Waters v Odell
[2023] QDC 44
•14 June 2023
DISTRICT COURT OF QUEENSLAND
CITATION: Waters v Odell [2023] QDC 44 PARTIES: PHILPPA ANNE WATERS
(Applicant)
v
CHRISTINE ODELL (as executor of the estate of Anne Benn deceased)
(Respondent)
FILE NO: BD No 1017 of 2021
DIVISION: Civil
PROCEEDING: Originating Application
ORIGINATING COURT:
District Court of Queensland
DELIVERED ON: 14 June 2023
DELIVERED AT: Brisbane
HEARING DATES:
7 – 9 February 2023
JUDGE: Porter KC DCJ
ORDER:
That further provision be made for the applicant from the estate of Anne Benn deceased in the amount of $280,000.
CATCHWORDS: SUCCESSION – FAMILY PROVISION – REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE – WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVSISION – CLAIMS BY CHILDREN – where the
deceased had three children including the applicant and the respondent – where the deceased purchased a home for the applicant in 1995 and allowed the applicant to live in the home rent free until 2019 – where the respondent acted as the enduring power of attorney and primary support person for the deceased – where the respondent had significant control over the finances and life of the deceased – where the applicant was evicted from the home on only six days’ notice – where the respondent caused transactions to be made using the deceased’s funds – where a number of those transactions were made to the benefit of the respondent – where the deceased’s
will provided the applicant with a legacy of $20,000, and otherwise distributed equally the residuary of the estate between the respondent and the deceased’s other child – where the applicant applies for adequate provision for their proper maintenance and support under Succession Act 1981 (Qld) s 41 – whether the will of the deceased made adequate provision for the applicant and, if not, what adequate provision would be in the circumstance
Legislation
Criminal Code 1899 (Qld) s 70
District Court of Queensland Act 1967 (Qld) Enduring Powers of Attorney Act 1998 (Qld) s 87 Succession Act 1981 (Qld) s 6, 41
Trusts Act 1973 (Qld)
Uniform Civil Procedure Rules 1999 r 700A
Cases
Australian Pipeline Limited v Alinta Limited [2007] FCAFC 55
Fenton-Anderson v Power (No 2) [2020] QDC 294
Gersbach v Blake [2011] NSWSC 368
Morgan v Darveniza [2014] QSC 37 [16(b)] – [16(c]
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
Re McGregor Deceased [1956] St R Qld 596
Tulloch Brae Pty Ltd v Environmental Protection Equipment Pty Ltd [2022] QCA 97
Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434
Secondary Materials
A A Preece, Lee’s Manual of Succession Law (Lawbook Co, 8th ed, 2019)
G E Dal Pont, Law of Sucession (Lexis Nexis Butterworths, 3rd ed, 2021) [P.8]
John de Groot and Bruce Nickel, Family Provision in Australia (LexisNexis Butterworths, 5th, 2017)
B T Porter, ‘The Jurisdiction of the District Court in Trust and Succession’ (Speech, STEP Queensland Lunchtime Seminar, 21 September 2021).
COUNSEL: P Hackett for the Applicant
C Brewer and P Coore for the Respondent
SOLICITORS: Hosic and Partners for the Applicant
Standard Law Co for the Respondent
Contents
SUMMARY............................................................................................................................. 5
THE WITNESSES................................................................................................................. 5
Ms Waters........................................................................................................................... 6
Ms Odell.............................................................................................................................. 7
THE FACTS......................................................................................................................... 11
Early family life................................................................................................................ 11
The House prior to December 2019................................................................................ 12
Mrs Benn and her daughters up to December 2019..................................................... 15
Ms Waters is asked to leave the House.......................................................................... 16
Did the House have to be sold?.................................................................................... 16
The conversations on 27 December 2020..................................................................... 19
Ms Waters vacates the House....................................................................................... 20
Condition of the House................................................................................................. 27
The Will and the Declaration.......................................................................................... 28
Joint account and the sale proceeds............................................................................... 33
Mrs Benn’s last months................................................................................................... 36
Ms Odell dealings with Mrs Benn’s funds..................................................................... 37
Payments to Ms Odell’s benefit.................................................................................... 37
Other transactions......................................................................................................... 38
Conclusions on Ms Odell’s conduct............................................................................... 40
THE LAW............................................................................................................................. 43
SIZE OF THE ESTATE...................................................................................................... 46
The potential claims against Ms Odell........................................................................... 46
Estate at the date of death............................................................................................... 48
Estate at the date of trial................................................................................................. 49
Costs issues in the value of the estate........................................................................... 50
MS WATERS AS APPLICANT......................................................................................... 52
Need................................................................................................................................... 52
Relationship issues........................................................................................................... 53
RODNEY’S POSITION...................................................................................................... 53
Need................................................................................................................................... 53
Relationship issues........................................................................................................... 54
MS ODELL’S POSITION.................................................................................................. 54
Need................................................................................................................................... 54
Relationship issues........................................................................................................... 56
ADEQUATE PROVISION NOT MADE.......................................................................... 56
PROVISION TO BE MADE............................................................................................... 60
OTHER ISSUES.................................................................................................................. 65
ORDERS............................................................................................................................... 67
SUMMARY
[1]The applicant (Ms Waters) seeks further provision from the estate of her mother (Mrs Benn) pursuant to s 41(1) Succession Act 1981 (Qld). For the reasons which follow, I have concluded that Mrs Benn’s will of 31 December 2019 (the Will) did not make adequate provision for Ms Waters’ proper maintenance and support as at the date of Mrs Benn’s death. I have also concluded that further provision should be made from Mrs Benn’s estate for Ms Waters in the amount of $280,000.
THE WITNESSES
[2]Ms Waters is the respondent’s (Ms Odell) older sister. Rodney is their brother. Their parents were Mrs Benn and her husband Mr Benn (who predeceased Mrs Benn by some years). Although there are many facts to consider in this case, there are two principal areas of factual dispute.
[3]The first relates to a house at Skennar’s Head near Byron Bay (the House). As I explain further below from paragraph [34], Mr and Mrs Benn bought the House in about 1995 and Ms Waters lived there rent free as a single parent with her son, Aaron, from that time until Ms Waters was told to move out of the house by her mother on 27 December 2019. She moved out on 3 January 2020. The first area of dispute concerns the character of the dealings between Mrs Benn, Ms Waters and Ms Odell in relation to the House up to Ms Waters’ eviction, and how those dealings impact on Ms Waters’ claim to provision, bearing in mind her long occupation of the House.
[4]The second relates to Ms Odell’s dealings with her mother after Ms Waters was required to leave the House. From that time on, (and indeed from a time well before then) Ms Odell was her mother’s principal support and confidant. The dispute is this regard can be summarised as whether, and to what extent, Ms Odell’s version of her dealings with her mother and her mother’s affairs can be accepted. Of particular importance is Ms Odell’s explanation of:
(a)Her dealings with Mrs Benn funds generally and the proceeds of sale of the House in particular; and
(b)The circumstances of production of a statutory declaration and letter apparently containing Mrs Benn’s instructions which were highly critical of Ms Waters and Ms Waters’ conduct.
[5]Though there are uncontentious facts which assist in resolution of the issues arising in these areas, the first area of dispute falls to be resolved primarily by reference to the evidence of Ms Waters and Ms Odell and the second falls to be determined by reference primarily to the evidence of Ms Odell. It is therefore necessary to explain my views on the credibility and reliability of those two witnesses, as those views will inform my approach to the specific findings made in these reasons.
