Stone v Stone

[2019] NSWSC 233

Supreme Court

New South Wales

Medium Neutral Citation:	Gail Patricia Stone v Michael John Stone [2019] NSWSC 233
Hearing dates:	11, 12, 13 February 2019
Decision date:	08 March 2019
Jurisdiction:	Equity - Family Provision List
Before:	Hammerschlag J
Decision:	Summons dismissed
Catchwords:	SUCCESSION – FAMILY PROVISION – Succession Act 2006 (NSW) ss 59(1), 59(2) and 60 – necessity for applicant to make full and frank disclosure of her financial and material circumstances – where applicant deliberately fails to make that disclosure – application to reopen to adduce evidence deliberately not led earlier – application to reopen refused – HELD: proceedings dismissed.
Legislation Cited:	Civil Procedure Act 2005 (NSW) Conveyancing Act 1919 (NSW) Evidence Act 1995 (NSW) Family Provision Act 1982 (NSW) Succession Act 2006 (NSW)
Cases Cited:	Blair v Curran (1939) 62 CLR 464 Cringle v Cringle [2018] NSWSC 1558 DJ Singh v DH Singh and Others [2018] NSWCA 30 Hughes v National Trustees (1979) 143 CLR 134 Srekovic v Srekovic [2018] NSWSC 1597 Stone v Stone [2001] NSWSC 138 Stone v Stone [2014] NSWSC 1655 Tomlinson v Ramsey Food Processing (2015) 256 CLR 507 White v Overland [2001] FCA 1333
Category:	Principal judgment
Parties:	Gail Patricia Stone - Plaintiff Michael John Stone - Defendant
Representation:	Counsel: G. Waugh SC - Plaintiff J.E. Brown - Defendant   Solicitors: Byrnes Lawyers - Plaintiff
File Number(s):	2017/272489

Judgment

Introduction

1. HIS HONOUR: This is a fight between siblings about whether a family provision order under Chapter 3 of the Succession Act 2006 (NSW) (the Act) should be made in relation to the estate of their late mother. It comes some 20 years after a fight they had about the estate of their late father.

2. References below to sections are, unless the context indicates to the contrary, references to the Act.

3. The parties’ father, Kevin John Stone, died on 7 August 1999, aged 70 years.

4. He married their mother, Patricia Floramelle Stone (the deceased), on 5 November 1955. She was born on 1 May 1929 and died on 13 September 2016, aged 87 years.

5. The plaintiff (Gail), their daughter, was born on 14 February 1957. She is now 62.

6. The defendant (Michael), their son, was born on 30 June 1958. He is now 60.

7. Gail seeks a family provision order under s 59 in relation to the estate of the deceased, claiming that the will of the deceased did not make adequate provision for her advancement.

8. Gail’s claim must be dismissed because she failed to meet the repeatedly stressed requirement that an applicant for such an order must fully and frankly disclose details of her or his financial and material circumstances as they are at or about the time of the hearing. In this case, the failure was material, in breach of directions of the Court and, I find, deliberate.

The act

9. Section 59(1) provides, relevantly:

The Court may … make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that:

(a) the person in whose favour the order is to be made is an eligible person, and

…

(c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.

10. Section 59(2) provides:

The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.

11. Section 60 provides:

(1)  The Court may have regard to the matters set out in subsection (2) for the purpose of determining:

(a)  whether the person in whose favour the order is sought to be made (the applicant) is an eligible person, and

(b)  whether to make a family provision order and the nature of any such order.

(2)  The following matters may be considered by the Court:

(a)  any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,

(b)  the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate,

(c)  the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,

(d)  the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate,

(e)  if the applicant is cohabiting with another person—the financial circumstances of the other person,

(f)  any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated,

(g)  the age of the applicant when the application is being considered,

(h)  any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,

(i)  any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate,

(j)  any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,

(k)  whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so,

(l)  whether any other person is liable to support the applicant,

(m)  the character and conduct of the applicant before and after the date of the death of the deceased person,

(n)  the conduct of any other person before and after the date of the death of the deceased person,

(o)  any relevant Aboriginal or Torres Strait Islander customary law,

(p)  any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.

12. Part 3.3 of the Act contains provisions which enable the Court, in limited circumstances, to make an order designating property that is not included in the estate or has been distributed from the estate as notional estate of the deceased person for the purpose of making a family provision order. No question of notional estate arises here.

Factual BACKGROUND

Derribong St, Wattle Flat and Wilga Flat

13. In about 1957, the parties’ parents bought a block of land at 132 Derribong St, Peak Hill, located in far west NSW, on which they built their matrimonial home.

14. In about 1962, their father acquired a property at Rosser Road, Peak Hill, known as Wattle Flat, comprising approximately 88 acres with a small piggery.

15. In 1988, the parents, together with Michael, bought, as joint tenants, a rural property on the Newell Highway, Peak Hill, known as Wilga Flat. Michael paid at least half the purchase price and the parents paid “roughly” a quarter each. There was a partnership arrangement between them, under which Michael had a one-half interest and the parents each had a quarter. The partnership was dissolved in April 1999. Shortly before his death, their father took steps to sever the joint tenancy.

The first court case

16. At the time of his death, the relationship between their father on the one hand, and the deceased and Michael on the other, had broken down. Bitterness had intruded. Not long before he died, their father was diagnosed with cancer and he went to live with Gail.

17. Under his will made on 22 May 1999, he left everything to Gail. He made no provision for the deceased or for Michael.

18. His assets included the house at Derribong St, his interest in Wattle Flat and his one-quarter interest in Wilga Flat. The total value of his estate was $264,828.

19. On 21 January 2000, the deceased and Michael initiated proceedings in this Court for orders pursuant to s 7 of the since repealed Family Provision Act 1982 (NSW) (the predecessor to s 59), for the deceased’s maintenance and for Michael’s maintenance and advancement in life.

20. The case went to trial on 27 October 2000 before Master Macready. The deceased was 71 years old at the time. Judgment was handed down on 7 February 2001: Stone v Stone [2001] NSWSC 138.

21. At the commencement of the hearing before the Master, Michael dropped his claim. The transcript of the first day of the hearing is in evidence. It contains the following:

MR RUNDLE OPENED

(Mr Rundle advised the Court that the second plaintiff, Michael John Stone, was not now seeking to continue the action.)

22. It would have been fairly obvious that the deceased was bound to succeed. The deceased had been married to her husband for over 40 years. She had made a substantial contribution to their married life, notwithstanding the unfortunate later demise of their relationship. Plainly she needed provision and none had been made for her by her husband, who had left everything to Gail. But there was no settlement. The claim proceeded to judgment.

