Armitage v Fraser

HIS HONOUR: These proceedings involve the estate of Barbara Fay Sawyer (the deceased) and a claim brought by one of her, now adult, children, Jenny Ann Armitage, for a family provision order, under Ch 3 of the Succession Act 2006 (NSW) (the Act), and for her costs of the proceedings. A family provision order is one for the maintenance, education, or advancement in life, of an eligible person. Relevantly, the Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (the former Act), which was repealed, effective from 1 March 2009.

The deceased died on 15 March 2018, leaving a Will dated 7 February 2018. This Court granted Probate of that Will, on 25 July 2018, to Karen Francis Fraser, the only other, now adult, child of the deceased, and the younger sister of the Plaintiff. She is the Defendant in these proceedings.

Without intending to convey undue familiarity or disrespect, and for clarity and convenience, I shall refer, hereafter, to the parties, and family members, after introduction, by the name used by the family members.

After revoking all previous testamentary dispositions, the deceased, in Clause 5 of her Will, gave a pecuniary legacy of $30,000 to Jenny. In Clause 6, she gave Jenny certain identified chattels and personal effects, including a drawing of “ferns/greenery and blue ‘Jenny’ wrens”, an oil painting of a sunset and rolling hills, a white Buddha statue, her “gold ring with one central pearl and two diamonds on either side”; an art deco lamp and an unfinished canvas painting of a children’s nursery. Apart from a gift of her “plain, gold, wedding band”, which she left to her grandson, Jake Jordan Armitage, the deceased left the rest and residue of her estate to Karen, to whom she also, specifically, bequeathed two paintings and an opal necklace. I shall return to Clause 10 of the deceased’s Will in which she stated her reasons for making the limited provision that she had made for Jenny.

This is another case, involving adult siblings, both children of the deceased, who are prepared to incur a significant amount, by way of costs, rather than coming to a resolution of the proceedings. It is also a case where the reasons provided by the deceased have played a prominent role in the proceedings as each party focused on these reasons in the conduct of her case. As such, a major issue revolved around the character and conduct of the applicant, her relationship with the deceased, the deceased’s views of the relationship, and the deceased’s relationship with the Defendant, the principal beneficiary named in the last Will of the deceased.

For the most part, the legal representatives endeavoured to manage the hearing, with the object of resolving the real issues between the parties in such a way that the cost to the parties was proportionate to the importance and complexity of the subject-matter in dispute: Civil Procedure Act 2005 (NSW), s 60. The hearing was set down for two days and was completed within that time, even though extended hearing times, in some other cases, have occurred because of remote hearings necessitated by the COVID-19 pandemic. The pandemic necessitated a remote hearing with the use of video technology and electronic document handling software. This required co-operation, planning, and flexibility, on the part of all involved.

At the hearing, Mr C Birtles of counsel appeared for Jenny and Ms T Catanzariti of counsel appeared for Karen. I am grateful to all of the legal representatives, for the manner in which the hearing was conducted, and for their industry, and effort, in providing written submissions which I have found very helpful.

Consistent with the announcement of the Chief Justice published on the Supreme Court website on 23 March 2020, on and from Tuesday, 24 March 2020, there were to be no personal appearances, in any matters, save in exceptional circumstances with the leave of the Chief Justice or head of jurisdiction. The parties did not suggest any exceptional circumstances existed and, therefore, there were no appearances, in person, in Court, by practitioners, parties or witnesses.

Section 62(1) of the Civil Procedure Act provides that the court may, by order, give directions as to the conduct of any hearing. When directions were given on 15 April 2020, it was noted, for abundant caution, that the hearing would take place by remote hearing. Then, with the consent of the parties, practical hearing preparation matters, including the need for a video hearing test-run, were discussed and agreed upon.

At the commencement of the hearing on Wednesday, 13 May 2020, without opposition, the Court made the following direction (Tcpt, 13 May 2020, p 3(5–16):

The effect of ss 5B(1) and (2) of the Evidence (Audio and Audio-Visual Links) Act 1998 (NSW), is that, whilst the Court has a discretion whether or not to permit evidence to be given, or submissions to be made, by video-link, it must not make such an order if satisfied that a direction to allow such a course would be unfair to a party: Antov v Bokan (No 2) [2019] NSWCA 250 at [38] (Bell P, with whom Bathurst CJ and Payne JA agreed). Section 22C of that Act is a special provision dealing with the application of that Act during the COVID-19 pandemic. Relevantly, it provides:

The challenges of proceeding with a remote, or virtual, hearing applied to both sides equally. Whilst the Court still values the opportunity to see a witness in person, and hear submissions from counsel, who are physically present, I was satisfied that the direction would not be unfair to either party. As stated, each of the parties had an opportunity to be heard on the matter. Neither side submitted that the matter should not proceed in this way. Importantly, neither counsel submitted that there would be any unfairness in conducting the hearing in this way, or that it would not be in the interests of justice to do so.

The virtual hearing was conducted using “Microsoft Teams”, which, as I understand it, is a video communication platform that enables multiple persons to appear together online and communicate face-to-face using audio and video facility. (A “test-run” was conducted using the platform in the week before the hearing commenced.)

Despite the hearing being conducted in this way, there was no informality, as counsel, and I, were wigged and robed throughout the hearing which took place with me sitting in my usual Courtroom. The parties, although remote, remained present, and in view. Despite some technical problems, on occasions, which were resolved, I was able to see, and hear, both parties, and both counsel, and they were able to see, and hear, me, almost as each would have, had a live hearing taken place. Having now concluded the hearing, I am satisfied that it was undertaken in a forensically sound, thorough, fair, and just manner. No complaint has been made about the manner in which the hearing was conducted.

The parties were informed that subject to changes in Court operations during the pandemic, reasons for judgment would be handed down remotely, by circulation to their legal representatives, by email, and publication on Caselaw subsequently. I shall follow this course and shall allow the parties an opportunity to resolve the issue of costs. Again, neither party submitted that the reasons for judgment should not be delivered in this way. In current circumstances, it is appropriate.

Jenny commenced the proceedings by Summons filed on 13 March 2019 within the time prescribed by the Act (that is, not later than 12 months after the date of the death of the deceased): s 58(2) of the Act.

Section 57(1) of the Act provides that “eligible persons” may apply to the Court for a family provision order in respect of the estate of a deceased person. As a child of the deceased, Jenny is an eligible person within s 57(1)(c) of the Act. The language of the subsection is expressive of the person’s status, regardless of age, as well as her, or his, relationship to the deceased. It is not necessary that the child be a dependant at the time of the deceased’s death in order to be an eligible person under this head of eligibility (as dependency is not an element of the definition of an “eligible person” in s 57(1)(c) of the Act).

However, under s 60(2) of the Act, relevantly for the purposes of the present case, the Court may consider, on the question whether to make a family provision order and the nature of any such order, “… (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so …”. This factor, however, will not be relevant, in the case of a child of the deceased, to the question whether the applicant is an eligible person.

As the deceased dealt with all of her estate in her last Will, there is no scope for the operation of the intestacy rules, with the result that it is only necessary, hereafter, to refer to the Will of the deceased.

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

Although there is some property that may be able to be designated as notional estate, counsel acknowledged, when it was raised, that the Court must not make a notional estate order unless it is satisfied that (a) the deceased person left no estate, or (b) the deceased person’s estate is insufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made, or (c) provision should not be made wholly out of the deceased person’s estate because there are other persons entitled to apply for family provision orders, or because there are special circumstances: s 88 of the Act. They also agreed that the actual estate of the deceased is sufficient for the making of any family provision order, and any order for costs, that may be made for the Plaintiff: Tcpt, 13 May 2020, pp 3(40–44), 4(05–20).

Property which has been distributed to Karen, or which she has otherwise received (“death benefits which total in the order of $186,000 or thereabouts” and an “interim distribution of $90,000”) (Tcpt, 13 May 2020, p 4(20–36)) will be taken into account in determining the provision, if any, to be made for Jenny.

