Spata v Tumino

1. [1]

   MACFARLAN JA: I agree with the judgment of Payne JA and also with that of Sackville AJA.

2. [2]

   PAYNE JA: This is an appeal from a decision rejecting the appellant’s eligibility for provision out of the estate of the late Gina Spata under the Succession Act 2006 (NSW): Spata v Tumino; Estate of Gina Spata [2017] NSWSC 111. Gina Spata died on 29 March 2014, aged 77. She was predeceased by her husband, Rosario (Ross) Spata, who died on 7 February 2010.

3. [3]

   The appellant, Giovanni (John) Spata, is the deceased’s stepson. The respondents, Franco Tumino and Enza Liberatore, are the deceased’s nephew and niece. Without intending any disrespect, I will refer to the deceased as Gina, her late husband as Ross, the appellant as John and the respondents as Franco and Enza respectively.

4. [4]

   On 17 June 2014, probate of Gina’s will was granted to Franco and Enza, to whom she left her whole estate in equal shares as tenants in common.

5. [5]

   On 23 March 2015, John filed a summons seeking an order under the Succession Act in respect of Gina’s estate. The primary judge rejected the appellant’s claim on the basis that John had not established that he was a person who was, at any particular time, wholly or partly dependent on the deceased, as required by s 57(1)(e) of the Succession Act. John was not eligible under s 57(1)(e) of the Succession Act as “dependency”, either wholly or partially, upon Gina had not been established. The primary judge found that if he were wrong about “dependency”, there were circumstances warranting the making of the claim by John and that inadequate provision for his proper maintenance and advancement had been made. Had John been eligible, the primary judge would have awarded him $300,000 from Gina’s estate.

6. [6]

   John appeals against the primary judge’s decision. Franco and Enza cross-appeal against the contingent findings of circumstances warranting the making of the claim, the finding of inadequate provision and the quantum of the award.

Relevant facts

1. [7]

   The facts found by the primary judge were not controversial on the appeal. Gina was born on 1 January 1937. Ross, the father of John, was born on 21 September 1926.

2. [8]

   In about 1953, Ross married Nancy Barone. They had three children together: Salvatore (Sam) born in 1954; John born on 11 September 1955, and Roberto (Robert) born in 1957. Nancy died in 1973.

3. [9]

   From at least the 1960s, Ross and his family occupied 306 West Botany Street Rockdale. By 1973 Ross had purchased the adjoining property at 304 West Botany Street Rockdale, and in the mid-1970s he purchased 24 Platts Avenue Belmore.

4. [10]

   In June 1979, John married Valerie. Following their marriage John continued to reside in 306 West Botany Street with Valerie. They lived at 306 West Botany Street until the mid-1980s, when they moved to rented premises and subsequently purchased their own property.

5. [11]

   On 8 March 1980, Gina and Ross were married. At that time, Gina owned a 5/6th interest in 2/59 Tebbutt Street Leichhardt, as tenant-in-common with her sister Giovanna Tumino, who owned the remaining 1/6th.

6. [12]

   Following their marriage, Ross and Gina initially resided in 306 West Botany Street, together with John and Valerie. In about October 1980, Ross and Gina moved (with Robert) to Gina’s flat in 2/59 Tebbutt Street Leichhardt, leaving John and Valerie occupying 306 West Botany Street. In December 1980, Robert married Marie and moved out of 2/59 Tebbutt Street.

7. [13]

   In about 1982, Ross, who was employed by Schweppes at Alexandria as a fitter, retired as a result of a work injury. He received a compensation payment of approximately $40,000 which he used to purchase a motor vehicle and to fund his retirement.

8. [14]

   In November 1982, Ross purchased Gina’s sister’s 1/6th interest in 2/59 Tebbutt Street.

9. [15]

   Gina retired in 1988. Prior to that she was in full-time employment with AWA at Strathfield. At that time, Ross and Gina moved from Tebbutt Street to 24 Platts Avenue Belmore, which had been renovated over the preceding eight years. John and his brothers significantly contributed to the acquisition, conservation and improvement of Platts Avenue.

10. [16]

    In 1989 or 1990, Ross transferred ownership of 306 West Botany Street to Robert.

11. [17]

    John and Valerie separated in September 1995 and their marriage was dissolved in 2000. The primary judge found that John resided with Ross and Gina, at 24 Platts Avenue, for “a few years” after his separation. As will become apparent, the primary judge accepted evidence from Sam that John was invited to live at 24 Platts Avenue after his separation from Valerie by both Ross and Gina.

12. [18]

    Sometime in or after 1996, John met Emi Iwata, and by 1999 he was living with her at a house in Kogarah. Their son Rosario (junior) was born on 18 March 2001. John moved with Emi and Rosario (junior) to Japan in 2003 and resided there with her family until April 2011, when they returned to Australia.

13. [19]

    Ross died on 7 February 2010, aged 83. His estate comprised 24 Platts Avenue (then worth $600,000), 304 West Botany Street (then worth $600,000), a 1/6th interest in 2/59 Tebbutt Street Leichhardt (then worth $70,833), moneys on deposit ($86,862) and shares ($5,994). By his last will, made on 16 June 2005, probate of which was granted on 12 May 2010 to Sam and Robert, he left his household chattels to Gina, and gave her a right of residence as long as she wished to reside in his principal place of residence (Platts Avenue) provided that she paid the rates and outgoings, and he stipulated that the property was not to be sold until she remarried, entered into a de facto relationship, ceased to live there permanently, or failed to comply with the conditions of the right of residence. Upon sale, the proceeds were to form part of the residue, which after payment of debts, funeral and testamentary expenses were to be divided equally between those of his children who survived him and attained the age of 18 years.

14. [20]

    Gina brought an application under the Succession Act in respect of Ross’ estate. Although the evidence given on that application featured to a limited extent before the primary judge in the present case, the detail of that evidence did not figure prominently in the submissions of either party in this Court. On 28 November 2011, Hallen AsJ gave judgment on Gina’s application and made orders that:

15. [21]

    Ross’ executors filed a notice of intention to appeal. Negotiations ensued between the executors of Ross’ estate and Gina in respect of the implementation and variation of Hallen AsJ’s orders.

16. [22]

    On 23 February 2012, Hunter Lawyers (solicitors acting for the executors) wrote to Coorey & Fitzgerald (solicitors acting for Gina), asserting that John was destitute and was occupying 304 West Botany Street with the executors’ permission with his wife and 10 year old son, but would have to be ejected if Hallen AsJ’s orders of 28 November 2011 were implemented in order to fund the lump sum legacy. It was stated that Sam had contacted Gina with a view to finalising the matter and resolving the situation and proposing that the estate transfer 24 Platts Avenue, and its 1/6th interest in 2/59 Tebbutt Street, to Gina, that the rest and residue (including 304 West Botany Street) go to the brothers and that each party bear their own costs.

17. [23]

    On 27 February 2012, Gina gave written instructions to her lawyers that she had had a private discussion with Sam and had decided to consent to setting aside the orders of 28 November 2011 and replacing them with arrangements under which: (1) the executors would not appeal; (2) she would receive clear title to Ross 1/6th interest in 2/59 Tebbutt Street and the whole of 24 Platts Avenue; (3) she would bear her own costs; (4) she would not receive the legacy of $143,000; and (5) the rest of the estate would go to the brothers. She acknowledged that she had been advised that this would leave her about $40,000 worse off than she would be under the orders of 28 November 2011, but still wished to proceed.