Ms Waters
[6]As is usual with cases of this kind, Ms Waters’ evidence in chief was by affidavit. The only opportunity I had to observe her and consider her responses in areas of conflicting evidence was in her cross examination. Mr Hackett, who appeared for Ms Waters, submitted that her credit was not challenged in cross examination. Ms Brewer, who appeared for Ms Odell, did put her client’s version of some of the key events to Ms Waters, though the cross examination was relatively brief. Further, several of the key areas of factual dispute were not explored in cross examination. Some examples are:
(a)Ms Odell’s evidence that the house was left in a dilapidated state when Ms Waters left it in December 2019, which was inconsistent with Ms Waters’ evidence; and
(b)Ms Odell’s evidence that from 2006, Mrs Benn seemed upset after calls from Ms Waters, that she overheard aggressive conversations between Mrs Benn and Ms Waters after 2017, and that she observed Mrs Benn in a state of apparent fear and distress during telephone calls in late 2019 about the sale of the House, which was also inconsistent with Ms Waters’ evidence.
[7]Ms Waters’ affidavit evidence was broadly consistent with the uncontentious facts. Her answers in cross examination were also broadly consistent with such facts. She was not shown in cross examination to have been in error on any important matter and when she said she did not recall matters (which on occasion she did say), those matters seemed to be the sort of matters one might reasonably expect her not to recall in the circumstances of the particular event, given the passage of time.
[8]From observing Ms Waters I was in no doubt that she is hostile to her sister, and her oral evidence reflected that at times. She also seemed to me to blame her sister for acts which might well have had their genesis with her mother. Such hostility can affect the reliability of recollection and I take it into account in considering her evidence. Further, her evidence related to some events long past, and points of detail can be easily forgotten or overlooked in that context, especially when the overlay is tense family relationships playing out in litigation. Further, my impression is that Mrs Waters had a sense of entitlement to the House (understandable though that was, given the history of her occupation set out more fully below) and on occasions tended to put the best gloss on her evidence relating to that matter and her dealings with her mother. For example, I think it likely that her conversations with her mother around November 2019 when she was asked to move out were tense and probably angry.1
1 See Ms Waters description of the conversation at TS1-100 to 101.
[9]However, I do not think any of the issues I have just mentioned provided a basis not to accept her evidence as truthful and substantially reliable. Considering her evidence as a whole, I accept her as a witness who was endeavouring to tell the truth as she recalled it and was generally reliable in her recollections.
Ms Odell
[10]A great deal turns in this case on the credibility and reliability of Ms Odell’s evidence. I do not accept her as credible or reliable.
[11]As will be seen, it is not in dispute that Ms Odell paid several significant sums (and many small sums) to herself, or for her benefit, from her mother’s funds. Most of these funds were drawn from a joint account she held with her mother (the source of funds paid into this account were indisputably her mother) (the joint account). She explained in her affidavits that those payments were made on her mother’s instructions or for other good reasons, as I will explore further in my detailed findings to follow. However, her evidence about some most these amounts was implausible and very significantly damaged her credibility and reliability. I list just some of those points.
[12]First, during cross examination, it was shown that (in addition to the amounts she conceded she had received and sought to explain in her affidavit evidence) she had also received a transfer of $55,000 from the joint account2 just two days before her mother’s death, and while her mother was in palliative care for the cancer which would soon claim her life. That was a large payment on any view, even more so in the context of her mother’s then resources. However, that payment was never disclosed nor referred to by Ms Odell in her affidavits or correspondence with the applicant’s solicitors. It was first raised with her in cross examination. She cannot possibly have been in any doubt as to the significance, in the context of this trial, of such a large transfer from the joint account, not least because other smaller transfers from the joint account had been contentious in solicitors’ correspondence.
[13]Ms Odell could give no credible explanation for that transfer and her answers in cross examination were extremely unconvincing.3 Her evidence that she could not even recall the transaction was, in my opinion, untrue. I reject it. Her evidence that her mother would have authorised it was, in my view, constructed in the witness box. Further, despite demands from the applicant’s solicitors, Ms Odell only provided the bank statements which showed receipt of this sum into her account during the night preceding the second day of the trial. I find that she sought to conceal that payment, knowing it would damage her if it was revealed. Given the circumstances of the transfer, I do not accept her evidence that she took the money with
2 Exhibit 7, Affidavit of Christine Odell dated 5 June 2021, page 64.
3 TS2-77 to 82.
authority from her mother to do so. The circumstances of that payment, without more, would give me reason not to accept her as a credible or reliable witness.
[14]Second, in cross examination Ms Odell tried to explain a series of payments made from the joint account for ordinary personal expenses of her own. These payments were small transactions in about February 2020 totalling some $400.4 These were explained as being paid from the joint account because she “didn’t have any money left at that time”,5 because she was caring for her mother full time. Having committed herself to that proposition, she was shown her bank statements which demonstrated that she had some $13,000 of her own funds at around that time. No credible explanation was given for that incongruity.6 In my view, the evidence that those payments were justified because Ms Odell had no money at the time was created by Ms Odell to try to explain away transactions which were embarrassing to her.
[15]Third, on 11 August 2020, Ms Odell transferred $24,138.32 from the joint account to her personal account.7 The transfer was by electronic transfer and had the note on the transfer “fees funeral”. That transfer and note were done by Ms Odell (her mother died on 8 August 2020). No explanation of that sum was included in Ms Odell’s affidavits.
[16]The point was directly raised by Ms Waters solicitors in their correspondence with Ms Odell’s solicitors dated 17 June 2021,8 where a specific request was made for invoices which supported that payment. However, no invoices were provided to Ms Waters’ solicitors,9 and no explanation given for the sum transferred.
[17]On the morning of Day 2 of the trial, an invoice dated 17 August 2020 was provided.10 That invoice was for cremation costs of $4,250.11 No such invoice existed, of course, on 11 August 2020 when Ms Odell transferred money for “fees funeral” out of the joint account. Ms Odell could give no explanation why that invoice was only provided on day 2 of the trial, despite the earlier request.12
[18]Insofar as the $4,250 amount is concerned, there is, in any event, a question mark over whether this sum has been paid twice. The interim accounts of the estate solicitors show reimbursement of $5,405 to Ms Odell for “Estate Expenses”13 and it is unclear what else this payment could relate to other
4 Exhibit 7, Affidavit of Christine Odell dated 5 June 2021, pages 55 to 56.
5 TS2-71.43.
6 TS2-73.
7 Exhibit 7, Affidavit of Christine Odell dated 5 June 2021, page 65.
8 Exhibit 9, Bundle of Correspondence from Hosie and Partners.
9 TS2-6 to 7.
10 Ibid.
11 Exhibit 10, Invoice for Funeral Expenses dated 17 August 2020.
12 TS2-15.
13 Exhibit 1, Affidavit of Phillipa Anne Waters dated 29 April 2021, page 26.
than funeral expenses. However, that issue was not explored at trial in evidence further, so I put that to one side.
[19]More fundamental is the fact that the invoice leaves some $20,000 unaccounted for. In the witness box, Ms Odell said that this sum was explicable on the basis that it was money to be paid to have her mother’s ashes put with her father’s ashes. This was seemingly a reference to paragraph 6(c) of the Will which provides that “…I direct my Trustee to arrange the direct cremation of my remains and my ashes to be buried at Nowra with my beloved husband…” In evidence Ms Odell said the balance was held on account of the costs of the interment of the ashes, however, she could give no basis to justify the large sum involved. Further, she conceded she had spent the money and would have to find it from her own funds when the time came to give effect to that clause of the Will. And even now, over two years since her mother’s death, Ms Odell has not carried out the instruction in paragraph 6(c). There is good reason to doubt Ms Odell ever intended to carry out that instruction. Ms Odell’s explanations for taking that sum are not credible. The sum taken as funeral fees was, however, exactly the sum required to bring the balance of the joint account to nil.14
[20]I find that Ms Odell took the “fees funeral” sum without any proper basis to believe that sum was necessary for funeral expenses. Her real purpose was to clear the balance of the joint account. She deliberately avoided explaining the transfer, or providing any invoice to vouch it, because she was conscious that she could not defend it. Her evidence maintaining the validity of the transfer in cross examination, despite the above matters being drawn to her attention, reveals a person who resists conceding the obvious when it is contrary to her interests, even when it is clear that her conduct is indefensible.
