Austin v NSW Trustee and Guardian

HIS HONOUR: The Plaintiff, Adrian John Austin, a grandchild of Elizabeth Sheppard (“the deceased”), seeks a family provision order out of her estate and notional estate pursuant to the Succession Act 2006 (NSW) (“the Act”). The Plaintiff also seeks an order that his costs of the proceedings be paid. (So far as notional estate is concerned, it is accepted that there is no notional estate that needs to be considered. Accordingly, I shall, hereafter, refer only to the estate of the deceased.)

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 The Act replaces the Family Provision Act 1982 (NSW) (“the former Act”), which was repealed, effective from 1 March 2009. A family provision order is an order made by the Court in relation to the estate of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person.

The Defendant named in the proceedings is the NSW Trustee and Guardian, the executor named in the deceased’s Will, to which Probate has been granted. The principal submission made on behalf of the Defendant in respect of the claim is that it should be dismissed, with costs.

On 31 August 2016, the Defendant filed a Cross-Claim, in which an order is sought that the Plaintiff/Cross-Defendant give vacant possession of an identified property in Beverly Hills (“the Beverly Hills property”), which property was owned by the deceased at the date of her death; leave to issue a writ of possession forthwith; and damages, interest and costs.

At the commencement of the hearing, it was necessary for leave to be granted to amend the Cross-Claim to refer to the “Cross-Defendant”, rather than the “Defendant”, which leave to amend was not opposed. During submissions, counsel for the Defendant/Cross-Claimant stated that the only orders sought related to obtaining vacant possession of the Beverly Hills property: T59.21 – T59.25.

A verified defence to the Cross-Claim was filed by, or on behalf of, the Plaintiff/Cross-Defendant on 6 October 2016. I shall return to that defence later in these reasons.

During the course of discussions between Bench and bar, counsel for the Plaintiff acknowledged that there was no basis upon which the Plaintiff could oppose an order for possession or the issue of a writ of possession. It was then agreed that 28 days should be allowed for the Plaintiff to vacate possession of the Beverly Hills property. Whether the time will be calculated from the date of the conclusion of the hearing, or the date of the publishing of these reasons, was to be a question for the Court: T4.20 – T4.41; T59.15 – T59.37.

Hereafter, without intending to convey undue familiarity, with no disrespect intended, and for convenience and clarity, I shall refer to family members, after introduction, by his, or her, given name.

It is next convenient to refer to the uncontroversial factual background. To the extent that any of these facts are in issue, I am satisfied that they have been established by the evidence.

The deceased died on 2 April 2015, aged 92 years. She had been born in Harbin, China. She migrated to Australia, with her husband, Anotoly Lavrentiff, in about 1957.

There was one child of the deceased’s marriage, being Tanya Austin, who was born in October 1944. Tanya died in about 1987.

The deceased, at the time of her own death, was a widow; she was not in a de facto relationship; and she had no other child, or children, who survived her. She did, however, have three grandchildren who survived her, being David Keith Austin, who was born in September 1970; Matthew James Austin, who was born in July 1973; and the Plaintiff, who was born in August 1974. (Her fourth grandchild, Larissa Gaye Austin, was born in June 1969 but died in about 2003.)

The deceased’s grandchildren were the children of Tanya and Ivor Keith Austin. Ivor is still alive and lives in Victoria. He played no part in these proceedings.

The deceased and Anotoly separated on a date not disclosed in the evidence. The deceased, subsequently, commenced a relationship with Keith Sheppard, with whom she lived until his death in about 1990.

The deceased appears to have lived in the Beverly Hills property until about June 2008, at which time she moved into the Fairmont Aged Care Centre.

The deceased left a Will made on 3 December 2010, in which she appointed the Defendant as the sole executor. This Court granted probate of the deceased’s Will to the Defendant on 6 August 2015.

Clause 3 of the deceased’s Will provided that, after payment of estate liabilities, the whole of her estate was to pass to David, if he survived. (There was a substitute beneficiary nominated in the Will in the event that he did not survive, namely, David’s son, Lachlan, who is currently aged 17 years.)

There was no reference to the Plaintiff in the Will, and no reasons stated for excluding him (or for excluding Matthew).

A copy of the Defendant’s Will Information Form, which is in evidence, reveals that an officer of the Defendant, Andrew Tillman, visited the deceased on 3 December 2010; that he took instructions for the Will from her on that day; and that the Will was typed onto, and printed from, a laptop computer following the instructions being given by the deceased.

There is no evidence that David was present at the time of the instructions given by the deceased to Mr Tillman. I shall return to other matters revealed in the Will Information Form later in these reasons.

“Estate liabilities” were defined in Clause 10 of the deceased’s Will as including “my funeral expenses, all debts I owe when I die, all expenses my Trustee incurs in administering the estate, all charges my Trustee makes for doing the work”.

The deceased died leaving an estate in New South Wales. In the Inventory of Property attached to, and placed inside, the Probate document, the estimated, or known, value of the property owned solely by the deceased, in New South Wales at the date of death, was disclosed to be $800,860. The estate was said to consist of the Beverly Hills property ($800,000) and proceeds of a pension entitlement ($860).

