Yee v Yee

[2017] NSWCA 305

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Yee v Yee [2017] NSWCA 305
Hearing dates:	6 December 2016, final submissions: 27 January 2017
Decision date:	28 November 2017
Before:	McColl JA at [1], Gleeson JA at [193], Simpson JA at [210]
Decision:	Appeal dismissed with costs
Catchwords:	SUCCESSION – family provision and maintenance – eligible person – application for provision by nephew – whether factors warranting application – whether nephew established he should be regarded as natural object of testamentary recognition by uncle – community standards – Succession Act 2006 (NSW), s 57(1)(e), s 59(1)(b) SUCCESSION – family provision and maintenance – notional estate order – parties – joinder – Succession Act 2006 (NSW), s 92 – Uniform Civil Procedure Rules 2005 (NSW), r 6.24(1) SUCCESSION – family provision and maintenance – family provision order
Legislation Cited:	Family Protection Act 1908 (NZ) Family Provision Act 1982 (NSW) Family Provision Act 1982 (NSW) Inheritance (Family Provision) Act 1938 (UK) Succession Act 2006 (NSW) Supreme Court Act 1970 (NSW) Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 Barns v Barns (2003) 214 CLR 169; [2003] HCA 9 Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Brown v Faggoter [1998] NSWCA 44 Brown v Tasmania [2017] HCA 43 Burke v Burke [2015] NSWCA 195; (2015) 13 ASTLR 313 Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 Churton v Christian (1988) 13 NSWLR 241; [1998] NSWCA 23 Dijkhuijs (formerly Coney) v Barclay (1988) 13 NSWLR 639 Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89 Ebert v Ebert; Ebert v Ebert [2008] NSWSC 1206 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 Foley v Ellis [2008] NSWCA 288 Golosky v Golosky (Court of Appeal (NSW), 5 October 1993, unrep) House v R (1936) 55 CLR 499; [1936] HCA 40 In re Sinnott [1948] VLR 279 John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Kavalee v Burbidge; Hyland v Burbidge (1998) 43 NSWLR 422 Lloyd-Williams v Mayfield (2005) 63 NSWLR 1; [2005] NSWCA 189 Mulcahy v Weldon [2002] NSWCA 206 Page v Page [2017] NSWCA 141 Palmer v Dolman [2005] NSWCA 361 Penfold v Perpetual Trustee [2002] NSWSC 648 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 Porthouse v Bridge [2007] NSWSC 686 Re Fulop Deceased (1987) 8 NSWLR 679 Sassoon v Rose [2013] NSWCA 220 Schaefer v Schuhmann [1972] AC 572 Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 Smith v Dayman [1994] NSWCA 286 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Wheatley v Wheatley [2006] NSWCA 262
Texts Cited:	National Committee for Uniform Succession Laws, Report to Standing Committee of Attorneys General on Family Provision, (December 1997) New South Wales Law Reform Commission, Report 28 (1977) – Testator's Family Maintenance And Guardianship Of Infants Act, 1916, (1977)
Category:	Principal judgment
Parties:	William Yee (Appellant) Robert Yee (First Respondent) Phillip Yee (Second Respondent)
Representation:	Counsel: M Thompson (Appellant) AD Crossland (Respondents)   Solicitors: Gerard Malouf & Partners (Appellant) Low Doherty & Stratford (Respondents)
File Number(s):	2016/122310
Publication restriction:	No
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2016] NSWSC 360 Date of Decision: 01 April 2016 Before: Slattery J File Number(s): 2013/359058

HEADNOTE

[This headnote is not to be read as part of the Judgment]

The appellant, William Yee, brought proceedings against the respondents, Robert Yee and Phillip Yee, the executors of the estate of the late Norman Yee, William’s uncle, seeking a family provision order under Ch 3 of the Succession Act 2006 (NSW) (the Act) from the estate and/or the notional estate.

Norman was born in China in 1924 and migrated to Australia in 1941. In 1949 he married Doreen. As the eldest members of their respective family groups in Australia, Chinese culture considered Norman and Doreen to be “family patriarchs”. As such, they were obliged to support members of their respective family groups. In this capacity, from the 1950s to the 1980s, Norman and Doreen assisted many family members to migrate to Australia both from Hong Kong and Southern China by providing accommodation and employment. They expressed a strong interest in the welfare of many members of their extended families.

William was Norman’s nephew. His father, Yu Man Wai, was Norman’s eldest brother. William was born in Hong Kong. He was also a beneficiary of Norman and Doreen’s generosity. In 1961, when he was 10 years old, he was sent by his parents to live in Australia with Norman and Doreen and their two adopted children, Robert and Elaine. In total, William lived with Norman and Doreen for about 13 years, albeit, save for the first 10 or so years after his arrival, not continuously.

After he separated from the mother of his first child, William lived in apartments owned by Norman in respect of which occupation he was obliged to pay rent. In 1981 Norman also gave William a restaurant, although that business failed both because of William’s lack of business acumen and other issues. In 2004, at the age of 53, William and his wife moved to a property they bought in Baulkham Hills. After this time, he continued to see Norman five to seven times a year, generally at communal family gatherings.

Norman made seven wills throughout his life. None made provision for William, or for anyone who might be regarded as other than his immediate family in the sense of his wives (he re-married in 1994 after Doreen died in 1991) and his adopted children.

In March 2012 Norman was diagnosed with cancer. He died in May 2013, aged 89. William had little contact with Norman during his illness.

On 28 November 2013 William filed a summons seeking orders that provision be made for his maintenance, education and advancement in life pursuant to s 59 of the Act. William’s case, in substance, was that, by reason of the long period he spent living in Norman’s household in his adolescent years and early adulthood, he was, in effect, Norman’s foster son as demonstrated not only by those periods of joint cohabitation, but also by his relationship with Norman thereafter. As Norman’s nephew, William had to establish that there were factors warranting the making of his application pursuant to ss 57(1)(e) and 59(1)(b) of the Act.

The primary judge dismissed the summons on the basis that William had failed to establish any factors warranting his application. His Honour found that, viewed in the context of his patriarchal role, Norman’s treatment of William was not exceptional. Rather, Norman treated many other members of his extended family in the same way that he treated William. The primary judge rejected William’s contention that their relationship was “well beyond that of an uncle and nephew”.

On appeal, William submitted the primary judge erred in not recognising that he was placed in Norman’s inner circle in critical respects which differentiated his position from that of Norman’s extended family. He contended that his Honour’s factual errors warranted a finding that he had erred in not finding factors warranting the making of William’s application.

The respondents’ case was that it was necessary for the primary judge to determine the quality of the relationship between Norman and William. They argued that when that exercise was undertaken as the primary judge did, his Honour had not erred in concluding that William was not closely connected to Norman and nor was there a special relationship between them.

The principal issues on appeal were:

(i)   Whether the primary judge had erred in the respects contended for by William such that his Honour’s discretion miscarried and his Honour should have found that there were factors warranting the making of William’s application.

(ii)   Even if the primary judge had found factors warranting William’s application, whether the evidence would not have permitted his Honour to conclude that adequate provision for William’s proper maintenance, education or advancement in life had not been made by Norman and whether the primary judge would not have exercised his discretion to make a family provision order in William’s favour.

Held, dismissing the appeal with costs:

As to issue (i), per McColl JA (Gleeson and Simpson JJA agreeing)

(1)   A review of a primary judge’s determination of questions concerning factors warranting on appeal to this Court is to be undertaken according to the principles applicable to the exercise of a discretionary power. It is necessary to demonstrate that the primary judge erred in a respect identified in House v R (1936) 55 CLR 499; [1936] HCA 40. (at [108] – [110])

Sassoon v Rose [2013] NSWCA 220; Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 applied.

(2)   William fell within the category of eligible persons who are potentially appropriate objects of testamentary recognition, depending upon their circumstances. As such, he was required to establish factors which, when taken within the facts which rendered him an eligible person, gave him the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. (at [111] – [118], [170] – [172], [175])

Re Fulop Deceased (1987) 8 NSWLR 679; Churton v Christian (1988) 13 NSWLR 241; [1998] NSWCA 23; Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392; Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 applied.

Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11; Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89; Page v Page [2017] NSWCA 141 referred to.

(3)   The primary judge erred in finding that William’s period of residence in Norman’s household was only 10 years, not 13 years, and in miscalculating the periods various members of Norman’s and Doreen’s extended family lived with them. However, this error was not such as would have the consequence that his Honour’s conclusion, in having regard all the circumstances that there were no factors warranting, miscarried. (at [122], [133])

(4)   The primary judge did not err in concluding William was not in Norman’s “inner circle” and was not “more closely connected” to Norman than others. Rather, the overall picture of William and Norman’s relationship was that of people who had an incidental family relationship. In reaching that conclusion, his Honour considered all circumstances such as were relevant to William’s claim. (at [134], [153], [174])

(5)   Such a relevant, but not determinative, circumstance included William’s subjective view of his relationship with Norman (that he was a substitute for a relationship for his natural father). (at [161]) It was also relevant for his Honour to have regard to, and compare William’s position to, Norman’s children and other family members as they were the natural objects of his testamentary recognition. (at [169])

(6) William had not established that the primary judge erred in a House v R (1936) 55 CLR 499; [1936] HCA 40 sense in concluding that William had not established there were factors warranting his application. (at [178])

As to issue (ii), per McColl JA (Gleeson and Simpson JJA agreeing)

(1)   It was unnecessary to address the issue of what, if any, family provision order should be made. However, in the event of a favourable factors warranting decision, the factual and legal issues raised by the application for a family provision order should have been remitted for determination by the primary judge. (at [187] – [188], [190])

Observation by Gleeson JA concerning notional estate (McColl and Simpson

JJA agreeing)

(1) If a notional estate order is sought under s 80 of the Act with respect to property to be designated as notional estate, it is necessary to join the legal owners of the notional estate as defendants, in addition to the joinder of the representative of the deceased’s estate. Such an order can only be made after giving the affected person the opportunity to be heard in opposition to the making of such an order. (at [191], [196], [209], [210])

Smith v Dayman [1994] NSWCA 286; John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 applied.