[21]The above conclusion was confirmed by her untenable position in final submissions. In counsels’ written closing, Ms Odell maintained that I should approach the assessment of the size of the estate based on a “contingent cost of disposal of ashes” estimated to be nearly $20,000.15 That was despite still having no evidence that anything like that sum would be involved in the seemingly modest task of burying Mrs Benn’s ashes with her husband. Indeed, there is still no evidence that this can even occur.
[22]Fourth, as will be seen, one issue which arises in the proceedings is the state of the House when it was handed over by Ms Waters on 3 January 2020. The allegation that the House was in poor condition is central to Ms Odell’s justification for many transactions in the joint account made to her personal benefit between January and August 2020, and indeed to her narrative of events during that period.
14 Exhibit 7, Affidavit of Christine Odell dated 5 June 2021, page 65.
15 Respondent’s submissions at [13]. The submissions estimate a cost of disposal of $19,888.18 being the total amount of the “fees funeral” transfer minus the cremation cost of $4,250.
[23]There was a clear dispute between the parties on their affidavits as to the condition of the House at that time. Contemporaneous photographs of the House could well have cast light on the true position and undermine the credit of the party whose version was inconsistent with the photographs. Ms Odell’s affidavit contained no photographs to sustain her version of events. Ms Waters’ affidavit also lacked photographs to back up her version. The latter point is less significant for Ms Waters if the House was not in poor condition, because she would have no reason to think that she needed to document its condition. The same cannot be said for Ms Odell. However, the lack of photographs from Ms Odell would be unremarkable if there were no photographs to include.
[24]Somewhat surprisingly then, in cross examination, Ms Odell said the following:16
I’ll diverge now. We’re coming to this shortly. There’s not one photograph in existence of what you’ve just said in evidence, is there?---I sent all the photos and text messages to the litigators, so they have all the copies.
No, no. Madam, please focus on the question?---It does exist, sir, because I have it - - - Madam - - -
HIS HONOUR: No, no. Hold on a second. Mr Hackett’s question was there’s not a photograph in existence of the fortification of the house that you’ve described?---The fortification?
The nailing up of the doors. You understand what I mean, surely?---Yes. Okay. Nailing of the doors. I’m just trying to think if there’s something in some of the documents.
MR HACKETT: Photograph. Any?---Yeah, probably some photographs. I could look into my phone.
Not disclosed in this proceedings?---No. [underlining added]
[25]And doubling down on that evidence, when asked about paragraphs 171 to 174 of her principal affidavit17 which described the damaged state of the House, she said:18
Now, let’s deal with them [indistinct] There’s no photographic evidence of the damage to which you refer, or lack of maintenance, is there?---Yes, there is. I took quite a lot of photos on my phone.
Okay. We’ll deal with it the same way as the last questions and answer. Those photographs have not been disclosed in this proceedings, have they?---Not that I’m aware of. I don’t know if the litigators - - -
Well, you certainly haven’t exhibited them to your affidavit, have you?---It appears not.
16 TS2-68.
17 Exhibit 7, Affidavit of Christine Odell dated 5 June 2021.
18 TS2-69.
[26]I gave Ms Odell’s counsel time to take instructions before re-examination. She was then re-examined on some matters. There was no re-examination on her evidence that she had photographs of the House on her telephone, nor on her evidence that she had given copies of such photographs to her solicitors. If she had done so, it is very likely indeed that they would have been included in the affidavit. I reject Ms Odell’s evidence that she had photographs on her telephone and that she had given copies to her solicitors. That evidence was a self-serving embellishment constructed in the witness box.
[27]There are numerous other parts of Ms Odell’s evidence which are improbable or unlikely and which reflect on her credibility and reliability which I will refer to during my detailed findings of fact below. However, for the reasons given above alone, I do not consider her credible or reliable as a witness and will not accept her evidence unless it is supported by other evidence that I accept.
[28]Ultimately, as will be more fully explained below, the fundamental flaw in Ms Odell’s conduct as attorney, executor and witness is her view that Ms Waters is an undeserving person who should not have benefitted from her mother’s wealth any more than she had up to the time when she moved out of the House. Ms Odell’s conduct criticised in this judgment seems to be explained by that abiding opinion.
[29]It is a common enough event that a sibling feels resentment at the way a parent has treated another sibling. And it is frequently a feeling harboured by a sibling who feels they have earnt their parents love and support in a way the other sibling has not. The older son in the parable of the prodigal son is just one famous example.19 However, it is not a feeling which may properly be indulged by a sibling who is an attorney, personal representative, or witness.
THE FACTS
Early family life
[30]Ms Waters and her siblings had a stable upbringing. Their father worked in the mining industry and then in various businesses, having some success operating a packaging business. Mrs Benn cared for the family. Rodney is the eldest child. He was born in 1955 and is now 67 years old. Ms Waters was the next child. She was born in 1958 and is 64 years old. Ms Odell was born in 1962 and is 60 years old.
[31]Rodney did a boilermaker’s apprenticeship and worked in that field for some years, before taking on a nursery business together with his wife and parents. He later moved to other businesses. Ms Waters left high school in year 10 and had a modest work life. After sporadic employment in the CBA and hospitality, she was a single mother caring for her son Aaron and
19 Luke 15:11-32.
then supported herself by renting out rooms in the House. Ms Odell became a police officer in NSW and has, post her police career, worked in related areas.
[32]The overall impression I obtained from the evidence is that each of the siblings had on-going relationships with their parents, who as will be seen, supported their children in a substantial way from time to time. One of the difficult transitions to adult life is to convert the common experiences of siblings in childhood into enduring adult relationships. It does not appear that the Benn siblings managed that transition. Rather, the relationships between the siblings became rather distant.
[33]Mr Benn died in about 1995. I infer that his assets, either by survivorship or by will, passed substantially to Mrs Benn.
The House prior to December 2019
[34]At the centre of this case is the House. It is important for several reasons, including its place in informing what is adequate provision for Ms Waters based on her long occupancy and the fate of the proceeds of the House after it was sold. Also, the circumstances leading to the sale of the House and the disposition of the proceeds by Ms Odell are central.
[35]As noted above, Ms Waters had limited education and work skills. In about 1992, aged 34, she married Mr William Waters. They had one child, Aaron Waters. In about 1995, Ms Waters and Mr Waters divorced. Aaron lived with his mother from then on as a single parent, though Aaron’s father paid his school fees.
[36]Ms Waters received no property settlement and found supporting Aaron difficult on social security. When Aaron was about 3 years old, Ms Waters’ parents bought a block of land and built the House for Ms Waters and Aaron to live in. The House was built in about the second half of 1995. They also bought her a car. Ms Waters efforts to obtain employment once Aaron was “older” (presumably in his teens) were not successful. In her own words:20
[45]When Aaron was older, I went to TAFE to train in retail. I wasn’t able to stand for long periods of time due to arthritis in my hips and lower back problems so I studied office skills to learn typing to obtain an office job but I couldn’t keep up with the class. As a result, I did not complete the course.