In an affidavit affirmed on 24 May 2016, by the Branch Manager of the Hurstville Branch of the Defendant, the liabilities of the deceased at the date of death was said to total $15,567.

At the hearing, counsel for the Defendant tendered, without objection, a Schedule (Ex. 6), which set out the current nature of the assets and liabilities of the estate. This document revealed that the Beverly Hills property has a current value of $900,000; that the costs and expenses of sale were estimated to be $25,000; that there were costs and expenses of cleaning the Beverly Hills property, estimated to be $5,000; that there was a debt of $13,535, secured by a mortgage on title to the Beverly Hills property; that unpaid council rates were $3,499; that unpaid water rates were $1,936; that there was a debit balance in the Defendant’s ledger of $6,779; and that the Defendant’s estate commission was estimated to be $20,900.

In addition, there is said to be a liability of the estate, which liability is disputed, being a debt said to be due to Matthew ($102,040). (There have been no proceedings brought to determine whether that is a debt presently due and payable. It is quite possible that if the dispute is not resolved between the Defendant and Matthew, there will be other litigation between those parties.)

It follows from the above, that if the disputed debt is included as a properly due and payable debt, the value of the net estate of the deceased (without deducting legal costs and disbursements of the proceedings) at the date of hearing is estimated to be $721,351. If the debt is not properly due and payable, the value of the net estate of the deceased (without deducting legal costs and disbursements of the proceedings) at the date of hearing is estimated to be $823,351.

Usually, in calculating the value of the deceased’s estate and notional estate finally available for distribution, the costs of the proceedings for a family provision order should be considered with circumspection. As Basten JA recently put it in Chan v Chan [2016] NSWCA 222 at [54]:

The Plaintiff, if successful, normally would be entitled to an order that his costs, calculated on the ordinary basis, be paid out of the estate of the deceased, whilst the Defendant, as the administrator of the estate, irrespective of the outcome of the proceedings, normally would be entitled to an order that its costs, calculated on the indemnity basis, should be paid out of the estate.

The total of the Plaintiff’s costs and disbursements of the proceedings, calculated on the indemnity basis, to the completion of the hearing, were estimated to be $44,000. His costs and disbursements, calculated on the ordinary basis, were estimated to be $34,000.

The total of the Defendant’s legal costs and disbursements of the proceedings, calculated on the indemnity basis, to the completion of the hearing, were estimated to be $60,500.

It can be seen that if these costs estimates prove accurate, and if an order for costs to be paid out of the estate were to be made, the value of the net estate of the deceased would be estimated to be either $626,851 or $728,851.

The Court was requested not to deal with how costs are to be borne until after these reasons for judgment are delivered. At that time, unless the parties are able to reach agreement, it may be necessary to hear argument about costs based upon the evidence on that issue upon which reliance is placed.

The Plaintiff filed the Summons on 29 March 2016, which is within the time prescribed for the making of an application in s 58(2) of the Act, namely not later than 12 months after the date of the death of the deceased.

Subject to the Plaintiff being an eligible person, I am satisfied that there are no other eligible persons. Even though David is not an eligible person, the Court is not entitled to disregard his interest, as he is the sole beneficiary of the deceased's estate: s 61(1) of the Act. He has given evidence of his financial and material circumstances.

There is evidence from David that the deceased appointed him as her Attorney under a Power of Attorney dated 27 April 2012, a copy of which Power of Attorney is annexed to his affidavit. That document reveals that David accepted the appointment on 2 May 2012 and that the Power of Attorney was registered on 14 May 2012.

It is next necessary to say something about the course of the proceedings. In the week prior to the commencement of the hearing, the Court was required to deal with an application for leave to serve short notice of a notice of motion, filed on behalf of David for him to be joined as a party/Defendant.

The notice of motion had been listed, at the request of the David’s legal representatives, on 7 November 2016, that is, on the Wednesday prior to the hearing, but for reasons that are unnecessary to detail, neither the Plaintiff, nor the Defendant, appeared at the time when the matter was called. As a result, the notice of motion was adjourned until the hearing, with an order that the applicant’s costs of the day be reserved.

The basis of David’s application was that “[t]he issues to be determined in these proceedings directly affect me as the sole beneficiary and I say that I am therefore the proper contradictor… I have direct knowledge of the facts and circumstances concerning the relationship between the plaintiff and my late grandmother and the circumstances concerning the plaintiff’s unauthorised occupation of the estate’s property”.

He added that “[s]hould it be necessary for me to do so, I am in a position to pay my own costs, and in any event, I accept that my joinder could cause the estate to incur the additional costs and that may affect the amount of the distributable estate to which I will be ultimately entitled…”.

Following the adjournment of the notice of motion, in an email sent by David’s counsel, on the afternoon of Friday, 4 November 2016, the Court was informed that the submissions of counsel for each of the parties were read and “re-considering the application for the joinder of David Austin … I have come to the view that it is not necessary …Accordingly, my client will not continue with that application”.

In those circumstances, at the commencement of the hearing, after informing the parties of the events that had occurred, I ordered that the notice of motion be dismissed, with no order as to costs (as neither the Plaintiff nor the Defendant made any application for costs): T1.17 – T1.34.

