Curtis v Curtis

1. [1]

   LEEMING JA: Mr Peter Arthur Curtis, the executor of the deceased estate of his brother Barry, appeals from family provision orders made pursuant to the Succession Act 2006 (NSW) in favour of two adult grandsons of the deceased, Messrs Blake Johnathon Curtis and Brock Ryan Curtis, awarding each of them 20% of the net proceeds of sale of the only substantial asset of the estate, a home in Ballina. The property has not as yet been sold. But the likely practical effect of the orders, after allowing for legal costs, will be that the only surviving child of the deceased, whom the primary judge found “unquestionably was devoted to his father and helped him a great deal”, and who was the sole beneficiary of his will, will receive less than half of his father’s estate.

2. [2]

   The inherent improbability of that result reflecting the correct application of legal principle to the facts of this case is confirmed by an analysis of the grounds of appeal and the record of the trial. It will be seen that this Court must intervene, because the process of fact finding miscarried, principally through a failure to have regard to highly probative contemporaneous documents which bore upon the issues in a trial where the witnesses gave widely divergent accounts. Ordinarily, that would entail a retrial. However, because this is a clear case, a retrial is unnecessary.

Background

1. [3]

   Without conveying either disrespect or informality, I shall refer to members of the Curtis family by their given names.

2. [4]

   The deceased, Barry, died in 2022, aged 87 and a widower. His wife, Elaine, had died in 1999. A sister Wendy, who was the executrix of a previous will, also predeceased him. Barry was survived by his brother Peter, who was the executor of his last will, made on 16 April 2021.

3. [5]

   There were two children of Barry’s and Elaine’s marriage, Darran and Rodney, born in 1967 and 1970 respectively. Darran Curtis and Victoria Mathew married in 1987 and had three children, Blake, Bonnie and Brock. Blake and Brock were born in 1988 and 1991, and were the plaintiffs below and the respondents to this appeal. The middle child, Bonnie, made no claim for family provision. Darran and Victoria separated in around 1991, shortly after Brock was born, and when Blake was around three years old. Victoria married Mr Darrin Mathew in 1997, having met him in around 1994. There was evidence that Blake and Brock spent time with their father after their parents separated, although that diminished when he commenced a relationship with another woman, Sharron, who had children of her own.

4. [6]

   Darran was diagnosed with cancer in 2003 and died in 2008. His relationship with Sharron had broken down during his final illness, and there was evidence that Darran lived with his father at this time. There was also evidence that Blake and Brock spent time with their grandfather, and at varying times lived with their grandfather, during Darran’s final illness and after Darran’s death. There was conflicting evidence from neighbours and from Peter and Rodney to the effect that this did not occur or was greatly exaggerated. I shall return to the details below.

5. [7]

   Blake has a partner – Ms Brydee Collins. They and their two sons, born in 2014 and 2017, live with Brydee’s parents. Bonnie has three children; Brock has no children.

6. [8]

   Rodney formed a relationship with Ms Amanda Beaver in 1998. They have one son, Kris, born in 2001.

7. [9]

   Thus, when he made his last will in 2021 and when he died in 2022, Barry had one surviving son Rodney, four grandchildren (the respondents Blake and Brock, their sister Bonnie, and Rodney’s son Kris) and five great grandchildren. At the end of 2008, after Darran had died and when Barry was redrafting his will, Barry was widowed with one surviving son (Rodney) and three grandchildren (Blake, Brock and Bonnie; Kris had not been born).

8. [10]

   Grandchildren who “at any particular time” have been “wholly or partly dependent” upon the deceased have been “eligible persons” in whose favour a family provision order may be made since the enactment of the Family Provision Act 1982 (NSW), in accordance with the recommendations of the New South Wales Law Reform Commission: see the Commission’s Report 28 (1977) – Testator’s Family Maintenance and Guardianship of Infants Act 1916, para 2.6.26. The current definition is found in s 57(1)(e) of the Succession Act:

9. [11]

   The total or partial dependency of a child upon a grandparent may be established notwithstanding the child remaining dependent upon either or both parents. More than a minimal period of time is required; leaving a child in the care of grandparents overnight is not sufficient: Alexander v Jansson [2010] NSWCA 176 at [13]; Chisak v Presot [2022] NSWCA 100 at [47], [56]. A claimant either does or does not satisfy the requirement of dependency, such that appellate review is on the correctness standard, as opposed to the review of discretionary decisions: Spata v Tumino [2018] NSWCA 17 at [53]-[54]; Sun v Chapman [2022] NSWCA 132 at [8]-[11] and [189].

10. [12]

    The power to make family provision orders is conferred by s 59. It is not enough for a grandchild to establish merely that he or she was at some particular time wholly or partly dependent upon the deceased and that inadequate provision has been made for the grandchild under the will. At the forefront of the trial and of the appeal was the additional requirement in s 59(1)(b) that Blake and Brock persuade the Court that there are “factors which warrant” making orders for family provision in their favour:

11. [13]

    Eligible persons divide into two classes: the lawful and de facto spouses and children mentioned in s 57(1)(a), (b) and (c), who are generally “regarded as natural objects of testamentary recognition”, and those in s 57(1)(d), (e) or (f), who, without more, are not generally so regarded. This Court observed in Yee v Yee [2017] NSWCA 305 at [112] of this latter class that:

12. [14]

    In Re Fulop deceased; Fulop v Public Trustee; Bide v Public Trustee (1987) 8 NSWLR 679 at 681, McLelland J said of the requirement to show factors warranting the making of an application that they were factors which, when added to facts which render the applicant an eligible person, gave him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased. That approach was endorsed by this Court shortly thereafter in Churton v Christian (1988) 13 NSWLR 241 at 252; [1988] NSWCA 23 and has regularly been followed subsequently: see for example Lodin v Lodin [2017] NSWCA 327 at [1], [5] and [106]-[107] and Sun v Chapman [2022] NSWCA 132 at [1], [119] and [193]. The requirement was explained by Payne JA (with whom Macfarlan JA at [1] and Sackville AJA at [153] agreed) in Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 at [97]:

13. [15]

    Helpful guidelines for claims made by grandchildren were formulated in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [113]:

14. [16]

    The foregoing are not rules of law, but provide useful assistance in applying the statute. They have been approved by this Court, as a “useful touchstone that may be applied with circumspection by judges called upon to ascertain and apply ‘the feeling and judgment of fair and reasonable members of the community’ in cases of the present kind”: Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [67], see also at [21] and [150].

