Xiang bht Cao v Tong

[2021] NSWSC 44

Supreme Court

New South Wales

Medium Neutral Citation:

Xiang bht Cao v Tong [2021] NSWSC 44

Hearing dates:

12 – 15 August 2019, 17 November 2020

Date of orders:

4 February 2021

Decision date:

04 February 2021

Jurisdiction:

Equity

Before:

Hallen J

Decision:

The Court:

(1) Orders, having found the Plaintiff is an eligible person, and the provision made for him in the Will of the deceased, is inadequate for his proper maintenance, education or advancement in life, that the Plaintiff receive, by way of provision, a lump sum of $175,000, out of the estate, or if not paid in accordance with these orders, out of the notional estate, of the deceased.
(2) Orders that no interest is to be paid on the lump sum if it is paid within 3 months of the date of the making of these orders; otherwise, interest calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898 (NSW), on unpaid legacies, is to be paid from 3 months and 1 day from the date of the making of these orders until the date of payment in full.
(3) Orders that the burden of the provision made for the Plaintiff be borne by the share of the deceased’s estate passing to the Defendant.
(4) Orders that the Plaintiff’s costs, calculated on the ordinary basis, of the proceedings, be paid out of the estate or notional estate of the deceased.
(5) Orders that the Defendant’s costs, calculated on the indemnity basis, of the proceedings, be paid, or retained, as the case may be, out of the estate or notional estate of the deceased.
(6) Orders, in the event the lump sum, any interest accrued thereon, and costs, are not paid out of the estate of the deceased, that one-half of the proceeds of sale of the property situated at XXX Bapaume Road, Mosman, Sydney, in the State of New South Wales, be designated as notional estate of the deceased to the extent necessary to satisfy orders (1), (2) and (4).
(7) Orders, that until the payment of the lump sum by the Defendant, the lump sum of $175,000, constitutes a charge upon the property situated at XXX Bapaume Road, Mosman, New South Wales.
(8) Orders pursuant to s 77(2) Civil Procedure Act 2005 (NSW) that the lump sum payable to the Plaintiff be paid into Court.
(9) Orders, that until the payment of the Plaintiff’s costs, by the Defendant, the amount of $100,000 shall constitute a charge upon the property situated at XXX Bapaume Road, Mosman, New South Wales.
(10) Orders that the payment into Court, by the Defendant, of $100,000 on account of the Plaintiff’s costs will be sufficient to satisfy the charge for costs.
(11) Notes that the charge, in the amount of $100,000 on account of the Plaintiff’s costs, does not prejudice the assessment of those costs, calculated on the ordinary basis.
(12) Grants liberty to any party to apply, in these proceedings, no earlier than three months from the date of the making of these orders, for consequential and ancillary orders for the purpose of, or with respect to, giving effect to, and implementing, the family provision order made in favour of the Plaintiff, including, but not limited to, seeking orders under s 66 of the Act for the sale of the property situated at and known as XXX Bapaume Road, Mosman, New South Wales, the appointment of trustees for sale and the doing of such other things as are necessary for the purpose of giving effect to the orders of the Court.
(13) Orders that the Exhibits be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (r 31.16A and r 33.10) and Practice Note SC Gen 18.

Catchwords:

CIVIL PROCEDURE – Parties – Person under legal incapacity – Tutor – The Plaintiff commenced proceedings by tutor – Some evidence that Plaintiff falls within definition of person under a legal incapacity – Defendant does not dispute that Plaintiff requires a tutor – Court satisfied that Plaintiff requires a tutor in relation to the conduct of the proceedings, in order to protect his interests

SUCCESSION – Family Provision – Claim by child of the deceased – The Plaintiff, a now adult child of the deceased, makes a claim for a family provision order under Chapter 3 of Succession Act – No dispute as to the Plaintiff’s eligibility as a child of the deceased – Nature of relationship of the Plaintiff and the deceased – Medical condition of the Plaintiff – Dispute as to nature and value of estate – Little actual estate in New South Wales – Notional estate in New South Wales – Substantial estate and property that may be designated as notional estate outside New South Wales – No dispute that deceased was, at the time of his death, domiciled in New South Wales – Significant competing claim of the sole beneficiary, the Defendant, who is the widow of the deceased – Whether a family provision order should be made for the Plaintiff, and if so, the nature and quantum of the provision to be made and how the burden of the provision, if any, made should be borne

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 3, 56, 61, 62, 64, 66, 98

Family Law Act 1975 (Cth), ss 61B, 61C

Family Provision Act 1982 (NSW), ss 22, 27

Interpretation Act 1987 (NSW), ss 11, 31

Practice Note SC Eq 7, pars 9.1, 17, 24

Practice Note SC Gen 18

Probate and Administration Act 1898 (NSW), ss 84A, 86

Succession Act 2006 (NSW), ss 3, 57, 58, 59, 60, 61, 63, 64, 65, 66, 72, 74, 75, 76, 77, 78, 79, 80, 83, 84, 87, 88, 89, 92, 99, 113, 127

Uniform Civil Procedure Rules 2005 (NSW), rr 7.13, 7.14, 10.2, 23.4, 31.3, 31.16A, 33.10

Cases Cited:

Alexander v Jansson (2010) 6 ASTLR 432; [2010] NSWCA 176

Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308

Andrew v Blair [2007] NSWSC 1003

Bartlett v Coomber [2008] NSWCA 100

Bkassini v Sarkis [2017] NSWSC 1487

Blendell v Blendell; Blendell v Blendell [2020] NSWCA 154

Blore v Lang (1960) 104 CLR 124; [1960] HCA 73

Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86

Borebor v Keane (2013) 11 ASTLR 96; [2013] VSC 35

Bosch v Perpetual Trustee Co Ltd [1938] AC 463

Bowditch v NSW Trustee and Guardian [2012] NSWSC 275

Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327

Burke v Burke (No 2) (2015) 13 ASTLR 313; [2015] NSWCA 195

Carey v Robson (No 2) [2009] NSWSC 1199

Cetojevic v Cetojevic [2006] NSWSC 431

Chan v Chan (2016) 15 ASTLR 317; [2016] NSWCA 222

Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392

Chong v Mo [2010] NSWSC 251

Contract Mining Services Pty Ltd v Adelaide Brighton Cement Limited [2020] SASC 69

de Angelis v de Angelis [2003] VSC 432

Deputy Commissioner of Taxation v P (1987) 11 NSWLR 200

Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235

Diver v Neal (2009) 2 ASTLR 89; [2009] NSWCA 54

Edgar v Public Trustee for the Northern Territory [2011] NTSC 5

Estate Grundy; La Valette v Chambers-Grundy (2018) 17 ASTLR 64; [2018] NSWSC 104

Ferrier v Nationwide News Pty Limited (No 3) [2015] NSWSC 1806

Fiorentini v O’Neil (Court of Appeal (NSW), 4 December 1998, unrep)

Foley v Ellis [2008] NSWCA 288

Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195

Galt v Compagnon (Supreme Court (NSW), Einstein J, 24 February 1998, unrep)

Ghougassian v Fairfax Community Newspapers Pty Ltd [2015] NSWCA 307

Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31

Goodsell v Wellington [2011] NSWSC 1232

Gorton v Parks (1989) 17 NSWLR 1

Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843

Grey v Harrison [1997] 2 VR 359

Hall v Hall (2016) 257 CLR 490; [2016] HCA 23

Hampson v Hampson (2010) 5 ASTLR 116; [2010] NSWCA 359

Harkness v Harkness (No 2) [2012] NSWSC 35

Herman v Premier Security Co-operative Ltd [2010] 3 SLR 110; [2010] SGCA 15

Heuston v Barber (1990) 19 NSWLR 354

Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep)

Hitchcock v Pratt (2010) 79 NSWLR 687; [2010] NSWSC 1508

Hunter v Hunter (1987) 8 NSWLR 573

In re Butchart (deceased): Butchart v Butchart [1932] NZLR 125

James v Australia and New Zealand Banking Group Ltd [2017] NSWCA 84

John v John [2010] NSWSC 937

Kavalee v Burbidge (1998) 43 NSWLR 422

Keaton v Gumulak [2020] NSWSC 943

Kostov v YPOL Pty Ltd (2018) 98 NSWLR 1002; [2018] NSWCA 306

Kostov v Zhang (No 2) [2016] NSWCA 279

Liprini v Liprini [2008] NSWSC 423

Maniotis v J H Lever & Co Pty Ltd [2006] FCAFC 7

Mao v AMP Superannuation Ltd [2015] NSWCA 252

McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82

McKenzie v Topp [2004] VSC 90

Megerditchian v Khatchadourian [2020] NSWCA 229

Meres v Meres [2017] NSWSC 285

Page v Hull-Moody [2020] NSWSC 411

Pain v Holt (1919) 19 SR (NSW) 105

Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24

Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107

Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19

R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52

R v Fisher (2009) 22 VR 343; [2009] VSCA 100

Rappard v Williams [2013] NSWSC 1279

Re Venables [2018] EWHC 1037 (Fam)

Re XYZ, Solicitor [2005] NSWSC 72

Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473

Sammut v Kleemann [2012] NSWSC 1030

Saravinovska v Saravinovski (No 5) [2015] NSWSC 128

Sgro v Thompson [2017] NSWCA 326

Shannon v Steinmetz [2019] HCASL 332

Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40

Sirola & Sirola [2016] FamCA 620

Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522

Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297

Smith v Woodward (Supreme Court (NSW), Macready M, 9 September 1994, unrep)

Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114

Stott v Cook (1960) 33 ALJR 447

Sung v Malaxos [2015] NSWSC 186

Sydney South West Area Health Service v MD (2009) 260 ALR 702; [2009] NSWCA 343

Tanamerah Estates Pty Ltd as the trustee for Alexander Superannuation Fund v Tibra Capital Pty Ltd [2013] NSWCA 266

Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285

Torok v Becker [2020] NSWSC 1570

Towson v Francis [2017] NSWSC 1034

Tugrul v Tarrants Financial Consultants Pty Limited (in liquidation) [No 2] [2013] NSWSC 1971

Verzar v Verzar [2012] NSWSC 1380

Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11

White v Barron (1980) 144 CLR 431; [1980] HCA 14

Yee v Yee [2017] NSWCA 305

Texts Cited:

G E Dal Pont, K F Mackie, Law of Succession (2nd ed, 2018, LexisNexis Butterworths)

New South Wales Law Reform Commission, Report 110 Uniform Succession Laws: Family Provision, (May 2005)

Rosalind Atherton, “The Concept of Moral Duty in the Law of Family Provision – A Gloss or Critical Understanding?” (1999) 5(1) Australian Journal of Legal History 5

Rosalind Croucher, “Contracts to Leave Property by Will and Family Provision after Barns v Barns [2003] HCA 9” (2005) 27(2) Sydney Law Review 263

Category:

Principal judgment

Parties:

Rio Kai Rui Xiang by his tutor Liu Mei Cao (Plaintiff)
Yuhua Tong (Defendant)

Representation:

Counsel:
J R Young (Plaintiff)
R Kako (Defendant) (12 – 15 August 2019)

Solicitors:
Pope & Spinks (Plaintiff)
Concisus Legal Pty Ltd (Defendant) (12 – 15 August 2019)
Defendant (self-represented) (17 November 2020)

File Number(s):

2016/00275809

Judgment

Introduction

1. HIS HONOUR: These proceedings concern a family dispute following the death, on 26 January 2016, of Xiao Feng Xiang (the deceased). The Plaintiff, Rio Kai Rui Xiang, is one of the deceased’s two children. The deceased’s anglicised name was “Damon”.