23. On 6 April 2001, Master Macready ordered that the deceased receive by way of provision out of the estate of her late husband:

1. a bequest of the former matrimonial home at 132 Derribong St, Peak Hill (then valued at $75,000),

2. all of the husband’s interest in the partnerships through which he held his interest in Wilga Flat (then worth $36,855), and

3. a legacy of $100,000.

After the first court case

24. After the first court case, Gail did not contact her mother for ten years. One of her avowed reasons was that her mother’s dementia was such that she would not have recognised Gail. Another was that she feared Michael. The deceased lived with Michael, who alone took the burden of caring for her. Michael still lives in the Derribong St house.

25. On 17 April 2002, on Gail’s application, the Protective Commissioner was appointed as financial manager for the deceased. Gail and Michael were at a hearing in the guardianship tribunal. Gail says Michael abused her.

26. Gail has been in a de facto relationship with Geoffrey Holcroft for some 18 years.

27. In her capacity as executor of her late father’s estate, Gail sold Wattle Flat to Mr Holcroft for $75,000. Mr Holcroft apparently still owns the property. It is tenanted by the husband of Gail’s cousin, Robert Draper. Apparently no rent is paid. Mr Draper, however, maintains the property.

28. In 2010, the deceased was admitted to hospital and Gail applied for a guardian to be appointed to her. A guardian was appointed on 16 November 2010. After that, the deceased was placed at Niola nursing home in Parkes, NSW, where she lived until she died.

29. In January 2010, the NSW Trustee and Guardian decided that the deceased’s interest in Wilga Flat be sold. Michael opposed the sale. The NSW Trustee and Guardian applied to Court for the appointment of trustees for sale. Michael opposed the application. On 21 November 2014, Darke J ordered that trustees for sale be appointed pursuant to s 66G of the Conveyancing Act 1919 (NSW): Stone v Stone [2014] NSWSC 1655. The Court also ordered that Michael give the trustees vacant possession of the land by 27 February 2015. Michael did not vacate the land as ordered. Apparently, there was stock on the property that belonged to his mother. The property has not been sold. Perhaps this has turned out for the best, given that under the will of the deceased the whole of the property or its proceeds goes to Michael.

30. Michael’s evidence, which I accept, was that he has bought a lot of equipment for making life easier on the farm and that he saw 21 harvests in a row during his father’s lifetime. His evidence was that, after the death of his father, Wilga Flat has continued to operate as a farming operation and that all of the general work on the property is completed by him. Occasionally he engages contractors to assist, such as shearers and roustabouts. He has been the only person who has worked on the property, except for contractors he engaged from time to time, from the death of his father until the present.

31. Gail visited her mother at Niola no more than twice in six years. She says that her mother did not recognise her. She also says, however, that she contacted the facility regularly to enquire about her wellbeing and sent her birthday, Christmas and Mother’s Day cards and gifts. Gail kept copies of all cards she sent to her mother. Her explanation for doing this was that “she is a sentimental person”.

32. I formed the view that Gail is not a credible witness. She was unconvincing, and I do not believe her evidence in a number of respects. I do not accept that she was motivated by sentimentality towards her mother in making and keeping copies of greeting cards. Nor do I accept that she had any positive sentiment towards her mother. Gail gave evidence about her early childhood and how she thought her mother favoured Michael and called her dumb, spoke to her in a demeaning and derogatory manner, and often referred to Gail as a “slut” when she was a teenager.

33. Gail’s professed sentimentality did not motivate her to visit her mother but rather induced her to send cards to her (and keep copies of them), even though she did not recognise Gail.

34. I consider it more probable that Gail made and kept copies of cards to be used in a context such as the present.

35. I also do not accept that Gail did not visit her mother in the nursing home in Parkes because of a fear for her brother. He was not living in Parkes. Further respects in which I do not accept her evidence are dealt with later.

The will

36. The deceased made a will (the will) on 26 August 2002.

37. Under the will, the deceased bequeathed to Gail jewellery, furniture and personal items, and 5 per cent of any funds on deposit in a bank or financial institution. In addition, she gave Gail the right to occupy, for life, the house at 132 Derribong Street. The will provided that if Gail did not occupy the property for any continuous period of 6 months, the right to occupy would terminate. Gail never took up this benefit.

38. Gail lived near Peak Hill until 1994 when she moved to Port Macquarie, where she still resides, with Mr Holcroft.

39. The deceased left the residue of the estate to Michael.

40. Probate was granted to Michael on 5 September 2017.

The estate

41. Gail contends that the estate comprises the following assets:

Asset	Value
1.	Entitlement to half of the net proceeds of “Wilga Flat”	$350,000
2.	Unit at 8/35 Boundary Rd, Dubbo (Registered title held in the name of Michael)	$292,500
3.	132 Derribong Street, Peak Hill	$65,000
4.	Half interest in Water Licences	$30,000
5.	Plant and equipment	$6,000
6.	Livestock	$35,000
7.	Estate account	$2,000
8.	Wool	$14,000
9.	Household furniture and personal effects	$2,000
TOTAL	$796,500

42. The values are not in dispute.

43. With one exception, what comprises the estate is also not in dispute.

44. Michael initially contended that the deceased’s half share in Wilga Flat (or the proceeds of it) is not part of the estate because as a joint tenant he acquired it by right of survivorship on the death of the deceased. He, correctly, abandoned this. The joint tenancy, which had existed between Michael and the deceased, had undoubtedly been severed by the time of her death. Gail proposed to argue that, if the joint tenancy had indeed been severed, the half share in the farm (or its proceeds) should be designated as notional estate. Michael’s concession renders it unnecessary to deal with these issues.

45. Whether the unit at 8/35 Boundary Rd, Dubbo (the unit) is Michael’s or is an asset of the estate is in dispute. Gail contends, and Michael disputes, that the unit is part of the estate.

46. Gail’s contention is founded exclusively on the following finding by Master Macready in his judgment of 7 February 2001:

31   There is a unit at Dubbo which was purchased on 30 June 2000 for $125,000. In her affidavit of 27 October 2000, the first plaintiff says that the unit was purchased in her son Michael's name with funds provided by herself. In para 4 she gives an explanation in these terms for so purchasing the unit:

"The property was purchased in my son's name as I intended him to have the benefit of the unit on my death as he was looking after me."