Judgment

Factual background - paragraph 5

Legislative framework - paragraph 12

Primary judgment - paragraph 15

Norman Yee - paragraph 18

William’s credibility - paragraph 23

Robert’s credibility - paragraph 26

Norman’s contribution to William’s life - paragraph 29

William’s personal relationship with Norman - paragraph 44

Norman’s last years – 2009 to 2013 - paragraph 54

Norman’s relationship with William and Robert - paragraph 62

Norman’s role assisting family members to Australia - paragraph 72

William’s financial progress - paragraph 76

William and Rosalba’s personal and financial circumstances - paragraph 78

Robert and Karen’s personal and financial circumstances - paragraph 82

The five “factors warranting” - paragraph 83

First factor warranting: intimacy of relationship - paragraph 86

Second factor warranting: full-time living arrangement - paragraph 87

Third factor warranting: role of Norman as substitute father - paragraph 88

Fourth factor warranting: Norman’s prominent role in William’s life - paragraph 89

Fifth factor warranting: exceptional treatment of William - paragraph 90

Issues on appeal - paragraph 94

Parties’ submissions: outline - paragraph 97

Consideration - paragraph 107

Nature of the appeal - paragraph 108

Factors warranting: s 59(1)(b) - paragraph 111

Grounds of appeal - paragraph 119

First appeal ground - paragraph 120

Second appeal ground - paragraph 123

Third appeal ground - paragraph 135

Fourth appeal ground - paragraph 143

Fifth appeal ground - paragraph 158

Sixth appeal ground - paragraph 164

Conclusion - paragraph 174

Notice of contention - paragraph 179

Orders - paragraph 192

The need to join all proper parties - paragraph 205

Schedule

1. McCOLL JA: The appellant, William Yee, brought proceedings against the respondents, Robert Yee and Phillip Yee, the executors of the estate of Norman Yee, William’s uncle, seeking a family provision order under Ch 3 of the Succession Act 2006 (NSW) (the Act) from the estate and/or the notional estate. William’s case, in substance, was that, by reason of a long period he spent living in Norman’s household in his adolescent years and early adulthood, he was, in effect, Norman’s foster son as demonstrated not only by those periods of joint cohabitation, but also by his relationship with Norman thereafter. Because he was Norman’s nephew, he had to establish that there were factors warranting the making of his application. [1]

   1. The Act, s 57(1)(e); s 59(1)(b).

2. Justice Slattery determined that William had not made out that case. [2] William appeals against his Honour’s decision.

   2.    Yee v Yee [2016] NSWC 360.

3. In this judgment, without intending any disrespect, I shall refer to the members of the Yee family involved by their first names. A schedule identifying the principal members of the family and their relationship to Norman is attached to the judgment.

4. For the reasons that follow, I would dismiss the appeal with costs.

Factual background

5. Norman was born in China in 1924. He lived in a village in Southern China call Fengle, in Guandong Province. He migrated to Australia in 1941. In 1949, he married Doreen in Hong Kong. According to William’s affidavit of 7 August 2014, Norman married for the first time in China, but his first wife died before he migrated to Australia. Norman and Doreen were the eldest members of their respective family groups in Australia and, according to Robert, Chinese culture required them to assist their siblings.

6. As I have said, William is Norman’s nephew. He is the son of Norman’s brother, Yu Man Wai, who lived in Hong Kong. Yu Man Wai was the eldest of Norman’s brothers. William was born in Hong Kong in January 1951. He was one of Yu Man Wai’s six children. In 1961, William and his sister Yvonne were sent by their parents to live in Australia with their uncle Norman. They came with their grandmother, Yan Mei Kum. At that time William was 10 years old.

7. Norman and Doreen could not have children, so they adopted the first respondent, Robert, and his sister Elaine Yuen. Each was adopted very close to their birth. Elaine was born in 1955 and was about 5 years old when William arrived in Australia. Robert was born in 1960 and was about 7 months old at that time.

8. The arrangement with William and Yvonne’s parents was that he and his sister would have the opportunity to be raised in Australia by Norman and Doreen. Accordingly, they were brought up in Norman and Doreen’s home which, at the time, was above a fish and chip shop Norman owned in Auburn. They shared family life and all family occasions with Norman and Doreen’s adopted children. [3] In 1966 Yvonne returned to Hong Kong. She returned to Australia with her husband in 1975 as a permanent resident.

   3.    Primary judgment (at [8] – [9]).

9. Norman died in May 2013 at the age of 89. He had made seven wills throughout his life, the first in 1990 and the last in June 2012. None had made provision for William, or for anyone who might be regarded as other than his immediate family in the sense of his wives (he re-married in 1994 after Doreen died in 1991) and his adopted children. [4] The gross distributable value of Norman’s estate is $718,108.83 but with notional estate, possibly around $3 million. [5]

   4.    Ibid (at [34]); see also (at [40], [41], [62], [71], [72] and [74]).

   5.    Ibid (at [191] – [192]).

10. By way of summons filed on 28 November 2013, William sought orders that provision be made for his maintenance, education and advancement in life pursuant to s 59 of the Act.

11. William was aged 62 at the time of Norman’s death, and was 64 at the time of the proceedings.

Legislative framework

12. Applications for family provision orders are governed by Ch 3 of the Act. William based his claim on s 57(1)(e) which provides:

“57 Eligible persons

(1)   The following are eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person:

…

(e)    a person:

(i)    who was, at any particular time, wholly or partly dependent on the deceased person, and

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

13. Section 59 sets out when a family provision order may be made and provides:

“59 When family provision order may be made

(1)     The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that:

(a)    the person in whose favour the order is to be made is an eligible person, and

(b)     in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of eligible person in section 57—having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and

(c)     at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.”

14. Section 60(2) sets out the matters which may be considered by the Court in determining whether the person in whose favour the order is sought to be made is an eligible person, whether to make a family provision order and the nature of any such order (s 60(1)), and provides relevantly:

“(a)    any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,

(b)    the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate,

(c)    the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,

(d)    the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate,

(e)    if the applicant is cohabiting with another person—the financial circumstances of the other person,

(f)    any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated,

(g)    the age of the applicant when the application is being considered,

(h)    any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,

(i)    any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate,

(j)    any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,

(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,

(l)    whether any other person is liable to support the applicant,

(m)    the character and conduct of the applicant before and after the date of the death of the deceased person,

(n)    the conduct of any other person before and after the date of the death of the deceased person,

…

(p)    any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.”

Primary judgment

15. The executors conceded that William was an “eligible person” pursuant to s 57(1)(e) of the Act, as a person who was, at some time, both wholly or partly dependent upon Norman and a member of Norman’s household. However, they contested William’s claim on the basis that there were no “factors warranting” the making of any order for provision in his favour. [6]

    6.    Ibid (at [2]).

16. The matter was heard over seven days. Eleven witnesses were called, of whom the key witnesses were William, his wife Rosalba, Robert and Elaine. Many affidavits were filed, including affidavits in reply, updating affidavits and affidavits from persons who were not required for cross-examination.

17. In his careful reasons, the primary judge analysed the complex family relationships in the Yee family. He primarily undertook that exercise on a chronological basis, but interspersed that account with overarching findings which should be summarised at the outset to give context to his Honour’s ultimate findings. As the respondents submitted, his Honour’s reasons were, on one view, an extended study of the familial connection between Norman and William.

Norman Yee

18. Norman and Doreen assisted many family members to migrate both from Hong Kong and Southern China to Australia from the 1950s to the 1980s. [7] Norman saw his role as that of a family patriarch of an extended family. [8] Others also regarded him as the head of the Yee family in Australia. [9]

    7.    Ibid (at [1]).

    8.    Ibid (at [55], [206]).

    9.    Ibid (at [52]).

19. Norman was industrious, entrepreneurial and successful and wanted his children, and the children for whom he was caring, also to be industrious and successful in business. [10] Although he came across as hard-nosed in business, he was kindly and sociable in his personal life. [11]

    10.    Ibid (at [11]).

    11.    Ibid (at [25])

20. While William was still at school, Norman ran a fish and chip shop. [12] By 1967, he owned and operated Chinese restaurants, including the Mandarin Restaurant in Parramatta. [13] In 1972, he owned the Sun Wah Restaurant in Parramatta. [14] In addition, he operated the Le Wah Restaurant in Riverstone (Riverstone Restaurant) with a business partner. [15] In 1977 when William was aged 26 Norman offered him, and William accepted, a one quarter partnership share in the Riverstone Restaurant. [16] In 1981 Norman opened Yee’s Palace. To free up his time he gave William the Mandarin Restaurant in exchange for his one quarter share in the Riverstone Restaurant. [17]

    12.    Ibid (at [11]).

    13.    Ibid (at [18]).

    14.    Ibid (at [21]).

    15.    Ibid (at [23] – [24]).

    16.    Ibid (at [27]).

    17.    Ibid (at [31]).

21. In 1981 Norman diversified his business enterprises away from restaurants and commenced operating a plastics factory, “Plakpast”, [18] which he sold in 1990. He gifted one quarter of the sale proceeds, approximately $140,000, to Robert. [19]

    18.    Ibid (at [30]).

    19.    Ibid (at [33]).

22. The primary judge summarised Norman’s role as senior member of the Yee family as follows:

“[122]   Norman took seriously his role as the senior member of the family. With considerable personal self-sacrifice and generosity he, with Doreen’s assistance, helped family members to emigrate from southern China to Australia, mostly to Sydney by providing a landing point and a safe haven in Australia for the new arrivals.

…

[136]   Norman and Doreen took all their family responsibilities seriously. In addition to assisting these many family members to settle into Australia, Norman and Doreen also cared for each of their mothers, Robert Yee’s two grandmothers. Robert Yee’s maternal grandmother, A Buk lived in the family home from 1963 until 1976. Norman’s mother, Ah Ngin lived with Norman and Doreen on and off for about 10 years but she was also taken in from time to time by Norman’s siblings.”

William’s credibility

23. The primary judge made a number of adverse findings about William’s credibility. Although his Honour accepted that William initially appeared to be a helpful witness, attempting to tell the truth, he concluded that as evidence of his relationship with Norman progressed, his evidence appeared to become distorted by his and Rosalba’s sense of entitlement to something from Norman’s estate. [20]

    20.    Ibid (at [102]); see also (at [91]).

24. His Honour found that William was a witness who was able to distort facts to advantage his own case, [21] gave answers in cross-examination without regard to their truth, [22] was prepared to say whatever it took to maintain his case without regard to the truth, [23] and gave unreliable evidence. [24]

    21.    Ibid (at [48], [91]).

    22.    Ibid (at [83]).

    23.    Ibid (at [86]).

    24.    Ibid (at [91]).

25. In addition, the primary judge concluded that both William and Rosalba’s credit was seriously impaired in respect of a St George finance application they lodged in September 2014 to assist in the purchase of a new car. In his Honour’s view, this was an occasion on which each had an obligation to tell the truth by giving accurate information, but conspicuously failed to do so. [25] There was conflict between William and Rosalba’s evidence as to what happened in relation to the finance application. His Honour ultimately preferred William’s evidence over hers in this respect. [26] He concluded that the episode showed that both were prepared to sign misleading applications for finance, without making reasonable attempts to verify whether they were accurate or not before they were released to the financier. [27] His Honour also concluded that Rosalba was prepared to distort evidence to distance herself from the misleading application. He did not regard either of them as reliable witnesses. [28]

    25.    Ibid (at [103]).

    26.    Ibid (at [110]).

    27.    Ibid (at [111]).

    28.    Ibid.

Robert’s credibility

26. While the primary judge regarded Robert as mostly a good witness who was attempting to tell the truth, under cross-examination it was revealed that he was at times prepared to put William’s past deeds in the worst possible light, a preparedness his Honour attributed to Robert’s antipathy to William for bringing the family provision claim. [29] His Honour was of the view that Robert also gave “fairly unsatisfactory evidence” about a particular issue concerning William paying rent in respect of a property owned by Norman in which William lived for a period (Auburn property), (to which I refer in more detail below). He concluded that Robert’s evidence sometimes had to be approached cautiously because of a tendency to see William in the worst aspect, without always remembering the details of relevant events. Nevertheless, his Honour held that Robert was not consciously distorting his account of events and was a witness of substantial truth. [30]

    29.    Ibid (at [112] – [113]).

    30.    Ibid (at [114]).

27. Otherwise, the primary judge made favourable credibility findings as to the evidence of Wendy Yee-Dempster, Norman’s niece, and Tina Yee, the daughter of Helen Yee, Norman’s third wife, who Norman adopted, Julie Soo, Doreen’s niece, Helen and Elaine. [31]

    31.    Ibid (at [115] – [120]).

28. The primary judge rejected a submission William made that there should be an adverse Jones v Dunkel [32] inference against the estate for not calling Phillip on the basis that it was not clear on exactly what it was that he should have been called. [33] There is no complaint about that ruling on appeal.