In the circumstances, Jenny did not seek an order that any property of the deceased be designated as notional estate.

The only eligible persons are Jenny, Karen, and their father, Barry Ernest Sawyer, who is the former spouse of the deceased: s 57(1)(d) of the Act. Whilst Jenny, in her Notice of Eligible Persons (at p 4 of the Summons), stated that two of the deceased’s grandchildren, namely her children, Ruby Jazz Armitage and Jake Jordan Armitage, are, or could be, eligible persons, there was no evidence of either being a person who was, at any particular time, wholly, or partly, dependent upon the deceased. At the hearing, it was accepted that neither is an eligible person: Tcpt, 13 May 2020, p 4(38–50).

The deceased’s former husband, Barry, has not made a claim. There was no evidence that notice of the application, and of the Court’s power to disregard his interests, was served on him, in the manner and form prescribed by the regulations or rules of court: s 61(2)(a) of the Act. However, I am satisfied that service of the prescribed notice upon Barry is unnecessary (s 61(2)(b) of the Act), bearing in mind that he and the deceased separated over 25 years prior to the deceased’s death and that it appears there was an informal property settlement agreed to, and implemented, by them. It will be necessary to return to Barry’s financial circumstances later in these reasons.

Only Jenny has made a claim for provision under the Act. Karen has not commenced proceedings under the Act, but she has given evidence of the bases, financial, and otherwise, of her claim upon the bounty of the deceased as one of beneficiaries named in the deceased’s Will. The Act specifically provides that the interests of a beneficiary cannot be disregarded, even though she, or he, has not made a claim: s 61(1) of the Act. A beneficiary is entitled to rely upon the terms of the deceased’s Will and her, or his, competing claim, respectively, as a chosen object of the deceased’s testamentary bounty. I shall refer to Karen’s situation in life, later in these reasons.

Karen, as executor, does not seek any commission, or percentage, for her pains and trouble as is just and reasonable, out of the estate of the deceased pursuant to s 86 of the Probate and Administration Act 1898 (NSW).

It is next convenient to set out some other facts that are not in dispute. To the extent that any of them are identified as being in dispute, the facts stated should be regarded as the findings of the Court.

The deceased was born in September 1938 and she died on 15 March 2018, aged 79 years. She married Barry in August 1961, and remained married to him until about August 2013, when a divorce order was made (which became final in September 2013). However, as previously stated, they separated, and ceased cohabiting with each other, in about 1991.

The deceased was employed as an accounts clerk at NEC. In 2011 or 2012, she inherited the estate of her mother, Dorothy Manewell.

Jenny was born in January 1964, and is 56 years of age. Karen was born in September 1969 and is 50 years of age.

Jenny married Gary Armitage in November 1996. They have two children, being Jake, who was born in January 2002 and Ruby, who was born in September 2004. They remained married at the date of the hearing and Gary was a witness in the proceedings. Currently, they live in Eimeo, a coastal town and suburb north of Mackay, in Queensland, with their two children. They moved there in 2006, from Melbourne, after Gary’s business had suffered some financial losses, and when he then found work in the mines.

Karen married Robert Leigh Fraser in October 2013. They separated, albeit living under the one roof, in December 2019, and remain so. There are no children of their marriage and Karen, otherwise, has no children. Robert was not a witness in the proceedings.

Prior to commencing these proceedings, Jenny commenced proceedings in the Supreme Court of Queensland by Originating Application filed 10 October 2018, in which she sought a family provision order. Those proceedings were discontinued, pursuant to rule 304 of the Uniform Civil Procedure Rules 1999 (Qld), with no order as to costs: Ex JS2, Tab 2. Karen’s costs, incurred to defend those proceedings, were $74,105, of which $15,747 has not been paid out of the estate of the deceased: Tcpt, 14 May 2020, p 158(10–15).

The balance of those costs will, in due course, be taken into account in determining the estimated value of the net distributable estate. I shall return to the evidence about Jenny’s costs of those proceedings later in these reasons.

On 15 April 2020, the Court directed the parties to provide, in hard and soft copy, an agreed schedule that contained:

I have taken what follows from the Agreed Schedule, which was marked, without objection, Ex JS1, and from discussions with counsel during the course of the hearing. (I have omitted, and shall continue to omit, any reference to cents. This will explain any apparent arithmetical miscalculation.)

The nature and value of the deceased’s estate (and property which could have been designated as notional estate) at the date of death, was set out in Ex JS1, as follows:

As at 5 May 2020 (the date of Ex JS1), the deceased’s estate comprised the Gerards Hill property (with an agreed value of $240,000); shares in Eclipse Metals Ltd ($750), an amount held in Armstrong Legal trust account ($40,000), cash in bank with NAB ($290,723), the Ford car ($400), and household contents and personal chattels (nominal value).

The parties agreed that the gross value of the estate, at the date of hearing, without any deduction for costs, is $571,873: Tcpt, 13 May 2020, p 40(08–42). (Although in Ex JS1, there was a reference to the estimated costs and expenses of selling the Girards Hill property ($10,000), the parties also agreed that this amount should not be deducted, as Karen is likely to move into that property, now that she and her husband have separated: Tcpt, 13 May 2020, p 6(15–31).)

There was no dispute that the deceased had left in place a binding death nomination, which directed all of the death benefits to be paid to Karen. Indeed, she received the whole of the death benefits (about $186,066) on 9 November 2018. As shown, there was also an interim distribution of $90,000 made to Karen on 21 March 2019: Tcpt, 13 May 2020, p 41(38–50). As stated earlier, the amount ($276,066) will be taken into account as provision that Karen has received as a result of the death of the deceased.

Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Ch 3 of the Act, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate, or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.

Usually, in calculating the value of the deceased’s estate available from which a family provision order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that her, or his, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased, while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that her, or his, costs, calculated on the indemnity basis, should be paid out of the estate. The size of the deceased’s estate, and the conduct of a party, may justify a departure from what is said to be the usual rule.

As Basten JA (Simpson and Payne JJA agreeing) put it in Chan v Chan (2016) 15 ASTLR 317 at 330 [54]; [2016] NSWCA 222 at [54]:

As his Honour had also written, a few years earlier, in Foley v Ellis [2008] NSWCA 288 at [10]:

I have repeated, many times, in the context of a claim for a family provision order, that parties should not assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199 at [21] (Palmer J); Forsyth v Sinclair (No 2) (2010) 28 VR 635 at 642 [27]; [2010] VSCA 195 at [27] (Neave and Redlich JJA and Habersberger AJA); Harkness v Harkness (No 2) [2012] NSWSC 35 at [18].

Jenny’s costs and disbursements of the proceedings, calculated on the ordinary basis were estimated to be $55,000. Those costs and disbursements, calculated on the indemnity basis, were estimated to be $70,000. She has paid $10,000, from her own funds, on account of those costs and disbursements.

Karen’s costs and disbursements, calculated on the indemnity basis, were estimated to be $83,224. She has paid $15,298 on account of her costs and disbursements out of the estate of the deceased. It follows that the balance of her costs and disbursements, yet to be paid, are $67,926.

Assuming, without deciding, that the estimates for the costs and disbursements are accurate, and assuming that the costs orders referred to above are made, in the event that Jenny is successful, the total amount of costs and disbursements of these proceedings, payable out of the estate, will be $122,926.

In addition, it is necessary to add to the costs payable out of the estate, the balance of Karen’s unpaid costs of the Queensland proceedings ($15,747). It follows, in the event that the estimates of costs prove accurate, that the total amount of costs to be deducted will be $138,673: Tcpt, 13 May 2020, p 41(17–36).