[46]After I left TAFE, Centrelink pressured me to take any job I could get so I stopped obtaining Centrelink benefits and rented 2 rooms out a (sic) Skennars Head to cover the costs of living. I rented rooms for approximately 2 months.
20 Exhibit 1, Affidavit of Phillipa Anne Waters dated 29 April 2021.
[47]I sold my engagement ring so I stopped renting rooms lived of (sic) the proceeds to support myself. I then applied for a government disability pension for arthritis and severe depression. Due to these medical conditions, I obtained the disability pension. To date I still receive the disability pension.
[37]Aaron continued to live in the House until he completed Year 12.21 Ms Waters’ parents, then her mother, always permitted her to live there rent free.
[38]Ms Waters describes the House as beautiful, with a veggie garden and small orchard which supplied most of her food. It is not hard to accept her evidence that she was happy there. She has always had a very modest income. She could never have afforded to buy a house of any kind. Further, free accommodation plainly underpinned her standard of living, modest though it must have been. On any view of the evidence, the House was the central pillar supporting her lifestyle and standard of living.
[39]Ms Waters swore that her parents had assured her at the time that the House was built that it would be hers. She swore her father assured her that the House would be left to her when Mrs and Mr Benn were gone. It is likely that some such statement was made. It appears that, at the time, the Benns were reasonably prosperous. They certainly had the resources at around this time to help their other children, though the precise circumstances and extent of such help are contentious.
[40]Further and more compelling is the concrete steps taken subsequently by Mrs Benn which reflect such an assurance. Ms Waters said that in about 2011 her mother investigated transferring the House to her and Mrs Benn took advice from solicitors and accountants on that course. She said that her mother gave up on that course because of the capital gains tax which would be payable and which Ms Waters could not afford to pay. That account is directly supported by a letter from Mrs Benn’s solicitors, with a draft will enclosed, dated 1 February 2011.22 The letter confirms that Mrs Benn sought advice about transferring the House to Ms Waters including on capital gains tax issues, and that Mrs Benn provided instructions for the preparation of the draft will.
[41]The draft will assumes the occurrence of the transfer in that it does not deal with the House in the text. Also, notably, it contains two clauses which can reasonably be assumed to have been based on Mrs Benn’s instructions:
(a)By clause 3.2.1, it leaves the residue of the estate to the three siblings equally; and
(b)By clause 7, it contains the following statement:
21 Exhibit 1, Affidavit of Phillipa Anne Waters dated 29 April 2021 at [40].
22 Exhibit 1, Affidavit of Phillipa Anne Waters dated 29 April 2021, page 122 – 126.
I CONFIRM that I have treated each of my children equally concerning the division of the remaining assets in my estate. All of the children have received benefits from myself and my late husband prior to making of this Will and I recently transferred the property known as 10 Carroll Avenue, Skennars Head to my daughter Phillipa Anne Waters and have forgiven her debt owing in respect of that property. My husband and I previously assisted both Rodney and Christine in acquisition of homes to the extent of over $200,000 each.
[42]The draft will also provides a valuable insight into Mrs Benn’s state of mind at the time she gave the instructions referred to by her solicitors. Clause 7, taken with clause 3.2.1, provides a basis to infer that at least in 2011, Mrs Benn did not believe Ms Waters to be undeserving, did not believe her to have been treated better than her siblings, and did not believe she had been abusive or manipulative (in contrast to her apparent beliefs in early 2020, as explained in paragraph [109] - [115] below). Around the time of these events, Ms Odell lived overseas.
[43]The transfer did not proceed. Ms Waters said that was because she was not able to afford the capital gains tax payable on the transfer. I accept that evidence, not only because there is no suggestion Ms Waters would have ever had excess funds for such a purpose, but also because Mrs Benn plainly sought to achieve the transfer by a CGT efficient manner, that is by her 20 June 2011 will.
[44]On 20 June 2011, Mrs Benn made a will which, by clause 3, left the House to Ms Waters. It also maintained an even split of the residuary between the three siblings. It is common knowledge, at least amongst solicitors, that transfer of assets by will, generally, does not trigger a liability to CGT. It is reasonable to infer that Mrs Benn was given such advice. The draft will is, therefore, consistent with the views identified in paragraph [42] above.
[45]The conduct and state of mind revealed by documents prepared with legal advice in 2011 is inconsistent with the hostile indictment of Ms Waters expressed in Mrs Benn’s letter and statutory declaration prepared in early 2020.23 More on that later.
[46]Ms Waters paid the rates on the House24 and cared for and maintained it, at least to the extent she was financially able to do so. There is a dispute as to the condition of the House at the time that Ms Waters vacated in early January 2020. I deal with that specific matter from paragraph [97] below. However, I am satisfied that Ms Waters did maintain the House to a reasonable standard during her long occupation. Failure to do so over a 25- year period would have left the House in a decrepit state and even Ms Odell’s version does not go that far.
23 See from paragraph [109] – [115] below.
24 There was a challenge to Ms Waters’ evidence on the rates in an inadmissible form by Ms Odell. In any event, the evidence shows she regularly paid the rates in the period from 2014 to 2019: see Exhibit 3, Affidavit of Phillipa Anne Waters dated 12 August 2021 at [4(b)] and the documents referred to there.
[47]I find that from the time the House was constructed, until around late 2019, Ms Waters acted on the assumption, induced by assurances and conduct of her parents, that the House was hers to live in for her life rent free and would come to her after their death.
Mrs Benn and her daughters up to December 2019
[48]As I have observed, Mr Benn died in 1995. Mrs Benn appears to have continued living in her apartment which she shared with Mr Benn at Burleigh Heads at the time. There is no other evidence as to her assets then or later.
[49]On 18 November 2002, Mrs Benn appointed Ms Odell as her attorney under an Enduring Power of Attorney (the EPA). She was appointed an attorney for financial and for personal and health matters. No terms were added to the standard short form EPA. For each of the wills in evidence, Mrs Benn appointed Ms Odell as executor. This tends to reflect, I think, a view of Mrs Benn that of her children, Ms Odell was the one she preferred to handle her affairs.
[50]In about 2006, Mrs Benn was involved in a bus accident and suffered some serious injuries. Ms Odell supported her around this time. Mrs Benn appears to have remined in her Burleigh unit at that stage.
[51]At some point, around 2011, or perhaps a bit later, Mrs Benn moved into an apartment in a retirement village at Clear Island Waters on the Gold Coast. The move appears to have correlated with a diagnosis of a form of bone cancer, though Mrs Benn appears to have managed to care mostly for herself for some time thereafter. Ms Waters says that the Burleigh unit was sold, though there is no evidence as to what became of the proceeds of sale. It might be that Mrs Benn, directly or indirectly, used some of the proceeds of sale for daily living expenses.
[52]Ms Odell lived overseas for about seven years ending in about 2017,25 so she was not involved in Mrs Benn’s day-to-day care. Ms Waters said that she had on-going and warm contact with her mother over this period and frequently visited her but does not suggest she acted as her carer.
[53]From 2017, Ms Odell returned to live in Australia. She moved to the Gold Coast for work and from then on, she swears she spent a lot of time with her mother, cleaning, cooking and “discussing [her] mother’s life experiences”.26 Despite my rejection of Ms Odell as a truthful or reliable witness, I accept the gravamen of this evidence. Indeed, the evidence supports the conclusion that from about 2017, Ms Odell became Mrs Benn’s principal relationship and principal personal and emotional support,
25 TS2-29.
26 Exhibit 7, Affidavit of Christine Odell dated 5 June 2021 at [144].
becoming ever more involved in Mrs Benn’s life and decision making until the events starting in November 2019.
