Bennett v Bennett

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION 5133/99 Master McLaughlin

Monday, 5 November 2001 David William Bennett v Bruce Anthony Bennett

Judgment 1 Master: These are proceedings under the Family Provision Act 1982. 2 By summons filed on 21 December 1999 the Plaintiff David William Bennett claims an order for provision for his maintenance, education or advancement in life out of the estate or notional estate of his late mother, Hilda Aileen Bennett (to whom I shall refer as "the Deceased"). Despite the reference to "the estate or notional estate" in the principal relief sought by the Plaintiff, it is not asserted by the Plaintiff that there exists any notional estate of the Deceased. 3 The Deceased died, aged eighty-six, on 22 June 1998. She left a will dated 22 October 1996, probate whereof was on 7 October 1998 granted to Bruce Anthony Bennett, the executor named in such will (who is the Defendant to the present proceedings). 4 The Deceased, who was a widow at the time of her death, was survived by her four children, being her sons John, David, Bruce and Kevin. 5 The only significant asset of the Deceased at the time of her death was the house property situate at and known as 13 Cobham Avenue, West Ryde, which had been the family home of the Deceased since 1964. It was agreed between the parties that the present value of that house property is $420,000. 6 The Deceased's eldest son John, who is not married, has continued to live in that residence to the present time. Each of the other sons of the Deceased resided there until he married. In 1985 the Deceased's son Bruce, whose marriage had by then come to an end, resided with the Deceased and John for a period of about eighteen months. Bruce returned to live in that residence at Cobham Avenue in February 2001 and has continued to reside there to the present time. 7 By her will the Deceased gave her jewels and trinkets to her daughter-in-law Annette Mary Bennett, who is the wife of Kevin. An estimate of $500 was by the Inventory of Property ascribed to that item, which was described as consisting of "one pair of earrings, necklace and one watch". I would here interpolate that the jewels and trinkets of the Deceased which after her death were received, pursuant to the terms of her will, by her daughter-in-law Annette were produced to the Court during the course of the hearing. The foregoing description of the jewels and trinkets (although not necessarily the estimated value ascribed thereto) set forth in the Inventory of Property appears not to be accurate. 8 The will went on to provide that the Cobham Avenue property (described in the will as the principal residence of the Deceased owned by her at the date of her death) together with the contents thereof should be held on trust to permit her son John to reside therein for his lifetime, subject to certain conditions, as to the payment of outgoings and the like (which conditions have been observed by John). 9 The will further provided that from the residue of the estate the Plaintiff David should receive a legacy of $5,000 and that the balance should be divided equally among the other three sons of the Deceased, being John, Bruce and Kevin. 10 It will be appreciated that the assets of the estate, apart from the Cobham Avenue property, are not sufficient to meet the legacy of $5,000 to the Plaintiff. Indeed, John Bennett has advanced to the estate funds necessary to pay not only the fees and administration expenses of the estate, but also the legal costs of the Defendant of the present proceedings. 11 It will also be appreciated that those costs of the Defendant of the present proceedings (estimated to be in an amount of $27,500) and the costs of the Plaintiff, in the event that he be successful in his present claim (such costs estimated to be in an amount of between $45,000 and $50,000), must also ultimately be met out of the assets of the estate. 12 The Plaintiff was born on 25 February 1944, and is presently aged fifty-seven. He married in 1969, at which time he left the family home at Cobham Avenue, in which he had been living with his parents and his three brothers, and moved into a residence which he and his wife purchased at 62 Hay Street, West Ryde. That house property is still the residence of the Plaintiff and his wife Marie. They have three sons, all of whom are now independent. 13 The Plaintiff from the time when he left school at the age of sixteen until his retirement in January 2000 was employed in the New South Wales Public Service. For most of that period he worked in the Maritime Services Board and its statutory successor, the Sydney Ports Corporation. At the present time he is employed as a cleaner, gardener, part-time driver. 14 The Plaintiff's wife Marie, who is presently aged fifty-five, continued to work from her marriage until 1970. She later resumed employment from 1985 to 1995, and in more recent times she has been employed for one day a week. 15 In November 1999 the Plaintiff suffered an injury to his right leg as a result of a fall. In consequence, the Plaintiff underwent surgical procedure in hospital, and needed to rely upon crutches for five months. According to the Plaintiff, that injury has resulted in his suffering pain and limitation of his activities. The Plaintiff has neither sought nor obtained any legal advice concerning any rights which he might have arising out of that accident. 16 The Plaintiff and his wife jointly own the following assets: House property situate at and known as 62 Hay Street, West Ryde Cottage at Manyana, on the South Coast of New South Wales Moneys in bank accounts and on deposit (totalling $46,000) NRMA shares 1998 Holden Vectra motor vehicle Toyota Camry motor vehicle 17 In addition to the foregoing the Plaintiff has preserved benefits in the State Superannuation Fund, in an amount of about $98,500, and a further superannuation entitlement of about $1700 with MTAA, to which his present employer pays his statutory entitlement. 18 Since 4 July 2000 the Plaintiff has been employed as a cleaner, gardener and part-time driver for Hunter Holden at Ryde, where he works five days a week, receiving $434 net a week. The Plaintiff also receives a pension from the State Superannuation Fund in an amount of $184 net a week. That is, he receives income totalling $618 net a week from the foregoing sources. In addition, the Plaintiff and his wife conjointly receive income of about $2,600 a year from interest on bank accounts and other deposits, and they will be entitled to receive dividends on their shares in the NRMA. 19 The Plaintiff's wife receives income of about $9,000 a year from her part-time employment, in which she works for one day a week, at the Ryde Medical Centre. 20 In consequence, the Plaintiff and his wife receive a total income of about $43,736 a year (although the evidence is not clear whether the entirety of that amount is net income or whether a component of about $11,600 is gross income). In addition, the Plaintiff and his wife will, in due course, be entitled to receive income by way of dividends upon their NRMA shares. 21 Also, the Plaintiff's wife in her own name has accounts with NRMA Building Society ($15,000), ING Bank ($31,150), State Super - Managed Investment ($50,000). In addition, the Plaintiff's wife has a present superannuation entitlement in an amount of about $95,000. 22 The Plaintiff as a son of the Deceased is an eligible person within paragraph (b) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such he has the standing to bring the present proceedings. 23 It cannot be emphasised too strongly that in claims for provision under the Family Provision Act it is the responsibility of the applicant to set forth as fully and as frankly as possible all details of his financial and material circumstances, including details of his assets and liabilities, of his income and outgoings (and, where the applicant is living with a spouse, those of the spouse). 24 In the instant case this the Plaintiff has significantly failed to do. He has been far from frank, or forthcoming, especially concerning the details of his assets, and the appropriate values to be ascribed to those assets. 25 In his principal affidavit (being that of 19 February 2001) the Plaintiff ascribed to the house property at 62 Hay Street, West Ryde (which is unencumbered) a value of $400,000. However, under cross-examination the Plaintiff agreed that the present value of that property is between $450,000 and $500,000.