    32. (1959) 101 CLR 298; [1959] HCA 8.

    33.    Primary judgment (at [121]).

Norman’s contribution to William’s life

29. The primary judge found that Norman was very generous to William while William lived in his household. [34] He drew distinctions, however, between how Norman treated William and how, in particular, he treated Robert.

    34.    Ibid (at [10]).

30. While William lived in his household, Norman covered all his expenses which allowed William to save, and eventually buy his first car before he had his driver’s licence. [35] While William was still at school, Norman arranged for him to work in a fish and chip shop Norman then ran and started to teach him how to cook and manage retail food outlets and restaurants. [36]

    35.    Ibid.

    36.    Ibid (at [11]).

31. William left school when he was 16 in 1967. He started to work full time in the Mandarin Restaurant and was paid wages for his work by Norman. [37]

    37.    Ibid (at [17] – [18]).

32. William moved away from the Yee household in 1969 when he was 19. At that time he moved to Singleton to assist his uncle, Victor Yee in opening a restaurant in that area. Norman encouraged this move on the basis it would give William a good opportunity to learn how to open a restaurant and further his managing skills. [38]

    38.    Ibid (at [19] – [20]).

33. In 1972, when William was about 21, Norman asked him to return to Sydney to work at the Sun Wah. When he returned, William lived with Norman and Doreen again, albeit the period for which he did so was in issue. It is not clear, and nothing turns on this, whether William did work at the Sun Wah, rather than first at a restaurant in Auburn and then the Riverstone Restaurant. [39] More importantly, the primary judge noted that in contrast to his treatment of Robert, Norman did not give William a 21st birthday party, nor a trip to Europe and a new European car for his 21st birthday as he did with Robert and Elaine. [40]

    39.    Ibid (at [21] – [23]).

    40.    Ibid (at [21]).

34. In 1977, when William was 26, Norman offered him a one quarter share partnership in the Riverstone Restaurant which William accepted. To be closer to that restaurant, William started to live with his brother Daniel, albeit on weekends he said he would stay at Norman and Doreen’s house. [41] Once again, the extent to which he was there on weekends was contested.

    41.    Ibid (at [27]).

35. In 1981 Norman opened another restaurant (Yee’s Palace). To reward William and free up his time he gave William the Mandarin Restaurant in exchange for his one quarter share in the Riverstone Restaurant. [42] William did not make a success of the venture of owning the Mandarin Restaurant, the primary judge appears to have found because he lacked business acumen and because the restaurant “was not very busy” and “was not a trouble-free gift”. [43]

    42.    Ibid (at [31]).

    43.    Ibid (at [32]).

36. In about 1994, William’s relationship with Susan Won, the mother of his first child, which had commenced in about 1976 and during which he moved in with his partner and her family, ended. In 1995 he moved into unit 1, an apartment in the Auburn property Norman owned. In February 1996 he married Rosalba. After their marriage they lived in the apartment.

37. There was an evidentiary issue as to whether Norman offered William the opportunity to do so rent-free as William asserted, but Robert disputed. [44] The issue in respect of the Auburn property was important as William relied upon it for two purposes. First, to contend that Norman’s offer of rent-free accommodation was a sign of his continuing close relationship with Norman which was closer than that of merely uncle and nephew. Secondly, that in 2003 Norman promised to leave the Auburn property to William and Rosalba. [45]

    44.    Ibid (at [44]).

    45.    Ibid (at [46]).

38. The primary judge rejected William’s evidence that Norman told him that he could live rent-free in the Auburn property. He accepted as more credible Robert’s evidence that William asked Norman if he could move into the Auburn property and Norman “somewhat reluctantly gave in”, his reluctance being based on his concern that “William gambles too much and never goes to work”, but that he had been kicked out of his house with Susan and had nowhere to go. His Honour also accepted Robert’s evidence that Norman said that William was to pay half the normal rent for the unit. [46]

    46.    Ibid (at [47]).

39. One of the reasons the primary judge rejected William’s evidence in this respect is important to his overall findings. This was because, apart from William’s and Robert’s comparative credibility, the primary judge concluded there was improbability in William’s account of his conversations with Norman because:

“[48] …. By this stage William was in his 40s and Norman had already gifted him a fully operating restaurant for him to start his own business empire but William had made little of the opportunity. It seems inherently unlikely that a man with the business discipline of Norman would simply offer a free ride to William in middle age. William was then not without earning capacity. A balance of both benevolence and discipline suggests exactly what Robert says that Norman proposed: William would pay half the normal rent for the unit.”

40. The primary judge found that William took advantage of the fact that Norman was unlikely to take legal action to remove him and so prioritised other expenditure in his life rather than paying the rent. [47] His Honour also accepted Robert’s evidence that Norman complained to him on a number of occasions about William not paying the rent and making promises to pay, but explained that he did not take any action on the basis that by then William had married and had a child and he could not kick them out and leave them on the street. [48] His Honour attributed Norman’s failure to evict William to the difficulty in doing so having regard to his position as the head of the family in Australia. [49] While his Honour did not regard Robert’s evidence about this issue in some respects as “particularly satisfactory”, he attributed the deficiencies to the fact that the events in question were a long time ago and taxed Robert’s memory. His evidence was also corroborated by Tina. [50]

    47.    Ibid (at [49]).

    48.    Ibid (at [50]).

    49.    Ibid (at [52]).

    50.    Ibid.

41. In 1996 Norman gave William a second hand Volvo which, his Honour accepted, was probably about 20 years old at the time. He found Norman gave it to William because William had “lost all of his money gambling … [and] didn’t even have a car”. The primary judge characterised this gift as “a moment [in] which the patriarch of an extended family takes pity on a junior family member who [is] in very difficult financial straits at the time,” noting that the gift was not a great burden on Norman’s generosity. [51]

    51.    Ibid (at [53] – [55]).

42. In 1998 when William and Rosalba had their first child they moved out of unit 1 in the Auburn property and into unit 7 which was a larger unit. The primary judge rejected William’s argument that Norman’s decision to allow his family to move into that larger unit was incompatible with Robert’s case that Norman was unhappy about William not paying rent for unit 1. His Honour preferred Robert’s evidence that Norman had told him that after the birth of William’s first child, he had elected to let William move into the larger unit on the basis of him paying the rent and that William had in fact paid the rent. He also rejected Rosalba’s evidence on this subject to the extent that she said that Norman initiated the move. [52]

    52.    Ibid (at [58] – [61]).

43. In 2004, when William was 53, he and Rosalba moved out of the Auburn property to a property they bought in Baulkham Hills. Rosalba contended that after they announced their plans to make the move, Norman suggested the family stay in Auburn, that he would “look after William” and that “Auburn will be his one day”. The primary judge rejected this evidence on the basis, in part, that his Honour did not have sufficient confidence in her as a witness to accept it. His Honour was also of the view that such a conversation was improbable because there was no evidence that any such conversation took place between Norman and William or between Norman, William and Rosalba. [53] He also rejected Rosalba’s evidence on the basis that Norman had not included William in any of his wills and that “Norman’s way of life and sense of family responsibility besp[oke] an upright character who would be unlikely to promise something that he did not deliver.” [54]

    53.    Ibid (at [67]).

    54.    Ibid (at [69]).

William’s personal relationship with Norman

44. The primary judge accepted that when William was young he and Yvonne received Norman and Doreen’s love and attention as members of a close and affectionate household. [55] His Honour also accepted that Norman and Doreen tried to minimise differences in the way they treated their adopted children and William, even though they were all living in the same household. He accepted William’s evidence that he was included as an equal in everything happening with the family in terms of family outings. [56]

    55.    Ibid (at [13]).

    56.    Ibid (at [14]).

45. However, his Honour also accepted there were “important differences”. He accepted Robert’s evidence that William never addressed Norman as “father” or by any similar term implying a paternal-filial relationship but, rather, as “Uncle Norman” or by the Chinese term for uncle, “Gong Gong”. [57] His Honour explained this on the basis that for Norman to have acquiesced in, or encouraged, William to address him as if he had a paternal relationship with him in substitution for William’s relationship with his father “would have disrespectively usurped the role [of William’s father]”. He accepted Robert’s evidence that within Norman and Doreen’s household, William’s biological parents continued to be referred to as his father and mother. [58]

    57.    Ibid (at [15]).

    58.    Ibid (at [15] – [16]).

44. When William married Rosalba in 1996, Norman’s name was listed on the wedding invitations in place of the father of the groom and he undertook that role at the wedding. He did not pay for the wedding, in contrast to him having paid for the weddings of both Robert and Elaine. [59]

    59.    Ibid (at [56]).

45. The primary judge explained Norman’s involvement in William’s wedding as follows:

“[57] I accept Robert’s evidence that by the time of the wedding Norman was already unhappy about William’s failure to pay even the reduced rent on Unit 1 of the Auburn property. But I infer consistently with Norman’s character, as it comes through in the evidence in [sic, these] proceedings, that keeping up appearances and keeping disagreements within the family were very important to him. In my view, Robert is right that Norman accepted William’s invitation for Norman to be on the wedding invitation and to perform the role of the father of the groom at the wedding, even though there were private disagreements between them. It was the right and diplomatic course on such an occasion.

…

[139] The deceased only stood in as a father figure at four weddings: for Robert, Elaine, William and Tina. Although, as these reasons have indicated, many family members stayed with Norman after their emigration from China, only these four were blessed with Norman’s role as father at their wedding. But the reasons for this in William’s case have been explained above.”

