Williams v Legg

[1993] HCATrans 282

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S37 of 1993

B e t w e e n -

ROBIN KENNETH WILLIAMS

Applicant

and

RICHARD JOHN LEGG

First Respondent

VALERIE JOYCE DUNCAN

Second Respondent

Application for special leave

to appeal

BRENNAN J

Williams 1 17/9/93

DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 SEPTEMBER 1993, AT 3.11 PM

Copyright in the High Court of Australia

MR P.L.G. BRERETON:  May it please the Court, I appear with

my learned friend, MR M.K. MEEK, for the applicant.

(instructed by Stewart Cuddy & Mockler)

MR w. HAFFENDEN:  May it please the Court, I appear with my

learned friend, MR D.K. JORDAN, for the second

respondent. (instructed by K.J. Minotti & Co)

MR R.J. LEGG:  If it please the Court, I seek leave to

appear as a litigant in person.

BRENNAN J: Yes, Mr Brereton.

MR BRERETON:  Could I hand to Your Honours an outline of

submissions which I propose to make, together with

some material to which it may or may not become

necessary to refer? My learned friends already
have the material, and I will just hand them a copy

of the outline.

When, in 1982, the Family Provision Act was

enacted in New South Wales, it extensively amended

the law relating to testators family maintenance in
this State. But it did so most notably, as the

Leader of the Government in the Upper House said

when introducing the law, in two major respects.

The first was to extend or widen the classes of

persons who might make an application for provision

out of a deceased estate. The second was to extend

the range of property in respect of which an order

for provision might be made.

The first of those objects was achieved by

adding new categories of what were defined as

"eligible person" to the traditional categories of

"spouse" and "child", and those new categories

included de facto spouses, former spouses and

relevantly, for present purposes, sometime

dependants of the deceased who were the deceased's	grandchildren or sometime members of the deceased's	household, or perhaps more accurately put, sometime
members of the same household as the deceased.

The second object of the amendments was

attained by introducing from the law of stamp duty

the concept of notional estate and authorizing the

court to designate as "notional estate" of a

deceased person, property which the deceased had

parted with in limited circumstances prior to the

deceased's death or property which had been

distributed from the estate after death.

In both of those expanded areas of

jurisdiction conferred by the Act, however, the Act

also imposed safeguards to limit the new extended

Williams 2 17/9/93

operation of the field. In respect of the new

categories of "eligible persons", it did that by

imposing a legal hurdle which those persons had to

jump which the more traditional categories of

applicants did not, and that was the requirement to
show factors warranting the making of their

application in addition to mere eligibility.

The ability to designate notional estate,

likewise, was hedged with a large number of

conditions and considerations to which the court

had to have regard and if the order were sought in

an application made out of time, then what were

described in the Act as "special circumstances" had

to be shown before a designating order could be

made.

The present case concerns an extreme set of

facts which sets up for consideration most of the

hurdles which an applicant has to jump before one even approaches the exercise of discretion by the court. It focuses on the two areas of new law

introduced by the 1982 amendments, namely, category

(d), eligibility, to which I will come in a moment,

and factors warranting the making of such an

application, and designating notional estate where

special circumstances must be shown in an

out-of-time application.

Your Honours have a copy of the Act, and could

I take Your Honours, in turn, to those aspects

which are relevant for present circumstances? In

the definition section, section 6, which appears on
page 4, I think, of the reprint, there is set out
at about point 5 the definition of "eligible
person". For present purposes, the relevant part

of that definition is subparagraph (d) which

constitutes as an "eligible person":

(i)      who was, at any particular time, wholly

or partly dependent upon the deceased

person; and
(ii)	who is a grandchild of the deceased
person or was, at that particular time or
at any other time, a member of a
household of which the deceased person
was a member.

In the present case Mrs Duncan, the successful applicant, was, at the time of the trial before

Mr Justice Bryson, 69 years of age. Her claimed

eligibility depended upon events which occurred

some 64 years earlier when she was five years of

age when, for a period of six months during her

mother's illness, she stayed, on a temporary basis,

Williams 3 17/9/93

in her grandparents' household in which the

deceased, her aunt, was also resident.

