by next friend Aileen Solowiej v Sergi [2012] WASC 18
Diver v Neal [2009] NSWCA 54
Ernst v Mowbray [2004] NSWSC 1140
Foley v Ellis [2008] NSWCA 288
Galt v Compagnon (Supreme Court (NSW), Einstein J, 24 February 1998, unrep)
Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep)
Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31
Goodsell v Wellington [2011] NSWSC 1232
Gorton v Parks (1989) 17 NSWLR 1
Grey v Harrison [1997] 2 VR 359
Guardian Trust and Executors Company of New Zealand Ltd v Public Trustee of New Zealand [1942] AC 115
Hawkins v Prestage (1989) 1 WAR 37 at 45
Henry v Hancock [2016] NSWSC 71
Heyward v Fisher (Court of Appeal (NSW), Kirby J, 26 April 1985, unrep)
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2
Hunter v Hunter (1987) 8 NSWLR 573
Ilott v The Blue Cross [2017] 2 WLR 979; [2017] UKSC 17
In the Estate of Puckridge, Deceased (1978) 20 SASR 72
John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19
John v John [2010] NSWSC 937
Kavalee v Burbidge; Hyland v Burbidge (1998) 43 NSWLR 422
Kay v Archbold [2008] NSWSC 254
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Kohari v NSW Trustee & Guardian [2017] NSWSC 1080
Kohari v Snow [2013] NSWSC 452
Lewis v Warner [2016] 3 WLR 1545; [2016] EWHC 1787
MacGregor v MacGregor [2003] WASC 169
Manuel v Lane [2013] NSWCA 61
Marks v Marks [2003] WASCA 297
Mayfield v Lloyd-Williams [2004] NSWSC 419
McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82
McGrath v Eves [2005] NSWSC 1006
Ogburn v Ogburn; Ogburn v Ogburn [2012] NSWSC 79
McKenzie v Topp [2004] VSC 90
Page v Page [2016] NSWSC 1218
Palagiano v Mankarios [2011] NSWSC 61
Penninger v Penninger [2017] NSWSC 892
Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19
R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52
Re Dennis (Deceased) [1981] 2 All ER 140
Salmon v Osmond [2015] NSWCA 42
Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522
Smith v Dayman [1994] NSWCA 286
Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297
Smith v Woodward (Supreme Court (NSW), Macready M, 9 September 1994, unrep)
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Stone v Stone [2016] NSWSC 605
Stott v Cook (1960) 33 ALJR 447
Sung v Malaxos [2015] NSWSC 186
Szypica v O’Beirne [2013] NSWSC 297
Taylor v Farrugia [2009] NSWSC 801
Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285
Verzar v Verzar [2012] NSWSC 1380
Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11
Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep)
Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep
Wheat v Wisbey [2013] NSWSC 537
White v Barron (1980) 144 CLR 431; [1980] HCA 14
Wilcox v Wilcox [2012] NSWSC 1138
Williamson v Williamson [2011] NSWSC 228
Yee v Yee [2017] NSWCA 305

Texts Cited:

Heydon and Leeming, Jacobs' Law of Trusts in Australia, (7th ed 2006, LexisNexis Butterworths)
New South Wales Law Reform Commission, Report 110 Uniform Succession Laws: Family Provision, (May 2005)
Rosalind Atherton, “The Concept of Moral Duty in the Law of Family Provision – a Gloss or Critical Understanding?” (1999) 5 Aust J Leg Hist 5
Rosalind Croucher, "Contracts to Leave Property by Will and Family Provision after Barns v Barns [2003] HCA 9” (2005) 27(2) SydLR 263

Category:

Principal judgment

Parties:

Angela Leigh Soens (Plaintiff)
Mary Elaine Rathborne (Defendant)

Representation:

Counsel:
Ms L Clarke (Plaintiff)
Mr J E Armfield (Defendant)

  Solicitors:
Cunningham Legal (Plaintiff)
Peninsula Law (Defendant)

File Number(s):

2017/112742

Judgment

Introduction

1. HIS HONOUR: The words written by Allsop P in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308, at [1], resonate with the decision to be made in this case. His Honour commenced his reasons for judgment in the following way:

“This is a difficult case. The difficulty arises from the need to apply a statutory test couched in evaluative language embodying human values and norms of conduct deeply personal to those involved and often incapable of clear expression. The human expression of will concerning the disposition of property flowing from considerations of emotion (including love and disappointment), reason and societal and family obligation cannot often be fully understood.”

2. The Plaintiff, who is the child of Darryl Thomas Rathborne (“the deceased”), commenced these proceedings on 13 April 2017. She seeks a family provision order to be made out of the estate and notional estate of the deceased pursuant to Chapter 3 of the Succession Act 2006 (NSW) (“the Act”). Her case is unusual as there is no dispute that she did not see the deceased for the first 24 years of her life.

3. The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is one for the maintenance, education, or advancement in life, of an eligible person.

4. The deceased died on 27 April 2016, aged 65 years.

5. The Defendant named in the Summons is the widow of the deceased, the executrix of his Will made on 16 February 2016, and the sole beneficiary named in that Will.

6. It is not in dispute that the Plaintiff’s proceedings were commenced within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased): s 58(2) of the Act.

7. As at the date of his death, because there was said to be no property, of any substantial value, solely owned the deceased, the Defendant did not apply for Probate of the deceased’s Will. This is, therefore, a case where the application is by the Plaintiff for a family provision order in respect of the estate of the deceased, in relation to which administration has not been granted. (As will be read, there was, in fact, some property, being proceeds of a bank account and a car that was in the sole name of the deceased at the date of his death.)

8. In addition, there was property (to which I shall refer), the deceased’s interest in which may be designated as notional estate, and which property is now solely owned by the Defendant. The Act provides that a family provision order may be made in relation to property that is not part of the deceased person’s estate, but which is designated as “notional estate” of the deceased person by an order under Part 3.3 of the Act: s 63(5). “Notional estate” of a deceased person is defined in s 3 of the Act to mean property designated by a notional estate order as notional estate of the deceased person. “Notional estate order” means an order made by the court under Chapter 3 of the Act, designating property specified in the order as notional estate of a deceased person. A person’s rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act.