15. [17]

    It was accepted that Blake and Brock were grandchildren of the deceased. Everything else was in issue. Accordingly, before making any order for family provision, the primary judge was required to be satisfied of each of the following:

    1. (1)

       whether the grandchildren were at any particular time wholly or partly dependent upon the deceased;

    2. (2)

       having regard to all the circumstances of the case, whether there were factors warranting the making of the application, and

    3. (3)

       whether adequate provision for the proper maintenance, education or advancement in life of the grandchildren had not been made in the deceased’s will.

16. [18]

    The parties framed their submissions and the primary judge framed his reasons accordingly.

17. [19]

    In light of the submissions advanced on appeal, I shall shortly give a full summary of the reasons of the primary judge because, as will become apparent, a major complaint by Peter is what is absent from his Honour’s reasons. In order to put those reasons in context, it is convenient first to provide an overview of Blake’s and Brock’s case.

18. [20]

    Blake’s and Brock’s case was summarised in this Court by their counsel as follows:

19. [21]

    Save for the fact that Blake and Brock were not “young teenage boys” when their father died (they were aged 17 and 20), that peroration fairly summarises the case put forward by Blake and Brock and Victoria.

20. [22]

    In October 1988 when Blake was born, Barry was 53. Blake was around 3 or 4 when the relationship between his parents broke down, around 15 when his father Darran was diagnosed with cancer in 2003, and 20 when he died in 2008.

21. [23]

    Blake gave evidence that “as a young child (from around the age of 3 until 8) we lived with my mother and predominantly spent daytime with my father”, and that “from around the age of 8, we increased our time with Dad, and lived with our mother during the week and our father on alternate weekends”. He said that between 1998 to 2006, when his father was in ill health, “on the days that we lived with Dad, we lived at Grandad’s house”. He said that Barry would “provide our meals, make sure we were clean and brushed our teeth”. He said that after Darran died, Blake “became even closer to Grandad, and he became more of a father figure to me”.

22. [24]

    In 2011, Blake (then aged around 23) said that “Grandad offered for me to come and live with him. I ended up living with him for close to one year”. He said that “as I grew older and had children of my own, I continued to visit Grandad on a weekly basis and he remained an integral part of my life. I would take my children to visit him, and we would often go out for lunch or dinner or play down by the creek”.

23. [25]

    Thus, in his early years Blake was cared for mostly by Victoria, with assistance from Darran. But there was nothing to suggest that, before his father became ill, Blake was dependent upon Barry. Likewise, for the purposes of establishing whole or partial dependency, one may put to one side Blake’s claim that he lived with Barry in 2011, for “close to one year”. At that time Blake was in his early twenties. Blake was an adult perfectly capable of taking care of himself, and it was not suggested that he was an adult grandchild with a claim of financial dependency; cf Morrison v Carruthers [2010] NSWSC 430 at [8]-[13]. The critical period of time for the purpose of dependency was Blake’s teenage years from 1998 - 2006, when Blake said that he lived with Barry while Darran was unwell. During almost all of that time Barry was a widower (Elaine died in 1999).

24. [26]

    Brock’s evidence was to similar effect, save that he was three years younger, and that he said that after Darran started seeing Sharron, he did not stay overnight at his father’s house, but instead would go and stay at Barry’s house. He said “when I was around 14, my father separated from Sharron and moved back in with Grandad at Quays Drive. As a young teenager I would spend weeks at a time living with my father and Grandad. During these years, my father was very sick. Grandad would drive us to the hospital to visit him and try and keep our spirits high”. He said:

25. [27]

    In the period when their father Darran was diagnosed with cancer and ultimately died, 2003-2008, Brock was aged 12-17, while Blake was aged 15-20.

26. [28]

    Blake’s and Brock’s mother Victoria made an affidavit and was cross-examined. She accepted that she had a “very fractured” relationship with Rodney. In her affidavit she had said that while pregnant with Blake in 1988, Barry and Elaine had sold their home and were building another and in the meantime lived in the same home as Darran and her, and that Rodney (who was then 18) “became unmanageable”, “had a constantly rude demeanour”, “did not take any steps to assist around the house” and “We had to ask him to move out”. Victoria maintained that Rodney “controlled” his father:

27. [29]

    With that overview in mind, I turn to the reasons given by the primary judge for upholding Blake’s and Brock’s claims.

Reasons of the primary judge

1. [30]

   The primary judge reserved his decision after a three day trial occupying 18, 19 and 20 September 2023 and delivered judgment promptly, on 28 September 2023. The reasons are short, having regard to the quantity of conflicting testimonial and documentary evidence. They occupy 112 short paragraphs over 22 pages. Paragraphs 1-19 describe the Curtis family, the estate and the three wills executed by Barry. The balance comprises sections on dependency (ten pages at [20]-[74]), factors warranting (slightly more than three pages at [75]-[91]) and whether adequate provision had been made (four pages at [92]-[109]). There are no separate sections where findings of primary fact are made. Instead, findings and, more often, commentary falling short of actual findings of fact, are found while the primary judge recited the evidence and expressed his conclusions on the issues of dependence, factors warranting and adequate provision.

2. [31]

   The primary judge correctly observed that (a) dependency was the subject of much judicial comment, (b) each case turned on its own facts, and (c) dependency presents a “lowish bar” or a “relatively low” test. After references to Chisak v Presot [2022] NSWCA 100, his Honour said at [24]:

3. [32]

   The last sentence can only be read as an evaluation that Rodney’s evidence was, to say the least, unreliable insofar as it presented a separation of Barry from Blake and Brock. At this stage in the reasons, nothing had been said by his Honour of Rodney’s evidence and the aspects found to be unreliable. The statement must be understood as anticipatory of conclusions subsequently expressed for reasons subsequently given concerning evidence yet to be summarised or analysed. It is perhaps unclear whether the sentence bears its ordinary meaning, of a conscious attempt by a witness to give distorted evidence, as opposed to a statement that a witness’ evidence was merely unreliable. I would accept Peter’s submission that to the extent that the seriously adverse finding of conscious tailoring of evidence was made, it should not have been made, in the absence of it having been squarely put to him: Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [67]. But in light of the more serious and fundamental failings in the process of fact-finding, it is unnecessary to pause to consider precisely the import of what was said at [24].

