Austin v NSW Trustee and Guardian

The notice of motion for joinder of the sole beneficiary

1. 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.
2. 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.
3. 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".
4. 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…".
5. 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".
6. 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.
7. (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.)
8. 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.

Late service of evidence

1. 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.
2. 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.
3. 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.
4. 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.
5. 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: 1. The proceedings had been commenced by the Plaintiff on 29 March 2016. Subsequently, it was listed for only one day; 2. On 29 July 2016, the fourth time the matter had been in the Family Provision List, orders had been made for each party to serve any further evidence in chief by 12 August 2016. 3. There had not been compliance with Uniform Civil Procedure Rules (UCPR), rule 31.19, which requires a party considering or intending to adduce expert evidence at trial promptly seeking directions from the Court in that regard and complying with Practice Note SC Eq. 5, which relates to expert evidence in the Equity Division. Nor had there been compliance with UCPR rule 31.28(1) which relates to the time for service of an expert's report. 4. The letter of instructions to Dr Miller was dated 28 September 2016. On 11 October 2016, at a pre-trial directions hearing before me, counsel for the Plaintiff sought no orders for the service of medical evidence from an expert Consultant Psychiatrist. 5. UCPR rule 10.2(1) provides that a party intending to use an affidavit that has not been filed, must serve it on each other interested party not later than a reasonable time before the occasion for using it arises. The report relied upon was dated 18 October 2016, but the affidavit of Dr Miller to which a copy was annexed, had not been served, effectively, until one business day before the commencement of the hearing. In my view, that was not a reasonable time before the hearing at which time it was to be read. (There was no suggestion that a copy of the report had been provided to the Defendant's solicitors earlier.) 6. The Plaintiff's counsel was not aware whether Dr Miller was available for cross-examination, in the event that the affidavit was permitted to be read and in the event that the Defendant required Dr Miller to be available for cross-examination. Counsel submitted that her instructing solicitors had not anticipated that, but "perhaps" cross-examination could take place by telephone. It was accepted that if this occurred, the hearing would not conclude within one day. 7. In my view, there were no exceptional circumstances that warranted the granting of leave to rely upon the report annexed to the affidavit, and the report did not merely update an earlier version of a report that had been served.