(David was present when these matters were adverted to and he made no application for any different orders. He remained, during the hearing, as he had made an affidavit that was read in the proceedings, and, later, he was cross-examined.)

It is regrettable that time was spent, costs were incurred, and the merits of the application were not fully considered, prior to the notice of motion having been filed and before the Court was required to deal with it.

During the course of the reading of affidavits, the Plaintiff sought leave to file in Court an affidavit affirmed 3 November 2016, of Dr Deepinder Miller, a Consultant Physician in Psychiatry. The Defendant did not object to the affidavit being filed, but objected to it being read as it had not been served until late on 3 November 2016 and because counsel had not seen it until the Friday before the hearing (4 November 2016), which then commenced on Monday, 7 November 2016.

Counsel for the Plaintiff submitted that whilst the affidavit had been served late, it did not raise any issues that the Plaintiff had not raised in his affidavit. She submitted that it did no more than confirm what he had written about his health and his history. Counsel submitted that the Defendant could not have sustained any prejudice by the late service of the affidavit.

Counsel for the Defendant objected to the affidavit because of its late service and because it raised matters that the Defendant had not had an opportunity to properly investigate, consider, or to which it could respond. In addition, she submitted that "the report … is loaded with all sorts of assumptions…”: T9.20.

Following the submissions, I asked counsel for the Plaintiff whether the Plaintiff wished to make an application for an adjournment upon terms. After taking instructions, she said that he did not wish to do so.

Having considered the matter, I formed the view that I should not permit the affidavit to be read. I stated that I would provide reasons as part of these reasons. They are:

Before turning to the statutory scheme that applies in a claim for a family provision order, it is next necessary to deal with some evidentiary matters, which, in my view, are relevant to the determination of the Plaintiff’s case and to the unreliability of some of his evidence.

In relation to conversations said to have occurred with the deceased, I must bear in mind the need for careful scrutiny to which evidence in such a case should be subjected (Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14 at 548-9 (Isaacs J)), and whilst there is no absolute legal requirement for it, I should look for some corroboration (Re Hodgson (1886) 31 Ch D 177; Day v Couch [2000] NSWSC 230; Weeks v Hrubala [2008] NSWSC 162 at [20] (Young CJ in Eq)).

It is also important to remember what Bryson AJ wrote in Zahra v Francica [2009] NSWSC 1206 at [1]:

Other than the Plaintiff’s solicitor, who swore an affidavit of costs, the only witness who gave evidence in support of the Plaintiff’s case was the Plaintiff. Importantly, it seems to me, that Matthew, with whom, it is said by the Plaintiff, he remains in regular contact, and with whom he believes he has “a strong relationship”, did not give any evidence. There was no explanation for the Plaintiff’s failure to call him as a witness in his case.

Matthew is a witness one would have expected the Plaintiff, rather than the Defendant, to call. Apart from what the Plaintiff wrote about his relationship with Matthew, there is a dispute between the Defendant and Matthew as to the amount earlier referred to, which is said to be owed to him by the estate. It follows that Matthew would not be likely to be in the camp of the Defendant, so as to make it unrealistic for the Defendant to call him.

This is significant because the Plaintiff sought to give evidence of a number of conversations with Matthew concerning the occupation of the Beverly Hills property. By way of example, he had written in his only affidavit, that he came to Sydney in 2010, from Melbourne, “primarily at the request of my brother, Matthew to look after nan’s property” and that it was Matthew who said “Why don’t you stay in Nan’s property at Beverly Hills”.

A number of paragraphs were objected to, and were rejected, because leaving aside the hearsay element, they were irrelevant to the claim made by the Plaintiff. There was no evidence that, in 2010, Matthew had any authority to request, or permit, the Plaintiff to move into, or reside in, the Beverly Hills property. Matthew may have been able to give evidence on this topic.

Even if the conversations between the Plaintiff and Matthew were relevant, and were admissible, there was no evidence that the deceased was informed, by Matthew, in 2010, that the Plaintiff was moving into the Beverly Hills property, or that she had agreed to allow the Plaintiff to do so. Again, these are matters on which Matthew may have been able to give evidence.

Also, in the Will Information Form, there is a reference to Matthew as a “Potential Claimant” who is described as “a grandson”. Next to the words “Reason for Exclusion” the following appears:

(It is important to note that the Plaintiff was not identified by the deceased as a “Potential Claimant” and included as such in the Will Information Form.)

In addition, in relation to Matthew, David gave evidence, to which I have referred, regarding the Power of Attorney granted to him by the deceased. David also gave evidence that he believed that the deceased had appointed Matthew, by Power of Attorney, on 9 May 2013, but that he had not seen the Power of Attorney. (The Plaintiff did not provide a copy of any such Power of Attorney which named Matthew as the deceased’s Attorney.)

I should also refer to Paragraph 3(c) of the Plaintiff’s Defence to the Cross-Claim, in which he referred to a written consent, made in about 2012, signed by the deceased in the presence of, and witnessed by, his friend, James Kennedy, which consent, he asserted, allowed him “to live in the house as long as he wishes”.