[54]Ms Waters swore that after her sister’s return her contact with her mother became more difficult. She gave the following evidence:27
Over the last few years, it became increasingly difficult to visit the Deceased as Christine was always present when I saw her. Often, Christine would lecture me about my life and she would bully me. Christine was always saying that, ‘You’re leaching off the government and mum.’ I couldn’t bear it so rather than have arguments with Christine, I stopped visiting and spoke to the Deceased on the telephone instead. I spoke to the deceased by telephone at least three times per week until Christine changed the deceased’s telephone number and told me not to contact her.
[55]There was no challenge to this evidence. Further, it has the ring of truth. Ms Odell, in fact, held the view that her sister was leaching off her mother, reflected inter alia in text message she sent to Ms Waters.28
[56]As I have noted, Mrs Benn appeared to see Ms Odell as most likely to manage her affairs properly out of her three children. As subsequent findings will reveal, Mrs Benn came to rely entirely on Ms Odell in the management of her affairs, financial and personal, as reflected in events from December 2019 until Mrs Benn’s death on 6 August 2020.
Ms Waters is asked to leave the House
Did the House have to be sold?
[57]It is uncontentious that on or about 27 December 2019, Mrs Benn and Ms Waters were involved in telephone conversations in which Mrs Benn told Ms Water that she intended to sell the House. Not surprisingly, that precipitated a crisis for Ms Waters. There is no evidence of any prior suggestion that Ms Waters would have to move. The last reliable reference point I have in the evidence as to Mrs Benn’s attitude to the House is the will of June 2011.
[58]A question then arises as to why the change of heart occurred and occurred so suddenly. There is evidence that Mrs Benn’s reason for selling was that she needed money for her own purposes:
27 Exhibit 1, Affidavit of Phillipa Anne Waters dated 29 April 2021 at [58].
28 See, for example, the text sent by Ms Odell at 6.30am on 30 December 2019 in Exhibit 1, Affidavit of Phillipa Anne Waters dated 29 April 2021, page 9 (“Yes you have had a dream life at mums expense for so long and yet you have no compassion for her circumstances”). See also the vituperative text cited at page 12 of the same affidavit:
I should inform you that I am a justice of the peace and work every weds on these matters… greedy children trying to wrought every last dime from their sick elderly mother that has allowed her to live rent free in her house for 28 years while she goes surfing every day and collects a disability pension…
(a)Ms Odell swears that in the 27 December telephone calls, her mother said “Phillipa, the house has to be sold, I need the money...”.
(b)The declaration document apparently signed by Mrs Benn and dated 29 January 2020 (the Declaration), purporting to explain her small legacy to Ms Waters in the Will (dealt with in more detail from paragraph [109] – [115] below) stated:29
I was a self-funded retiree, however due to the global financial crisis and loss of funds and decreased superannuation, I found that I did not have enough money to survive and I could not obtain an old age pension due to my ownership of my home that Phillipa was living in rent free, I was ineligible.
[59]I would not treat these pieces of evidence as reliable without corroboration because:
(a)Of my rejection of Ms Odell as a credible or reliable witness;
(b)Of my concerns about Ms Odell’s undue influence over the Declaration; and
(c)Of the odd nature of the assertions the Declaration contains. The Global Financial Crisis had done its damage to asset values long before June 2011. Yet Mrs Benn clearly had no concerns about her position at that time when she made the 20 June 2011 will.
[60]Despite that, I think it more probable than not that concerns about her financial security contributed to her decision to sell the House. There are some factors which might suggest the contrary.
[61]First, as I have noted, Mrs Benn sold her unit at Burleigh Heads some time in or about 2011. It is unclear what become of the sale proceeds of that unit. Her Gold Coast retirement unit appears to have cost some $170,000 to acquire (seemingly on some form of lease agreement terms as explained in the refund letter).30 It seems a unlikely that that would have absorbed all the sale proceeds of even a modest unit in Burleigh Heads. The Benns clearly had considerable resources, around the time that unit was purchased so it is likely it was a comfortable home unit. It is difficult to see what became of the balance of any sale proceeds, though it might have been spent on living costs.
[62]Second, Mrs Benn’s bank statement for day to day needs for the period May 2019 to March 2020 show that her inflows and outflows were in substantial equilibrium. The inflows primarily came from a pension or annuity of some kind provided by Australian Retirement Scheme (“ARS”). They were in the form of monthly payments of $1690.83 and occasional
29 Exhibit 1, Affidavit of Phillipa Anne Waters dated 29 April 2021, page 43.
30 Exhibit 1, Affidavit of Phillipa Anne Waters dated 29 April 2021, page 2.
advances of other, sometimes larger amounts.31 The outflows can be seen to be ordinary living expenses. They do show that Mrs Benn was meeting her daily living expenses from her ARS pension as at December 2019, at least insofar as this account was concerned. There was no evidence of any other account held by Mrs Benn, though of course, one might have existed. Nor was there evidence of debts accruing or a large liability looming for Mrs Benn. Ms Odell was cross examined about this apparent economic stability. Her responses were neither direct nor helpful, even when being asked about uncontentious bank statements in her own affidavit.
Ultimately, her position was that despite the evidence of those statements, her mother told her that she was running out of money.
[63]Despite those two considerations, however, it seems to me that Mrs Benn was concerned about her financial position. There is a good basis to infer that Mrs Benn was reaching the end of her ARS pension. It can be seen from her personal statements that the monthly payments from ARS appear to have stopped in March 2020. There is no evidence of any further such payment that I can locate. Rather, from about June 2020, Mrs Benn starts to receive a Centrelink pension, and in an initial sum suggesting some backdated payments.32 Further, there is no evidence of any other substantial resources being available to her at that time. It is reasonable to infer that she would have been conscious that her cancer might require financial resources for its treatment and that she might need funds for care as her illness worsened.
[64]Mrs Benn managed her own affairs for many years, and it seems to me she was quite capable of understanding her financial position in 2019. I think it more probable than not that Mrs Benn did perceive a need to take steps to improve her financial position towards the end of 2019 and, on the evidence before me, there was no obvious solution other than to sell the House.
[65]Of course, Mrs Benn did not just sell the House. There was much more to it than that. Mrs Benn informed Ms Waters, without warning, that she was selling and then seemingly left it to Ms Odell to execute the demand for possession, as will be seen, in a callous and hostile manner accompanied by exclusion from any benefit under the Will made less than a month later.
[66]What is the explanation for such a radical change in attitude to Ms Waters from the benevolent position in 2011, even allowing for Mrs Benn’s need to sell the House? In my view, one has to look to Ms Odell’s role to find the answer, as will be explained next.
31 Note that the one off credits have the same account number as the ARS monthly payments, just organised differently. See for example the $5000 advance on 7 January 2020 and the monthly payment on 17 January 2020: Exhibit 7, Affidavit of Christine Odell dated 5 June 2021, page 137.
32 See 14 July 2020 payment of $2,792.24 at Exhibit 7, Affidavit of Christine Odell dated 5 June 2021, page 60.
The conversations on 27 December 2020
[67]Ms Waters’ version of the conversations on 27 December 2020 is as follows:33
On or about 27 December 2019 the deceased telephoned me to tell me that she had to sell the house at Skennars Head and that I had to move out. I could hear Christine in the background telling mum what to say to me. The deceased and I had a conversation to the following effect:
The Deceased: “I have got something to tell you”. Me: “Are you okay?”
The Deceased: “We have decided to sell the house”. Me: “What?”
I could hear Christine in the background, and I said to the Deceased: Me: “I can hear Christine. Is she there with you?”
The Deceased: “Yes she is”
Christine: “What did she say?”
The Deceased: “We have decided to sell the property.”