32   There is in evidence the files of the solicitor who acted on behalf of Michael and perhaps the first plaintiff on the purchase. In a file note made on 3 May 2000, the solicitor, Joan Richardson, had this to say:-

"On 2 May 2000 I attended Michael Stone and his mother (Patricia Stone) when it was decided that it would be best if Michael purchased the property in his name but held it in trust for his mother. Patricia Stone will be providing the whole of the purchase money and will be the real purchaser. (See page 373 of the stamp duties book.)" 

33   Normally, of course, there is a presumption of advancement from a mother to a child. (See Nelson v Nelson (1995) 184 CLR 538.) However, it would seem that given that evidence of intention to hold it in trust by the second plaintiff and, in fact, beneficially hold it for the first plaintiff, the presumption of advancement would be rebutted. Therefore, she would seem to me to have this asset.

47. Gail puts that this is a finding that beneficial ownership resided in the deceased, and that it has the consequence that that interest falls into the estate because Michael, as a party to the earlier proceedings, is bound by it and is precluded by the doctrine of issue estoppel from making a contention inconsistent with it. She puts that Michael’s contention that he is the legal and beneficial owner is inconsistent with that finding.

48. Michael was a party to the earlier proceedings, albeit that on commencement of the hearing he abandoned his claim and took no further part in the proceedings. His claim was only formally dismissed by orders made on 6 April 2001, on conclusion of the suit. Ownership of the unit was clearly in play before Master Macready, and Michael’s decision not to participate in the case was his own. His abandonment does not mean that he ceased to be a party or is not bound by the finding.

49. It is not necessary to consider whether the principles of issue estoppel would, some 20 years later and in the absence of any evidence concerning what has happened in the meantime, apply to inhibit Michael from now arguing something inconsistent with Master Macready’s finding, as opposed to Gail having to establish the present factual position. I am prepared to assume that they would. As to issue estoppel generally see: Blair v Curran (1939) 62 CLR 464; Tomlinson v Ramsey Food Processing (2015) 256 CLR 507 at 517 [22].

50. On this footing, the issue is whether Michael is making an argument inconsistent with the finding. This requires examination of the whole of the finding.

51. Master Macready accepted the deceased’s evidence that the unit was purchased by the deceased in Michael’s name as she intended him to have the benefit of it when she died. This is a trust only for her lifetime. Her clear intention was that on her death, Michael would have the unit as his own. It was registered in his name and no further conveyance to make it entirely his would be required when she died. The trust terminated on her death when her equitable interest was extinguished and Michael became the beneficial owner of the property registered in his name.

47. It follows that Michael is not putting a contention inconsistent with the finding. If anything, Gail’s contention is inconsistent with the finding.

48. The result is that the value of the estate is $504,000, not $796,500.

Gail’s claim

54. Gail puts that the will does not make adequate provision for her advancement in life. She does not contend that the provision it makes is not adequate for her maintenance (or education). She does not so contend because, as I understand it, she accepts that the evidence of her financial circumstances before the Court is insufficient to ground such a finding.

55. It was put on Gail’s behalf that she seeks a fund to “make her life better in the future and to help her deal with the vicissitudes of life going into the future.”

56. Gail has had medical problems. She had had breast cancer and she has a thyroid complaint. She has two motor vehicles, which are of an age where they need replacing. She would like to have available to her a sum of money which would enable her to meet the expenses that would arise if her cancer reoccurred, which would include costs of travelling to Sydney and of treatment. Gail proffered no evidence of what this might involve.

57. Gail would also like to travel around Australia with her partner when he retires, which presently she could not afford to do. It is not clear when he intends to retire. Gail says that if she became reliant on Centrelink payments, she would not be able to live in her current residence and would have to find a less expensive one.

The procedural Setting

Requirement for full and frank disclosure

58. The onus lies on an applicant to establish that adequate provision for her or his proper maintenance, education or advancement was not made by the will of the deceased person: Hughes v National Trustees (1979) 143 CLR 134 at 148.

59. Section 59(2) requires the Court to have regard to the facts known to the Court at the time a family provision order is made.

60. Self-evidently, it is incumbent on an applicant to disclose to the Court, as fully and as frankly as possible, all details of her or his material and financial circumstances as they are at or about the time of the hearing: DJ Singh v DH Singh and Others [2018] NSWCA 30 at [284]-[291].

61. The requirement for the Court to have regard to the facts known to it at the time of the order brings with it the clear implication that the relevant facts will be placed before the Court. Added to this, an applicant’s financial circumstances are matters specifically within her or his own knowledge.

62. If it becomes clear that there are pertinent facts which have not been placed before the Court, it cannot make the evaluative judgment which s 59(1)(c) requires it to make: Cringle v Cringle [2018] NSWSC 1558 at [35]-[36].

63. Sections 56(1), (2), (3) and (4)(a) of the Civil Procedure Act 2005 (NSW) provide:

(1)  The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2)  The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.

(3)  A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.

…

(4)  Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3):

(a)  any solicitor or barrister representing the party in the proceedings,

…

64. These sections impose an obligation on parties and legal practitioners to assist the Court by participating in its processes and complying with its directions and orders, to facilitate the just, quick and cheap resolution of the real issues in the proceedings. This requires full and frank disclosure to the Court of the material necessary for the Court to make the evaluative judgment which s 59(1)(c) of the SuccessionAct requires.

65. There is an obligation on applicants to disclose any change in facts known to them at the time of the hearing, which may have an effect on the outcome. This obligation extends to beyond the hearing, including where judgment has been reserved and some not insignificant fact is known by them to have changed before judgment is given, they are duty bound to disclose the change to the Court.

66. There is an obligation on practitioners to satisfy themselves, at the time of the hearing, especially where there has been a direction for updating affidavits, that there has been no change in the facts of which they are leading evidence, on behalf of the applicant, which may affect the outcome and, if there is such a change, to disclose it to the Court.

Practice note SC Eq 7

67. Since 1 March 2013, Practice Note SC Eq 7 has applied to all applications under Chapter 3 of the Act (family provision applications).

68. Family provision applications are managed by the Family Provisions List Judge, currently Hallen J.

69. One of the central things that the practice note aims to achieve is proper disclosure. Directions routinely made by the list judge are also directed to achieving this object. It is necessary to deal with the practice note in some detail.

70. Paragraph 6 of SC Eq 7 requires a plaintiff to file and serve with the Summons, a copy of an affidavit of the plaintiff adapted from the form in Annexure 1 to the Practice Note.