9. The Defendant is a necessary and proper party/Defendant. In John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19, at [131], the plurality of the High Court accepted the submission that “where a court is invited to make, or proposes to make, orders directly affecting the rights or liabilities of a non-party, the non-party is a necessary party and ought to be joined”.

10. In Smith v Dayman [1994] NSWCA 286, Handley JA had earlier remarked that “[a] court could not, ordinarily, make orders designating property as notional estate without the owners being parties to the proceedings”. Both of these decisions were recently referred to by Gleeson JA (with whom Simpson JA agreed) in Yee v Yee [2017] NSWCA 305, at [196]-[198].

11. Neither party made any submissions, in writing, as to whether it is proper to grant administration in respect of the estate of the deceased to the Plaintiff, for the purposes only of permitting the application concerned to be dealt with: s 91 of the Act.

12. In Wheat v Wisbey [2013] NSWSC 537, I discussed whether it was necessary for there to be a grant of administration in an estate, before an application for a family provision order can be dealt with. (I also concluded that a grant of administration is not required at the time an application for a family provision order is made. Section 58(1) of the Act specifically provides that an application for a family provision order may be made whether or not administration of the estate of the deceased person has been granted.)

13. I shall not repeat all that I wrote in Wheat v Wisbey. I referred to the Act, s 91, and to the “rare” case in which there is only property that may be designated as notional estate. I concluded, at [57]-[59], that:

“In summary, then, in a case where there is an application for a family provision order in respect of the estate of a deceased person, or deceased transferee, or a notional estate order, in relation to which administration has not been granted:

(a) Where there is real and personal estate of which the deceased person dies seised, or possessed of, or entitled to, in New South Wales, at the date of death, a grant of administration is required before an application for a family provision order can be dealt with and it would be proper to make an order under s 91.

(b) In any other case, where there is no such real or personal estate, if:

(i) the holder of the property the subject of the application for a notional estate order is a party to the proceedings;

(ii) a family provision order and a costs order is made in favour of the applicant;

(iii) a notional estate order is, or may be, made in respect of the property the subject of the application for a notional estate order for the purposes of a family provision order, or for the purposes of an order that the whole, or part, of the costs of proceedings in relation to the estate or notional estate of a deceased person be paid out of the notional estate of the deceased person;

(iv) an order is made that the holder of the property the subject of the notional estate order, or that person agrees, to satisfy the family provision order; and

(v) the court makes an order that the family provision order not take effect as set out in s 72(a) or (b),

then, it may not be "proper" to make a s 91 grant.

In stating my view, there is much to be said for the view expressed by Young J in Re Estate Harriett Cassel [2000] NSWSC 294, although in that case, he was speaking of the former Act:

‘[8] The grant under s 41A is not a grant entitling the grantor to administer the estate in any way at all. It is a grant purely to get over the barrier that would otherwise prevent an application being made under the Family Provision Act.

[9] Accordingly, what usually occurs in this sort of case is that a grant is made to the plaintiff who is about to bring proceedings under the Family Provision Act. The Court, when hearing those proceedings, then needs to appoint a person to represent the estate under Pt 8 r16, or some other rule under Pt 8.

[10] All this seems rather pointless. A grant is made purely to remove the barrier to the Family Provision Act claim. It does not provide for the administration of the estate, provide authority for anyone to enquire as to the deceased's assets or the identity or wishes of the beneficiaries. It is left to the plaintiff to make a series of applications, (1) to the Probate Court for a grant; and (2) to the Equity Court for directions as to who should be a representative defendant. These costly applications confer no real benefit on anyone. It may well be that s41A should be amended or the Family Provision Act amended so as to permit applications to be made without a grant, provided that the Court is able to appoint a person to represent the estate.’”

14. I repeated these views in Curnow v Curnow [2014] NSWSC 896.

15. In the written submissions, both parties submitted that, if an order for provision were to be made in favour of the Plaintiff, it could only be met out of property designated as notional estate of the deceased, which property is held by the Defendant. The Defendant, however, went on to dispute that a notional estate order should be made for a number of reasons to which I shall return.

16. As the matter proceeded, I came to the view that there may be $50,000, which could form part of the actual estate of the deceased. I shall return to this topic later in these reasons. The Defendant had received this amount also.

17. In the present case, since the Defendant is a party to the proceedings and because she has agreed to satisfy any family provision order and costs order made in favour of the Plaintiff, before a notional estate order is made (T2.03 – T2.07), it is not proper, at this time, to grant administration under s 91, as it is unnecessary. If there is any difficulty in giving effect to, or implementing, the family provision order in favour of the Plaintiff that I propose to make, I would then be prepared to make an order in favour of the Plaintiff under s 91.

18. Section 57(1) of the Act provides that "eligible persons" may apply to the Court for a family provision order. It is not in dispute that, as a child of the deceased, the Plaintiff is an eligible person within s 57(1)(c) of the Act. The language of the sub-section is expressive of the person's status, regardless of age, as well as her, or his, relationship to the deceased.

19. The parties also agreed that there is no scope for the operation of the intestacy rules so that, hereafter, it is only necessary to refer to the Will of the deceased.

Background Facts

20. It is impossible to reach clear findings of facts in all of the areas of dispute. Nor is it necessary to trawl through all of the detail of the affidavits filed. In these cases, it can be difficult, if not impossible, to reconcile the contradictory expressions of fact and opinion which the affidavits reveal. I have endeavoured to set out findings of fact, some of which are undisputed and some of which I find on the balance of probabilities.

21. The deceased was born in August 1950.

22. The Plaintiff was born in July 1977 and is now 40 years old.

23. The Plaintiff is a child of the deceased’s relationship with Ms Cheryl Westerman. That relationship commenced in 1976, and ended a few months before the birth of the Plaintiff. It was an extremely short relationship.

24. I shall return to the evidence about the relationship of the Plaintiff and the deceased later in these reasons (which is, or may be, in dispute).