48. The primary judge found that after William and his family moved to Baulkham Hills he continued to see Norman five to seven times a year although, his Honour also concluded that, when the nature and quality of that contact was analysed, there was little to support William’s case that the relationship was “well beyond that of uncle and nephew”. [60]

    60.    Ibid (at [70]).

49. The unexceptional status of William as compared with other family members in Norman’s life was reinforced by the evidence of William’s behaviour towards Norman in the final years of his life. This evidence is summarised below. [61] The primary judge found the “true frequency and quality” of William’s contact with Norman in the 20 year period preceding the last 15 months of Norman’s life elusive. He held that the frequency of that contact as explored with a number of witnesses did not support a case of an especially close mutual relationship. [62] In particular, his Honour summarised the evidence of Tina and Helen, who William accepted would be in a good position to observe their contact, as follows:

“[159] … Helen’s evidence was that during her 19 year marriage to Norman, William visited or had contact with Norman no more than 20 times in total. … Also Tina’s evidence relating to the six-year period living in the household with Helen and Norman between 1994 and 2000 was that William would come around once a year for a celebratory event, like Christmas. She did not recall William calling the house on the telephone and speaking directly with Norman.”

61.    See “Fourth factor warranting”.

62.    Primary judgment (at [154]).

50. William himself only said he saw Norman “a bit more” just before he moved into Robert’s house in the last years of his life than he did after. The primary judge accepted William’s evidence that he went to yum cha with Norman a few times a year and found this was probably about three or four times a year. In his Honour’s view, if it was not yum cha it was some other similar family communal activity and one to which Robert probably did not go. [63] He characterised those encounters as presenting “a picture of a man dropping in on a relative at home at Christmas or Easter or some other annual occasion and otherwise mingling with him and with other extended family relations at yum cha … the Yee family gather for yum cha and Norman mixes there with William as well as other family members.” [64]

    63.    Ibid (at [147]).

    64.    Ibid (at [157]).

51. His Honour accepted that Norman and William both had a passion for playing mah-jong, however, he concluded that the fact that they shared this pastime did not indicate Norman had a special relationship with William beyond that he had with any other mah-jong players. All it indicated was that the two enjoyed the same pastimes and were compatible companions at the mah-jong table. [65]

    65.    Ibid (at [158]).

52. The primary judge found that the evidence of William’s sister, Yvonne, also depicted social interaction between Norman and William at the large groups of the extended family of cousins and uncles, which affirmed the uncle/nephew relationship between the two of them. [66]

    66.    Ibid (at [148]).

53. The respondents’ case was that Norman and William’s relationship was no closer than the relationship Norman had with many family members he sponsored to migrate to Australia. [67] The primary judge concluded that Robert was much closer to Norman than William and, ultimately, that the evidence did not show that William was much closer to Norman than many other of Norman’s nieces and nephews. [68] He also concluded that William was not in Norman’s inner circle as illustrated by the late, and roundabout way he came to learn of Norman’s leukaemia diagnosis. [69]

    67.    Ibid (at [138]).

    68.    Ibid (at [151]).

    69.    Ibid (at [153]).

Norman’s last years – 2009 to 2013

54. In March 2012 Norman was diagnosed with leukaemia and moved into Robert’s house at Box Hill to enable Robert and his family to look after him as his leukaemia progressed. [70] He made his last will a few months after the diagnosis. As his condition deteriorated, he appointed Robert to be his enduring Guardian. [71]

    70.    Ibid (at [73]).

    71.    Ibid (at [74]). The primary judge clearly transposed Robert and Norman’s names when speaking of the guardianship.

55. The primary judge found that William had little contact with Norman during his last illness. He held that William’s behaviour during this period was hardly consistent with a person who had a close relationship with Norman. His Honour accepted Robert’s evidence that during Norman’s last years, Robert did not receive a single phone call from William enquiring about Norman’s health or offering assistance even though William was well aware that Norman was gravely ill and probably dying. [72]

    72.    Ibid (at [76]).

56. His Honour accepted, in part, William’s explanation that there was some frostiness between himself and Robert, which originated in Robert’s view that William had squandered the life opportunities Norman had given him. He inferred Robert would not have been spontaneously warm towards William before Norman’s death. [73] However his Honour was of the view that these difficulties did not account for William’s comprehensive lack of effort in Norman’s direction at this critical time. His Honour found that William’s failure to make enquiries about Norman’s health, his failure to offer to go on a roster, or act as a back-up, or assist with respite care or do other ancillary tasks in relation to Norman at a time when his care demands would be reasonably expected to be high, was almost impossible to reconcile with William’s case that he felt his relationship with Norman was something well beyond that of an uncle and nephew. In his Honour’s view, a sense of obligation from such a close relationship would be likely at least to generate enquiries about Norman’s health and offers of assistance. [74]

    73.    Ibid (at [78]).

    74.    Ibid (at [79]).

57. However, his Honour inferred that William made no enquiry about Norman’s medical condition in the last 15 months of his life. He observed that almost two years after Norman died, William was unable to give a very coherent account of Norman’s medical condition or the medical assistance he received in the last year of his life, could not name any of Norman’s doctors, had not attended any hospital or medical appointments with Norman and was not able to describe any of Norman’s symptoms save at a high level of generality. [75]

    75.    Ibid (at [80]).

58. It does appear however, that William visited Norman twice in the five months or so prior to his death, visits which the primary judge concluded represented the attendance pattern of a nephew or other more distant relative than of someone who regarded himself as being in a very close relationship with Norman even akin perhaps to that of a son. In his Honour’s view, William’s visiting pattern demonstrated objectively his own contemporaneous judgment about the quality and closeness of his relationship with Norman as being a nephew who visited consistently with the expectations attending such a relationship with an uncle and no more. [76]

    76.    Ibid (at [82]).

59. In summary, his Honour found William’s behaviour during this period to be hardly consistent with a person who had a close relationship with Norman, largely due to William’s marked failure to reach out towards Norman and to take ordinary steps to enquire about his welfare.

60. In addition, the primary judge found that William gave misleading evidence. In response to evidence from Robert that in the 15 months prior to Norman’s death, neither Robert nor his wife Karen received any phone calls from William enquiring about Norman’s health or offering assistance, William suggested he made contact with Norman during that period by mobile telephone. The billing records of William’s mobile phone showed no phone calls had been made to Norman’s mobile phone during that period. [77] In the course of trying to maintain his version of contacting Norman during this period, William propounded “highly improbable scenarios” which the primary judge concluded “showed him … to be a person prepared to say whatever it took to maintain his case, without regard to truth.” [78]

    77.    Ibid (at [84], [85]); see also (at [86] – [91]).

    78.    Ibid (at [86]).

61. The primary judge found some of William’s evidence about his relationship with Norman quite puzzling. For example:

“[143] … When Mr Crossland put to William that he ‘didn’t feel close to… Norman…, the man?’ William’s response was ‘he is not close to a lot of people. That’s how he was’. This came across at the hearing as an admission that William did not feel close to Norman. William sought to attenuate the effect of this admission with the explanation that Norman was not ‘close’ to anyone because of a reticent personality. William then sought to assess Norman’s relationship with his son by saying ‘I don’t think he was close to Robert’ and repeated his statement ‘he is not close to anybody’.

[144] In context, in this evidence William was implying that the deceased socially somewhat went through the motions with relatives, but did not feel for them, so it was hard to assess the quality of his relationships. Yet William still professed that at least from his perspective he was ‘very close’ with Uncle Norman. Despite this alleged closeness he could not give much of an account of his understanding Norman’s feelings, the quality of Norman’s advice or Norman’s philosophy of life. Nothing of this personal depth appears in William’s evidence.

[145] Why was this so? William puts it down to a general impediment that William perceived in Norman’s communications: ‘Look in all the time we growing up, he doesn’t say much. It is very hard to work out what he is thinking’ and ‘The only time you would spend a lot of time with him was either play cards, mahjong, yum cha. He doesn’t say much’. Perhaps the real explanation Norman wasn’t saying much is that he was just enjoying his mahjong with many others.

[146] William was incapable of articulating much insight into the deceased’s feelings, opinions, philosophy of life, values or important relationships. William could throw little light on the deceased’s interior life, principally because, in my view, he did not understand it. This was an indicator of the lack of real closeness between them.”

Norman’s relationship with William and Robert

62. The primary judge dealt in detail, in particular, with what he viewed as the different way Norman treated William and Robert and Elaine. Although, as I have said, his Honour accepted that Norman and Doreen tried to minimise the differences between the way Norman treated Robert and Elaine and William even when they were all living in the household together, he concluded that important differences existed. I have already referred to the manner in which William addressed Norman, but there were other significant differences. [79]

    79.    Ibid (at [13] – [15]).

63. Norman sent William to a local high school, but sent Robert to the Kings School in Parramatta.

64. In 1976 Norman and Doreen made what his Honour regarded as significant contributions to Robert and Elaine’s financial security when Robert, at least, was still a teenager. They bought Robert and Elaine each a house and, when those properties were ultimately sold, allowed them to keep the sale proceeds. In contrast, Norman and Doreen never bought a house for William and, while he was given some financial assistance to start a business, he was never given, nor promised, a large domestic purchase. In this context, the primary judge referred to the issue concerning the Auburn property in which respect, as I have said, his Honour ultimately concluded that Norman had neither promised William he could live rent free, nor promised to give him a unit in that property. [80]

    80.    Ibid (at [26]).

65. The primary judge also contrasted Norman’s behaviour in respect of Robert and Elaine’s weddings for which he had paid whereas, as I have said, when William married Rosalba, while Norman took the role of father of the groom, as I have said, he did not pay for the wedding. [81]

    81.    Ibid (at [56]).

66. In addition, the primary judge observed that in the last months of his life Norman reposed a great deal of financial trust in Robert in a manner which had no parallel with William. [82]

    82.    Ibid (at [92]).

67. There were other differences. As I have said, when Robert turned 21, Norman held a 21st birthday for him. He also paid for Robert to travel to Europe and gave him a new Alpha Romeo at his 21st birthday party. He did none of these things for William. [83] Norman also held, and paid for, two large engagement parties for Robert and his fiancée, Karen. After Doreen died, Norman transferred shares in a family company, Mee Lock Pty Ltd, to Robert and appointed him as a director. He also transferred shares in a family company, N & D Yee & Co Pty Ltd to Elaine, who was also made a director.

    83.    Ibid (at [21]).

68. There were also differences in the manner in which Norman treated Elaine and William. He bought Elaine her first car when she was 17. He held a large birthday party for her when she turned 21. [84] In addition, Norman paid for Elaine’s bridal shower and her wedding, as well as her son’s christening. When Doreen died in 1991, Norman gave Elaine a property in Parramatta in which she was still living at the time of trial

    84.    Ibid.

69. Norman allocated a share in Plakpast to Elaine’s late husband, Alex, and later, when he sold that business, gave Alex a quarter of the proceeds of the sale, an amount of about $140,000. Norman also paid for Alex’s funeral. He also gave Elaine a car which she was driving at the time of the trial.