71. Annexure 1 is a pro forma affidavit of which Paras 10-13 and 22 are as follows:

the financial resources (including earning capacity) and financial needs, both present and future, of the plaintiff

10. Annexed hereto and marked “###” is a summary of my assets and liabilities (including superannuation).

11. Annexed hereto and marked “###” is a summary of assets that I hold with another person.

12. My current gross monthly income is $###. My current net monthly income is $###.

13. Annexed hereto and marked “###” is a summary of my (or my family’s) monthly expenditure.

…….

If the plaintiff is cohabiting with another person-the financial circumstances of the other person

22. Insert details

72. The affidavit envisaged by Para 6 of SC Eq 7 is intended to facilitate early disclosure to encourage settlement of the dispute and to diminish the incurring of legal costs. Plainly, it is not expected to meet the requirements for the admissibility of evidence in all respects. But Para 6 does not change the legal requirement for ultimate admissibility.

73. From a practical point of view, a plaintiff may seek to read the affidavit as the principal affidavit in chief in the proceedings. Material in it (or for that matter in any other affidavit) may be saved by Para 21 of SC Eq 7, which is dealt with below. There might also be no objection. A plaintiff needs to take care, as in any other case, that the evidence intended to be relied on at trial is admissible.

74. Those parts of the pro forma, set out above, reflect the matters which the Court may take into account under ss 60(2)(d) and (e).

75. Paragraph 8 of SC Eq 7 provides, relevantly, that at the first directions hearing, the Court will give directions for the purpose of making information available at the earliest practicable date so that all parties may make realistic assessments of their respective cases. The Court will also give directions to encourage the early resolution of the proceedings, including by referring the matter to mediation at a suitable time.

76. Paragraph 9 provides, relevantly, that at the first directions hearing, the Court may make directions, including in relation to the service by the executor of an affidavit which is to include information which is specified in the paragraph, and various other affidavits, including one of service on interested persons and one in reply to the plaintiff’s affidavit in chief.

77. Paragraph 16 envisages a directions hearing shortly after mediation.

78. Paragraph 17 provides that, if the matter has not settled, a timetable will be made for the preparation of the matter for final hearing, which timetable is to include provision for filing and service of any updating affidavit of any party or beneficiary.

79. Recently, Hallen J had occasion to remark (see: Srekovic v Srekovic [2018] NSWSC 1597 at 228):

I have stressed, on numerous occasions, the need of an applicant for provision to disclose her or his financial circumstances at or about the time of the hearing. Indeed, Paragraph 17 of Practice Note SC Eq. 7 requires updating affidavits to be filed and served, and, invariably, when a matter is set down for hearing, a direction is made for such affidavits to be served a few days prior to the final directions hearing. Regrettably, more often than not, as in this case, the direction is not complied with. [1]

1. Parentheses have been omitted.

80. Paragraph 18 envisages the matter being set down for hearing, either at the directions hearing after the mediation or at a subsequent directions hearing. When the matter is set down, directions are given for the filing and service of a list of the affidavits of the respective parties, an agreed chronology, a joint statement of assets and liabilities and a short outline of submissions.

81. Paragraph 21 provides:

Unless the court orders otherwise, or reasonable notice is given that strict proof is necessary, parties may give evidence as follows:

(a) A kerbside appraisal by a real estate agent of any real property.

(b) An estimate of the value, or a monetary amount, for the non-monetary assets of the estate other than real estate.

(c) Internet, or other media, advertisements of the asking price of real estate.

(d) The plaintiff’s, or beneficiary’s best estimate of costs or expenses of items the plaintiff or the beneficiary wishes to acquire.

(e) The plaintiff’s, or the beneficiary’s, best estimate of costs or expenses of any renovation or refurbishment of property the plaintiff or the beneficiary wishes to incur;

(f) A description by the plaintiff, or by the beneficiary, of any physical, intellectual, or mental, disability, from which it is alleged the plaintiff, or the beneficiary, or any dependant of the plaintiff or beneficiary, is suffering, together with a copy of any medical, or other, report, in support of the condition alleged.

82. Whatever may be the legal underpinning of Para 21 – a matter which it is now not necessary to consider – the paragraph is of limited application. It permits departure from the requirements of strict proof in carefully and precisely articulated ways. It does not excuse departure in other ways. To the contrary, the implication is that departure in other ways is not envisaged.

Procedural history pre-trial

83. It is necessary to set out the procedural history of this matter.

84. Gail commenced these proceedings by Summons sued out of the Court on 7 September 2017. The Summons was first returnable on 13 October 2017.

85. It does not appear that the Summons was accompanied by the affidavit required by Para 6 of SC Eq 7. Gail made and filed an affidavit on 12 October 2017, being the day before the first directions hearing. That affidavit was sought to be read in the proceedings as Gail’s principal affidavit in chief. It does not follow the format of Annexure 1.

86. The 12 October 2017 affidavit provided scant information about her personal financial circumstances. In it, Gail stated that she then worked as a debtor’s clerk for a firm in the Port Macquarie area (without specifying her salary). She stated that she was in a de facto relationship, but that her and her de facto had separate finances and she did not know the specifics of his financial position. She did not provide her de facto’s name and she did not reveal whether she had asked him about his financial position. She stated that her de facto worked on a part time basis three days a week. She stated that she had savings of approximately $102,000, owned two motor vehicles worth approximately $4,500 and items of furniture of minimal value. She stated she had no liabilities, and superannuation of approximately $96,000. She provided no information about her expenses. The paucity of the material disclosed would hardly have provided any impetus for settlement.

87. The matter came before Ward CJ in Eq on 13 October 2017. Michael did not appear. Her Honour directed Michael to file the affidavits required by Para 9 of SC Eq 7 by 17 November 2017. Her Honour stood the matter over to 17 November 2017.

88. The matter came before Hallen J on 17 November 2017. Michael did not appear. His Honour stood the matter over to 1 December 2017. On that occasion, Gail was represented by senior counsel and Michael appeared personally. Directions were made for the service of the affidavits referred to in Para 9 of SC Eq 7 by 25 January 2018. His Honour stood the matter over to 9 February 2018.

89. On 9 February 2018, the matter came before his Honour who referred it to Court-annexed mediation to take place on 16 March 2018. The matter did not settle.

90. On 23 March 2018, the matter came before his Honour who directed the parties to serve all further affidavits in chief and affidavits in reply to affidavits served before 23 March 2018 by 4 May 2018. He stood the matter over to 11 May 2018.