The Plaintiff's evidence

1. 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.
2. 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)).
3. It is also important to remember what Bryson AJ wrote in Zahra v Francica [2009] NSWSC 1206 at [1]: "In these proceedings the plaintiff makes claims against the deceased's estate and the facts that he alleges depend for proof very largely upon his own evidence. In approaching his evidence and making findings on a matter he alleges, I bear in mind the need for careful scrutiny to which evidence in such a case should be subjected. This need is well established and was stated clearly by Isaacs J in Plunkett v Bull (1915) 19 CLR 544. Two more modern statements appear in the judgment of McLelland CJ in Eq in Eyota Pty Limited v Hanave Pty Limited (1994) 12 ACSR 785 at 789 in a passage which was cited with approval in the judgment of Sheller JA in Eggins v Robinson (2000) NSWCA 61 at [26]: "... in a claim based on communications with a deceased person the Court will treat uncorroborated evidence of such communications with considerable caution, and will regard as of particular significance any failure of the claimant to bring forward corroborative evidence which was, or ought to have been, available."
4. 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.
5. 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.
6. 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".
7. 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.
8. 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.
9. 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: "- Animosity , when grandfather died used fund in inappropriate manner. Went to Europe. Married someone who Elizabeth doesn't approve of after … pregnancy."
10. (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.)
11. 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.)
12. 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".
13. 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.
14. The Plaintiff endeavoured to explain the failure to produce the document. The following passage of evidence, at T16 - T17, is relevant: "Q. Can I just ask you to have a look again at that notice to produce to Court. Paragraph 1 refers to a document containing written consent signed by the deceased that you may live in the property. You have not produced that document, have you? A. No. Q. And yet in the defence to cross-claim at paragraph 3(c) you assert that there was a written consent given, don't you? A. Well, there was originally because my brother harassed me with the police and to stop the police turning up every two days the police had asked me to get a signed document from my grandmother saying I could stay there. Once I produced that document to them they stopped turning up. So it was simply to stop them, it wasn't for a Court case such as this. I never foresaw this. Q. If there was a written consent, where is it? A. Once it had served its purpose, showing it to the police, I discarded it. It had served its purpose basically. I didn't think of keeping it as such. … Q. So is there any reason you still didn't have that letter to produce it in these proceedings? A. There's no reason other than that I - as I stated, it had served its purpose. The police had stopped turning up since so there was no further need for it."
15. 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: "Q. Just before you leave the witness box, Mr Austin, I am having some difficulty with the evidence that you have given in regard to the document which you say your grandmother signed. That document was prepared, you say, because of the events involving David, is that so? A. Yes, your Honour, that is correct, yep. Q. And as I understand your evidence, it was David who was asserting that you had no right to be staying in the Beverly Hills property, is that right? A. Right. Q. And he did that in a number of ways. The first way you have told me he did that was to involve the police, is that right? A. Yes. Q. And the second way you have told me he did that was to bring proceedings in NCAT which you said in your affidavit had been dismissed? A. Yes. Q. In addition to that, I have read some of the things he says and he says that several times after he found out you moved in he made requests of you to vacate the property? A. Right, yep. Q. Is that all right? A. Yep. Q. what I am having difficulty with is this: Knowing that he was agitating that you had no right to remain in the property and in circumstances where you say you had a written document signed by your grandmother giving you permission to remain in the property, can you explain to me why you destroyed that document? A. The police were turning up consistently and the policeman said to me, "Get a piece of paper. Get her to sign it. Get your friend to witness it. Show it to me and we will stop", and so I did. Q. But it wasn't only the police that were harassing you, as it were. You have given evidence that David was causing you problems. I am just troubled about why you didn't retain the document so that if he-- A. In hindsight, your Honour, it was something I regret and I have turned my house upside down looking for it."
16. 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.
17. 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.
18. 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).
19. 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.
20. 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.
21. 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.
22. A NSW Police Force COPS record entry, dated 5 June 2012 (Ex. 5/8-9) notes the following: "INF [David Austin] stated his brother Adrian Austin is possibly squatting at the A/loc INF has asked that police check that he is not at the location INF has power of attorney E48020857 relates could police please contact INF with result…. … [Adrian Austin] and [David Austin] are brothers, however do not get along and have lived in separate states for a long time. The LOC [Beverly Hills property] belongs to [David and Adrian's] grandmother, Elizabeth Sheppard. [David Austin] believes he has power of attorney over the property due to Sheppard's failing health. On Monday 4 and Tuesday 5 June 2012, [David Austin] has contacted police to attend the [Beverly Hills property] to determine whether [Adrian Austin] is residing there, as [David Austin] states he has given a formal demand to vacate the premises. Police attended both dates and have spoken to [Adrian Austin] who was at [the property] and have seen the letter sent from [David Austin] to [Adrian Austin], however this is just a letter of demand from [David Austin's] legal representative and not a court order for his eviction. [David Austin] has not provided this to police on any occasion. [Adrian Austin] also states he has a signed letter from Sheppard revoking the power for attorney from [David Austin]. Police have determine [sic] this to be a civil matter between the two parties and will advise [David Austin] of this, and not to contact police unless a court order is given for his eviction."
23. (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.)
24. 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: "Beverly Hills property… vacant - Deeds @ unknown - Check s/custody - living in Aged care - check sole name".
25. 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.
26. As was written in RHG Mortgage Ltd v Ianni [2015] NSWCA 56, by McColl JA (with whom Sackville AJA agreed), at [76]: "The circumstances for drawing a Jones v Dunkel inference are found where the uncalled witness is "a person presumably able to put the true complexion on the facts relied on [by a party] as the ground" for any inference favourable to the plaintiff: Jones v Dunkel (at 308) per Kitto J; Australian Securities and Investments Commission (ASIC) v Hellicar [2012] HCA 17; (2012) 247 CLR 345 (at [168]) per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ."
27. 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.
28. He also stated in his affidavit: "I came to live in Nan's house as it had been vacant for a number of years. I have lived there rent free. … I pay the power bills and Water rate bills…".
29. 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.
30. 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).
31. The Plaintiff was asked some questions about this part of the defence at T14.03 - T14.27: "Q. So you signed that affidavit saying that what was set out in the defence was true? A. Yes. Q. But paragraph 8 is not correct, is it? A. To the extent that I paid the water rates isn't true, no, not in my name. So it can be misconstrued that I hadn't paid them, which they had been paid for. It was that the water rates weren't in my name as such. Q. But you knew at the time you swore that affidavit that you hadn't paid those amounts? A. I believed the amounts were paid, so that's why I said. HIS HONOUR Q Mr Austin, you are at cross-purposes. Ms Clemmett is directing your attention to the statement in the defence to cross-claim which asserts that you paid certain amounts? A. Right. Q. I thought you said a moment ago to me that you hadn't paid any rates, is that correct? A. I have misconstrued the statement here, being that the statement I have made that the rates were paid, the water rates and the house rates were paid for, not that I had paid them myself, yes."
32. 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.
33. 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.
34. 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).
35. 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.
36. 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".
37. 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.
38. 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.
39. 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.
40. 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.
41. 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.
42. 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.
43. 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.