70. Thus, on Robert’s case, Norman’s favourable treatment towards his adopted children continued throughout his life and was significantly greater than that afforded to William in whose case, in any event, what might be described as financial benevolence ceased in or about 2004 when he and his family moved to Baulkham Hills. Even before that, they had been paying Norman rent for their occupation of unit 7 of the Auburn property. [85]

    85.    Ibid (at [60]).

71. The primary judge accepted Robert’s evidence that, as the oldest son, he was “raised with an intimate ongoing knowledge of [his] parents’ businesses and finances”. His Honour found many examples of either Norman entrusting responsibility to Robert that he never did to William, or being generous to Robert, Elaine, Helen and Tina in a way that he was not to William. [86] The primary judge concluded that:

“[153] William was not in Norman’s inner circle. One incident at the end of Norman’s life illustrates this. I accept Karen’s evidence that when Norman found out that he had leukaemia he asked Robert and Karen to call Elaine, his niece Julie Soo, an acquaintance by the name of Dai Chan and his brother Phillip. I accept Karen’s evidence that William was not among this first circle of recipients of such profoundly important information. William’s own evidence confirms the delay before he found out about the diagnosis. It is not disputed that Norman was diagnosed with cancer on 17 March 2012. I accept William’s evidence that he did not get this news until about three weeks later on Good Friday, 6 April 2012. And it is reasonably clear on the evidence that Norman did not specifically ask for the diagnosis to be conveyed to William, whose own best recollection of how he came by the news was, ‘well I heard about it’ and ‘I recall probably my sister told me first’.”

86.    Ibid (at [152]); see also (at [92]).

Norman’s role assisting family members to Australia

72. The primary judge concluded Norman took his role as the senior member of the family in Australia seriously and, with considerable personal self-sacrifice and generosity, he and Doreen helped numerous members of the Yee family to migrate from Southern China to Australia, mostly to Sydney, by providing a landing point and a safe haven in Australia for the new arrivals. [87]

    87.    Ibid (at [122]).

73. One of the issues concerning Norman’s role in this respect was whether William was treated as “just another family member migrating to Australia like the others or whether his relationship with the deceased was something more special.” [88]

    88.    Ibid (at [123]).

74. His Honour dealt with the evidence on this subject extensively. It is unnecessary to explore the detail of his conclusions in this respect at this stage. Suffice to note that his Honour accepted that William stayed with Norman and Doreen longer than almost all other family members and, accordingly, knew Norman better than many of the others. He also accepted that, a long time before Norman’s death, Norman gave William a financial start in life by helping him into the Mandarin Restaurant. However, in his Honour’s view, those differences were fairly marginal as some other family members stayed with Norman for quite a long time and also received financial assistance. [89]

    89.    Ibid (at [124] – [125]).

75. In summarising his findings on this issue, the primary judge said that while William stayed with Norman and Doreen for a longer period than most other migrating family members, he was not unique in the length of his stay which was equalled by Norman’s niece, Karen Cheung, who lived with them for nine or ten years after she migrated to Australia, and also called Norman either “Uncle Norman” or “Gong Gong” as did William. [90] William challenges his Honour’s conclusion about the comparability of his and Karen’s respective residences with Norman.

    90.    Ibid (at [128]).

William’s financial progress

76. The primary judge found that William had sold the Mandarin Restaurant for about $80,000 after a few years and invested $60,000 of those proceeds in a fish and chip shop and the other $20,000 into another partnership. He eventually got a job working at James Hardie Industries by which time he did not have any of the capital left that “Norman had sent in his direction.” [91]

    91.    Ibid (at [160]).

77. Although his Honour noted that there was a contest in the proceedings as to whether or not William’s failure to build capital was as a result of a gambling habit, a contest his Honour found difficult to resolve, nevertheless his Honour accepted the evidence of witnesses such as Yvonne, Tina and Robert to the effect that Norman thought William “had a bad habit of losing money he cannot afford to lose”, “spends too much money on fancy clothes”, “gambles too much and never goes to work”, and is “a good for nothing.” [92]

    92.    Ibid (at [161] – [162]).

William and Rosalba’s personal and financial circumstances

78. William’s case was that he was in such great financial distress that, given the size of Norman’s estate and the nature of their relationship, adequate provision had not been made for his proper maintenance, education or advancement in life. [93]

    93.    Ibid (at [169]).

79. The primary judge accepted that William’s family budget was unsustainable with a monthly net income of about $7,500 as against monthly expenditure of about $14,000. At the time of trial, he and Rosalba had about $300,000 combined equity in their residence and investment property. It was apparent to his Honour that, if the value of their assets did not change within less than four years, they would run out of assets to finance their present lifestyle. [94] Because William and Rosalba could not meet their debts from their current earnings, they were staying afloat by juggling payments between credit cards in ways his Honour concluded was an unsustainable debt spiral. [95]

    94.    Ibid (at [163]).

    95.    Ibid (at [164]).

80. There was also evidence concerning substantial medical problems from which William’s children suffered and of the costs of their ongoing education. His Honour accepted William’s evidence that, because of the large deficit in their ongoing expenditure, William and Rosalba had not been able to save for superannuation. [96]

    96.    Ibid (at [172] – [173]).

81. Finally his Honour noted that William and Rosalba needed about $30,000 to pay for reasonable home repairs. [97]

    97.    Ibid (at [174]).

Robert and Karen’s personal and financial circumstances

82. The primary judge set out Robert and Karen’s financial and personal circumstances in detail to which it is unnecessary to refer. Suffice it to say that he and Karen were partners in a medical importing company, Key Medical Pty Ltd, by which both were also employed and through which they received superannuation distributions depending upon its trading performance. They had a number of investment properties. They estimated their net asset position as being approximately $4.8 million, although they had relatively high levels of outgoings which were consistent with fairly high debt levels in respect of their investment properties. They also had a number of projected financial needs in respect of their home, planning for their retirement, school fees and the costs of tertiary education for the children. In addition, both Robert and Karen and their children had medical issues. [98]

    98.    Ibid (at [176], [190]).

The five “factors warranting”

83. William identified the following five factors which he said warranted his application and which can be summarised as follows:

1. The level of intimacy between himself and Norman which extended well beyond the relationship of nephew and uncle. While William accepted that a nephew might not have any particular claim against an estate by reason of that relationship alone, he contended that his case was different because of the relationship founded on his 10 years’ of residence in Norman’s household and continued by Norman expressing a strong interest in William’s welfare and his family’s welfare throughout his life.

2. Only William, Robert and Elaine lived full-time with Norman as they grew up.

3. William’s limited contact with his own parents, his age when he came to Australia, his lack of contact with his natural father and his residence with Norman and Doreen through the period when he moved from childhood to young manhood meant that, from his perspective, his relationship with Norman was a substitute for a relationship with his natural father.

4. Norman played a prominent role in William’s life, in particular, by furthering his education, giving him work experience and getting him to adulthood, such that long after William had moved out of Norman’s home, there continued to be a close bond between them.

5. Whilst it should be accepted that Norman had not treated William as generously as his two adopted children, Robert and Elaine, and Tina, nevertheless William was treated within the family group as a person more closely connected to him than the other cousins within the family group. [99]

   99.    Ibid (at [205] – [213]).

84. Before addressing the particular reasons the primary judge gave for rejecting the factors warranting, it should be noted that common to that rejection were his Honour’s findings concerning Norman’s character. As his Honour concluded, and as I have noted in dealing with his overarching conclusions, as the eldest member of his family in Australia, Norman assumed the role of family patriarch and was expected to assist his siblings and their families. Doreen undertook a similar role in relation to her family. As one might expect, the evidence conveyed the sense that the couple did not differentiate between each other’s extended families. Rather Doreen’s family members were as much the beneficiaries of both patriarchs’ (using that term generically) largesse, as were members of what might be called Norman’s family. And, indeed, Doreen’s nieces and nephews, albeit by marriage, were also Norman’s nieces and nephews. Thus, as part of his patriarchal role, Norman expressed a strong interest in the welfare of many family members, taking that family to include Norman’s extended family, into which category, of course, William prima facie fell.

85. An understanding of this sense of family relationships and obligations puts into context the primary judge’s rejection of William’s proposed factors warranting. [100]

    100.    Ibid (at [206]).

First factor warranting: intimacy of relationship

86. The primary judge rejected the first factor warranting for two main reasons. First, William was not the only young family member who stayed with Norman for lengthy periods. Moreover, Norman expressed a strong interest in the welfare of many other family members apart from William. He saw that as part of his role as family patriarch for the benefit of many family members; a role which he took seriously. Accordingly, his Honour found that what Norman did for William hardly marked him out as special among the family. [101]

    101.    Ibid.

Second factor warranting: full-time living arrangement

87. The primary judge found that it was not correct to say that William stayed with Norman and his family longer than any of the other young relatives emigrating from China. Accordingly, his Honour held that the factual premise for this factor warranting was absent. [102] This was supported by the finding set out above, that, whilst William stayed with Norman and Doreen for a longer period than most other migrating family members, he was not unique in the length of his stay which was equalled by the stay of Karen Cheung, a factual finding challenged on appeal.

    102.    Ibid (at [207] – [208]).

Third factor warranting: role of Norman as substitute father

88. The primary judge rejected this factor warranting on the basis that Norman and Doreen so institutionalised their assistance to nieces and nephews, siblings and future sons-in-law that the best explanation for Norman’s relationship with all of them was a deeply felt belief on his part in the importance of showing leadership and taking responsibility as the Australian head of the family and, in the course of that, to be a provider for all family members who came under the mantle of his care. [103]

    103.    Ibid (at [209] – [210]).

Fourth factor warranting: Norman’s prominent role in William’s life

89. The primary judge held that the factual basis for this factor warranting was not made out. In his Honour’s view, there was certainly a bond between Norman and William but it was nothing like the bond between Norman and his children. His Honour found that William’s behaviour in the years and months leading up to Norman’s death provided “some of the best evidence of this”, as the little contact William had with Norman during this period was “almost impossible to reconcile with William’s case that he felt his relationship with the deceased was ‘something well beyond that of an uncle and nephew’”. [104] The primary judge further held that William had not established he was more closely connected to Norman than other cousins in a similar position. For example, he was never included in Norman’s various wills and no promises of testamentary benefits were made to him. [105]

    104.    Ibid (at [79]).

    105.    Ibid (at [211] – [212]).

Fifth factor warranting: exceptional treatment of William

90. In the primary judge’s view, William did not establish that Norman treated him exceptionally, [106] it might be inferred on the basis of the findings of fact I have identified his Honour had made both throughout his reasons and in respect of the previous factors warranting.