91. On 4 May 2018, Gail deposed to and filed a further affidavit. She stated that her financial circumstances had changed since she deposed to her last affidavit. She was no longer employed, having ceased employment on 8 January 2018, at which time she was earning $860 “net”. She received employment termination entitlements of $5,715. She stated that she was actively searching for new employment, and had applied for some jobs but had not been successful. She gave no details of these efforts, however. She stated that given her age and the nature of the employment market at Port Macquarie she believed it would be very difficult for her to find another job. She did not suggest that her health was a hurdle to finding a job. Nor did she suggest that she left her job for health reasons. According to her, she was actively seeking another one.

92. Gail also stated that she continued to live in a de facto relationship with her partner, and that they had separate bank accounts. Again, she did not reveal his name. She gave evidence that she had $90,000 invested with the National Australia Bank and received interest on that sum. She stated that she had a savings account with the Greater Bank, and that the balance in that account was $5,779.56. She stated that her arrangements with her partner were that she paid their weekly rent of $410, and he paid for food, electricity and telephone. She paid for her own clothing, medical and associated expenses, personal items, and one half of any shared entertainment costs. She provided an estimate of her current weekly expenses of $732.50. She provided no information about the rental property where they live. Her evidence was that for safety reasons she did not want Michael to know where she lived.

93. With respect to her de facto, her affidavit stated:

29   My partner is currently employed with Easy Clean [sic] Chemicals as a sales representative.

30   He receives a net income of $750 per week.

31   He is the registered proprietor of the property known as Rosses [sic] Road, Peak Hill valued at $75,000. He does not receive any rent in respect of that property – it being maintained by a tenant in lieu of rent.

32   He owns a Toyota Yaris motor vehicle worth approximately $20,000.

33   He has savings in the Diocesan Investment Fund of $7,500 and in Newcastle Permanent of $3,800.

34   He owns Commonwealth Bank Shares worth approximately $163,000.

35   He has superannuation entitlements of approximately $75,000.

94. Presumably, her de facto was the source of this information.

95. The affidavit does not include the number of Commonwealth Bank shares he owns, the name of the tenant of Wattle Flat, or any supporting documentation. A number of the figures are approximations only.

96. Gail obviously understood that the availability to her of benefits from or resources provided by her long term de facto is a matter which might be taken account of in considering her claim.

97. Gail gave evidence that on 20 March 2017 she was diagnosed with breast cancer and underwent an operation and radiation treatment, and that she suffers from a thyroid complaint for which she receives specialist medical treatment. No doctor’s certificate was provided in respect of either health complaint. I interpolate that Para 21(f) of SC Eq 7 allows informal proof, by way of a doctor’s certificate, of any disability.

98. Gail also said she was not entitled to receive any Centrelink payments because of her partner’s income.

99. On 23 January 2018, Michael deposed to an affidavit which was filed on 29 January 2018. Clearly, he prepared it himself.

100. On 11 May 2018, Hallen J extended the time for Michael to serve any affidavits to 25 May 2018 and stood the matter over to 15 June 2018. On 15 June 2018, Michael deposed to and filed two affidavits, one purporting to be pursuant to Para 9 of SC Eq 7.

101. On 15 June 2018, His Honour directed Gail to serve any evidence in reply by 6 July 2018 and stood the matter over to 13 July 2018. On 13 July 2018, his Honour further extended the date for reply evidence to 3 August 2018 and stood the matter over to 17 August 2018. His Honour noted that if that direction was not complied with, Gail would require the leave of the Court to rely on any further evidence other than updating affidavits. His Honour stood the matter over to 17 August 2018.

102. On 15 August 2018, Gail deposed to and filed an affidavit as to the value of a property known as “the Angle” which is owned by Michael.

103. On 17 August 2018, his Honour stood the matter over to 7 September 2018 for the purpose of obtaining a hearing date with an estimated duration of two days.

104. On 31 August 2018, Gail deposed to and filed an affidavit as to the value of the unit in Dubbo.

105. On 7 September 2018, his Honour listed the matter for hearing to commence on 11 February 2019, with an estimated duration of two days, and appointed Wednesday 12 December 2018 as the date for a pre-trial directions hearing. His Honour gave the following direction and made the following notation:

THE COURT:

…

5.   Directs that each party serve upon the other the updating affidavits required by Practice Note SC Eq 7, Paragraph 17, respectively, by 4:00 p.m. on Thursday, 6 December 2018, and either deliver, to the Chambers of the Family List Judge, the original of any affidavit served, or file those affidavits by electronic means, by the same date and time.

6.   Notes that the legal representative of each of the parties has been informed that in the event that the last direction is not complied with, the hearing date may be vacated at the cost of the legal representative(s) in default.

106. The notation underlines the importance of updating affidavits.

107. On 6 December 2018, Gail deposed to and filed an “updating affidavit” with respect to her financial situation. She stated that she had been unable to obtain employment and did not qualify for Centrelink benefits due to the income her de facto earned. She stated that she had $65,000 invested with Greater Bank and a savings account with that institution with approximately $6,000 in it. She gave evidence of her medical condition and medications she was taking, and provided information about legal costs incurred and to be incurred. No medical certificate was included. The affidavit provided no update (or indeed any information) about her de facto’s financial situation. She did not reveal Mr Holcroft’s name.

108. At a pre-trial directions hearing on 12 December 2018, Hallen J directed, relevantly, that there be an index of affidavits provided by 1 February 2019. His Honour noted that counsel for Michael was acting pro bono and that in the event he determined not to do so he inform Gail’s counsel as soon as practicable.

106. Unsurprisingly, having regard to the state of Gail’s affidavits and the impending hearing, on 10 January 2019, Michael (obviously with legal help) served on Gail’s solicitors a notice to produce by 28 January 2019 a number of categories of documents. These included documents which disclosed Gail’s address and revealed the name of her partner. They also included bank documents, income tax returns and assessments, and other records which would establish or reveal her de facto’s financial circumstances. Timeous compliance with this notice would have at least given Michael the opportunity to subpoena any further material or serve a further notice to produce in time for the trial. It may have gone some way to assuaging Gail’s failure to make full and frank disclosure, albeit that in the absence of an affidavit from Mr Holcroft himself there would have been no witness who had direct knowledge who could be cross-examined.

107. Michael deposed to a further affidavit on 21 January 2019, which was filed on 24 January 2019.

108. Gail’s solicitors responded to the notice to produce of 10 January 2019, by letter dated 31 January 2019. The letter stated that Gail’s de facto’s name is Geoffrey Holcroft. Some information was produced in relation to Gail’s position but none in connection with Mr Holcroft, except for his name. The letter stated:

Mr Holcroft has refused to provide the requested documentation.