25. Following the breakdown of the relationship with Ms Westerman, the deceased, married Ms Debbie Rathborne. There were three children of the marriage, namely, David, Dean and Donna. That marriage irretrievably broke down in about 1991 and it was dissolved subsequently. (None of the children of the deceased, or Ms Rathborne, has played any part in these proceedings.)

26. The Defendant was born in June 1950 and is now 67 years old. She first met the deceased in 1967. Their relationship continued for 4 years, and they were engaged to be married, until the deceased moved to Newcastle. They met again in, and co-habited for 25 years from, 1991 until the deceased’s death. They were married on 1 October 1994, and remained married at the time of the deceased’s death, over 21 years later. There were no children of their marriage.

27. As stated, the deceased made a Will on 16 February 2016, in which Will the Defendant is the sole beneficiary named. In the event that she did not survive the deceased for 30 days, the substitute beneficiaries were her two children, Nicole Lee Bailey and Renee Michelle Baumann, and Nicole’s daughter, Jala. The Plaintiff was not a beneficiary, or substitute beneficiary, named in the deceased’s Will.

28. At the date of the deceased’s death, the sole property owned by him was a Holden Commodore motor vehicle ($50,000), money in a bank account with Westpac (approximately $6,000) and 2 guns ($1,000). The Defendant used the money in bank to meet, in part, the funeral expenses ($9,000). The motor vehicle remained in the possession of the Defendant until it was sold in late July 2017.

29. The deceased and the Defendant were registered proprietors, as joint tenants, of a property at Parkridge Drive, Jilliby (“the Jilliby property”) in New South Wales. The Jilliby property was purchased by them in about 2009. A notice of death was registered by the Defendant on June 2016. She is now the sole registered proprietor of the Jilliby property.

30. The parties agreed that, at the date of the deceased’s death, the Jilliby property had a gross value of $900,000. They also agreed that, at the date of hearing, its value had increased to $1,200,000. It follows, and the parties agreed, that, for the purposes of the hearing, the value of the deceased’s interest in the Jilliby property could be estimated to be $600,000.

31. In addition, at the date of his death, the deceased held a BT SuperWrap+ Portfolio (“the Portfolio”) valued at approximately $760,000. In February 2015, he made a non-lapsing nomination in relation to the whole of his interest in the Portfolio, appointing the Defendant as the sole beneficiary.

32. The current value of the assets in the Portfolio is $623,432: T3.37 - T3.43.

20. The guns remain in the possession of the Defendant and they still have a value of $1,000: T2.43.

21. The parties agreed (including the proceeds of sale of the deceased’s car), that the property that could be designated as the notional estate of the deceased had a total value of $1,274,432: T3.24 - T4.03.

22. The persons who are, or who may be, eligible persons, within the meaning of the Act, are the parties, Ms Debbie Rathborne (the deceased’s former wife), the children of the deceased and Ms Rathborne, namely David, Dean and Donna, and the Defendant’s children by a prior marriage, namely, Nicole and Renee.

23. Notice has been given to all of the persons referred to (other than the parties) but none has commenced proceedings. The Defendant stated that she believes that the deceased’s children “will not be lodging a competing claim”. When the Court enquired about the basis of the belief, which evidence had not been objected to, counsel for the Defendant stated that it was that notice of the Plaintiff’s application had been given to each and that the solicitors had not received any response from any of them: T4.05 – T5.10.

24. The Defendant also stated that “my daughters … do not intend to lodge a competing claim”. This was, apparently, based on discussions said to have been held with each of them.

25. The Defendant has raised her financial circumstances, as the holder of property sought to be designated as notional estate, in the proceedings. She has also raised factual matters that she submits go to the discretionary considerations. Furthermore, as the sole beneficiary named in the Will, the Court may not disregard the deceased's freedom of testamentary disposition and the preferable disposition to her, regardless of her financial position or needs: s 61 of the Act.

The deceased’s car

39. As stated above, the deceased owned a car at the date of his death (with an estimated value of $50,000).

40. In an affidavit affirmed 31 January 2018 (the day before the hearing), the Defendant stated that she had sold it and had received $50,000, on 27 July 2017. She acknowledged that the proceeds of sale had been deposited into her own bank account, and that she had spent it all.

41. The Defendant gave evidence that since the deceased’s death, she had spent $59,763 making “substantial improvements to the Jilliby property” as well as paying all of the maintenance and other costs relating to that property, including rates and insurance. Some of these expenses were paid using the proceeds of sale of the car: T2.20 – T2.33.

42. As will be read, s 79 of the Act permits the Court, on application by an applicant for a family provision order, or on its own motion, to make a notional estate order designating property specified in the order as notional estate of a deceased person if the Court is satisfied that on, or as a result of, a distribution of the deceased's estate, property (whether or not the subject of the distribution) became held by a person (whether or not as trustee) or subject to a trust.

43. Accordingly, an available alternative is to designate the amount of $50,000 as notional estate of the deceased.

44. Even though, as stated, the Defendant is the sole beneficiary named in the Will of the deceased, she is also the sole executrix named in the Will. Whilst it is clear that she distributed the proceeds of sale of the car to herself, as beneficiary, more than 6 months after the deceased’s death, there is no evidence that the Defendant had given notice, in the form approved under s 17 of the Civil Procedure Act 2005 (NSW), of any intention to distribute property in the estate after the expiration of a specified time: s 93(1) of the Act.

45. Even if she had given notice, the protection afforded by s 93(2) of the Act, would not be available to her, since, at the time she received, and deposited the proceeds of sale of the car into her bank account, she was aware that the Plaintiff had commenced the proceedings, some three months earlier. Accordingly, at the time of the distribution, she had notice of an application for a family provision order affecting the estate of the deceased.

46. In the circumstances, the Court could follow the line of authority which requires an executrix who has distributed property to herself prior to the period in which any claim upon the estate might be made by an eligible person, to restore the monies to the estate: Ernst v Mowbray [2004] NSWSC 1140, Young CJ in Eq, especially, at [64]-[65]; Guardian Trust and Executors Company of New Zealand Ltd v Public Trustee of New Zealand [1942] AC 115, at 127.