4. [33]

   The primary judge addressed the position of Blake and Brock separately, introducing this at [25]:

5. [34]

   Blake’s evidence, and the conclusion reached by his Honour, occupy [26]-[31]. The primary judge referred to Blake’s unchallenged evidence that “I have always had a close and loving relationship with my Grandad”, and explained the separation of Blake’s parents when he was three years old and the fact that Blake began to spend more time with his father when he was around eight years old. The primary judge said that “[Blake] states that his father was in poor health from 1998, but this was probably some years later, the diagnosis of cancer being made in 2003”, and added that “once his father became ill, he would spend longer periods at the deceased’s home”. The primary judge reproduced Blake’s evidence that:

6. [35]

   His Honour referred to the cross-examination that Blake would not have required this level of monitoring, for example brushing his teeth, but added that “that does not mean that supervision was unnecessary, in particular for activities like going to bed at certain times”. His Honour then observed at [29]:

7. [36]

   After referring to the relatively small inheritance each child received from Darran’s estate, his Honour reached his conclusion on this issue at [31]:

8. [37]

   That seeming conclusion was reached without referring to most of the evidence that tended against it. However, the primary judge made a second finding of dependency, this time after addressing other aspects of Blake’s evidence on dependency, as well as the testimonial evidence which pointed in the other direction. At [39] he made a finding of “the general honesty” of Blake and Brock. At [46] he said:

9. [38]

   After mentioning the evidence of two neighbours (Messrs Lusted and Formaggin) to which I shall return, his Honour turned to the evidence of Rodney at [67] and said:

10. [39]

    His Honour then concluded at [73]-[74]:

11. [40]

    The primary judge addressed Brock’s evidence at [32]-[38]. His Honour placed weight on the following evidence:

12. [41]

    The primary judge summarised Brock’s evidence that when he was 11 or 12, he and Blake would stay overnight with Barry, as opposed to their father, because Sharron was “not supportive” of Darran spending time with his sons. His Honour reproduced Brock’s evidence that:

13. [42]

    Around three years later, when Brock was 14 and Darran had separated from Sharron, the primary judge reproduced at [35] Brock’s evidence that:

14. [43]

    The primary judge referred to an incident when Brock rescued a friend who had been bitten by a shark, but who died while being ministered to, and for which Brock received an award, and disregarded the executor’s submission that it was relevant that there was no evidence that Barry had attended the award ceremony. The primary judge concluded that in Brock’s adult years his relationship with his grandfather continued, by regular visits when Brock was living in Lismore after 2014, and by spending time with him when he was hospitalised and staying at the home and performing some work there.

15. [44]

    Unlike his Honour’s treatment of the evidence of Blake, the primary judge did not at this point make a finding of dependency, but then addressed some of the conflicting evidence and the cross-examination. The primary judge stated that aside from establishing that some dates were wrong, “otherwise little was achieved by the cross-examination”: at [40]. He referred to a non-disclosure by Brock of rent he was receiving from a co-tenant, but said that his Honour suspected that this was “more a feature of him not having paid careful attention to the figures rather than a deliberate intention to deceive”: at [44]. He referred to Brock never having filed a tax return, stated that this did not reflect well upon him, but on the basis that he had always had tax deducted from his wages, concluded that the result was that he had been deprived of tax refunds and was probably worse off.

16. [45]

    His Honour then addressed a submission that Rodney had breached his fiduciary duty to Barry when transferring funds from his bank account, finding that the transactions were “distinctly suspicious” but ultimately concluding at [54] that “notwithstanding my suspicions”, he was unable to conclude that Rodney had acted either in breach of his fiduciary duties or without the express permission of his father.

17. [46]

    At [55]-[60] the primary judge addressed Peter’s evidence, dividing it into his administration of the estate and his observations about Barry’s household. The primary judge said at [55]:

18. [47]

    The relevance of that observation is unclear. At [56], the primary judge said that in relation to his observations on Barry’s household, “I generally accept his evidence”, save for a single qualification which concerned the amount of time Peter stayed with Barry. His affidavit attested to his spending three to four weeks while recovering from back surgery in 2003, and a couple of weeks after cataract surgery in 2015 and 2016, a further three weeks after a ruptured disc in 2017, and so on. In his cross-examination, he appeared to say that he spent an average of 30 weeks a year. Of this the primary judge said:

19. [48]

    This appears to be a misunderstanding by the witness confusing an annual average with the total number of weeks he stayed with Barry. The affidavit evidence, which the primary judge preferred, was that, between 1981 and 2022, Peter had approximately 35 medical procedures during most of which he would stay with Barry “while I recovered for varying periods of up to six weeks at a time”. I shall return below to summarising Peter’s evidence, which is conspicuous by its near complete absence from the reasons for judgment.

20. [49]

    Rodney’s evidence was addressed at [61]-[72]. The primary judge commenced at [61]:

21. [50]

    In order to justify that conclusion, his Honour pointed to exchanges of text messages between Rodney and Blake in 2020 and 2021, when Blake was endeavouring to assist his grandfather, and when Rodney sent birthday greetings to Blake.

22. [51]

    At [63], his Honour said:

23. [52]

    The primary judge summarised Rodney’s evidence that after Darran and Victoria separated, they saw very little of Blake and Brock, not attending family Christmases until they were grown. Rodney disputed Blake’s statement that he had spent 11 months with Barry in 2011, saying it was 3 months, during which he “did nothing around the house to assist”, following which Barry asked Rodney to ask Blake to move out, which he did, and which according to Rodney led to some six years of no contact between Blake and Barry. His Honour reproduced Rodney’s evidence that Brock’s relationship with Barry was “non-existent until Dad became older and eventually became ill.”

24. [53]

    At [69]-[72] the primary judge referred to a concession made by Rodney concerning the sale of a business when Barry was reliant on assistance to conclude that:

25. [54]

    The overall conclusion, based on a preference of the evidence of Blake and Brock, was that both were at least partly dependent upon Barry.