2. The Plaintiff is said to be a person under a legal incapacity. Whilst at the time the proceedings were commenced, he was a minor, he is no longer one. I shall return to the question whether he requires a tutor, now that he has reached the age of 18 years. I shall also refer to the medical evidence going to his current medical conditions later in these reasons.

3. The Plaintiff gave no evidence, himself, and most of the evidence upon which he relied in support of his application was given by his tutor, Liu Mei Cao (the tutor), who is his mother. The tutor’s anglicised name is “Melody”. Her consent to act as tutor was filed on 14 September 2016. She was cross-examined using an interpreter.

4. The Defendant named in the proceedings is Yuhua Tong, the widow of the deceased. She is the sole executrix and beneficiary named in the deceased’s Will dated 14 July 2015, Probate of which Will was granted, by this Court, to her, on 21 March 2016. The Defendant’s anglicised name is “Ivy”. She was also cross-examined using an interpreter.

5. In relation to evidence, I have made allowance for language barriers, although both the tutor and the Defendant spoke some English. I listened to the evidence of each of the Plaintiff and the Defendant, and I have read the transcript of the evidence against the background of language difficulties that each faced as English is not the first language of either. Furthermore, I have borne in mind the passage of a substantial amount of time between certain events and the affidavits and the cross-examination.

6. The tutor gave evidence that when she affirmed her two affidavits in the proceedings, she had the contents translated into the Chinese language: Tcpt, 12 August 2019, p 54(37–40).

7. I formed an overall impression that each of the tutor, and the Defendant, was attempting to assist the Court, although, at times, each did not answer the question, in a direct way, I cannot conclude that either was untruthful. However, in some respects, I am cautious about the evidence of each of them. In the case of the tutor, she was not as forthcoming, in her affidavit evidence, as she could have been. In the case of the Defendant, at a time when she was legally represented, she seemed to have made the evidence about the nature and value of the deceased’s estate far more complicated than it ought to have been. Furthermore, she was clearly emotional about having been involved in litigation involving her husband’s estate, both here and overseas, which proceedings could result in that estate being reduced because of the provision made for the Plaintiff and the costs of the proceedings, which emotion, in my view, affected some of her evidence. (By way of example, I refer to her requiring proof that the Plaintiff was the biological son of the deceased, a matter that appeared to be clear on the evidence and the dispute about which delayed the hearing of the proceedings.)

8. The only other family member, who gave evidence in the proceedings, on behalf of the Plaintiff, was the deceased’s sister, Xiaoqing Xiang. Her anglicised name is “Ellen”. She was cross-examined.

9. The matter was adjourned following the conclusion of the cross-examination and after each party’s legal representative, albeit late, had provided a written outline of submissions. The Plaintiff’s counsel provided further submissions, in writing, shortly before the recommencement of the hearing and the Defendant provided further submissions on the day of the hearing. Then counsel for the Plaintiff, and the Defendant, through an interpreter, made oral submissions. I shall return to the topic of failure to comply with directions, shortly. The matter was then delayed, significantly, for reasons to which I shall come.

10. At the hearing, which commenced in August 2019, each party was legally represented. However, by the date of the continuation of the hearing, some 15 months later, the Defendant was no longer legally represented by either solicitor or counsel. She stated that she was unable to afford to retain legal representation. I find this assertion somewhat surprising bearing in mind the nature and value of the property that formed the estate of the deceased or that may be designated as notional estate, both in Australia and overseas.

11. However, for whatever reasons, the Defendant chose to appear without legal representation from the time the matter was adjourned part heard. This necessitated explaining to her, more than once, that she could not simply send correspondence to the Court, with or without including the Plaintiff’s legal representative as a recipient of the email, upon which she wished the Court to act.

12. Although the first part of the hearing was conducted as a live hearing, when the matter resumed in November 2020, the Defendant was in China, and she was unable to appear, other than remotely. The current COVID-19 pandemic, therefore, necessitated the continuation of the hearing remotely, with the use of video technology and electronic document handling software. This required co-operation, planning, and flexibility, on the part of all involved.

13. The final part of the hearing was conducted, using Microsoft Teams, a video communication platform that enables multiple persons to appear together online and communicate face-to-face using audio and video facility.

14. At my request, my Associate arranged practical hearing preparation, including conducting a video-hearing test run using the platform on the day before the hearing commenced. Naturally, it was confirmed that when the hearing resumed on 17 November 2020, it would take place by videoconference.

15. Section 62(1) of the Civil Procedure Act 2005 (NSW) provides that the court may, by order, give directions as to the conduct of any hearing. Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 31.3(1) also provides that, if the court so orders, evidence and submissions may be received by telephone, video link or other form of communication. Thus, the Court has a general power to make orders permitting the evidence of a witness to be given by audio video link.

16. At the commencement of the continuation of the hearing, without opposition, the Court made the following direction:

“The Court directs, pursuant to s 5B of the Evidence (Audio and Audio-Visual Links) Act 1998 (NSW), that each of the parties and his or her legal representative, respectively, shall make her, and his, submissions, by audio-visual link from a place within Australia, in the case of the Plaintiff other than Court Room No 2 Hospital Road, Sydney, and from outside Australia in the case of the Defendant.”

The Claim

17. The Plaintiff filed a Summons, by his tutor, on 14 September 2016. He sought a family provision order out of the estate and notional estate of the deceased, pursuant to Chapter 3 of the Succession Act 2006 (NSW) (the Act), and an order for his costs. A family provision order is one for the maintenance, education, or advancement in life, of an eligible person. The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (the former Act), which was repealed, effective from 1 March 2009.

18. The Summons seeks provision out of the wrong estate, referring to “the estate and/or notional estate of the late Ricardo Garcia of Glendenning in the State of New South Wales”. No reference was made to this error and I have treated it as an irrelevant typographical error. The parties were aware of the estate out of which provision was being sought, the correct name of the deceased being referred to on the front page of the Summons and in the evidence.

19. Section 64(2) of the Civil Procedure Act provides that subject to s 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings. I have treated the name of the deceased, referred to in the body of the Summons, as having been amended accordingly.

20. A family provision order may be made in relation to property that is not part of the deceased’s estate but is designated as “notional estate” of the deceased by an order under Pt 3.3 of the Act: s 63(5). “Notional estate” of a deceased person is defined in s 3(1) of the Act to mean property designated by a notional estate order as notional estate of the deceased person. “Notional estate order” means an order made by the Court under Ch 3 of the Act, designating property specified in the order as notional estate of a deceased person. A person’s rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act.

17. Pursuant to s 80(1) of the Act, a notional estate order designating property specified in the order as notional estate of the deceased may be made if the Court is satisfied that the deceased entered into a relevant property transaction before the deceased’s death, and that the transaction is one to which the section applies: s 80(2) of the Act. “Relevant property transaction” is defined in s 75, and examples of relevant property transactions are set out in s 76.

18. A person enters into a “relevant property transaction” if “he or she does, directly or indirectly, or does not do, any act that (immediately or at some later time) results in property being held by another person (whether or not as trustee) or subject to a trust, if full valuable consideration is not given to the person for doing or not doing the act”: G E Dal Pont, K F Mackie, Law of Succession (2nd ed, 2018, LexisNexis Butterworths) at [20.60]; s 75(1) of the Act.

19. One example is provided in s 76(2)(b), which provides the circumstance of a person holding an interest in property as a joint tenant and the person does not sever that interest before ceasing (because of death or the occurrence of any other event) to be entitled to do so, with the result that, on the person’s death, the property becomes, by operation of the right of survivorship, held by another person (whether or not as trustee) or subject to a trust.

20. As will be read, the Plaintiff claims that the deceased’s failure to sever the joint tenancy, held with the Defendant, in certain property at Mosman, Sydney, New South Wales, at the time of his death, was a “relevant property transaction”.

21. The Court may designate property as notional estate not only to make provision for an applicant but also, if making an order for provision for an applicant, for costs: s 78 of the Act. It was submitted that so much of one half of the value of the Mosman property as is necessary to satisfy any order for provision and costs that is made, can, and should, be designated as notional estate.

22. A notional estate order must not be made without consideration of the importance of not interfering with reasonable expectations in relation to property, and of the substantial justice and merits involved in making or refusing to make the order: s 87 of the Act. The Defendant has relied upon this section to support her submission that no notional estate order should be made.

23. It was suggested, at the time the Defendant was legally represented, that if provision is made for the Plaintiff and any of the Plaintiff’s costs are ordered to be paid out of the estate, the lump sum could constitute a charge on the Mosman property held in the name of the Defendant. Naturally, the Defendant would be given an opportunity to satisfy the order for provision: Tcpt, 12 August 2019, p 18(19–24); Tcpt, 13 August 2019, p 71(17–26).

24. It seems, in circumstances where the Defendant, at the date of the conclusion of the hearing was living in the People’s Republic of China, and it is not known when, or if, she will return, that an order will need to be made to ensure compliance with any orders for provision and for costs made by the Court. Section 66(1) of the Act provides that the Court may, in addition to, or as part of, a family provision order, make orders for the purpose of giving effect to the family provision order.

25. In view of what seems to be the nature and value of the deceased’s actual estate, in New South Wales, and outside the jurisdiction, it may not be necessary to have recourse to the property that may be designated as notional estate of the deceased as the estate, overseas, appears to be sufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made. However, if provision were not made wholly out of the deceased’s estate, the notional estate of the deceased, in New South Wales, will need to be considered: s 88(c) of the Act.

26. It will be necessary to return to the topic of the nature and value of the actual estate and notional estate later in these reasons.

What the claim is not about

31. I interpose here, in order to make clear, as it seemed to be an issue in the proceedings, at least so far as concerns the proceedings in the People’s Republic of China, to which reference will be made, that this case does not involve a challenge to the validity of the deceased’s Will, Probate of which has been granted by this Court. Nor has there been, otherwise, any claim challenging the validity of the Will to which reference has been made, or any claim made to revoke the grant of Probate of that Will.

32. It follows that the grant of Probate of the deceased’s Will, whilst continuing unrevoked, is conclusive proof of, amongst other things, the testamentary character of the deceased’s Will; of the appointment of the executor; and of the validity and contents of that Will.

33. As will be read, Ch 3 of the Act is not concerned with the validity of Wills. Indeed, in the usual case, the applicant, by commencing proceedings for a family provision order, where the deceased died testate, and where no claim to challenge the validity of the Will is, or has been, made, acknowledges the validity of the deceased’s Will, but seeks greater provision than is made in that Will out of the estate and notional estate of the deceased.

Some formal matters

34. Section 57(1) of the Act provides that “eligible persons” may apply to the Court for a family provision order. It is not in dispute that, as a child of the deceased, the Plaintiff is an eligible person within s 57(1)(c) of the Act: Tcpt, 12 August 2019, p 5(07–14). The language of the sub-section is expressive of the person’s status, regardless of age, as well as his, or her, relationship to the deceased. It is not necessary that the child be a dependant, at the time of the deceased’s death, in order to be an eligible person under this head of eligibility (as dependency is not an element of the definition of an “eligible person” in s 57(1)(c)). However, under s 60(2) of the Act, relevantly for the purposes of the present case, the Court may consider, on the question whether to make a family provision order and the nature of any such order, “… (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which, and the basis on which the deceased person did so …”. This matter will not be relevant to whether the applicant is an eligible person in the case of a child of the deceased.

35. It was not in dispute that the Plaintiff commenced the proceedings within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased): s 58(2) of the Act: Tcpt, 12 August 2019, p 5(16–21).

