Tweedy v Bradley

[2000] NSWSC 1134

CITATION:	TWEEDY v BRADLEY [2000] NSWSC 1134
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 2159 of 1999
HEARING DATE(S):	4, 5, 6 December 2000
JUDGMENT DATE:	6 December 2000
PARTIES :	Margaret Mary Tweedy v Michael Sheridan Bradley - Estate of Charles Geoffrey Sheridan Bradley
JUDGMENT OF:	Master Macready at 1

COUNSEL :	Mr R.W. Tregenza for plaintiff Mr A. Todd for defendant
SOLICITORS:	Orchiston Ranzetta Finney, Gosford, for plaintiff Benjafield & Associates, Chatswood, for defendant
CATCHWORDS:	Family Provision. Claim by a former de facto partner. Consideration of nature of relationship. Order for a legacy made in favour of the plaintiff.
CASES CITED:	Re Fulop deceased (1987) 8 NSWLR 679; Churton v Christian (1988) 13 NSWLR 241; Brown v Faggoter 13.11.98 Cour of Appeal; Singer v Berghouse (1994) 181 CLR 201; Goloski v Goloski 5.10.93 Court of Appeal; Luciano v Rosenblum (1985) 2 NSWLR 65; Elliott v Elliott 5.4.86 Court of Appeal.
DECISION:	Paragraph 67