She stayed there while her mother recuperated

from an illness, and returned to her mother's home

six months later. During that time, the trial

judge found and the Court of Appeal accepted, the

deceased, amongst others, prepared meals for

Mrs Duncan, schooled her on Thursdays at a

kindergarten which the deceased conducted, prepared
cut lunches for her when she went to school, took

her on picnics and outings. It was a finding at

first instance and not challenged on appeal that

there was no financial dependency.

In those circumstances, the trial judge found and the Court of Appeal accepted that Mrs Duncan

was both dependent upon the deceased during that

period of six months and a member of the same

household as the deceased, that is, the household

of the deceased's parents. In doing that, the
court rejected the proposition that dependency was

limited to financial dependency.

There has been considerable controversy in the

New South Wales courts as to whether financial

dependency is a necessary element of dependency.

Some cases have held that it is. The Court of

Appeal, more recently, has accepted the view that

it is not.	The cases which are in the bundle which
I have handed up illustrate that development.	The
earlier ones focus on financial dependency, the
latter ones and ultimately, the present case,

points to circumstances in which dependency other

than financial will suffice.

BRENNAN J: It may be other than financial. Is it other

than pecuniary? In other words, is it such that no

value can be put upon it?

MR BRERETON:  In Petrohilos v Hunter it has been put and

accepted by the Court of Appeal that even though

the services provided may have no financial value,

there can still be a dependency. What was

effectively said in that case was that though a

mother may have no separate financial resources or

income of her own, a child is commonly said to be

dependent upon the mother as well as the father

because the mother provides various services for

the child.

Even if that be so that a child may be said to

be dependent upon a mother, notwithstanding the

absence of any financial provision by the mother, a

child is not commonly said to be dependent upon his
or her school teacher nor, in my submission, upon

his or her nanny. And a nanny is perhaps the

Williams 17/9/93

closest analogy, though perhaps a more generous

analogy, than that which the deceased fulfilled in

the present case.

BRENNAN J:  Why do you say "nanny"? Who paid for the

sandwiches?

MR BRERETON:  There was no evidence as to who paid for the

sandwiches. It was certainly not established that

Mrs Phillips, the deceased, paid for the

sandwiches. His Honour, at first instance,

thought, and the Court of Appeal accepted, that no

financial dependency and no payment on the part of

Mrs Phillips was established.

BRENNAN J: But when you say "financial dependency", you

gave the illustration of the mother. As between

the mother and the child there is the rendering of

services which, in a Griffiths v Kerkemeyer

assessment, for example, would certainly result in

an award for damages because it has a value to the

recipient.

MR BRERETON: That is certainly so in the Griffiths v

Kerkemeyer sense. Perhaps what I should do is to

go to an unreported decision of the Court of Appeal

in which the two opposing views are dealt with.

BRENNAN J: Must you not go to the judgment here to show

that the error is manifest on the face of the

judgment, so that if you were to be granted special

leave, the issue would arise crisply for

determination?

MR BRERETON:  I can certainly do that, if the Court pleases.

The Court of Appeal deals with the question of

page 68 what the trial judge has said, the Court of	dependency at page 69. After setting out at and refers to the case which I mentioned a few
moments ago, Petrohilos v Hunter in which
Mr Justice Hope had adopted the view that dependency did not necessarily mean and was not
necessarily limited to financial dependency and, at
the foot of the page, at line 25, sets out the
circumstances in which dependency was found in the present case. It is that passage which shows that
what the court was dealing with was the contention
that some element of financial dependency was
necessary.

BRENNAN J: Then, if you turn back to page 68 and the

finding that was made by the trial judge, at line

15 onwards, there are certain specific items of

care and food provided and then the judge goes on:

Williams 17/9/93

Mrs Phillips also gave Mrs Duncan much other

parental care and mothering, appropriate to an

aunt aged about 27 and niece aged about 5 -

doing various things there.	And the word that he
used is "gave" Mrs Duncan.

MR BRERETON:  The type of care that one would expect a nanny

to give.

BRENNAN J: A nanny does it for remuneration. There is no

suggestion of that here, is there?

MR BRERETON:  What is also significant is to note in line 14

on that page, Your Honour, that:

Mrs Duncan as a child of five or six was in

need of care and received it from close

relatives including Mrs Phillips in a

household of (at least) five -

so it is not as if Mrs Phillips was the only person

doing all of these things. She was one amongst at

least five involved in providing elements of care.