36. It was also not in dispute that, as the deceased had dealt with the whole of his estate in his Will, there was no scope for the operation of the intestacy rules, with the result that it is only necessary, hereafter, to refer to the Will of the deceased: Tcpt, 12 August 2019, p 5(23–28).

37. In the notice of eligible persons, filed on 14 September 2016, on behalf of the Plaintiff, the following persons were identified as persons who are, or who may be, eligible persons, namely, the Plaintiff, the deceased’s and the Defendant’s minor son, Yitong; the Defendant; the deceased’s sister, Ellen; the deceased’s mother, Shaoyi Xiang (née Chen); and the deceased’s father, Yi Fei Xiang. Although not included in the notice of eligible persons, counsel for the Defendant acknowledged that the tutor, as a former de facto partner of the deceased, may also be an eligible person.

38. The basis of eligibility, in respect of the deceased’s parents, and his sister, is not disclosed in the evidence. Perhaps, they are eligible persons within s 57(1)(e) of the Act, each being a person who was, at any particular time, wholly or partly dependent on the deceased, and who was at that particular time, or at any other time, a member of the household of which the deceased person was a member. However, this is merely speculation. In any event, it appears that each of them was served with a notice of the Plaintiff’s application, and of the Court’s power to disregard his, and her, interests, in the manner and form prescribed by the regulations or rules of court.

39. However, the deceased’s and the Defendant’s son, Yitong, was not served with such a notice. It was said that service upon him was unnecessary as he lived with the Defendant who supported him completely. Very little is known about Yitong’s financial resources, needs, and any claim that he had on the bounty of the deceased. I shall not disregard his interests, as an eligible person, and will also consider that the Defendant, his mother, has the sole parental responsibility (meaning all the duties, powers, responsibilities and authority which, by law, a parent has in relation to a child who is not 18 years old) for him: Family Law Act 1975 (Cth), ss 61B, 61C.

40. Only the Plaintiff has made a claim for a family provision order. However, the Defendant, as the sole beneficiary, has given evidence of the bases of her claim, upon the bounty of the deceased. The Act specifically provides that the interests of a beneficiary cannot be disregarded, even though she, or he, has not made a claim: s 61(1) of the Act. A beneficiary is entitled to rely upon the terms of the deceased’s Will and her, his, or its, competing claim, respectively, as a chosen object of the deceased’s testamentary bounty.

41. As the sole beneficiary named in the deceased’s Will and as the surviving widow, with a dependent minor child, the Defendant asserted a strong competing claim, together with a claim based upon her significant financial, and other, contributions, made to the deceased and to the jointly held assets (in particular, the Mosman property).

42. However, the Defendant did not give evidence of her financial resources or needs, although, as stated, she stressed her close connection with, and the bases of her claim upon the bounty of, the deceased.

43. There is significance in the deliberate forensic decision, made to adduce no evidence regarding a beneficiary’s financial resources and needs. The effect of that silence in relation to financial resources and needs, in the cases, was considered by me in Sammut v Kleemann [2012] NSWSC 1030 at [137]–[140]. I recently repeated those principles in Keaton v Gumulak [2020] NSWSC 943 at [15]. I shall not repeat all that I have written again here.

44. The Court of Appeal, in Tobin v Ezekiel (2012) 83 NSWLR 757 at 783 [94]; [2012] NSWCA 285 at [94] (Meagher JA, Basten and Campbell JJA agreeing), stated the principle far more succinctly as follows:

“… The fact that an executor has not led evidence as to the financial position of any beneficiary or beneficiaries will often provide a basis for the court to infer that each has sufficient income and resources to meet his or her needs: see, for example, Anderson v Teboneras [1990] VR 527 at 535­–536; Mason v Permanent Trustee Co Ltd (Supreme Court, Macready M, 5 December 1996, unreported) at 6. The justification for that inference is an assumption that the executor has acted in accordance with his or her duty to lead such evidence, if relevant.”

45. Also see Poletti v Jones (2015) 13 ASTLR 113 at 118 [23]; [2015] NSWCA 107 at [23] (Basten JA, Leeming JA agreeing).

46. Even if the Court may infer that a beneficiary has no need for provision from the estate of the deceased, and, that, on a comparative basis, she, he, or it, is better off than the Plaintiff, her, his, or its, silence does not mean that the competing claim of each of the beneficiaries should not be evaluated. As will be read, what is “proper” requires an evaluative judgement that has regard to all relevant circumstances, not merely the financial circumstances of the parties and of the beneficiaries.

47. As was written in Edgar v Public Trustee for the Northern Territory [2011] NTSC 5 at [46] (Kelly J):

“There is no onus on the ... residuary beneficiary under the will to show that she is entitled to be treated as such – or to prove what may be necessary for her proper maintenance and support. Rather the onus is on the plaintiff to show that proper provision is not available for him under the terms of the will.”

48. As stated above, the consequences of not disclosing a beneficiary’s financial resources and needs simply means that the Court, in considering those resources and needs, may draw the inference to which I have referred above. Thus, in reaching the conclusion in regard to the family provision order sought by the Plaintiff, the Court will not disregard the competing interest of the Defendant as a beneficiary who has a claim upon the bounty of the deceased and as a chosen object of the deceased’s bounty. In this way, the Court gives consideration to the relationship between the deceased and a beneficiary, in the Defendant’s case having regard to their marriage of about nine years and her contribution to the deceased’s estate, and also acknowledges the need to give due regard to “what the testator regarded as superior claims or preferable dispositions” as demonstrated by his Will: Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19 (Dixon CJ, McTiernan J agreeing); [1962] HCA 19. In doing so, a relevant matter is whether the deceased gave appropriate consideration to whether or not some provision ought to be made, on his death, for each of his children.

49. The Defendant, as the sole executrix, made a claim for reimbursement of $30,000, said to be “for travel to Australia [and] expenses in relation to proceedings”. She did not explain how the amount claimed had been calculated. As the sole beneficiary, she receives the whole of the residuary estate, but it is relevant to consider the amount claimed as a potential liability of the estate.

50. In her first affidavit affirmed 28 February 2017, explaining the nature and value of the deceased’s estate, the Defendant stated, at par 16, “I do not propose to charge any commission as executrix”. That, of course, is a claim under s 86 of the Probate and Administration Act 1898 (NSW) “for the executor’s … pains and trouble as is just and reasonable”.

Whether the Plaintiff is a person under a legal incapacity

51. As earlier stated, although the Plaintiff was a child under the age of 18 years at the time the proceedings were commenced, at the date of the commencement of the hearing, he had reached 18 years of age.

52. Section 3(1) of the Civil Procedure Act contains the following inclusive, but not exhaustive, definition of the term “person under legal incapacity”, which:

means any person who is under a legal incapacity in relation to the conduct of legal proceedings (other than an incapacity arising under section 4 of the Felons (Civil Proceedings) Act 1981) and, in particular, includes—

(a) a child under the age of 18 years, and

(b) an involuntary patient, a forensic patient or a correctional patient within the meaning of the Mental Health Act 2007, and

(c) a person under guardianship within the meaning of the Guardianship Act 1987, and

(d) a protected person within the meaning of the NSW Trustee and Guardian Act 2009, and

(e) an incommunicate person, being a person who has such a physical or mental disability that he or she is unable to receive communications, or express his or her will, with respect to his or her property or affairs.

53. Pursuant to s 11 of the Interpretation Act 1987 (NSW), which makes a definition in a statute also apply to delegated legislation made under that statute, the definition in the Civil Procedure Act also applies to the UCPR. In any event, a note to the Dictionary of the UCPR expressly adopts the definition of “person under legal incapacity” contained in the Civil Procedure Act.

54. UCPR r 7.13, which was described as “a supplementary definition” by Basten JA in Tanamerah Estates Pty Ltd as the trustee for Alexander Superannuation Fund v Tibra Capital Pty Ltd [2013] NSWCA 266, at [19], defines a “person under legal incapacity” as including “a person who is incapable of managing his or her affairs”. Otherwise, there is no definition of the term in the UCPR.

55. UCPR r 7.14(1) requires a person under legal incapacity to commence, and carry on, proceedings by a tutor.

56. In Rappard v Williams [2013] NSWSC 1279, I noted, at [68], the fact of a tutor having been appointed, is not determinative of the question whether the proceedings should have been instituted by the Plaintiff through a tutor: also see, for example, Chong v Mo [2010] NSWSC 251 at [70] (McLaughlin AsJ).

57. I also wrote, at [71], [76] - [80]:

“Where there is no evidence that a party fits within sub-paragraphs (a) to (e) of the definition of ‘person under legal incapacity’ in s 3 of the Civil Procedure Act, the only way in which she, or he, could be a person under legal incapacity is if the Court were satisfied that she, or he, is a ‘person who is under a legal incapacity in relation to the conduct of legal proceedings’ who does not fit within any of paragraphs (a) - (e) of the definition, or that she or he was a person who was incapable of managing her affairs within the meaning of UCPR rule 7.13.

…

Whether a person is under a legal incapacity is always a task, and time, specific, matter, dependent upon whether the person has the ability to understand and evaluate the particular task that is in question at the particular time: Guthrie v Spence [2009] NSWCA 369; (2009) 78 NSWLR 225 at [174] - [175]; Azar v Kathirgamalingan [2012] NSWCA 429, per Campbell JA, at [168]. In this case, whether the Plaintiff is a ‘person who is under a legal incapacity in relation to the conduct of legal proceedings’ must be considered. Thus, even though a party may be able to carry out tasks associated with daily living, she, or he, may lack the capacity to understand and evaluate the matters involved in the conduct of legal proceedings, and for that reason fall within the definition of ‘person under legal incapacity’.

Chadwick LJ in Masterman-Lister v Brutton & Co (referred to in the passage quoted above) also said, at [75]:

‘... the test to be applied, as it seems to me, is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law - whether substantive or procedural - should require the interposition of a next friend or guardian ad litem …’

The ‘conduct of legal proceedings’ refers to doing the various things that would need to be done in the course of the proceedings in which the party is involved, including seeking advice as to the nature of the proceedings, about the difficulties, risks, costs and effort, involved in pursuing the claim, and the likely result, including the type of order that may be made, comprehending and evaluating that advice, and engaging in the continuing process of co-operation, interaction and decision-making that exists between lawyer and client in running any civil action. In other words, the sort of incapacity involved in the requirement for a tutor is incapacity to do the range of things that is involved in, not only starting, but also continuing, litigation and being able to give instructions and consider advice about settling the proceeding: see, for example, Pistorino v Connell [2012] VSC 438, per Dixon J, at [21] - [24].

In Dalle-Molle v Manos [2004] SASC 102; (2004) 88 SASR 193, Debelle J observed, at [23], that the question of whether a litigant has the capacity to understand the issues in legal proceedings so that he may conduct them is ‘issue-specific’ and ‘relates to the facts and subject-matter of the particular case’.

In Re P [2006] NSWSC 1082, Young CJ in Eq considered the evidence pointed to the defendant as a person with ‘a mental problem in continuing with the litigation’. He found that the defendant had ‘a problem which stops him from giving proper instructions to his lawyers and the lawyers would have difficulty in doing what they were instructed by the client because they could not be assured that his mind was proceeding his mouth’.”

58. If one approaches the question according to the test propounded by Chadwick LJ, it is necessary to ask, in this case, whether the Plaintiff can deal with the issues in the proceedings with the assistance of appropriate explanation from his lawyers and the experts who have been retained to give evidence. This must extend to all the aspects of conducting a case: Rappard v Williams at [78].