18. [24]

    A Deed of Family Arrangement was executed on 30 March 2012. It provided for the orders which had been made in the proceedings to be vacated and in their place, for Gina to receive, in lieu of the benefits provided by Ross’ will, (a) his interest in 2/59 Tebbutt Street (and all income derived from it since his death), and (b) 24 Platts Avenue absolutely. The deed included a release of all claims – including of rights to make any further Succession Act application – against Ross’ estate, but did not include any release in respect of possible claims on Gina’s estate. In essence, by the settlement Gina relinquished the lump sum legacy and her entitlement to costs of the proceedings, in return for the sons relinquishing the charge over 2/59 Tebbutt Street.

19. [25]

    As a result, the estate retained 304 West Botany Street, which was later sold for $670,000. In early 2012, John and each of his brothers received a distribution of about $200,000 each from their father’s estate.

20. [26]

    On 1 August 2012, Gina sold 2/59 Tebbutt Street for $450,000. On 17 August 2012, Gina sold 24 Platts Avenue for $690,000 and purchased a unit at 3/70 Norton Street Ashfield for $625,000.

21. [27]

    The primary judge found that Gina’s estate, after deducting costs, exceeded $800,000. This amount included a term deposit of $300,000 held by Gina and Franco jointly which passed by survivorship to Franco. His Honour found that Franco had not contributed to this fund and that the entire fund had been beneficially owned by Gina.

22. [28]

    The parties informed the Court that the appellant’s ordinary costs of the trial and the appeal were $55,000 including GST and the respondents’ indemnity costs were $33,000 including GST.

Primary judgment

1. [29]

   The question of whether John was an “eligible person” pursuant to s 57(1)(e) of the Succession Act turns on whether John was “wholly or partly dependent” on Gina at any time.

2. [30]

   John advanced two grounds for dependence upon Gina before the primary judge:

   1. (1)

      dependence upon Gina for accommodation; and

   2. (2)

      dependence upon Gina for the provision of domestic services and the supply of food whilst he resided with her in the same household.

3. [31]

   The primary judge rejected both aspects of the claim of dependence. The primary judge found that John was a member of the household at 306 West Botany Street in 1980 (for a few months) and at 24 Platts Avenue from 1995 (for a few years), whilst Gina was a member of that household.

4. [32]

   The primary judge, however, rejected the appellant’s claim on the basis that eligibility under s 57(1)(e) of the Succession Act was not made out. His Honour held that “dependency”, either wholly or partially, upon the deceased could not be established.

5. [33]

   With respect to accommodation, the primary judge found that it could not be said that John was dependent upon Gina, as distinct from Ross, for accommodation. Ross was the registered proprietor of both 306 West Botany Street in 1980 and 24 Platts Avenue at all relevant times. The primary judge found that, in truth, Gina and John were both dependent upon Ross for accommodation.

6. [34]

   With respect to the provision of domestic services, the primary judge found that John was not dependent on Gina for domestic services during either period they resided in the same household. The primary judge described the evidence of dependence given by John on these issues as relating to trivial assistance. In relation to the provision of food, the primary judge was not satisfied that Gina provided John’s food and household supplies during the second period.

7. [35]

   The primary judge was satisfied that had dependency been established, there were sufficient factors warranting the making of an application under s 59 of the Succession Act. The primary judge found that John, if eligible, would only have been so under category (e) of the definition in s 57(1), but that there were factors which gave John the status of a person who would generally be regarded as a natural object of testamentary recognition by the deceased: Re Fulop deceased; Fulop v Public Trustee (1987) 8 NSWLR 679 at 681E (per McLelland J); Churton v Christian (1988) 13 NSWLR 241 at 242G (per Hope JA), 244F (per Mahoney JA), 252A-E (per Priestley JA).

8. [36]

   The primary judge identified three matters relevant to this determination. In relation to the first, the characteristics of the relationship that qualified John, if at all, as an eligible person, the primary judge concluded that this was a factor tending against a finding of circumstances warranting the making of a claim. The periods of common membership of the same household by John and Gina were short, and the nature, extent and duration of the dependency alleged were slight. There was no dependency as at the deceased’s death, or for many years before that date. Any general community expectation that a testator would provide for those who are dependent on him or her did not apply where the dependency had long since ended. The primary judge also rejected a submission that the relationship between Gina and John was analogous to that of a parent and child.

9. [37]

   In relation to the second matter, John’s expectations of inheritance from his father Ross, and from Gina, the primary judge concluded that this was a factor tending in favour of a finding of circumstances warranting a claim. The primary judge found that:

   1. (1)

      John had strong legitimate claims on Ross’ testamentary bounty arising from his contribution to the acquisition, conservation and improvement of his estate (principally by assisting in the renovation and maintenance of the properties);

   2. (2)

      during his lifetime, Ross on a number of occasions made statements in the presence of Gina to the effect that the properties were for the boys and that each was to have a house, and that Gina acknowledged and agreed to this; and

   3. (3)

      Gina herself made representations both before and after the entry into the deed of family arrangement to John and to Sam to the effect that she would honour Ross’s wishes and make provision for them in her will.

10. [38]

    In relation to the third matter, the significance of the earlier proceedings concerning Ross’ estate and the subsequent settlement of those proceedings, the primary judge concluded that this was a factor tending in favour of a finding of circumstances warranting a claim. The representations made by Gina, including those made after the settlement of the proceedings, to the effect that she would make provision for the boys from her estate, gave rise to a moral obligation incurred by Gina which was not extinguished by the deed of family arrangement.

11. [39]

    The primary judge concluded that assuming John to be eligible, Gina’s will failed to make adequate provision for John’s proper maintenance and advancement. His Honour concluded that having regard to the competing claims of Enza and Franco, John would have been entitled to $300,000 from Gina’s estate:

Notice of appeal

1. [40]

   The appellant’s notice of appeal dated 22 May 2017 raised the following issues:

   1. (1)

      whether the primary judge erred in finding that the appellant was not “wholly or partially dependent” upon the deceased and thus not an eligible person pursuant to s 57(1)(e) of the Succession Act (grounds 1 and 2); and

   2. (2)

      whether the primary judge erred in ordering the summons be dismissed rather than making an order that the appellant receive provision from the deceased’s estate in the sum of $300,000 as adequate provision (ground 3).

Notice of cross-appeal

1. [41]

   The notice of cross-appeal raised the following grounds:

   1. (1)

      the primary judge erred in finding that there were factors which warranted the making of the appellant’s claim (ground 1);

   2. (2)

      the primary judge erred in finding the deed of family arrangement did not extinguish any obligation which the deceased may have owed to the appellant (ground 2);

   3. (3)

      the primary judge erred in holding the competing claims of the respondents were not such as to require the appellant’s claim to be disregarded or discounted (ground 3);

   4. (4)

      the primary judge erred in finding that had the appellant been an eligible person he should have received provision from the deceased’s estate, or alternatively if he did receive provision, an amount of $300,000 was an inappropriate sum (ground 4); and

   5. (5)

      the primary judge erred in finding that the deceased was impressed with a moral obligation to make provision for the appellant and his brothers (ground 5).