The trial

112. Against this procedural history, the plain requirements of SC Eq 7 and the directions made by the Court, the hearing commenced on 11 February 2019. Mr G Waugh SC appeared for Gail. Mr J Brown of counsel appeared for Michael.

113. At that point, the disclosure provided by Gail to Michael about the financial circumstances of Mr Holcroft, with whom she was cohabiting, was limited to what was contained in her affidavits and what was communicated in her solicitor’s letter dated 31 January 2019, namely, Mr Holcroft’s name and the fact of his refusal to provide any documentation.

114. No updating affidavit, as required by Hallen J’s direction on 7 September 2018 for updating affidavits to be served by 6 December 2018, was served in relation to Mr Holcroft’s circumstances. No documents in relation to him were disclosed.

115. At the hearing, Gail’s affidavits were sought to be read. No documents in relation to Mr Holcroft were tendered. Nothing was said about any documents concerning Mr Holcroft being available. Gail gave evidence, under cross‑examination, that she does not “have anything to do with his account, bank account or anything like that” and that she has “got no idea what he has.”

116. Counsel for Michael, as one would expect, especially given the inadequate disclosure by Gail of her de facto’s situation, coupled with Mr Holcroft’s communicated refusal to provide pertinent documentary evidence, objected to the admission into evidence of the plainly hearsay material concerning Mr Holcroft in paras 29 to 35 of Gail’s 4 May 2018 affidavit.

117. Paragraphs 29 to 35 of Gail’s 4 May 2018 affidavit manifestly do not come within, and are not saved by, Para 21 of SC Eq 7.

118. I rejected those paragraphs.

119. Leaving aside the hearsay objection, I would have in any event not admitted that evidence because its probative value was substantially outweighed by the danger that it might be unfairly prejudicial to Michael, as contemplated by s 135(a) of the Evidence Act 1995 (NSW).

120. Gail was cross-examined. At about 3 pm on the first day, the notice to produce dated 10 January 2019 and the solicitor’s letter dated 31 January 2019 were tendered by counsel for Michael and admitted into evidence without objection. It was put to her that she understood that she had to be full and frank in her disclosure to the Court about her assets. She agreed.

121. There was no disclosure from Gail or those representing her that Mr Holcroft’s attitude had changed with respect to his provision of information pertaining to his circumstances. I must assume that counsel for Gail did not know of any such change.

122. Gail then gave evidence, under cross-examination, that her solicitor, Mr Byrnes, had spoken to Mr Holcroft and asked him to disclose what he had, and explained to him that he would have to make such disclosure. Evidence as to when exchange occurred was not elicited from her. She also gave evidence that Mr Holcroft had not been asked to give an affidavit.

123. Counsel for Michael put to her that there was no reason why Mr Holcroft could not come to court to support her. The following exchanges then occurred: [2]

     2. T 77 line 50 to T 78 line 31.

Q. There's no reason Jeff [sic] couldn't come to Court to support you?

A. He's actually at home with his elderly parents, his father's been diagnosed with Alzheimer's and he's quite aggressive and he can't leave him with his mother because he's very aggressive to his mother.

Q. There's no reason why he couldn't have sworn an affidavit in these proceedings?

A. He wasn't asked to do one.

…

Q. You agree that he's refused to provide any documents setting out what his financial circumstances are?

A. He has given me some to bring down here today.

Q. Does your solicitor know about that?

A. Yes.

Q. Does your solicitor have those documents?

A. They're behind - they're in a file.

Q. I just asked does your solicitor have the documents?

A. No I still have them in my bag.

124. Until Gail made the unexpected disclosure to the contrary, counsel for Michael was patently of the understanding that Mr Holcroft was maintaining his refusal to produce the documents.

125. At the end of the first day of the hearing, I raised with counsel my concerns about the state of the evidence concerning Mr Holcroft.

126. On the second day, cross-examination of Gail was completed and she was re‑examined. Michael then gave evidence and was cross-examined. He impressed me as a witness.

127. Michael’s cross-examination concluded, shortly before lunch. The matter seemed to be on schedule to be finished in the allocated two days. At this point, however, counsel for Gail informed the Court that his instructing solicitor had obtained an affidavit from Mr Holcroft, and that Mr Holcroft was present in court. He accepted that counsel for Michael had probably not had time to look at it. It had been handed to him at 10 am. Nevertheless, counsel for Gail sought leave to read it and call Mr Holcroft for cross‑examination.

128. This was, in effect, an application by Gail to reopen and lead further evidence.

129. I refused that application. I said I would provide reasons in my final judgment. They follow.

130. The proffered affidavit of Mr Holcroft was sworn on 12 February 2019 and provided information about his financial circumstances with supporting documentation, none of which had previously been made available to Michael as it plainly should have been.

131. Inevitably, given the passage of time, the information in the affidavit differs from the hearsay information in Gail’s 4 May 2018 affidavit rejected by the Court. One significant factual change is that as at the date of the hearing Mr Holcroft had lost his job with Eziclean Supplies on 19 December 2018, when it went into liquidation. He is entitled to some termination benefits. It is inconceivable that Gail did not know these facts when the hearing began.

132. Gail’s evidence in her 4 May 2018 affidavit was that she was not entitled to receive any Centrelink payments because of her partner’s income. What effect the loss of his job has on Gail’s Centrelink entitlements is not known to the Court.

133. Mr Holcroft further stated that:

Until now I have been very reluctant to become involved in these proceedings. I understand that questions were raised on the first day of the hearing about my financial position and it is in those circumstances that I have sworn this Affidavit.

134. An affidavit by Gail’s solicitor, Kevin Patrick Byrnes, sworn 12 February 2018, was read in support of the application to reopen.

135. It is necessary to set out the substantive parts of it:

3   The reasons why I did not obtain an Affidavit from Mr Holcroft prior to that date are as follows.

4   I was aware that the Plaintiff needed to disclose her financial circumstances and those of her partner. I spoke to the Plaintiff about disclosing information from Mr Holcroft. She said to me words to the effect of:

“Geoff refuses to be involved in this matter. He doesn’t want to get involved. He won’t sign an Affidavit. He knows the trouble Michael causes and that’s why he won’t have anything to do with it.”

5   When drafting the Plaintiff’s Affidavit of 4 May 2018 I mistakenly believed that the provision of Mr Holcroft’s financial details by way of the Plaintiff giving such evidence would be admissible.