Me: “But you said you would never sell it. I have nowhere else to live.”
Christine: “What did she say?”
Me: “Mum, is Chris telling you what to say?” The Deceased: “No. No.”
Me: “Mum, I can’t talk right now. I have to go and speak with Aaron.”
I was very upset. After approximately an hour or so I telephoned Mum back and we had a conversation to the following effect:
Me: “Mum, where am I going to go?”
The Deceased: “You can live with Christine. She said it was okay.” Me: “But you know we don’t get along.”
At no stage did Christine offer for me to live with her.
[68]During cross examination, it was put to Ms Waters that Mrs Benn told her, during those telephone conversations, that the House needed to be sold because Mrs Benn needed money. Ms Waters rejected that proposition.34 Ms Odell’s version otherwise differs only in minor respects as to what she overheard and what Ms Waters recalls Mrs Benn saying.
[69]I accept Ms Odell’s evidence that Mrs Benn gave a reason for needing to sell the House, despite Ms Waters not accepting that suggestion. I do so because, given my findings as to her financial need, I find it likely Mrs Benn would have said something about that matter. Further, the conversations would have been a shock for Ms Waters and that comment
33 Exhibit 1, Affidavit of Phillipa Anne Waters dated 29 April 2021 at [59].
34 TS1-100.
could have been overlooked by her and not recalled. I do not think it unusual Ms Water does not recall this comment.
[70]I also accept Ms Odell’s evidence that she suggested to her mother to tell Ms Waters that Ms Waters could move in with her. That is corroborated by Ms Waters. However, I do not think the offer was made bona fide to assist to resolve the situation, rather the contrary. Ms Odell, at this stage, harboured unbridled hostility to her sister, as demonstrated by her text messages and conduct in the succeeding days. I infer she knew her sister would reject such a suggestion out of hand. It was only suggested by Ms Odell to make her sister look worse in her mother’s eyes.
[71]I otherwise do not accept Ms Odell’s evidence about the conversations or her mother’s reaction to them. There is no independent evidence to corroborate her account and some of the statements she ascribes to her mother are self-serving and unlikely. For example, I reject her evidence that Mrs Benn was frightened by the call. Mrs Benn could have been emotional or stressed, but there is no other evidence independent of Ms Odell to justify the conclusion that Mrs Benn feared Ms Waters. Indeed, the evidence suggests that Mrs Benn was an independent and strong-willed woman.
Ms Waters vacates the House
The demand for possession
[72]From 27 December 2019, Mrs Benn had no further direct dealings with Ms Waters, at least, concerning the property. All dealings were between Ms Waters and Ms Odell. There is no independent evidence of whether, and to what extent, Mrs Benn was involved in what followed. Most of what followed is not contentious, at least in its main features.
[73]On 29 December 2019, just two days after the phone conversations, Ms Odell came to the House. Ms Waters says Ms Odell arrived at 6.00am, banged on the door and yelled at Ms Waters “get out I own this property”, and that she left a note on the door that said she had to vacate by 4 January 2020.35 Ms Odell’s affidavit in response does not cavil with any of those specific allegations and exhibits documents which she says she left in the front door.36
[74]Ms Waters says she did not see any such documents as are exhibited by Ms Odell. Rather, she says that the document left was handwritten by her sister. I am inclined to accept Ms Waters’ evidence on this matter, given my findings on Ms Odell’s credibility and reliability. However, even if Ms Waters is mistaken about this, the letters propounded by Ms Odell reflect poorly on the drafter.
35 Exhibit 1, Affidavit of Phillipa Anne Waters dated 29 April 2021 at [60] – [61].
36 Exhibit 7, Affidavit of Christine Odell dated 5 June 2021 at [165].
[75]The first document is called “COVER LETTER”. It provides:
To Phillipa Waters c/- 10 Carroll Ave Skennars Head 29th December 2019
Dear Phillipa
I want you to leave my home at 10 Carroll Avenue Skennars Head
I have asked you to leave my property, and you have refused to do so.
I now have no other option but to use the law to make you leave. Please read the attached Notice to Vacate.
[76]The brief conversations on 27 December 2019 provide no reasonable basis to conclude that Ms Waters had refused to leave the House, much less that there was no option but to use the law to make her leave. That letter is a transparent attempt to fabricate facts, not to articulate facts. Further, the statement that there was no option but to use the law to make Ms Waters leave the house, just two days after a demand for possession following decades of uncontested occupation, is risible.
[77]The second document is headed “NOTICE TO VACATE”. It provides:
To: Phillipa Waters
About: 10 Carroll Ave Skennars Head
I withdraw permission for you to continue to live in my property. You should vacate the premises by 4th January 2019.
If you don’t leave by this date you will be in breach of section 4 of the Inclosed Lands Protection Act 1901 and will be trespassing on the property.
I will report your trespass to the police and ask the police to remove you from the premises. I may also remove your personal belongings from the property and change the locks without giving you any further warning.
[78]This Notice reflects a hyper aggressive and wrongheaded approach to regaining possession. It refers to an irrelevant statute. It assumes that the police would involve themselves in a forced retaking of possession without a Court order, something which is uncommon. It threatens retaking possession and disposal of belongings in a manner which is at least suggestive of doing so regardless of any resistance which might be offered by Ms Waters. There was nothing to justify that threat. More such threats were to follow.
[79]This Notice also reflects a callous disregard of the personal position of Ms Waters who had been in occupation of the House for 25 years. There had been no suggestion to Ms Waters of a reconsideration by Mrs Benn of her benign attitude to her occupation of the House until just two days prior. It was cruel and ridiculous to expect Ms Waters to be able to move within the time period nominated.
[80]The two letters appear to be signed by Mrs Benn on 29 December 2019.
[81]As I have said, I am inclined to accept Ms Waters’ evidence that these documents were not left at the House by Ms Odell on 29 December, though Ms Waters says she does not retain the original of the document that was left behind. Ms Waters might be mistaken. Certainly, a demand to vacate by 4 January 2020 was included in whatever documents were left. However, even if she is mistaken and these documents were delivered, they represent an aggressive, unjustified, callous and deceptive response to the situation. If they were truly adopted and understood by Mrs Benn, then her behaviour was reprehensible. If the true guiding mind of these two documents was Ms Odell, then her behaviour was of the same character.
[82]The latter could easily be true because:
(a)It is plain from her messages at the time Ms Odell that was an enthusiastic proponent of a callous and aggressive approach to her sister;
(b)Ms Odell was, by this time, Mrs Benn’s primary adviser and support; and
(c)Ms Odell undoubtedly typed these documents (as she typed the Declaration) because Mrs Benn did not type. This means that Ms Odell had every opportunity to shape the text. She is also the one who found the Act referred to in the Notice.37
The text exchanges with Ms Odell: 29 and 30 December
[83]On 29 and 30 December, there followed an intense series of texts between Ms Waters and Ms Odell. The exchanges on Sunday, 29 December are of particular significance. They covered just 23 minutes.38 They proceeded as follows:
Ms Odell: This is my mob
Mum has clearly stated she will change her Will if you continue to not assist me in selling the house. You need to call me and only me to discuss. Mum is willing to allow you to buy another property up to $500,000 and you will be responsible for your own costs. If you do not contact me by this Tues , the police will be escorting me with a locksmith on the 4th Jan and you will be removed from the house.
She is very firm and angry disappointed hurt that you have treated her like this when she has been nothing but a loving generous and supportive mother all these years. If you continue to block or hinder the sale you will not receive a house and you will need to find your own accommodation.