26. [55]

    The primary judge concluded that s 59(1)(b) was made out for reasons given at [75]-[90]. His Honour commenced with the executor’s submission that it was necessary for Blake and Brock to show more than merely that they were eligible, that they had shown no more than an archetypal grandfather/grandson relationship, and indeed one in which there were notable absences: “For example, there was no evidence of financial assistance, no evidence that the deceased held himself out to third parties as the grandfather of the plaintiffs, advice to the plaintiffs was limited, the deceased never attended any “occasions” linked to the plaintiffs (such as sporting events or graduations), the deceased never had holidays with the plaintiffs and there was little to no relationship with the deceased’s siblings (Peter and Wendy).”

27. [56]

    The primary judge then said:

28. [57]

    Addressing the last point first, the primary judge said that there was almost no evidence concerning Wendy, and thus it was difficult to know why there was little contact between her and Blake and Brock, while any lack of contact with Peter was “probably more at [Peter’s] instigation than the plaintiffs”.

29. [58]

    Most of this section was directed to the executor’s submission that a “critical point” against Blake and Brock was the absence of any testamentary recognition, advanced by reference to what was said in Estate of Awad [2023] NSWSC 765 at [67] and Shymko v Lach [2022] NSWSC 1096 at [820].

30. [59]

    There followed an important passage in the reasoning (and indeed, it occupies 8 of the 16 paragraphs devoted to this issue which, in light of ground 2 of the appeal, warrant reproduction in full):

31. [60]

    This is, incidentally, the only time in which any aspect of Victoria’s evidence was mentioned.

32. [61]

    The primary judge identified one other matter on which he placed reliance:

33. [62]

    The primary judge observed that the matters which led to the finding of dependency could also be taken into account in determining whether factors warranted the making of an application, and concluded:

34. [63]

    At [91]-[105] the primary judge summarised the financial positions of Blake and Brock. Both had moderate incomes (of the order of $54,000 and $57,000 per annum), substantially less than the average weekly earnings. Brydee also has a salary. Neither owns real property. His Honour also summarised the financial position of Rodney, who is much wealthier, and expressed “sceptic[ism] about the veracity of Rodney’s figures”. His Honour concluded at [105] by reference to the matters to which he was authorised by s 60 to have regard:

35. [64]

    It was common ground that if provision were to be ordered, it could only be made after the sale of Barry’s home. It seems also to have been common ground that the best price would be achieved after rectification work had been undertaken following flood damage. The costs were estimated at $50,000. His Honour said that he did not think it would be appropriate to require Rodney to spend his own money in order for the repairs to be done. His Honour then stated:

36. [65]

    Blake’s and Brock’s costs, on the ordinary basis, were to be paid out of the estate, while those of Peter were to be paid out of the estate on an indemnity basis.

The grounds of appeal

1. [66]

   Peter’s notice of appeal challenged most aspects of the reasoning of the primary judge. In large measure, those challenges are made out. In large measure, that is because of a failure by the primary judge to address important aspects of the evidence, and important aspects of the submissions made by Peter in respect of that evidence.

2. [67]

   I start with dependency. Grounds 1(a), (b) and (c) of the notice of appeal were as follows:

3. [68]

   I shall address each of those paragraphs in turn.

4. [69]

   The deceased made three wills which were in evidence.

5. [70]

   The first, made in August 1978, appointed his wife Elaine as his executrix and left his entire estate to her, and in equal shares to Darran and Rodney if she predeceased him.

6. [71]

   The second was made on 5 February 2009. Elaine’s death in 1999 did not lead to any change in his 1978 will, which had anticipated that possibility. Plainly the death of his older son Darran in 2008 prompted a new will to be made. At that time, Barry had one surviving son Rodney, and three grandchildren who had just lost their biological father after a struggle with cancer, for whom, on their case, Barry had stepped in to perform a parental role. The February 2009 will was professionally drafted, and appointed his sister Wendy as his primary executrix, and Rodney if that appointment failed. This will left the entirety of the estate to Rodney.

7. [72]

   The third will, also professionally drafted, was the will admitted to probate. It was made on 16 April 2021. It appointed as executor Peter, and once again Rodney if that appointment failed. Once again, this will left the entirety of the estate to Rodney. Barry was around 86 when he made that will, but there was a letter from his doctor, and no claim of lack of capacity seems to have been made. There was no point in making such a claim, even if there were a proper basis for one, because the penultimate will made 12 years earlier had also left Barry’s entire estate to Rodney.

8. [73]

   The 2009 and 2021 wills were prepared by the same firm. Tendered at the trial was a five page document titled “Will Fact Finder” which had been completed in hand when the law firm took instructions for the 2021 will. In a section relating to the testator’s family, there appears:

9. [74]

   It is clear from the layout of the handwritten note that the words “left g/c but not including them” describe the child who had predeceased.

10. [75]

    On the final page of the form, in a section headed “Undue Influence” there appears:

11. [76]

    There also appears the name Carolyn Hunt, who was described on the firm’s letterhead as a consultant. It is plausible, but not certain, that she was the author of the notes.

12. [77]

    “Eligible applicant” is to be understood as reflecting the language of the Succession Act. It is found in a document prepared in a solicitor’s office. The author of the note evidently had the existence of surviving grandchildren at the forefront of his or her mind when making it. The inescapable inference is that the author of the note formed the view that the grandchildren were not eligible applicants. That must be because the author was of the view that (a) they were at no time dependent upon Barry, or (b) there were no factors which could warrant an application, or (c) both of those reasons.

13. [78]

    At the top of that page is the following handwriting:

14. [79]

    If there were corresponding notes concerning the 2009 will, they were not tendered.

15. [80]

    The appellant submitted that the 2009 will was very important. I agree. At the very time when Barry had lost his older son to cancer, and his older son’s own children had lost their father, Barry rewrote his will which had formerly divided his estate equally between his two sons so that it went entirely to Rodney and Rodney’s children. Had he not done so, Darran’s children would have stood in their father’s place and taken half of Barry’s estate. (Because Darran died in November 2008, s 41(2) was applicable to the 1978 will (see cl 3(2) of Schedule 1 of the Succession Act) and hence Darran’s issue would take the share of Barry’s estate given to Darran; see Hay v Aynsley [2013] NSWSC 1689 at [48] and Straughen-Nicholson v Straughen [2019] NSWSC 1389 at [8]-[10].) The deliberate decision to leave the entire estate to Rodney following Darran’s death is objective evidence which is very difficult to reconcile with the tenor of Blake’s and Brock’s evidence that Barry became a substitute father figure for them as Darran ailed and died. On any view, it was necessary to assess the conflicting testimonial evidence adduced at trial against what could be drawn from the 2009 will.