The Plaintiff acknowledged that he had received a Notice to Produce dated 27 October 2016 (a copy of which was Ex. 4), pursuant to which the Defendant had required (in Paragraph 1) production of the document referred to, and that neither the document referred to, or a copy of it, had been produced.

The Plaintiff endeavoured to explain the failure to produce the document. The following passage of evidence, at T16 – T17, is relevant:

Because I had some difficulty with the Plaintiff’s evidence about the failure to produce the written consent referred to in the Defence to the Cross-Claim, I asked him some questions at T25.9 – 25.48:

The Plaintiff’s counsel did not put to David, in cross-examination, that he had been shown the original, or a copy, of the document by the Plaintiff, at any time.

That the Plaintiff would not ensure that any document that would avoid David (or anyone else for that matter) requesting him to vacate the Beverly Hills property, was carefully retained, is not credible. It was an important and relevant document then, as it was at the hearing of these proceedings. To suggest that the Plaintiff “discarded it” beggars belief.

Furthermore, Mr Kennedy, one of the witnesses who was said to have attested the deceased’s signature on the alleged written consent, also did not give evidence. The Plaintiff attempted to explain the failure to call Mr Kennedy. Firstly, he said that Mr Kennedy was “not really still a friend”; secondly, that he was “in Port Kembla something, he’s a miner”; thirdly, that he had attempted to make contact with Mr Kennedy, and ask him to assist but that he “was unable to. It was outside his capacity to do, to give me any kind of help personally, being with his work” (T26.7, T27.43).

Yet, there no evidence from the Plaintiff’s solicitor disclosing attempts to contact Mr Kennedy, to have him swear or affirm an affidavit, and of a refusal by Mr Kennedy to do so. Nor was there any suggestion that a subpoena had been issued to have Mr Kennedy give oral evidence.

In all the circumstances, the Plaintiff has not satisfied me that there was any written consent of the deceased permitting him to be, or remain, in occupation of the Beverly Hills property.

Indeed, there is some contemporaneous written evidence establishing that at least in December 2010, the deceased was not even aware that the Plaintiff was in occupation of the Beverly Hills property.

A NSW Police Force COPS record entry, dated 5 June 2012 (Ex. 5/8-9) notes the following:

(If what is written in this document accurately reflects what the Plaintiff told the Police who attended, what he said is different from the evidence that he set out in the Defence to the Cross-Claim.)

In the copy Will Information Form to which reference has been made, there is a reference to the assets of the deceased, one of which is the Beverly Hills property. The following appears next to the reference:

In this case, each of Matthew and Mr Kennedy was capable of giving evidence on a number of important issues in dispute. I infer that both Matthew’s, and Mr Kennedy’s, evidence, if called, would not have assisted the Plaintiff. In addition, I am able to draw, with greater confidence, an inference unfavourable to the Plaintiff as to consent to his occupation of the Beverly Hills property, because each of Matthew, and Mr Kennedy, would be in a position to cast light on whether that inference should properly be drawn: Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8. The drawing of these inferences does not mean that it is to be inferred that his evidence would have been adverse to the evidence of the Plaintiff but rather that it would not have assisted him.

As was written in RHG Mortgage Ltd v Ianni [2015] NSWCA 56, by McColl JA (with whom Sackville AJA agreed), at [76]:

There was another aspect of the Defence to the Cross-Claim to which I should refer, which causes me to doubt the reliability of other parts of the Plaintiff’s evidence. In Paragraph 8 of the Defence, the Plaintiff admitted that “he has not paid any occupation fee, but says that he has made contributions to the property”. In the particulars to that Paragraph, he asserted, amongst other things, that the contributions included maintenance and upkeep on the Beverly Hills property being paid; and the rates and water rates being paid.

He also stated in his affidavit:

The Defendant tendered a copy of a Certificate under s 603 Local Government Act 1993 (NSW) (Ex. 1), which revealed that the rate arrears as at 30 June 2016 were $1,915.74 and that the residential rates ($1,110.93), a stormwater charge ($25) and a waste management charge ($390) were outstanding. With interest charges, the total balance outstanding was disclosed to be $3,499.98.

The Defendant also tendered a copy of a “Payment overdue – reminder notice” from Sydney Water (Ex. 2), which revealed that as at 13 September 2016, the amount overdue was $1,920.48 (plus interest of $16.39).

The Plaintiff was asked some questions about this part of the defence at T14.03 – T14.27:

Later, he asserted that he had “assumed” that Matthew had been paying the rates. Why he had made that assumption, or why he had alleged in a verified defence that such amounts were contributions made by him was not further explored.

When one evaluates critically what the Plaintiff had written and also his oral evidence, I have misgivings about accepting, as truthful, his statement that he had “misconstrued” what had been provided by the particulars of this part of the defence.

I should next mention some cross-examination of the Plaintiff about the condition of the Beverly Hills property (which seemed to relate to the part of his defence relating to his contribution referred to above).

The Plaintiff was shown a photograph (Ex. 3) of the property. He was asked whether he accepted that the photograph depicted its present state, to which he responded that he did. He agreed, also, that that the grass at the front of the house was very long but when asked about the tree over the garage being “rather overgrown”, he responded “Well, I’m not an arborist, so I can’t really say”. Yet, in his affidavit, he had given evidence that he had worked as an arborist for a couple of years. He then stated that although not qualified as such, he had had “enough experience to know whether a tree is overgrown or not”: T28.08 – T28.34.