(Mr P Clark, Jenny’s solicitor in both these, and in the Queensland, proceedings acknowledged that, at the time the Queensland proceedings were commenced, there was no connection between the deceased’s estate and Queensland, and that commencing those proceedings constituted an “error” on the part of Jenny’s lawyers. He also conceded that Jenny would not be charged by his firm for costs incurred in respect of the Queensland proceedings, but was unsure whether counsel retained in that matter would seek his fees ($10,000): Tcpt, 13 May 2020, p 47(19–48). Mr Clark also confirmed that those fees had not been included in the estimate of Jenny’s costs of these proceedings to which I have earlier referred: Tcpt, 13 May 2020, p 48(19–20).)

Using the amounts set out above as a guide, the net distributable estate out of which any order for provision, for Jenny, could be made, would be about $433,200.

At the commencement of the hearing, the Court asked whether the question how the burden of costs should be borne could be determined as part of these reasons, to which counsel for Karen replied that “there is a document that may be relevant”: Tcpt, 13 May 2020, p 8(30–51).

The parties were encouraged to agree on their respective costs, calculated on the ordinary basis for Jenny, as Plaintiff, and also, so far as Karen, the Defendant is concerned, costs, calculated on the indemnity basis. By doing so, the court could make an order, before costs were referred for assessment, to the effect that the party to whom costs are to be paid is to be entitled to a specified gross sum instead of assessed costs: Civil Procedure Act, s 98(4)(c). This would avoid any further delay in the administration of the estate: Tcpt, 13 May 2020, p 9(01–08). Regrettably, they were unable to do so.

Relevantly, Clause 10 of the deceased’s Will provided:

Karen was asked in cross-examination whether she had any discussions with the deceased, prior to attending upon the solicitor who prepared the deceased’s Will, about the deceased’s testamentary intentions. She gave the following evidence at Tcpt, 14 May 2020, p 128(33) – p 129(04):

Karen also gave evidence that there may have been “a very old” Will, made at the time of the deceased’s marriage, but she did not know its terms. She also stated that she was not aware of any other Will of the deceased: Tcpt, 14 May 2020, p 127(14–21).

In par 18 of an unsigned affidavit, annexed to an affidavit of Mr Clark, sworn on 5 May 2020 and confirmed by her as true and correct on affirmation, Mary Emily Mulley, the deceased’s cousin, deposed that the deceased, in 2017, had expressed an intention to divide her estate equally between Jenny and Karen. Ms Mulley stated further that:

More important than this evidence, however, in my view, are the annexures to Karen’s affidavit, sworn on 18 June 2019, being a copy of the handwritten file notes, written by the deceased’s solicitor, made contemporaneously with the taking of the instructions for, and the drafting of, the deceased’s Will. In one of the notes, the deceased’s solicitor, with some foresight it seems, wrote:

Karen had scheduled the appointment, had attended with the deceased, and was present, for the most part, during the giving of the instructions. The file notes reveal that, at the commencement, the solicitor:

Subsequently, Karen was invited to, and did, return, at the behest of the deceased, to the conference room, whilst the deceased spoke to the solicitor. I accept, as the notes record, that the solicitor:

I am satisfied that Karen did not play any relevant part in what is recorded as the deceased’s instructions and the views of the deceased recorded in the notes were the views that she alone expressed to the solicitor. Indeed, as was recorded in the notes, it was Karen who suggested to the deceased that she make some provision for Jenny.

The content of the notes provide some insight into the deceased’s testamentary intentions and her reasons for making the provision that she made for Jenny in her Will, as follows:

Under the heading “Step 1: Assets/liabilities”, reads:

Under the heading “Step 2: Appointment of Executor”, reads:

Under the heading “Step 3: Distribution of Estate”:

At a subsequent appointment, on 7 February 2018, made to enable the deceased to execute the Will and the Enduring Power of Attorney, another note records:

There can be no doubt that evidence of the intentions of the deceased in respect of provision for an applicant is admissible in a claim for a family provision order: Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 481–482 (Lord Romer for the Board). Section 60(2)(j) of the Act, specifically, provides that the Court may have regard to any evidence of the testamentary intentions of the deceased, including evidence of statements made by her, or him, for the purpose of determining, relevantly, in this case, whether to make a family provision order and the nature of any such order.

Whilst deference ought to be given to the testamentary dispositions made by a capable testator, it should be remembered, as well, that merely because a statement is made by the deceased concerning the applicant for provision, the statement does not, unquestionably, have to be accepted as true. Such a statement may be just as inaccurate, or as unreliable, as a statement of a living witness, whether as the result of a mistake, or a failure of memory, or a deliberate untruth: Worsley v Solomon [2008] NSWSC 444 at [35] (McLaughin AsJ); Carusi-Lees v Carusi [2017] NSWSC 590 at [59].

I also bear in mind, what was said by Gresson J, in the course of delivering judgment for the Court of Appeal of New Zealand, in In re Green (deceased); Zukerman v Public Trustee [1951] NZLR 135 at 141, (which passage was approved by the majority of the High Court of Australia in Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134 at 138, 152; [1979] HCA 2):

Earlier in Hughes, at 149, Gibbs J (as his Honour then was) had written:

At 138, Barwick CJ wrote:

In Pincius v Wood [1998] TASSC 46, Cox CJ noted at 4:

In Diver v Neal (2009) 2 ASTLR 89 at 101 [61]; [2009] NSWCA 54 at [61], Basten JA wrote:

I repeat what I wrote in Andrew v Andrew [2011] NSWSC 115 at [25]:

Finally, I refer to what Henry J wrote, more recently, in Piercy v Douras [2019] NSWSC 1013, at [141]–[144]:

I shall refer to the significance of the instructions provided by the deceased, and the weight to be attributed to them, later in these reasons.

Because it is one of the matters referred to by the deceased as relevant to the provision to be made for Jenny, it is convenient, next, to turn to the financial resources of Barry. If he were able to change his Will, the deceased’s reasoning might not be as relevant, as any interest that Jenny has under his current Will would be no more than a mere expectation.

Barry was born in 1940 and is now 80 years of age. He currently suffers from dementia. He is assigned a level 4 Home Care Package for high care needs. He has difficulty with complex tasks and managing his personal affairs. Since July 2019, Barry has lived with Jenny.

Jenny is “the financial manager and the guardian of Barry … so we can assume that he is aware of these proceedings. He has dementia ...”: Tcpt, 13 May 2020, p 5(04–07). Jenny was appointed under an order, made on 14 January 2015, by the Guardianship Division of the New South Wales Civil and Administrative Tribunal: Ex JS2, Tab 5.

There was evidence that Barry made a Will on 18 July 2013: Ex JS2, Tab 4, the salient terms of which are that he revoked all previous testamentary dispositions; he appointed the NSW Trustee and Guardian as executor and trustee; he gave a pecuniary legacy of $10,000 to Karen; he gave a pecuniary legacy of $50,000 to each of Jenny’s children, together with his interests in Commonwealth Bank and IGA; and he devised a property, at Dorrigo, to Jenny and to Patricia Kathleen Sparks, a friend; and he left the residue of his estate, after the payment of estate liabilities, to Jenny, absolutely.

In Hall v Hall (2016) 257 CLR 490 at 506–507 [54]–[55]; [2016] HCA 23, French CJ, Gageler, Keane and Nettle JJ wrote, at [54]–[55] (albeit in the context of family law proceedings), that:

As will be read, “the financial resources … both present and future, of the applicant” is one of the matters that may be considered by the Court: s 60(2)(d) of the Act.

A financial summary prepared by the NSW Trustee and Guardian, based on annual accounts received on 30 April 2018 and detailed in a letter dated 12 December 2018 to the Registrar of the Guardianship Division of the NSW Civil and Administrative Tribunal (Ex JS2, Tab 5), reveals that Barry had assets with a total value of almost $490,000, being real estate at Dorrigo ($84,900), shares ($21,837 and $4,641), and moneys on deposit ($356,063 and $22,188). He had an annual income, from different sources, being from investments ($2,590), pensions ($5,774) and superannuation ($12,166) totalling $20,530, and annual expenditure of $32,801.