16. [81]

    The 2021 will is also important. It confirmed Barry’s testamentary intention that his estate be left to Rodney, and not to any of the three adult grandchildren who were Darran’s sons. It also casts doubt upon some of the testimonial evidence from Blake, Brock and Victoria.

17. [82]

    At no stage did the primary judge engage with the central peculiarity in this case: why did Barry in 2009 change his will so as to leave the entirety of his estate to Rodney if the evidence of Peter and Rodney and Messrs Lusted and Formaggin (as to which see below) was to be rejected, and, in accordance with what was said by Victoria and Blake and Brock, there was a quasi-parental relationship between Barry and Darran’s sons – and indeed a relationship brought about by Darran’s illness and untimely death? And why, if the quasi-parental relationship between Barry and Darran’s sons continued into their early years of manhood, did Barry in 2021 confirm his decision to leave the entirety of his estate to Rodney?

18. [83]

    The note accompanying the 2021 will was also important. Plainly the author of the note was not instructed that Barry had performed a parent-like function for the grandchildren when their father was succumbing to cancer. What instructions had in fact been given are unclear. It is easy to see how a couple of sentences, to the effect that his son had divorced his daughter-in-law when the grandchildren were very young and he had had little contact with them thereafter, would suffice. There are other possibilities, including some which are consistent with the case propounded by Blake and Brock at trial that Rodney “controlled” Barry. But this serves only to emphasise the need for assessing the conflicting testimonial evidence against what emerges from the 2021 will, and to make findings of primary fact before reaching ultimate conclusions on whether Blake and Brock had established that they were eligible persons for whom there were factors warranting the making of orders for family provision.

19. [84]

    The 2009 and 2021 wills were mentioned by the primary judge in paragraphs describing the chronology, and in one minor respect when dealing with whether adequate provision had been made (in [81] which is reproduced above). But neither was mentioned by the primary judge in the course of assessing the conflicting evidence when dealing with dependency or factors warranting. The absence is remarkable given their centrality and the prominence in the executor’s written and oral submissions. Thus in paragraphs 8-10 of the executor’s closing written submissions it was said:

20. [85]

    Substantially the same point was made in closing address by Peter’s counsel:

21. [86]

    Neither of these submissions was mentioned by the primary judge, despite their prominence in Peter’s concise written and oral submissions. They went to the heart of the dispute.

22. [87]

    The response made by Blake and Brock was to emphasise the suggestions in the reasons of the primary judge that Rodney had controlled Barry, and to point to the same aspect of the solicitor’s file note concerning possible undue influence where it was recorded that Rodney attended the execution of the will. Their submissions concluded:

23. [88]

    But it is settled that review of this aspect of the fact-finding process is governed by the correctness standard, rather than an approach governing discretionary decisions. And irrespective of the applicable standard of appellate review, it is also quite plain that the primary judge failed to attend to a prominent submission in Peter’s case, and failed to evaluate the testimonial evidence of Blake, Brock and Victoria insofar as it conflicted with the wills. It might have been possible to reconcile the terms of the 2009 and 2021 wills on the bases suggested by the respondents’ submissions, but the primary judge did not do so, there was no notice of contention, and it is far from clear that Rodney was sufficiently confronted in cross-examination with the serious allegations that might sustain such a case.

24. [89]

    Pausing there, already enough has been said to establish appellable error warranting this Court’s intervention: see New South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47 at [46]-[47] and Zaya v Damirdjian [2022] NSWCA 203 at [70] and the cases there cited. Critical documents, which cannot readily be reconciled with either the findings made by the primary judge or the ultimate outcome, and which were prominent in the executor’s submissions, were not addressed in the course of making findings of fact on the central contested issues, deriving from the conflicting evidence of Blake, Brock and Victoria on the one hand, and Peter, Rodney and Messrs Lusted and Formaggin on the other hand.

25. [90]

    It is an “incident of judicial duty for the judge to consider all the evidence in the case”: Mifsud v Campbell (1991) 21 NSWLR 725 at 728 (Samuels JA). Further, “[u]sually, the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation”: Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136 at [34] (Keane JA). The 2009 and 2021 wills and the notes which were prepared in connection with the latter would have been a conventional starting point in seeking to resolve the conflict in the evidence, yet they were ignored.

26. [91]

    In Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [2], Allsop P said:

27. [92]

    To the same effect, in Bradley v Matloob [2015] NSWCA 239 at [75], Beech-Jones J said, by reference to Mitchell v Cullingral Pty Ltd, that “the primary judge was obliged to address the ‘central controversies put up for resolution by the parties’ or ‘engage with, or grapple or wrestle with, the cases presented by each party’”. In the same decision, agreeing with Beech-Jones J, I added at [17]-[18]:

28. [93]

    The “critical factual enquiries” and the “central controversies” in this case included the reconciliation of Blake’s and Brock’s testimonial evidence with Barry’s 2009 and 2021 wills and the notes made in the solicitor’s office when the 2021 will was drafted, all of which pointed against the existence of a relationship in which Blake and Brock were natural objects of testamentary disposition. That did not occur. As is contended in ground 1(a), a critical aspect of the fact-finding process miscarried.

29. [94]

    Peter gave extensive evidence denying that Blake or Brock had anything like the close relationship with Barry that they claimed. He did so as a brother who had regular, ongoing contact with Barry, including living with him for weeks at a time. As noted above, the primary judge “generally” accepted Peter’s evidence as to his observations of Barry’s household. Yet his Honour’s reasons did not record that evidence, and there is nothing to suggest any process of reconciling it with the evidence of Blake and Brock, whom he also generally found reliable, despite the evidence being antithetical.

30. [95]

    Peter said that on the dozens of occasions he stayed with Barry, he had a room known as “Peter’s Room”. It was filled with his own furniture and belongings, as well as Rodney’s toys and clothing that he did not take with him when he left home. Peter also said that he spoke with Barry at least once a week, often three times a week, throughout his lifetime, and that “[a]t no time during any phone call do I recall the Deceased mentioning Blake or Brock visiting him, living with him or assisting him around the house”.