47. In Ernst v Mowbray, at [65], Young CJ in Eq, wrote:

“However, I wish to make it quite clear that in my view that where there has been a premature distribution of the estate the Court is not obliged to consider questions of notional estate, but would make an order that the executors personally restore the money which they have taken into the estate with interest and then make an order out of the augmented actual estate.”

48. A third alternative would be to take the distribution made to herself as relevant to determining the substantial justice and merits in either making, or not making, a notional estate order in respect of the deceased’s interest in the Jilliby property that has passed to the Defendant by survivorship: Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4 at [106]-[107].

49. It is unnecessary to discuss this aspect further, at this time, since the parties agreed that following the reasons for judgment, an opportunity should be given to the Defendant to satisfy any order for provision and/or costs made by the Court, in the event that the Plaintiff was successful, and, if the Defendant could not do so, then to identify appropriate property to bear the burden of that provision and costs.

50. As the issue of costs is to be determined at a later time, for reasons to which I shall refer, I am satisfied that the parties should be given an opportunity to make submissions with respect to the final orders that should be made in the proceedings.

Costs and disbursements of the Proceedings

51. Usually, in calculating the value of the deceased's estate and notional estate available from which an order may be made, the costs of the proceedings should be considered with circumspection, since, unless the overall justice of the case requires some different order to be made, the applicant, if successful, normally would be entitled to an order that her costs and disbursements, calculated on the ordinary basis, should be paid out of the estate (and/or notional estate) of the deceased, while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the proceedings, normally will be entitled to an order that her costs, calculated on the indemnity basis, should be paid out of the estate.

52. In an affidavit sworn on 30 January 2018, by Ms M Cunningham, solicitor, the Plaintiff’s costs and disbursements, calculated on the indemnity basis, from the commencement, to the conclusion, of the one day hearing, were estimated to be $47,000, inclusive of GST. In the same affidavit, she stated that the costs and disbursements, calculated on the ordinary basis, from the commencement, to the conclusion, of the proceedings, were estimated to be $35,000, inclusive of GST.

53. Ms Cunningham also stated that “Counsel and solicitor costs are charge[d] on a contingency basis. There is no uplift to be charged on these fees.” In addition, she stated that the Plaintiff had paid the filing fee ($1,078) but that the Court hearing allocation fee ($2,197) had “not yet been paid by the [P]laintiff as the [C]ourt agreed to postpone payment”.

54. At the commencement of the hearing, counsel for the Plaintiff confirmed that the “contingency basis” referred to in the solicitor’s affidavit, meant that the Plaintiff had entered into a “conditional costs agreement" and that it provided that the payment of all of the Plaintiff’s legal costs is conditional on the successful outcome of the matter to which those costs relate: Legal Profession Uniform Law (NSW), s 181(1). Counsel also stated that it does not provide for disbursements to be paid depending upon the outcome of the matter: s 181(6) of the Legal Profession Uniform Law, and that the Plaintiff is to pay disbursements of $3,825 (of which she had paid $1,078) whatever the result: T6.18 – T6.36; T63.03 – T63.09.

55. In an affidavit affirmed on 12 December 2017, by Mr P Mereniuk, solicitor, the Defendant’s costs and disbursements, calculated on the indemnity basis, from the commencement, to the conclusion, of the one day hearing, were estimated to be $65,000, inclusive of GST. Although not stated in the solicitor’s affidavit, it appears that on 18 December 2017, the Defendant withdrew $18,000 from superannuation “for the purposes of making a payment to my solicitors in respect to the costs of these proceedings”.

56. Counsel for the Defendant stated that the Court should not determine the issue of costs in these reasons as there is a document that may be relevant to the determination of the costs of the proceedings. He stated that in the event that the Plaintiff was unsuccessful, the Defendant would seek an order for costs, calculated on the indemnity basis, to be paid by her: T7.20 – T7.24.

57. When these reasons are delivered, the matter will be adjourned to enable the parties to consider the form of final orders, and if necessary, to argue the question of costs.

Prior testamentary intentions of the deceased

58. The deceased's earlier Will, dated 8 November 2009, left his entire estate to the Defendant provided she survived him for 30 days. In the event that she did not, he left the whole of his estate, after payment of debts, funeral and testamentary expenses, to Renee. The deceased did not make any provision, in this Will for the Plaintiff.

59. The Plaintiff gave evidence of a number of conversations that she said she had with the deceased about his testamentary intentions, including, that he would “make sure you are taken care of in the future”; “[the Jilliby property] will all be yours one day”; “I missed out on so much of you growing up that I will make you very comfortable when I die”.

60. Ms Westerman gave evidence that the deceased “often said” that he was sorry and that he “would make up for it”. He is alleged to have also said “I have made Angela executor of my will because I owe her”.

61. I treat the evidence of these conversations cautiously since it is not possible for the Defendant to have disputed each of them. However, what is clear is that all of the conversations are inconsistent with each of the Wills made by the deceased to which reference has been made.

The Plaintiff’s Relationship with the deceased

62. To the extent that any of the facts stated hereunder are in dispute, what I have stated should be read as the factual findings of the Court.

63. Although they had met previously, when the deceased again met Ms Westerman, in 1976, she was married and living with her husband. She gave oral evidence that she and he were separated, but it is difficult to accept this evidence given only at the hearing.

64. At the time, she had three young children. When her relationship with the deceased ended, a few months later, Ms Westerman returned to live with her husband. She continued to do so for a period of time. In fact, her husband was named as the father on the Plaintiff’s Birth Certificate.

65. I shall not set out all of her evidence on this topic, but I did not find Ms Westerman’s evidence convincing. Importantly, she had not disclosed the matters orally stated in her affidavit.

66. Furthermore, her evidence in cross-examination, about having told the deceased that she was pregnant, and his response to that news, was as follows (at T44.34 – T44.41):

“Q. If you had told him that he was Angela's father, would you not also have asked him to contribute towards her support?

A. No.

Q. Because you would have thought, would you not, that he as the father of the child had some moral or legal obligation to contribute towards her upkeep?