BRENNAN J: As a matter of principle, you would have to go

to the extent of saying that the provision of care

by a testator is insufficient to satisfy the

statute unless there is a financial component in

it.

MR BRERETON:  Or unless - well, I could put it two ways.

First, that way, unless there is a financial

component and, alternatively, unless the provision

of care is sufficiently significant to be more than

marginal or, to adopt the words used by

Mr Justice Priestley, more than minimal.

BRENNAN J: But then, adopting either of those, the first

question I would have thought you would have had to

give some indication as to where the error lies in

thinking that non-financial care is adequate and,

as to the second, there seems to be findings of

fact that it is more than minimal.

MR BRERETON:  As to the error of principle in finding that

something more than non-financial care is adequate,

perhaps the appropriate way of doing that is to

look, in passing, at some of the cases in which a

different view has been taken, and they are to be
found in the bundle which I have handed up.

The starting point is perhaps the unreported Court of Appeal judgment, McKenzie v Baddeley,

which Your Honours will find in the bundle, in

which the earlier cases, or some of them, were

considered. Mr Justice Priestley, with whom

Williams 6 17/9/93

Mr Justice Hope agreed, found dependency in that

case. Mr Justice Meagher did not.

Mr Justice Priestley, in finding dependency, at the foot of page 6 of His Honour's judgment, said:

The word "partly" in the phrase "partly

dependent" -

in the definition

is a word of some elasticity; it does not seem

to me in its context necessarily to mean

"substantially"; rather it suggests to me the

meaning of "more than minimally" or, perhaps,

"significantly".

As I have said, Mr Justice Hope agreed with that.

Mr Justice Meagher, in dissent, relied on what had

been said in this Court by Sir Harry Gibbs in

Aafjes v Kearney, and page 3 of

Mr Justice Meagher's judgment deals with that

where, commencing at about point 3, His Honour

says:

It is well established by the authorities

in this court that "dependent" in the Family

Provision Act 1982 refers to a financial,

economic or material dependency, not a mere

emotional dependency. So much was decided in

Ball v Newey, and again in Benney v Jones.

Further, judicial exploration of the legal nature of "dependency" may be found in the

judgment of Gibbs Jin Aafjes v Kearney.

His Honour then sets out what Sir Harry Gibbs

said in that case and the examples or instances

given by Sir Harry Gibbs, towards the conclusion of

that passage, are significant for present purposes.

About two-fifths of the way down the passage on the

second page, or perhaps earlier than that, about

the sixth line:

The fact that at the date of death a daughter

was being supplied with some of the

necessities of life by some third person does

not necessarily mean that she was not then
wholly dependent for her support upon her

father. Obviously enough if the assistance

provided by the third person was only

intermittent or casual, and unlikely to be

continued in the future, it would not prevent
the daughter from being wholly dependent on

her father. But even if the assistance was

substantial and likely to be continued, it

would not necessarily have the effect that the

child had to be regarded as a partial

Williams 17/9/93

dependent of her benefactor and therefore is

now wholly -

"and therefore is not" that should be -

wholly dependent on her father. For example,

a child whose home was in the country and who

lived with her grandparents while attending a

school in the city would not for that reason

alone cease to be wholly dependent upon her

father.

TOOHEY J: But that is looking at a different relationship.

It is looking at the relationship of child/parent.

MR BRERETON:  But it is analogous with this case in this

reside with her mother and resided for a short

sense, that the circumstance that the child -

time - six months - with her grandparents did not,

for that reason alone, cease to be wholly dependent

upon her mother and become, instead, partly

dependent upon her aunt.

TOOHEY J:  It depends why you are asking the question, does

it not? You are asking the question here in the

context of a particular piece of legislation which

speaks of dependency wholly or partly. I just do

not gain any assistance from the passage to which

you have taken us.

MR BRERETON: In Re Fulop, 8 NSWLR 679, which was, I think,

the first reported decision on the Family Provision

Act, a judgment of Mr Justice McLelland, which

Your Honours have, His Honour said, at page 682E:

In my opinion the expression "dependent upon" in par (d) of the definition of

"eligible person" connotes the provision of

what might broadly be described as financial

or material needs -

and then refers to the Social Services and Workers

Compensation legislation.