    106.    Ibid (at [213]).

91. Accordingly, the primary judge concluded that William had not made out factors warranting an order for provision in his favour against Norman’s estate. [107]

    107.    Ibid (at [214]).

92. Having reviewed William and Rosalba’s financial circumstances, the primary judge noted that if there were factors warranting the bringing of the application, William (his Honour also referred to Rosalba who of course was not a claimant) would have a strong case for a substantial order for provision out of the estate. His Honour did not formulate that provision however because he found that William had not established that there were factors warranting such an order. [108]

    108.    Ibid (at [175]).

93. The primary judge dismissed the summons and ordered William to pay the executors’ costs on an ordinary basis up to and including 19 December 2014 and on an indemnity basis thereafter.

Issues on appeal

94. By his second amended notice of appeal, William contends the primary judge erred:

1. in finding, and having regard to a finding, that the period of William’s residence with Norman was only 10 years;

2. in finding, and having regard to a finding, that William did not reside with Norman for longer than any of the other young relatives emigrating from China;

3. in rejecting credible and unchallenged evidence that Norman displayed a keen interest in how William and his family were faring and always appeared fond of William and accordingly failing to have regard to same;

4. in inferring that Norman treated William in the same manner as he did other members of his extended family and having regard to such inference;

5. in failing to have regard to William’s relationship with Norman being, from William’s perspective, a substitute for William’s relationship with his natural father;

6. in regarding the presence of factors warranting the making of the application as requiring William to show a connection between himself and Norman comparable to that of parent and child;

7. in finding, and having regard to a finding, that many other extended family members attended a family party held when Norman’s wife Helen came to Australia;

8. in inferring that a Volvo gifted by Norman to William was a display of pity on a junior family member and having regard to that inference;

9. in failing to have regard to the assistance Norman rendered to William as a child;

10. in not exercising his discretion under s 59(1)(c) of the Act to order provision for William.

95. William contended that the errors (or any of them) were such that the primary judge’s discretion miscarried and warranted a finding that his Honour had erred in not finding factors warranting the making of William’s application.

96. By notice of contention, the respondents claim that the primary judge’s decision should be affirmed on grounds other than those relied on by his Honour, being that:

1. the evidence before the primary judge would not have permitted him to be satisfied that at the time when he was considering the application, adequate provision for William’s proper maintenance, education or advancement in life had not been made by Norman; and

2. the primary judge would not have exercised his discretion under s 59(1) of the Act to make a family provision order in William’s favour.

Parties’ submissions: outline

97. William’s overarching submission was that the primary judge erred in not recognising that he was placed in Norman’s inner circle in critical respects which differentiated his position from that of Norman’s extended family.

98. Thus, he contended, Norman gave him his start in life, an opportunity he gave only to Robert, Elaine and his younger brother Phillip. Secondly, Norman only stood in as a father figure at the weddings of himself, Robert, Elaine and Tina. Thirdly, only close members of Norman’s family attended the welcome dinner for Helen when she came to Australia, supporting the inference that it was only people in that category (by definition including himself) who were invited to that event. William submitted that the primary judge’s finding to the contrary, [109] was erroneous. Fourthly, Norman only gave cars, or like gifts, to Robert, Elaine, Tina and Elaine’s husband Alex. Fifthly, at a general level, William submitted that the primary judge gave no, or no sufficient, weight to the fact that William regarded his relationship with Norman as a substitute for his relationship with his father. [110] Finally, William submitted that it was a false comparison to compare his relationship to Norman with Norman’s relationship to Elaine and Robert. He contended that he was not required to demonstrate that the bond between himself and Norman was as strong as that between Norman, Robert and Elaine, nor that it was comparable to that between a father and child. Such a comparative analysis detracted from what should have been the focus of the primary judge’s analysis: the relationship between Norman and William.

    109.    Ibid (at [41]).

    110.    Ibid (at [209]); cf (at [143]).

99. Next, William submitted that the primary judge erred in a House v R [111] sense by taking into account three matters that were not in evidence. First, the actual length of William’s residence in Norman’s household as compared with Norman’s other family members. Secondly, the number of those in Norman’s extended family. William contended that the primary judge erred in speaking on two occasions [112] about the significance of Norman’s many other nieces and nephews when, in fact, in addition to himself and Yvonne, the evidence referred only to Karen Cheung, Julie Soo and her daughter Juliana Soo, and the maternal grandparents as persons who resided with Norman from time to time. Thirdly, the significance of Peter Cheung as a family member. Whilst there was a reference in the primary judgment to Peter being a nephew, [113] the only evidence about him was that he worked in one of Norman’s restaurants. There was no suggestion Norman gave him any assistance.

    111. (1936) 55 CLR 499; [1936] HCA 40.

    112.    See primary judgment (at [151], [210]).

    113.    Ibid (at [129]).

100. William submitted that consideration of these factors led his Honour into error in his conclusion that there was no special quality to the relationship between Norman and William and, accordingly, no factors warranting his application.

101. William argued that any distancing over the later years of the relationship between himself and Norman could not wipe away the closeness of the bond in its earlier years as it was not an essential quality of a factor warranting that the claimant maintain a close relationship with a testator for the whole period of the relationship. He contended that Norman was a foster parent who cared for him when his parents were overseas and who owed a duty to William as his foster child which did not end when the duty owed to William’s father purportedly ended. Rather, Norman’s role in raising William from a young age created a duty which had to be given some weight when assessing whether there were factors warranting the application.

102. The respondents’ overarching submission was that it was necessary for the primary judge to determine the quality of the relationship between Norman and William. They argued that when that exercise was undertaken as the primary judge did, his Honour had not erred in concluding that William was not closely connected to Norman and nor was there a special relationship between them. They also submitted that the primary judge was entitled to comparatively assess the closeness or quality of the connection between Norman and William as compared to that between Norman, Robert and Elaine. First, to determine to what, if any, extent William was in the “range of the children.” Secondly, to demonstrate the stark contrast in the relationship between William and Norman, and Norman and his adopted children.

103. The respondents argued that the closeness of Norman and William’s connection could not merely be determined by the length of their cohabitation. Nor could it be determined by Norman’s three acts of financial assistance: first, in permitting William to stay at the Auburn property without, at times, pressing him for rent, secondly, the provision of the quarter share in the Riverstone Restaurant and then, in exchange for that share, gifting him the Mandarin Restaurant, thirdly, the gift of an old Volvo in 1996. In their submission, all three were acts of “kindness”, albeit of a “limited circumstantial kind”, which were motivated by a sense of pity on Norman’s part (and to some extent a level of embarrassment), not from a sense of duty. Rather, when one looked at Norman and William’s relationship as a whole, it was apparent that it was distinguished by a lack of closeness, culminating in William’s failure to provide, or seek to provide, any solace to Norman after his leukaemia diagnosis. They also contended that where Norman did not treat, or view, William as a son in terms of assistance or sentiment, an early period of him acting in loco parentis did not have the effect of creating a testamentary duty on Norman’s part to provide for William out of his estate.

104. In summary, the respondents submitted that the primary judge’s analysis of the evidence demonstrated a picture of William as a man who had incidental family relationships with Norman, had no emotional closeness to him, had no insight into his personality, could not tell his Honour anything substantial about Norman, and, as Norman started to die, was at a great remove from him. The comparison between William and his cousins (Norman’s nieces and nephews) revealed he was, for all intents and purposes, like any other distant family member.

105. Accordingly, the respondents submitted that, even if William demonstrated the factual errors for which he contended, the primary judge was correct to find that there were no factors warranting.

106. It is convenient to deal together with the submissions about William’s specific complaints of erroneous factual findings on the primary judge’s part and my conclusions about them. I do that later in these reasons after dealing with matters of principle.

Consideration

107. Legislation permitting courts to make provision for specified classes of persons which differed from that a testator has made was not intended to enable the Court to re-write the will of a testator, nor 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.” [114] While such legislation vests a discretion in the Court as to the nature and amount of provision for an eligible claimant, it also confers “a discretion as to making a provision at all”. [115] Thus, prima facie it is expected that an adult son is “able to ‘maintain and support’ himself, and some special need or some special claim must, generally speaking, be shown to justify intervention by the Court under the Act”. [116]

     114. Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 (Pontifical Society) (at 19) per Dixon CJ (McTiernan J agreeing); [1962] HCA 19.

     115. Ibid.

     116. In re Sinnott [1948] VLR 279 (at 280) per Fullagar J, referred to with approval by Dixon CJ in Pontifical Society (at 19 – 20).

158. There was a dispute between the parties as to whether the primary judge found that William regarded his relationship with Norman as a substitute for a relationship with his natural father, or whether his Honour was merely reciting William’s submission. I accept that in context, it is not clear whether or not this was a finding. But, even assuming in William’s favour that it was, its significance having regard to all the circumstances is questionable. First, it appeared to refer only to the short period, relatively speaking, of 9 – 10 years, when William first lived in Norman’s household. Secondly, the many other findings his Honour made as to the nature of Norman and William’s relationship after that period, including his rejection of the submission that “long after William had moved out of the deceased’s home there continued to be a close bond between them, [167] demonstrates his Honour’s finding that whatever emotion William may have held towards Norman in his formative years had long since dissipated. Thirdly, as his Honour held, Norman’s generosity to many other family members, including permitting them to reside in his household, even if not for as long a period as William, belied the proposition that, viewed objectively, there was a special relationship between the two men. [168]

     167.    Ibid (at [211] – [212]).

     168.    See ibid (at [210]).

159. The respondents contended that William’s subjective views on his bond with Norman could not be relevant to the question whether there were factors warranting his application. Should they be relevant the respondents argued, then every application for provision made bona fide by an eligible person would succeed. Finally, they contended that, even if such views were relevant, the primary judge did in fact have regard to them. [169]

     169.    Ibid.

160. I do not accept the respondents’ submission that William’s subjective views are irrelevant to the factors warranting issue. Section 59(1)(b) requires that issue to be determined by “having regard to all the circumstances of the case (whether past or present)…”. That must include the relationship between the claimant and the deceased and, not least, their subjective views of each other and their relationship. As much is apparent, not least, from what I will term the “estrangement cases” in which the court considers whether the fact that a claimant is alienated from the deceased militates against making an order in his or her favour. In that context, for example the court will examine the reasons for the estrangement which will almost inevitably include examining one or other or both of the claimant and the deceased’s subjective feelings towards the other. [170] Just as the fact of estrangement is a matter to be taken into account, but is not necessarily determinative, [171] so, too, are positive emotional relationships, even if only one-sided, a relevant, but again not necessarily determinative, consideration.

     170. See, for example, Palmer v Dolman [2005] NSWCA 361 (at [88] – [94], [110]) per Ipp JA (Tobias and Basten JJA agreeing); Wheatley v Wheatley [2006] NSWCA 262 (at [22]) per Bryson JA (Santow and McColl JJA agreeing).