6   That was clearly an error on my part.

7   When I received the Notice to Produce from the Defendant I forwarded a copy of it to the Plaintiff and advised her that she needed to provide the information. She said to me words to the effect of:

“I won’t give Michael any information about my or Geoff’s address because I am scared of him and I don’t want him to know where we live. Geoff won’t give any documentation Michael is asking for because, like I said to you before, he won’t be involved in any of this.”

8   Prior to the date of the hearing I spoke to the Plaintiff and said to her words to the effect of:

“I suggest that if you can bring the documentation they want regarding Geoff with you. We don’t want the Court to think you are hiding anything. If the Judge is of the view that the documentation needs to be produced then we will be able to provide it.”

9   On the first day of the hearing on 11 February 2019 objection was taken to the Plaintiff’s Affidavit in which she deposed to Mr Holcroft’s financial situation. The Court upheld that objection. Thereafter counsel for the Defendant made submissions that in the absence of any evidence about Mr Holcroft’s financial position the Court would have to dismiss the Plaintiff’s claim. In those circumstances, it became apparent to me that it was imperative that there should be an Affidavit from Mr Holcroft.

10   I then contacted Mr Holcroft and explained to him the consequences if he refused to swear an Affidavit. He then agreed to do so.

11   Again, I sincerely apologise to the Court for the abovementioned failings. In the event a costs order is made of any adjournment of the proceedings I accept that it is appropriate that it be made against me.

136. Mr Byrnes was cross-examined. He gave evidence that he did not himself ask Mr Holcroft to provide any information, but asked Gail to request the documentation that Michael was seeking from Mr Holcroft. She indicated to Mr Byrnes that Mr Holcroft would not provide the information. According to his affidavit, Gail had said that she would not provide any information to Michael about Mr Holcroft. That an experienced practitioner in this field would leave such an important task to Gail, and that he accepted her say so of the refusal without more, raises significant doubt that he had any serious intention of getting that evidence.

137. In answer to questions that I asked him, Mr Byrnes gave evidence that he did not speak to Mr Holcroft earlier (that is before the hearing commenced) because he mistakenly thought that the information contained in Gail’s 4 May 2018 affidavit was sufficient.

138. As to an updating affidavit in accordance with Hallen J’s directions, he told me that none was provided with respect to Mr Holcroft because it “fell through the cracks.” [3]

     3. T 143 line 28.

139. Mr Byrnes gave evidence that he did not specifically recall discussing an updating affidavit from Mr Holcroft with Gail. His recollection was that Mr Holcroft’s circumstances had not changed materially in the intervening period (presumably from May to December) so that putting on further material just to confirm information previously deposed to would not have been of any utility. I did not ask him (and neither did counsel for Michael) for, and he did not reveal, the source of his knowledge about Mr Holcroft as at December 2018, so as to enable him to make a judgment that there had been no material change.

140. By the solicitor’s letter dated 31 January 2019, Michael was told that Mr Holcroft had refused to provide documentation. But, by the start of the hearing, this was no longer true. The true fact was that Gail had documentation from him in court, a fact which was not disclosed to Michael (even after the notice to produce and letter went into evidence), until Gail spoke of it under cross-examination.

141. By his own account, Mr Byrnes had told Gail to have, if she could, documentation in court because they did not want the Court to think she was hiding anything and if the Judge was of the view that the documentation needed to be produced they would be able to produce it. This sits very uneasily with the uncorrected assertion to Michael that Mr Holcroft refused to provide any information. More importantly, however, it reveals if Gail did get documents, this was intended to be hidden unless Gail was compelled by the Court to disclose it.

142. Mr Byrnes did not reveal in his affidavit whether, when the trial started, he knew that Mr Holcroft had in fact provided documents which Gail had in court. Anyway, Gail knew it.

143. Mr Byrnes also did not reveal why he came to make the request of Gail to try and get documents and bring them to court, given that he knew of her and Mr Holcroft’s refusal to provide information.

144. There is a direct conflict between Gail’s evidence that Mr Byrnes had, at an earlier point, spoken to Mr Holcroft about providing information, and Mr Byrnes’ evidence that he had not done so.

145. I do not believe Gail that Mr Byrnes asked Mr Holcroft to provide information. I accept his evidence on this point. I consider that it is highly probable that had he asked Mr Holcroft, Mr Holcroft would have cooperated. After all, Mr Byrnes appears to have encountered no difficulty in obtaining an affidavit from Mr Holcroft when he asked for it. He also gave evidence that he knows Mr Holcroft socially.

146. I do not believe that Gail made any, let alone any serious, attempt at an earlier point in time to obtain information from Mr Holcroft. To the contrary, she was reluctant to provide any information about him, even his name. Her oral evidence was that Mr Holcroft was not asked for an affidavit. This is in conflict with Mr Byrnes’ evidence that she told him that Mr Holcroft would not provide one.

147. It is hard to reconcile her evidence that she asked Mr Holcroft for information and that he had refused it, with the fact that she had information from him in her bag at court and also with his later provision of a comprehensive affidavit on short notice. It is also hard to reconcile her evidence that Mr Holcroft was unable to come to court with the fact that actually he came, and then on short notice.

148. As to Mr Byrnes, if he had seriously intended to obtain evidence from Mr Holcroft at an earlier point, I am confident that he would have succeeded.

149. Mr Byrnes’ evidence that an updating affidavit from Mr Holcroft “fell through the cracks” cannot be accepted. It is inconsistent with his own evidence that he took the view that the hearsay material in Gail’s 4 May 2018 affidavit would be admissible (whatever the efficacy of that view) and his evidence that he did not provide an updating affidavit because nothing material had changed in the intervening period. To form a view that there had been no material difference means that he must have been given updated or further information about Mr Holcroft in the intervening period, which he deliberately determined it was not necessary to disclose. He did not reveal what further information he was given.

150. That is not a case of “falling through the cracks.” A deliberate forensic decision not to put on updated evidence in relation to Mr Holcroft was taken. The decision was consistent with the ready acceptance, and maintenance in communications with Michael, that Mr Holcroft was refusing to produce.

151. By 6 December 2018 (when the directions required updating affidavits to be served), seven months had elapsed since Gail’s 4 May 2018 affidavit. Where an estate is of modest proportions, which is the case here, changes in financial circumstances may be significant even if they are not large. Without an updating affidavit, the Court is not in a position to assess the effect of the changes. The point of having updating affidavits is to apprise the Court of the latest facts. Where earlier affidavits are served months before, and there has been no change, an appropriate use of an updating affidavit is to inform the Court of this fact.