A. No, because he'd made it perfectly clear to me that he wanted nothing to do with me or Angela….”

67. This evidence is inconsistent with her affidavit, in which she had stated:

“I became pregnant to Darryl in the second half of 1976. He was happy I was pregnant.”

68. After the dissolution of the marriage of Ms Westerman and her first husband on a date not disclosed, Ms Westerman married again. This marriage was between about 1987 and about 1993: T49.45 – T49.50.

69. Ms Westerman also gave evidence that when the Plaintiff was about 8 years of age, she said that she wanted to speak to her father. Ms Westerman said that she telephoned the deceased and told him that the Plaintiff was his daughter and that the Plaintiff wanted to speak to him. When the Plaintiff was on the telephone, he disconnected the call without speaking to her. When Ms Westerman telephoned him again, shortly thereafter, he is alleged to have said: “That is the past.”

70. The Plaintiff’s evidence, at T30.09 – 30.12, was:

“Q. Do you agree with me that you had no contact with your father before you were about 24 years old?

A. No, incorrect. I contacted him when I was about seven or eight and he hang up on me and thought I was a kid playing on with the phone line.”

71. There is no person capable of rebutting the evidence given by the Plaintiff and by Ms Westerman about these conversations with the deceased. I treat this evidence with some caution, but, I do not think that it matters, ultimately, bearing in mind other evidence, and because the Plaintiff accepted that before 2001, “the only contact was one telephone call”: T30.18 – T30.20.

72. In 1991, the deceased was informed of the Plaintiff’s existence. He required parentage testing to occur before acknowledging that the Plaintiff was his child. I am unable to speculate as to his reasons for doing so. (The suggestion made by the Plaintiff and Ms Westerman is that he did so to avoid paying child support.) The fact that he did seems somewhat inconsistent with Ms Westerman’s evidence of the previous acknowledgement that the Plaintiff was his child.

73. The parentage testing procedure occurred and despite it being established that she was his child, the Plaintiff and the deceased did not meet until 2001. He was assessed by the Child Support Agency and was required to make payments for child support.

74. Ms Westerman gave evidence that he paid $50 per week (but in her oral evidence corrected that to $50 per month) for about one year. The Defendant asserted that he complied with his legal obligations.

75. There was no evidence by either party, from the Child Support Agency, that would assist in determining the disputed facts surrounding this aspect of the case and whether the deceased complied with his financial obligations, to the Plaintiff, thereafter, in a timely manner, or for how long.

76. Counsel for the Plaintiff made some criticism of the deceased stating that, after 1991, he should have taken steps to locate, and engage with, the Plaintiff. However, there was no evidence of the deceased having been informed, by Ms Westerman, or otherwise, of the whereabouts of the Plaintiff. Furthermore, the Plaintiff had turned 18 in 1995, and thereafter, she took no steps, it would seem, to contact the deceased.

77. Yet, the Defendant gave evidence that when she asked the deceased if he wished to make contact with the Plaintiff or his other children, he said: “We are not going back. We are moving forward. Too much will be dug up if Angela is still in my life.”

78. I do not attribute blame to either the Plaintiff, or the deceased, for the lack of contact until 2001. The sad, but undisputed, fact is that there was no contact, other than one telephone call, for the first 24 years of the Plaintiff’s life. Each, it would seem, was prepared, no matter how emotionally difficult it might have been, to live her, and his, life, respectively, without the other being a part of it.

79. The meeting of the Plaintiff and the deceased in 2001 was prompted by a card, sent to the deceased by Ms Westerman, which was in the following terms:

“Dear Darryl,

Just a note to let you know that your daughter is expecting her first baby on 1st November 2001. She has written you many letters over the past years, but was afraid that she would be rejected, so never mailed them.

Her fiance’s [sic] name is Robert Soens.

Angela is a Pharmacy Assistant.

Robert is in the Air Force based at Amberley QLD.

P.S. would you be interested in giving Angela away on her wedding day later this year?

All the best.

Regards to Mary.

Cheryl”

80. Subsequently, the Plaintiff telephoned the deceased and he and the Defendant met the Plaintiff and her husband.

81. Although it appears to be the subject of dispute, I accept the Defendant’s evidence that the deceased contributed $5,000 towards the costs of the Plaintiff’s wedding, at which he and the Defendant attended. I accept this evidence even though the Defendant acknowledged she was unable to produce a document that showed the payment: T71.43 – T71.44. (The Defendant had made the assertion of fact in an affidavit made on 13 June 2017, but the Plaintiff had not responded to it by denial.)

82. I also accept the Defendant’s evidence that “there was no mention of [the deceased] in the thank you or acceptance speeches”. The Defendant was not cross-examined on this statement which was stated in an affidavit read in the proceedings. Nor had the Plaintiff responded to it by denial.

83. The deceased wrote a letter, dated 2 June 2001, to the Plaintiff, which demonstrates his emotions in having met the Plaintiff. He wrote:

“…I may be taking some time off about a week in July. I think both Mary and I will come up again. When I can determine a date I will let you know. Possibly the 23rd of Dec. When Mary and I were discussing the Holiday in July, she said are we going to the Snow this time, I said OH YES FOR SURE!! She knows where I want to go.

Every moment I spent with you at Burleigh, I can see vividly it was a very precious time. And I certainly want to see more of these times.

I hope this finds both you & Baley well Rob also. I sent you some emails from my work. Hope you have received them O.K.

There are a million things I still want to talk to you about both you & me. We will do it. All my love forever” (Emphasis in original.)

84. As well, he sent her several cards, in 2001, in each of which he professes his love for the Plaintiff, his daughter.

85. The evidence reveals that, thereafter, the Plaintiff’s face to face contact with the deceased was limited during the period 2001-2009. She agreed that “the substantial amount of face to face contact was when he visited [the Plaintiff’s] home at Collingwood Park”: T32.13 – T32.17. I accept that the deceased’s visits coincided with the Defendant visiting her daughters on the Gold Coast.

86. In relation to the amount of contact, I do not accept all of the evidence of the Plaintiff. For example, she gave the following evidence, in answer to questions by the Court, at T40.45 – T41.11:

“Q. A note of something you said to me was that between 2001 and 2009 that is, in each year during that period, your father visited you on no less than two and sometimes on three or four occasions each year. Did I understand your evidence correctly?