     171.    Burke (at [93], [95]).

161. In fact, William admitted he did not feel close to Norman. [172] He was unable to give any account of Norman’s feelings, the quality of Norman’s advice or Norman’s philosophy of life which might indicate a relationship of “personal depth”, rather than indicate “the lack of real closeness between them.” [173] In contrast, for example, “Robert’s relationship with Norman was characterised by events which show the closeness of their bond, events in which William never participated with Norman.” [174] As the primary judge effectively held, considered over the period of their relationship, there was no substance in William’s assertion that he treated Norman as a substitute father.

     172.    Primary judgment (at [143]).

     173.    Ibid (at [144]); see also (at [146]).

     174.    Ibid (at [151]).

162. I would reject the fifth ground of appeal.

Sixth appeal ground

164. William’s sixth ground of appeal complains that the primary judge erred in requiring him to show a connection between himself and Norman comparable to that of parent and child. This ground of appeal challenged his Honour’s reasons for rejecting William’s submission that “long after William had moved out of the deceased’s home there continued to be a close bond between them”. His Honour did so first because, while “there was certainly a bond between Norman and William … it was nothing like the bond between Norman and Robert and Elaine” and, secondly, because “William’s position as more closely connected with Norman than other cousins in a similar position ha[d] not been established”. [175]

     175.    Ibid (at [211] – [212]).

165. William submitted that there was no evidence of other cousins in a similar position to him and that he was not required to demonstrate the bond between himself and Norman was as strong as that between Norman and his children, nor comparable to that between a parent and child. Rather, all he had to show was an “association sufficient to demonstrate a factor which warranted being left some form of the legacy.” He submitted his Honour erred in failing to recognise “a third class in the middle … where the relationship may not be as close [as that of parent and child] but nevertheless close enough to demonstrate factors warranting”.

166. The respondents submitted that the significance of the primary judge’s statements about which William complained under this heading was to compare William’s position to important groups of people, including Norman’s children and other cousins in the extended family, to indicate that William did not fall into any special category which might establish factors warranting his application. They noted that his Honour was dealing with the proposition that although William no longer lived in Norman’s house, “there continued to be a close bond between them”. In that context, the respondents submitted his Honour did not err in concluding that such a bond existed between Norman and other cousins who had once lived with Norman.

167. The respondents submitted that there was a dearth of evidence as to the quality of the relationship between Norman and William which might enable the conclusion that William fell into the sort of “middle class” for which he contended. The gist of the evidence was that they were not close and there was a history of Norman seeking to help William out “when things got tough”.

168. As I have explained, Norman’s generosity to William was not unique. To recapitulate briefly, while other members of the family may not have lived in Norman’s household for the same period William did, others lived there for long periods when they were young. Julie regarded Norman as a “father figure”. In the case of Juliana, Norman and Doreen were clearly in loco parentis to her in the period when she lived with them from when she was three until when she was six. Norman was also generous to other members of the family by affording direct and indirect family assistance.

169. In my view, the primary judge did not err in comparing William’s position to that of Norman’s children or other members of Norman’s extended family. In looking at “all the circumstances” it was relevant for his Honour to have regard to those who were the natural objects of Norman’s testamentary recognition – his children. It was also relevant to consider others who at least had in common with William that they did not fall into the “natural” class and were also members of Norman’s extended family to determine whether, as William submitted, his position was effectively unique compared to such people. Indeed William’s fifth factor warranting invited a comparison between his position and that of other cousins within the family group.

170. As I have said, to establish there were factors warranting his application, William had to demonstrate that there were “factors” which when added to the facts which rendered him an “eligible person” gave him the status of a person who would be generally regarded as a natural object of testamentary recognition by Norman. [176]

     176.    Re Fulop; see above (at [116]).

171. For example, in Chapple v Wilcox,[177] speaking of a family provision claim by a grandchild, not normally regarded as a natural object of a deceased’s testamentary recognition, Basten JA approved as reflective of community values, statements Hallen AsJ made in Bowditch v NSW Trustee and Guardian. [178] That case concerned a family provision claim by a grandchild in respect of his grandfather’s estate. Hallen AsJ accepted that the fact the grandchild resided with one, or more, of his, or her, grandparents was a significant factor. Nevertheless, his Honour explained that “[e]ven then, it should be demonstrated that the deceased had come to assume, for some significant time in the grandchild’s life, a position more akin to that of a parent than a grandparent, with direct responsibility for the grandchild’s support and welfare, or else that the deceased has undertaken a continuing and substantial responsibility to support the applicant grandchild financially or emotionally.” He illustrated that proposition by observing that a “moral obligation may be created in a particular case by reason … of the care and affection provided by a grandchild to his, or her, grandparent.” On the other hand, even “a pattern of significant generosity by a grandparent, including contributions to education, [did] not convert the grandparental relationship into one of obligation to the recipients, as distinct from one of voluntary support, generosity and indulgence.” [179]

     177. (2014) 87 NSWLR 646; [2014] NSWCA 392 (Chapple) (at [17], [19]) (Gleeson JA agreeing); see also (at [65] – [67]) per Barrett JA (Basten and Gleeson JJA agreeing).

     178. [2012] NSWSC 275 (at [113]).

     179. Ibid.

172. While I recognise, as did Hallen AsJ, [180] the danger of treating such statements as rules of law and that the discretion under s 59 of the Act cannot be constrained by principles drawn from decisions on similar facts, I also agree with his Honour that the statements provide “useful assistance in considering the statutory provisions the terms of which must remain firmly in mind”. As Barrett JA said in Chapple,[181] Hallen AsJ’s guidelines “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 family provision cases.

     180. Ibid (at [117]).

     181.    (At [67]); see also (at [19]) per Basten JA; Burke (at [84] – [85]).

173. This was not a case, in my view, where community standards might expect Norman to make some provision for William. It is apparent they had not “maintained a strong relationship”, William was a mature adult who might be expected to provide for himself and his family, particularly in circumstances where Norman had been generous to William in early days, but had apparently seen the benefit of that largesse squandered. [182]

     182.    Cf Chapple (at [14]).

Conclusion

174. In my opinion, when one has regard to all the circumstances of the case (s 59(1)(b)), the primary judge did not err in concluding William was not in Norman’s “inner circle” or in any “middle class” such as he sought to identify. In reaching that conclusion, his Honour considered all circumstances such as were relevant to William’s claim. Rather, as the respondents submitted, the overall picture of William and Norman’s relationship was that of people who had an incidental family relationship.

175. The matters which rendered William an eligible applicant by virtue of s 57(1)(e) (dependency while a youth and membership of Norman’s household) had ceased, in my view, to have any real significance over the period of their relationship as a whole. The question had to be determined as a matter of substance and not, in my view, as William sought to do by invoking labels such as that he should have been regarded as Norman’s foster child. In any event, in my view, seeking to invoke that descriptor in the circumstances is inapt. A foster child is a child raised by someone who is not his or her natural or adoptive parent. While I have no doubt that loving relations exist in foster families, such a relationship carries no necessary connotation such as William seeks to establish that the foster child is one who might be expected to be a natural testamentary object of the foster parents.

176. In this case the tenor of the relationship such as it was which developed in the period William lived in Norman’s home was reflected in their engagement after that period. Their encounters after William left the home were infrequent and almost always in a family context, rather than in a context signifying a desire on either man’s part for personal communication.

177. Whether or not William may once have regarded Norman as a father figure, (and even that is not, in my view, clearly established [183] ) that emotion had clearly dissipated to the extent that he made no attempt to see Norman while he was dying. This was telling evidence which sounded loud against the proposition that William was a person who Norman should regard as a natural object of testamentary recognition. The fact that William lied about trying to contact Norman during that period indicated a consciousness on his part that the truth in that respect would not have assisted his case. [184] As the primary judge found, William’s behaviour during this period was hardly consistent with a person who had a close relationship with Norman. [185]

     183.    Cf the findings to which I have earlier referred that there was a lack of “personal depth” or “real closeness” between the men: see primary judgment generally (at [143] – [146]).

     184. See Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 (at [60]) per Meagher JA (Basten and Campbell JJA agreeing).

     185.    Primary judgment (at [75]).

178. In my opinion, William has not established that the primary judge erred in a House v R sense in concluding that William had not established there were factors warranting his application.

Notice of contention

179. As I have said, the respondents put on a notice of contention to the effect that even if the primary judge had found factors warranting William’s application, the evidence would not have permitted his Honour to conclude that adequate provision for William’s proper maintenance, education or advancement in life had not been made by Norman and that the primary judge would not have exercised his discretion to make a family provision order in William’s favour.

180. The respondents did not address the notice of contention in their written submissions. To the extent they did so orally, they submitted that the same issues which told against there being factors warranting would also tell against the exercise of a discretion in William’s favour pursuant to s 59(1)(c).

181. However, consideration of the notice of contention has, in my view, been pre-empted by the events which happened after the hearing.

182. In the course of the hearing the Court pointed out to William’s counsel that he had not placed before the Court any submissions concerning the order he contended the Court should make in William’s favour should he be successful in persuading the Court there were factors warranting the application. Further, even though the summons sought provision from Norman’s estate and/or notional estate, no notional estate order had been sought. [186]

     186.    Cf the Act, Pt 3.3.

183. Accordingly, the Court made orders directing the parties to file and serve written submissions addressing the nature of any provision order to be made in William’s favour should he be successful in establishing factors warranting.

184. William filed further submissions outlining the nature of the provision for which he contended. In William’s submissions, he accepted that no version of his notice of appeal had sought that, if he was successful on the factors warranting issue, a family provision order should be made not only out of Norman’s estate, but, too, out of his notional estate. He sought leave to amend the second amended notice of appeal both to remedy that omission and, alternatively, to seek an order remitting the matter for the making of such orders both out of Norman’s estate or his notional estate.

185. The respondents filed submissions in reply, relevantly opposing the proposed amendments to the notice of appeal on the basis that William had not sought a notional estate order at the hearing and accordingly, this Court had no jurisdiction to make such an order. They also opposed the Court remitting the matter to the primary judge for the making of any notional estate order, having regard, they said, to William’s failure to seek such an order at the trial. Further, they raised evidentiary complaints concerning the question whether William had adduced evidence providing a basis for a notional estate order in respect of certain property. They also contended that they should be given leave to adduce new evidence on the basis of a notice of motion filed on 16 December 2016 seeking to adduce further evidence pursuant to s 75A of the Supreme Court Act 1970 (NSW), supported by an affidavit of their solicitor, Mr Low. As outlined in the respondents’ reply submissions, the gist of the application was that the fresh evidence revealed William had failed to disclose a significant change in his and Rosalba’s financial positions, to such an extent as should disqualify him from receiving any provision from Norman’s estate.