31. [96]

    It was on that basis that Peter denied the account of the relationship contained in Blake’s and Brock’s evidence. Paragraphs 36 to 53 of his main affidavit denied essentially all aspects of their accounts of a close relationship with Barry. Peter said that Blake stayed with Barry “not close to one year and was more like two (2) months”, that Barry asked Blake to leave after two months and denied that Brock had lived with him.

32. [97]

    Peter also gave evidence concerning Victoria. He said that Barry had told him, not long after he had agreed to be the executor to the 2021 will, that Victoria had visited him in hospital, and that Barry told him:

33. [98]

    Peter added “[t]he Deceased went on to tell me that she wouldn’t leave the hospital and he had to get hospital staff to ask her to leave.”

34. [99]

    Peter was not cross-examined about that evidence. The primary judge did not address it, save to say that he “generally” accepted Peter’s evidence concerning Barry’s household. Victoria was cross-examined to the effect that she had been “badgering” Barry about his will, which she denied. The primary judge did not refer to that evidence either. Nor did his Honour refer to Blake’s acceptance that to the extent that his affidavit addressed the early years, it “would probably be my mum just jogging my memory”, rather than his own recollection.

35. [100]

    There is thus a series of unreconciled conflicts in the evidence, for the most part not apparent on the face of the reasons, in part because in relation to Blake and Brock, his Honour said “I do not intend to recite all of the detail”, and in part because almost none of the evidence of Peter which the primary judge “generally accepted” was reproduced. It would serve no purpose to indicate all of the unresolved issues. I give two examples, one for each grandson. Each relates to periods in the early adulthood of Blake and Brock, which were relied on primarily to establish that there were factors warranting the making of orders for family provision.

36. [101]

    First, Blake said that from around 2011, he stayed with Barry for about a year, and that “[d]uring this period, we were having meals together every day as a family. We took turns cooking meals and cleaning the house. Grandad did not make me pay rent, but I often paid him a small board to help with the costs associated with running the household. Later that year I met my current partner and we moved in together”. Peter denied this. Peter said that Barry told him that Blake stayed with him for only around two months, that “he and Blake did not have meals together and in fact that Blake took plates into his room to eat” and that Barry told him that “he had asked Blake to leave after a period of around two (2) months. The Deceased told me that he had gone into my room where Blake was residing to retrieve the plates because there were no plates left in the kitchen. He told me that there were clothes everywhere, the bed was unmade and there were plates everywhere, the Deceased asked Blake to leave”. This was put to Blake in cross-examination (“It is actually the case, isn’t it, sir, that you were asked to move out of your grandfather’s house, weren’t you?”) following which Blake said that this was “not for any bad reasons”, but because Barry was getting a carer to come to live with him, an answer which implicitly accepted that Barry had asked him to leave. Peter was not challenged on his version. The primary judge said that the dispute was difficult to resolve (at [46]) but when noting the dispute mentioned only the evidence of Blake and Rodney, and not the unchallenged evidence of Peter which he said he generally accepted.

37. [102]

    Secondly, Brock said in paragraph 30 of his affidavit that on around 1 December 2021 he moved in with Barry, because his landlord was selling his property, and Barry “suggested that I come and live with him. I was able to find a rental relatively quickly, so I moved out after around one month”. Peter denied this. He said Barry never made him aware that Brock had moved in, that Barry was unwell that month, that he visited Barry for a period of approximately one week over Christmas, that Brock was not living with Barry at that time, that Brock did not visit him while he was there, and that Barry and Peter went to Rodney’s house that year for Christmas with Rodney’s family. That conflict was not resolved by the primary judge, who merely said at [38] that Brock “stayed at the house in December 2021, although at this time the deceased was in the nursing home”.

38. [103]

    Little purpose would be served dealing with the entirety of the evidence of Peter which disputed the accounts of Blake and Brock. The primary judge did not address any of it. Once again, the process of fact-finding has failed, requiring this Court’s intervention.

39. [104]

    The primary judge did address the evidence of the two neighbours, albeit in a single paragraph. His Honour said at [49]:

40. [105]

    In order to assess Peter’s submission that this was insufficient to address the evidence of those two witnesses, it is necessary to summarise the nature of the evidence which was so succinctly put to one side by the primary judge.

41. [106]

    Mr Warren Lusted gave evidence that he had known Barry for 40 years. He said that from 1982 until 1997, he lived on the same street as Barry, and in around 1997, he, his partner and two children moved next door for some three years while they built another house on a nearby street. He said:

42. [107]

    Mr Lusted was cross-examined, and confirmed repeatedly that he saw Barry every day.

43. [108]

    Mr Formaggin was a close friend who got to know Barry after Elaine died. He said that from 2004 he would visit Barry at his home “at least fortnightly and sometimes more often (except on occasions when either I, or Barry, was travelling or away)”. He said that he did not recall Barry’s grandchildren residing with him when they were children. He did recall one of Darran’s sons staying with Barry for a time, and Barry being “not particularly happy about it”. None of his evidence was challenged in a brief cross-examination.

44. [109]

    The accounts of Blake and Brock that as young teenagers they stayed for weeks at Barry’s home are very difficult to reconcile with Mr Lusted’s evidence. It was necessary to evaluate this conflicting evidence, and determine how if at all it might be reconciled, and to the extent it could not be reconciled, to determine which was unreliable. But that task is not greatly advanced by observing that there was no “24 hour surveillance”. Nor is much assistance gained by any doubts the primary judge may have had concerning Barry’s willingness to expose the “softer side of his nature” to his friends. Neither of those bases for putting to one side the entirety of the evidence of Messrs Lusted and Formaggin attracts the deference that is to be accorded to findings which are apt to have been informed by the presentation of witnesses giving evidence, and, with respect, neither addresses the real question. The real question is how could two men who presented as close friends, one of whom had lived next door for some three years, the other of whom called upon him fortnightly, have had such a different view of the relationship between grandfather and grandsons, and indeed in the case of one of them (Mr Lusted) never have been aware of their existence, if the claims presented by Blake and Brock involving recurring, substantial stays by them with Barry, were accepted. The single paragraph in the reasons of the primary judge does not engage with that issue.

45. [110]

    Blake’s and Brock’s response was to assert that this evidence “simply did not assist the Court with the decisions that it was being asked to decide”, and to assert:

46. [111]

    Peter’s appeal is by way of rehearing and this Court is obliged to conduct a real review of the trial: Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55]. Blake’s and Brock’s reliance on principles apposite to the review of discretionary decisions is inapt. For the reasons already given, the process of finding facts has failed.