Subsequently, in the Court of Appeal, in

Benney v Jones, 23 NSWLR 559, Mr Justice Mahoney

said, at page 560, just after the letter E:

I agree with Priestley JA that, in

s 6(l)(d), "dependent" upon the deceased does

not mean emotionally involved with him.

Mr Justice Priestley, at page 565F, having cited a

passage from Mr Justice Samuels in Ball v Newey,

said:

Williams 8 17/9/93

Taking the last sentence in this passage

as his foundation, counsel for the plaintiff
submitted that a relevant dependency could

arise from solely emotional bases, with no

element of financial dependence being involved

at all.

The following paragraph:

I do not agree however that what was said

by Samuels JA supports the idea of the

possibility of dependency having no element at

all of financial dependence.

TOOHEY J:  Now, when you say "financial dependence", are you

distinguishing that from "material dependency",

because that is the language that is used in

several of these judgments?

MR BRERETON:	No, I would have to accept that "non-financial material dependency" would still be a dependency.
TOOHEY J:	One can see how a relationship that goes no

further, if it is possible to imagine one, than

emotional dependence, and nothing else, might be

outside the operation of the Act.	But we are not
concerned with that situation.

MR BRERETON:  Such an instance was assumed in one of the

cases.

BRENNAN J:  But we are not concerned with such an instance

here.

MR BRERETON: 

In the present case one is concerned, at the

highest, with, if there be a dependency at all, one
which was very limited in its scope and in its

duration.

BRENNAN J: Limited in its duration, many elements of

parenting and the provision of the kind of services

which parents frequently provide. Now, if that is

sufficient to establish material dependency, as

distinct from financial dependency, where is your

point?

MR BRERETON:  The point is twofold. First of all, that it

is insufficient to establish dependency at all or

more than minimal dependency but, secondly - and

this is the point to which I will come in a little

while - that even if it is technically sufficient

to establish dependency, when seen in the

circumstances of the membership of the household

question, then there are not factors warranting the

making of the application within the next hurdle.

BRENNAN J: That is a different point.

Williams 9 17/9/93

MR BRERETON: Before one gets to that next question, it is

useful to understand what, in my submission, is the

tenuous nature of the dependency, if any, at the

first instance.

BRENNAN J:  You have taken us to the finding on that, have you not, which was accepted in the Court of Appeal?

MR BRERETON:  Yes, Your Honour. Now, one then goes to the

next element of eligibility which is membership of

a household. At first instance, there are several

authorities and in Canada and in Victoria which

suggests that membership of a household requires a

degree of permanence and continuity of mutual

living. In this case, in my submission, there was

nothing more than a temporary arrangement not such

as to make the applicant, Mrs Duncan, a member of

the same household as the deceased.

The evidence which makes that good is

established in one of the two separate pages of

evidence which is in the bundle which has been

handed to Your Honours and it is that page which

bears the pagination 370 at the bottom right-hand
corner. In her cross-examination, when she was

being asked about this period of six months whilst

she was staying in her grandmother's house, she

said at page 370Q:

Q. During that period where was your mother?

A.	She went to stay with another sister living in Mosman.
Q.	Did you tell us that lasted about six months?

A: Yes.

Q. After that what happened.

A. My mother was better. We went back to the

flat at Mosman.

Q. Which had been your home before you went to

waverton to stay there?

A. Yes.

Q. Is is fair to say this period of six months

you spent in your grandparents home at

Waverton was, as far as you are aware, a temporary stay until your mother got

better?

A. Yes.

Now, the cases, in my submission -

BRENNAN J:	What was wrong with the mother?
MR BRERETON:	She had been seriously affected by her

sister's death. The mother's sister had died

suddenly and it had an effect on the mother's

health. It is apparent at the top of page 370 of

the transcript.

Williams 10 17/9/93

Now, in order to be a member of a household,

in my submission, there has to be a permanent and

not a temporary arrangement. All there was in this

case was a temporary arrangement that was

insufficient to satisfy the test for eligibility,

and Mrs Duncan was not therefore an eligible person

even if she did establish dependency.

TOOHEY J: What do you mean by "permanent"? Do you mean

continuous or do you mean something that goes on

forever?