37 TS2-63. Cf TS2-61.42.
38 Exhibit 1, Affidavit of Phillipa Anne Waters dated 29 April 2021 at [62].
Ms Waters:I want everything you just said, on a legal document. Signed by mum., and a lawyer. I will give you contact details of my lawyer when I get one. They are all on holidays. Maybe my lawyer will tell me it won’t stand up in court….. I have no money. No where to go. And have been lied to for 25years by my mother My loving
family……
Not up to 500 but definitely 500.
Ms Odell:and ant judge will have you arrested for defrauding the govt for all these years.. getting a disability pension and surfing every day
That will come out and because of that last msg you will not be getting anything… mum has a solicitors appointment Monday to change will.
MsWaters: And also that money is to be deposited in my account. As soon as the sale of the house goes through. All in writing signed by mum.
Ms Odell: Nope you are getting nothing.
Ms Waters:What. Happened to you to make you such a nasty manipulative person… You need to ask god to help you.
MsOdell: Mum has said that if you respond with any demands you are out and no inheritance.
You had better think very carefully about the next message you send me. If I don’t see a humble and appreciative and cooperative response by tomorrow morning the Will will be changed and you will not be entitled to anything further.
You will lose as you have no legal right to stand on.
[84]I note the following:
(a)First, Ms Waters purported to accept the offer of funds from the sale to secure a further home. She tried to bargain for the maximum amount offered and to secure that with legal documentation that would ensure money would be deposited to her account “as soon as the sale of the house goes through”;
(b)Second, Ms Odell again makes intemperate threats of involvement of the police and forcible ejection and threats of arrest for fraud;
(c)Third, despite the character of Ms Waters’ response to the offer of funds for another house, Ms Odell reports that her mother has decided Ms Waters is getting nothing; and
(d)Fourth, the tone of the messages from Ms Odell suggests that she, as much as her mother, is making decisions about the conduct of Mrs Benn affairs in relation to the House: i.e. If I don’t see a humble….
[85]Ms Odell in cross examination suggested that Ms Waters had demanded that the money be paid into her account straightaway and that there was a text to that effect missing from the exchange set out in Ms Waters’ affidavit. When Ms Water’s counsel challenged this she asserted imperiously to the cross examiner: “So there is a message missing sir”.39 There is no evidence of any such text. In fact, photos of the text exchange appear in her own affidavit.40 I reject her evidence.
[86]The tenor of text messages sent on 30 December is similar and they need not be set out in full. The gravamen of the exchange is as follows:
(a)Ms Waters sends a text in the early hours expressing her anxieties about her personal position, having no rental history, no money for bond and having to find accommodation and removalists over the holiday period;
(b)Ms Odell responds stating:
Yes you have had a dream life at mums expense for so long and yet you have no compassion for her circumstances… it is time to take responsibility for your life.
You can rent a room on housemates.com or secure a caravan for a couple of months until it is sold… if you changed your attitude and were grateful and reasonable to work with we could have talked.
If when I attend with the real estate agent tomorrow and gardener you don’t interfere you may store your belongings at the house. Put all in one area as I will be living there until it is sold.41
[227]To ignore costs and indemnity issues where those issues materially affect the size of the estate in a way which impacts on what, in any view, would be adequate provision would be to fail to give effect properly to the statutory provision. Indeed by ignoring the impact of costs and indemnity issues, the court would be ordering provision on the basis of an estate which is materially different in size to the estate that in fact exists. In that context, it might be argued that the court’s orders for provision would not be proper in the circumstances of the case. None of this need trouble the Court where costs issues are not materially in dispute or where the estate is of a size that costs issues do not materially impact on the determination of adequate provision. Neither condition applies in this case.
[228]The court’s task is to make a final order which makes such provision it considers fit from the estate of the deceased. Where it is necessary to consider costs and indemnity issues in forming a view as to the size of the estate properly to exercise that jurisdiction, it must do so, despite the existence of some uncertainty as to the final size of the estate.
[229]It is not open to the Court to make some kind of “interim” order and then make a further order when costs issues are resolved because an order for
Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.” Joseph Heller, Catch 22 (Vintage 2004 ) Ch. 5, page 52.
provision is a once and for all order. That point is made clear on the terms of the statute. The express provision for variation of an order in the Act is limited to variation of a narrow range of orders such as those made for payment of a periodic sum or similar. Variation can only be made within very limited parameters.104 That suggests that orders are otherwise final orders.
[230]The authorities support that view. In Queensland, the law was stated by the Full Court of the Supreme Court in Re McGregor Deceased [1956] St R Qld 596. In that case the Full Court was considering the validity of an order made under the then applicable Testator Family Maintenance Act 1914. Pursuant to that Act provision was made for an applicant under an order of Hart AJ in 1938. His Honour’s orders reserved leave to any person interested in the estate to apply from time to time to vary the order for provision. Before Brown AJ, this reservation of leave was found to be invalid because an order under that Act was held to be an order made once and for all. Brown AJ undertook a detailed review of the authorities to reach that conclusion. On appeal, Macrossan CJ (with whom Stanley and Hanger JJ agreed, Hanger J adding his own comments), observed:105
The appellants are two daughters of the abovenamed William McGregor who died on 9th March, 1937, having made a will of which probate was granted by this court in November 1937. This will made certain provisions for the benefit of the appellants and their brother, one Ian McGregor. In 1938 the appellants and Ian McGregor applied by summons for an order that adequate provision for their proper maintenance and support should be made out of the estate of the testator.
The application was heard by Hart A.J. on 20th May, 1938. He ordered that certain sums should be paid to each of the then three applicants free of duties out of the capital of the estate and further ordered addition to the benefits given to them by the will of the testator. His order also contained the following provision: “And I do further order that leave be reserved to the said Jessie Russell the said Christina McGregor and the said Ian McGregor or any of them and to any other person or Company interested in the estate of the said William McGregor deceased to apply for such variation of this order or for such direction as may be thought fit”.
In a considered judgment in which he reviewed a number of authorities on the construction of The Testator’s Family Maintence Act of 1914 and of similar legislation in the other Australian States and in New Zealand, Brown A.J. came to the conclusion that this court has no power to make an order under the Act reserving leave to an applicant to make a further application for further provision out of the estate and therefore that he had no jurisdiction to make the order sought. Accordingly he dismissed the application. In coming to this conclusion Brown A.J. expressed his agreement with the opinion of Salmond J. in Welsh v. Mulcock ([1924] N.Z. G.L.R. 169, at p. 178), expressed as follows:
If, having regard to the facts at the date of death the testator has fulfilled his whole duty to his family no order under the Act can be made then or at any time thereafter. If, on the contrary, the testator, having regard to such facts, has failed in his duty to any member of his family, the claimant is there and then entitled to a final order in his favour. The provision made
104 See Succession Act 1981 (Qld) s 42(1).
105 Re McGregor Deceased [1956] St R Qld 596, 607 – 608.
by such an order cannot be subsequently increased although it may be reduced or cancelled under the express and perhaps illogical provisions of
ss. 33 subs. 13, of the Act (that is, of the New Zealand Act).
[…]
In my opinion the decision of Brown A.J. is correct and I find it unnecessary to add very much to the reasons given by him in his careful judgment.