Finally, I should refer to the Plaintiff’s evidence regarding his contact with the deceased. In the Plaintiff’s only affidavit, he stated that from the time she had moved to the nursing home, up until he moved into the Beverly Hills residence, he “came to Sydney every couple of years and visited Nan at the home”. He added that from the time he commenced living in the Beverly Hills property, until the beginning of 2015, “I visited Nan at the nursing home at least once a fortnight”.

When the Plaintiff was cross-examined, he said that he visited the deceased “as regularly as I possibly could. It wasn’t always the most comfortable thing for me to do but I did visit her often. They became less and less frequent as time progressed on”: T21.32 – T21.37.

When taken to a reference in the material produced on subpoena (Ex. 5/123), to the deceased complaining, in October 2014, that she had not had any visitors, the Plaintiff seemed to accept that he had not visited her for some time, and that when he did “it was a case of getting in and out of there just to say hello basically”: T22.22 – T22.23. He then said he remembered that he had visited her at the end of 2014 but had not visited her again until about April 2015.

Some of the nursing home records produced on subpoena and tendered are also relevant on this issue. An entry dated 6 November 2010 notes that “Grandson lives in Melbourne and comes to visit at times” (Ex 5/563). While the Plaintiff used to live in Melbourne, in cross-examination he said that this entry may, or may not, have referred to him, admitting that by that time he has been “living in Corowa [in NSW] and had been for some years” (T32). More telling is a later entry dated 24 March 2015, which notes “Husband #1 Deceased, husband # 2 deceased, daughter deceased, grandsons David and Matthew” (Ex. 5/16). Importantly, the Plaintiff is not listed as a relative known by the nursing home staff.

The Plaintiff accepted that he had not seen the deceased for a few months between about late 2013 and March 2014 (when he was undergoing rehabilitation). He also accepted what was said to be a statement by the deceased to hospital staff, recorded in December 2011, namely that the Plaintiff was her grandson, but that she “hadn’t seen him in years and wouldn’t know what he looks like now”: Ex. 5/500.

It is clear that the Plaintiff’s statement that up to the beginning of 2015, he had visited the deceased “at least once a fortnight” was not true. Nor do I accept his suggestion that in giving his evidence about the regularity of his visits, he had “averaged” those visits out.

In my view, whilst he may have visited the deceased occasionally, it was not very often and he overstated, significantly, the level of contact that he had with her.

Overall, I formed an adverse view of the Plaintiff’s credibility. The reliability of his evidence was affected by his desire to succeed in establishing an entitlement to an order for provision and to justify his occupation of the Beverly Hills property.

I shall next discuss the statutory scheme and what I have described as the general principles applicable in such cases. I discussed these matters in Sadiq v NSW Trustee and Guardian [2015] NSWSC 716. Although the subject of an appeal (which was dismissed), the Court of Appeal did not determine that any part of what I had said on the principles was in error: Sadiq v NSW Trustee and Guardian [2016] NSWCA 62. (The application for special leave to the High Court was dismissed upon the basis that any appeal would not enjoy sufficient prospects of success to warrant a grant of special leave: Sadiq v NSW Trustee and Guardian [2016] HCASL 180.) I also stated what is referred to below in Page v Page [2016] NSWSC 1218. For the benefit of the parties, I shall refer to part of what I set out in that case.

In doing so, I repeat what I have also said, in many cases including in Gray v Mather [2016] NSWSC 699 at [98]-[99], when referring to these general principles:

I shall discuss the relevant principles first, in relation to each of these different matters, and interpose, immediately after that discussion, my findings and conclusions based on the facts found.

The key provision of the Act is s 59. 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. There are six categories of persons by, or on whose behalf, an application may be made. Relevantly, in this case, the Plaintiff relies upon s 57(1)(e) of the Act. That sub-section, relevantly, provides that an eligible person is:

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.

In the case of an applicant who falls within s 57(1)(e) of the Act, the Court must next consider and be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application (s 59(1)(b)).

The applicant must also satisfy the Court that, at the time when the Court is considering the application, adequate provision for his, or her, proper maintenance, education or advancement in life 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). If he or she does so, the Court may make such order for provision out of the estate of the deceased as it thinks ought to be made for the maintenance, education or advancement in life of the plaintiff, having regard to the facts known to the Court at the time the order is made.

There is no dispute that the Plaintiff is a grandchild of the deceased. However, he must also establish the first limb of the sub-section, namely the relationship of dependence, whether whole or partial, upon the deceased. Thus, an applicant can only succeed by virtue of a combination of status (being a grandchild) and actual dependency (whole or partial).

The Act contains no definition of the words “dependent on”. There are no "tests", as such, for the meaning of that term. It should be given its plain grammatical meaning.

In general, the word “dependent” connotes a person who relies upon support of another, financial and/or emotional. Dependency is not limited only to the class of persons actually in receipt of financial assistance from the deceased. The authorities reveal that the words are wide enough to cover any person who would naturally rely upon, or look to, the deceased, rather than to others, for anything necessary, or desirable, for his, or her, maintenance and support.