Claim for Family Provision Order

1. 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.
2. 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: "Qualifications on "Principles" As I have stated in a number of cases (see, for example, Bowditch v NSW Trustee and Guardian), I do not intend what I have described as "principles" to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I identify them merely as providing useful guidance, which may be applied, with circumspection, in considering the statutory provisions, the terms of which must remain firmly in mind. The importance of the qualifications to which I have referred in the last two paragraphs have been stressed in Chapple v Wilcox by Basten JA, at [18]-[20], and by Barrett JA, at [66]-[67]. They must be remembered."
3. 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.
4. 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)).
5. 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: "(e) a person: (i) who was, at any particular time, wholly or partly dependent on the deceased person, and (ii) who is a grandchild of the deceased person…"
6. The language of the relevant sub-section is expressive of the person's status, as well as his, or her, relationship to the deceased. There is no age limit placed on an eligible person making an application.
7. 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)).
8. 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.

Eligibility - Grandchild and partly dependent

1. 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).
2. 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.
3. 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.
4. 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).
5. In Petrohilos v Hunter (1991) 25 NSWLR 343 at 346-347, it was said: "The word 'dependent' is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependence is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance, young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of the language. This accords with what Samuels JA said in Ball v Newey (1988) 13 NSWLR 489 at 491, that '"Dependent" in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed'. If the correct view were that the context of the statute requires a limitation of the word to 'financial or material' matters as McClelland J said in Re Fulop (dec'd) or to 'other forms of dependence analogous to but distinct from financial dependence' as Samuels JA suggested in Ball v Newey (at 491), then surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them. To suggest that, in a money sense they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for their well-being does not make them partly dependent upon her. In my opinion it does. The same considerations apply to a step-child or his or her step-mother when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example by Powell J in Dunn v Public Trustee (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period."
6. 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".
7. 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: "There has been a tendency in some cases to equate 'dependent' with 'financially dependent'. In Petrohilos v Hunter (1991) 25 NSWLR 343 at 346 Hope JA, with whom the other members of the Court agreed, pointed out that while one of the commonest forms of dependence may be a financial one 'in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things' the word, as used in the statute, is not limited to financial dependence."
8. In Re Estate of Hakim; Simons v Permanent Trustee Co Ltd [2005] NSWSC 223 at [42], Palmer J wrote: "Dependence for the purpose of s 6(1)(d), so far as the cases have discussed, is seen as the giving of financial or other material assistance by the deceased over a significant period of time in order to meet a need of the eligible person, with the result that the recipient has come ordinarily to rely upon that assistance."
9. 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 my view, the law remains accurately stated by the joint judgment of Sugerman P, Jacobs and Mason JJA in Middleton v Kiama District Hospital [1970] 3 NSWR 136. Their Honours said, at 138: 'Dependency is, moreover, a complex question of fact, which may involve the consideration of many elements, including both past events and future probabilities. It is not necessarily correlative with a legal duty to maintain. A person may in fact be dependent upon another who is under no legal duty to maintain him; and may be so dependent even though there is also in existence one who has legal duty to maintain, e.g. a husband his wife. On the other hand there may be no dependency in fact upon a person who is under a legal duty to maintain. The existence of the legal duty is, however, one of the many elements to be taken into account in deciding upon a question of dependency in fact. Dependency and actual support are not necessarily correlative. There may be dependency although for the time being there is no actual support. And it seems to us to be possible to figure cases in which there may have been a provision of support, or of some measure of support, at least for a short time or for some special purpose, which did not amount to dependency. The definition of "dependants" does not merely refer to one who was in fact supported by the deceased worker at the time of his death; a "dependant" is a member of the workers' family who was "wholly or partly dependent for support upon the worker at the time of his death". Dependency refers to a state or condition of being dependent, to having been in this relationship to the deceased. As to all the above matters see Hodges v Scotts' Provision (Wholesale) Pty Ltd [1963] WCR 161 and cases there cited.'"