59. There is no doubt that the Court may dispense with the requirement for a tutor to be appointed in particular cases: Mao v AMP Superannuation Ltd [2015] NSWCA 252 at [59] (The Court); Kostov v YPOL Pty Ltd (2018) 98 NSWLR 1002 at 1008 [20]; [2018] NSWCA 306 at [20] (The Court).

60. Counsel for the Defendant stated that the Defendant had “taken the view that we don’t dispute there is a level of incapacity which warrants the intervention of a tutor” and counsel for the Plaintiff accepted that, even if the Plaintiff was not a person within the definition of a person under a legal incapacity, “in circumstances where a plaintiff can’t deal with the issues in the proceedings, a tutor would be useful”: Tcpt, 12 August 2019, p 5(30) – p 6(01).

61. Whether the Plaintiff falls strictly within the definition of “[a] person under legal incapacity" within the meaning of UCPR r 7.14, the medical evidence, to which I shall refer later in these reasons, persuades me that the Plaintiff requires a tutor in relation to the conduct of the proceedings, in order to protect his interests, even if there is insufficient evidence to enable me to be affirmatively satisfied that he falls within the various statutory definitions of ‘a person under a legal incapacity’: see Ferrier v Nationwide News Pty Limited (No 3) [2015] NSWSC 1806 at [20]–[21] (McCallum J).

62. In this case, I am also satisfied that, since the tutor has not brought her own proceedings for a family provision order, her interests are not adverse to that of the Plaintiff: Deputy Commissioner of Taxation v P (1987) 11 NSWLR 200 at 203–204 (Hodgson J); Saravinovska v Saravinovski (No 5) [2015] NSWSC 128 at [32]–[34] (Kunc J).

The proceedings in People’s Republic of China

63. During the proceedings, the deceased’s and the Defendant’s property in the People’s Republic of China, was said to have become the subject of legal proceedings being conducted there. The Defendant stated that she “[understands] that the Shanghai Pudong People’s Court has full discretion over the matter and will make orders as it sees fit in accordance with Chinese inheritance law”.

64. What was not made clear during the hearing but has become apparent upon a further consideration of the evidence, was that there were, in fact, two different proceedings in China. The first, bearing case number (2017) Hu 0115 Min Chu xxx, appears to have been brought by the Defendant in which she sought orders in relation to the Shanghai property (the first Chinese proceedings).

65. Although unclear, it appears from a document entitled “Legal Opinion on the Inheritance of Real Estate” prepared by Wang Lunfeng, a Chinese lawyer, that these proceedings concern whether the Shanghai property was the “common property” or “marital property” of the deceased and the Defendant. Whether that was so would determine whether the Defendant was entitled to a 50% share of that property, with the balance to form part of the deceased’s estate: Affidavit, Yuhua Tong, 2 November 2017 at Annexure K.

66. The second proceedings, bearing case number (2019) Shanghai 0115 Min Chu xxx, appeared to be a claim, brought by the deceased’s parents, contesting the validity of the deceased’s Will and demanding “that the estate be divided according to the legal inheritance” (the second Chinese proceedings): Ex 2.

67. As I understand it, the first Chinese proceedings were stayed pending the conclusion of these proceedings and, perhaps, also, because, the Plaintiff is said not to be a party, as the evidence establishing that he is a child of the deceased had not been filed.

68. The Defendant stated that she is prepared to file the necessary evidence in this regard if necessary. (I do not suggest any criticism of the Defendant as the necessary evidence was obtained by the tutor and could have been filed in the Chinese proceedings by her, or by the deceased’s parents, who are, as I understand it, parties in those proceedings: Tcpt, 14 August 2019, p 180(05–11).)

69. Annexed to the Defendant’s affidavit affirmed on 2 November 2017, was a translated document headed “Legal Opinion on the Inheritance of Real Estate” dated 26 October 2017, from Mr Wang Lunfeng, referred to above. Mr Lunfeng is a Chinese lawyer who stated that he has “engaged in legal work for many years” and “has the in-depth study in the inheritance and corporate law”.

70. Mr Lunfeng confirmed that the Shanghai property (to which reference has been made) is “the common property of the couple [the deceased and the Defendant] and no more than 50% will belong to [the deceased’s] legacy judged by the court with jurisdiction”. He added:

1. ‘According to <<Opinions of the Supreme People’s Court on the Implementation of Several Issues Concerning the Law of the Inheritance Law of the People’s Republic of China>> Article 37: when the testator does not retain the inheritance share for the heirs lacking ability to work and with no source of income, in dealing with heritage, the necessary inheritance shall be left for the heir, and the remaining part can be dealt with in accordance with the assigned principle of the reservation.’

According to the above law provisions, in the trial and judgment of the case, Shanghai Pudong New Area People’s Court should reserve the necessary and sufficient share for the minor children and other eligible heirs, so Tong Yuhua cannot follow the will to inherit all the legacy.

For the share judged to the minor children by the court, no one has the right to dispose it before the minor children get adult.”

71. On the third day of the hearing, I raised the significance of this evidence with the parties and informed them that the Court would require assistance on the entitlement, if any, of the Plaintiff to share in the deceased’s estate in China. Unfortunately, not much assistance was provided.

72. Counsel for the Defendant said that she had considered this aspect and would be making the submission that the Plaintiff’s entitlement was a “financial resource” that the Court would be entitled to take into account for the purpose of determining whether to make a family provision order in favour of the Plaintiff and the nature of any such order: s 60(2)(d) of the Act.

73. Counsel was reminded that she had not raised this issue in her outline of submissions, and that she had not done so at any of the directions hearings that had been held. Even if my recollection were inaccurate, counsel should not raise matters such as this obliquely: Tcpt, 14 August 2019, p 142(26) – p 145(29).

74. Legal practitioners should be reminded of what was written in Maniotis v J H Lever & Co Pty Ltd [2006] FCAFC 7, by Finn, Emmett and Bennett JJ, at [72]:

“In the efficient and proper conduct of civil litigation, even civil litigation hard fought between parties, it should always be recognised that, in the propounding of issues for trial, the parties should take steps to ensure that all relevant parties to the dispute are cognisant of what the issues are. Quietly leaving footprints in correspondence or directions hearings to be uncovered some time later in an attempt to reveal that a matter was always in issue is a practice that must be firmly discouraged. Where it is evident, or indeed suspected, that the other side is proceeding on the basis of a misconception or has not appreciated something, common sense will, as a general rule, mandate that a party ensure that the other is not proceeding on a misconception or that the other does appreciate something that has been said. No one’s interests are advanced by litigation proceeding on assumptions which are seen or suspected to be false. The only consequence of keeping issues hidden or not clearly identifying them is to disrupt the business of the court leading to the waste of valuable public resources and to lead to the incurring of unnecessary costs by the parties, costs which ultimately have to be borne by someone: see White v Overland [2001] FCA 1333 at [4].”

75. In Sydney South West Area Health Service v MD (2009) 260 ALR 702 at 716 [53]–[54]; [2009] NSWCA 343, Allsop P (as his Honour then was) (Sackville AJA agreeing) commented upon what has been described as “the ambush theory of litigation”. He wrote at [53]–[54]:

“Thirdly, the Court of Appeal has on a number of occasions since 2001 made clear that the ambush theory of litigation is dead in this State. The same thing has been said in the Federal Court: see in particular Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; 53 NSWLR 116; Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243; and Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2008] NSWCA 206. As I said in White and Overland [2001] FCA 1333 at [4], which was approved in terms by the Court of Appeal in Nolan at [28] 128:

‘by way of general principle I would simply like to make perfectly plain my view that in the efficient and proper conduct of civil litigation, even civil litigation hard fought between parties, it should always be recognised that in the propounding of issues for trial the parties should take steps to ensure that all relevant parties to the dispute are cognisant of what the issues are … [I]f, something has been said, where it is evident, or indeed suspected, that the other side is proceeding on a basis of a misconception or has not appreciated something, as a general rule, efficiency, common sense and an appreciation of the costs and resources (both public and private) likely to be wasted by confusion in litigation will mandate that a party, through his or her representative, ensure that the other side is not proceeding on a misconception or that the other side does appreciate something that has been said. Litigation is not a game. It is a costly and stressful, though necessary, evil. … [N]o one’s interests are advance by litigation proceeding on assumptions which are seen or suspected to be false.’

As I also said in Baulderstone at [160]:

‘it cannot be emphasised too strongly that it is the responsibility of the parties, through their legal representatives, to exercise a degree of co-operation to express the issues for trial before and during trial. Such co-operation can now be taken as an essential aspect of modern civil procedure in the running of any civil litigation including [in that case] hard fought commercial cases’.”

76. It is now abundantly clear that legal representatives are required to display openness and co-operation, and to express before, and during, the hearing, the relevant issues, and to avoid ambush or surprise. Furthermore, there is a statutory duty on the part of a party, and her, his, or its legal representatives in legal proceedings to assist the court to further the overriding purpose to facilitate the just, quick and cheap resolution of the real issues in dispute and to participate in the processes of the Court to that end: Civil Procedure Act, s 56.

77. There was discussion on how best to proceed, and on the fourth day of the hearing, it was agreed by the parties, and accepted by the Court, that the litigation in China probably should be determined before the determination of these proceedings. It should be observed that the Court had not been made aware, at that time, of the claim by the deceased’s parents in the second Chinese proceedings.

78. It was obvious that expert evidence would be required and although there was discussion regarding the appointment of a single expert, the parties were of the view that it would be better if there was certainty in knowing how the estate in China was to be distributed. They thought that the proceedings in China could be determined within three to six months: Tcpt, 15 August 2019, p 190(16–29).

79. The following notations and orders were then made with the consent of the parties:

1. Notes that if there is any reason that the matter is to be re-listed for the purposes of informing the Court when the Chinese proceedings are likely to be heard and determined, the parties should send a joint email to the Associate to Hallen J requesting the matter to be re-listed for the purposes of obtaining a hearing date, with an estimated duration of 1 day plus, to conclude these proceedings.

2. Notes that in the event the matter is to be listed for a continuation of the hearing, each party will be required to serve updating evidence and an agreed schedule of assets and liabilities, as previously directed.

3. Orders that in the event the Defendant intends to take any step to increase the debt secured on the property situated at XX Bapaume Road, Mosman, she is to give 14 days’ notice to the Plaintiff’s solicitors informing them of the amount of the increase.

4. Stands the matter over before Hallen J at 9:30 a.m. on Thursday, 14 November 2019.”

   80. The parties’ hope was no more than a forlorn one, as so far as the Court is aware, the proceedings in the People’s Republic of China, have not been determined.

Failure to comply with directions

81. Having reached this point, it is necessary to set out some of the procedural issues that arose culminating with the events surrounding the expert evidence and the delay that occurred.

82. The matter was, first, in the Family Provision List (as it then was) on 14 October 2016. The issues that were spawned thereafter, and before it was able to be set down for hearing, included arguments about documents relating to the financial resources of the Plaintiff, discovery of the financial records relating to the estate, the failure to comply with directions regarding service of affidavits, a late application for DNA testing of the Plaintiff, as the Defendant did not admit his paternity, and otherwise.

83. On 16 March 2018, the Court noted that both parties appeared to be in default of several directions made previously and that in the event that the matter was not ready to proceed because the parties had not completed the evidence, the matter would be listed for hearing and neither party would be able to rely on evidence served after 20 April 2018, other than with the leave of the Court or being evidence required to be filed by par 17 of Practice Note SC Eq 7.

84. On 17 August 2018, the matter was referred to the Equity Registrar for the purpose of obtaining a hearing date with an estimated duration of three days plus.