A. Yes.

Q. And do you tell me that that position was in each and every year between 2001 and 2009?

A. Yes.

Q. Are you quite sure?

A. Not four times every year but sometimes two, sometimes three, sometimes four, absolutely, yes.

Q. But do you say that there was no occasion in any of those years where there was a gap in the contact?

A. Absolutely not. There was no gap.”

87. The Plaintiff’s evidence does not sit comfortably with the first sentence of an email sent by her to the deceased, in August 2009, which stated, in part:

“Where do I start, it’s been a while now since we had any contact, and it has played on my mind WHY”

88. When the Court asked the Plaintiff to explain how the two pieces of evidence could sit conformably together, she said that because they had email and text correspondence “nearly daily”, the period being referred to was reflective of “two or three weeks” of having had no contact. It is hard to accept this evidence when the only two emails produced for the whole of the eight year period were the two emails which I shall set out and when there is no copy produced of any other emails or texts between them.

88. The circumstances suggesting a breakdown of their relationship, in 2009, appear in two emails, one sent on 13 August 2009 by the Plaintiff to the deceased, and the second, being his response, sent on 16 August 2009. The email sent by the Plaintiff is in the following terms (with editorial corrections):

“Dad,

Where do I start, it’s been a while now since we had any contact, and it has played on my mind WHY a lot…Considering, all I have done dad is try to really have a connection with you, and I thought we had…

Dad, I spent the first 23 years of my life craving to have a father figure in my life, when I got it, I thought it was all I ever wanted and more, I thought I was going to have a dad finally, and he was my own flesh and blood, and he created me!!!!!!! And things were great for a long time, until this face book thing, how hideous!!!!!! How old is Mary?????? You wanted my mother to apologise, for WHAT???? for those girls snooping on my page, tell them to piss off and get a life, seriously dad, what goes on my page is my business, and not theirs….my mum can say what she likes about Mary, after all she was a bitch to mum all those years ago, so let is go…. much had happened in my life since meeting you dad, I have 2 beautiful children, I have been married to a wonderful man, I have lost my god son, which was the darkest days in my life, and is still very very tough, and Dad, where were you when I needed you….oh, you decide to drop me from your life a couple of months after that. Thanx!!!!

You know after losing Jyah, it made me put my life back into order of whats most important to me and how the little things don’t matter…And my family matters, if you don’t have your family YOU HAVE NOTHING!!!!!!!!!!!!!!!!!

I am soooo angered by this dad, and you know Mary seems to be at the core of every one of your family breakdowns, sad, but true, I will tell you something, I have zero respect for that lady, as she has never made any time for me or Rob or my children, I think she has met my children once or twice, dad I am writing this letter just to let you know how very much you have hurt all your children, and for what ?????? (Mary)???? Hope you’re happy dad, i truly do, cause it has caused a lot of pain here….

I did receive the bag Ollie and you sent me, I am assuming it was for my birthday, thanks it’s beautiful, but no card, letter, nothing, Just fill in the gaps for me, what did I do wrong???? Dad I am so disappointed to think this could be the end of our relationship, but I can’t see any future there for us, can you??

I don’t want you hurting my children as you have done me, I will not expose them to that, they do talk of you often, and miss you too.

I have spoken to Ollie quite a bit, she has really been good support for me, she is a lovely lady, thank her for me. I am going to leave it there, as I feel I have said enough for now.”

90. (The Plaintiff did not give evidence of when the person named Jyah, the Plaintiff’s godson, died. Had she done so, one might have been better able to determine the length of the period when they did not have contact before the August emails.)

91. The email sent by the deceased to her is in the following terms (with amendments):

“Ange’

Well this is quite different to what I had expected. I thought who knew right from wrong and I still think you do. When I was talking to you last, all I said to you was that it was wrong to voice opinion in the place where it was. Now you may have opinion but sometimes that opinion is better shared with those who need to know only. Where was I when your grief was being shared with your best friend? You ask your Mother. I talked to her about how concerned I was about you and the Girls and how I believed it was having a dire effect upon all of you. I tried to talk to you, I don’t know if you remember; and how concerned I was for you at that time about the need for you and your family to be with each other for a time as I believe it was having a terrible effect on the girls and you. I did not want to interrupt you at that time as you were grieving and would have been seen as interfering and it was in appropriate. Whether you think people are hideous of whatever, you have that right to that opinion, how you share that opinion is a matter of discretion whether it be right or wrong. I am of the opinion that you must listen to all conversation and draw your own conclusions, you have made yours based upon what you have experienced and believe. You have that right as I have the right to reserve or share mine also. You are right on one thing though Ange’ Family is important. Keep yours together you have a most beautiful family with Rob, Chloe & Jess’ cherish them as if there is no tomorrow. I have had a bit of a fright with my health and am trying to do some proactive things about it. Don’t forget me Honey I will be trying. Love you immensely.

Dad XO.”

92. The content and tone of these emails speak volumes. They demonstrate an exchange, not between strangers, or mere casual acquaintances, but between an adult child and a parent, expressing differing points of view. However, it is evident that it was the Plaintiff who harboured a significant degree of anger towards the deceased. It was she who raised whether it was “the end of our relationship”, and whether there was any ability to “see any future there for us”. What comes through, very clearly, from the Plaintiff is a strongly felt sense of grievance at the way the deceased had, for whatever reason, treated her, and the sense that his conduct, at least in part, was caused by the Defendant.

93. The email from the deceased suggests that he was upset about the Plaintiff offering her opinion about matters relating to his relationship with the Defendant and with another person. In this regard, the Defendant described the deceased as being “disappointed because [the Plaintiff] became quite meddlesome in our life and [was] putting forward her opinion about what her father should do”: T74.40 – T74.44 and that the deceased did not want her “opinion across how we should continue our life and how he should continue his relationship... [We] didn’t need any outside influence or outside opinion”: T75.01 – T75.06. Yet, the Defendant stated that she was not asserting that the deceased did not want to see the Plaintiff, but simply that he did not want her to meddle in his personal relationships: T75.26 – T75.30.