10. 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: "The matter as to what is required for dependency was fully dealt with by this Court in Petrohilos v Hunter (1991) 25 NSWLR 343. Although dependency is not limited to financial dependency, it does involve one person being beholden to another person for some material or physical help or succour, emotional dependency is not enough."
11. 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: "The tasks which the Deceased performed for his mother, were many and varied, and are set out in paras 1 and 12 in Mrs Jansson's affidavit of 5 June 2008 and in paras 6-10 in her affidavit of 25 June 2008. Those instances of dependency included supervision, maintenance and physical activities involved in the partnership conducted by Mrs Jansson and the Deceased in the business of Hereford breeding and livestock grazing; sale of cattle; Mrs Jansson and her son maintained a joint account with the Rural Bank (later State Bank) at Tamworth, conducted in their joint names, into which moneys from the sale of cattle were deposited, and from which household and property expenses were paid. Mrs Jansson said that she relied on the income from the sale of cattle by the Deceased in order to make ends meet on the property. Mrs Jansson said that the Deceased carried out most of the physical activities relating to the cattle, the sheep, the maintenance and use of machinery, the sale of livestock, farming work (for example, driving a tractor, sowing crops, spreading superphosphate). She said that without the Deceased performing that work, she would not have been able to carry on the business. She said that the Deceased also performed for her such domestic work as: chopping and stacking firewood, mowing the lawn, maintaining the house by cleaning out gutters, frequently cooking, purchasing groceries and performing other shopping for Mrs Jansson; as well as driving her to appointments in town, since she did not hold a driver's licence. In short, Mrs Jansson from her late middle age into her old age was very reliant and dependent upon the Deceased in the practical aspects of her everyday life, as well as being physically and practically dependant upon him in the conduct of their partnership business. I am satisfied that Mrs Jansson was dependent upon the Deceased in respect to the foregoing matters of personal assistance, and, further, that she was dependent upon him in relation to the earning of partnership income, and the upkeep of the rural property. I am satisfied that Mrs Jansson was at least partly dependent upon the Deceased from the period after her husband's death in 1970 and especially during the period from 1980 until 2002 (a period when Mrs Jansson was aged from 65-87)."
12. On appeal, Brereton J, with whom Basten JA and Handley AJA agreed, wrote, at [13]: "For my part, I would be inclined to accept that one co-owner of property is not necessarily to be regarded as dependent on the other co-owner for accommodation, since each has a right to occupy the property; nor that one partner in a partnership is to be regarded as dependent upon another just because it is the other who does the work or labour; nor that an aged parent is necessarily to be regarded as dependent upon a child who provides occasional domestic assistance: I accept that "partly dependent" involves more than "minimal" dependence [McKenzie v Baddeley [1991] NSWCA 197..."
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]: "It may be difficult to identify any real difference between the meaning of the words 'substantially' ('of real importance or value') and 'significantly' ('of real import') in this context: The Concise Oxford Dictionary, however I am of the view that financially 'partly dependent' in this context means that the applicant relied on the deceased to provide financial support without which the applicant would not have been able to meet the reasonable costs of living. The assessment of dependency in respect of a child will be different from the assessment of dependency in respect of an adult. When an adult grandchild claims financial dependency there will be matters that need consideration that would not be relevant in the case of a child. It is important in this regard to draw the distinction between expectation and dependence. If an adult receives payment on a regular basis from the deceased and chooses not to obtain money from another available source because of the expectation of regular payment from the deceased, that does not amount to dependence within the meaning of that term in the Act. Financial dependency in the case of a healthy adult who is able to work means a necessity to rely on the deceased because there is no other source of finance available."
14. 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".
15. 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: "Dependency can be satisfied even where only part of the claimed dependent's needs are being met by a person on whom the dependence is said to exist."
16. In Bayssari v Bazouni [2014] NSWSC 910 at [53], Ball J put the matter this way: "Dependency seems to me to involve a degree of reliance so that, if the material support giving rise to the dependency is withdrawn, the dependent person will face some difficulties in providing that support for himself or herself, either by reason of some physical, financial or emotional limitation or attribute."
17. 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 Evidence on Eligibility