But the question of dependency, whether whole or partial, is a complex question of fact: Aafjes v Kearney [1976] HCA 5; (1976) 180 CLR 199. It is not to be determined upon theoretical considerations. It is "the actual fact of dependence or reliance on the earnings of another for support that is the test": Kauri Timber Co (Tas) Pty Ltd v Reeman [1973] HCA 8; (1973) 128 CLR 177 at 189 (Gibbs J, as he then was).

In Petrohilos v Hunter (1991) 25 NSWLR 343 at 346-347, it was said:

In McKenzie v Baddeley [1991] NSWCA 197 at [4], Priestley JA (with whom Hope AJA agreed) held that the word “partly” in the phrase “partly dependent”, whilst a word of “some elasticity”, does not mean “substantially”, but means “more than minimally”, or perhaps, “significantly”. Meagher JA at [6] commented that “[c]ommon sense requires that certain trivial activities should be disregarded”.

In Williams v Legg (Court of Appeal (NSW), 16 March 1993, unrep), in a passage not set out in the report at 29 NSWLR 687, the Court of Appeal (Handley, Sheller and Cripps JJA) said:

In Re Estate of Hakim; Simons v Permanent Trustee Co Ltd [2005] NSWSC 223 at [42], Palmer J wrote:

In Amaca Pty Ltd v Novek [2009] NSWCA 50; (2009) 9 DDCR 199 at [45], Campbell JA, with whom other members of the Court of Appeal agreed, wrote (in the context of a claim under section 15B of the Civil Liability Act 2002 (NSW)):

In Skinner v Frappell [2008] NSWCA 296 at [85], Young CJ in Eq sitting in the Court of Appeal (with whom Campbell JA agreed), wrote:

A similar view was taken by the Court of Appeal in Alexander v Jansson [2010] NSWCA 176 at [13]. At trial (Alexander v Jansson [2009] NSWSC 1000 at [27] – [30]), McLaughlin AsJ had written:

On appeal, Brereton J, with whom Basten JA and Handley AJA agreed, wrote, at [13]:

In Morrison v Carruthers [2010] NSWSC 430, a case involving a claim by a grandchild in which only financial dependency was relied upon, Bergin CJ in Eq, after referring to McKenzie v Baddeley, wrote, at [12]:

In Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757, at [109], Meagher JA wrote that dependency “in this context means actual reliance on someone else for the total or partial satisfaction of some need. It is not limited to purely financial or material matters”, and at [110], that it “may exist, irrespective of whether the dependent person is financially or physically able to support himself or herself”.

In Justyn Marcus Ng v Neville Mark Morgan & Anor; Selena Natanie Ng v Morgan; Commonwealth Bank of Australia v Neville Mark Morgan in his capacity as Administrator of the estate of the late Dell Smith [2014] NSWSC 536 at [140], Slattery J wrote:

In Bayssari v Bazouni [2014] NSWSC 910 at [53], Ball J put the matter this way:

In all of the cases, the needs being met appear to have been voluntarily provided by the deceased. None of the cases suggest that a person can be dependent by simply taking from the deceased what is said to be provided to meet those needs.

The Plaintiff gave evidence that when he was 12 years old, his parents went to America for about three months, and that during this period the deceased and Keith “looked after” the Plaintiff and his siblings. He does not say what she did for them, or how, if at all, he depended upon her.

He added that, thereafter, he and Matthew would “frequently” fly to Sydney to spend time with the deceased and Keith. He said nothing about the duration of the visits or anything else about the visits.

Even if there were an emotional dependence for the three month period that the Plaintiff lived with the deceased, it is, in my view, trivial. It is also clear that the period of time that he lived with her was finite, and that during this period, it was Tanya who was depending upon the deceased to look after her children, rather than the deceased taking over her parental responsibilities.

I am not satisfied that there was any emotional dependency by the Plaintiff upon the deceased during this period. In addition, there is no hint of financial dependence.

Nor is there evidence of emotional dependency later in their relationship, after the deceased had entered the aged care facility. On the contrary, the Plaintiff gave evidence that

While this evidence indicates that the deceased was able to emotionally affect the Plaintiff, it in no way suggests that he was emotionally dependent on her. On the contrary, it indicates that he deliberately avoided the “difficulty” he associated with visiting her, precisely because she affected him “emotionally in a very negative way.”

The Plaintiff’s evidence of conversations he had with the deceased (if his evidence of having such conversations is accepted) is that she said things that were designed to upset him. It is submitted, and I accept, that, in this case, no emotional dependence upon the deceased, by the Plaintiff, is relied upon.

The Plaintiff submits:

The Plaintiff gave no acceptable evidence that he sought, or obtained, the deceased’s permission to move into the Beverly Hills property in 2010, or at any other time. He did give evidence of a conversation with the deceased, “on one occasion whilst I was living at Beverly Hills and Nan was residing at Fairmont Nursing Home”, in which she enquired whether he visited her because he wanted the Beverly Hills property, and that he had said that he did not, and that “I’m here because you are my grandmother.”

