Ta v Ta

[2007] NSWSC 773

CITATION:	Ta v Ta [2007] NSWSC 773
HEARING DATE(S):	30/04/07; 2/07/07
JURISDICTION:	Equity Division
JUDGMENT OF:	Young CJ in Eq
EX TEMPORE JUDGMENT DATE:	2 July 2007
DECISION:	Plaintiff to receive a legacy of $700,000 and is entitled to her full costs.
CATCHWORDS:	GIFTS [7]- Gifts inter vivos- Testator and his wife presented with two paintings- Testator purports to leave paintings by his will to his children- A gift to a married couple is a gift to them jointly unless circumstances are otherwise demonstrated- Paintings are property of wife by survivorship- Not part of testator's estate. SUCCESSION [310]- Family provision application- Application by plaintiff widow- Estate value $813,000- Will grants plaintiff three-tenths of estate- Widow only person in need- Provision inadequate for plaintiff's future housing needs- Legacy of $700,000 appropriate.
LEGISLATION CITED:	Family Provision Act 1982 Married Persons (Property and Torts) Act 1901 Married Women's Property Act 1882 (UK)
CASES CITED:	Conway v Conway [1966] 4 South African Law Reports 225 Ex parte Ferguson (1915) 33 WN (NSW) 121 Hichens v Hichens [1945] P 23 McDonald v McDonald [1953] SLT (Sh Ct) 36 PS v MA [2005] FMCAfam 486 Singer v Berghouse (1994) 181 CLR 201
PARTIES:	Marie-Therese Ta (P) Francis Tan Tai Ta (D)
FILE NUMBER(S):	SC 3855/05
COUNSEL:	J Needham SC (P) A Sullivan (D)
SOLICITORS:	Geoff Osborne & Associates (P) Edrison Lawyers (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Monday 2 July 2007

3855/05 – TA v TA

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act 1982 by the widow of the late Jean-Marie Thai Buu Ta who died on 27 January 2004, aged 87.

2 The testator made his last will and testament on 9 June 2000 appointing his son, Francis, to be his executor and in due course probate of the will was granted to Francis.

3 The grant of probate was in solemn form because the plaintiff alleged initially that there was an informal will in her favour dated 11 November 2003. That claim was in due course, as I understand it, withdrawn and the plaintiff ordered to pay the costs of that application which I am told are in the vicinity of $37,000 and are still unpaid.

4 By cl 3 of the will that was admitted to probate the testator made the following gifts out of his estate:

“(a) My small Vietnamese lacquer painting I give to my son Francis Tan Tai TA; My Yamaha upright piano I give to Julie Thai Boi Hoan TA; My motor car 1979 Volvo registration number KEH 764 I give to John Thai Khai TA.
(b) I DIRECT that my trustee surrender the custody of my large Vietnamese lacquer painting to my son Guy Tri An TA to be displayed at his home as a family heirloom.
(c) I DIRECT that my real estate at 21 Truscott Place, East Killara 2071, be converted into money and distributed among the following beneficiaries according to their respective share...”

5 The proceeds of the East Killara property were then to go 3/10ths to the plaintiff and 1/10th to each of the testator's seven children.

6 The testator had seven children, five sons by his first wife who died in 1963, Émile now aged 62, Louis now aged 61, Guy now aged 59, Francis now aged 57, and Felix now aged 52, and two children by the plaintiff, John now aged 35 and Julie now aged 33. All of the children are in sound financial condition.

7 The plaintiff and the testator met in Vietnam and they were married on 13 November 1965. the marriage lasted just short of 40 years. The plaintiff was aged about 20 years younger than the testator.

8 The testator had a high position in Vietnam, serving as its ambassador to Argentina at one stage. However, he and the family were very much affected by the fall of the South Vietnamese Government and the family migrated to Australia, becoming Australian citizens in the late 1970s.