1. 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.
2. 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.
3. 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.
4. 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.
5. 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 "84. In the period from Nan's admission to the nursing home, up until the commencement of my residence at Beverly Hills, I came to Sydney every couple of years and visited Nan at the home. 85. While she did recognise me, she constantly repeated herself and said things to me that had an adverse effect on me emotionally, such as "the Austin's killed your mother." 86. I found it difficult to visit Nan as I found she could say things to me that affected me emotionally in a very negative way. My sister's suicide and my mother's death when I was 12 years of age had left me emotionally fragile. Nan recognised this and was quick to remind me of her view that the Austins were responsible for her daughter's death. 87. She pulled tears out of me and simply sat there and smiled."
6. 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."
7. 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.
8. The Plaintiff submits: "From 2010, when the Plaintiff moved into the Deceased's house, the Plaintiff became dependent on the deceased for his accommodation."
9. 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."
10. 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.
11. 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): "Diversional Therapist was contacted by Mrs Sheppards Neighbour, Scott, at 1600 hours. He stated that he had noticed a person living at Mrs Sheppard's house for the past 2 to 3 days. Diversional Therapist then discussed the matter with the Facility Manager, Nicolas Maksymow, and he suggested informing the police. Diversional Therapist then called the Hurstville Police Station and an officer was sent to the house. Diversional Therapist then informed Scott the neighbour that the police had been call [sic]. Diversional Therapist received a call at 1745 hours from Emma Wickham of the Hurstville Police who said that a male by the name of Adrien Austin was staying in the house as was the request of his brother Matthew Austin to clean the house. The police are yet to contact Matthew to confirm the story. Emma Wickham will contact the Diversional Therapist Wednesday morning, 14 December, to inform her on the situation. Mrs Sheppard has been informed of the incident. She confirmed that Adrien is her grandson but has not seen him in years and would not know what he looks like now. Mrs Sheppard is quite upset as she thinks Adrien is at her house to steal her belongings."
12. Then, there is evidence from David, which is in the following terms: "On the 22nd December 2011, I, together with my son Lachlan Austin visited my grandmother for Christmas at the Aged Care facility. During this visit my grandmother became quite upset and said to me words to the effect that "Adrien has broken into my home and was living there. The police are not doing anything please get rid of him." In response to my grandmother's wishes I visited her home where I found my brother Adrian Austin in residence… I asked my brother to leave. He said words to the affect [sic] that he would not leave as "Matthew has said I can stay for a few more days"."
13. 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: "3. Upon arrival, and after exchanging Christmas pleasantries Mrs Sheppard became quite upset and started to cry. She said words to the effect "Your brother Adrian has broken into my home and is still there. The police are doing nothing about it. The people at Fairmont has done all they could. David, I want you to get rid of him out of my home". 4. Mrs Sheppard remained agitated for some time but then settled down for the rest of the visit. 5. However, preparing to depart again she said "David, please make sure you get Adrian out of my home. He is the last person I want here.""
14. I have no hesitation in accepting the evidence of David and of Amanda where it conflicts with that of the Plaintiff.
15. 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.