There was not very much information about Barry’s current financial circumstances, although there is no dispute that he now lives with Jenny and her family, which has the financial consequence that a number of his expenses have been reduced. In addition, a comparative market appraisal prepared by Elders Real Estate, on 11 May 2020, estimates that, as at that date, the Dorrigo property had an estimated value of between $125,000 and $150,000. A market appraisal by Ray White Real Estate, on the same date, provides an “achievable sale range” of between $100,000 and $110,000: Ex JS2, Tabs 9–10.

Jenny has primary responsibility for the care of Barry. He came to live with her after she received “complaints of him urinating in public, of grabbing foodstuffs from bins and of him standing on … roadways” from the operator of the caravan park where he had been living previously.

Jenny states, at par 4 of her affidavit, sworn on 3 April 2020, that:

Jenny stated that caring for Barry “in the family home is not a permanent fix”. Despite the assistance of a carer for 16 hours each week, she describes the situation as “too exhausting physically” and, one might tend to think, although not stated but having regard to her detailed description of a typical day’s care for him, emotionally too: Affidavit, Jenny Ann Armitage, 3 April 2020 at par 6.

In this case, I am satisfied that the terms of Barry’s Will, which will take effect upon his death, will result in Jenny having a source of financial support that she can reasonably expect will be available to her to supply a financial need or deficiency. Whilst it was not correct to state, as the deceased did, that she would receive the whole of Barry’s estate, Jenny will receive a significant share thereof.

The principles to be applied are well known and I have dealt with them in many cases. For the benefit of the parties, as it is important that they are able to following the reasoning and for each to be satisfied that I have considered the evidence and the submissions put on their behalf, I shall repeat the relevant principles as I have done in other cases.

The starting point is s 59(1) of the Act which confers jurisdiction on the Court to make a family provision order in relation to the estate of a deceased person if, relevantly, the Court is satisfied that:

The question whether the deceased has made adequate provision for an applicant is a question of objective fact, the determination of which involves an evaluative judgment: Singer v Berghouse (1994) 181 CLR 201 at 210–211; [1994] HCA 40 at [20]–[24] (Mason CJ, Deane and McHugh JJ); White v Barron (1980) 144 CLR 431 at 434–435, 443; [1980] HCA 14 at [5] (Barwick CJ, albeit in dissent in the result), [8] (Mason J).

This question, provided for by s 59(1)(c) of the Act, has been described as “the jurisdictional question”: Singer v Berghouse at 209–21. In answering the question, the Court will consider whether it can make an order for provision for the maintenance, education or advancement in life of a particular applicant. If it is not so satisfied, 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: see McCosker v McCosker (1957) 97 CLR 566 at 575; [1957] HCA 82 (Dixon CJ and Williams J); Singer v Berghouse at 209–210; Vigolo v Bostin (2005) 221 CLR 191 at 200–201 (Gleeson CJ), at 219 (Gummow and Hayne JJ), at 227–228 (Callinan and Heydon JJ); [2005] HCA 11 at [16], [75], [112]; Tobin v Ezekiel [2012] NSWCA 285, at [70] (Meagher JA, with whom Basten and Campbell JJA agreed).

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 applicant is an eligible person, and that adequate provision for the proper maintenance, education or advancement in life of the person 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. This part of the process arises under ss 59(2) and 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.

As the majority (Mason CJ, Deane and McHugh JJ) observed in Singer v Berghouse at 210, each of these “twin tasks” involves similar considerations, because, in each, the Court has to assess what is the “proper” level of maintenance and what is “adequate” provision.

Importantly, the question of the inadequacy of provision is to be assessed at the time when the Court is considering the application: s 59(1)(c) of the Act. This does not mean, however, that considerable weight should not be given to the assessment of a capable testator, who has given due consideration to the claims on her, or his, estate: Sgro v Thompson [2017] NSWCA 326 at [6] (Payne JA). The basis upon which the evaluative judgment is to be undertaken is unrestricted. There is no automatic entitlement to provision stipulated by the Act, and the deceased’s Will applies unless a specific application is made, and acceded to, by the Court.

Relevantly, other than by reference to the provision made by the Will 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 the 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 made for the applicant in the Will of the deceased, 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 by the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education or advancement in life of the applicant.

“Provision” is not defined by the Act, but it was noted in Diver v Neal at [34] (Basten JA, Allsop P and Ipp JA agreeing), 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”.

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(1) Australian Journal of Legal History 5, 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) 35 WAR 127 at 145 [72], 145–146 [77]; [2007] WASCA 235 at [72], [77] (Buss JA, Pullin JA agreeing), which seems to invite more subjective criteria.

In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19, Dixon CJ (McTiernan J agreeing) at 19, pointed out that the words “adequate” and “proper” are always relative and that what the testator regarded as “superior claims or preferable dispositions” is a relevant consideration:

In Goodman v Windeyer (1980) 144 CLR 490 at 502 [18]; [1980] HCA 31 Gibbs J (as his Honour then was) (Stephen and Mason JJ agreeing) at [18], wrote:

In Vigolo v Bostin at [114], Callinan and Heydon JJ wrote:

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

In Palagiano v Mankarios [2011] NSWSC 61 at [72], White J (as his Honour then was) 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 “[t]here are no definite criteria by which the question can be answered”.

White J, in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253 at 283–284 [123]; [2013] NSWSC 522, wrote, at [123]:

The word “maintenance”, and the phrase “advancement in life”, is not defined in the Act.

In Vigolo v Bostin, Callinan and Heydon JJ, at [115], commented:

In Alexander v Jansson (2010) 6 ASTLR 432 at 440 [18]; [2010] NSWCA 176, Brereton J (Basten JA and Handley AJA agreeing), wrote, at [18]:

In McCosker v McCosker at 575; [9], Dixon CJ and Williams J wrote:

In Bartlett v Coomber [2008] NSWCA 100 at [50], Mason P (Hodgson JA agreeing) wrote:

Whether the disposition of the deceased’s estate is not such as to make adequate provision for the proper maintenance, education or advancement in life of the applicant will always, as a practical matter, involve an evaluation of the provision, if any, made for the applicant on the one hand, and the applicant’s “needs” that cannot be met from her, or his, own resources on the other: Hunter v Hunter (1987) 8 NSWLR 573 at 575 (Kirby P, Hope JA agreeing). This statement is not intended to suggest that an applicant’s “needs”, when compared with the provision made for him, or her, out of the estate, should be the dominant consideration. The existence, or absence, of “needs” which an applicant cannot meet from her, or his, own resources, will always be highly relevant, and quite often decisive: Singer v Berghouse at 227 (Gaudron J, albeit in dissent in the result); Bkassini v Sarkis [2017] NSWSC 1487 at [296]–[297] (Robb J).

In Devereaux-Warnes v Hall (No 3), at 146 [81]–[84], Buss JA (as his Honour then was) wrote:

However, as will be read, s 60 of the Act invites the Court to have regard to various matters, including, but not limited to, financial resources and financial needs: s 60(2)(d). If the Court does so, as will also be read, one of the purposes for which that is done is for determining “the nature of any [family provision] order”: s 60(1)(b) of the Act.

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.

Of course, “need” is a relative concept: de Angelis v de Angelis [2003] VSC 432 at [45] (Dodds-Streeton J). It is different from “want” and does not simply mean “demand” or “desire”. The latent difference between the words was explained by Lord Neuberger (the former President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (M) v Slough Borough Council [2008] 1 WLR 1808 at 1825 [54]; [2008] UKHL 52 at [54]:

In Boettcher v Driscoll (2014) 119 SASR 523 at 530 [41]; [2014] SASC 86 at [41], David J added:

However, no narrow view of what is encompassed by the concept of “need” is to be adopted. In Gorton v Parks (1989) 17 NSWLR 1 Bryson J (as his Honour then was), at 8, commented that “[i]t does not seem possible to give a complete or exhaustive statement of the concept”.