9 The testator died only owning his house at East Killara plus a few valuable objects, virtually the ones that were named in the will. The estate is said by the executor to be worth $828,000. However, this includes the two paintings referred to in the will which have a combined value of $10,000, and a piano worth $5,000. The piano at all material times has been in the custody of Julie, she was given it by the will, and everyone agrees that she should have it.

10 Excluding the paintings and the piano, the estate is worth about $813,000. I use the word "about" because the plaintiff and her son John are still in occupation of the house at East Killara and until it is sold no one will know the precise value of the estate.

11 The first thing that one has to work out in this sort of application is the value of the estate and, apart from the two paintings, this matter is quite clear, it consists of the value of the house at East Killara.

12 What then about the paintings over which both sides strongly assert title? The evidence is sparse indeed. It seems that a previous ambassador of Vietnam to Argentina gave the paintings to the testator and the plaintiff. Ms Sullivan, counsel for the defendant, says that where a man and a woman are given a gift in circumstances of the man's employment, the gift to the wife is a mere courtesy and the gift is to the husband alone. Ms Needham SC, who appears for the plaintiff, puts that the only facts are that the gift was made to both the testator and the plaintiff and it must belong to them jointly.

13 There is little case law on this problem, partly because, before the Married Women's Property Act 1882 (UK), gifts of this nature were deemed to be the husband's. Under the old rule a husband and wife were one and the husband was that one. The only cases since have been cases under the Married Persons (Property and Torts) Act 1901, the NSW equivalent of the Married Women's Property Act or in Family Law.

14 Some are decided at a relatively low level in the hierarchy of judicial decisions, such as the decision of the Prothonotary in Ex parte Ferguson (1915) 33 WN (NSW) 121 and by a Federal Magistrate in PS v MA [2005] FMCAfam 486. However, what there is tends to all point in the one direction. In Hichens v Hichens [1945] P 23 at 26, Lord Goddard giving the decision of the English Court of Appeal said that often one has to solve the problem by saying that if a present is given by a friend or relation of the wife, the property should be given to the wife and it should be given to the husband if it was a present from a friend or relation of his. The same view was taken by the Sheriff's Court in Scotland in McDonald v McDonald [1953] SLT (Sh Ct) 36.

15 There is a thorough consideration by the appellate division of the Supreme Court of South Africa in what was then known as Rhodesia in Conway v Conway [1966] 4 South African Law Reports 225, that is, that unless one can see that the facts point to a gift to one or the other, there is joint ownership because, whether it be a wedding present or Christmas present or some other present to a married couple:

"the joint ownership arises from the implied offer of the donor on the one hand and the implied acceptance by the joint donees on the other...the common ownership again results from agreement either expressed or implied" (at page 230).

16 It may be that the nature of what is given will help the court decide whether the property belongs to one or another or is joint. In the instant case the gift is one which can only be enjoyed by being hung in a house and, there being joint occupation of the house, this would tend to confirm that the gift was a joint gift. Accordingly, on the facts, the two paintings do not form part of the estate but are the property by survivorship of the plaintiff.

17 I now have to return to a consideration of the application under the Family Provision Act on the basis that the estate is worth $813,000 or thereabouts. The High Court in Singer v Berghouse (1994) 181 CLR 201 made quite clear that in these sort of matters there is a two stage approach. First, one has to consider whether, on the will, the testator has made appropriate provision for the plaintiff and, secondly, if not, what provision is appropriate?

18 I have been assisted by some written submissions by both counsel and it is clear that no one contests that the provision made by the testator for the plaintiff was inadequate. The plaintiff is the only one of the testator's dependants of need of provision. Accordingly, I can proceed to the second matter.

19 On the second matter, the written submissions of counsel for the defendant were to the effect that a gift of $440,000 would have been appropriate. Ms Needham says that the testator should have made a greater provision than that.

20 The main contest has been over what sort of accommodation the testator should have provided for his widow. The plaintiff says that she would prefer a three-bedroom unit so that she can live in one, her son in the second, and the third can be a guest room, as well as a room for her computer. She would also like a double garage.