186. Orders were made for the filing of evidence and submissions in respect of the new evidence motion. Such submissions have been filed. In addition, on 25 January 2017, William filed two affidavits, one sworn by him, the other by Rosalba, setting out an update as to their respective financial and domestic situations, intended apparently, in part at least, to explain the transaction referred to in the fresh evidence application. In addition, on 27 January 2017 William filed submissions in response to Robert’s motion together with two supplementary affidavits of William and Rosalba, filed to correct certain figures set out in their earlier affidavits of 25 January 2017.

187. In the light of my conclusion, it is unnecessary to address the issue of what, if any, family provision order should be made, nor resolve the new evidence application.

188. However, had I been of the view there were factors warranting, subject to what I say below, I would also have been of the view that those issues should be remitted for determination by the primary judge. It might be accepted that William did not formally apply for a notional estate order. However, a claim for provision out of Norman’s notional estate was made in the summons and William identified notional estate in his first affidavit in the proceedings.

189. At the conclusion of the hearing, the parties prepared a list of agreed property valuations. Many of those properties were described as “notional estate”. That appears to me to be an admission by the respondents which obviated the necessity for a notional estate order, save to the extent such an order was formally required. [187] The written and oral submissions below appear to have primarily focused on the factors warranting issue, however there was debate about the extent of the provision William sought. Once again, having regard to the quantum of the provision William sought (approximately $900,000), and the fact that such an order could only have been made if it could be borne, in part at least, by one or more of the properties described as notional estate, it appears to me to have been accepted that the possible inclusion of notional estate in any family provision order was before the primary judge.

     187.    Cf the Act, ss 78, 80.

190. However, leaving aside for present purposes the new evidence application, the application for a family provision order itself raises a number of factual and legal issues which, in the event of a favourable factors warranting decision, should have been, and are better, determined by the primary judge. That position is exacerbated it appears to me, having regard to the factual issues raised by the new evidence application, and bearing in mind the primary judge’s credit findings. Those factual issues, too, should be considered by the primary judge and weighed against his views of William and Rosalba’s credit.

179. I agree with Gleeson JA’s observations about notional estate.

Orders

192. I would dismiss the appeal with costs.

193. GLEESON JA: I agree with McColl JA. I wish to add some brief comments in relation to certain procedural aspects of these proceedings insofar as the appellant claimed relief against non-parties.

194. The summons filed by the appellant was in familiar terms for proceedings under the Succession Act 2006 (NSW) (Succession Act) claiming a family provision order. The appellant sought an order that provision be made for his maintenance, education and advancement in life, pursuant to s 59 of the Succession Act from the estate and/or notional estate of the late Norman Yee (the deceased). The only defendants to the summons were the executors (Robert Yee and Phillip Yee).

195. An affidavit was filed by the executors in compliance with par 9.1 of the relevant Practice Note (SC Eq 7) which identified four possible transactions by the deceased within 12 months of his death, which might be regarded as “prescribed transactions” or “relevant property transactions”. These expressions in the Practice Note may be taken to be references to s 23 of the Family Provision Act 1982 (NSW) (Family Provision Act) and s 80(2) of the Succession Act respectively. The recipients of the property the subject of those transactions were one of the executors (Robert Yee), who was a party having been joined as a joint executor, and three other persons, none of whom had been joined as parties to the proceedings.

196. If a notional estate order is proposed to be sought under s 80 of the Succession Act with respect to property to be designated as notional estate, it is usual to join the legal owners of the notional estate as defendants, in addition to the joinder of the representative of the deceased’s estate. As Handley JA remarked in Smith v Dayman [1994] NSWCA 286, “[a] court could not ordinarily make orders designating property as notional estate without the owners being parties to the proceedings”.

197. The statement by Handley JA in Smith v Dayman accords with the governing principle upheld by the High Court in John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 (John Alexander’s Clubs) at [131]:

... that where a court is invited to make, or proposes to make, orders directly affecting the rights or liabilities of a non-party, the non-party is a necessary party and ought to be joined.

See also News Ltd v Australian Rugby Football League Ltd [1996] FCA 870; (1996) 64 FCR 410, where the Full Federal Court stated, at 524-525:

Where the orders sought establish or recognise a proprietary or security interest in land ... all persons who have or claim an interest in the subject matter are necessary parties. This is because an order in favour of the claimant will, to a corresponding extent, be detrimental to all others who have or claim an interest.

198. The need to join all proper or necessary parties is also reflected in the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). UCPR, r 6.24(1) provides that if the court considers that a person ought to have been joined as a party, or is a necessary party for the determination of all matters in dispute in the proceedings, the Court may order that the person be joined as a party.

199. Notwithstanding the governing principle, the appellant submitted in oral argument that if the appeal was successful, a notional estate order could be made in the present case despite the appellant:

1. not seeking or obtaining relevant findings by the trial judge that any of the four transactions by the deceased in the 12 months prior to his death constituted a “relevant property transaction” within the meaning of s 80(2) of the Succession Act;

2. not joining as defendants to the proceedings below, or as respondents to the appeal, all of the owners of the alleged notional estate whose interests would be affected by any proposed notional estate order; and

3. not directing any submissions on appeal to the evidence relied upon to support the making of a notional estate order, nor identifying who should bear the burden of any such order.

200. It was in this context that the Court, at the conclusion of the hearing of the appeal, invited further submissions from the parties on a number of issues including, whether it was, or is, necessary to join other parties to the extent that the appellant contended the burden of provision (if he was successful on appeal) should fall in whole or in part on the notional estate of the deceased.

201. In response to that invitation, the appellant submitted that the Succession Act imposes no obligation on the court to hear from a person directly affected by a proposed notional estate order. This submission was relied on by the appellant by way of justification for the non-joinder as defendants to the proceedings below, or as respondents to the appeal, of the three of the four persons who owned the alleged notional estate of the deceased.

202. As to the burden of the proposed notional estate order, the appellant submitted that this should be borne entirely by Robert Yee who held the shares in N & D Yee & Co Pty Ltd (which had been transferred to him by the deceased on 27 November 2012, about 6 months prior to his death). This would obviate the deficiency in parties, as Mr Robert Yee was a party in his capacity as joint executor of the estate.

203. In reply submissions the appellant pointed to the terms of s 92(2) of the Succession Act which provides that a person affected by a notional estate order can apply for a variation. It was argued that the conferring of a jurisdiction, on the application of a person so affected, to vary a notional estate order already made gave rise to an implication that it is unnecessary for the person so affected to be heard prior to that notional estate order being made.

204. As the appeal has failed it is not strictly necessary to address these submissions. However it is appropriate to briefly explain why the first and third submissions are unsound.

The need to join all proper parties

205. The first submission that it is unnecessary to join the persons affected by a proposed notional estate order is inconsistent with the governing principle upheld by the High Court in John Alexander’s Clubs, and earlier remarked upon by this Court in Smith v Dayman specifically in connection with an application for notional estate orders under Family Provision Act. Other cases in which the principle has been observed in applications for notional estate orders under the Succession Act and the predecessor legislation include:

•   Kavalee v Burbidge; Hyland v Burbidge (1998) 43 NSWLR 422, where the prescribed transaction involved transferring property to a foundation established under the law of Lichtenstein and the nominee companies which held assets upon trust for the foundation were joined as parties to the proceedings under the Family Provision Act (see at 426B-F);

•   Ebert v Ebert; Ebert v Ebert [2008] NSWSC 1206 at [7], where the alleged prescribed transaction involved a mortgage transaction to secure an advance of $450,000, paid to the benefit of two of the deceased’s adult sons, one of who was the administrator of the deceased’s estate (and hence already a party) and the other son was later joined as a party to the proceedings;

•   Kelly v Deluchi [2012] NSWSC 841, where the trustee of a superannuation fund, against whom a notional estate order was sought, was joined as a defendant to proceedings under the Succession Act.

206. As to the third submission, it is no answer to the need to join all necessary parties to point to the court’s power to make substituted property orders under s 92(2) of the Succession Act on the application of an affected person. Sections 92(2) and (3) provide:

92   Substitution of property affected by orders or proposed orders

…

(2) If the Court has made, or proposes to make, a notional estate order designating certain property as notional estate, the Court may, on application by a person who offers other property in substitution ("the replacement property" ):

(a) vary the notional estate order by substituting the replacement property for the property designated as notional estate by the order, or

(b) 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.

(3) The Court may vary or make an order under this section only if it is satisfied that the replacement property can properly be substituted for the property affected or proposed to be affected by the family provision order, or the property designated or proposed to be designated as notional estate, as appropriate.

…

207. Section 92(2) is directed to two situations: one is where the Court has already made a notional estate order; the other is where the Court proposes to make such an order. Where the Court has already made a notional estate order designating certain property as notional estate, a person affected by that order may apply to the Court to offer other property in substitution, referred to as “the replacement property”. In the alternative scenario where the Court has not yet made a notional estate order, a person affected by the proposed order may apply to the Court to offer other property in substitution.

208. Section 92(3) imposes a condition on the Court making a substitution order that it is satisfied that the replacement property proffered by the owners of the notional estate can properly be substituted for the property designated or proposed to be designated as notional estate.

209. Although s 92(2) speaks in terms of “a person”, rather than “a party”, the subject matter of s 92(2) is directed to whether a substitution order with respect to the property designated, or proposed to be designated as notional estate, is appropriate. The provision directs attention to whether the substitution of replacement property offered by the person affected by the notional estate order or proposed order, is appropriate. The provision does not reveal an intention that notional estate orders can be made against non-parties, let alone that such an order can be made without giving the affected person the opportunity to be heard in the first instance in opposition to the making of such an order. Section 92(2) is not concerned with the identity of the proper or necessary parties to family provision proceedings.

210. SIMPSON JA: I agree with McColl JA. I also agree with the additional observations of Gleeson JA.

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Schedule

Norman Yee	Testator
Doreen Yee	Norman’s second wife
Helen Yee	Norman’s third wife
Yu Man Wai	Norman’s eldest brother
Phillip Yee	Norman’s brother (Executor)
Victor Yee	Norman’s youngest brother
Robert Yee	Norman’s adopted son (Executor)
Karen Yee	Robert’s wife
Elaine Yuen	Norman’s adopted daughter
Alex Yuen	Elaine’s husband
Tina Yee	Helen’s daughter, adopted by Norman
Yvonne Poon	Yu Man Wai’s daughter, lived with Norman, (returned to Hong Kong)
William Yee	Yu Man Wai’s son (plaintiff)
Rosalba Sorgiovanni Yee	William’s wife
Daniel	Yu Man Wai’s son
Thomas	Yu Man Wai’s son
Wendy Yee-Dempster	Norman’s niece
Julie Soo	Doreen’s niece
Juliana Soo	Julie’s daughter
Karen Cheung	Doreen’s niece
Peter Cheung	Doreen’s nephew

Endnotes

Decision last updated: 28 November 2017