Yet, as Basten JA wrote in Chan v Chan, at [22]:

Callinan and Heydon JJ emphasised in Vigolo v Bostin at 231 [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. Adequacy is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The whole of the context must be examined.

Sackville AJA (Macfarlan and Ward JJA agreeing) pointed out in Smith v Johnson (2015) 14 ASTLR 175 at 194 [84]; [2015] NSWCA 297, at [84], that:

If the Court is satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, it determines whether to make an order for provision and what provision ought to be made.

Section 60 of the Act provides:

It can be seen that s 60(2) enumerates 15 specific matters described by Basten JA in Andrew v Andrew (2012) 81 NSWLR 656 at 665 [37]; [2012] NSWCA 308 at [37], as a “multifactorial list”, and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380 at [123], as “a valuable prompt” to which the Court may have regard, together with “any other matter the Court considers relevant”, for the purpose of determining whether the applicant is an “eligible person”, whether a family provision order should be made, and if so, the nature of any such order.

In Chapple v Wilcox (2014) 87 NSWLR 646 at 649 [7]; [2014] NSWCA 392 at [7], Basten JA wrote:

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 each 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 are, necessarily, of decisive significance, and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender. The sub-section makes clear, since other matters may be taken into account, that the jurisdiction is not exclusively needs-based. Ultimately, it is for the Court to determine what weight should be given to the relevant factors.

Furthermore, the sub-section also does not say how the matters listed are to be used to determine the matters identified in s 60(1) of the Act. 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) of the Act, those matters are not identical.

A reference to some of the matters in s 60(2) of the Act 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) of the Act.

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

The Court should, and does, give considerable weight to the deceased’s wishes in recognition of the better position in which he was placed. Of course, this is subject to the qualification that the Court’s determination under ss 59(1)(c) and 59(2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased’s death or will: Slack v Rogan; Palffy v Rogan at [127] (White J).

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:

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

As was written by White JA (McColl and Payne JJA agreeing) in Sgro v Thompson at [86]:

This passage confirmed that the Act is to be applied according to its terms, and is not confined by notions of reluctance to interfere with freedom of testation. As was stated by Brereton JA (Simpson AJA agreeing) in Steinmetz v Shannon (2019) 99 NSWLR 687 at 708 [97]; [2019] NSWCA 114 at [97]:

Accepting that no two cases will be exactly alike, as each case turns on its unique constellation of facts, 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.

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

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

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

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

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

The only other claimant on the bounty of the deceased in the present case is Karen. She, of course, is not an applicant for provision. She does not have to prove an entitlement to the provision made for her in the deceased’s Will, or otherwise justify such provision.

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

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

Of course, 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) at 30–31; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 at [269]–[274] (Ward J).

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

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

However, none of the other beneficiaries named in the deceased’s Will have to prove an entitlement to the provision made for her, or him, or justify, otherwise, such provision. Nor does each have to explain the decision by the deceased to make the provision that she did for each in the Will.

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

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

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

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

I have, in many cases, referred to some general principles in relation to a claim by an adult child of the deceased. I repeat the principles that I have set out:

A very similar statement of these principles, which I set out in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [111], was cited with approval in Chapple v Wilcox at [21] (Basten JA); and was referred to, with no apparent disapproval (although in that appeal there was no challenge to the correctness of those principles), in Smith v Johnson at [62] (Sackville AJA).

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

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

It is necessary for the Court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the basis for a family provision order has been established. Every case is different and, I reiterate, must be decided on its own facts, not according to idiosyncratic notions of fairness. Cases involve different classes of eligible person, different factual circumstances, and different competing claims by others upon the estate of the deceased.

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

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

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

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

In addition, the formulation of principles, whilst not intended to “constitute a fetter upon the discretion not intended by the legislature”, may assist in avoiding arbitrariness and capricious decision-making, and may serve the need for consistency that is an essential aspect of the exercise of judicial power under the Act: see, generally, the discussion of Mason CJ in Latoudis v Casey (1990) 170 CLR 534 at 541–542; [1990] HCA 59 and earlier comments made by his Honour and Deane J in Norbis v Norbis (1986) 161 CLR 513 at 519; [1986] HCA 17.

I next set out some facts, by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come in relation to areas of dispute between the parties. 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, at [124], but in order to complete the recitation of facts that will assist me to determine the questions that must be answered. Facts previously stated above will not be repeated unless essential.

Jenny is one of two children of the deceased. Both lived with their parents, in Melbourne, when they were young. Their parents separated in about 1990. Jenny remained living in Melbourne until she and Gary moved to Mackay in 2006. She and Gary lived with the deceased, in 2003, for about 13 months after the birth of their first child, Jake: Affidavit, Jenny Ann Armitage, 11 March 2019 at par 10.

Karen continued living with the deceased apart from some of the time during which Jenny and her family lived there. It is clear that she had a far closer relationship with the deceased than Jenny did.

Upon, or shortly after, her retirement, in late 2012, or early 2013, the deceased moved from Melbourne to Mackay, to live with Jenny and her family. Although there is some dispute about the duration of her stay, it is clear that the deceased lived there for some months. Jenny recalls, in her affidavit sworn on 11 March 2019, at par 23, that:

After moving out of Jenny’s family home, the deceased lived with Karen for a few weeks during which time Jenny maintained contact with the deceased. The deceased returned to take care of Jenny and Gary’s animals, whilst they were on holiday, and she remained living there until her relocation to Lismore: Affidavit, Jenny Ann Armitage, 8 August 2019, par 21.

Karen married Robert, in Mackay, in October 2013. It was accepted by Jenny that her relationship with Karen deteriorated in the time leading up to, and following, Karen’s marriage.

The deceased moved to a property in Lismore that she had inherited some time earlier from her mother, Dorothy. She gave different reasons for doing so to Jenny, than those she gave to Karen. Jenny says that the deceased told her that she owned a property in Lismore; that she had extended family and friends from her childhood there, namely, her cousin Mary Mulley with whom she was particularly close, and that she was worried for Karen (who lived in Brisbane). Karen said that Jenny was the cause of the deceased leaving Mackay, and that there was an estrangement between them following her departure.

I do not attribute the deceased leaving Mackay to any encouragement given by Karen. Ms Patricia Sawyer, the deceased’s sister in law, who was called as a witness in Karen’s case, gave evidence that the deceased “just felt - she felt that Jenny had changed, that Jenny was not the, the friendly daughter that she thought she was and she was having a bit of trouble living in the house with Jenny and her family”: Tcpt, 14 May 2020, p 124(21–23).

Jenny acknowledged, and the summary of telephone calls set out in pars 54 – 58 of her affidavit, sworn on 8 August 2019, confirmed that she had, on average, between one and three telephone calls, of various lengths, per month with the deceased. Jenny stated, at par 56(k):

Separately, Jenny stated at par 55(t), that:

There was an exchange of photographs, mostly of Jenny’s children, as well as letters and cards, birthday, and Christmas, gifts. Jenny stated at par 39 of her affidavit, sworn on 11 March 2019, that:

At par 43, of the same affidavit, she stated:

A birthday card sent by the deceased to Jenny in early 2017 annexed to Jenny’s affidavit, sworn on 8 August 2019, and marked annexure “JAA.6”, by way of example, reads :

Jenny did see the deceased, shortly before she died, upon first learning of her illness, in February 2018 when she was in hospital in Brisbane. However, the evidence certainly reveals that Jenny only visited the deceased following her move to Lismore, in the five years that she lived there, only once, in January 2015, and even then, the visit was for only for 2 hours: Affidavit, Patricia Sawyer, 24 July 2019 at par 16.

Ms Sawyer was asked, in cross-examination, whether the deceased had ever told her that Jenny did not appear to have an interest in maintaining a relationship with her and she said that the deceased had done so, stating that the deceased “was disappointed that Jenny didn’t talk to her more often or come and visit her more often, that she only ever talked to her a couple of times a year”: Tcpt, 14 May 2020, p 123(22) – p 124(07).