MR BRERETON:  Yes, continuous; not necessarily forever

because no arrangement is necessarily forever but

it has to be with a view to being a lasting and not

a temporary arrangement. In this case, Mrs Duncan never, as it were, moved out of her home at Mosman.

The Mosman home was always her home. As soon as

her mother was better, that is where she went back

to. Waverton never became her home. She never

became a member of that household.	She went back
to her home.

Now, again, even if I am wrong on that issue,

the nature of the membership of the household is
highly relevant to the consideration of whether

there were factors warranting, and that then brings

me to section 9(1) of the Act. Your Honours will

see that that section provides that in an

application by a person who is eligible only under

category (c) or (d) the court is required first to:

determine whether, in its opinion, having

regard to all the circumstances of the case
there are factors which warrant the making of

the application and shall refuse to proceed

with the determination of the application and

to make the order unless it is satisfied that

there are those factors.

That was described by the Leader of the House in

introducing the bill as a safeguard to prevent an

unnecessary or excessive rash of applications by persons who were only eligible under the two new

categories of former spouse or sometime dependent.

The New South Wales courts have suggested that

"factors warranting" are those factors which, when

added to the circumstances establishing

eligibility, make the applicant a person who would

be regarded as the ordinary object of the

testator's testamentary recognition.

Mr Justice McLelland first held that in Re Fulop. The Court of Appeal has followed it in Churton v

Christian, and those cases are referred to in the

judgment in the present case at page 72.

Williams 11 17/9/93

In my submission, the purpose of section 9(1)

was to require that before an applicant could

succeed under category (c) or category (d), the

applicant had to not merely technically and barely

satisfy the requirements of eligibility but

substantially satisfy them so that the

circumstances giving rise to eligibility were such

as to put the applicant in a position of one whom

the community would expect to be recognized by the

testator.

What the court did in this case was to look at

circumstances outside those giving rise to

eligibility to determine whether there were such

factors.

BRENNAN J: They are bound to, are they not, under the

section because it refers to "past or present"?

It is past eligibility, present factors.

MR BRERETON:  Yes, but the difficulty is that, in my

submission, the section was plainly enough intended

to require something more than mere technical

eligibility.

BRENNAN J:  Do you contest the principle that was embraced

as coming from Justice McLelland in Re Fulop?

MR BRERETON:  To this extent, that there should be engrossed

or endorsed upon that principle an additional

requirement, that the circumstances founding

eligibility be more than merely technical or bare

compliance with those tests.

BRENNAN J: That can scarcely be a legal criterion,

Mr Brereton.

MR BRERETON:  May I put it this way, that category (d) was

not intended to convert someone not otherwise
entitled to bring an application, notwithstanding a

close and lasting relationship with the deceased

person, into someone entitled to bring and succeed

in such an application on the grounds of mere

technical compliance with the criterion for

eligibility. It was for that reason that

section 9(1) imposed an additional hurdle on such

applicants.

BRENNAN J:  And Re Fulop does that, does it not, in very

clear terms? In other words, it puts up a

particular criterion, namely, whether or not the

status of the person would be generally regarded as

a natural object of testamentary recognition.

MR BRERETON:  Yes, but in doing that, in my submission, it

insufficiently has regard to the factors giving

rise to eligibility and one of the factors which

Williams 12 17/9/93

must be considered in deciding whether the

section 9(1) barrier is passed, is the extent to

which the applicant substantially as opposed to

technically complies with the conditions of

eligibility.	Now, that is the section 9(1) point.
One then comes to the next issue which this particular applicant had to overcome.	The

judgments set out the unhappy history of litigation

concerning this estate. There was an unsuccessful

application for probate of a later will under which

Mr Williams would have taken the whole of the

Belrose property. Probate was then granted to the

presently approved will. There was a construction

suit which dealt with the effect of the grant for

lifetime right of residency in that property to

Mr Williams, and then there were the competing

Family Provision Act applications.

Mr Williams' application was brought out of

time because until it was brought he thought he was likely to succeed in the probate suit. In response to Mr Williams' application, Mrs Duncan brought her

application under the Family Provision Act. In

order to succeed on that application, she had to

overcome the problem in section 16 or the time
limit in section 16 of the Act. Section 16
provides, first in subsection (1), that the

prescribed period is 18 months after death.