94. There was no evidence about the Plaintiff having contacted the deceased, following receipt of his email, to ascertain the nature of “the fright with my health”, to which the deceased had referred. (This is inconsistent with the Plaintiff’s evidence that “[F]rom 2001, things went well for about 10 years. My father could come up to where we lived…and we would spend weeks together”.

95. The Plaintiff did say, in cross-examination that her contact with the deceased ended “for only about a week or two and then we connected again”: T36.35 – T36.37. I do not accept her evidence in this regard which I find to be implausible bearing in mind the tone and content of the emails sent in August 2009 and the lack of any documentary evidence supporting her assertion.

96. Having read all of the evidence, I prefer the Defendant’s evidence about the nature of the contact during the period between 2001 and 2009. I accept that there were about 9 occasions, during these years, that the Plaintiff and the deceased met face to face. This is not to suggest that they did not communicate otherwise, but the dispute to which reference has been made relates principally to the amount of face to face contact about which evidence had been given.

97. The Defendant gave evidence that in February 2009, the deceased paid for the Plaintiff and her husband to attend her daughter’s wedding. They stayed with the deceased and the Defendant at the Defendant’s home in Springfield. She says that this was the last occasion when the Plaintiff and the deceased saw each other face to face. I accept that evidence. (This evidence suggests that the period when they did not have contact may have been no more than 6 months).

98. The Plaintiff did give some evidence of the further contact that she had with the deceased after her email of 13 August 2009. However, she does not suggest any contact in 2010, but says that in approximately 2011, she moved overseas, to Dubai, where she and her family lived for 3 years. She stated that, whilst living there, she telephoned the deceased “a few times”, and that they spoke. She also wrote that there were “numerous texts to, and from, my father but I have changed my phone and my phone numbers after leaving Dubai”.

99. The Plaintiff accepted that there was no evidence to corroborate her written statements that she and the deceased remained in contact after 16 August 2009. Important, in my view, is the fact that her husband, Robert, did not give any corroborative evidence (or evidence, at all), for example, that he had observed the Plaintiff telephoning the deceased, or that he had spoken to the deceased when she had contacted him. Nor had he given any evidence about the contact, face to face, and otherwise, in the period 2001 and 2009.

100. There was no explanation for him not being a witness in the proceedings.

101. Furthermore, there is no evidence of any subpoena to produce documents having been served upon any telephone service provider relating to the Plaintiff’s telephone number(s) before the changes to which she refers, or the deceased’s telephone number in the period between August 2009 and 2016, which could reveal details of her telephone calls to the deceased in those years.

102. In Andrew v Blair [2007] NSWSC 1003, Young CJ in Eq wrote, at [5]:

“…in cases where a person is seeking an order under this Act it is customary to put into evidence, as much as one can, the material from which the court can see that there has been a strong bond between the deceased and the child. Where a person has a solicitor acting for him, and he does not do so, the court is at liberty to be suspicious. When the court also sees that it was admitted in cross-examination that there were periods where there was no contact because the plaintiff did not know where his father was, because he had moved, and where one sees in the affidavit of the plaintiff that the deceased said that he could not afford phone calls, one is entitled to discount the material that the plaintiff puts forward as to the extent of the contact.”

103. The Defendant gave evidence that it was her understanding that the deceased had no contact with the Plaintiff from (August) 2009 until the week before his death when there was some contact between the Plaintiff and the Defendant concerning the deceased. This seems to me to be more likely than the Plaintiff’s evidence on this topic bearing in mind all of the evidence I have read on this topic.

104. In any event, the Plaintiff accepted that she did not contact the deceased for the last two or three years of his life, despite knowing where he was living and with knowledge of his telephone number: T38.

105. It was the Defendant who contacted the Plaintiff, on 20 April 2017, to advise her that the deceased was unwell. The Plaintiff responded, by text message two days later. In that text, despite her earlier criticism of the Defendant, she wrote thanking her for being “so understanding”.

106. One text message (in the series of text messages, all of which do not require repetition), sent by the Defendant, on 27 April 2016, to the Plaintiff, states:

“He was so looking forward to see you again. We only talked about it last night.”

107. The evidence of the text messages was given by the Defendant. The fact that she included this evidence, some of which did not assist her case, provides another basis for me to prefer her evidence where it conflicts with that of the Plaintiff.

108. The Plaintiff stated that “we grew so very close and our bond was strong [for] a period of 12 years” and that “it was only the few years previous to his death that we grew apart as Mary would not allow us to have a relationship”. I do not accept the period of time that she says the bond was strong, or that it was the Defendant who caused the breakdown of the Plaintiff’s relationship with the deceased.

109. Yet, overall, the evidence makes clear that this is not a case of mere paternity. It is a case where there was no relationship between a child and a parent for the first 24 years of the child’s life; then, their relationship began and there was contact between them for about 9 years; and then there was a period, of about 7 years, when they did not have much communication, one with the other. However, I am satisfied that throughout the whole of the period between 2001 and the date of his death, the deceased retained a wish to maintain his parental relationship, with the Plaintiff.

110. It was acknowledged by counsel for the Plaintiff that “there was fragility [in the relationship] present and this became evident when put under first sign of strain”. She also stated that “there was not an established relationship to fall back on” and that “[F]ather and daughter were in essence in 2001, two strangers that shared strikingly similar physical features coming together in an attempt to establish a parent/child relationship. The foundation was simply not present to weather conflict and it is perhaps understandable that it did not.” With respect, I agree.

The relationship of the Defendant and the deceased

111. There is no suggestion that the relationship of the deceased and the Defendant was other than a close and loving one. (There is evidence of the deceased having had an affair, but he and the Defendant subsequently attended marriage counselling. The Defendant stated that she “observed that our relationship grew stronger” following counselling.) In any event, as was accepted, they had been together for about 25 years and were married at the date of the deceased’s death.

112. The evidence reveals at the time of his marriage to the Defendant, the deceased had no property of substantial value. He had a motorcycle but not much else. He had recently resolved a property settlement with Debbie Rathborne, the mother of three of his children.