Whilst I accept that there was not a complete estrangement between them, I am satisfied that the relationship between the deceased and Jenny was not as close as it had been. This is confirmed by the fact that the deceased did not tell Jenny of her diagnosis and medical condition.

However, as Sackville AJA cautioned in Foley v Ellis at [102]:

Karen was also cross-examined about her own relationship with Jenny. However, in my view, this is really irrelevant to the questions that the Court must determine in these proceedings. There is no reason to suggest that any provision made for Jenny will bind her to Karen.

Jenny submitted, in writing, that the deceased “owed me the obligation of a mother to her daughter”. Her counsel submitted that “the deceased’s obligation extended to assisting the plaintiff to have a leg up in life”: Tcpt, 14 May 2020, p 167(50) – p 168(02).

In Flathaug v Weaver [2003] NZFLR 730 at 737 [32]; (2003) 22 FRNZ 1035 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, by Hansen J, in delivering judgment for the Court, in this way:

I have otherwise dealt with the general principles on this topic earlier in these reasons.

As discussed earlier in these reasons, the value of the estate out of which an order could be made, taking into account the costs of the proceedings, will be in the order of $433,200. It is an estate of relatively modest value. Earlier, I have referred also, to the partial distribution made to Karen and to her receipt of the death benefits.

I have referred to these two matters together as the evidence was effectively combined.

As at the date of the hearing Jenny is 56 years old. She is married to Gary and as earlier stated, they have children aged 18 and 15 years.

At par 2 of an affidavit, sworn on 5 May 2020, Jenny sets out estimates of her, and Gary’s, financial resources as at that date. They are summarised as follows:

In the same affidavit, at par 4, Jenny set out their current liabilities, which may be summarised as follows:

Jenny is currently unemployed. She had previously worked from home, casually, retouching photographs, for some time after the birth of her son in 2002, and on Saturdays, at her friend’s hairdressing salon in Port Melbourne. At par 41(a) of her affidavit, sworn on 8 August 2019, she states that “[she] probably didn’t earn enough to declare or complete a tax return.” On relocating to Queensland, Jenny stated that she worked as house cleaner, which work she described in cross-examination as “very spasmodic and cash in hand” (Tcpt, 13 May 2020, p 55(07)) and as a babysitter, and at a local chemist three shifts per week. She had volunteered at her children’s school, in art and reading classes, as well as the school library, for which she states that her “contributions were recognised with a reduction in school fees”.

Jenny had been “help[ing] out” at Kitten Vintage, a shop on Harbour Road, Mackay a few times per week for which she was not paid but through which she had been selling an assortment of objets and curios that she had, mostly, accumulated over the years, or found at garage sales and second-hand shops. For the sale of these items, she would pay the proprietor a commission, and receive other items at cost price. She has also sold two paintings, with some other pieces, presently, on consignment. In respect of sales for the period 11 October 2019 to 10 January 2020, she states that she received $1,480, which amount she averaged to $112 per week.

Jenny deposed, however, at par 15 of her affidavit, affirmed on 3 April 2020, that, in early March 2020, she “stopped going into Kitten Vintage” just prior, it would seem, to the temporary closure of the business, on 22 March 2020, in response to the COVID-19 pandemic. Although Jenny regards this to have had “some impact” financially, it would seem that putting to one side the impact of the pandemic and the relatively modest amounts earned, that this a result of, at least in part, her choice reflected in her statement that “she do[es] not need that extra activity at present”. This conclusion is reinforced by what follows, in that during that same period, Jenny states that she “did a casual cleaning job for a friend” for which she received $150, at present, however, “she do[es] not have the time to pursue casual cleaning for friends”: Affidavit, Jenny Arm Armitage, 3 April 2020 at pars 15–16.

Gary is in good health despite having suffered a work-related electrical injury in July 2007, for which he “was off on WorkCover for about twelve months unable to work.” Consequent upon which, in July 2008, the General Medical Assessment Tribunal – Psychiatric assessed his symptoms as consistent with the diagnosis of Post-Traumatic Stress Disorder. He received Centrelink benefits for some time thereafter, and a compensation settlement ($407,028, after payment of legal fees) in April 2009, the proceeds of which were spent upon the deposit on the family home ($220,000); the family car ($45,000); a gift to Gary’s parents ($15,000); payment to the deceased (between $6,000 and $8,000); accumulated ATO and credit card debt ($40,000); home renovation and repairs ($20,000); and to fund daily living expenses: Affidavit, Jenny Ann Armitage, 8 August 2019 at par 40.

Gary is an electrician. Since November 2017, he has been employed as an Electrical Maintenance Supervisor at CS Energy’s Power Station in Biloela, a rural town in Central Queensland and an approximately six hour drive from Mackay. His total taxable income for the financial year ending 30 June 2019 was $142,920.

At par 6 of her affidavit, sworn on 5 May 2020, Jenny estimated her, and Gary’s, combined net weekly income to be $3,109, comprising Gary’s earnings ($2,360) and rental income, less agent’s fees, on their two investments properties ($749). Jenny estimated their joint average weekly expenditure to be $3,264.

Although the Bucasia property was untenanted for an unspecified period, as at the date of the swearing of her 5 May 2020 affidavit, Jenny states that a six month lease had “recently” been entered for $485 per week less agent’s fees: par 5.

Despite being “concerned with [her] debt level”, it is to be noted that there was no evidence that there had been any default under any of the mortgages referred to, even though their monthly mortgage repayments are approximately $6,586: par 27. Jenny stated, at par 28, that she and Gary had sought advice about refinancing, to which they “were told that the debt secured over our real properties was more than the estimated value.” Upon consideration of the email received from their mortgage broker to which Jenny referred, and which was annexed to her affidavit sworn 8 August 2019 and marked “JAA.3”, that advice appears to have been sought between October and November 2018. There is no evidence of any further enquiries being made subsequently. That might be explained, on one view, by the fact that in the same email dated 29 November 2018, the mortgage broker thought “it best to wait for the inheritance to come through … so you can reduce some of the exposure”.

There are also a number of repairs and maintenance issues relating to failed air conditioners and the replacement of a swimming pool liner, currently underway and in respect of which Jenny, at par 22 of her affidavit sworn on 3 April 2020, stated $4,500 has been paid, and a balance of $5,100 is still outstanding. Other identified maintenance issues relate to the replacement of kitchen appliances and guttering, which Jenny estimates will amount to approximately $4,000.

There is really no explanation given as to why Jenny and Gary have not sold at least one of the investment properties to reduce their level of debt. It is likely that Gary is, or both are, receiving a tax benefit as a result of negative gearing. As was submitted by counsel for Karen, it is a lifestyle choice that Jenny, and Gary, have made and their position could be improved if they sold one, or both, of the investment properties: Tcpt, 14 May 2020, p 173 (43) – p 174(27).

It is also to be remembered that some, or all, of the debts are joint debts, albeit that each of Jenny, and Gary, may be jointly and severally liable.

Jenny also gave evidence that she had, albeit unsuccessfully, attempted to obtain Centrelink benefits as a carer for Barry. She maintained that she will continue to apply for a carer’s allowance, which if granted, will yield approximately $130 each fortnight, and possibly “significant Healthcare or Pension card discounts”: Jenny Ann Armitage, 3 April 2020 par 24. However, in the course of cross-examination, by counsel for Karen, she revealed (Tcpt, 13 May 2020, p 56(05–45)):

In respect of any financial burden incurred by Barry’s presence as a member of their household, Jenny deposes that “[she does] not charge board or rent, for his transport or laundry or meal preparation or care generally”. In her own assessment, however, she makes the qualification that “[f]inancially I have not gained or lost a result of dad living with me. He pays for his own foodstuffs and pays a contribution towards the household power bill”: Jenny Ann Armitage, 3 April 2020 at par 14.