2. [42]

   Because the respondent chose to proceed by cross-appeal it is necessary to address that topic even in the event that the appeal fails.

The notice of appeal – the dependency test

1. [43]

   The primary judge described the legal test for “dependency” at [59]-[67] of the judgment in a way which was not criticised by the appellant. The subject of attack was the reliance by the primary judge in applying that test upon two decisions of Young J in Clinch v Swift 13 October 1988, unreported and Shaw v Lambert 9 October 1987, unreported.

2. [44]

   The appellant submitted that the finding of dependency by the primary judge was in error in that either:

   1. (1)

      the scope and meaning of the term “wholly or partially dependent” used by the primary judge was narrower than that provided in the statutory context of s 57(1)(e); or

   2. (2)

      the primary judge took into account irrelevant factors, or failed to take into account relevant factors, in the application of the dependency test.

3. [45]

   The appellant submitted that the dependency test was not limited merely to a consideration of legal ownership and that the primary judge erred in treating as determinative the legal ownership of the relevant properties by Ross. The appellant submitted that the primary judge failed to apply authority to the effect that a context specific assessment of the relationship between the relevant parties is necessary in order to determine whether dependency should be found.

4. [46]

   The appellant submitted that an assessment of the actual relationship between the parties was not given weight by the primary judge. That relationship was illuminated by the joint invitation made by Gina and Ross for John to live with them at 24 Platts Avenue, which was acted upon. The appellant, while accepting that the evidence of dependency before the primary judge was narrow, submitted that the invitation by Gina (which was acted upon) was direct, public and made in the presence of Ross.

5. [47]

   The appellant submitted that Gina was in a position of critical importance when it came to determining who might live in the matrimonial home because:

   1. (1)

      she was Ross’ wife and it should be inferred that the views of a spouse are material to if not determinative of the question as to who might reside in the matrimonial home - irrespective of ownership; and

   2. (2)

      in considering the consequences of a significant disagreement, Gina ultimately had the ability to bring the relationship to an end.

6. [48]

   The appellant placed considerable reliance on the decision in Ball v Newey (1988) 13 NSWLR 489 which considered the eligibility requirements under the former s 57. The appellant also relied upon the decision in Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285, in particular the remarks made by Meagher JA at [109]-[111] with respect to the dependency test:

7. [49]

   The respondents submitted that no dependency upon Gina for accommodation could arise in circumstances where Gina was not the registered proprietor of either 306 Botany Street or 24 Platts Avenue. This is because the right to permit or prevent John to reside in each property was solely exercisable by Ross and not by Gina.

8. [50]

   The respondents submitted that the fact that Gina may have expressly or impliedly acquiesced in Ross permitting John to reside at the property cannot be elevated into John being dependent upon Gina for accommodation.

9. [51]

   The respondents submitted that the concept of dependency consistent in the Succession Act “may not permit the widest reading which the fair meaning of the language will allow. This is because a wide reading of the legislation may impose a burden on others by restricting their testamentary freedom.” The respondents submitted that in Page v Page [2017] NSWCA 14, this Court rejected a submission that a younger sibling was partly dependent on an elder sibling who, at the request of their mother, ensured the home was secure and supervised his younger sibling. It was submitted that the present was an analogous case.

10. [52]

    Finally, the respondents submitted that to construe the concept of “dependency” in the way contended for by the appellant would lead to absurd results and impose an unreasonable restriction on testamentary freedom.

Consideration of appeal - dependency

1. [53]

   In Page v Page Leeming JA (with whom Basten JA agreed on this point) held that in determining the question of “dependency” in s 57(1)(e) of the Succession Act, it was likely that the power of this Court to intervene was not limited by the considerations identified in relation to discretionary decisions by House v King (1936) 55 CLR 499; [1936] HCA 40, as explained in Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 (at 518 and 520 per Mason and Deane JJ) when addressing a broad evaluative decision. Rather, it was likely that the issue of dependency is determined by an appellate court determining for itself the “facts as well as the law” in accordance with Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 at 552 (per Gibbs ACJ and Jacobs and Murphy JJ).

2. [54]

   The reasoning of Leeming JA about the role of this Court when addressing the question of dependency under s 57(1)(e) of the Succession Act is contained at [35]-[41]. His Honour concluded that the principles in House v The King are likely inapplicable to review of a finding of partial dependency within the meaning of that section and that nothing in Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 requires a different conclusion. I regard Leeming JA’s analysis on this question as compelling. Nothing in the subsequent decision of this Court in Yee v Yee [2017] NSWCA 305 affects Leeming JA’s conclusion as the question of dependency was not in issue in Yee: see [94]-[96] and [108].

3. [55]

   The appellant submitted that the absence of dispute about the relevant facts in this case means that there is no practical difference in the outcome here regardless of which test is applied. That may be so, however, I will proceed on the basis that the issue of dependency is determined by this Court determining for itself the facts as well as the law in accordance with Warren v Coombes.

4. [56]

   Section 57 of the Succession Act sets out those who are “eligible” to apply for a family provision order. In the present case, John submitted that he was an eligible person falling within s 57(1)(e):

5. [57]

   Section 59 of the Succession Act provides the power of the Court to make a family provision order:

6. [58]

   Membership of a common household is a necessary but not a sufficient condition of eligibility under s 57(1)(e). That requirement is not controversial on the appeal. The critical requirement is that the claimant must also have been at some time wholly or partly dependent on the deceased.

7. [59]

   In Lodin v Lodin [2017] NSWCA 327, Sackville AJA at [69]-[84] traced the history of Chapter 3 of the Succession Act and noted a number of curious features. The legislative history provides some assistance in understanding the relevant features of the Succession Act and, in this case, the relationship between the key provisions governing a Succession Act claim by an adult stepchild.

8. [60]

   The first legislation in New South Wales to provide for family provision claims was introduced over 100 years ago in the Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW). The legislation permitted the Court to make an order for the provision of the widow, husband or children of a deceased person out of that person’s estate.

9. [61]

   In 1977, shortly after the enactment of the Family Law Act 1975 (Cth), the New South Wales Law Reform Commission (NSWLRC) reviewed the law relating to family provision in New South Wales. The NSWLRC recommended that the class of persons eligible to apply for provision be enlarged. As the NSWLRC said in its Report on the Testator’s Family Maintenance and Guardianship of Infants Act 1916 (Report 28, 1977) at [1.7]:

10. [62]

    In its report the NSWLRC gave close consideration to the position of adult stepchildren. The NSWLRC said at [2.6.25]:

11. [63]

    As Sackville AJA explained in Lodin, the Family Provision Act as enacted followed some but not all of the NSWLRC’s recommendations. In relation to stepchildren, s 9(1) of the Family Provision Act, the precursor to s 59(1)(b) of the Succession Act, adopted the criterion of eligibility recommended by the Commission.