47. [112]

    A separate difficulty emerges from the segmented approach taken by the primary judge. On the most natural reading of his Honour’s reasons, which address the evidence of Messrs Formaggin and Lusted in a single paragraph early in those reasons, it seems that their evidence was sidelined then and there. Even if those reasons for putting their evidence to one side withstood scrutiny, the approach was erroneous. The obligation upon the primary judge was to assess the independent evidence of Messrs Formaggin and Lusted with regard to the whole of the evidence. In Nguyen v Tran [2018] NSWCA 215; (2018) 86 MVR 16 at [54], where a judge had expressed views based on some but not all of the evidence relevant to a particular issue, it was said that:

48. [113]

    Bezer v Bassan [2019] NSWCA 50; (2019) 87 MVR 447 was also a case where it was not possible to make findings on the ultimate issue “based only on a survey of some but not all of the evidence which bore on that issue”: at [110]; see also at [140]-[141].

49. [114]

    Broadly speaking, what was required was an evaluation of the testimonial evidence of Blake, Brock and Victoria against the substantially unchallenged evidence of Peter, Messrs Lusted and Formaggin, the contested evidence of Rodney, and the documentary evidence in the form of the wills and the hospital and nursing home notes, to the latter of which I shall now turn.

50. [115]

    In written and oral submissions, as well as in ground 2(c) of his appeal, Peter drew attention to other contemporaneous documentary evidence bearing upon Barry’s relationship with Victoria. At the end of his life, Barry spent time in hospital and in a retirement village. A note made in April 2021 in the hospital records stated:

51. [116]

    A progress note from St Andrews Ballina made by a nurse on 25 June 2021 said:

52. [117]

    Similarly, a “Care Plan Report” for Barry from St Andrews Village stated, under “Vital Information”:

53. [118]

    Victoria was cross-examined about these documents. She denied that they reflected Barry’s views of her. Of the first, she maintained that it must have reflected Barry’s being too sick and exhausted to see her. Of the second, she said that she had expressed dissatisfaction with the care he was receiving, and that the reason for the note was that “for them to say that didn’t – that he didn’t want me there would only have been because I was encouraging of him getting better care”. She denied that it was because she was badgering him to change his will.

54. [119]

    No finding was made concerning these documents and Victoria’s evidence. Indeed, the reasons of the primary judge did not mention the documents, nor any aspect of Victoria’s evidence at all, save in one respect to which I shall come. But in a case where the testimonial evidence was widely divergent, business records produced contemporaneously by third parties which bore directly on the quality of Barry’s relationship with Victoria were apt to be centrally relevant.

55. [120]

    Grounds 1(d) and (e) challenged other, more minor aspects of the process of fact finding. It is not necessary to address these subgrounds.

56. [121]

    Ground 2 challenged the conclusion that there were factors warranting the making of family provision orders. The gravamen of this ground turned on the findings at [83], [85], [86] and [88] reproduced at [59] above. Peter submitted that those findings failed to have regard to the fact that, after allegedly making statements to the effect that “Rodney would ‘do the right thing’” by the applicants, (a) Barry changed his will and nonetheless made no provision for Blake or Brock, (b) there was no evidence that Barry asked Peter or Rodney to look after Blake and Brock from the estate, (c) there was evidence to the effect that Victoria was badgering Barry to change his will so as to include Blake and Brock, and (d) Barry’s statement to Peter that he wanted him to follow the will. Peter submitted that the primary judge took into account the statements, rather than the subsequent will made in 2021. Peter also submitted that it was wrong for the primary judge to have taken into account as an important factor the fact that Darran would have benefited under Barry’s earlier will had he not predeceased him.

57. [122]

    At least in large measure, this ground is made out. In light of the above, I can be concise.

58. [123]

    First, it was wrong to rely upon Victoria’s testimonial evidence about Barry telling her that provision would be made for her sons without attending in any way to the cross-examination of her on this issue, or the contemporaneous documents which came close to compelling the conclusion that Barry had instructed the staff at both the hospital and the nursing home not to permit her to visit or speak with him. That evidence made it improbable that any statement was made to her by Barry that conveyed any assurance that Rodney would provide a benefit to Blake or Brock from his estate. It was also necessary to have regard to the testimonial evidence which the primary judge accepted from Peter that Barry complained about being badgered by her to change his will.

59. [124]

    Secondly, it was illogical to rely upon statements attributed by Blake and Brock to the deceased when the deceased subsequently executed a will which left nothing to Blake or Brock.

60. [125]

    Thirdly, the fact that, decades earlier, Barry had left half of his estate to Darran in the event that Elaine predeceased him does not say anything about Barry’s testamentary intentions in favour of Blake and Brock.

61. [126]

    Fourthly, insofar as the primary judge relied on the evidence bearing on dependency, the errors in fact-finding mentioned above carry through here too.

62. [127]

    Fifthly, the primary judge reproduced verbatim the statements attributed by Blake and Brock to Barry concerning being looked after by Rodney. It is true that they were not cross-examined on those statements. On the other hand, this was a case where the caution in Watson v Foxman (1995) 49 NSWLR 315 was apposite. A statement that “Rodney will take care of you when I’m not around” does not ineluctably mean that Rodney would provide money or assets to Blake and Brock after Barry’s death. A more natural reading of the words of a grandfather to young men whose father had died a decade earlier is that after the grandfather died, Rodney would be an older male to whom they could talk and from whom they could seek advice. “Take care of” does not necessarily mean “give money to”; it extends to the giving of pastoral or emotional care. When the objective facts that Barry made no provision for Blake or Brock in his 2009 or 2021 wills are borne in mind, it is far from clear that one should attach a testamentary intention to Barry’s words, accepting that they were said.

63. [128]

    Paragraphs 75 and 85 of Blake’s and Brock’s submissions responded to this ground relatively concisely, in slightly more than a page. None of those submissions detracts from any of the points made in the previous five paragraphs.

64. [129]

    Ground 3 of the appeal was that the primary judge erred at [103] in considering Rodney’s “needs”, as opposed to what was adequate and proper provision for Blake and Brock. Ground 4 complained that adequate provision was determined without regard to what was “proper”, without regard to the testamentary wishes in the will, without quantifying Blake’s or Brock’s needs and without considering the capacity of Rodney to meet his own needs. Ground 5 complained that, after allowing for costs, the effect of the order was that Rodney would receive about half (in fact slightly less than half) of the estate, and Blake and Brock the other half (in fact slightly more than half). Ground 6 challenged some findings adverse to Rodney.