Even if such a conversation occurred, that does not establish, to my satisfaction, that the deceased permitted him to occupy the Beverly Hills property or that she was providing that accommodation to meet his need.

I have set out reasons to doubt the Plaintiff’s evidence, which includes whether the conversation alleged occurred. In this regard, I also refer to a File Note dated 13 December 2011 from the Fairmont Aged Care Centre which is in the following terms (Ex 5/500):

Then, there is evidence from David, which is in the following terms:

There is also evidence from Amanda Bevacqua, who described herself as “a friend of David Keith Austin”. She, too, referred to a conversation with the deceased at the time referred to above:

I have no hesitation in accepting the evidence of David and of Amanda where it conflicts with that of the Plaintiff.

The Plaintiff acknowledges a number of requests, by David, to vacate the Beverly Hills property, commencing about 7 months after he moved into the property.

I am not satisfied that the Plaintiff has established that he moved into the Beverly Hills property with the knowledge or consent of the deceased or that he continued to live there with her knowledge and consent. Thus, this is not a case in which the deceased facilitated the provision of accommodation for the Plaintiff in any practical sense giving rise to his partial dependency upon her.

The Plaintiff has not established, to my satisfaction, any settled basis, or general arrangement, between himself and the deceased permitting him to go into possession. He was subsequently requested, by David, as the Attorney for the deceased, to vacate the Beverly Hills property but he refused to do so, relying, so it would seem, upon a document which I am not satisfied ever existed.

Nor has the Plaintiff established that there was any obligation, or duty, recognised by the deceased, to him. It was not submitted that any such obligation, or duty, was owed by her to him. This is not a case where the deceased, by her conduct, permitted the Plaintiff to be dependent upon her for accommodation, whether intentionally or otherwise.

Overall, it seems to me, that the deceased did not provide accommodation to the Plaintiff, but that he simply took it. This does not establish dependency. One cannot establish dependency when the person upon whom the applicant for provision is said to be dependent does not consent to what is being provided, in this case, the occupation and use of the Beverly Hills property.

In all the circumstances, I am not persuaded that the Plaintiff was wholly or partially dependent upon the deceased. In those circumstances, he is not an eligible person within the meaning of that term in s 57(1)(e) of the Act and, accordingly, his claim must be dismissed.

Having regard to the conclusion I have reached on eligibility, this question does not strictly arise. However, I should say something about this aspect in case I am wrong.

The Act does not specify the “factors which warrant the making of the application”. As Pembroke J noted, in Wilcox v Wilcox [2012] NSWSC 1138 at [16], “[n]o legislative assistance is given as to the intended scope or meaning of this enigmatic requirement”.

Factors warranting the making of the application were described by McLelland J (as his Honour then was), in Re Fulop Deceased (1987) 8 NSWLR 679 at 681 as being:

In Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241, the Court approved this statement. Priestley JA, at 252, after setting out and approving the statement, added:

These principles have been applied, at first instance, for many years. However, in Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal in which Fitzgerald AJA delivered the principal judgment, there seems to be the suggestion that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and, perhaps, an easier, test than that which the Court of Appeal approved in Churton v Christian.

In Penfold v Perpetual Trustee [2002] NSWSC 648, Windeyer J did not follow Brown v Faggoter. Bryson AJ also commented in Porthouse v Bridge [2007] NSWSC 686 at [9]:

More recently, in Diver v Neal [2009] NSWCA 54, Basten JA, with whom Allsop P and Ipp JA agreed, said of s 9(1), at [8]:

In Evans v Levy [2011] NSWCA 125 at [62]-[64], Young JA, with whom Campbell JA and Sackville AJA agreed, wrote:

In Sassoon v Rose [2013] NSWCA 220 at [15], the Court of Appeal referred to the fact that the trial Judge (Macready AsJ) had:

In Porthouse v Bridge, Bryson AJ commented, at [7] and [9]:

In Chapple v Wilcox [2014] NSWCA 392; (2014) NSWLR 646, at [4]-[6], Basten JA wrote:

Finally, I refer to Yee v Yee [2016] NSWSC 360 at [199] – [200], in which Slattery J wrote, after referring to the authorities:

It can be seen that the trend of authorities does not favour the view suggested in Brown v Faggoter. With great respect, I also regard the views expressed in the authorities referred to by Windeyer J, Bryson AJ, Basten JA, Young JA and Slattery J as correct, and propose, in the circumstances, to follow their decisions.

The Plaintiff appears to base his case on the fact that he is the youngest grandson of the deceased; that his mother died when he was aged about 12 or 13 years old; that he lived with the deceased, for a period of 3 months, in 1986; that he visited the deceased and Keith whilst he was alive and stayed with them for a couple of weeks, on two occasions, just after he finished school; and that he visited the deceased, on a regular basis, from 2010 until 3 months before her death.

On the other hand, I have referred to the evidence that the deceased was distressed by the Plaintiff being found in the Beverly Hills property at the end of 2011 and to the fact that, following the conversation, David requested the Plaintiff to vacate the deceased’s property, which, of course, he did not do then, and has not done since then.