113. When they commenced co-habitation, the deceased moved into the Defendant's home in Springfield, New South Wales. She had purchased this property in 1975, using an amount ($28,500) received as a result of a car accident she suffered in 1973. At the time of their cohabitation, this property was unencumbered. It was sold by the Defendant in 2011 for $335,000 and the whole of the net proceeds of sale was used to reduce the mortgage that had been taken out on the Jilliby property.

114. The deceased and the Defendant purchased an investment property at Lennox Head in 2004 for $407,000. The Lennox Head property was rented by the Defendant’s daughter, Renee and two of her friends. However, the Defendant contributed $1,000 per fortnight, for a period of 4 years, to assist with mortgage repayments. This property, also, was sold in 2011, for $435,000, which was enough to discharge the mortgage registered on it, and to cover the costs and expenses of sale.

115. The deceased and the Defendant purchased the Jilliby property in 2009 for $887,000. The purchase price was raised by a mortgage secured over the Defendant’s Springfield property and one secured on the Jilliby property.

116. The deceased worked full time as an electrical engineer and the Defendant worked full time as a registered nurse.

117. In November 2015, the Defendant received an inheritance from a friend. It is not entirely clear whether it was a lump sum of $80,000, which she stated in her affidavit, or $90,000: T64.8 – T64.12. Whichever amount it was, she transferred these funds into the deceased's Westpac account to reimburse him the costs of his Holden car, household expenses, and for furniture for the Jilliby property. In September 2015, the Defendant used $36,000 of the inheritance to purchase the Holden Storm Ute.

118. There can be little doubt that the Defendant made a very significant financial contribution to the acquisition, conservation and improvement of the property that was jointly owned by them, both before and after, the deceased’s death. As his wife for 20 years, she also made a significant contribution to the welfare of the deceased.

The financial resources (including earning capacity) and financial needs, both present and future, of the Plaintiff and her husband

119. The Plaintiff gave evidence about these matters in her affidavit made on 19 May 2017.

120. Despite the Court, on 2 November 2017, having directed that each party serve upon the other an updating affidavit, neither of the parties did so until a day or two prior to the hearing. However, as neither counsel made any objection to the service of updating affidavits so late in the proceedings, I have read each of her affidavits.

121. In addition, the Plaintiff was cross-examined on not having produced any of her, or any of her husband’s, income tax returns, which after some prevarication, she admitted she had not done: T18.33 – T19.11.

122. The Plaintiff, who is aged 40 years, is married to Robert and they have two children each of whom is still a minor. She is said to be in good health.

123. Although the Plaintiff said that she and her husband own a battery business called Northcoast Battery and Trailers, in fact her husband conducts that business as a sole trader: T19.21 – T19.24.

124. She asserted that they now earn, as wages, about $3,500 per month (decreased from $6,000 per month), which is about $875 per week. The Plaintiff hoped that if the business improved, the income received would also increase: T28.35 – T28.37.

125. She also stated that the rent for the premises from which the business is conducted has increased from $880 per month to $2,148 per month. It is from the income of the business that the rent is paid.

126. The Plaintiff set out the family’s weekly expenses, which are said to total about $1,787. Those expenses include mortgage repayments ($600), car loan repayments ($185) and tax ($163), as well as home, and family, expenses. The Plaintiff does not disclose how the difference ($937) between their weekly income ($875) and their weekly expenditure ($1,787), is met.

127. In addition, she says that she is paying off a tax liability ($5,914) at about $270 per month, and that her husband is paying off a tax liability ($8,247) at about $438 per month. (These two expenses do not appear to form part of their weekly expenses of $1,787.)

128. The Plaintiff produced a document headed Profit and Loss Statement which was said to be covering the period July 2016 to June 2017. In fact, it comprised four pages and covered, so it would seem, the years ending June 2016 and June 2015 (Ex. 3) which related to the business. These documents were said to be “a computer generated MYOB document” which she had produced: T20.00 – T20.22. There was no explanation proffered for not producing any document that revealed the profit and loss for the period after June 2017.

129. She agreed that in each of the financial years, the income of the business had increased: T26.13 – T26.15, although as a result of having been evicted from the premises from which the business was being conducted, whether that would continue was uncertain.

130. The Plaintiff has superannuation of $24,111 with REST Superannuation and Australian Pharmaceutical Guild. Her superannuation has increased by about $4,000 since her first affidavit.

131. Her husband has superannuation of $162,000. His superannuation appears to have increased by about $12,000 since her first affidavit.

132. The Plaintiff has disclosed:

Joint Assets:

House purchased 8 May 2017   $555,000

Boat               $ 4,000

Bank Account             $ 980

House contents estimate       $ 20,000

Motor Vehicle - Toyota Corolla    $ 10,000

North Coast Batteries business    $ 35,000

Prado business 2006 motor vehicle    $ 11,000

$635,980

Joint Liabilities

Loan from father-in-law      $ 58,000

Mortgage            $420,000

Car loan Corolla          $ 15,000

1. The burden of the provision to be made for the Plaintiff and of any costs ordered to be paid, as well as the property of the Defendant to be designated as notional estate, should be the subject of agreement between the parties, or if no agreement can be reached, will be the subject of further submissions.

284. I would commend to the parties that, if possible, agreement should be reached on the matters remaining outstanding so that the further costs may be curtailed. Any orders should include one that provides for the exhibits and subpoenaed material to be returned; with any exhibits returned to be retained intact by the party, or person who produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.

285. I shall hear the parties as to the final form of the substantive orders to be made, including costs. In the meantime, the Court:

1. Orders that the matter be adjourned to a date mutually convenient to the Court and the parties, to enable the parties to agree upon the final form of the proposed orders, including any orders as to costs.

2. Direct the parties to bring in Short Minutes of Order to reflect the reasons and the proposed orders.

3. Orders that if agreement is reached, Short Minutes of Order may be forwarded to the Court, for consideration, in Chambers, so that the orders proposed may be made, and entered, and the adjourned date be vacated.

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Decision last updated: 14 March 2018