Secondly, in subsection (2) that:

An order under section 7 shall not be made
unless the application for the order is made

within the prescribed period ..... or within

such further period as the Court may ..... by

order, allow.

And the nub of it is subsection (3) which provides

an order allowing an application out of time is not

to be made:

unless sufficient cause is shown for the

application not having been made within that

period.

Mrs Duncan's evidence as to why the

application was not made within that period -
TOOHEY J: Before you take us to the evidence, can you not

see that as you move from step to step you are

inviting this Court to take on a whole series of

inquiries as to such matters as whether there was

sufficient cause or whether, in terms of

section 9(1), there are factors which warrant the

making of the application? If it looked like a

special leave case, it becomes less and less, the

Williams 13 17/9/93

more you add the questions which you suggest is

necessary for us to take on board.

MR BRERETON:  Each of these questions, with respect,

Your Honour, is not a review of the evidence but an

issue of principle which each of the courts below

have dealt with and which can be dealt with without

detailed reference to the evidence and, really,

without reference to more than a page of the

evidence in each case.

TOOHEY J: These are evaluations made by judges below;

assessments made, having regard to the evidence.

MR BRERETON:  The question on this particular issue, in my

submission, is a plain question of principle:

whether a forensic exercise of bringing a counter

application can ever be sufficient cause for not

bringing an application within time.

BRENNAN J: It is not a question of sufficient cause for not

bringing. If the application is brought, then a

defence of whatever rights there might otherwise

be, surely, the provisions of the Family Provision

Act can be utilized.	I mean, if that is your
argument, that is your argument.	I understand it.

Is there anything else you wish to say in support

of it?

MR BRERETON:  Can I just put it this way, that the section,

Your Honour, focuses on the words "unless

sufficient cause is shown for the application not

having been made within that period".

BRENNAN J:  Can you think of any sufficient cause greater

than that they were content with the situation as

it was until it was disturbed by the counter

application?

MR BRERETON:	Yes, Your Honour, because the provision, at least in this case, made by the will was accepted
as being sufficient. Now, in that case it cannot
be sufficient cause for not making an application
earlier when there is no suggestion or concern on
the part of the applicant that the provision was
less than adequate.

The final matter - and, in my submission, this

is a plain matter of principle - is the question of

special circumstances. This application was one

brought pursuant to an order made under section 16

just referred to.

Notional estate is dealt with, relevantly, at

section 24 of the Act which deals with designating notional estate as a result of a distribution from the estate of a deceased person. Section 27

Williams 14 17/9/93

imposes certain restrictions or considerations to

which the court must have regard before making an

order designating notional property. In

particular, in subparagraph (a):

the importance of not interfering with

reasonable expectations in relation to

property.

Now, if anything is clear it is Mr Williams had a

reasonable expectation of being able to live for
the rest of his life in the Belrose property.

Indeed, such an expectation that the Court of

Appeal, on the section 66G case, allowed his appeal

and held that the trial judge had erred in making But one then comes to section 28.

an order for division.

Section 28(1) provides that:

the Court shall not make an order designating

property as notional estate ..... unless the

deceased person left no estate or

unless ..... the estate ..... is insufficient.

Subsection (5) provides that:

On an application .....

(a) made pursuant to an order under section 16

allowing the application to be made .....

the Court shall not make an order designating

property as notional estate -

subparagraph (d), unless satisfied:

that there are other special circumstances

(including ..... incapacity ..... which justify

the making of an order so designating the

property.

The Court of Appeal's reason for making a

designating order is set out at page 80, line 23:

the deceased's undivided half

share ..... constitute distributed estate ..... No

effective order can be made unless these

assets are designated notional estate and in

our opinion that order should be made.

That finding is a finding which satisfies the requirement of section 28(1), namely, that there

was no estate or insufficient estate to satisfy the

order. Such a finding has to be made in any case

in which a designating order is to be made. It

cannot be a special circumstance because it is a

Williams 15 17/9/93

circumstance which has to be found in every such
case before a designating order can be made.

The Court of Appeal found no special

circumstances within subsection (d) justifying the
making of a designating order. In those

circumstances, there was no basis for the making of

a designating order.