85. On 19 September 2018, the Equity Registrar listed the matter for hearing before Rees J on 6 May 2019, with an estimated duration of four days. The hearing date was vacated on 4 December 2018, and the matter was listed, for hearing, by the Equity Registrar, on 12 August 2019, for four days before me.

86. Neither party, by his and her legal representatives, complied with the directions made in regard to the preparation of the case for the hearing in August 2019, including the delivery of written submissions (albeit, in the case of the Defendant, the submissions were provided late, and with an apology). Furthermore, a schedule of assets, liabilities and costs, which was directed to be a joint schedule, was provided to the Court, only by counsel for the Defendant. This document, which comprised six pages in a spreadsheet, was far more complicated than it needed to be.

87. Counsel for the Plaintiff on the first day of the hearing frankly stated that the Plaintiff’s representatives had not given consideration to this document. He could not provide any explanation for that failure: Tcpt, 12 August 2019, p 3(31–50).

88. By way of further example, on 9 August 2019, the Friday before the commencement of the hearing, Mr S Lu, an employed solicitor at the firm of solicitors acting for the Plaintiff, telephoned my Associate to ascertain when “was the latest time” that the Court Book, which had been directed to be provided by 6 August 2019, could be delivered.

89. Despite prompting by email sent on 6 August 2019, by the Court, to which there was no response, the Plaintiff’s legal representatives did not provide any written submissions, until 9:03 p.m. on Friday 9 August 2019, when the whole of a Court Book, which included the written submissions, in nine different attachments, was sent, by email, to my Associate.

90. In addition, at the hearing, the Defendant tendered another folder of documents: Ex 1. (This bundle of documents was used to cross-examine the tutor and the deceased’s sister.)

91. There is, and can be, no excuse for not being completely familiar with the Practice Note applicable in a specialist List, with directions made by the Court in relation to the preparation for the hearing, and for non-compliance, meticulously, with the Court’s directions. This sentiment applies as much to those who regularly appear in the Succession List as to those who do not.

92. The only explanation proffered by counsel for the Plaintiff was that he had been involved in preparing for, and participating in, a hearing for the two weeks before this hearing and that he had not had an opportunity to attend to complying with the directions. There may be legitimate reasons why compliance with Court directions is not possible. That, on its own, is not one.

93. Furthermore, because, in his written submissions, counsel for the Plaintiff stated that the evidence of the Defendant on the nature and value of the property of the deceased, available for the making of an order for provision, was in dispute, far more time than was necessary had to be spent, determining the nature and value of the deceased’s estate and notional estate in New South Wales and outside the jurisdiction.

94. What has been written above about the failure to comply with the directions of the Court should not be regarded as “mere pedantry and judicial petulance or worse”: Re Venables [2018] EWHC 1037 (Fam) at [10] (Sir James Munby P). The Court, and the legal profession, must continue to enhance the culture of the timely preparation for hearings, and ensure proper compliance with the Court’s directions. Section 56 of the Civil Procedure Act is relevant in this regard.

95. Furthermore, as was written, by Campbell J, in Re XYZ, Solicitor [2005] NSWSC 72 at [3]:

“… The time taken for the hearing of the case in court is minimised if the judge has the opportunity to do these things in advance. Minimisation of court hearing time, insofar as can properly be done, is very important not only because court time is a scarce resource from the court’s point of view, but also because the hearing is a time when all the legal representatives of the parties are present at the one time, and so is likely to be the time when the rate of incurring legal costs is at its highest. It is very wasteful if the legal representatives are all waiting in court while the judge reads material that could have been read in Chambers.”

96. Regrettably, that is far from the end of the saga regarding the preparation of the case. The failures referred to were exacerbated by the subsequent failures to comply with the directions of the Court. As earlier stated, one of the reasons for the matter being adjourned part heard, was the assertion made that the Plaintiff might be entitled to provision out of the deceased’s estate that was held in the People’s Republic of China. This was only raised late during the course of the hearing. Even at the conclusion of the resumed hearing in 2020, whether he was, or was not, so entitled, is not entirely clear.

96. In this regard, more than enough opportunity, and time, was given to the parties to agree upon an expert to provide an opinion as to the likelihood of the Plaintiff being entitled to provision out of the deceased’s property in the People’s Republic of China and the matter was adjourned numerous times to enable agreement to be reached by them. Ultimately, no agreement was able to be reached.

97. On 12 May 2020, the matter was again before me, at a time when the Defendant was unrepresented. The Court made, inter alia, the following directions:

“Notes that the various opportunities given to the parties to agree upon an expert to provide an opinion going to the entitlement of the Plaintiff, if any, to any share of the deceased’s estate in China, based on Chinese Succession law, has not resulted in a single expert being able to be agreed upon.

Orders that each party is to obtain such expert evidence as he or she considers necessary on the question whether the Plaintiff is entitled to any part of the estate of the deceased in China based upon Chinese Succession law, such opinion to be provided in writing no later than 30 June 2020.

Directs that a copy of any expert report obtained by each party is to be served upon the other party no later than 7 days after receipt of the report from that expert.”

99. The Plaintiff’s expert report was dated 26 June 2020 and became Ex C in the proceedings. Counsel for the Plaintiff asserted, from the Bar table, without objection, that the report was served on 30 June 2020.

100. The Defendant failed to comply with the directions, as her expert report, entitled “Legal opinion from lawyer Han” bore the date 3 July 2020 and was sent, at least to the Court, on 5 July 2020. It became Ex 2 in the proceedings.

101. On 11 August 2020, the next return date for directions, the matter was listed for the completion of the hearing on 17 November 2020. A direction for the service of updating affidavit evidence, by 15 September 2020, was made. Neither party complied with this direction either.

102. On 13 October 2020, the Defendant informed the Court, by email, that on 30 September 2020, “the Pudong Court in Shanghai, China, heard our succession case”. Other matters were asserted in the email correspondence.

103. At my request, my Associate then sent the following email to the parties:

“This email is sent on behalf of his Honour

Dear All,

His Honour has read the email from Ms Tong.

It is difficult to discern what is being sought, but whatever it may be, his Honour will not deal with any application based on email correspondence.

Any application should be made by notice of motion, properly served. Any notice of motion should be filed and served urgently as the matter is listed for completion of the hearing on 17 November 2020.”

104. On 21 October 2020, the Defendant sent an email to the Court stating that she wanted confirmation that “the court session on November 17th can be held by phone”.

105. On 23 October 2020, the Defendant informed the Court, by email, that she had received “notice of opening session of Shanghai Court in China, the succession case is scheduled to be held at 9:30 am on November 4th …”.

106. In view of these emails, another email was sent to the parties in the following terms:

“This email is sent on behalf of his Honour

Dear All,

His Honour has been shown the email from the Defendant.

As his Honour has previously indicated, he does not propose to deal with matters raised on the basis of email correspondence.

His Honour again requests that the legal representatives, and the Defendant, liaise as to the manner in which the hearing can proceed on 17 November 2020. If the hearing proceeds by AVL, it is likely to be by way of Microsoft Teams.

If an adjournment is sought, this should be done by notice of motion and affidavit in support.”

107. It was not until 30 October 2020, that the Plaintiff’s legal representatives filed an affidavit of the tutor, and an affidavit of Mr James Pope, solicitor on the record for the Plaintiff, going to the efforts made to contact an expert on Chinese succession law. In each case, the affidavits were filed more than six weeks after the date on which those affidavits were directed to be filed and served. The Plaintiff’s legal representative filed an updating affidavit of costs on 16 November 2020, only one day prior to the hearing. There was also filed an affidavit of service of an email dated 9 November 2020, sent by a solicitor in the employ of the Plaintiff’s solicitor, to the Defendant enclosing a Notice to Produce of the same date.

108. Then, the Plaintiff’s solicitors filed two documents, on 30 October 2020, headed “Expert Report”. One was a report by Dahong Li, said to be a senior partner, at a firm of lawyers in Shanghai, China, responding to the report dated 3 July 2020 served by the Defendant. The second was a report by Dr Andrew Ellis, a forensic psychiatrist, providing “an updated psychiatric report” relating to the Plaintiff. (His earlier report was one dated 12 August 2018, a copy of which had been marked as Ex A in the proceedings.)

109. The affidavit of service by the solicitor in the employ of the Plaintiff’s solicitor, to which I have referred, made no reference to service upon the Defendant, by email, or otherwise, of a copy of any of the affidavits referred to, or to the expert reports to which I have referred.

110. The Plaintiff’s legal representatives gave no explanation for the failure to comply with the directions of the Court made in August 2020.

111. Despite these affidavits being filed, none of them were served upon the Defendant until the day before the hearing was due to be recommenced. On 16 November 2020, following the test call which was held with the Court, the solicitor for the Plaintiff and the Defendant, an email was received from the Defendant in which she complained that she had been sent “a total of six emails today involving a lot of new evidence and litigation requests”. The nature of the emails that had been sent, naturally, and thankfully, were not sent to the Court.

112. At the recommencement of the hearing, I asked each party to identify the additional documents sought to be relied upon. It was, at this time, that counsel for the Plaintiff identified documents, including an updated costs affidavit, and confirmed that they had not been provided to the Defendant until 5:48 p.m. Sydney time, the day before the hearing was to resume: Tcpt, 17 November 2020, p 206(05–30).

113. Unsurprisingly, and not unreasonably, the Defendant complained about the late service of the documents and affidavits.

114. UCPR r 10.2(1) provides that a party intending to use an affidavit that has not been filed, must serve it on each other interested party not later than a reasonable time before the occasion for using it arises.

115. It would appear that the second report of the Chinese expert relied upon was served also on the day before the hearing was to recommence. Furthermore, bearing in mind the number of occasions the issue of the expert evidence regarding the entitlement of the Plaintiff, if any, to any share of the deceased’s estate in China, based on Chinese Succession law, had been agitated before the Court, delay of this kind in serving evidence is unacceptable.

116. Even though the affidavits were filed, they were not served on the Defendant, a litigant in person, until the day before the hearing recommenced. In my view, that is not a reasonable time before the occasion for using the affidavit arises and there was not a reasonable opportunity given to the Defendant to consider, and, if necessary, respond to, any of them. Section 61(3)(e) of the Civil Procedure Act provides that if “a party to whom such a direction has been given fails to comply with the direction, the court may, by order, do any one or more of the following— … (e) it may strike out, disallow or reject any evidence that the party has adduced or seeks to adduce”.

117. In Herman v Premier Security Co-operative Ltd [2010] 3 SLR 110 at 121–122 [24]–[26]; [2010] SGCA 15, the Court of Appeal of Singapore observed, at [24]–[26] that:

“… every litigant has a general right to bring all evidence relevant to his or her case to the attention of the court. This general right is so fundamental that it requires no authority to be cited in support of it; in fact, to say that the right derives from some positive decision or rule is to understate its constitutive importance to the adversarial approach to fact-finding. The importance of the right is reflected in the fact that a litigant may pray in aid the machinery of the court to compel, on the pain of contempt, all persons who are in a position to give relevant evidence, to come forward and give it.

The general right is, of course, subject to specific limits … The adduction of relevant evidence must, as far as practicable, take place in accordance with the rules of procedure whose purpose is to ensure the fair, economical, swift and orderly resolution of a dispute. Finally, a litigant is prohibited from manipulating the court’s machinery to further his ulterior or collateral motives in an abusive or oppressive manner.