[231]To my mind, there is no material distinction between the provisions before the Full Court and the terms of ss 41 and 42 Succession Act.106
[232]Recognising that an order under s. 41(1) is a “once and for all” order, it follows that where issues of costs and indemnity arise and are material to the outcome, the Court must do its best in making a final order to accommodate the possibilities that may arise from the determination of costs issues in identifying the estate which is available and the order to make. This is no different in substance from the task of a court making a once and for all order in proceedings for damages in contract or tort, where matters relevant to the nature and extent of loss remain uncertain at the time of judgment. Most recently, the Court of Appeal reiterated the applicable principle:107
[42]The assessment of damages by the learned trial judge was attended with some difficulties, particularly caused by the limitations of the evidence on some points. However, it has long been held that difficulty in estimating loss does not excuse the court from that task. As was said in Commonwealth v Amann Aviation Pty Ltd:
The settled rule, both here and in England, is that mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can. Indeed, in Jones v Schiffmann Menzies J. went so far as to say that the “assessment of damages … does sometimes, of necessity involve what is guess work rather than estimation”. Where precise evidence is not available the court must do the best it can. And uncertainty as to the profits to be derived from a business by reason of contingencies is not a reason for a court refusing to assess damages.
[233]Applying these principles to this case, I have decided that the Court ought to make an order for further provision for Ms Waters in the amount of
$280,000 (in addition to her legacy of $20,000).
[234]I explain my approach as follows.
[235]First, consistent with my analysis of notional provision from the estate at the date of death in paragraphs [209] to [217] above, I consider that where the estate is $300,000 or more, adequate provision requires provision for a
106 That is also the position in Victoria: see In re Butler [1948] VLR 434, 435.3, where the Full Court adopted the more detailed statement in In re Breen [1933] VLR 455. See also Cotton v Owen [1999] SASC 391, applying those cases in South Australia.
107 Tulloch Brae Pty Ltd v Environmental Protection Equipment Pty Ltd [2022] QCA 97.
total of $300,000 to Ms Water before further provision is made for Rodney or Ms Odell.
[236]Second, there is presently over $300,000 in funds in the estate. There are two principal contingent claims on those funds. Ms Odell’s claims for indemnity for further costs of about $60,000 and Ms Waters costs claims against the estate for about $150,000. Both are contested. Doing the best I can at present, I think there is a real prospect that some limits might be imposed on further indemnity for costs for Ms Odell given my findings. As to Ms Waters’ costs, the worst realistic case scenario for her is that she does not obtain indemnity for her costs. In that case, those funds will remain available in the estate. For those reasons, I consider that an order for provision for $280,000 on top of the existing legacy is a proper one to make, doing the best I can to assess the contingencies which might affect the size of the estate.
[237]I am conscious that ultimately, there might be more available in the estate than the funds required to meet the order for further provision. If that occurs, of course, the balance will go to the residuary beneficiaries. Of course, it is possible that orders as to costs and indemnity might mean that the net estate available to meet the order is less than $280,000. If that occurs, it seems to me that the result is that the personal representative would have to meet the order of the Court to the extent it was possible to do so. In Official Receiver v Schultz (1990) 170 CLR 306, the High Court dealt with the character of an order for further provision under s. 41(1) as follows (at 315):
The wide powers conferred by s 41 and the manner in which sub-s (10) is expressed strongly suggest that the effect of an order under the section is not to change the benefits to be expected from the right to due administration arising pursuant to the will, but to superimpose upon the duty of due administration a judicial order made pursuant to statute. In other words, a new and independent obligation is created which has an impact upon the way in which the executor administers the estate pursuant to his or her existing duty, by compelling him or her to comply with the terms of the court's order.
[238]Although not expressly stated in Schultz, it must be the case that the personal representative is compelled to comply with the order as part of the due administration of the estate to the extent that the he or she has assets in his or her hands to do so. Of course, if the personal representative cannot meet the order of the Court because of his or her own default after the orders are made, that position will be different.
OTHER ISSUES
[239]Given Ms Odell’s conduct so far as EPA, executor and witness in these proceedings, there are compelling reasons to doubt that she can be relied upon properly to carry out the further administration of the estate in accordance with the Court’s orders and the law. Her counsel submitted that Ms Odell had never been removed as executor. However, that factual
circumstance can hardly absolve Ms Odell of her conduct as attorney and propounded while executor, which is described in these reasons.
[240]This Court does not have general trust or succession jurisdiction. Plenary jurisdiction to resolve issues arising in the administration of deceased estates is conferred most directly and efficiently by provisions of the Succession Act. The most prominent example is s 6(1) Succession Act. That jurisdiction in not conferred on this Court. Further, this Court is not a “Court” under the Trusts Act 1973 (Qld). As I have written elsewhere, this Court’s specific trust and administration jurisdiction is of limited scope.108 It is highly improbable that this Court has original jurisdiction to, inter alia, remove an executor. However, that is not the end of the inquiry in this particular situation.
[241]Section 69 District Court of Queensland Act 1967 (Qld) (DCA) provides:
69 Powers of District Court
(1) Subject to this Act and to the rules of court, the District Court has, for the purposes of exercising the jurisdiction conferred by this part, all the powers and authorities of the Supreme Court, including the powers and authorities conferred on the Supreme Court by an Act, and may in any proceeding in like manner and to like extent—
(a) grant such relief or remedy; and
(b) make any order, including an order for attachment or committal in consequence of disobedience to an order; and
(c) give effect to every ground of defence or matter of set-off whether equitable or legal;
as may and ought to be done in like cases by a judge of the Supreme Court.
Example of power conferred on the Supreme Court by an Act—
The power of the Supreme Court under the Land Title Act 1994, section 127 (Removing a caveat) to order that a caveat be removed.
(2) Without affecting the generality of subsection (1) , the District Court shall, in any proceedings in which jurisdiction is conferred under this part, have power to grant relief—
(a) by way of a declaration of rights of the parties; and
(b) by way of injunction, whether interim, interlocutory or final, in the proceedings; and
(c) by staying the proceedings or part thereof; and
(d) by appointing a receiver including an interim receiver.
[242]It is the essence of judicial power that decisions of a court are binding, authoritative and carried into effect. In Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434, 451, Barton J adopted the following definition of judicial power which had been given by Justice Miller of the Supreme Court of the United States:
108 Judge Bernard Porter, ‘The Jurisdiction of the District Court in Trust and Succession’ (Speech, STEP Queensland Lunchtime Seminar, 21 September 2021) [45] [65].
It is the power of a Court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision.
[243]Barton J then said:
It is important to observe that the judicial power includes with the decision and the pronouncement of judgment the power to carry that judgment into effect between the contending parties. Whether the power of enforcement is essential to be conferred or not, when it is conferred as part of the whole the judicial power is undeniably complete.
[244]Similarly, in Australian Pipeline Limited v Alinta Limited [2007] FCAFC 55 [83], Finkelstein J stated:
…to be "binding and authoritative", a decision must be enforceable. The doctrine of enforcement is of ancient pedigree. It is the formal process by which a party entitled to the benefit of a judgment may obtain that benefit. It is the “practical forcing power of the law” which carries the judgment into effect: Freeman on Executions, 2nd ed, 1888, 2. In Re A Company [1915] 1 Ch 520, 527 Phillimore LJ explained that “it is the old common law process by which the sheriff in obedience to one of the common law writs procures for a judgment creditor the fruits of his judgment.”
[245]If after hearing the parties on the matter, the Court were to conclude that it was unlikely that the estate would be properly administered by Ms Odell to give effect to the orders made by the Court on the application, the exercise of the Court’s jurisdiction on the application will likely be frustrated. My tentative view is that, consistent with s 69 and the authorities stated above, in this particular case the powers of the Supreme Court to remove Ms Odell as executor and appoint another personal representative would arise under that section. I flag that merely as a matter for the parties to consider.
[246]I will also hear the parties as to the further directions required to resolve the other issues which arise from this judgment on questions of costs of the applicant or the respondent and on any entitlement to indemnity for the respondent’s costs from the estate.
ORDERS
[247]I order that further provision be made for the applicant in the amount of
$280,000.
[248]I will hear the parties as to costs and any other issues arising from these reasons.
4
8
4