Determination of Eligibility

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

Factors Warranting the Making of the Application

1. 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.
2. 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".
3. 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: "… [F]actors which when added to facts which render the applicant an 'eligible person' give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased."
4. 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: "To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition."
5. 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.
6. 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]: "In my opinion it would be an error to treat the strength of a claim for provision under s 7 as determinative, either way, of the question under s 9(1). Factors, however strong, which show that the making of the application is not warranted are not the object of enquiry and appear to be irrelevant. The use of language referring to a plurality of factors ('there are factors') is not in my opinion to be understood literally as meaning that the Court must recognize separately more than one factor; in my opinion the plural is used to indicate the generalised nature of the matter under determination."
7. 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]: "As noted above, compliance with this requirement was not the first issue addressed by the primary judge, although s 9(1) envisages that it is to be determined before the Court decides whether to 'proceed with the determination of the application'. In practice, the factors relevant to the issue raised as a preliminary matter are, to a significant extent, co-extensive with those which must be addressed in determining whether the testator made adequate provision for the applicant: see Churton v Christian (1988) 13 NSWLR 241 at 242-243 (Hope JA) and 248-249 (Priestley JA). Nevertheless, the express distinction between two classes of eligible person must be recognised. It appears to have been drawn on the basis that persons falling within the first category (comprised of those identified in pars (a) and (b)) are 'regarded as natural objects of testamentary recognition', whereas those falling within the second category (identified in pars (c) and (d)) are potentially appropriate objects of testamentary recognition, depending upon their circumstances: see Churton at 252 (Priestley JA) applying the analysis of McLelland J in Re Fulop Deceased (1987) 8 NSWLR 679 at 681."
8. In Evans v Levy [2011] NSWCA 125 at [62]-[64], Young JA, with whom Campbell JA and Sackville AJA agreed, wrote: "It would seem that what the drafter of the legislation of 1982 did was to endeavour to avoid some of the complications that had been found to exist with cases under the 1916 Act as to just who was an eligible person by broadening the category to a very extensive degree. However, to provide some sort of filter, s 9(1) was enacted so that, without the estate having to get into a great expense, the question of whether the application could possibly succeed would be determined early. Unfortunately, experience has shown that that was a vain hope. However, the intended result of the wide nature of para (d) of the definition of "eligible person" and s 9(1) is to seek to restrict people whose claims should proceed to a hearing to those who are in very similar categories to those who are within paras (a) and (b) of the definition. On s 9, the decision of M McLelland J in Re Fulop (dec'd) (1987) 8 NSWLR 679 has stood the test of time."
9. In Sassoon v Rose [2013] NSWCA 220 at [15], the Court of Appeal referred to the fact that the trial Judge (Macready AsJ) had: "correctly identified the relevant principles as those stated by McClelland J in Re Fulop Deceased (1987) 8 NSWLR 679 at 681, approved by this Court in Churton v Christian (1988) 13 NSWLR 241 at 252 and applied in cases such as Diver v Neal at [8]. Those "factors" are ones which, when added to the facts which render the applicant an "eligible person" (in Ms Sassoon's case the fact that she is the former wife of the deceased), give her the status of a person who would generally be regarded, according to community standards and expectations, as a natural object of testamentary recognition."
10. In Porthouse v Bridge, Bryson AJ commented, at [7] and [9]: "This provision gives no clear indication of the nature of the factors which should be regarded as warranting the making of the application. Decision whether there are factors which warrant the making of the application is committed to the Court in extremely general language; the Court is to have regard to all the circumstances of the case (whether past or present). The effect is that a very broad power is given to the judge who hears the case to recognize and assess the significance of the circumstances of the case and what regard should be paid to them, what the factors are and what they warrant. There may be very cogent factors which demonstrate that the making of the application is warranted, but it is unlikely that this will often be the case, and the section commits to the Court a power of determination which is difficult to distinguish from a discretion of the broadest kind. … The recognition of factors and their weight is left to the determination and opinion of the Judge. In my opinion it would be an error to treat the strength of a claim for provision under s 7 as determinative, either way, of the question under s 9(1). Factors, however strong, which show that the making of the application is not warranted are not the object of enquiry and appear to be irrelevant. The use of language referring to a plurality of factors ("there are factors") is not in my opinion to be understood literally as meaning that the Court must recognize separately more than one factor; in my opinion the plural is used to indicate the generalised nature of the matter under determination."
11. In Chapple v Wilcox [2014] NSWCA 392; (2014) NSWLR 646, at [4]-[6], Basten JA wrote: "The primary category of eligible people are spouses, including those in a de facto relationship with the deceased at the time of death and a child of the deceased. Other eligible persons (a category including the claimant) are required to satisfy the court that 'having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application': s 59(1)(b). The claimant must also satisfy the court that at the time when the court is considering the application, adequate provision for his proper maintenance, education or advancement in life has not been made by the will of the deceased: s 59(1)(c). Subsection (1)(c) assumes that some provision should have been made for the claimant by the will of the deceased; subs (1)(b) treats the primary category of eligible persons as naturally satisfying that assumption, whereas the secondary category (into which the present claimant falls) need to justify the assumption: see, in relation to relevantly identical provisions in s 9 of the Family Provision Act 1982 (NSW), Re Fulop Deceased; Fulop v Public Trustee (1987) 8 NSWLR 679 at 681 (McLelland J). That approach obtains support from the provisions of Ch 4 of the Succession Act dealing with intestacy. Those primarily entitled to a distribution from the estate of an intestate are a surviving spouse (ss 110-113) and the deceased's children (s 127). A grandchild has an entitlement, but only a presumptive share of a child of the intestate who predeceased his or her parent: s 127(4)."
12. Finally, I refer to Yee v Yee [2016] NSWSC 360 at [199] - [200], in which Slattery J wrote, after referring to the authorities: "It seems to me looking at the development of this line of authority and especially what the Court of Appeal said in Evans v Levy, that the aspect of prospects of success, mentioned in Brown v Faggoter as a possible factor warranting, cannot be a decisive factor on its own. The authorities do not suggest that the applicant's prospects of success cannot be taken into account as a factor warranting. This seems to be self-evident from the reasoning of McLelland J in Re Fulop and from Churton v Christian, which both show that there must often be a substantial degree of overlap in practice between (1) the factors warranting, and (2) those matters which must be addressed in determining whether the testator has made adequate provision for the applicant. In Diver v Neal [2009] NSWCA 54, Basten JA (with whom Allsop P and Ipp JA agreed) said that where factors warranting were to be proved, "each issue to be determined involved identification of the relationship over the course of their lives".
13. 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.