That the deceased did not regard the Plaintiff as an object of testamentary bounty is demonstrated, most starkly, by the fact that she did not identify him, to Mr Tillman, as a “potential claimant” in the Will Instruction Form.

In this case, there is evidence which suggests that the Plaintiff’s relationship with the deceased was not a close one. There is no evidence that establishes that he had been taken in by the deceased in circumstances where she became in loco parentis, or that she had come to assume, for some significant time in the Plaintiff’s life, a position more akin to that of a parent than a grandparent, with direct responsibility for his support and welfare, or else that she had undertaken a continuing and substantial responsibility to support the Plaintiff financially or emotionally.

I have also referred to the Plaintiff’s evidence and my findings regarding his visits to the deceased after 2010.

Furthermore, the Plaintiff acknowledges that the deceased was not generous to him and that she made no provision for him during her lifetime (other than accommodation for the short periods referred to above). She did not give him gifts.

As I have written elsewhere, the relationship of grandchild and grandparent, without more, is not enough to make the Plaintiff a natural object of testamentary bounty.

I am not satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the Plaintiff’s application. Accordingly, even if I had found that he was an eligible person by virtue of being a grandchild and partly dependent upon the deceased, his claim for provision would still be dismissed.

In case I am wrong in my conclusions regarding both of the pre-conditions to which I have referred, the Plaintiff must establish that making no provision for him in the deceased’s Will results in the Court being satisfied that adequate provision for the proper maintenance, education or advancement in life of the Plaintiff has not been made. I shall express my conclusions in a summary way.

The Plaintiff sets out the background to his making this application. It describes significant difficulties in his childhood, his marijuana addiction since the age of 15 and more recently an online gaming addiction. He gives evidence of his attempt at rehabilitation from late 2013 until March 2014.

He has a small amount of money (about $500) and approximately $32,000 in superannuation. He is not in a relationship and has no person who supports him. He is 42 years of age. He is presently unemployed.

The Plaintiff gave no evidence that he is actively seeking work. He said he would like to be able to buy a property to live in, in the Canterbury/Bankstown/St George area. There is no evidence of the cost of a home unit in those areas. This is not of significance, because, in my view, the deceased did not owe any obligation to the Plaintiff to make provision to enable him to purchase accommodation.

It is necessary to consider the competing claim of the chosen object of the deceased’s testamentary bounty, namely David. He is 46 years old. He has sole custody of his son, Lachlan, who is 17 years old. He earns an income of $49,000 per annum, working as a livestock attendant in a piggery. He does not own his own home - he rents a house at Corowa (rural NSW, west of Albury). After basic expenses, David has $187 per week left over for shoes, clothing, medical expenses, gifts and the like. Lachlan requires regular updates for his glasses, and physiotherapy for a hip condition. David would like to facilitate his son, Lachlan, attending university when he finishes school.

However, counsel for the Defendant submitted:

I do not accept that an exercise by the Court of the evaluative discretionary judgment in determining the extent of provision that ought to be made must lead to an answer that any order for provision would be only in a modest sum.

Furthermore, when one considers the fact that the Plaintiff has enjoyed, effectively, rent free accommodation in the deceased’s home for almost 6 years, I am not satisfied, at the time when the Court is considering the application, that adequate provision for the proper maintenance, education or advancement in life of the Plaintiff has not been made by the terms of her Will.

Thus, even if I were satisfied that the Plaintiff is an eligible person and that there were factors warranting the making of his application, the facts and circumstances would not lead me to make an order for provision for the Plaintiff.

In Paragraph 54 of his affidavit sworn 5 May 2016, the Plaintiff stated that he understood that “the distribution of nan’s estate will necessitate the sale of her home and require me to vacate that property”. Despite that acknowledgment, he has not vacated the Beverly Hills property and, even at the date of the hearing, he was still in occupation.

His conduct in remaining in occupation of the Beverly Hills property since about 2010 is worthy of censure, not the exercise of the Court’s discretion in his favour by making additional provision for him.

In all the circumstances, the Plaintiff’s Summons must be dismissed.

The Defendant seeks an order for possession of the Beverly Hills property. Whilst the Plaintiff does not admit that the Defendant is entitled to possession of the Beverly Hills property, it is clear that it is the executor of the deceased’s estate to which Probate has been granted.

The Plaintiff has not demonstrated that he has any legal entitlement to remain in the Beverly Hills property. He admits that there is no residential tenancy agreement upon which he can rely and he has not established any other right to reside therein based upon matters identified in his defence to the Cross-Claim.

I have earlier referred to the evidence which does not support any case that he entered possession of the Beverly Hills property with the consent of the deceased.

The Defendant states, and I accept, that a demand for possession has been made, which the Plaintiff says was not received by him, personally, but was received by his solicitors on about 11 August 2016. In my view, that is sufficient practical notice of the demand for possession, in the circumstances of this case.

I am satisfied that an order for possession should be made in favour of the Defendant.

I shall hear each party’s submissions on costs in due course if they are unable to agree.

The Court:

(When the orders are entered into the computerised court record system, the whole of the title reference and the address of the Beverly Hills property will be included. They have not been entered in these reasons to protect the privacy of the parties.)