Other than discharging their liabilities, in respect of future needs, Jenny stated further, at par 25, “[we] are putting off the re-stumping work required at home. The home dishwasher needs to be replaced. The car needs a service”.

It should not be forgotten that Jenny’s financial resources include her expectancy interest, as the principal beneficiary named in Barry’s Will.

During the course of the hearing, I referred to the benefits that Jenny is likely to receive from Barry’s estate as a financial resource because it is accepted that Barry is unable to change his Will. Whilst doing so, I accept that it is not known when any entitlement will crystallise, or what the value of the part of his estate that passes to Jenny will be, bearing in mind how much of his assets will be absorbed by either his general, or care, expenses.

However, at the date of hearing, it seemed to be accepted that Jenny could receive between $200,000 and $300,000: Tcpt, 13 May 2020, p 88(30–32). The submission made by counsel for Jenny was that “it’s an expectancy with some degree of uncertainty about it. It’s not a financial resource which is going to do anything for the plaintiff’s financial circumstances now …”: Tcpt, 14 May 2020, p 162(44–50). Respectfully, for the reasons set out earlier, I disagree. I accept, however, that she does not have immediate access to Barry’s assets to satisfy her personal debts.

Jenny’s counsel, in his written submissions, put:

He continued:

During oral submissions, counsel for Jenny submitted, at Tcpt, 14 May 2020, pp 167 (11–32); 169 (27–28):

Karen is 50 years of age. She was, from 2015 up until her resignation on 27 April 2020, employed as a Medical Administration Officer for the Division of Surgery and Perioperative Services at Queensland Children’s Hospital (formerly known as the Lady Cilento Paediatrics Hospital) in South Brisbane. Her net annual income was, on average, $48,790. She has a Diploma of Biological Science from Swinburne University, completed in 2002, and a Bachelor of Applied Science (Medical Biotechnology) from the Royal Melbourne Institute of Technology, completed in 2004.

In an affidavit affirmed on 1 May 2020, Karen set out, as at that date, her sole assets and liabilities, as well as those she holds jointly with Robert (from whom she separated on 27 December 2019, but with whom she shares the home in which they live). Her financial resources may be summarised as follows:

Karen conceded, in cross-examination, that if the properties were sold, and the net proceeds divided equally between her and Robert, that she would receive at least half that amount, possibly greater, because of her contribution to the purchase of the Olinda property, from the interim distribution received from the deceased’s estate: Tcpt, 14 May 2020, p 141(22) – p 143(02).

Between the deceased’s death, on 15 March 2018, and although two dates were stated in the evidence, either sometime in August 2018, or late February 2019, Karen took a period from work to grieve the loss of her mother and during which time she “tended to [her] executorial duties”. She stated that after using all of her accrued leave entitlements, she was in receipt of a limited income during this period. Her net taxable income for the year ending 30 June 2018 was $36,475.

Presently, Karen is living off her savings. She estimates that she will require about $5,000 to relocate to the deceased’s home in Lismore, and provision to cover her daily living expenses, including mortgage repayments, after which time she intends to find employment. The Lismore property requires significant repairs and renovations, which Karen estimated will cost between $80,000 and $100,000. She also stated that she requires dental crowns, which she estimated will cost $5,100. On what basis, Karen has calculated the amounts, is unclear, as no quotations were annexed to her affidavit. She was not cross-examined on these matters and, in any event, there is no reason not to accept her evidence in this regard. Although unquantified, Karen also states that she also needs an amount to cover the exigencies of life. I accept that to be the case. She will, after all, then be unsupported by any other person.

At par 26 of her affidavit, affirmed on 1 May 2020, Karen states:

A letter to Karen’s solicitors, dated 21 January 2020 and marked Ex D1 in these proceedings, explained in Robert’s words, the reasons for his refusal:

Karen deposed in relation to Robert’s assets, that he had acquired assets amounting to approximately $33,800 during their marriage. Prior to their marriage he had acquired a town house in Brisbane, presently tenanted for $485 per week, which she estimated to have a value of $439,000; a unit in Mackay, presently untenanted, which she estimated to have a value of $200,000; household furnishing of $6,500 and an undisclosed interest in a company that holds property in Otago, New Zealand. It follows that the total of the assets acquired by Robert, prior to his marriage to Karen, is $645,000. Karen estimates the combined mortgage liabilities to be $692,000 in respect of those properties.

Karen stated that “Robert accumulated his assets prior to our marriage in 2013. We have always kept our finances separate except for jointly owning our home and sharing most of the household expenses (Affidavit, Karen Francis Fraser, 1 May 2020 at par 29) and that “[she had not] sought full advice … about settlement” (Tcpt, 14 May 2020, p 142(50) – p 143(04)) she confirmed the following, when cross-examined, by counsel for Jenny (Tcpt, 14 May 2020, p 140(36–50)):

Earlier, in the course of cross-examination, Karen was asked (Tcpt, 14 May 2020, p 146(45) – p 147(04)):

Whilst it is not necessary, to determine as part of these reasons, what Karen, may, ultimately, receive in any property adjustment proceedings between her and Robert, I take into account that she may receive some part of their matrimonial property.

I have, otherwise, not found it necessary to have regard to any information pertaining to Robert’s health, or employment, save as to note that he is currently unemployed and as at the date of the hearing he resides under the same roof as Karen.

Jenny has given no evidence of any adverse health issues (apart from stating that she has “had some health issues from time to time. Primary amongst these were broken toes”: Affidavit, Jenny Ann Armitage, 8 August 2019 at par 41) or any evidence of any physical, intellectual or mental disability, suffered by her. In my view, the complaints do not affect her capacity to work.

Karen experienced difficulty in conceiving a child, for which she had completed three, albeit unsuccessful, cycles of IVF Treatment, which she ceased, on the basis of medical advice, at the age of 46. As a result of those treatments, in particular, Karen states that she has experienced high blood pressure, for which she was at least up until her affidavit, sworn on 18 June 2019, prescribed daily medication.

Apart from a period, between 27 March 2020, and at least until 6 April 2020, in which she was hospitalised at The Prince Charles Hospital in Chermside, Karen states that she is in “fairly good health”. A medical certificate, marked annexure A, to her affidavit affirmed on 1 May 2020, dated 6 April 2020, confirmed that Karen was unable to attend work from the date of her admission to 20 April 2020 due to a medical condition.

As earlier stated, Jenny is 56 years old.

Counsel for Jenny, in his written submissions, acknowledged that Jenny “did not make substantial contributions to the deceased’s estate, or to her welfare for which adequate consideration was not received”.

It is clear that Karen played the principal, almost sole, role, in the welfare of the deceased, particularly in the last few years of the deceased’s life. They had also lived together for many years. She had provided the deceased with emotional, practical and financial support.

Jenny acknowledged that she was pleased that the deceased had Karen as support and that she could confide in, and seek advice from, her. Jenny also acknowledged that Karen attended to household repairs, maintenance and renovations and had made the deceased’s life more comfortable.

The deceased’s largest asset had been her half share of the Burwood matrimonial home, and Karen had assisted with maintenance, repairs, renovations and removing their father’s clutter, and had also prepared the property for sale. Karen had taken unpaid leave and had later travelled, regularly, on weekends, to Lismore, to assist the deceased after the Lismore floods. She had also taken leave to care for the deceased during her final days.

Jenny acknowledged that during her lifetime, the deceased gave to her a wedding dress; “surprised her with a harpist at her wedding”; lent her between $1,000 or $2,000 (which was repaid) and, shortly before her death, gave her a silver brooch.

Of course, Jenny receives a pecuniary legacy of $30,000 and some personal effects out of the estate of the deceased.

I have dealt with the deceased’s testamentary intentions, and statements made by the deceased, earlier in these reasons. It is clear from what I have written that not all of the matters identified by the deceased accurately reflected the true position.

Jenny was not being maintained by the deceased before her death and had not been maintained for many years prior to her death.

Section 72 of the Family Law Act 1975 (Cth) provides that a party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately. Jenny’s husband, Gary, is liable to support her.