The issue of principle is whether a ground

which is, in any event, a necessary finding under
section 28(1) can be a special circumstance. In my

submission, it cannot and that is the fourth issue

of principle which arises in the application.

Aside from those issues, may I just add this: at page 53 of the application is set out an

announcement made by the court at the conclusion of the hearing before it reserved judgment. The tenor

of that announcement is that Mrs Duncan should

receive $50,000 without necessarily getting access

to the whole $300,000 which the extinction of

Mr Williams' lifetime interest would give her.

BRENNAN J: But that did not lead to anything, did it?

MR BRERETON:  It did not lead to anything but it indicates

that what was in the mind of the court was

provision in the sum of $50,000. The effect of

what the court has done is to destroy property

which it was the legitimate expectation of

Mr Williams that he would have for the sake of

giving Mrs Duncan not just the $50,000 which the

court thought she should have but, effectively, an

advancement of a further $250,000 over and above

that, and that in circumstances where the court had

held that Mrs Duncan could not have a section 66G
order because it woul.d be unconscionable for her to
take the gift of the half interest in the land

without honouring the obligation of the lifetime

right of residency attached to it. This, with respect, I should say, is not so

much the leave point but a merits point but, in my

submission, in circumstances where her application

was founded on eligibility so tenuous and resulted

in the destruction of a legitimate expectation of

Mr Williams to continue to reside in the property

for the rest of his life, those are circumstances

which, in the light of the issues which arise,

justify a grant of special leave. In addition to that, the issues which I seek

to identify as special issues are issues which are

and will be recurrent in this type of litigation.

The affidavit in support of the application

illustrates that it is a substantial area of

Williams 16 17/9/93

litigation in this State and, indeed, not just in

this State but of general applicability.

BRENNAN J: What is the size of this estate?

MR BRERETON:	$750,000.
BRENNAN J:	And what are the expected costs of the appeal to the High Court?
MR BRERETON:	I do not think anyone has done a formal

analysis of that, Your Honour.

BRENNAN J:	Have the costs thus far been taxed and paid?
MR BRERETON:	No, they have not, Your Honour.

BRENNAN J: Yes.

MR BRERETON: Unless there are any other matters, those are

my submissions.

BRENNAN J: Thank you, Mr Brereton. Unless you have

anything to add, Mr Happenden, we do not need to

hear you. Mr Legg, do you wish to say anything?

MR LEGG:  No.

BRENNAN J: This Court would not be anxious to grant special

leave to appeal in a matter arising under the

Family Provision Act 1982 (N.S.W.) where the ·costs

of an appeal would consume a substantial proportion

of the assets of an estate.

In any event, the argument in support of this

application does not reveal sufficient reasons to

doubt the correctness of the decision of the Court

of Appeal so as to warrant the grant of special
leave to appeal to this Court. Accordingly, the

grant of special leave is refused.

MR HAFFENDEN: Costs, Your Honour.

BRENNAN J: What do you have to say to that?

MR BRERETON:  I cannot say anything as against Mr Legg. As

against Mr Haffenden, it is normally the role of an

executor to defend this type of application, not

the beneficiary, and I should be liable only for

one set of costs.

BRENNAN J: But this is an application for special leave to

appeal to this Court. What you say may well be the situation in relation to proceedings before a judge

at first instance but this was an indication of a

special jurisdiction of this Court.	Why should you
not have to pay the costs of that?

Williams 17 17/9/93

MR BRERETON:  I do not resist the proposition that I should

have to pay the costs of the application but, in my

submission, only one set of those costs.

BRENNAN J: Although you are seeking relief against both of

the present respondents?

MR BRERETON:  I seek relief only against - I am just

thinking it through: because of the way the

proceedings were constituted below, they were
probably both necessary parties so I am not sure

that I can make that submission good.

BRENNAN J:  Mr Legg, are you making any application for

costs?

MR LEGG:	I am, Your Honour, yes.
BRENNAN J:	Have you any costs incurred?

MR LEGG:  Only my own. I am a solicitor, but - that is in

relation to this application today.

BRENNAN J:  The application will be refused with costs.

AT 4.00 PM THE MATTER WAS ADJOURNED SINE DIE

Williams 18 17/9/93