12. [64]

    In 1991, the Standing Committee of Attorneys-General approved the development of uniform succession laws in Australia. The Queensland Law Reform Commission (QLRC) was asked to coordinate the project and in 1997 reported to the Standing Committee. Except for people with “automatic” eligibility (being children and spouses of the deceased at the time of his or her death) the QLRC favoured an approach where eligibility to apply for family provision orders (other than by spouses and children) turned “not on membership of some arbitrary class of persons” but on the establishment of a “special responsibility” on the part of the deceased person towards the applicant. New South Wales Law Reform Commission, Uniform Succession Law: Family Provision (Report 110, May 2005)

13. [65]

    The NSWLRC report Uniform Succession Law: Family Provision (Report 110, May 2005) about uniform succession laws essentially adopted the approach proposed in the model provisions whereby a person could apply for a family provision order if the deceased person had a “special responsibility” to the person to provide maintenance, education or advancement in life. The draft legislation specified 14 matters that could be considered by the court in determining whether the deceased person had a responsibility of the relevant kind to the claimant. The same matters could be considered in determining whether to make a family provision order and, if so, the nature of any order made.

14. [66]

    The Succession Act as originally enacted in New South Wales did not deal with family provision orders. The provisions now in Chapter 3 of the Succession Act were introduced by the Succession Amendment (Family Provision) Act 2008 (NSW). This legislation did not follow the model bill proposed by the QLRC and the NSWLRC in relation to a family provision claim made by a person other than a spouse, a person with whom the deceased was living in a domestic relationship and a child of the deceased. The second reading speech explained why:

15. [67]

    It is against this background that the construction of s 57(1)(e) of the Succession Act must be addressed.

16. [68]

    It has long been held that the word “dependent” is an ordinary English word and the question of whether a person is wholly or partly dependent on another is a question of fact: Page v Page [2017] NSWCA 141 at [7], per Sackville AJA (with whom Leeming JA agreed on this point). Although Sackville AJA noted that the construction of s 57(1) was not in issue in that case, he cited Petrohilos v Hunter (1991) 25 NSWLR 343 at 346 (per Hope JA with whom Clarke and Sheller JJA agreed) and Aafjes v Kearney (1976) 180 CLR 199; [1976] HCA 5 at 204 (per Barwick CJ) and 210 (Mason J, Stephen J agreeing), as authority for the proposition. To these cases may be added the decision of Meagher JA (with whom Basten and Campbell JJA agreed) in Tobin v Ezekiel at [109]-[111] and that of Samuels JA (with whom Hope JA and Mahoney JA agreed) in Ball v Newey (1988) 13 NSWLR 489 at 491 who said:

17. [69]

    As Basten JA explained in Page v Page, in some cases in which it has been said that whether a person is wholly or partly dependent on the testator is a question of fact, such as Petrohilos v Hunter, the Court went on to explain that the phrase “wholly or partly dependent on the deceased person” must be understood within its relevant statutory context. As a matter of language, dependency between two people could arise simply by engaging in some co-operative activity which can be said to give rise to mutual dependency. Basten JA’s conclusion, that the statutory context requires a more limited construction of the term dependency, being limited to a relationship which of itself gives rise to a statutory obligation to make provision from the deceased person’s estate for the proper maintenance, education or advancement in life of the dependent, was relied upon by the respondents in this case.

18. [70]

    In the present case, the same answer to the question of whether John was “wholly or partly dependent” upon Gina will be reached regardless of whether the traditional test applied by Sackville AJA and Leeming JA in Page v Page or the narrower test favoured by Basten JA in the same case is adopted. Nevertheless, as the respondents have relied upon a more restrictive interpretation of “wholly or partly dependent”, I will address the question of construction first.

19. [71]

    There is a long history of decisions in this Court which have concluded that the word “dependent” is an ordinary English word and the question of whether a person is wholly or partly dependent on another is a question of fact. I would be hesitant to depart from that settled construction unless persuaded it was clearly wrong. Further, any restrictive reading of “dependent” would be contrary to established principles of statutory construction of remedial or beneficial provisions. Three members of the High Court in Barnes v Barnes (2003) 214 CLR 169; [2003] HCA 9 at [44] (per Gummow and Hayne JJ) and [124] (per Kirby J) held that the correct approach to construction of a provision such as s 57(1)(e) of the Succession Act is that the court should be astute not to place a restricted construction upon the terms of such a law. The construction advanced by the respondents in the present case would be inconsistent with the ordinary natural meaning of the words in the section.

20. [72]

    Further, the text of the section and the context in which it was enacted does not provide support for any narrower reading. A finding of being “wholly or partly dependent” does not itself give rise to a statutory obligation to make provision from the deceased person’s estate for the proper maintenance, education or advancement in life of the dependent; it is merely the first step. The recommendation by the QLRC and the NSWLRC that as a criterion of eligibility claimants such as adult step-children be forced to demonstrate the deceased’s “special responsibility” to them was specifically rejected by the Parliament in the introduction of Chapter 3 of the Succession Act. The legislature provided that the dependence may arise “at any particular time” and what must be shown is that the applicant was “wholly or partly” dependent upon the testator. Both of these matters are an indication of an expansive, rather than a restrictive, scope of the statutory pre-condition of dependence. Construction of the term “wholly or partly dependent” in the way this Court has long construed that term does not lead to “absurd” results as contended for by the respondents. For the foregoing reasons, I reject the respondents suggested construction of “dependent”.

21. [73]

    The controversial question on this appeal was the primary judge’s analysis of “who provides the accommodation to whom”. His Honour cited two decisions of Young J which were important in determining the question of dependency.

22. [74]

    In Clinch v Swift, the deceased’s son and daughter-in-law lived with her. Young J found the daughter-in-law was not dependent on her mother-in-law for accommodation. His Honour said:

23. [75]

    In Shaw v Lambert, Young J concluded that where accommodation had not been provided “directly” to the claimant, mere residence in the deceased’s house may not amount to dependency on the deceased. Accordingly, the deceased’s granddaughter, who lived with her mother in the deceased’s house, was not, even partially, dependent on her grandfather (who owned the house she lived in) for accommodation:

24. [76]

    Whilst as the respondents submitted the outcome in each case may have been correct on the facts, the reasoning in the passages in each case cited above involves a gloss on the statutory language. This is seen most clearly in his Honour’s identification of a requirement in Shaw v Lambert for “direct” dependence. The fact that in that case the grandchild was dependent upon her mother does not, of itself, preclude a finding that the grandchild was also dependent upon her grandfather for accommodation.

25. [77]

    The question posed in Clinch v Swift also seems to me not to be correct. There is no requirement in the statute to determine whether or not free accommodation “flows” to a person because of her marriage to her husband rather than her relationship with her mother-in-law who owns the house where she lives. To ask that question seems to me impermissibly to import an additional causation requirement into the statutory question of dependency. It is also inconsistent with the statutory language of “wholly or partly dependent”.

26. [78]

    The reasoning identified above drawn from Clinch v Swift and Shaw v Lambert relied upon by the primary judge is also inconsistent with authorities in this Court. Dependence has long been understood as being determined on the basis of the actual fact of dependence. That is, has reliance on another to fulfil a need been shown?: Ball v Newey (1988) 13 NSWLR 489 at 492 per Samuels JA. In Ball v Newey, Samuels JA said (at 491):

27. [79]

    In Amaca Pty Ltd v Novek [2009] NSWCA 50 at [45], this Court endorsed the earlier statement about “dependency” in Middleton v Kiama District Hospital [1970] 3 NSWR 136 at 138:

28. [80]

    In Ball v Newey, the deceased and the claimant had been cohabiting when they decided to purchase a house in which to live together, and which neither of them separately would have been able to buy, so they pooled their incomes, bought the house, made mortgage repayments out of the joint fund and lived in it together. Samuels JA, with whom Hope JA agreed, said (at 492):

29. [81]

    The remarks of Gibbs J about dependence drawn from a workers compensation case, Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177; [1973] HCA 8 at 189, are also relevant. There his Honour said that “the standard of support is set by the parties themselves” (at 190).

30. [82]

    It was common ground on this appeal that reliance on the deceased for accommodation may amount to dependence, but the mere fact of lodging in another’s property without paying rent does not necessarily amount to dependence: Tobin v Ezekiel per Meagher JA at [109]-[111].

31. [83]

    The crux of the decision of the primary judge on dependency was that as John was the sole registered proprietor of 306 West Botany Street and 24 Platts Avenue, it could not be said that John was dependent upon Gina, as distinct from Ross, for accommodation. Rather, in truth, Gina and John were both dependent upon Ross for accommodation. That conclusion was apparently based on the requirement in Shaw v Lambert for “direct” dependence, concentrating on the immediate legal rights of the parties to the marriage rather than addressing the factual question of who, in a practical sense, determined who lived in the matrimonial home.

32. [84]

    I respectfully disagree with the primary judge’s conclusion about dependency. Legal title to property is a relevant factor to be considered when addressing the question of dependency upon another for accommodation but is not, of itself, determinative of the question. Dependency, in a case such as the present, requires an answer the factual question of who, in a practical sense, determined who lived in the matrimonial home. Even if House v The King is the relevant test to be applied to the question of dependency, the error of construction by the primary judge is sufficient to enliven this Court’s jurisdiction to intervene.

33. [85]

    It is thus necessary to consider whether the evidence entitles this Court to conclude that John was partly dependent upon Gina during either of the relevant periods. The only dependency relied upon by the appellant in this appeal was partial dependency for accommodation. In relation to the first period at 306 West Botany Street in 1980, the evidence does not permit a finding that John was partly dependent upon Gina.

34. [86]

    In relation to the second period, there was evidence that Gina invited John to stay at Platts Avenue following the breakdown of John’s marriage to Valerie. The primary judge accepted evidence given by the appellant’s brother Sam that it was Gina who said to John, in Ross’ presence the following:

35. [87]

    Following that initial invitation, however, there was no evidence of the role Gina played, if any, in the decision to allow John to reside at Platts Avenue for “a couple of years”. In the absence of any such evidence, I would not conclude that John was partially dependent upon Gina for accommodation.

36. [88]

    I agree with the reasons of Sackville AJA on this issue. It follows that I agree that the appeal from the decision of the primary judge should be dismissed.

37. [89]

    Although the appeal must be dismissed, it is desirable in this case also to address the cross-appeal briefly: Kuru v State of New South Wales ((2008) 236 CLR 1; [2008] HCA 26 at [12]; Australian Securities and Investments Commission v Lanepoint Enterprises Pty Ltd ((Receivers and Managers Appointed) ((2011) 244 CLR 1; [2011] HCA 18 at [56].

Grounds 1 and 2 of the cross-appeal - factors warranting the making of an application

1. [90]

   The respondents submitted that the primary judge erred in finding that there were factors which warranted the making of John’s application.

2. [91]

   The respondents submitted that John was not a natural object of testamentary recognition by Gina. First, John had already received substantial provision from Ross’ estate, namely $200,000. Secondly, John and Gina did not enjoy a relationship akin to parent and child. Thirdly, there was no provision in the Deed of Family Arrangement recognising any obligation to make provision. The Deed evinced an intention, the respondents submitted, to bring about a “clean break between them”. Finally, the representations made by Ross that the properties were for his sons were presumably known to the parties at the time the Deed was entered into. In those circumstances, it was submitted that the representations did not give rise to a continuing obligation upon Gina to leave an interest in her estate to John. If there had been any intention to make provision for John, one would have expected a term to that effect to be included in the Deed.

3. [92]

   The appellant submitted that the “factors warranting” findings made by the primary judge were correct. The appellant submitted that the respondents’ primary contention that the Deed evinced an intention on the part of the parties to it to bring about a clean break between them was considered and rejected by the primary judge.

4. [93]

   The appellant submitted that the lack of a release in respect of the deceased’s estate was relied upon by the primary judge to support an inference that the parties had not intended to sever the deceased’s moral obligation. Such an inference was open on the evidence.

Consideration of factors warranting the making of a claim

1. [94]

   The weight of authority in this Court is that a determination that there are factors warranting the making of a claim within the meaning of s 59(1)(b) of the Succession Act is the equivalent of a discretionary decision and review in this Court is subject to the restraints identified in House v The King and restated in Norbis v Norbis: Sassoon v Rose [2013] NSWCA 220 at [12] (per Meagher JA); Lodin at [130]-[132] (per Sackville AJA); Yee v Yee [2017] NSWCA 305 at [108]-[109] (per McColl JA). The parties on this appeal did not submit that any different approach should be adopted.

2. [95]

   In Lodin, Sackville AJA gave close consideration to the requirement to demonstrate factors warranting the making of a claim in s 59(1)(b) of the Act. His Honour said at [106]-[107];

3. [96]

   The breadth of the evaluative judgement required by s 59(1)(b) of the Succession Act and the statutory direction to take into account all the circumstances of the case creates the possibility that judicial minds might differ in a particular case as to whether a claimant has established that there are factors warranting the making of an application.

4. [97]

   Consistently with the decision in Re Fulop, the starting point for applying s 59(1)(b) of the Succession Act is that an eligible person such as an adult stepchild of the deceased is not normally regarded as a natural object of testamentary recognition by the deceased. In order to satisfy s 59(1)(b), John must therefore establish that there are circumstances that justify regarding him as a natural object of testamentary recognition by Gina. Those circumstances must go beyond the bare fact of the familial relationship. The factors relied on must be such as to demonstrate a social, domestic or moral obligation on the testator to make some provision for the claimant: Lodin at [114] (per Sackville AJA); Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [13]-[15] (per Basten JA).

5. [98]

   The primary judge rejected the submission made by the appellant that the relationship between Gina and John was analogous to one between parent and child. His Honour accepted, however, that the evidence disclosed an expectation created by Gina of an inheritance being granted to John. In particular, the primary judge accepted the evidence of Sam’s daughter Alyssa of two conversations in which Gina said that she wanted to “look after you boys… Just like Ross would have liked it” and again in 2014 a few weeks before her death that “I will look after you and the boys is that is what Ross would have wanted…”. The primary judge found that Alyssa accepted in cross examination that Gina mentioned her testamentary intentions only in the second conversation. That conversation occurred after the Deed of Family Arrangement was executed in March 2012. No challenge to the acceptance of this evidence by the primary judge was made by the respondents.

6. [99]

   The primary judge concluded that John and his brothers had strong legitimate claims on Ross’ testamentary bounty arising from their contributions to the acquisition, conservation and improvement of his estate. Those contributions were not quantified in the evidence, but the primary judge accepted that contributions were made by the sons to the acquisition, renovation and maintenance of the properties owned by Ross. His Honour also found that during his lifetime Ross on a number of occasions made statements in the presence of Gina to the effect that the properties he owned were for the boys and that Gina acknowledged and agreed with this. As already indicated, the primary judge found that Gina herself, subsequent to entry into the Deed of Family Arrangement, made representations to John and Sam to the effect that she would honour Ross’ wishes and make provision for them in her will.

7. [100]

   I accept, as the respondents submitted, that the representations made prior to Ross’ death were no doubt known to the parties at the time of making the Deed of Family Arrangement. It does not follow, however, that those representations can therefore be put to one side. This is because of the evidence of representations made by Gina subsequent to Ross’ death and the entry into the Deed of Family Arrangement. Those later representations, taken together with all that had passed before that time, provided ample support for the primary judge’s conclusion that there were factors warranting the making of an application.

8. [101]

   The relevance of the earlier proceedings and their settlement in the Deed of Family Arrangement was identified by the primary judge. His Honour quoted pertinent passages from the decision of Nettle J, when his Honour was a judge of the Supreme Court of Victoria, in McKenzie v Topp [2004] VSC 90 at [56] – [60]. The primary judge found that 24 Platts Avenue was undoubtedly one of Ross’ three properties the brothers had significantly contributed to the acquisition, conservation improvement thereof. Gina had received Platts Avenue in priority to John and his brothers pursuant to the orders of Hallen AsJ and, ultimately, the Deed of Family Arrangement. The primary judge found that the proceeds of sale of Platts Avenue were reflected in Gina’s estate.

9. [102]

   But for Gina’s representations, I would have concluded that the tenuous and distant (in time) nature of John’s dependency (assuming that it had been established) on Gina would have led to a conclusion that there were no circumstances warranting the making of John’s claim. I agree with the primary judge, however, that all of the relevant circumstances, including Gina’s representations, created a moral obligation on the part of Gina to make provision for John in her will. In the circumstances, the primary judge was correct to conclude that there were circumstances warranting the making of the claim on Gina’s estate by John.

10. [103]

    I do not accept the respondents’ submission that the Deed of Family Arrangement evinced an intention to effect a final severance between the parties. That conclusion is inconsistent with the representations made by Gina I have recorded above. I also agree with the primary judge that the absence of any release of rights in respect of Gina’s estate in the Deed of Family Arrangement tells against the respondents’ submission.

11. [104]

    Accordingly, I would dismiss the notice of cross-appeal so far as it asserts that the primary judge erred in concluding that there were circumstances warranting making the claim as required by s 59(1)(b) of the Succession Act.

Grounds 3 - 5 of the cross appeal – an order for provision should not have been made and, if made, should have been in a lesser amount

1. [105]

   The respondents submitted that further consideration should have been given by the primary judge to the competing claims of Franco and Enza who had a very close relationship with Gina and who were her closest blood relations. Gina had no children of her own and was unmarried for many years. The evidence demonstrated that the respondents were regarded by Gina as if they were her own children.

2. [106]

   The respondents contended that if the Court was of the view that an order for provision should be made in favour of John, the sum of $300,000, in the context of an estate of this size, is excessive and well beyond the range of a proper exercise of discretion. The respondents relied upon the decision of Aubrey v Kain [2014] NSWSC 15 at [190] as establishing “guidelines” about community expectations in relation to adult children. It was submitted that the amount of provision here ordered exceeded those “guidelines”.

3. [107]

   The appellant submitted that no complaint is made as to the findings of the Court below regarding the assets of the respondents. The appellant further submitted that no complaint is made with respect to the finding that Franco had “since 2013…received a benefaction of $300,000” from the deceased, which significantly exceeded the provision made for John.

4. [108]

   With respect to the moral claim owed by Gina to John, the appellant submitted that the primary judge carefully considered that claim and his reasoning was entirely orthodox.

5. [109]

   The claim arose from John’s legitimate expectation of inheritance from his father, which in turn arose from his contributions to the properties comprising his estate, and his father’s representations that John was to inherit, as acknowledged by Gina. Further, Gina made later representations that she would honour Ross’ wishes in this regard.

Consideration of grounds 3 - 5 of the cross-appeal

1. [110]

   There is no doubt that the question of whether “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” within the meaning of s 59(1)(c) of the Succession Act is the equivalent of a discretionary decision and review in this Court of the decision of the primary judge is subject to the restraints identified in House v The King as restated in Norbis v Norbis.

2. [111]

   Whether a two-stage analysis is applicable to claims for family provision orders under Ch 3 of the Succession Act has been the subject of significant debate in this Court, but was not addressed by the parties here. It is undesirable to address that question in the absence of any submission that the outcome of the debate could make a difference in this case.

3. [112]

   In Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [74] Gummow and Hayne JJ cited the plurality in Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40, for the proposition that:

4. [113]

   What is “proper” requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties’ financial circumstances. The Court’s assessment of what is proper maintenance, education and advancement in life must be made at the time when the Court is considering the application. This does not, however, mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate.

5. [114]

   In Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 at [12] Allsop P stated:

6. [115]

   Allsop P acknowledged that orders made by reference to "perceived prevailing community standards of what is right and appropriate" referred to an imprecise, variable and contestable standard. See also White J in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [125]-[127].

7. [116]

   This is a difficult question in this case for three reasons. Generally, in applying what I understand to be prevailing community standards of what is right and appropriate, interfering in a testamentary decision freely made by a competent testator on the application of an adult stepchild would be something I would be most reluctant to do. The following matters, however, lead me to conclude that this is a case where the primary judge was correct, on the contingent basis he was addressing the issue, to do so:

   1. (1)

      A significant part of Gina’s estate was represented by the proceeds of sale of Platts Avenue. John and his brothers had made substantial contributions towards the acquisition, renovation and maintenance of the property;

   2. (2)

      Representations made by Ross in Gina’s presence when he was alive and by Gina herself after Ross passed away expressly acknowledged the claims of John and his brothers to the proceeds of sale of the properties, including Platts Avenue, upon her death; and

   3. (3)

      Gina’s will was made before she became entitled to Platts Avenue following her successful Succession Act claim. Leaving her estate to Franco and Enza was entirely consistent with the representations she had earlier joined in that the properties owned by Ross would pass to his sons on his death. The circumstances confronting the primary judge were quite different to those existing at the time Gina’s will was made.

8. [117]

   I have set out the relevant facts at some length above in dealing with the “circumstances warranting” aspect of the claim. While the conclusion that there are circumstances warranting the claim raises a different issue to whether adequate provision has been made within the meaning of s 59(1)(c), I agree with the primary judge that Gina’s receipt of 24 Platts Avenue in priority to the claims of Ross’ sons, including John, was impressed with a moral obligation to make provision for the brothers from any residue that might ultimately not be required for her maintenance and advancement. Ross’ other sons, Sam and Robert, did not advance any claim and their interests may for present purposes be disregarded.

9. [118]

   I agree with the primary judge that Gina’s undoubted freedom of testamentary disposition was affected by the circumstance that she made her will many years before her death and, most relevantly, before Ross’ death and her receipt of provision out of Ross’ estate.

10. [119]

    When Gina’s will was made, the moral obligation which arose from receipt of provision out of Ross’ estate in priority to the claims of the sons did not exist. The provision Gina received from Ross’ estate in the form of Platts Avenue wrought a significant change in her circumstances which, as the primary judge found, Gina herself acknowledged in making the representations I have described above. No error has been shown in the primary judge’s conclusion that those proceeds of sale Gina received were impressed with the moral obligation to make adequate provision for John from any part of that amount left outstanding at her death. No error was shown in the primary judge’s conclusion that Gina failed to make adequate provision for John’s proper maintenance and advancement.

11. [120]

    The primary judge concluded that John’s circumstances are modest and that he and his wife’s net asset position is less than $100,000. No challenge was made by the respondents to this finding. The primary judge found that the estate left by Gina after providing for costs, but adding back $300,000 which Franco had already received, exceeded $800,000 of which well in excess of half represented the proceeds of sale of 24 Platts Avenue. While John received approximately $200,000 from Ross’ estate, he would have received substantially more were it not for the provision obtained by Gina.

12. [121]

    I was initially attracted to the submission that the primary judge had given inadequate consideration to the competing claims of Franco. The evidence was that Franco was unemployed at the time of the trial, suffered from heart problems and was in a degree of financial difficulty. The primary judge found, however, that Franco and his wife had net assets in excess of $800,000 and made a finding, which was not challenged on this appeal, that Franco has already received the benefit of $300,000 from Gina’s estate. Enza and her husband had net assets in excess of $2.8 million and no error has been shown in the primary judge’s conclusion that their competing claim should be put to one side.

13. [122]

    I have ultimately concluded that no error has been shown in the primary judge’s conclusion that the competing claims of Enza and Franco were not such as to require John’s claim to be disregarded or discounted.

14. [123]

    As to the amount of provision identified by the primary judge, $300,000, the submission by the respondents that it was excessive was principally based on an assertion that the size of Gina’s estate was $515,000, rather than over $800,000 as the primary judge found. The provision identified by the primary judge was approximately 37 per cent of Gina’s estate not 58 per cent as the respondents submitted.

15. [124]

    There is nothing contained in the general statement of principles relied upon by the respondents drawn from Aubrey v Kain which assists in the determination of this question. There Hallen J was at pains to point out that he was not seeking to identify rules of law or otherwise to confine the jurisdiction granted by the Succession Act. His Honour’s observations concerning community expectations about the provision of housing to adult children, relied upon by the respondents here, were expressly prefaced by a qualification with which I agree (at [190]):

16. [125]

    Whilst it is no doubt possible to arrive at a different figure as representing adequate provision than that identified by the primary judge, I see no error of the kind described in House v The King in his Honour’s broad evaluative judgment. His Honour found that John’s net asset position is less than $100,000. At current rates of repayment John will be 90 years old before the mortgage loan on the family home is repaid. The combined after tax earnings of John and his wife are barely adequate to cover their expenses:

17. [126]

    The primary judge found that Gina’s estate exceeded $800,000 and that well over half of that amount represented the proceeds of sale of 24 Platts Avenue. Contrary to the respondents’ submission, the primary judge did not conclude that Gina’s estate should be responsible for providing an unencumbered home for John and his family. The amount of $300,000 was found by the primary judge to be sufficient to discharge a mortgage over the family home to the ANZ bank, but not to repay funds advanced by John’s wife’s family to acquire the home.

18. [127]

    In the circumstances of this case, while reasonable minds may differ about the amount of the provision identified by the primary judge’s broad evaluative decision, no error has been shown in the amount of provision identified by his Honour which should be made in favour of John from Gina’s estate of $300,000.

19. [128]

    Accordingly, I reject grounds 3 - 5 of the cross-appeal.

Conclusion and orders

1. [129]

   For the foregoing reasons I would dismiss the appeal and the cross-appeal. Whilst the cross-appeal was essentially defensive, considerable time was taken in addressing the issues raised in the written and oral submissions of the parties. That should be reflected in an adjustment in the award of costs. I propose the following orders:

   1. (1)

      appeal dismissed;

   2. (2)

      cross-appeal dismissed;

   3. (3)

      order that the appellant pay 70% of the costs of the respondents of the appeal and the cross-appeal.

2. [130]

   SACKVILLE AJA: I have had the advantage of reading Payne JA’s judgment in draft. I am grateful for his Honour’s account of the facts and of the issues arising on the appeal and cross-appeal.

3. [131]

   As Payne JA explains, the critical issue on the appeal is whether the primary Judge erred in finding that the appellant (John [1] ) had not established that he was a person:

4. [132]

   I agree with Payne JA’s reasoning on this issue. In particular, I agree that what his Honour describes as the “traditional test” for determining whether a claimant was “wholly or partly dependent on the deceased person” should be applied in preference to the more limited construction supported by the respondents. [2]

5. [133]

   I also agree with Payne JA that the primary Judge’s finding that John was not wholly or partly dependent on Gina for accommodation was affected by an error. The primary Judge found that John had lived in the same house as his father (Ross) and his stepmother (Gina) “for a period of at least a couple of years following his [John’s] separation from Valerie [John’s wife] in 1995”. [3] His Honour considered that although John was living in the same household as Ross and Gina, he could not be said to be wholly or partly dependent on Gina for his accommodation since Ross was the sole registered proprietor of the house. [4] The error in this approach is that the primary Judge did not take into account all of the relevant circumstances to determine whether, as a matter of fact, John was dependent upon Gina for the provision of accommodation during the whole or at least a substantial part of the period during which he lived at the house. [5]

6. [134]

   Notwithstanding this error, in my respectful opinion this Court should not interfere with the primary Judge’s ultimate finding on the question of dependency. The facts found by his Honour and the evidence as a whole do not in my view justify a finding that John was wholly or partly dependent on Gina for the provision of accommodation.

The issue of construction

1. [135]

   Payne JA has referred to the authorities which have consistently applied the “traditional” test for determining whether a claimant was wholly or partly dependent on the deceased person. I do not repeat his Honour’s analysis.

2. [136]

   The respondents relied on observations of Basten JA in Page v Page [6] for the proposition that s 57(1)(e)(i) of the Succession Act, when read in context, posits a more limited test of dependency than the traditional test. Basten JA said that the form of dependency contemplated by s 57(1)(e)(i) is that: [7]

3. [137]

   Apart from the matters identified by Payne JA, there is a textual difficulty with the more limited construction of s 57(1)(e)(i) of the Succession Act advanced on behalf of the respondents. Section 57(1) specifies six categories of “eligible persons” who may apply to the Court for a family provision order. A claimant who relies on s 57(1)(e) to be an eligible person must satisfy two criteria. He or she must be a person:

4. [138]

   A finding that a claimant was wholly or partly dependent on the deceased person does not establish that the claimant is entitled to a family provision order. Even if the claimant satisfies both requirements in s 57(1)(e) of the Succession Act, he or she must also establish that:

5. [139]

   In short, as Payne JA points out, a finding of dependency is merely the first step in determining whether the circumstances give rise to a statutory obligation in the deceased person to make provisions out of his or her estate for the proper maintenance, education or advancement in life of the claimant. To construe s 57(1)(e)(i) as limited only to dependency of a kind that gives rise to a statutory obligation to make provision for the claimant tends to conflate the two quite distinct preconditions for the making of a family provision order. A claimant who establishes that he or she is an eligible person by reason of dependency on the deceased (and membership of the same household) may or may not be a person to whom the deceased owed an obligation to make provision by way of testamentary disposition. The concept of dependency in s 57(1)(e)(i) of the Succession Act is not to be limited by incorporating criteria that are only to be considered once the claimant establishes that he or she is entitled to apply for a family provision order.