152. A failure to provide updated evidence can, and often will, have the propensity to mislead the Court, as it would have here.

153. Had Gail’s evidence concerning Mr Holcroft not been objected to and had been admitted, Michael and the Court would have had no inkling of any change in his circumstances. I raised my concern about this with counsel for Gail, but he declined to engage with it. [4]

     4. T 186 line 35 to T 187 line 4; T 187 line 47 to T 188 line 11.

154. I must assume that counsel for Gail was unaware of any change in Mr Holcroft’s circumstances when her affidavits were read.

155. Gail’s financial and material circumstances are intertwined with those of her long-term partner. They live in the same house, they share the costs of living and they provide support for one another. In practical terms, they pool their resources. Plainly, the financial circumstances of Mr Holcroft are a material consideration in the claim and I would have taken them into account (see s 60(2)(e)). I interpolate that I do not believe that Gail is or was as oblivious to his financial circumstances as she suggested.

156. Gail’s reasons for making a claim include her desire to travel around Australia on Mr Holcroft’s retirement, and the possible necessity to travel to Sydney for medical treatment. There is an absence of evidence on the level of support Mr Holcroft would give her in those circumstances. Her reasons also include a desire to replace two cars. Why she needs two cars is not apparent. She says if she became reliant on Centrelink payments she would have to move to cheaper accommodation, presumably with Mr Holcroft. His position on this possibility is unknown. Submissions were not addressed to the substance of these matters.

157. Gail’s general refusal to provide information about Mr Holcroft was deliberate and with the knowledge of the obligation on her to be full and frank.

158. The inclusion in the 4 May 2018 affidavit of exclusively hearsay material in relation to Mr Holcroft could have been cured.

159. The failure to serve any updated affidavit evidence as to Mr Holcroft’s financial position, in accordance with the 7 September 2018 direction, was a deliberate forensic decision, albeit taken on the misconceptions that the hearsay material in Gail’s 4 May 2018 affidavit would be admitted and that no affidavit was necessary because, in the view of Mr Byrnes, there had been no material change in Mr Holcroft’s circumstances.

160. In final argument, counsel for Gail put the somewhat ironic submission that Michael’s objection to the evidence concerning Mr Holcroft, coupled with his submission that Gail had not made out her case, amounted to trial by ambush. I reject this submission. If anyone was subject to ambush, it was Michael. The objection to the evidence in Gail’s 4 May 2018 affidavit was properly taken. Admissible evidence from Mr Holcroft was deliberately not led by Gail. That Mr Holcroft’s position had changed with respect to providing information was not disclosed. That Gail had received documents from him and had them at court was not revealed.

161. The gambit of declining to provide full and frank information about Mr Holcroft did not pay off because counsel for Michael objected to hearsay material and the objection was upheld.

162. Because of the default and the failure to produce documents, the case, which had been set down five months earlier, could not have continued. Counsel for Michael could not reasonably be expected to cross-examine on the run. Michael was entitled to a proper opportunity to investigate and assess the new information relating to Mr Holcroft and to utilise the processes of the Court appropriately. Having regard to this, and to the Court’s other commitments, an adjournment of some weeks, if not months, would have been necessitated. The parties had already exceeded the estimated two days. The detriment to Michael, as a private individual, of the delay in the resolution of these proceedings would not be assuaged by an order that Gail pay the costs thrown away by an adjournment.

136. The failures to make full disclosure and provide documents were in conflict with the duty to assist the Court to further the overriding purpose, under s 56 of the Civil Procedure Act, to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

137. The time, if ever there was one, when parties or practitioners could permissibly conduct civil litigation in this manner has well and truly passed: White v Overland [2001] FCA 1333 at [4].

138. Justice does not dictate that an application to reopen and lead additional evidence to cure a deficit brought about in these circumstances be acceded to. Rather, justice dictates that it be refused.

139. The consequences of Gail’s failure to make full and frank disclosure are that the Court cannot properly discharge its function to make the evaluative judgment required by s 59(1)(c) and the claim must be dismissed.

The merits otherwise

167. As is apparent from what I have earlier said, admissible evidence concerning Mr Holcroft’s situation would have been a matter which I would have taken into account in determining whether a family provision order should be made. It is unknown as to how to evidence on that matter would have ultimately fallen out.

168. Counsel for Gail put that the absence of this evidence does not preclude the Court from considering whether a family provision order should nonetheless be made because, under s 60(2)(e), the financial circumstances of the person with whom the applicant is cohabiting is a matter the Court may take into account but is not obliged to.

169. I consider that such an approach would not be principled because it invites the Court to ignore a category of evidence that it knows exists, which might well have affected the outcome and which is not before the Court as a consequence of the applicant’s default.

170. I nevertheless consider that it is appropriate to draw attention to a number of features about Gail’s claim none of which is affected by the absence of evidence relating to Mr Holcroft’s circumstances:

• the state of the evidence, including the absence of medical evidence, would not permit of any meaningful assessment of Gail’s medical condition or prognosis, or her job prospects;

• Michael has been solely responsible for Wilga Flat for a long time (s 60(2)(n)). He owned half of it and under the will is to inherit the other half. He has a solid argument that he has a legitimate expectation of having that property, whereas Gail does not. If half of the proceeds of Wilga Flat were treated as separate from the estate, the estate value drops to $154,000;

• there is no suggestion of lack of testamentary capacity on the part of the deceased. She made precise provision for Gail in the will (ss 60(2)(i) and (j));

• by the time of her death, Gail had had no meaningful contact or practical involvement with the deceased for some 15 years (s 60(2)(m));

• Michael accepted responsibility for the care of his mother (s 60(2)(n));

• as to any claim for legal costs, according to Gail, as at 6 December 2018, her legal fees were $45,655 and she estimates a further $48,600 of costs to be incurred. If costs in these amounts were to come out of the estate, the estate would be worth $409,745 if Wilga Flat is included, but only $59,745 if it is not. Presumably the estimate was based on a two day hearing. In fact the hearing took three days. I was told from the Bar table that the estimate was nonetheless accurate.

Conclusion

171. The Summons is dismissed.

172. I provisionally order the plaintiff to pay the defendant’s costs. This order may have little content given that Michael was represented pro bono. This order will solidify after seven days, unless either party notifies my associate in writing that some other order is sought and provides brief grounds for seeking it, in which event the matter can be re-listed.

173. The exhibits are to be returned.

Endnotes

Decision last updated: 08 March 2019