In striking the proper balance between the general right and the specific limits, a trial judge must not only be guided by the applicable rules and decisions, but must look beyond the mechanical application of these rules and decisions, and carefully assess the interests at stake in every case to ensure that a fair outcome is reached through the application of fair processes. It should always be borne in mind that grave consequences might flow from the wrongful exclusion of evidence (such as by shutting out a witness from testifying or preventing cross-examination).” (emphasis in original)

118. In this case, matters that were of significance in determining whether or not to allow the Plaintiff’s evidence referred to, included: first, the delay since the commencement of the proceedings and the delay since the matter was adjourned; second, that the Defendant was self-represented; third, the Defendant was not in New South Wales; fourth, the lack of adequate, or any, reason for the failure to comply with the Court’s various directions; and fifth, the date of the documents apparently being served.

119. The principled exercise of the Court's discretion required the Plaintiff not being permitted to read that evidence.

120. Based upon that ruling, counsel for the Plaintiff made an application for the matter to be adjourned for not less than 28 days to allow the Defendant an opportunity to consider, and respond to, the evidence. The Defendant opposed the granting of any adjournment, aptly stating “…the case has been drag (sic) on for a long time”: Tcpt, 17 November 2020, p 207(46–47).

121. Whilst the Court clearly has power, at any time, and from time to time, by order, to adjourn to a specified day any proceedings before it or any aspect of any such proceedings (see, s 66 of the Civil Procedure Act), in the exercise of my discretion, I declined to grant the adjournment sought. Any further adjournment, at that time, would have meant a significant delay in the conclusion of the hearing bearing in mind the time of year. The proceedings had been on foot since 2016, and, as the above makes clear, have been dogged by delay, caused by, amongst other things, a failure to comply with the Court’s directions. The Court has an obligation to deal with the matter, and to do so in a just, quick and cheap manner. In my view, to indulge the Plaintiff, by granting another adjournment, would have achieved none of those aims.

122. The matter then proceeded and was completed on 17 November 2020, at which time, I reserved my decision.

123. I should mention, to complete the procedural issues, that the Defendant sent an email dated 13 January 2021 to the Court, without, apparently, it being provided to the legal representative of the Plaintiff. She sent another email to the Court on 15 January 2021, although this one was sent to the legal representatives of the Plaintiff. The Defendant’s emails prompted the Plaintiff’s tutor to send an email to the Court on 3 February 2021 (comprising about 9 pages). This, in turn, prompted the Defendant to send a further email to the Court later on the same day.

124. I have ignored the email correspondence sent by the parties directly to the Court and the parties were informed thereof by emails sent, to each, at my request, by my Associate.

125. A litigant in person, whilst not being bound by Professional Rules that apply to solicitors and barristers, must remember, as must legal representatives, that:

“Written communications between a party to litigation and the judge’s associate should normally be confined to matters concerning practice or procedure. Communications including emails containing allegations, matters of substance or requests for substantive advice should not be forwarded to a judicial officer without the party’s express agreement (save in an exceptional case warranted for example by an ex parte application).

Unless the subject of express prior consent of the other parties, written communications should not include information or allegations which are material to the substantive issues in the litigation. In all circumstances, the other parties to the litigation should be copied in on any such correspondence. If a communication which apparently fails to comply with those requirements is received in chambers, it would be for judicial staff promptly to enquire whether the other party has been notified before engaging in any further exchanges with the sender. The ubiquity and prevalence of informal email communications between courts and litigants entails many advantages but, unless approached with an appropriate protocol by litigants and within judges’ chambers, presents potential risks of the errors demonstrated in the present case.”

126. See: R v Fisher (2009) 22 VR 343 at 352 [38]–[39]; [2009] VSCA 100 at [38]–[39] (Redlich and Dodds-Streeton JJA).

127. In Tugrul v Tarrants Financial Consultants Pty Limited (in liquidation) [No 2] [2013] NSWSC 1971, Kunc J, after referring to R v Fisher added, at [21]–[22]:

“There should be no communication (written or oral) with a judge’s chambers in connection with any proceedings before that judge without the prior knowledge and consent of all active parties to those proceedings. Particularly in relation to written communications, given the ubiquity and speed of emails, the precise terms of any proposed communication with a judge’s chambers should be provided to the other parties for their consent. There are four exceptions to this:

(1) trivial matters of practice, procedure or administration (e.g. the start time or location of a matter, or whether the judge is robing);

(2) ex parte matters;

(3) where the communication responds to one from the judge’s chambers or is authorised by an existing order or direction (e.g. for the filing of material physically or electronically with a judge’s associate); and

(4) exceptional circumstances.

There are three other matters. First, any communication with a judge’s chambers which falls into any of the categories set out in sub-paragraphs [21] (2), (3) and (4) above should expressly bring to the addressee associate’s or tipstaff’s attention the reason for the communication being sent without another parties’ knowledge or consent. Second, where consent has been obtained, that fact should also be referred to in the communication. Third, all written communications with a judge’s chambers in relation to proceedings should always be copied to the other parties.”

128. More recently, in Sirola & Sirola [2016] FamCA 620, McClelland J, at [15], added:

“… if consent to communicate with a Judge’s chambers cannot be obtained from the other party or parties, then the party seeking to communicate with the Judge should make a formal application for the matter to be listed before the Judge so that the argument that the party wishes to present can take place in open court. It goes without saying that open justice is a fundamental aspect of procedural fairness that is foundational to proceedings before all Australian courts.”

129. Also see, Contract Mining Services Pty Ltd v Adelaide Brighton Cement Limited [2020] SASC 69 at [28] (Livesey J).

Background Facts

130. It is next convenient to set out some of the background facts. In relation to any facts that are in dispute, to which I refer, these background facts should be regarded as the findings of the Court.

131. The deceased was born in December 1967 in the People’s Republic of China, and died, aged 48 years, in Sydney, in January 2016. His only younger sister was born in September 1969, in Shanghai, the People’s Republic of China.

132. The deceased came to Australia in about 1989. After a few years in Sydney, he started his own cleaning business, which, according to his sister, was quite successful for a time. As a result of an uninsured workplace accident, he lost the business and many of his assets. By 2003, he was working in casinos, as a professional gambler, in Sydney and then in Melbourne (from both of which casinos he was, subsequently, banned).

133. The deceased moved to Melbourne, in late 2003 or early 2004, where he lived with his parents, and his sister. The tutor and the Plaintiff visited him there, on one occasion, and stayed for about one week.

134. In February 2004, the deceased was granted Australian citizenship. Subsequently, he lost his Chinese citizenship. He was an Australian citizen at the date he executed his last Will in Australia, and at the date of his death.

135. The deceased moved back to the People’s Republic of China, as a temporary resident, in about 2006, although, in the previous two years, he would regularly travel overseas to gamble at casinos. He returned to Shanghai, where he lived until about 2013. He then returned to Australia.

136. The Defendant conceded that, at the date of death, the deceased was domiciled in New South Wales: Counsel for the Defendant’s Written Submissions, 7 August 2019 at par 1. This is an important concession in these proceedings.

137. The tutor, who as stated, is the mother of the Plaintiff, was born in March 1965 in Jiangsu, in the People’s Republic of China. She was in a relationship with the deceased between about 1998 and about 2003. She is almost 56 years old.

138. The Plaintiff was born in August 1999 and is now 21 years old. (The paternity of the Plaintiff was disputed, as his birth certificate did not disclose the name of the father. However, during the proceedings, the issue of his paternity was resolved, by the results of a paternity test, it being established that the deceased was, in fact, the father of the Plaintiff.) He, too, is an Australian citizen.

139. As shown by a copy of a registered Transfer, the deceased and the tutor purchased, as joint tenants, a house at Winston Hills (the Winston Hills property) in December 1999 for $239,000. (A copy of the Contract for sale, also in evidence, shows the sole purchaser to be the deceased and that the purchase price was $239,000: Ex 1/208.)

140. They, and the Plaintiff, lived there during part of their relationship. In about March 2000, the tutor and the Plaintiff left the Winston Hills property. Initially, they went to live in a women’s shelter at Doonside, but in about April 2000, they were relocated to a Department of Housing home unit at Northmead, where they have continued to live, at least as at the date of the tutor’s updating affidavit affirmed 15 July 2019.

141. The tutor and the deceased lived together, at times, during their relationship. They were never married. Shortly after she and the Plaintiff relocated to Northmead, the deceased contacted her and they recommenced a sexual relationship. The deceased would come and stay at the Northmead unit and she would stay at the Winston Hills property. She annexed to her affidavit, affirmed 21 November 2016, a copy of some photographs showing the three of them together, at different times, and at different places. She admitted, however, that her de facto relationship with the deceased had ended in 2003.

387. Other members of the Court of Appeal took a different view. Whilst Basten JA disavowed reliance on Petschelt, Beazley P (Meagher JA agreeing) quoted, at [105], Ward J’s decision in John v John, including the passage where her Honour quoted Petschelt. Since Phillips v James, the Court of Appeal has not had occasion to resolve the apparent conflict between the President and Basten JA.

388. At first instance, Slattery J in Manning v Matsen [2015] NSWSC 1801 at [157], cited Beazley P’s judgment. His Honour did so without any reference to the conflict between the President and Basten JA. In the same way, his Honour followed Beazley P in Carr v Douglass [2016] NSWSC 854 at [76]. Similarly, Henry J referred to the President’s judgment without reference to Basten JA’s view in Purnell v Tindale [2020] NSWSC 746 at [319].

389. I do however, observe, that, recently, Parker J (although it was unnecessary for his Honour to decide the point) preferred the view expressed by Basten JA to that in Petschelt and John v John: Graham v Vukic [2020] NSWSC 1801 at [126]–[127].

390. It is unnecessary, for present purposes, to resolve the issue, as the deceased’s “reasonable expectations” do not appear to be relevant even if (on a view favoured by Ward J, Beazley P and Meagher JA) the section permitted consideration of that view.

391. The Defendant, then, is the person whose “reasonable expectations” should be considered, since she is the spouse of the deceased, and in the events that happened, the person who has come to hold the jointly owned property by survivorship.

392. The “substantial justice and merits” referred to in s 87(b) of the Act are linked to the making, or refusing to make, an order designating property as notional estate: Smith v Woodward (Supreme Court (NSW), Macready M, 9 September 1994, unrep) at 20. (In that case, the reference was to the equivalent provision (s 27(1)(b)) of the former Act.)

393. The position of both parties should be considered in respect of s 87(b) and s 87(c).

394. Section 89(1) of the Act relevantly provides that in determining what property should be designated as notional estate of the deceased, the Court must have regard to (a) the value and nature of any property the subject of a relevant property transaction; (b) the value and nature of any consideration given in a relevant property transaction; (c) any changes in the value of property of the same nature as the property referred to in paragraph (a), or the consideration referred to in paragraph (b), in the time since the relevant property transaction was entered into; (d) whether property of the same nature as the property referred to in paragraph (a), or the consideration referred to in paragraph (b), could have been used to obtain income in the time since the relevant property transaction was entered into; and (e) any other matter it considers relevant in the circumstances.

395. If the Court has made, or proposes to make, a family provision order designating certain property as notional estate, s 92 of the Act enables the Court, on application by a person who offers other property in substitution (the replacement property), to vary the notional estate order by substituting the replacement property for the property designated as notional estate by the order, or to make a notional estate order designating the replacement property as notional estate instead of the property proposed to be designated as notional estate by such an order, as appropriate. However, such an order may only be made if the court is satisfied that the replacement property can properly be substituted.

Some Additional Principles

396. Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act. Other judges, and I, have repeated them in many cases under the Act.