65. [130]

    These grounds do not arise. But it may be doubted that it was appropriate to make provision in terms of a percentage of the net proceeds of sale of the home, rather than in a fixed amount. The primary judge made no finding as to the needs of either Brock or Blake, and no finding as to what the net proceeds of sale of the home would be (or indeed when the sale might occur). All this calls into question whether the approach adopted was one which complied with s 59(2). It is one thing to say that a fixed amount of money should be ordered by way of provision because that amount is the provision which “the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made”; it is another to say that the amount ought to be a fraction of the net proceeds of a sale when the timing and price and associated costs of that sale are unknown (there is no reason to think that the $50,000 estimate would be accurate). This was the point made by McDougall J in Bouttell v Rapisarda [2014] NSWSC 1192 at [96]:

66. [131]

    There may be cases where an approach similar to that adopted by the primary judge will be appropriate. But there were practical difficulties in this case, because the house had been damaged in a flood, and it seemed likely that a better price would be achieved if rectification work were first undertaken, leading to a question as to how the cost of such work should be borne. Even so, it does not follow that allocating 40% of the net proceeds of sale by way of orders for family provision in favour of Blake and Brock was appropriate. An alternative approach in a case such as the present, where the sale of the deceased’s home is inevitable, is for the sale to take place before a final order for family provision is made.

A retrial is not necessary

1. [132]

   The conclusion in Chapple at [103] is apposite to the present case:

2. [133]

   It is difficult for this Court, which did not see Blake or Brock or Victoria or Peter or Messrs Lusted or Formaggin give evidence, to resolve the primary facts so as to determine afresh whether Blake and Brock had established partial dependency, bearing in mind that despite Blake and Brock bearing the onus, the threshold is low. I am sceptical that, in light of all the evidence, they would have discharged the onus of establishing even partial dependency at any point in time, but I shall refrain from expressing a concluded view as to whether this Court could make that finding and thereby avoid a remitter.

3. [134]

   But let it be assumed, favourably to Blake and Brock, that they are eligible persons because at some stage in their lives they were partly dependent upon Barry. The onus rests on them to establish that there are factors warranting making an order for family provision, which is to say, factors such that Blake and Brock would be recognised as natural objects of testamentary recognition by Barry.

4. [135]

   On the evidence of Peter, which the primary judge accepted, neither Blake nor Brock had anything like a close relationship with Barry. Peter gave evidence, which he was not cross-examined on, and which was accepted by the primary judge, that:

5. [136]

   Similarly, Peter said:

6. [137]

   Most of that evidence was limited to evidence of his opinion, but that does not undermine its force.

7. [138]

   Finally, Peter said that when Barry was in hospital, and after he had written his 2021 will and after he had complained of Victoria badgering him to change his will, Barry told him “I have written my will and I want you to follow what’s in the will”.

8. [139]

   Once again, that evidence was accepted by the primary judge, and tells against Blake and Brock establishing that there are factors warranting the making of family provision orders in their favour. That conclusion is further supported by the documentary evidence and the evidence of Messrs Lusted and Formaggin. The text messages on which the primary judge relied do not materially detract from this. The primary judge was wrong to state that Blake’s evidence about his having a “close and loving relationship” with Barry was unchallenged; it was challenged in Peter’s affidavit evidence and it was the gravamen of Blake’s cross-examination; the same is true of Brock.

9. [140]

   There was conflicting evidence about the care given to Barry by Blake and Brock when they were adults. The primary judge found that when Brock was living in Lismore after 2014, he visited Barry regularly, and that when Barry was hospitalised he visited him, and did some work around the house, staying there for a period in December 2021. The conflicting evidence about the latter is summarised at [102] above. Although the primary judge made no findings about it, Blake said that when he lived with Barry in around 2011, he helped him with vacuuming and cleaning the pool. He said that in 2012 he assisted to replace the roof on Barry’s house, although he clarified in cross-examination that the two of them had been “taking some sheets off a roof” and putting a new roof on his house. He said that he and Brock both assisted delivering various aids such as ramps and bathroom aids as Barry’s mobility was reduced, and installed them over a number of afternoons, and from time to time brought groceries to him and visited him regularly. Brock denied Rodney’s evidence that this occurred on a single afternoon, and recalled three separate instances (the ramp, the bed lift and lounge room items). Rodney said that after 2011 when Blake had ceased living with Barry, he had “virtually no contact” with Barry until around 2017, and that thereafter he would visit occasionally. Rodney described Brock’s relationship with Barry “as non-existent until [Barry] became older and eventually became ill”.

10. [141]

    I shall adopt the approach of the primary judge, which is also the approach which is most favourable to Blake and Brock, and take their evidence at its highest. I shall also proceed on the basis that Barry told Blake and Brock that Rodney would “take care of” them after them after Barry died. Even so, those matters are insufficient to amount to something which would convert them to grandchildren who would be regarded as natural objects of testamentary disposition. Taken at its highest, the assistance provided by Blake and Brock was occasional and limited, while the statements that Rodney would “take care of” them were ambiguous. I am unpersuaded that Blake or Brock has made out anything like a social, domestic or moral obligation upon Barry to leave part of his estate to either of them.

11. [142]

    Evidently the primary judge formed an unfavourable view of Rodney. But the question is whether Blake or Brock had made out a case that there were factors warranting disturbing the testamentary wishes of Barry in his will. That question should have been answered in the negative, and it is difficult to avoid the conclusion that the judge’s views of Rodney contributed to his Honour’s being distracted from the real issues.

Orders

1. [143]

   For those reasons, the appeal must be allowed, the orders made by the primary judge set aside, and the proceedings dismissed.

2. [144]

   There is no reason of which I am aware to depart from the usual rule that costs should follow the event. However, Blake and Brock should have the benefit of a certificate pursuant to the Suitors’ Fund Act 1951 (NSW) in respect of the costs of an appeal brought about by the errors made by the primary judge.

3. [145]

   I propose the following orders:

4. [146]

   MITCHELMORE JA: I agree with Leeming JA.

5. [147]

   BASTEN AJA: I agree with Leeming JA.