- 1-

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

WEDNESDAY 6 DECEMBER 2000

002159/99 - MARGARET MARY TWEEDY v MICHAEL SHERIDAN BRADLEY - ESTATE OF CHARLES GEOFFREY SHERIDAN BRADLEY

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JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Charles Geoffrey Sheridan Bradley, who died on 15 December 1997, aged 83 years. 2 The deceased was survived by his three children and the plaintiff, who had a defacto relationship with the deceased at some time prior to his death. The deceased's wife had predeceased him. 3 Under his will, made 2 September 1996, he left the whole of his estate to his three children equally. The plaintiff did not benefit under the will. His son Michael was appointed the executor. 4 The estate was a reasonably substantial one, originally having a value of some $1.45 million, the main property, being at Lane Cove. There was also an interest in another estate, has been realised, and the net distributable estate at the present time consists of three items. There is firstly the deceased's real estate at San Remo on the Central Coast valued at $175,000. There is an amount in the solicitor's trust account of $104,080.64, and there is a balance of the entitlement of the estate of the late Sheila Agnes Bradley of $9,473.43. This is a total of $288,554.07. There have already been paid out of the estate funds before arriving at this figure, the sum of $47,678.96, being the defendant's costs. The further costs estimated by the defendant are $27,600 up to the end of this hearing, and the plaintiff's costs are estimated at $30,000. The balance that might be available in the estate is thus $230,954. 5 In June 1997, the plaintiff says that the relationship between the deceased and her ended. The plaintiff will thus only be an eligible person if she can demonstrate that she has been part of the household of the deceased, and also at some time partly dependant upon him. 6 It is probably convenient if I run through a chronology of some of the main events in the matter in order to look at this question. It is clear that in November 1977 the plaintiff and the deceased commenced to live together when the deceased moved into the plaintiff's rental unit at Drummoyne Bay. That continued until 1978 when, at the deceased's suggestion, they both moved to his property at Lane Cove and lived there. 7 The relationship, I am satisfied at this stage, having regard to the evidence, was clearly what would ordinarily be described as a defacto relationship. The parties had lived together, although they did not intermingle their finances at any point during their relationship. All the other necessary matters which are indicators that a defacto relationship were present. They had a sexual relationship, which on the evidence I am satisfied continued up until at least the early 1990's, when the deceased's health prevented it continuing. 8 In 1979, the deceased sold a property which he had at Noosa. He had plans for this property with his former wife, and decided to sell it. It was sold for $50,000, and in February 1980 a property was purchased at San Remo on the Central Coast. 9 Both the plaintiff and the deceased, once the property had been purchased, commenced living there. At the same time, the deceased retired and received a pension. This arrangement continued until January 1984. 10 At that stage there was a separation between the plaintiff and the deceased. This was clearly because the plaintiff was dissatisfied with the relationship. She wanted to be married to the deceased, and he refused to marry her. She then moved to rented premises at Kanwal, and there was a clear break in the relationship for some time. 11 At some later stage, probably in late 1984 or early 1985, the deceased commenced living at Kanwal, as well as occasionally being at Lane Cove. In 1989 the San Remo property became available - having been rented for a while - and the deceased and the plaintiff moved back into that. It should be noted that all through this time and thereafter, the deceased always had his property at Lane Cove, and there was movement between the two properties. 12 In 1991, the plaintiff received her superannuation pay out from the Department of Education. She had been a teacher, and been employed there for many years. She received $169,378.36. She purchased a property at Canberra for $129,000 as an investment. That property she has maintained to the present time. 13 The balance of her funds were substantially spent on the purchase of a car for herself, which she still has. It was a Nissan car purchased for some $25,000. 14 The parties continued to reside mostly at San Remo, but in May 1993 another event occurred which affected the relationship. The deceased's sister, Sheila Bradley, became ill and the deceased became involved in caring for her, along with help from his daughters. That involved him living at Lane Cove for substantial periods of time while the plaintiff lived at San Remo. 15 Sheila Bradley died in 1996, and thereafter the deceased was involved in administering her estate and some other connected estates for some time. 16 It was in June 1997 that the deceased and the plaintiff effectively, on the plaintiff's story, separated. She says the deceased came and saw her at San Remo and told her that he had been to see solicitors, and she would be getting a solicitors letter saying she had to leave. 17 The plaintiff then accepted that that was the end of the relationship. She did not move. Instead, she lodged a caveat on the San Remo property, and then commenced proceedings under the Defacto Relationship Act against the deceased. These were commenced on 10 December, and the deceased received them on or about that date. 18 He was giving instructions in relation to the defence of them when he died on 15 December 1997. 19 Probate was granted on 1 May 1998, and on 16 June 1998 a Notice of Intended Distribution in respect of the deceased's estate was published in the appropriate newspapers. 20 In October 1998, the defendant filed a motion against the plaintiff seeking dismissal of the Defacto Relationship Act proceedings. They were in fact dismissed on 13 November 1998, and mention was made at that stage of a proposal to bring the present proceedings. 21 There had been distributions in the estate of the deceased prior to the last distribution, which occurred on 20 April. The distributions were 7 March 1997, 3 June 1998, 9 October 1998, and the final one of $200,000 to each beneficiary was made on 20 April 1999. 22 Ten days later, on 30 April, the plaintiff commenced the current proceedings. The 18 month time period which limits the time for making applications, expired on 15 June 1999. 23 Having regard to the chronology, and particularly having regard to the first period where the parties admittedly, in my view, lived together in a defacto relationship from 1977 to 1984, it is obvious that the plaintiff was part of the household of the deceased, and was also dependant upon him for accommodation. They lived in San Remo, which he purchased in his name, for many years. She is thus an eligible person. 24 It is necessary under section 9 (1) of the Family Provision Act that the Court shall first determine whether there are factors warranting the making of the application. This expression has been dealt with by courts on many occasions. In Re Fulop Deceased (1987) 8 NSWLR 679 at 681 McLelland J described that expression in the following terms:

"Secondly, the subsection appears to be premised upon a distinction between 'factors which warrant the making of the application' on the one hand, and circumstances which would justify the making of an order granting the application, on the other; otherwise the subsection would be pointless. This means that in a particular case the Court might determine that there are 'factors which warrant the making of the application' within the meaning of the subsection, and yet go on to decide that the application should fail. Since the subsection applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by section 9 (1) (lawful and defacto spouses and children) are such generally regarded as natural objects of testamentary recognition by a deceased (of the Wills Probate and Administration Act 1898, section 61B), whereas the classes affected by section 9 (1) (former spouses, and some time dependent grandchildren or household members) are as such not generally so regarded. This suggests that the 'factors' referred to in the subsection are factors which when added to facts which render the applicant an 'eligible person' give him or her status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. That the subsection is directed at a plaintiff's status as applicant in some such sense as this perhaps finds some support in the statutory direction to the Court, in the event that it determines the preliminary question adversely to the plaintiff, not to go on to determine the application, but 'refuse to proceed with the determination of the application.'"

25 In Churton v Christian (1988) 13 NSWLR 241, the Court approved this statement. Priestley JA at page 252, after setting out and approving the statement, added the following:

"To this I would add that although the classes affected by section 9 (1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition."

26 These principles have been applied at first instance for many years. 27 There has been in recent times further attention to this matter in the Court of Appeal in the case of Brown v Faggoter, a decision given on 13 November 1998, which is a decision of Sheller JA, Sheppard AJA and Fitzgerald AJA. The main judgment was given by Fitzgerald AJA, who seemed to suggest that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and perhaps easier test than that which the Court of Appeal approved in Churton v Christian. I will consider the matter on both bases, given that there may be some flux in the state of the law in this regard. 28 On the more traditional basis, I think quite clearly there are factors warranting, given the earlier relationship to which I have referred. It is thus necessary to also consider whether there are prospects of success, and I will do that in the context of looking at the matter generally. 29 In applications under the Family Provision Act the High Court has recently in Singer v Berghouse (1994) 181 CLR 201 set out a two stage approach that a Court must take. At page 209 it said the following:

"The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life?' The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, it if becomes necessary to embark upon the second stage of the process, the assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."

30 As directed by the High Court, it is necessary of course to look at the plaintiff's financial situation. She is presently 70, single and has no dependant children. She has a property in Canberra which is worth approximately $133,000. She has her Nissan car which is now worth some $5,000, and personal effects of $5,000. She has debts of $11,886, according to her most recent affidavit. That is slowly being reduced. 31 She has an income which is first a pension of $138 a week, and secondly a rental income of $220 per week. There was some dispute about this in the evidence, but I am satisfied that the plaintiff's evidence as to the amount of her rent is correct, and that perhaps she has not been as accurate as she might have been in filling out the rent books. 32 It is necessary to look at the plaintiff's medical condition. It is perfectly apparent, when seeing her, that she has difficulty in walking. One of her feet was badly damaged in an accident at school, which led to virtually the end of her teaching career. She walks with a stick. She has the prospect of having to have bowel surgery, and also the prospect of at least exploratory surgery for cysts on her ovaries. She suffers from diverticulitis, and also from arthritis. 33 Having seen the plaintiff, and having heard of her medical condition, it seems clear to me that if she needs a car, she will have to have one which will give her easy access to get in and out of the seat so that she can drive. The plaintiff is not a person who has enjoyed good health, having had somewhere near a dozen operations over the years of the relationship with the deceased. 34 It is also necessary to take into account the contributions that may have been made to the estate of the deceased. In this case the plaintiff made no contributions to the estate. She contributed towards the housekeeping, but that is all. She kept her assets to herself. She kept separate financial arrangements for herself, and the parties distanced themselves in some respects in that financial sense. For instance, the deceased required her to repay amounts which he lent to her to fix her car. 35 I will turn to the relationship with the deceased a little bit later. First, I will look at the situation of others having a claim on the bounty of the deceased. The deceased's son Michael is fifty-four. He is married with two children. He has one son who is dependant upon him. He unfortunately suffers from schizophrenia and will obviously need ongoing care and attention for probably many, many years. 36 After taking into account the distribution of his estates, Michael's asset situation is that he has a house in Adelaide worth $450,000. He and his wife have two cars worth $56,000 between them, furniture of some $20,000, a flying Dutchman $10,000, cash of $134,000 and shares worth $8,000. That is a total $678,000. He has liabilities of some $69,000. 37 He has had difficulties in employment. He had problems with his heart which led to him leaving his sales position. He was a state manager, and obviously fairly successful. He has now gone into business on his own account, selling telephones in a franchise operation which he is operating. According to their affidavits, the combined income of he and his wife was about $4,000 per month. He looks forward to succeeding in that business. 38 So far as his health is concerned, he has had the heart troubles to which I have referred. His prognosis in that respect is somewhat guarded from his doctors. It depends upon his management of the problems. Clearly his relationships with the deceased were good, and he kept in constant contact with him. 39 Kerry Morgan, who is a daughter of the deceased, is fifty-two, divorced, and has two children aged nineteen and twenty. She was previously a secretary at BHP, but became redundant and has not worked since November 1999. Both her children are partly dependant upon her. She has a house worth some $400,000, a car worth $23,000, furniture worth $15,000 and investments of $235,000. She says that she will have to support her children for some time. 40 She has problems with her health, mainly caused by hypertension and eczema. At the moment, her expenditure exceeds her income by about $13,000 per annum, and she lives on her capital. She, like her other siblings to their father, had a good relationship. 41 I turn now to Shan Middleton. She is fifty-five and married with three children who are not dependant upon her. Her husband, who is a diesel engineer, has a great deal of medical difficulties, which have been treated at the moment. They substantially affect his ability to work, and because of these, he has had problems with his business. She has been forced to use the monies distributed to her to help him in large measure. 42 He has, for instance, has Raynauds Syndrome, which affects the sensation in his fingers, which is particularly damaging for his type of work. He has had a finger removed, as he developed gangrene in it, and he also has toxoplasma gondii. 43 Their situation is that they have a home on a large block at Galston. The value of that is not in evidence, but no doubt it is a comfortable residence, given its description. I think it is a five bedroom home. They have furniture of some $20,000, and two cars worth $34,000. Her husband's business has assets of some $30,000. Their combined income is $50,000 per annum. 44 She herself has some future difficulties, because her employment as a personal assistant is not secure. The company she is with has contracted from some fourteen employees down to four over the last six months. Her husband's income in the future is also doubtful, due to his medical problems. 45 Her own health is satisfactory, and she also of course had good relationships between herself and her father. 46 The plaintiff has to establish that she has been left without adequate and proper provision for her maintenance, education and her advancement in life. The way in which the plaintiff says that she has been left without provision is that she suggests that the following general forms of provision ought to be made; firstly accommodation, secondly a fund to enable her to meet her expenses, and thirdly a fund to guard against the contingencies of life. 47 She has identified a suitable ground floor level villa nearby to where she lives that she wishes to purchase for $200,000. The stamp duty on that would be some $7,000, and the alterations to make it necessary to suit her medical problems some $7,600. 48 She also suggests that she would need a motor vehicle costing some $30,000, white goods $2,800, including a television, and also some recovering of furniture of $2,640. That is a total of $250,040. The sum suggested for contingencies is $25,000. 49 The sum that was suggested to provide for her future income was said to be a shortfall in her income of $421 per week, and it was suggested this should be capitalised at 5 percent, giving a sum for 16.5 years. The actual amount was not given to me in figures, but it will be something in excess of $227,188. On this basis, it was suggested that a total figure ought to be awarded to her of some $516,000. 50 Without at this stage dealing with the appropriateness of any such provision, it seems clear that the expenses which the plaintiff has set out in paragraph 91 of her affidavit of $641.24 per week, are a compilation of expected expenses. This is clear, because her income over recent years has been as follows; in 1998, $19,106; in 1999, $18,934; and in 2000 $18,573. This averages about $367 per week, which is of course substantially less than what she says she would wish to spend in paragraph 91. 51 One can get some measure of just what her expenses are by the fact that she has savings which have reduced over the last three years from $8,000 down to zero. This in effect means that she has been spending beyond her income in the order of $50 per week. 52 Widow's claims are frequently the subject of applications in this Court. The same principles apply to a person living in a defacto relationship. The Court of Appeal in Goloski v Goloski unreported 5 October 1993 has referred to formulations of this standard to be expected in respect of a widow in terms which refer to the decision of Powell J in Luciano v Rosenblum (1985) 2 NSWLR 65 and Elliott v Elliott, which was approved by the Court of Appeal on 5 April 1986. There his Honour said:

"Where the marriage of a deceased and his widow has been long and harmonious, where the widow has loyally supported her husband and assisted him to maintain and build up his estate, the duty which a deceased owes to his widow can be no less than to the extent to which his assets permit him to achieve that result; first to ensure that his widow be secure in her home for the rest of her life and that if either the need arises or the whim strikes her, she have the capacity to change her home; secondly that she have available to her an income sufficient to enable her to live in a reasonable degree of comfort and free from any financial worry; and, third, that she have available to her a fund to which she might have resort in order to provide herself with such modest luxuries as she might choose and which would provide her with a hedge against any unforeseen contingency or disaster that life may bring."

53 Of importance in the context of the present case are the questions of the extent of the relationship, whether the relationship has been harmonious, and whether there have been contributions to the estate of the deceased. 54 So far as the relationship with the deceased is concerned, there are a number of separate periods. In the period from 1977 to 1984 the parties seem to have resided together without any great difficulty, although there were occasional complaints from the deceased about the plaintiff not contributing, for instance to the cost of San Remo. 55 There were, in this relationship - and the plaintiff admits it - difficulties from time to time, and probably there were a few during this period. However, I am satisfied that they lived together as a defacto couple in this period. Clearly, the plaintiff herself decided to break the relationship in 1984.. She wanted marriage, and the deceased was not prepared to have a relationship on that basis. On her own version they then separated for some six months. 56 Ultimately when they got back together, with the deceased coming and living, according to the diaries, probably in late 1984 or 1985, the plaintiff accepted the deceased back on a different basis. She gave up any prospects of marriage, but simply looked to the companionship that their living together would bring. There clearly were no prospects of remarriage. 57 The next period seems to be from about 1984 up to 1991. They did in fact move back into San Remo in 1989, as apparently the property then became available, and the rent was increasing on the Kanwal property. 58 In 1991 though, the deceased - certainly in his statement to his children, and by his actions - started to exhibit quite a dissatisfaction with the relationship. He started making plans to sell San Remo. For instance, he would go up there and start doing all the alterations ready to get the place on the market. These things became apparent from diaries which the plaintiff kept over the whole of the years in question. 59 He told his daughters, for instance, that he was going to ask the plaintiff to leave the premises, he was going to sell it. Indeed, in the plaintiff's diaries in 1992, there are suggestions that the plaintiff recorded where he was saying to her that she had to go. The plaintiff tended to play down these in her evidence, and say that from time to time whenever the rates would come in, he would complain and say he was going to sell the place, and she would have to go. It does indicate clearly a deepening sense of dissatisfaction of the relationship on the part of the deceased. 60 In 1993, the other event occurred which started the further separation of the parties. That was the deceased's sister, Sheila, becoming ill, requiring a lot of attention to be given to her at Lane Cove by the deceased and his daughters. That virtually led to the deceased living full-time at Lane Cove from there on, only very occasionally going to the Central Coast, and with the plaintiff herself only occasionally coming down to Lane Cove. 61 For instance, in September 1993 the plaintiff records in the diary that the deceased had been at Lane Cove for 22 weeks. Clearly, the deceased looked after his sister until she died in 1996, and thereafter was intimately involved in her financial affairs including sorting out her estate and other related estates. The evidence of even the friends of the plaintiff indicated a distancing in the relationship, brought about by this event. 62 The relationship certainly was one which probably, on the deceased's part, he desired to terminate from as early as 1991. He was a procrastinator, as the witnesses relate, and he never got around to doing it. He talked about it from time to time, and there were obviously arguments - probably three or four times a year - between him and the plaintiff of a substantial nature. 63 If one looks at it and stands back to try and judge the relationship, I think clearly it falls into different areas. The early period up to 1984 was probably a happy period of some seven years of an ordinary relationship. It became more difficult after they got back together in 1985. From 1991 there was extreme dissatisfaction and arguments between the deceased and the plaintiff. The arguments between them were open and public to their family. 64 Clearly, the deceased did nothing further to terminate it until he had to finally do so in June 1997. One would have thought there was little left in the relationship from 1993 on. In these circumstances, one has a relationship which was a good one for some seven years, with a break, and a period of some further unsatisfactory relationship. Certainly it is not the long relationship which is referred to by Powell J. For part of the period it certainly was not a happy relationship. 65 It certainly was not a relationship where the plaintiff herself had contributed to the estate and had helped build up the estate. This is not a situation of a young couple working all their lives, and each in their own way contributing to the build up of the resources over a period. It is more a relationship between parties of mature years, who have substantially been retired, and have had their own separate financial arrangements. I do not think that it is appropriate, in this case, to provide a full range of needs, as they are sometimes described, which is applicable to an ordinary widow's claim. I think it is appropriate that she have provision for a residence and a car, and some small sum. The suggestion that she should received something in excess of $500,000, I think is way beyond any reasonable estimate of the nature of this case. 66 She does in fact have the Canberra property, and in my view the appropriate order in the present case is to provide her with a legacy which will give her a home, a car and some other small fund which will enable her to plan for the future. 67 It would seem to me that a legacy in the order of $275,000 would be appropriate, and I would propose to order that. It is clear that in respect of factors warranting the making of the application, that these are present. 68 The amount of the estate that is available is $230,000, and therefore of course it is necessary to identify some property as notional estate. 69 Section 27 of the Family Provision Act is in the following terms:

"(1) On an application in relation to a deceased person, the Court shall not make an order designating property as notional estate of the deceased person unless it has considered:
(a) the importance of not interfering with reasonable expectations in relation to property.
(b) the substantial justice and merits involved in making or refusing to make the order; and
(c) any other matter which it considers relevant in the circumstances.
(2) In determining what property should be designated as notional estate of a deceased person, the Court shall have regard to:
(a) the value and nature of property the subject of any relevant prescribed transaction or distribution from the estate of the deceased person;
(b) where, in relation to any such prescribed transaction, consideration was given, the value and nature of consideration;
(c) any changes over the time which has elapsed since any such prescribed transaction was entered into, any such distribution was made or any such consideration was given in the value of property of the same nature as the property the subject of the prescribed transaction, the distribution or the consideration, as the case may be;
(d) whether the property of the same nature as the property the subject of any such prescribed transaction, any such distribution or any such consideration could, during the time which has elapsed since the prescribed transaction was entered into, the distribution was made or the consideration was given, as the case may be, have been applied so as to produce income; and
(e) any other matter which it considers relevant in the circumstances."

70   As can be seen, there are a number of matters that the Court has to consider. So far as the importance of not interfering with reasonable expectations in relation to property is concerned, that seems to me to not arise in this case. There are no promises of property by the deceased and the distributions were made at a time when the parties knew that they were certainly in disagreement, even if only in defacto relationship proceedings. 71   So far as the substantial justice and merits involved in making or refusing to make the order, obviously some similar considerations arise. In this case, all the distributions were made before the 18 month period allowed for the bringing of these applications. In D’Albora v D’Albora, a decision of mine on 21 May 1989, I dealt with at some length the effect of bringing or making distributions before the period expired. There are means in the Act, and particularly section 17 to which I have referred in that judgment, which enable the parties, if we wish to distribute estate, to protect themselves. Those provisions allow them to give notice, to shorten the period for distribution, to someone who they think might want to bring proceedings. 72   Clearly in the present case the distributions have been made with the knowledge that proceedings were likely, and they were made before the expiry of the time. Accordingly, it seems that on purely knowledge grounds, there are no matters which would interfere with an order designating property. 73   So far as the individual circumstances are concerned, in respect of two of the parties, they have assets which can be designated to the extent necessary to deal with the small shortfall. In respect of Sharn, her situation is somewhat more difficult. She only has a jointly owned property with her husband, and no other assets which could be designated, apart from her interest in that property. 74   Rather than at this stage making orders designating property, I will stand the matter down for a short time so that the defendant can consider the position. It may be that the children may wish to come to some arrangement amongst themselves as to how the shortfall should be borne. Rather than me impose anything at this stage, they might like to think about an appropriate way to deal with it. 75   In those circumstances, I will just stand the matter down. I can make the appropriate final orders, which will be the usual orders for costs; namely that the plaintiff's costs on a party and party basis, and the defendants on an indemnity basis to be paid out of the estate. 76   There has been a Calderbank offer, which was made at lunchtime yesterday for $350,000 for the plaintiff inclusive. That would be a net benefit to her of $320,000. She has not done as well as that offer, in the result. However, given that it was at lunchtime, I do not think it could have any affect on yesterday's costs, and I frankly think it has minimal affect on today's costs, and I will not make any change to the costs order.
oOo

Last Modified: 12/12/2000