397. The Court’s discretion in making an order is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased’s freedom of testation: Pontifical Society for the Propagation of the Faith v Scales at 19 (Dixon CJ); McKenzie v Topp [2004] VSC 90 at [63] (Nettle J).

398. Bryson J noted in Gorton v Parks, at 6, that it is not appropriate to endeavour to achieve “an overall fair” division of the deceased’s estate. It is not part of the court’s function to achieve some kind of equity between the various claimants.

399. As Pembroke J repeated in Sung v Malaxos [2015] NSWSC 186 at [5]:

“Fairness and equality are not touchstones for relief under the Succession Act.”

400. In Stott v Cook (1960) 33 ALJR 447 at 453–454, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to re-work a Will according to the Court’s own notions of fairness. His Honour added:

“There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged.” (emphasis in original)

401. Dixon CJ, in Pontifical Society for the Propagation of the Faith v Scales, at 19, commented upon the consideration that was to be given to the deceased’s wishes:

“The words ‘proper maintenance and support’, although they must be treated as elastic, cannot be pressed beyond their fair meaning. The Court is given not only a discretion as to the nature and amount of the provision it directs but, what is even more important, a discretion as to making a provision at all. All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator’s decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court.”

402. In all cases under the Act, what is adequate and proper provision is necessarily fact specific.

403. The size of the estate and potential notional estate is a consideration in determining an application for provision. However, its size does not justify the Court re-writing the deceased’s Will in accordance with its own ideas of justice and fairness: Bowyer v Wood (2007) 99 SASR 190 at 202–203 [41]; [2007] SASC 327 at [41] (Debelle J, Nyland and Anderson JJ agreeing); Borebor v Keane (2013) 11 ASTLR 96 at 110 [67]; [2013] VSC 35 at [67] (Hargrave J).

404. The role of the Court is not “to address wounded feelings or salve the pain of disappointed expectations” that the applicant might feel: Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep) at 7.

405. In Foley v Ellis [2008] NSWCA 288 at [88], Sackville AJA (Beazley and Basten JJA agreeing) noted that Singer v Berghouse:

“… strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased’s bounty. These claimants include other beneficiaries entitled to a share of the deceased’s estate, whether or not they themselves have made a claim under the Family Provision Act.”

406. However, the Defendant, as the sole beneficiary named in the deceased’s Will, does not have to prove an entitlement to the provision made for her, or justify, otherwise, such provision. Nor does she have to explain the decision by the deceased to make the provision that he did for her in the Will.

407. Section 65(1) of the Act requires a family provision order to specify:

(a) the person or persons for whom provision is to be made, and

(b) the amount and nature of the provision, and

(c) the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and

(d) any conditions, restrictions or limitations imposed by the Court.

408. The Court’s order may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or “in any other manner the Court thinks fit”: s 65(2) of the Act. If provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest: s 65(3) of the Act.

409. Section 66 of the Act sets out the consequential and ancillary orders that may be made.

410. Unless the Court orders otherwise, any family provision order made under the Act takes effect, relevantly, as if it were a codicil to the Will: s 72(1)(a) of the Act. As was written by Brereton J in Liprini v Liprini [2008] NSWSC 423 at [14], a family provision order is:

“… a unique [one] which in effect, is not really a judgment or order of the Court at all. It has effect not as a court order, but as a codicil to the Will; and is to be enforced not as a court order but as a codicil, by the remedies which a beneficiary has against a defaulting executor. Such an order does not bind the executor, who is a defendant to the Family Provision Act proceedings, as an order for payment of money or to do an act or thing, but only in an indirect manner insofar as it imposes a new obligation in the trusts of the Will, to be enforced as such.”

411. On the topic of the relationship between an applicant and the deceased, Campbell JA (Giles JA and Handley AJA agreeing) noted, in Hampson v Hampson (2010) 5 ASTLR 116 at 133 [80]; [2010] NSWCA 359 at [80]:

“The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad-brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge.”

412. In Andrew v Blair [2007] NSWSC 1003, Young CJ in Eq wrote, at [5]:

“… in cases where a person is seeking an order under this Act it is customary to put into evidence, as much as one can, the material from which the court can see that there has been a strong bond between the deceased and the child. Where a person has a solicitor acting for him, and he does not do so, the court is at liberty to be suspicious. When the court also sees that it was admitted in cross-examination that there were periods where there was no contact because the plaintiff did not know where his father was, because he had moved, and where one sees in the affidavit of the plaintiff that the deceased said that he could not afford phone calls, one is entitled to discount the material that the plaintiff puts forward as to the extent of the contact.”

Qualifications on “Principles”

413. As long ago as 1980, in White v Barron, at 440, Stephen J wrote:

“… this jurisdiction is pre-eminently one in which the trial judge’s exercise of discretion should not be unduly confined by judge-made rules of purportedly general application.”

414. As I have stated in many cases (see, for example, Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [117]), I do not intend what I have described as “principles” or “general principles” to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I do not intend what is provided as a guide to be turned into a tyrant.

415. It is necessary for the Court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the basis for a family provision order has been established. Every case is different and must be decided on its own facts. Cases involve different classes of eligible person, different factual circumstances, and different competing claims by others upon the estate of the deceased.

416. As Lindsay J wrote in Verzar v Verzar at [131]:

“Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]–[19].”

417. The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox at [18]–[19] (Basten JA), [66]–[67] (Barrett JA, Gleeson JA agreeing); in Burke v Burke (No 2) (2015) 13 ASTLR 313 at 329 [84]–[85]; [2015] NSWCA 195 at [84]–[85] (Ward JA, Meagher and Emmett JJA agreeing); Yee v Yee [2017] NSWCA 305 at [172] (McColl JA, Gleeson and Simpson JJA agreeing); and Steinmetz v Shannon at [37] (White JA). They must be remembered.

418. But, as Brereton JA also wrote, in Steinmetz v Shannon, at [106]–[108]:

“As this Court pointed out in Burke v Burke, such observations are not rules of law, but guidelines that may give assistance and provide guidance that are not to be elevated to rules of law. That does not mean that they are without importance and significance, because, as Basten JA explained in Chapple v Wilcox:

[19] … the real provenance of the ‘principles’ is that they constitute a reflection of community values, being a factual matter, but one as to which reasoned findings of judges with experience in these matters may well provide valuable guidance.

Similarly, Barrett JA explained:

[67] … [they] provide a useful touchstone that may be applied with circumspection by judges called upon to ascertain and apply ‘the feeling and judgment of fair and reasonable members of the community’ in cases of the present kind.

Such guidelines also provide the additional benefit of affording a certain amount of consistency in decision-making, and indication of expectations and advice to litigants. Without such guidelines, decision-making and advising in this field becomes a morass of idiosyncratic decisions devoid of any consistency.”

419. (In relation to Steinmetz v Shannon, I should mention that an application for special leave to appeal the Court of Appeal decision, made to the High Court, was dismissed upon the basis that “[t]he appeal proposed by the applicant would enjoy insufficient prospects of success to warrant the grant of special leave”: Shannon v Steinmetz [2019] HCASL 332 at [1] (Gageler and Keane JJ).)

420. In addition, the formulation of principles, whilst not intended to “constitute a fetter upon the discretion not intended by the legislature”, may assist in avoiding arbitrariness and may serve the need for consistency that is an essential aspect of the exercise of judicial power under the Act.

Determination

421. What is written below should be read as a continuation of what has been written above. In addition, I have had regard to all of the factual, and other, matters, so far as they are relevant, to my conclusions set out below. Merely because specific reference has not been made to facts previously identified, should not lead to the view that they have not been fully considered.

422. As already stated, there is no dispute that the Plaintiff is an eligible person. Nor is it in dispute that he commenced his claim within time. The first question, therefore, is whether, at the time the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the Plaintiff has been made by the deceased’s Will.

423. No provision in the deceased’s Will was made for the Plaintiff, which means that this is a case where a child of the deceased, who cannot be regarded as being able bodied and self-sufficient, has been excluded, completely, from participation in the estate of one of his parents. The jurisdiction of the Court is designed to provide for an eligible person, including an adult child, where inadequate provision is made for her, or his, maintenance, education or advancement in life: Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 at 29 (Kirby P).

424. Judged by quantum and looked at through the prism of his own financial resources and needs, adequate provision for the Plaintiff’s proper maintenance, education, or advancement in life, could be seen as not having been made by the Will of the deceased.

425. When the Court approaches the question for which s 59(2) of the Act provides, it should place itself in the position of the deceased and consider what he ought to have done in all the circumstances of the case. This consideration occurs in light of the facts known at the time when the Court is considering the application. The Court treats the deceased as a wise and just, rather than as a fond and foolish testator: Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478–479 (Lord Romer for the Board); Pontifical Society for the Propagation of the Faith v Scales at 19–20 (Dixon CJ). The Court should also make allowance for current social conditions and standards: Andrew v Andrew at [34] (Basten JA) and, where it is considered relevant to do so, have regard to the matters set out in s 60(2) of the Act to determine whether to make a family provision order and the nature of any such order.

426. There was no explanation given by the deceased, in the Will, or otherwise, for the complete omission of the Plaintiff as a beneficiary. In any event, any explanation by the deceased would not relieve the Court from conducting the enquiry required by the Act.

427. When determining whether adequate provision has been made for the proper maintenance, education or advancement in life of the applicant, what is “adequate” is assessed by reference to, inter alia, the size of the estate, the needs and claim of the applicant, the relationship of the applicant and the deceased, and the need and claim of other persons who have a legitimate claim upon the bounty of the deceased. In considering all of these matters, I have come to the view that some provision should be made for the Plaintiff.

428. Whilst the tutor of the Plaintiff might have been more forthcoming, I am satisfied, from all the evidence that I have read and heard, that the Plaintiff’s financial resources are not strong. It appears from the bank records that his income is by way of a pension. He does not appear to have any capital sum for exigencies of life.

421. However, I am unable to accept that he does not have any earning capacity as a pianist, although the level of that earning capacity is difficult to gauge. Yet, I am of the view that his medical condition makes extremely difficult his ability to obtain mainstream employment. However, that same medical condition makes his needs for advancement in life somewhat more limited, as it appears that he lives a fairly spartan lifestyle.

422. I have also borne in mind that the Plaintiff’s relationship with the deceased was not as close as the deceased’s relationship with the Defendant and Yitong, but, in this regard, I also remember the Plaintiff’s medical condition. In part, the deceased appeared to have been disappointed at the Plaintiff’s reaction to him, which it would seem, may have been caused by his medical condition. Autism spectrum disorder, as I understand it, is a complex neurodevelopmental disorder which includes difficulties with social communication and interaction. The deceased’s view of the Plaintiff was not justifiable when one considers the Plaintiff’s medical condition. A wise and just parent would have recognised that the Plaintiff’s response to him was unlikely to have been one caused by factors within the Plaintiff’s control.

423. Having read, and heard, the evidence, I am satisfied that the deceased’s feelings of disappointment with the relationship he had with the Plaintiff, if a reason for making no provision, should not be decisive in the conclusions that I reach regarding the Plaintiff’s entitlement to, and the quantum of, the provision.

424. As I must, I have also had regard to, and respect, the deliberate scheme of testamentary dispositions made by the deceased as a capable testator. As stated above, the deceased’s decisions reflected in his last Will should not merely have a prima facie effect, the real dispositive power being vested in the Court. However, not unnaturally, they are based on the sole perspective of the deceased. In this case, he chose the Defendant, his wife of some years, as the chosen object of his testamentary bounty. Bearing in mind her financial and non-financial contributions, this is hardly surprising.