As has recently been written in Blendell v Blendell; Blendell v Blendell [2020] NSWCA 154 at [34], by Meagher JA (with whom Gleeson and Leeming JJA agreed):

Counsel for Karen submitted that the Court should take into account that by commencing the proceedings for family provision relief in Queensland, and having the estate incur substantial costs Jenny caused a diminution in the value of the deceased’s estate in circumstances where there was no property in Queensland and no other connection to Queensland. However, as acknowledged, this was the “error” of Jenny’s legal representatives, rather than of Jenny herself. Despite this, the fact remains that the estate of the deceased has been reduced as a result of the costs of the Queensland proceedings.

Counsel for Jenny, in his written submissions stated:

He did not make any subsequent submissions on the topic.

Nor could he, since there could be no criticism of Karen, or of the nature and quality of her relationship, respectively, with, and behaviour towards, the deceased. It is not necessary to further repeat her character and conduct as she is the principal chosen object of the deceased’s bounty. It is clear that she had a close and loving relationship with the deceased.

A matter that speaks in favour of Karen’s conduct is her suggestion to the deceased that some provision should be made for Jenny rather than omitting her entirely as an object of testamentary bounty.

It was not submitted that the conduct of any of Jenny’s family should be considered.

This is an irrelevant matter in this case.

There are no other matters that I consider relevant.

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

Having established eligibility, and that the proceedings were commenced within time, relevantly, the Court must determine whether, at the time the Court is considering the application, adequate provision for the proper maintenance or advancement in life, of Jenny, has not been made by the Will of the deceased.

Some provision in the Will of the deceased has been made, which means that this is not a case where a child of the deceased has been excluded, completely, from participation in a parent’s estate. The jurisdiction is designed to provide for an eligible person where inadequate provision is made for her, or his, maintenance, education or advancement in life: Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 at 29 (Kirby P).

Judged by quantum, and looked at through the prism of her own financial resources and needs, adequate provision for Jenny’s proper maintenance or advancement in life could be seen as not having been made by the Will of the deceased. As stated above, the test established by s 59 of the Act has regard not only to what is “adequate” by reference to the applicant’s needs, but also to what is “proper” in all the circumstances of the case.

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

When determining whether adequate provision has been made for the proper maintenance, education or advancement in life of the applicant, what is “adequate” is assessed by reference to, inter alia, the size of the estate, the needs and claim of the applicant, the relationship of the applicant and the deceased, and the need and claim of other persons who have a legitimate claim upon the bounty of the deceased. I have dealt with all of these matters above and have considered them in reaching my conclusion that some additional provision should be made for Jenny.

Whilst I have borne in mind that Jenny’s relationship with the deceased was not as close as the deceased’s relationship with Karen, and that there may have been reasons for the deceased’s disappointment in the irregularity of contact with her daughter, I also remember that Jenny and her family lived geographically distant from the deceased for a few years before the deceased’s death, and also that Jenny had two minor children to look after.

As stated, the term estrangement does not describe the conduct but the nature of the relationship which results from the attitudes or conduct of one or both of the parties: Andrew v Andrew at [666] and [668]. In any event, whilst any estrangement is a relevant factor to consider, including the causes thereof, its existence is not determinative: Burke v Burke at [95] and [103]. In this case, I do not consider that the deceased and Jenny were estranged.

As I must, I also have regard to, and respect, the deliberate scheme of testamentary dispositions made by the deceased as a capable testatrix. As stated above, the deceased’s decisions reflected in her Will should not merely have a prima facie effect, the real dispositive power being vested in the Court. However, not unnaturally, they are based on the sole perspective of the deceased.

Having read, and heard, the evidence, I am satisfied that the deceased’s feelings of disappointment, should not be decisive in the conclusions that I reach. Some of what the deceased wrote is understandable from the deceased’s perspective, but not entirely justifiable when one considers Jenny’s personal circumstances to which I have referred. A wise and just parent will also recognise that disharmony between parent and child is almost inevitable and that in family relationships, hurts are inflicted, or suffered, sometimes consciously, and sometimes unconsciously. Regrettably, this is a part of family life.

Furthermore, the value of the estate, whilst modest, is sufficient to make modest provision for both of the persons to whom the deceased owed some form of testamentary obligation.

I have come to the view that Jenny has established that the deceased’s Will does not make adequate provision for her proper maintenance, education, or advancement in life. The test established by s 59 of the Act has regard not only to what is “adequate” by reference to the applicant’s needs, but also to what is “proper” in all the circumstances of the case. It is not to be forgotten that she is one of only two children of the deceased and as stated by Karen at the office of the deceased’s solicitor, Jenny and the deceased had previously “shared a mother-daughter relationship”.

Of course, one should not forget the competing claim of Karen. However, she has already received $276,066 and is entitled to the residue of the deceased’s estate. Making some additional provision for Jenny will not unduly affect the financial resources and needs of Karen.

In my view, this is also a case where the community, knowing all the circumstances, would expect the deceased to have made some provision more than she did for Jenny. That conclusion does not alter when Jenny’s financial resources and needs are taken into account.

I have also borne in mind the financial resources and needs of Jenny. In my view, whilst there is some merit in counsel’s submission that she and Gary have made a lifestyle choice in regard to maintaining investment properties, which are subject to substantial mortgage debt, Jenny really does not have very much by way of her own property. In this regard, I have not forgotten what she might receive from the estate of her father, Barry, upon his death.

Taking into account all of the matters that I am required to consider, I am satisfied that Jenny has established that adequate provision for her maintenance and advancement in life has not been made by the Will of the deceased.

As Jenny has established the jurisdictional threshold, the next question is what provision ought to be made for her from the estate of the deceased. In this regard, the role of the Court is to make “adequate” provision in all the circumstances for her “proper” maintenance, education and advancement in life of an applicant: Meres v Meres [2017] NSWSC 285 at [114]; Gorton v Parks at 6. I also have considered the matters contained in s 60(2) of the Act which may be considered for the purpose of determining whether to make a family provision order.

This is a more difficult question and it involves “an instinctive synthesis that takes into account all the relevant factors and gives them due weight”: Grey v Harrison [1997] 2 VR 359 at 367 (Callaway JA, with whom Tadgell and Charles JJA agreed). It is not a scientific, or arithmetic, exercise and it is often difficult to articulate the factors which contribute to that “instinctive synthesis”. However, similar considerations as are set out above often arise.

Having regard to the size of the net distributable estate, the Court should not make an order in the amount sought by Jenny. It is simply not feasible for the Court to do so. To provide such a lump sum would exceed what, in my view, is “proper”, in all the circumstances.

My evaluative judgment should be, and has been, “guided and assisted by considering what provision, in accordance with perceived prevailing community standards of what is right and appropriate, ought be made”; and is to be undertaken assuming full knowledge and appreciation of all the relevant circumstances of the case: Andrew v Andrew at 661 [16] (Allsop P).

I have not forgotten Karen’s contributions to the deceased’s estate and her legitimate claim upon the deceased’s bounty. I have also not forgotten the need to give due regard to “what the testator regarded as superior claims or preferable dispositions” as identified in Pontifical Society for the Propagation of the Faith v Scales at 19 (Dixon CJ).

In my view, Jenny should receive, in lieu of the provision made for her in Clause 5 of the Will of the deceased, a lump sum of $135,000 out of the estate of the deceased. This amount will enable her to reduce, all of the immediate debts that she has, and, perhaps, provide a modest amount for her advancement in life. Depending upon her choice, it will not, necessarily, relieve, in part, the mortgage debts, but it does not seem to me that to do so is an obligation that the deceased had.

I am unable to determine the issue of costs. I shall allow the parties seven days to see if agreement can be reached on the question of costs, failing which written submissions on costs can be filed and served within fourteen days thereafter by the parties and the Court will then consider, and determine, that issue on the papers.

In the meantime, I shall make the following orders: