Ciric v Ciric

1. [1]

   HIS HONOUR: Ilija Ciric (“the deceased”) who was born in May 1930, died on 15 October 2013, aged 83 years. He was survived by a number of former spouses (to whom I shall later refer) and a number of children, two of whom are Neville Ciric (“the Plaintiff”) and John Ciric (“the Defendant”), the parties in these proceedings.

2. [2]

   The Plaintiff, by Summons filed on 25 September 2014, seeks a family provision order, pursuant to the Succession Act 2006 (NSW) (“the Act”) and costs. A family provision order is an order made by the court in relation to the estate, or notional estate, of a deceased person, to provide from that estate, or notional estate, for the maintenance, education, or advancement in life of an eligible person.

3. [3]

   There is no dispute that the Plaintiff’s application was filed within the time prescribed by the Act (within 12 months of the date of the death of the deceased).

4. [4]

   The deceased left a duly executed Will that he made on 6 August 2012. On 4 February 2014, this court granted Probate in common form of that Will to the Defendant, the sole executor and beneficiary named in that Will.

5. [5]

   According to the Inventory of Property, a copy of which was attached to the Probate document, the property owned solely by the deceased at the date of his death was disclosed as having an estimated, or known, gross value of $401,750. The estate was said to consist of real estate at Mt Pritchard, Sydney ($400,000), and cash in bank ($1,750). The Defendant disclosed no liabilities in the Inventory of Property. (I have omitted, and shall continue to omit, any reference to cents in the amounts to which I shall refer, which will explain any minor mathematical errors.)

6. [6]

   The Mt Pritchard property had been purchased by the deceased in about May 2013 for $365,000.

7. [7]

   In an affidavit sworn on 29 October 2014, which was read in the proceedings, the Defendant disclosed an additional asset (a car ($1,500)) and some more cash in bank, and he estimated the gross value of the deceased’s estate, at the date of death, to be $402,815. He also stated that the car owned by the deceased “was given to a close friend of the deceased” (named Milenko Miljojevic), who had lived with the deceased and who had helped care for him for about 18 months prior to the deceased’s death.

8. [8]

   The Defendant, in the affidavit, also disclosed a liability of the deceased of $60,850 (described as “CBA Equity Unlock Loan”) and stated that the legal costs and disbursements of obtaining Probate were $4,029.

9. [9]

   The Defendant also disclosed that the Mt Pritchard property had been transmitted into his name, as executor of the Will of the deceased, by Transmission Application dated 4 February 2014 (a copy of which formed part of the evidence). The copy Transmission Application identifies the Defendant as the sole executor of the deceased’s estate rather than as the devisee of that real estate. It was accepted by the Defendant that, at the date of hearing, the real property still forms part of the actual estate of the deceased: T3.16–T3.22. No issue has been raised about the car that has been distributed. Accordingly, the notional estate provisions of the Act are not relevant. Each party’s legal representative accepted that this was so: T3.24-T3.30.

10. [10]

    (There was the suggestion that the Plaintiff may seek to amend the Summons to seek an order that any amount distributed to the Defendant, as beneficiary, should be designated as notional estate of the deceased. This became unnecessary and no such application to amend was made.)

11. [11]

    At the commencement of the hearing, the parties agreed that the current value of the Mt Prichard property should be taken to be $472,500. Whilst the Defendant, as the sole beneficiary, wishes to retain that property, the parties agreed that he would not be able to do so bearing in mind the amounts that are, or will be, payable out of the estate: T46.14–T46.22. In the event of its sale, the parties agreed that the costs and expenses of sale of the Mt Pritchard property should be estimated at $10,750.

12. [12]

    The Defendant says that he has borrowed a sum of $200,209 from AFSH Nominees Pty Ltd, of which $106,252 was drawn down on 2 April 2014 and $1,800 was drawn down on 28 April 2014. As at 28 February 2015, the amount owing on that loan is said to be $112,183. He used part of this amount ($60,850) to repay the debt secured on the Mt Pritchard property at the date of death.

13. [13]

    In that affidavit, the Defendant also stated that the funeral expenses paid by the estate were $18,484. He repeated that the cost of the tombstone was about $10,000. He also gave evidence that he had used part of the funds borrowed to pay both these funeral expenses ($28,484). In his affidavit dated 29 October 2014, he again stated that the costs associated with obtaining Probate, referred to earlier, were $4,029, but clarified that of that amount, $1,315 had been paid from the estate and the balance ($2,714) “was paid personally by me”. In his oral evidence, however, he accepted that the amount of $4,029 had been paid out of the funds borrowed.

14. [14]

    Not all of the balance of the funds borrowed ($18,820) has been used by the Defendant for his own purposes. What was used by him is not fully disclosed. The parties seemed to accept that only the amounts to which I have referred should be regarded as debts repayable out of the estate. The result is that $93,363 of the amount borrowed, should be treated as an amount to be repaid, out of the estate of the deceased. Presumably, the balance will be repaid by the Defendant.

15. [15]

    There were associated proceedings (numbered 2014/301678) in this court, involving the deceased’s estate, brought by Suzana Snezana Ciric Rouge, a daughter of the deceased, in which she, too, sought a family provision order. Those proceedings were settled, on 9 December 2014, and the following orders were entered in the court’s computerised record system:

16. [16]

    The amount payable to Ms Ciric Rouge, pursuant to those orders, has not yet been paid. However, it is accepted that it will need to be paid out of the deceased’s estate. The Defendant stated that his costs and disbursements, calculated on the indemnity basis, of those proceedings, were $33,000. It follows, that there must be deducted, from the gross value of the deceased’s estate, in respect of the associated proceedings, the amount of $97,000.

17. [17]

    Bearing in mind that the current gross value of the deceased’s estate is said to be $472,500, to calculate the amount likely to be available for distribution (leaving aside the costs of these proceedings), there should be deducted the costs and expenses of sale of the Mt Pritchard property ($10,750), the amount referred to in the orders made in the associated proceedings and the Defendant’s costs of those proceedings (in total, $97,000), and the amount that has been borrowed and used to repay the debts, funeral and testamentary expenses and administration costs ($93,363). It follows, subject to one matter to which I shall return, that the current evidence is that the current gross value of the estate that is available for distribution, excluding the costs of these proceedings, is $271,387.

18. [18]

    In his most recent affidavit, which was served about one week prior to the hearing, the Defendant disclosed that the Mt Pritchard property had been leased to a third party at a weekly rental of $410. It appears that an amount of about $1,565 per month is paid by the managing agent to the Defendant.

19. [19]

    The Defendant did not disclose, in any affidavit, the period during which the Mt Pritchard property had been rented, or how much rent he has received from the Mt Pritchard property. When this was raised with him by the court following his cross-examination (T56.35–T57.29), he stated that the Mt Pritchard property had been rented from about February, or March, 2014, and that he had deposited the rent, as received from the managing agent, into an estate account. He also said that he had used the monies in that account to pay outgoings and other expenses, none of which were precisely disclosed, on the Mt Pritchard property. (He mentioned “tree stumping, plumbing, electrical things that have sort of gone on over time”.) Finally, he stated that there was currently “about $4,000 or $5,000” in that account.

20. [20]

    In Fiorentini v O'Neill [1998] NSWCA 79, the Court of Appeal (Mason P, Handley JA and Fitzgerald AJA) repeated that an executor Defendant “should have given the Court more assistance than she did in identifying as fully and early as possible the actual and notional estate, its condition and value at date of trial, and the exact burden of the costs order likely to fall on the estate. See Supreme Court Rules 1970 (NSW), Pt77 r59, Vasiljev v Public Trustee [1974] 2 NSWLR 497, at 503 and Dijkhuijs (formerly Coney) v Barclay (1988) 13 NSWLR 639, at 654”. Also see Blore v Lang [1960] HCA 73; (1960) 104 CLR 124, per Dixon CJ, at 130–131 and, per Kitto J, at 136–137; and currently, Practice Note SC Eq 7, Paragraph 9.1.)

21. [21]

    I shall return to the effect of the Defendant’s failure to disclose the relevant information about the value of the estate later in these reasons. However, for the purposes of the hearing, I conclude that the value of the gross estate available for distribution (omitting the costs of the proceedings) is about $276,000.

22. [22]

    In calculating the estimated value of the deceased’s estate finally available for distribution, the costs of the present proceedings should also be considered, since the Plaintiff, if successful, normally, will be entitled to an order that his costs and disbursements, calculated on the ordinary basis, be paid, whilst the Defendant, as the person representing the estate in the proceedings, irrespective of the outcome of the proceedings, normally, will be entitled to an order that his costs, calculated on the indemnity basis, be paid out of the estate of the deceased. However, the size of the estate and the conduct of a party may justify a departure, especially where the Court is of the view that the litigation has been prolonged unnecessarily: Fiorentini v O’Neill. (Of course, if the Plaintiff is unsuccessful, there is likely to be an argument about costs.)

23. [23]

    The Plaintiff’s solicitor, Ms J M Sharah, in an affidavit sworn on 5 March 2015, estimated the Plaintiff’s costs and disbursements of the proceedings, including counsel’s fees, calculated on the indemnity basis, to be $45,108 (inclusive of GST and upon the basis of a one day hearing). Calculated on the ordinary basis, she estimated that the costs and disbursements would be “less about 15% on solicitor’s costs and barrister’s fees … [but] the disbursements would remain the same”. On my calculations, and as accepted by the parties for the purposes of the hearing, the Plaintiff’s estimated costs and disbursements, calculated on the ordinary basis, are estimated to be $38,838. (The Plaintiff’s solicitor states that no uplift factor is included in the estimate.) There was no evidence that the Plaintiff had paid anything towards these estimated costs and disbursements.

24. [24]

    The Defendant, in his affidavit sworn 9 March 2015, presumably on the basis of what he has been told by his solicitor, estimated the costs and disbursements, including counsel’s fees, calculated on the indemnity basis, of the Defendant, for these proceedings to be $38,225 (inclusive of GST and upon the basis of a one day hearing). There was no evidence that he had paid anything towards these estimated costs and disbursements.

25. [25]

    I was requested not to deal with the question of costs as there might need to be submissions on costs: T6.11–T6.16. I shall allow the parties an opportunity to consider these reasons and adjourn the matter to enable the question of costs to be argued.

26. [26]

    If the usual costs orders are made, and if the parties are unable to reach agreement on the quantum of costs to be paid, it will be for an assessor to determine the appropriate quantum of costs for both parties. Hopefully, in view of the size of this estate, this will not be necessary and the parties will be able to reach agreement, if necessary, without the need for additional costs to be incurred.

27. [27]

    (It is most unfortunate that over $100,000 has been incurred in this very small estate in the costs of these, and the associated, proceedings. As has been said, “the court should set its face against litigation in which an estate is unnecessarily consumed in costs”: Fiorentini v O’Neill.)

28. [28]

    At the commencement of the hearing, the parties agreed that the estimated value of the net distributable estate, if the usual costs orders are made and costs are deducted, if the estimates prove accurate, and if the other expenses are paid, will be $194,324. However, that amount did not include the amount of between $4,000 and $5,000, held in the bank account to which the Defendant referred.) I shall, for the purpose of my considerations, estimate the value of the net distributable estate to be in the order of $200,000 (since additional rent may have been received).

29. [29]

    I raised with the parties the possibility that the Mt Pritchard property could sell for more, or for less, than the agreed estimated gross value, with the result that the Plaintiff, or the Defendant, might be detrimentally affected by its actual sale price if a lump sum order were made. I contemplated that it might be prudent, in the event that the Plaintiff were successful, to provide him, absolutely, with an amount calculated as a percentage of the net proceeds of sale of that property. In this way, both of the parties would benefit if that property were sold for a price greater than had been estimated, and each would be detrimentally affected if it sold for less than the estimate. There would also be certainty of price, costs and expenses, upon which calculations could be made.

30. [30]

    After obtaining instructions, the Plaintiff, through his counsel, stated that any lump sum to be paid to the Plaintiff as a family provision order should be calculated by reference to a percentage of the actual net proceeds of sale of the Mt Pritchard property and the cash in bank. The net proceeds of sale may be calculated by reference to the gross sale price, less the expenses identified above (although the precise amount of the expenses will have to be established).

31. [31]

    After obtaining initial instructions, counsel for the Defendant stated that the Defendant, in the event that a family provision order were made for the Plaintiff, would prefer the court to simply make a lump sum order, because the Defendant hoped to retain the Mt Pritchard property. However, after the calculations set out above were made in discussion between Bench and bar, the Defendant, by his counsel, seemed to acknowledge that it will not be financially possible to retain the Mt Pritchard property, and, in those circumstances, a lump sum, calculated by reference to a percentage of the net proceeds of sale and the moneys in bank, may be appropriate.

32. [32]

    I propose to follow this course, as I have done in other cases (to which I shall refer later). However, I shall use the estimates set out above to provide a guide to whether an order should be made and the nature and quantum of the family provision order.

33. [33]

    The Plaintiff gave evidence that the deceased had been married three times. He was married twice in Serbia. The Plaintiff believes that there was one child of the deceased’s first marriage, Dubrovska, who is aged 67 years. He says that there were two children of the deceased’s second marriage, namely Vlado, a son, who is aged 58 years and Menka, a daughter, who is aged 57 years. These three children reside in Serbia.

34. [34]

    The Plaintiff says nothing about either of the former spouses of the deceased in Serbia. I gather it is not known whether they are still alive or, if they are, where they live.

35. [35]

    In the Defendant’s affidavit sworn on 4 December 2014, he states that he is aware that the deceased was previously married twice, in Serbia, but that he has no knowledge of Dubrovska and no contact details for her. He also states that he is not aware whether she is married, and if so, her current surname. He says he does not even know if she is still alive.

36. [36]

    The Defendant also states that he has no contact details for Vlado and Menka, although, at one time he did have Vlado’s telephone number. He says that he notified Vlado of the deceased’s death. He does not suggest that there has been any subsequent contact.

37. [37]

    It is clear that each of the persons in Serbia, if alive, is an eligible person upon whom notice of the Plaintiff’s application, and of the Court’s power to disregard her, or his, interests, should be served, in the manner and form prescribed by the regulations or rules of court: s 61(2)(a) of the Act.

38. [38]

    The Court is asked to proceed without regard to the interests of any surviving former spouses, or children, of the deceased, who live in Serbia, as persons by, or in respect of whom, an application for a family provision order may be made.

39. [39]

    Although service of the prescribed form of notice on each of the former spouses in Serbia, or on the deceased’s children who live there, has not occurred, in view of the size of the deceased’s estate, the competing claims of the parties in these, and the associated, proceedings, that there is no evidence of any contact between any of those persons and the deceased over many years, that there is no evidence that each is alive, and, if so, where she, or he, lives, I am satisfied that service of such notice is impracticable and unnecessary.

40. [40]

    (“Impracticable” is not defined in the Act. Something is said to be “impracticable” when it is incapable, as a practical matter, to do it, or when it is extremely inconvenient, or difficult, to do it, because, for example, of the associated costs. The word is not synonymous with the word “impossible”. It directs attention to considerations of a practical, rather than a theoretical, nature arising out of the particular circumstances: Thornley v Heffernan (Supreme Court (NSW), McClelland J, 12 September 1995, unrep); Hamilton v Moir [2013] NSWSC 1200, at [35].)

41. [41]

    The Plaintiff’s mother is Milica Ciric. Her marriage to the deceased was dissolved in 1996. There was a property settlement. Although she is an eligible person, she has not commenced proceedings. The Plaintiff asserts that she now suffers from dementia. Her role in the proceedings is indirect for reasons to which I shall come.

42. [42]

    There were six children of the deceased’s marriage to Milica. One daughter (Dragica) died in 2008. There is some evidence that the Defendant’s solicitor sent, by ordinary post, a Notice of Claim to each of the three other children of the deceased, namely, Suzana, Dragan (also known as Douglas Ally) and Svetlana (also known as Anna and Lana).

43. [43]

    Only the Plaintiff, and Suzana, commenced proceedings under the Act, and, as stated, Suzana’s proceedings have been resolved with orders having been made and entered. Although there is no evidence of service of the prescribed form of notice on Milica, I am satisfied, in view of the fact that there was a property settlement between her and the deceased, and in view of the size of the deceased’s estate, that service on her of such a notice is unnecessary in the circumstances of the case.

44. [44]

    In the circumstances, I propose to disregard the interests of each of the eligible persons, other than the Defendant, who has not commenced proceedings. He is the sole beneficiary named in the Will of the deceased and even though he has not commenced proceedings for a family provision order, I shall not disregard his interest.

The Statutory Scheme – The Act

1. [45]

   Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. Although on many occasions, I have collected the principles generally applicable, in view of the importance of this case to the parties, I shall repeat the principles. It is equally important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions in the application.

2. [46]

   The wording of the Act is similar to the wording of the Family Provision Act 1982 (NSW) (“the former Act”). However, it is necessary to remember the warning of Kirby P in Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95–100, at 76,304:

3. [47]

   The former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008 (NSW). A new Chapter 3 was added to the Act, which dealt with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. Importantly, this should not be taken to mean that the Act confers, upon those persons, a statutory entitlement to receive a certain portion of a deceased person’s estate. Nor does it impose any limitation on the deceased’s power of disposition by his, or her, Will. It is only if the statutory conditions are satisfied that the court is empowered, under the Act, to alter the deceased’s disposition of his, or her, estate (or the disposition on intestacy), to produce a result that is consistent with the purpose of the Act. Even then, the court’s power to do so is discretionary. Thus, the Act subjects freedom of testamentary disposition to discretionary curial intervention in certain classes of case.

4. [48]

   The key provision is s 59 of the Act. The court must be satisfied, first, that the applicant is an eligible person within the meaning of s 57(1) (s 59(1)(a)). In New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made.

5. [49]

   Relevantly, in this case, the Plaintiff relies upon the category of eligibility referred to in s 57(1)(c) of the Act. There is no dispute that he is a child of the deceased.

6. [50]

   The language of the relevant sub-section is expressive of the person’s status, as well as his, or her, relationship to the deceased. There is no age limit placed on an eligible person making an application.

7. [51]

   It is only if eligibility is found, that the court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made, relevantly, by the Will of the deceased (the operation of the intestacy rules being irrelevant in this case in relation to the deceased’s estate) (s 59(1)(c)). It is this mandatory legislative imperative that drives the ultimate result and, it is only if the court is satisfied of the inadequacy of provision that consideration is given to whether to make a family provision order (s 59(2)). Only then may “the Court … make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made”.

8. [52]

   Other than by reference to the provision made by the Will in relation to the estate of the deceased, s 59(1)(c) of the Act leaves undefined the norm by which the court must determine whether the provision, if any, is inadequate for an applicant’s proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the court to the provision actually made by the Will, on the one hand, and to the requirement for maintenance, education or advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education and advancement in life of the applicant.

9. [53]

   Importantly, in s 59(1)(c) of the Act, there no longer appears to be any sanction to consider the provision made by the deceased during his, or her, lifetime for the applicant (see s 9(2) of the former Act).

10. [54]

    In Grey v Harrison [1997] 2 VR 359, at 366–367, Callaway JA observed:

11. [55]

    Basten JA, in Foley v Ellis [2008] NSWCA 288, at [3], commented that the state of satisfaction “depends upon a multi-faceted evaluative judgment”. In Kay v Archbold [2008] NSWSC 254, at [126], White J said that the assessment of what provision is proper involved “an intuitive assessment”. Stevenson J has described it as “an evaluative determination of a discretionary nature, not susceptible of complete exposition” and one which is “inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific”: Szypica v O'Beirne [2013] NSWSC 297, at [40].

12. [56]

    Under s 59(1)(c) of the Act, the time at which the court gives its consideration to the question of inadequacy of provision is the time when the court is considering the application.

13. [57]

    “Provision” is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89, at [34], that the term “covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person’s lifetime”.

14. [58]

    Neither is the word “maintenance”, nor the phrase “advancement in life”, defined in the Act.

15. [59]

    In J D Heydon and M J Leeming, Jacobs’ Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths), at 542, the learned authors comment upon the difference between the concepts of maintenance and advancement:

16. [60]

    In Re Dennis (Deceased) [1981] 2 All ER 140, Browne-Wilkinson J, at 145–146, wrote:

17. [61]

    In In the Estate of Puckridge, Deceased (1978) 20 SASR 72, at 77, King CJ said:

18. [62]

    In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, Murphy J wrote, at 505:

19. [63]

    In Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, at 541, discussed the financial assistance which an applicant may need for his, or her, maintenance and advancement in life, in the following terms:

20. [64]

    In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J, at [114], noted:

21. [65]

    In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said:

22. [66]

    In McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566, Dixon CJ and Williams J stated, at 575:

23. [67]

    The word “adequate” connotes something different from the word “proper”. “Adequate” is concerned with the quantum, described by Rosalind Atherton in “The Concept of Moral Duty in the Law of Family Provision – a Gloss or Critical Understanding?” (1999) 5 Australian Journal of Legal History 5, at 10, as reached upon “a purely economic and objective basis”, whereas “proper” prescribes the standard, of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127, per Buss JA, at [72] and [77], which seems to invite more subjective criteria.

24. [68]

    These words were considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463, at 476:

25. [69]

    Their Lordships went on to state (at 478):

26. [70]

    Dixon CJ and Williams J, in McCosker v McCosker, at 571–572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word “proper”, that:

27. [71]

    In Goodman v Windeyer, Gibbs J wrote, at 502:

28. [72]

    In Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, at [114], Callinan and Heydon JJ said:

29. [73]

    Santow J pointed out in Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep), that “adequate” and “proper” are independent concepts. He wrote, at 12:

30. [74]

    In Palagiano v Mankarios [2011] NSWSC 61, at [72], White J observed that the question of what provision for a person’s maintenance, education or advancement in life is “proper” and the question of whether the provision made by the deceased was “adequate” for that person’s maintenance, education or advancement in life involve value judgments on which minds can legitimately differ, and there are no definite criteria by which the question can be answered.

31. [75]

    His Honour added, in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253, at [123]:

32. [76]

    Until recently, it was unanimously thought that there are two stages of the determination. The first stage, provided for by s 59(1)(c), has been described as “the jurisdictional question”: Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201, at 208–209. At this stage, the court will consider whether it can make an order for provision for the maintenance, education or advancement in life of a particular applicant. The court does this by determining whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, for the applicant. If it is not so satisfied, then the court is precluded from making a family provision order. At this stage, the court has regard to, among other things, the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased and the circumstances and needs of the other beneficiaries or potential beneficiaries: see McCosker v McCosker, at 571–572; Singer v Berghouse, at 209–210; Vigolo v Bostin, at [16], [75], [112]; Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757, at [70]; Verzar v Verzar [2014], at [39].

33. [77]

    Whether an applicant has a “need” or “needs” is also a relevant factor at the first stage of the enquiry: see s 60(2)(d) of the Act. It is an elusive and an elastic concept to define, yet, it is an element in determining whether “adequate” provision has been made for the “proper” maintenance, education and advancement in life of the applicant in all of the circumstances. The concept involves economic considerations.

34. [78]

    In Collins v McGain [2003] NSWCA 190, Tobias JA, with whom Beazley and Hodgson JJA agreed, said:

35. [79]

    In Devereaux-Warnes v Hall (No 3), at [81]–[84], Buss JA said, in respect of the first stage of the process:

36. [80]

    “Need”, of course, is also a relative concept: de Angelis v de Angelis [2003] VSC 432, per Dodds-Streeton J, at [45]. It is different from “want” and does not simply mean “demand” or “desire”. The latent difference between the words was stated by Lord Neuberger of Abbotsbury (now President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808, at [54]:

37. [81]

    In Boettcher v Driscoll [2014] SASC 86; (2014) 119 SASR 523, David J, at [41], added:

38. [82]

    As Callinan and Heydon JJ emphasised in Vigolo v Bostin, at [122], the question of the adequacy of the provision made by the deceased “is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably”. The inquiry is not confined only to the material circumstances of the applicant. The whole of the context must be examined.

39. [83]

    Yet, in referring to the concept of “need”, it should also be noted that the statutory formula makes no reference to “need”, but rather to “adequate provision for the proper maintenance, education or advancement in life”. No doubt, this has prompted White J to write, in Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473, at [147], that “the need a claimant must demonstrate is a need for ‘proper’ maintenance, education and advancement in life”, but that does not mean that “adequate provision for proper maintenance and advancement in life implies no more than provision for the necessities of life, irrespective of the size of the estate and the effect, if any, of an order for provision on others”. Respectfully, I agree. Consideration of “needs” must be in the context of the statutory formulation.

40. [84]

    In the event that the court is satisfied that the power to make an order is enlivened (i.e. in this case, it is satisfied that the Plaintiff is an eligible person, and that adequate provision for his proper maintenance, education or advancement in life has not been made), then, the court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the court at the time the order is made.

41. [85]

    The second stage of the process arises under s 59(2) and s 60(1)(b) of the Act. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that the decision made at the second stage involves an exercise of discretion in the accepted sense. The fact that the court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant’s favour.

42. [86]

    I have dealt with the question that has been raised in other cases whether the two-stage approach identified in Singer v Berghouse continues to apply to the provisions of the Act, the most recent of which is Aubrey v Kain [2014] NSWSC 15. I remain of the view that the two-stage approach should continue to apply. I shall not repeat what I have said, which is not affected by the recent decisions of the Court of Appeal in Phillips v James [2014] NSWCA 4; (2014) 85 NSWLR 619, Verzar v Verzar [2014], or Salmon v Osmond [2015] NSWCA 42.

43. [87]

    (Since I delivered my reasons in Aubrey v Kain, Robb J has also considered the topic in Gardiner v Gardiner [2014] NSWSC 435. I respectfully adopt his Honour’s reasoning, set out at [117]–[120], and [124], as to the persuasiveness of the reasoning of Barrett JA in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656. I also refer to what Bergin CJ in Eq has written in In the Estate of the late Anthony Marras [2014] NSWSC 915, at [15].)

44. [88]

    Ultimately, as Allsop P said in Andrew v Andrew, at [6], it “may be an analytical question of little consequence” since the questions remain the same, namely, whether the court can make an order for provision (whether it is satisfied that 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) and, if so, whether it should (whether to make an order and, if so, the terms of that order). Accordingly, even if there remains some uncertainty as to whether the Act requires a two-stage approach, “it is settled that the determination under the legislation on either approach, involves an evaluative judgment”: Salmon v Osmond, per Beazley P (with whom McColl and Gleeson JJA agreed), at [54].

45. [89]

    Section 60 of the Act, at least in part, is new. It provides:

46. [90]

    It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew, at [37], as “a multifactorial list”, and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380, at [121] and [123], as “a valuable prompt” to which the court may have regard, together with “any other matter the court considers relevant”, for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order.

47. [91]

    White J wrote in Slack v Rogan; Palffy v Rogan, at [121], that s 60 “lists a wide range of matters” that the court “may have regard to”, but these do not provide any tangible assistance in answering the question in any particular case whether the provision made in a will was less than adequate for an eligible applicant’s “proper” maintenance, education or advancement in life.

48. [92]

    In West v Mann [2013] NSWSC 1852, Kunc J, at [12], wrote:

49. [93]

    Beazley P, in Phillips v James, at [51], described s 60(2) as involving:

50. [94]

    In Chapple v Wilcox [2014] NSWCA 392, Basten JA, at [7], wrote:

51. [95]

    The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of such of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed is, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender.

52. [96]

    The section also does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical.

53. [97]

    A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).

54. [98]

    Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on “the discretionary question”, namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased’s death, or subsequently.

55. [99]

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

56. [100]

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

57. [101]

    Any family provision order under the Act takes effect, unless the court otherwise orders, in the case if the deceased made a will, in a codicil to the will (s 72(1) of the Act).

58. [102]

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

59. [103]

    Section 99(1) of the Act provides that the court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate in such manner as the court thinks fit.

60. [104]

    Practice Note SC Eq 7, which applies to claims for a family provision order, provides, in Clause 24, that “[o]rders may be made capping the costs that may be recovered by a party in circumstances including, but not limited to, cases in which the value of the estate is less than $500,000”. (Of course, this is only one basis upon which costs may be capped. See, for example, s 98 of the Civil Procedure Act 2005 (NSW). Also, see Baychek v Baychek [2010] NSWSC 987; Dion Giuseppi Sergi by next friend Aileen Solowiej v Sergi [2012] WASC 18, per E M Heenan J, at [50]–[52].

Other Applicable Legal Principles – Substantive Application

1. [105]

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

2. [106]

   Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate to endeavour to achieve “an overall fair” disposition of the deceased’s estate. It is not part of the court’s function to achieve some kind of equity between the various claimants. As Pembroke J has recently repeated in Sung v Malaxos [2015] NSWSC 186, at [5]:

3. [107]

   The court’s role is not to reward an applicant, or to distribute the deceased’s estate according to notions of fairness or equity. Nor is the purpose of the jurisdiction conferred by the Act to correct the hurt feelings, or sense of wrong, felt by an applicant. Rather, the court’s role is of a specific type and goes no further than the making of “adequate” provision in all the circumstances for the “proper” maintenance, education and advancement in life of an applicant.

4. [108]

   The court’s discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased’s freedom of testation. “Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court”: Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, at 19 (Dixon CJ); McKenzie v Topp [2004] VSC 90, at [63].

5. [109]

   Of that freedom, in Grey v Harrison, at 366, Callaway JA said:

6. [110]

   In Vigolo v Bostin, at [10], Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour explained:

7. [111]

   In Goodsell v Wellington [2011] NSWSC 1232, I noted, at [108], that:

8. [112]

   As Pembroke J said in Wilcox v Wilcox [2012] NSWSC 1138, at [23]:

9. [113]

   In Brand v Brand [2015] NSWSC 52, Pembroke J, at [21]–[23], referred to Goodsell v Wellington and also repeated what he had said, to similar effect, in Madden-Smith v Madden (estate of the late Doris Linda Madden) [2012] NSWSC 146, at [30]–[34] and to the passage in Wilcox v Wilcox quoted above. See also Salmon v Osmond, per Beazley P, at [69]–[77]. Thus, mere judicial opinion should not be substituted for that of the deceased as the preferred way of distributing his, or her, estate.

10. [114]

    Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales, at 19; Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.

11. [115]

    As Allsop P said in Andrew v Andrew, at [16]:

12. [116]

    Barrett JA, at [95], wrote:

13. [117]

    In Chapple v Wilcox, Basten JA, at [12], and by Barrett JA, at [63]–[64], emphasised the central role played by “community standards” or “community expectations” in any decision whether to take the significant step of overriding the expressed wishes of the deceased.

14. [118]

    How the community expectations or standards are determined cannot be explained other than by reference to the Act: Andrew v Andrew, at [36] (Basten JA). His Honour added, in Phillips v James, at [113]:

15. [119]

    Thus, “there are difficulties for the Courts in making their own unaided assessment of current community attitudes in a complex and changing social environment”: Williams v Aucutt [2000] 2 NZLR 479, at [44]. As was said by White J in Slack v Rogan; Palffy v Rogan, at [125]:

16. [120]

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

17. [121]

    The Act is not a “Destitute Persons Act” and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice; Allardice v Allardice (1910) 29 NZLR 959, at 966. The use of the word “proper” requires consideration to be given to more than satisfying the basic needs of an applicant (cf Chandler v Coulson [2015] NSWSC 172, per Pembroke J, at [26]).

18. [122]

    The standard of living of an applicant during the lifetime of the deceased is relevant, but the fact that he, or she, has lived frugally, or that he, or she, has become accustomed to a life of relative penury, does not mean that the deceased’s obligation under the Act is satisfied so long as the applicant can continue in that state: Pogorelic v Banovich [2007] WASC 45, [62]; Butcher v Craig [2009] WASC 164.

19. [123]

    Nor is it the purpose of the Act to punish, or redress, past bad, or unfeeling, parental behaviour, where that behaviour does not still impinge on the applicant’s present financial situation. In other words, a claim under the Act does not encompass compensation, or reparations, to an applicant for the deceased as his, or her, parent, having failed in the legal, or moral, duty to be a good and responsible parent of the child: Re Bull [2006] VSC 113; Cameron v Cameron [2009] SASC 27, at [41].

20. [124]

    All of the financial needs of an applicant have to be taken into account and considered by reference to the other factors referred to in the Act and in Singer v Berghouse. What is proper provision is not arrived at by adding up all of the identified financial needs: Hyland v Burbidge [2000] NSWSC 12, at [56]. Nor does it follow that if the court decides it is inappropriate to make a specific provision in respect of one identified head of claim that any identified financial need, even a contingent need, in relation to that claim becomes irrelevant to the final assessment: Mayfield v Lloyd-Williams, at [89].

21. [125]

    What was said in Edgar v Public Trustee for the Northern Territory [2011] NTSC 5, per Kelly J, at [46], should be remembered:

22. [126]

    As stated in the above passage, the size of the estate is a significant consideration in determining an application for provision. It is important to remember what Salmond J said in In re Allen (Deceased); Allen v Manchester [1922] NZLR 218, at 221:

23. [127]

    Whilst fully contested applications in small estates should be discouraged, because the costs tend to become wholly disproportionate to the end result, there is nothing in the Act that excludes the possibility that orders for further provision be made from a small estate: Morris v Smoel [2014] VSC 32, at [68]. The court must still consider all the relevant circumstances before a decision is made: Re Coventry (Deceased) [1979] 3 All ER 815, at 820; Alcock v Cooper [2010] SASC 167, per Lunn M, at [39].

24. [128]

    Yet, in small estates particularly, the court should be careful not to foster the proposition that obstinacy and unreasonableness will not result in an order for costs: Dobb v Hacket (1993) 10 WAR 532, at 540.

25. [129]

    In relation to the Plaintiff’s claim, being a claim by an adult child, the following principles are useful to remember:

26. [130]

    Yet, in Phillips v James, Basten JA, in the context of a dispute between siblings, made the following statement at [113]–[114]:

27. [131]

    In Foley v Ellis, Sackville AJA, at [88], noted that Singer v Berghouse “strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased’s bounty. These claimants include other beneficiaries entitled to a share of the deceased’s estate, whether or not they themselves have made a claim under the Family Provision Act”.

28. [132]

    In Salmon v Osmond, at [103], Beazley P stressed the relevance of having regard to the deceased’s obligations to all other claimants and concluded, in that case, that even “without regard being had to the costs ordered to be borne by [the beneficiary’s] share of the estate, the legacy ordered in [the Plaintiff’s] favour is disproportionate to any rightful claim she may have when regard is had to [the beneficiary’s] rightful claim to the deceased’s bounty”.

Qualifications on “Principles”

1. [133]

   As I have stated in a number of cases (see, for example, Bowditch v NSW Trustee and Guardian [2012] NSWSC 275), I do not intend what I have described as “principles” to be elevated into rules of law, propositions of universal application, or formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion at the second stage should be constrained, by statements of principle found in dicta in other decisions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I identify them merely as providing useful guidance, which may be applied, with circumspection, in considering the statutory provisions, the terms of which must remain firmly in mind.

2. [134]

   It is necessary for the court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the bases for a family provision order have been established. Every case is different and must be decided on its own facts. As Lindsay J said in Verzar v Verzar [2012], at [131]:

3. [135]

   The importance of the qualifications to which I have referred in the last two paragraphs have been stressed in Chapple v Wilcox by Basten JA, at [18]–[20], and by Barrett JA, at [66]–[67].

Credit of the Parties

1. [136]

   Only the Plaintiff and the Defendant gave evidence. Because of the significant difference between them as to a number of facts, it is necessary to express my view on the credibility of each of them.

2. [137]

   In relation to the Plaintiff, there was one aspect of his evidence that, initially, I found difficult to accept, but having carefully considered his written and his oral evidence, as well as the other evidence in this case, I am unable to conclude, on the balance of probabilities, that I should not accept his evidence on the topic of his financial resources.

3. [138]

   The evidence that he does not work very much and that his weekly income is extremely small, initially, seemed somewhat implausible, particularly bearing in mind some of his expenditure (for comprehensive car insurance), and although he was cross-examined to suggest that he earned income that he had not disclosed from the ownership, and operation, of a number of businesses, there was no actual evidence to enable me to conclude that he had either income, or assets, which he had concealed from the court.

4. [139]

   In this regard, I accept that before the Court can make a family provision order in an applicant’s favour, it needs to be satisfied that he, or she, has been left without adequate provision, and that before the court can be so satisfied, it needs to be persuaded that it has been presented, at least in broad outline, with the whole picture concerning the applicant’s financial position: Collings v Vakas [2006] NSWSC 393, per Campbell J, at [66]–[67].

5. [140]

   For example, the Plaintiff did not produce, in answer to a notice to produce, any income tax returns for the financial years ending 2012, 2013 and 2014. When asked why he had not done so he said: “I have not worked. I have not earned enough money to … put my tax return in”: T22.45–T23.04. There was no further cross-examination on this topic.

6. [141]

   Furthermore, although he did produce bank statements in answer to a notice to produce, no documents were tendered by the Defendant to contradict the Plaintiff’s sworn affidavit evidence that he had a negligible amount in his bank account.

7. [142]

   The cross-examination of the Plaintiff on his involvement in particular businesses or organisations, one of which he said conducts “pageants” to raise money for charity, whilst time-consuming, did not actually result in me being able to conclude that what the Plaintiff said about his involvement was false. He said that his involvement with the business or organisation was in order to gain experience in “event organisation”, and that the franchisee of the business was a friend. He denied owning the franchise: T29.03–T29.07.

8. [143]

   In re-examination, the Plaintiff said that he had not earned any money from any business or organisation, the name of which had been registered by him: T36.41–T37.02. He also said that none of the registered business names had any value as no business was being conducted: T38.06–T38.09.

9. [144]

   In this regard, it is clear that the Defendant had access to the internet, from which source information had been retrieved, enabling his counsel to cross-examine the Plaintiff. It was suggested to the Plaintiff that the business or organisation in which he was involved was “the adult entertainment industry” (see, for example, Ex. D2). It was also suggested that the Plaintiff “made a considerable amount of money out of the adult [entertainment] business over the last few years”, each of which matters the Plaintiff denied: T35.27–35.29.

10. [145]

    The same source also provided the identity of other persons involved in at least one of the organisations, with the Plaintiff (part of Ex. D1), who might have been able to be contacted with a view to establishing what was said to be the Plaintiff’s true involvement in these organisations. There is no evidence of any such contact by the Defendant and none of those persons was called.

11. [146]

    There was also cross-examination on a business card, said by the Plaintiff to have been printed on his computer in about 2007, and the acknowledged use, by the Plaintiff on that business card, and elsewhere, of a pseudonym (part of Ex. D1). Once again, whilst time consuming, the cross-examination did not really lead anywhere, and the Plaintiff’s answers do not enable me to conclude that the explanation given by the Plaintiff for the reason for the production of the business card, or for the adoption of a pseudonym, was each false.

12. [147]

    In addition, whilst much was made of the Plaintiff’s evidence that he owned a number of motor vehicles, and the reasons why two of them were comprehensively insured (when one considers the type, and age, of each of those vehicles as disclosed by the Plaintiff in his affidavit evidence), the challenge made is not of any real value other than, perhaps, to cause some scepticism.

13. [148]

    He was also challenged on his evidence about a trip that he had made (for four or five months) in late 2012 and early 2013. He explained that part of the trip had been paid for by an ex-girlfriend, that he had obtained “a pretty good deal” with air fares, and that he had travelled to Serbia at the request of the deceased: T25.06–T26.06.

14. [149]

    Nor was there any other demonstration that the Plaintiff was living beyond his disclosed means. He shares a home with his brother, Douglas, in which they live with their mother. He acknowledged that he paid no rent to his mother. The Plaintiff does not have any property of any real value that suggests that he has, or has had, a source of income, or capital, which belies his sworn evidence.

15. [150]

    I should deal with two aspects of the Plaintiff’s evidence, the first relates to a prior Will of the deceased, which evidence I have carefully considered since it impacts on the second aspect, namely the Defendant’s case that there was misconduct by the Plaintiff in the treatment of the deceased for most of the Plaintiff’s adult life.

16. [151]

    The Plaintiff gives evidence of the deceased having told him of a Will, prepared by the Defendant’s current solicitor, in 1999 or in 2000, in which Will the Plaintiff was named as the executor and sole beneficiary. A copy of that Will is not in evidence.

17. [152]

    Despite this evidence, the Defendant’s current solicitor, who has acted for the Defendant in the proceedings, and who was present in court throughout the hearing, did not give any evidence on this topic. There was no explanation proffered for his failure to do so. (I should mention that he had sworn an affidavit on 29 October 2014 in which he deposed to service of the prescribed notice on a number of eligible persons.)

18. [153]

    It was not accepted by counsel for the Defendant that the Defendant’s solicitor was a witness who would be expected to be called by the Defendant. He submitted that the Plaintiff could have called the solicitor and asked him questions on the topic.

19. [154]

    With respect, I disagree. The Plaintiff gave evidence, upon which he was not challenged, either in the affidavits in reply, or in cross-examination. The evidence was not inherently improbable.

20. [155]

    On the other hand, if the evidence of the Plaintiff was seriously in dispute, one would have expected the Defendant to dispute it, and the best person to provide the evidence to raise the dispute, by evidence in reply, would have been the Defendant’s solicitor.

21. [156]

    (The fact that the Plaintiff’s counsel did not wish to cross-examine Mr Stojanovic, who had sworn a formal affidavit of service of the prescribed notice is unsurprising, bearing in mind that there was nothing in his affidavit on this topic.)

22. [157]

    In those circumstances, I am comfortably satisfied that the Defendant’s solicitor is a witness who would be expected to be called by the Defendant.

23. [158]

    As has recently been repeated by the Court of Appeal in RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56, per McColl JA (with whom Sackville AJA agreed), at [75]–[76]:

24. [159]

    It follows that I am able to draw an inference not that the evidence not called would have been adverse to the Defendant, but that it would not have assisted the Defendant.

25. [160]

    On the second aspect of the Plaintiff’s evidence, the Defendant relied upon a written statement signed by the deceased on 12 January 2012. (There was no dispute that the person referred to as “Neven” in that document is the Plaintiff.) He wrote that he had been informed by his solicitor that the deceased had delivered the document to the solicitor. The statement, which was translated from the Serbian language into the English language by a NAATI Accredited Interpreter in the Serbian language, provided:

26. [161]

    (The translation is slightly different to the translation annexed to the Defendant’s first affidavit. However, nothing turns on the differences.)

27. [162]

    Section 100(2) of the Act provides that in any proceedings under Chapter 3, evidence of a statement made by a deceased person is, subject to this section, admissible as evidence of any fact stated in it of which direct oral evidence by the deceased person would, if the person were able to give that evidence, be admissible.

28. [163]

    Section 100(5) and s 100(6) provide:

29. [164]

    Also, Gibbs J said in Hughes v National Trustees Executors & Agency Company of Australasia Ltd, at [18]:

30. [165]

    The Plaintiff denied that he had attempted to cause the deceased to change his Will. Since I am satisfied about the existence of an earlier Will, made in 1999 or 2000 by the deceased, in which the Plaintiff was the sole executor and beneficiary, and no other Will, other than the last Will of the deceased, Probate of which was granted, has been located, there would have been no need for the Plaintiff to do so prior to the last Will being made. One asks, rhetorically, what the Plaintiff could have achieved by tricking the deceased into making another Will prior to the last Will having been made?

31. [166]

    It follows that I am unable to conclude that the whole of the statement of the deceased about the Plaintiff is accurate.

32. [167]

    In relation to the assertion in the statement about the Plaintiff trying to put the deceased into a retirement village, there is simply no evidence that he did so. The Plaintiff’s evidence on this topic, which seems inherently plausible, is that he never told the deceased that he wanted to put him in a retirement village. Rather, he told the deceased that he should be cared for at home, but if he was not, he would need to go into a nursing home.

33. [168]

    The Plaintiff gave evidence, which the Defendant confirmed, of having organised a carer to look after the deceased when he was released from Liverpool Hospital and that the carer stayed with the deceased for 4 weeks. He also said that it was he who contributed to the payment of the carer. This was not disputed and seems somewhat inconsistent with the Plaintiff wanting to place the deceased in a retirement village. Accordingly, I do not accept that the deceased’s statement about the Plaintiff on this topic was accurate.

34. [169]

    The Plaintiff also gave evidence of regularly visiting the deceased after his release from hospital, except for the 5 month period in which he was overseas (although he continued to make contact by telephone).

35. [170]

    I turn then to the Defendant. I have earlier referred to the Defendant’s failure to disclose the bank account into which the rent of the Mt Pritchard property had been paid and which rent would have formed part of the estate of the deceased. It is clear that he did not inform his legal representatives of the existence of the bank account at any time (since the matter was not raised in the Defendant’s last affidavit, or in the discussion between Bench and bar about the nature and value of the deceased’s estate at the date of hearing).

36. [171]

    In addition, it was not until the day before the hearing that the Defendant served any appraisal relating to the Mt Pritchard property. Until then, it seems that he was asserting that its value was about $400,000. It is clearly worth more than that (as evidenced by the agreed estimate of value for the purposes of the hearing). When cross-examined about this, the Defendant laid the problem at the feet of his solicitor, saying that he had “left it up to my solicitor to follow up and do”: T49.13–T49.25. However, later, he accepted that he had not given instructions to his solicitor until after he had received an appraisal from the Plaintiff: T49.29–T49.38.

37. [172]

    I am satisfied that the size of the estate is greater than that asserted by the Defendant until shortly before the hearing.

38. [173]

    When the Defendant was asked what part of the amount borrowed had been used for his own purposes, he did not know saying that “I do not have the exact figures with me”: T48.20–T48.24. He accepted, however, that he had repaid credit card debts using the amount drawn down. One would have expected this evidence to be readily available and to have been disclosed fully and accurately.

39. [174]

    The Defendant, as will be read, maintained throughout the proceedings that the Plaintiff had engaged in what might be described as “conduct disentitling” towards the deceased. However, when pressed on the topic in cross-examination, the only basis for maintaining the position was what had been told to him by the deceased. For example, he acknowledged that he did not know whether the content of the written statement made by the deceased was true: T54.41–T54.47. He did not advance any personal observations of such conduct.

40. [175]

    I should mention, also, that the Defendant had included in his affidavit a reference to other statements made, in which the deceased told the Defendant that the Plaintiff had visited and had assisted with shaving and feeding: T50.13–T50.24. He also accepted that when the deceased had a car accident, it was the Plaintiff who did all the panel beating and re-painting of the car as it was uninsured: T53.24–T53.29.

41. [176]

    Whilst I did not find the Defendant to be an intentionally untruthful witness, I am satisfied that he does not exhibit any goodwill towards the Plaintiff. (The Defendant, in his affidavit, acknowledged that he and the Plaintiff did not get on.) I thought that some of his evidence might have been coloured because of that. I have borne this in mind when assessing and evaluating his evidence.

The Submissions

1. [177]

   Counsel for the Plaintiff submitted that the Plaintiff “has demonstrated that he was left without adequate provision and that he does have a moral claim on the estate of the deceased… [He] seeks an amount for provision within the amount available taking into account the competing claims of other persons being the $64,000 owing to his sister on a settlement disclosed by John in his updated affidavit.”

2. [178]

   Counsel pointed to the fact that the competing claim of the Defendant was not significant since the Defendant “has not disclosed his nor his wife's financial resources other than the fact that he is employed as a technician and his normal income is $80,000 but says he can earn more if he works overtime”.

3. [179]

   Counsel for the Plaintiff submitted that the Court “is entitled to assume that [the Defendant] has adequate resources upon which to live and has no special claim on the deceased's bounty where he has not made full disclosure and said virtually nothing about his and his wife's financial situation”.

4. [180]

   I shall refer to the Plaintiff’s evidence about his “needs” later in these reasons, which needs, it was submitted, should be met out of the deceased’s estate (despite the fact that the amount identified would result in the Defendant, as the chosen object of the deceased, receiving very little (about $30,000) out of the deceased’s estate after the payment of the debts, funeral, and testamentary expenses, and the costs of these proceedings).

5. [181]

   Counsel for the Defendant, after identifying the factual issues, submitted that “[a]ny award would involve leaving very little for the defendant, a result that would thwart the deceased's wishes. The deceased clearly had the view that the applicant for provision was seeking to take unscrupulous advantage of the deceased. The relationship between the deceased and the applicant is a relevant factor which the Court should take into account. In summary, given the very limited estate it is submitted that the Court should make no award or at most an award of a very small amount.”

6. [182]

   The Defendant submitted that the Plaintiff’s Summons should be dismissed. At the hearing, he submitted that if it was not, that the Plaintiff should receive a modest legacy ($15,000 to $20,000).

Additional Facts

1. [183]

   I set out the additional facts I am satisfied are either not in dispute, or that, in my view, have been established by the evidence. I do so by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come. I have taken this course, not “to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59” (Verzar v Verzar [2012], at [124]), but in order to complete the recitation of facts that will assist me to determine the questions that must be answered.

2. [184]

   There is no dispute that the Plaintiff is a son of the deceased. He was born in Serbia. The deceased and his family arrived in Australia, for the first time in 1969, but returned to Serbia in 1972. They lived in Serbia, between 1972 and 1980. During his time in Serbia, the deceased did not live with the family all of the time. The family returned to Australia in about 1980.

3. [185]

   The Plaintiff described the deceased as “difficult and demanding”. He stated that in 1983, the deceased “kicked me out”. He lived with others, including his older sister, who lived in Queensland and did not see the deceased for about three years. He returned to Sydney, in 1986, he says, at the request of the deceased. He also says that, thereafter, he had a close relationship with both of his parents.

4. [186]

   He obtained employment and continued to work until 2008, when he says he ceased full-time work “due to the demands of helping my father and assisting my brother Douglas with caring for my mother”.

5. [187]

   The Plaintiff says that in 2011, the deceased accused him of misappropriating money. He denies having done so. He was not asked any questions about this topic in cross-examination.

6. [188]

   Although the Defendant did not allege any estrangement between the Plaintiff and the deceased, he maintained that the relationship was neither close nor loving. It was put to the Plaintiff that he had a poor relationship with the deceased and that the deceased had always been suspicious of the Plaintiff, matters which the Plaintiff denied (although he volunteered that they had “some up[s] and down[s]”).

7. [189]

   I do not accept the Defendant’s evidence in this regard as I am satisfied, from the whole of the evidence, that there was a reasonably close familial relationship between the Plaintiff and the deceased, which extended for the whole of the Plaintiff’s life, apart for the period between about 1983 and about 1986, and perhaps, for mistaken reasons, during 2011 and 2012.

8. [190]

   There is no definition of the words “obligations” or “responsibilities” to which the sub-section refers in the Act. Importantly, the Act does not expressly refer to, or identify, any “moral duty”. Yet, one might conclude that what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities.

9. [191]

   This factor requires a balancing of potentially competing obligations as between the applicant and each of the beneficiaries.

10. [192]

    Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal obligation to each of his children, as an adult, imposed upon him by statute or common law.

11. [193]

    Yet, an obligation or responsibility, to make adequate provision for the proper maintenance, education or advancement in life, is recognised in the case of a child. In Flathaug v Weaver [2003] NZFLR 730, at [32], the origin of the obligation which underpins the Act’s recognition of the duty owed by a parent to a child was put in this way:

12. [194]

    The fact that the applicant was financially independent of the deceased, for many years, before the deceased’s death, is a relevant consideration in determining the extent of any obligation or responsibility owed. The size of the deceased’s estate is also relevant to the extent of the obligation or responsibility.

13. [195]

    I have earlier dealt with these matters. The net estate is very small.

14. [196]

    The Plaintiff had been an accredited RTA assessor and driver trainer and had conducted a business as such from various places. However, he said that he was no longer accredited: T28.22–T28.24. There was no suggestion that he did not have an earning capacity.

15. [197]

    The Plaintiff, at the date of hearing, was not employed on a full time basis. He said that his current income is about $150 to $200 per week. He gave evidence that the source of income is sporadic work as a removalist and handyman. He denied any other sources of income. He agreed that he had a photography business but said that he did not earn any income from it: T27.50–T28.10. He also agreed that he had registered a number of business names, but denied that any business was in operation. (He had estimated that his income for the financial years ending 30 June 2013 and 30 June 2014 was between $3,000 and $4,000. This equates to between about $58 and $77 per week.) Whilst I am a little sceptical about some of this evidence, I am unable to conclude that he has a greater income than that which he disclosed.

16. [198]

    His describes that the only “assets of any value” that he owns are motor vehicles, including the following:

17. [199]

    In the Plaintiff’s first affidavit, he sought provision by way of a legacy of $300,000 which would provide him with:

18. [200]

    In the Plaintiff’s updating affidavit, he notes that he “would be happy to go half in the net estate with my brother John”. Yet, the provision he sought in this affidavit, was $170,000, which amount would provide:

19. [201]

    During oral submissions, counsel for the Plaintiff accepted that to achieve this level of provision, the court would be required to disregard, almost completely, the Defendant’s claim upon the bounty of the deceased. Furthermore, there was no evidence of any attempts to locate such accommodation, its nature and cost, or reasons why such accommodation was required. In addition, there was no evidence of what would be required to recommence, or the costs of re-commencing, his driving school business.

20. [202]

    It is clear from what has been said above about the size of the estate, that the claimed needs of the Plaintiff could only be satisfied out of the estate if the competing claim of the Defendant is virtually ignored. This prompted the Plaintiff, during oral submissions, to reduce, without specificity, the quantum of his claim.

21. [203]

    The Defendant gave evidence only of his income, which he estimated to be $80,000 gross per year. He said that he could earn more if he worked overtime. He said nothing about his, or his wife’s, assets and liabilities or his, her, or their, expenditure.

22. [204]

    In Sammut v Kleemann [2012] NSWSC 1030, I described the position of a beneficiary who did not disclose his, or her, financial resources. I wrote, at [134]–[140]:

23. [205]

    To the above authorities on this topic should be added Tobin v Ezekiel, per Meagher JA, at [94].

24. [206]

    It follows that I should draw the inference that the Defendant does not assert any competing financial claim on the bounty of the deceased. However, he does assert his claim as a chosen object of the deceased’s bounty.

25. [207]

    There is no evidence that the Plaintiff is cohabiting with any person other than his brother, Douglas and their mother Milica, who they look after with the assistance of a paid carer. They live in the home of their mother. The Plaintiff does not pay any rent or occupation fee.

26. [208]

    The Plaintiff does not provide any evidence about the financial circumstances of Douglas.

27. [209]

    One of the matters relied upon by the Plaintiff is the fact that his financial resources are now reduced because of the responsibility that he has taken on to assist his brother in the care of their mother, the third wife of the deceased. (The Plaintiff is also the financial manager of Milica’s estate.)

28. [210]

    In Re Buckland (deceased), Adam J considered what use could be made of evidence that the applicant for provision had voluntarily assumed the burden of financially supporting her mother. At 411–412, his Honour wrote:

29. [211]

    Holland J made similar observations of a comparable situation in Kleinig v Neal (No 2), at 537, when he wrote:

30. [212]

    I appreciate, in this case, that the Plaintiff does not frame his case upon the basis that he must provide, financially, for his mother. What he submits is that his financial resources have been reduced because of the care and attention that he provides to his mother and also the care and attention he had provided to the deceased.

31. [213]

    In my view, that is relevant to explain the financial resources (including earning capacity) that the Plaintiff has, but the circumstance does not result in the Plaintiff receiving more by way of provision out of the estate of the deceased. There is no suggestion that, at the date of his death, the deceased owed any obligation to Milica. (I shall return to the contribution made by the Plaintiff to the deceased later.)

32. [214]

    Finally, on this topic, I am satisfied that the Plaintiff does have an earning capacity, and if he chose to, he could probably earn more income than he presently does. Also, there is no suggestion that, upon the death of Milica, or if she moves to a nursing home, he will not be able to return to full-time work.

33. [215]

    There was no evidence given about whether Milica had made a Will, and if so, its contents. (I should mention that the Defendant admitted that he had not seen Milica since 1996 although there is a dispute about whether he has sought to visit her.)

34. [216]

    The Plaintiff states that he is in “poor health”, suffering from a thyroid problem with high cholesterol and low blood pressure. He occasionally takes medication for stress. He does not assert any disabilities.

35. [217]

    The Defendant does not assert any physical, intellectual or mental disability.

36. [218]

    The Plaintiff was born in 1967 and is currently aged 47 years.

37. [219]

    The Plaintiff gives evidence of the contributions made by him to the deceased. Since his return to Sydney in 1986, the Plaintiff would visit his parents and would sometimes pay the deceased’s bills, and at one stage gave the deceased $1,000 per week in order to pay bills. The Plaintiff states that the deceased would regularly ask for money, he would approach the Plaintiff with his problems and also ask the Plaintiff to interpret correspondence received.

38. [220]

    The Plaintiff maintained the deceased’s home through caring for the gardens and lawns and he repaired motor vehicles for him. He also took the deceased to monthly appointments with Professor Bruce Hall.

39. [221]

    The Plaintiff states that “[i]n the last few years before his death [he] was the only one helping [the deceased]”. He says that he gave up his full time occupation as a driving assessor to be of assistance to the deceased (and also to assist Milica).

40. [222]

    When the deceased was hospitalised in 2011, the Plaintiff says he visited the deceased on a daily basis. (The Defendant says that he did not see the Plaintiff when he visited the deceased, but acknowledges that this was because they did not get on, a fact known to the deceased who wished to avoid them arguing.)

41. [223]

    The Plaintiff performed the deceased’s “home duties and [took] over his responsibilities of his security job”. He also “hand fed him, shaved him and was in contact with his doctors”. As referred to earlier, the Plaintiff states that he arranged a carer for the deceased when he was discharged from hospital. The Plaintiff “set up his bedroom with a bed, hospital table, recliner chair, and a walking frame” which were personally paid for by the Plaintiff and amounted to at least $2,500. The Plaintiff was not cross-examined about these matters.

42. [224]

    The Plaintiff tendered an electricity bill for the Mt Pritchard property (Ex. D3), addressed to him for the period 12 December 2013 and 16 February 2014 which refers to a previous bill for $127.18, which he says he paid.

43. [225]

    There is no suggestion that the deceased made any provision for the Plaintiff during the deceased’s lifetime. I have also stated that the Plaintiff is not a beneficiary named in the Will.

44. [226]

    There is evidence about testamentary intentions other than as disclosed in the Will of the deceased. I have earlier referred to the Plaintiff’s evidence of an earlier Will, which evidence I accept.

45. [227]

    While the Court will consider any explanations given by the deceased in the will, or elsewhere, for excluding a particular person as a beneficiary, such explanations do not relieve the Court from engaging in the enquiry required by the Act: Slack-Smith v Slack-Smith [2010] NSWSC 625, at [27]. What an explanation may do is cast light on the relationship between the deceased and that person, at least from the deceased's perspective.

46. [228]

    As was recently written in Salmon v Osmond, at [72], “a testator’s explanation of why he made those decisions must be given appropriate weight. The weight that is given will depend, inter alia, upon whether it is apparent from the evidence that the testator’s wishes and testamentary intentions are soundly based and not, for example, attributable to irascibility, mere dislike, or based on lack of information, or wrong information”. Thus, whilst this sub-section permits the court to accept evidence of the reasons for the provision, or lack of provision, it does not compel the court to attribute any particular weight to that evidence or to accept the truth of what is asserted.

47. [229]

    For the reasons expressed, I do not give very much weight to the contents of the handwritten document signed by the deceased. I am not satisfied that its contents are soundly based.

48. [230]

    The deceased did not maintain the Plaintiff wholly, or partly, before death, and so it seems, for many years before his death.

49. [231]

    There is no other person with a liability to support the Plaintiff.

50. [232]

    An evaluation of “character and conduct” may be necessary, not for the sake of criticism, but to enable consideration of what is “adequate and proper” in all the circumstances. Importantly, the Act does not limit the consideration of “conduct” to conduct towards the deceased.

51. [233]

    In Collicoat v McMillan [1999] 3 VR 803, at [40], Ormiston J wrote, in relation to the manner in which an applicant’s behaviour towards the deceased is to be considered:

52. [234]

    I am satisfied that there is no relevant conduct of the Plaintiff that impacts on the determination of what provision should be made for him out of the estate of the deceased. I have earlier referred to the nature of his relationship with the deceased and his contribution to the welfare of the deceased.

53. [235]

    I am satisfied that there is no relevant conduct of the Defendant that impacts on the determination of what provision should be made for the Plaintiff out of the estate of the deceased. I remember, of course, that he is the chosen object of the deceased’s bounty.

54. [236]

    There is a dispute about the nature of the Defendant’s relationship with the deceased. However, I do not have to decide whose evidence is correct, on this topic, as the deceased regarded the Defendant as the person with the greatest claim on his bounty by naming him as the sole beneficiary.

55. [237]

    The Defendant gave evidence of performing similar duties for the deceased (as the Plaintiff had alleged he had done).

56. [238]

    Although there was some criticism made of the Defendant taking the deceased to the Defendant’s solicitor for the purpose of changing his Will, there has been no challenge to the validity of the last Will. Also, rightly or wrongly, that is what the deceased wanted, as is clear from the handwritten note to which I have referred.

57. [239]

    This factor is not applicable.

58. [240]

    There is no other matter that I consider relevant.

Determination

1. [241]

   Being an “eligible person” is a necessary precondition to the court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. There is no dispute the Plaintiff, as a child of the deceased, is an eligible person within the meaning of that term in s 57(1)(c) of the Act. There is also no dispute that he brought his application within the time prescribed by the Act.

2. [242]

   Thus, I must first consider, whether, at the present time, adequate provision for the proper maintenance, education, or advancement in life, of the Plaintiff has not been made by the deceased’s Will.

3. [243]

   There is no provision in the deceased’s Will for the Plaintiff. However, this does not, automatically, mean that he will have satisfied the jurisdictional threshold. However, the fact that he does not receive any provision out of the estate or notional estate of the deceased, may enable the court the more readily to find that inadequate provision has been made: Turner v Perpetual Trustees Australia Ltd [2001] ACTSC 56, per Gray J, at [8].

4. [244]

   However, the court is still required to consider all of the circumstances. Judged by quantum and looked at through the prism of his financial and material circumstances, adequate provision for the Plaintiff’s proper maintenance or advancement in life was not made by the Will of the deceased. Whether inadequate provision was made requires an assessment of his financial position, the size and nature of the deceased’s estate, the relationship between him and the deceased and other persons who have legitimate claims upon the deceased’s bounty and the circumstances and needs of those other persons: see Tobin v Ezekiel, at [70]; McCosker v McCosker, at 571–572; Singer v Berghouse, at 210; Vigolo v Bostin, at [16], [75], [112]; and Verzar v Verzar [2014] at [39].

5. [245]

   Taking into account all of the matters that I am required to consider at the first stage, including, that the Defendant has not given any evidence (other than his income) about his financial resources, the size and nature of the estate, the relationship between the Plaintiff and the deceased, and the relationship between the deceased and the Defendant, he being the only person who I find has a legitimate (and, in this sense, competing) claim upon his bounty, I am satisfied that the Plaintiff has satisfied the jurisdictional threshold. I must also remember that the task of the court is to make a determination “according to the feeling and judgment of the fair and reasonable man in the community, the spokesman of which is, and must be, the court itself”: Kearns v Ellis (Supreme Court (NSW), Mahoney JA, 5 December 1984, unrep), at 8. Doing so, I remain of the view that there was a failure, on the part of the deceased, to make adequate and proper provision for the Plaintiff.

6. [246]

   It is clear, in my view, that the Plaintiff has some “needs”. As stated above, “need” in the context of the Act is not determined by reference only to minimum standards of subsistence. Nor is it limited to whether the applicant has, at the date of hearing, an immediate need for financial assistance with respect to his maintenance. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The term is also used in the sense of what was necessary for the applicant’s “proper maintenance, education and advancement in life”: Akkerman v Ewins [2003] NSWCA 190, per Tobias JA, with whom Beazley and Hodgson JJA agreed. The Plaintiff’s current financial circumstances are such that he has no financial buffer against future financial contingencies.

7. [247]

   I turn now to the second stage, namely the nature of the order that should be made in favour of the Plaintiff. The more difficult question then arises, namely what provision “ought to be made for the maintenance, education or advancement in life” of the Plaintiff, having regard to the facts known to the court. This involves “an instinctive synthesis that takes into account all the relevant factors and gives them due weight”: Grey v Harrison. It is not a scientific, or arithmetic, exercise.

8. [248]

   I am of the opinion that the Plaintiff should receive provision by way of a lump sum, which would enable him to provide for exigencies of life and provide a buffer against future contingencies. He can use that lump sum to provide income. It is clear, however, that the size of the estate is a limiting factor on what lump sum may be provided.

9. [249]

   In my opinion, that lump sum should be calculated as 37.5 per cent of the net proceeds of sale of the Mt Pritchard property. (Using the estimated net distributable value of the estate ($200,000) referred to earlier this would yield a lump sum of about $75,000.) Thus, the provision to be provided for the Plaintiff and the part of the estate out of which it is to be provided is a lump sum equating to 37.5 per cent of the net proceeds of sale of the Mt Pritchard property.

10. [250]

    I have considered, again whether the provision by way of percentage is appropriate in this case. In Zagame v Zagame [2014] NSWSC 1302, I wrote, at [310]:

11. [251]

    I maintain the view expressed in that case. I remember also that the Act permits the family provision order to be made in one or more ways, including “in any other manner the Court thinks fit”: s 65(2)(f).

12. [252]

    The Defendant, as the executor, should have control of the sale, although, as a matter of comity, his solicitors should advise the solicitors acting for the Plaintiff of what is being done in that regard. The Mt Pritchard property should be put on the market for sale as soon as reasonably possible, but no later than 6 weeks from the date of making orders, or such other time as the parties are able to agree in writing. Provided the amount to which the Plaintiff is entitled, is paid within 7 days of completion of the sale of the property, no interest is payable on the amount to be paid. Otherwise, interest at the rate prescribed under s 84A(3) of the Probate and Administration Act 1898 (NSW) is payable from that date.

13. [253]

    I am also prepared to make an order granting leave to any party to approach the court to make additional orders for the purpose of giving effect to the family provision order to be made.

14. [254]

    I direct the parties to deliver to my Associate, within 14 days, for my consideration, agreed Short Minutes of Order giving effect to these reasons. The Short Minutes of Order should reflect the parties’ agreement on the categories of expenses referred to, to be paid out of the gross proceeds of sale of the Mt Pritchard property and make allowance for the contingent liabilities (if they have not yet been clarified) to be paid out of the gross proceeds of sale.

15. [255]

    Finally, there should be an order included in the Short Minutes of Order that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rule 31.16A and rule 33.10) and Practice Note No SC Gen 18 (Para 26).

16. [256]

    The matter will be listed before me on a mutually convenient date in case agreement on any aspects of the orders cannot be reached. At that time, the question of costs, if still in dispute, can be determined. If agreement on the form of orders is not reached, respective draft Short Minutes of Order, by each party, should be provided within the same time.

17. [257]

    If agreement is reached, on the terms of the Short Minutes of Order, including costs, I shall deal with the matter in Chambers without the need for a further appearance and I shall vacate the adjourned date.