Evidence of the Plaintiff

1. 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.
2. 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.
3. 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.
4. 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.
5. I have also referred to the Plaintiff's evidence and my findings regarding his visits to the deceased after 2010.
6. 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.
7. 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.
8. 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.

Entitlement to Provision

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. However, counsel for the Defendant submitted: "…even if the Plaintiff were found to be an eligible person, and even if there were found to be factors warranting the making of an application, when David's relationship with the deceased, and his financial needs, are taken into account, along with the quality of the Plaintiff's relationship with the deceased, 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. The Plaintiff ought not be put in a position to buy an unencumbered property, and a fund that covered part of a purchase price would be of no utility, in circumstances where the Plaintiff could not afford to pay down a mortgage. On the other hand, the benefit the deceased intended David to receive, if he did receive it, would facilitate some greater level of comfort for David, with a fund to provide for him in the future if he lost his job, and would enable David to support his son in obtaining tertiary education. There can be little doubt that the fund would be put to good use."
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. In all the circumstances, the Plaintiff's Summons must be dismissed.

The Cross Claim

1. 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.
2. 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.
3. 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.
4. 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.
5. I am satisfied that an order for possession should be made in favour of the Defendant.
6. I shall hear each party's submissions on costs in due course if they are unable to agree.
7. The Court: 1. Not being satisfied that the Plaintiff is an eligible person, or that there are factors warranting the making of his application, orders that the Plaintiff's claim be dismissed. 2. Gives judgment for the Defendant/Cross-Claimant for possession of the whole of the land comprised in Certificate of Title, Folio Identifier xxx, being the land situated at, and known as xxx Edgbaston Road Beverly Hills, in the State of New South Wales. 3. Grants leave to the Defendant/Cross-Claimant to issue a writ of possession to enforce Order 2 forthwith. 4. Orders that execution of the writ of possession for the Beverly Hills property be stayed until midnight on 11 December 2016. 5. Orders that the Cross-Claim otherwise be dismissed. 6. Orders that any argument as to costs be listed on a date to be arranged. 7. Orders that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW).
8. (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.)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 December 2016