425. Also, whilst I must consider the competing claim of the Defendant on the bounty of the deceased, I also bear in mind the lack of evidence of her financial resources and needs and the size of the estate and notional estate of the deceased both within, and outside, the jurisdiction.

426. In all the circumstances, I have concluded that the Plaintiff has established that the deceased’s Will does not make adequate provision for his proper maintenance, education, or advancement in life. The test established by s 59 of the Act has regard not only to what is “adequate” by reference to the applicant’s needs, but also to what is “proper” in all the circumstances of the case. It cannot be forgotten that the Plaintiff is one of only two children of the deceased. The general community expectation, by which I mean the Court’s perception of what fair and reasonable members of the community would expect of a wise and just testator, knowing all the circumstances, would expect him to have made some provision for the Plaintiff. Not to make an order would require the Plaintiff to be dependent upon the pension and any prize money that he may earn, assuming he continues as a pianist.

427. I have not forgotten the Defendant’s substantial financial and other contributions to the deceased’s estate and her legitimate claim, as a spouse, upon the deceased’s bounty. I have also not forgotten that she is now a single parent rearing a teenage child, who is dependent upon her financially and otherwise.

428. But, I am also satisfied that making some provision for the Plaintiff will not unduly affect, significantly, the financial resources of the Defendant when one considers the quantum of the provision to be made and the nature and value of the deceased’s estate and the value of property that may be designated as notional estate.

429. As the Plaintiff has established the jurisdictional threshold, the question then is what provision ought to be made for him from the estate or notional estate of the deceased. In this regard, the role of the Court is to make “adequate” provision in all the circumstances for his “proper” maintenance, education and advancement in life: Meres v Meres [2017] NSWSC 285 at [114]; Gorton v Parks at 6 (Bryson J).

430. I also have considered the matters contained in s 60(2) of the Act which may be considered for the purpose of determining whether to make a family provision order. The quantum of the provision to be made is a more difficult question. It involves “an instinctive synthesis that takes into account all the relevant factors and gives them due weight”: Grey v Harrison [1997] 2 VR 359 at 367 (Callaway JA, Tadgell and Charles JJA agreeing). It is not a scientific, or arithmetic, exercise and it is often difficult to articulate the factors which contribute to that “instinctive synthesis”. However, similar considerations as are set out above often arise.

431. My evaluative judgment should be, and has been, “guided and assisted by considering what provision, in accordance with perceived prevailing community standards of what is right and appropriate, ought be made”; and is to be undertaken assuming full knowledge and appreciation of all the relevant circumstances of the case: Andrew v Andrew at [16] (Allsop P).

432. As well, I remember the need to give due regard to “what the testator regarded as superior claims or preferable dispositions” as identified in Pontifical Society for the Propagation of the Faith v Scales at 19 (Dixon CJ).

433. Having regard to the size of the estate overseas, and the property in New South Wales that may be designated as notional estate, the Court should not make an order in the amount sought by the Plaintiff. To provide such a lump sum would exceed what, in my view, is “proper”, in all the circumstances. I have also borne in mind the financial provision which was made by the deceased during his lifetime for the benefit of the Plaintiff.

434. In my view, the Plaintiff should receive a lump sum of $175,000. This amount will provide him with a lump sum for the exigencies of life. It will also enable him, to the extent that he is required to pay for it, to continue to obtain professional treatment and support for his medical conditions. (In this regard, the fact that he is obtaining a pension may lead to obtaining government support, through the National Disability Insurance Scheme, in this regard.)

435. The prospect of the Plaintiff receiving a benefit as a result of the proceedings taken in the People’s Republic of China is also a relevant matter account of which may be taken.

436. It is necessary to consider whether any conditions, restrictions or limitations should be imposed by the Court. I discussed this question during the course of the hearing, before the matter was adjourned, and suggested that one alternative was to make provision for the Plaintiff, but order that in the event that the Plaintiff receive some provision out of the deceased’s estate in the People’s Republic of China, or otherwise out of the deceased’s estate, pursuant to an order made in those proceedings, he should repay the amount: Tcpt, 14 August 2019, p 140(45)) – p 141(02), p 142(03–24).

437. The undertaking given by the tutor (Ex D) is not helpful on the topic as it simply states that the tutor has not instigated any proceedings in any Chinese court and that she is not seeking any part of the deceased’s estate in any Chinese court on behalf of the Plaintiff. It does not include any undertaking, given on behalf of the Plaintiff, to repay, to the estate of the deceased, in Australia, any part of the deceased’s estate that the Plaintiff receives pursuant to an order of the Chinese Court.

438. Ultimately, I have concluded that no condition, restriction or limitation should be imposed by the Court. I am simply not able to be satisfied, on the state of the expert evidence, whether the Plaintiff is likely to receive any provision out of the deceased’s estate situated in the People’s Republic of China.

439. As there was no dispute, at the commencement of the hearing, that the usual orders for costs should be made, I should make those orders. I considered whether the Defendant should be given an opportunity to seek any other order in relation to the Plaintiff’s costs, but ultimately, I have concluded that the fault for the way in which the proceedings were conducted lies with both parties. If agreement cannot be reached on the quantum of the Plaintiff’s costs, then they will simply have to be assessed. Naturally, taking that course is likely to delay completion of the administration of the deceased’s estate.

440. I next turn to the manner in which the provision ordered to be made for the Plaintiff, and his costs, is to be provided, and the part, or parts, of the estate out of which it is to be provided. Naturally, as the sole beneficiary named in the deceased’s Will, the burden of the provision made for the Plaintiff should be borne by the Defendant.

441. As stated, there is insufficient property in the actual estate, in New South Wales, to satisfy the order for provision and any order for costs that may be made. Whilst there is actual estate overseas, including cash in one, or other, of the bank accounts to which reference has been made, the Defendant may choose not to remit any part of that cash to Australia. She is not living in Australia at the present time, and may not be able, or may not wish, to return, in the foreseeable future, due to the worldwide pandemic or otherwise. Accordingly, subject to giving the Defendant an opportunity to satisfy the order for provision, out of the estate, I shall designate property as notional estate.

442. In the present case, the Court is able to designate, as notional estate, from one half of the net proceeds of sale (being the deceased’s notional share of the net value of the Mosman property), no more than is necessary, in the Court’s opinion, to allow the provision that should be made, and since the Court is also making an order for the Plaintiff’s costs, those costs.

443. In this regard, I have borne in mind the financial, and other contributions, made to its purchase, the fact that for a short period it was the Defendant’s home, and that she wishes to live in it upon her return to Australia (if that remains her desire).

444. The order I propose to make takes into account the substantial justice and merits involved in making the order. To do otherwise would involve extreme difficulty, if not impossibility, in the Plaintiff enforcing the order being made and any order for costs that is made.

445. Because of the nature of the orders for provision and any costs orders that are to be made, it will be unnecessary to make any adjustments which would have been made in favour of the Defendant, as the surviving joint tenant, if there had been a partition when the deceased was alive.

446. During the course of the hearing, the Defendant made an open offer (Tcpt, 14 August 2019, p 171(37–41)) of $300,000 inclusive of costs. As the matter proceeded thereafter, the offer must have been rejected or otherwise lapsed.

447. When the hearing resumed, I discussed with counsel for the Plaintiff the possibility of allowing the Defendant some period of time to raise any lump sum ordered. Upon counsel’s concerns being ameliorated by the suggestion of a charge over the Mosman property pending payment of the lump sum, he indicated that there was no objection to “something like three or four months to raise the funds”: Tcpt, 17 November 2020, p 217(10–33). Whilst the Defendant did not seem to express a view either way, I cannot see any reason why she would oppose the order proposed.

448. If the Defendant does not pay the lump sum, then it will be necessary for the Plaintiff to re-list the matter to obtain an order for the sale of the Mosman property and the distribution, from the proceeds of sale, of the lump sum provision that has been made for the Plaintiff, any interest accrued thereon, and any costs that are ordered to be paid. (Such an order could have been made as part of the orders but, regrettably, no trustees for sale were proposed by the Plaintiff.) The Court has power to make such orders as part of the suite of powers provided for in s 66 of the Act for the purpose of giving effect to the family provision order made in favour of the Plaintiff.

449. The Act provides that if provision is to be made by payment of an amount of money, the family provision order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of the interest: s 65(3) of the Act. I propose to order that that no interest is to be paid on the lump sum if it is paid within three months of the date of the making of the orders; and if not so paid, interest is to be paid on any unpaid part thereof, calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act, from three months and one day from the date of the making of these orders until the date of payment in full.

450. As it was accepted that the Plaintiff is a person under a legal incapacity, the lump sum should be paid into Court: s 77(2) of the Civil Procedure Act. The Plaintiff, by his tutor, may seek an order, in these proceedings, for the lump sum to be disbursed to trustees to be held for the Plaintiff.

451. The Court:

1. Orders, having found the Plaintiff is an eligible person, and the provision made for him in the Will of the deceased, is inadequate for his proper maintenance, education or advancement in life, that the Plaintiff receive, by way of provision, a lump sum of $175,000, out of the estate, or if not paid in accordance with these orders, out of the notional estate, of the deceased.

2. Orders that no interest is to be paid on the lump sum if it is paid within 3 months of the date of the making of these orders; otherwise, interest calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898 (NSW), on unpaid legacies, is to be paid from 3 months and 1 day from the date of the making of these orders until the date of payment in full.

3. Orders that the burden of the provision made for the Plaintiff be borne by the share of the deceased’s estate passing to the Defendant.

4. Orders that the Plaintiff’s costs, calculated on the ordinary basis, of the proceedings, be paid out of the estate, or notional estate, of the deceased.

5. Orders that the Defendant’s costs, calculated on the indemnity basis, of the proceedings, be paid, or retained, as the case may be, out of the estate, or notional estate, of the deceased.

6. Orders, in the event the lump sum, any interest accrued thereon, and the Plaintiff’s costs, are not paid out of the estate of the deceased, that one-half of the proceeds of sale of the property situated at XXX Bapaume Road, Mosman, Sydney, in the State of New South Wales, be designated as notional estate of the deceased to the extent necessary to satisfy orders (1), (2) and (4).

7. Orders, that until the payment by the Defendant, the lump sum of $175,000, constitutes a charge upon the property situated at XXX Bapaume Road, Mosman, New South Wales.

8. Orders pursuant to s 77(2) Civil Procedure Act 2005 (NSW) that the lump sum payable to the Plaintiff be paid into Court.

9. Orders, that until the payment of the Plaintiff’s costs by the Defendant, that the amount of $100,000 shall constitute a charge upon the property situated at XXX Bapaume Road, Mosman, New South Wales.

10. Orders that the payment into Court, by the Defendant, of $100,000 on account of the Plaintiff’s costs will be sufficient to satisfy the charge for costs.

11. Notes that the charge, in the amount of $100,000 on account of the Plaintiff’s costs, does not prejudice those costs, calculated on the ordinary basis.

12. Grants liberty to any party to apply, in these proceedings, no earlier than three months from the date of the making of these orders, for consequential and ancillary orders for the purpose of, or with respect to, giving effect to, and implementing, the family provision order made in favour of the Plaintiff, including, but not limited to, seeking orders under s 66 of the Act for the sale of the property situated at and known as XXX Bapaume Road, Mosman, New South Wales, the appointment of trustees for sale and the doing of such other things as are necessary for the purpose of giving effect to the orders of the Court.

13. Orders that the Exhibits be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (r 31.16A and r 33.10) and Practice Note SC Gen 18.

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Decision last updated: 05 February 2021