21 The defendant says that that would be too much provision, and says that he should not have to bear the cost of giving John Ta a free house. The testator owed no special duty to John Ta over and above the duty he owed to the rest of his children and to provide the plaintiff with a three-bedroom unit would virtually be giving John Ta a right of residence and, perhaps after his mother's death, even more.

22 It is certainly true that the testator had no obligation to provide housing for John Ta, but with respect, it is not correct to equate the rights that John Ta might get from his mother, because she has him living with her and enjoying his company with the benefaction that was provided by the deceased. The plaintiff may very well consider that she receives benefit by having John living with her especially when she is getting older. At the moment John pays $100 a week. Ms Sullivan says that is quite inadequate considering the commercial market, but whether that is so or not, I do not know because I cannot take judicial notice of figures like that. It may well be that it is low, but if it is low then it is open for the plaintiff to increase it and I take that into account when I am assessing the quantum.

23 The evidence as to what units are available is not satisfactory. The case was before me on 30 April 2007. It had to be adjourned after taking a couple of hours of evidence principally because one possible person who had an interest in the estate and who should have been notified was not notified. Both counsel blame each other, but, in my view, it is the duty of the executor to make sure that all relevant persons are notified so that, if I had to decide who was at fault, it would be the defendant rather than the plaintiff. However, I suggested that, as there had to be an adjournment, on the next occasion there might be some more evidence as to the plaintiff's housing needs because what had been provided to that time, in the light of the cross-examination, appeared to be inadequate.

24 The plaintiff did file an additional affidavit, but it was of very little assistance because it said that she was just too sad in leaving her East Killara home to put her heart into looking for alternative accommodation. I can understand that, but courts cannot act on supposition merely because the plaintiff finds it too sad to get the evidence she needs in order to win her case.

25 What was revealed from the additional material was that the plaintiff would be very happy with a unit that was on the market at Gordon, relatively close to the station, at a price of $675,000 with the costs of maintenance, levies, rates, taxes and other outgoings of approximately $3,000 per year. The question of maintenance, levies, etc is of concern because if one accepts what the plaintiff says about her income, she only has about $40 a week more than her expenses (based on the list provided in her affidavit, less council and water rates she presently pays which she would not be paying in the future if she moved).

26 She has a small capital sum but it would seem that she needs to supplement that small capital sum in order to get a fund which would produce $3,000 a year. Again, this might be discounted because of John's $100 a week board which could well be increased ($100 includes food as well as accommodation) and it may well be too that John can make some capital contribution.

27 The car which the plaintiff drives is clearly property of the estate. The executor values it at $20,000. On the evidence before me that is too much and $14,000 is a more appropriate valuation. The plaintiff wants the car and I will take that into account when assessing what is a proper order with a figure of $14,000 in mind.

28 In addition to the $14,000 for the car, the plaintiff owes the estate $37,000 for costs. If, for instance, she was given a lump sum of $100,000 she would only be receiving $49,000 less the difference between the costs she is awarded and the costs which her solicitors charge her. However, that may not be enough in all to pay for the levies etc, but one would expect that if the worse comes to the worse John will have to make up the difference of the cost of keeping the home because I do not see why it would be fair to visit either the $37,000 or the $14,000 on the rest of the family.

29 The plaintiff is very sad leaving the house at East Killara, but everyone is of the view that that is inevitable. Indeed, at 68 and without dependants, it is probably too much of a burden to keep up a six bedroom house. Thus, I have to proceed on the basis that the house will be sold and, for present purposes, that there will be $813,000 released when it is sold.

30 However, there will be no money in the estate until the house is sold. That means that any order that is made will only carry interest from the time that the plaintiff vacates the property so that vacant possession can be given to the purchaser.

31 The defendant asks me to make detailed orders for giving up possession. I do not think that they are necessary. However, I will reserve liberty to apply in case there is a problem in that area.