Appellate review

1. [140]

   In Page v Page [8] two members of this Court (Leeming JA, with whom Basten JA agreed) expressed the view that review by this Court of a finding of dependency or non-dependency is not confined by the principles governing discretionary decisions stated in House v The King. [9] As the third member of the Court, I did not find it necessary to express an opinion on the question. [10] However, I agree with Payne JA that the reasoning of Leeming JA is persuasive and that appellate review of a finding of dependency is not confined by the principles stated in House v King.

2. [141]

   But the fact that appellate review is to be conducted in accordance with the principles stated in Warren v Coombes [11] does not obviate the need for an appellant to demonstrate error in the finding made by the primary Judge. [12] What is necessary to establish error depends on the nature of the findings or conclusions reached by the primary Judge. [13] As Allsop P observed in DAO v The Queen: [14]

3. [142]

   Where a finding depends on weighing a range of factors on which reasonable minds might differ, it is not necessarily enough to demonstrate error on the part of the trier of fact for the appellate court to prefer a different outcome. [15] While a finding of dependency perhaps does not involve a range of legitimate choices as wide as some other evaluative factual issues, it does require a number of considerations to be taken into account and, to this extent, involves a value judgment. Depending on the circumstances, a finding of dependency (or non-dependency) may be finely balanced and may not admit of a single correct answer.

Error has been shown

1. [143]

   There is no occasion in this case to consider further the precise scope of appellate review since, as I have noted, the primary Judge’s finding was affected by an error of principle. His Honour regarded the issue of John’s dependency on Gina for accommodation as foreclosed by the fact that Ross was the sole registered proprietor of the property at Platts Avenue, Belmore (Belmore Property) in which John lived for at least two years after his separation from Valerie. The established principles explained by Payne JA require the question of dependency to be determined as a matter of fact by reference to the whole of the relationship between the claimant and the deceased person. [16] Thus it is necessary to consider whether John relied on Gina for the total or partial satisfaction of his need for accommodation. [17] The fact that Gina was not a co-owner of the house is only one factor to be considered in determining whether John has established that he was wholly or partly dependent on Gina for accommodation. It is not decisive.

The evidence

1. [144]

   Mr Loofs SC, who appeared with Mr Brown for John, submitted that John’s dependency on Gina was established by the finding that Ross and Gina extended a joint invitation to John to live with them following his separation from Valerie. That finding rested on the primary Judge’s acceptance of evidence given by Sam (John’s older brother) of a conversation that occurred in 1996. [18] Sam’s evidence was as follows:

2. [145]

   Mr Loofs did not identify any other evidence which supported John’s case on dependency, other than Gina’s affidavit evidence in earlier proceedings that she and Ross generally had a happy marriage until Ross’ death in 2010. Mr Loofs submitted that the subsistence of a generally happy marriage between Gina and John during that relevant period supported the inference that Gina was instrumental in permitting John to live at the Belmore Property and that John was therefore partly dependent on Gina for the provision of accommodation.

3. [146]

   The Court’s attention was not drawn to any evidence that explained the circumstances in which John was permitted to live in the Belmore Property, not merely for a short period following the breakdown of his marriage but for a period of at least two years. While the evidence shows that Gina participated in the decision to permit John to stay at the Belmore Property in the immediate aftermath of his separation from Valerie, the evidence does not address who made the decision to allow John to remain in occupation for a prolonged period. It is not clear, for example, whether Gina encouraged John to remain in the Belmore Property or whether she merely acquiesced in a decision made by Ross. It is also not clear whether Ross’ ownership of the Belmore Property was or was not a significant factor in the decision (if there was one) to allow John to continue in occupation of the Belmore Property. There are a number of possibilities that seem not to have been explored in the evidence.

4. [147]

   The paucity of evidence addressing Gina’s role in the provision of accommodation to John after his separation from Valerie perhaps reflects the way in which John’s case on dependency was presented at trial. John’s principal contention appears to have been that dependency was established by reason of domestic services provided by Gina during the period he lived at the Belmore Property. The primary Judge rejected this contention on the ground that, although Gina prepared food for John, there was no evidence that Gina provided food or household supplies for John out of her own resources. [19] His Honour also found that while Gina may have provided comfort and solace to John when he was distressed following the breakdown of his marriage, her compassion did not create a dependency. [20] These findings are not challenged on the appeal.

5. [148]

   It was part of John’s case at trial that he treated Gina as his mother and she treated him as her son. The primary Judge rejected John’s evidence to this effect, which his Honour described as “radically different from what emerges from his affidavit in the earlier proceedings”. [21] Accordingly, his Honour did “not accept that the relationship between Gina and John was analogous to a parent-child relationship”. [22]

6. [149]

   In determining whether the evidence is sufficient to establish dependency in the relevant sense, it is necessary to bear in mind that John need only show that he was “partly dependent” on Gina for the provision of accommodation during the period of at least two years that he lived at the Belmore Property. The word “partly” does not necessarily mean “substantially”, but conveys a sense of “more than minimally” or perhaps “significantly”. [23]

7. [150]

   The primary Judge found that Gina and Ross jointly invited John to stay with them following his separation. In view of this finding I accept that it would not take a great deal of additional evidence to establish that Gina actively encouraged John to continue living at the Belmore Property beyond the period immediately following the separation. I would also accept that if the evidence showed that John and Gina had a close and loving relationship, an inference could be drawn that, irrespective of the state of title to the Belmore Property, Gina played a significant part in the decision to encourage or at least to permit John to live at the Belmore Property well beyond the period immediately following the breakdown of his marriage. This would be sufficient to establish that John was partly dependent upon Gina for the provision of accommodation during this period.

8. [151]

   The difficulty confronting John is that the primary Judge did not accept John’s evidence as to the nature of his relationship with Gina. It is one thing for Gina to have encouraged John to “stay” temporarily at the Belmore Property while John was in an understandable state of distress by reason of the breakdown of his marriage. It is quite another for Gina to have encouraged or even willingly accepted that John should remain in the Belmore Property for a period of at least two years. Sam’s evidence addresses the first situation, but not the second.

9. [152]

   As I have explained, the evidence is silent as to the circumstances in which John continued to live at the Belmore Property. If anything, the primary Judge’s rejection of John’s claim that he had a close and loving relationship with Gina suggests that the decision may have been made by Ross and that Gina merely acquiesced in the situation. In my view, it was necessary for John to adduce at least some credible evidence demonstrating that Gina encouraged John to remain at the Belmore Property or at least actively supported or participated in a decision to enable him to stay for a prolonged period. In the absence of any such evidence, I do not consider that he discharged the burden of establishing that he was wholly or partly dependent on Gina for the provision of accommodation. Thus I would uphold the primary Judge’s finding, albeit for different reasons.

Other issues

1. [153]

   If I had reached a different conclusion on the question of dependency, I would have agreed with Payne JA that the primary Judge was justified in finding that there were factors warranting the making of John’s application. With some hesitation I would also have agreed that no error was shown in the primary Judge’s contingent assessment that provision should be made from Gina’s estate in favour of John in the sum of $300,000.

Orders

1. [154]

   I agree with the orders proposed by Payne JA.