32 The costs sought by the plaintiff are $57,577. The plaintiff was represented by a solicitor who says that she is an accredited specialist in wills and estates. Accordingly, the court expects that she would have proceeded with the utmost efficiency. The solicitor says in her affidavit that there was considerable difficulty in getting instructions from the plaintiff because of the plaintiff's depression and because of language difficulties. Accepting that that is so, there is no reason why the defendant should pay those extra costs which come about because of the way in which the plaintiff presented herself to her solicitors.

33 There was a failed mediation. Ms Needham says that with a widow's claim there should not have been a failed mediation, so that the executor was partly to blame for the matter proceeding this far. I do not accept that submission.

34 The executor gave evidence. His cultural background tells him that where a father makes provision in his will, it is the duty of the sons to make sure that their father's wishes are carried out. He cannot be responsible for not carrying out his father's wishes, but leaves it to the court to make a decision which, of course, he will accept. That, in view of the culture, is not an unreasonable situation, although it might have been if the cultural aspect were not present.

35 I do not see how I can in all conscience allow anything like the $58,000 claimed for the plaintiff's costs without details as to how it came about. The more appropriate figure would be $35,000, plus $3,000 for expenses and filing fees etc, $5,000 for the failed mediation, which would cap the costs at $43,000. This would mean that $15,000 would have to come out of the plaintiff's own purse.

36 It is now a question of working out just what sort of unit and what sort of price the plaintiff should be entitled to purchase. As to this, the evidence is not in the best state. We do know that a unit at $675,000 at Gordon would suit her, but there are other quotes, if I can use that term, for three-bedroom units not too far from the railway station in the Lindfield/Gordon area at $480,000.

37 It seems to me that somewhere between the two is the appropriate figure. Doing the best I can, I would think that a unit price of $600,000 plus $100,000 for a capital fund to pay the costs, the car, with some left over for a capital fund for emergencies and levies, would be appropriate.

38 I do think in terms of a percentage of the estate because it may be that the price which the East Killara home realises would be in excess of $813,000, however, Ms Needham says the plaintiff much preferred to have a settled figure so she would know what sort of property she could buy. In fixing that $600,000, and the $100,000, I am assuming that there will be a shortfall and I will be assuming that that shortfall will probably be made up by John because it will not be a very great shortfall.

39 John swore an affidavit in these proceedings. He was overseas when the initial hearing was held and so his affidavit was not read There was no attempt to read that affidavit today.

40 Accordingly, the court declares that:

(1) the two Vietnamese paintings referred to in the will are the property of the plaintiff by survivorship and do not form part of the estate of the testator.

(2) in lieu of the provision made for her by the will of the testator the court orders that the plaintiff receive a legacy of $700,000.

(3) that legacy is not to bear interest until the plaintiff vacates the property at 21 Truscott Place, East Killara.

(4) the balance of the estate is to be distributed by a specific devise of the piano to the testator's daughter Julie but otherwise 1/7th to each of the children of the testator.

(5) Liberty to apply.

(6) The costs of the plaintiff capped at $43,000, and the costs of the defendant on the trustee basis, be paid out of the estate. If the plaintiff wishes to retain the car then $14,000 is to be deducted from the $100,000.

[Calderbank letter tendered]

41 As to costs, Ms Needham has now tendered a letter marked "without prejudice except as to costs" of 30 October 2006 which offered to take the whole estate less $150,000. On the assumptions that have been made at the moment, that is, that the estate is $813,000, the deductions would be $80,000 not $150,000. Accordingly, the beneficiaries are worse off now than they would have been under the offer.

42 Ms Sullivan says that the house may well sell for more than $813,000 and that is a reason why the application of Ms Needham for indemnity costs should not succeed. The answer to that I think is twofold.

43 First, if the case is that the executor believed that the house was worth more than $875,000, then I should have been told. Secondly, if the house is sold for more than $875,000 that will be to the benefit of the seven children and so there would be even less reason why I should not make a full order as to costs.

44 The court is even more anxious at the moment than it has been in most of its history, to ensure that costs in Family Provision Act matters do not blossom out. However, in view of the Calderbank letter, the plaintiff is entitled to her full costs. Accordingly, I will delete the words from order 6 "capped at $43,000".

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