26 Although the affidavit evidence of the Plaintiff did not include among his assets the contents of the residence at West Ryde, those contents are insured with NRMA Insurance, for $111,192. 27 In his principal affidavit the rural property at Manyana was described by the Plaintiff only as "Cottage at Manyana". Not only did he fail to identify the location of that residence in his affidavit, but he continued to withhold its location when, in the course of correspondence between solicitors, the Defendant requested that information. The Plaintiff expressly instructed his solicitors not to provide the address of that property. He was cross-examined concerning his refusal to give that information, and his only explanation was - somewhat curiously for an applicant for an order for provision - that he did not consider the information to be relevant to the present proceedings. 28 It also emerged during the course of the cross-examination of the Plaintiff that the contents of the rural property at Manyana are currently insured for $24,000. There was no reference to any such contents in the Plaintiff's affidavit evidence concerning his assets. 29 In respect to this rural estate at Manyana (which is unencumbered) it should also be observed that the Plaintiff did not place before the Court any information as to the nature of the property, for example whether or not it included a residence (and details of the accommodation is any such residence) and the area of its grounds. Neither did he choose to inform the Court of the frequency wherewith he and his wife, or any other members of their family, availed themselves of its facilities (although there was reference to it being resorted to at week-ends). In this regard, however, it is interesting to note that the Toyota motor vehicle is registered at the address of the Manyana property. The explanation for that registration address proffered by the Plaintiff (that it was through inadvertence or as the result of an oversight) was totally unconvincing. It was asserted by the Plaintiff that the Manyana property was not his principal place of residence, but he denied that he registered the Toyota motor vehicle at that location with a view to incurring a somewhat lesser registration fee than if the motor vehicle were to have been registered at the West Ryde address. 30 Although the value of the Manyana estate is asserted in the Plaintiff's affidavit to be $95,000, yet the structure erected thereon alone is insured, with NRMA Insurance Limited, for $100,000. The Plaintiff stated that he had paid about $44,000 for the property. He agreed under cross-examination that the total figure for the purchase and for the value of the building, being an amount of $144,000, was considerably more than the figure of $95,000 disclosed in his affidavit. 31 In August 2001 the Plaintiff purchased his Toyota Camry motor vehicle for $1,500. That purchase price was the only information disclosed by the Plaintiff in his affidavit evidence concerning that motor vehicle. Nevertheless, he has insured that motor vehicle for a value of $4,000. Under cross-examination the Plaintiff agreed that the price for which he had purchased the motor vehicle was less than its value. Whilst the Plaintiff's affidavit evidence concerning this motor vehicle could not be said to be untrue, it certainly gave a quite misleading impression concerning the value of the asset. 32 The foregoing matters are instances of the failure of the Plaintiff to place before the Court as fully and as frankly as possible all information concerning his financial and material circumstances. 33 That lack of frankness on the part of the Plaintiff concerning his circumstances was totally consistent with his conduct in relation to his former employment in a second job as a cleaner, and with the explanation or attempted explanation offered by the Plaintiff during the course of his oral evidence concerning that employment. 34 Under cross-examination the Plaintiff admitted that he had worked under a false name for the New South Wales Government Stores Department in a second job as a cleaner. He said that he knew that by working under that false name he was misleading the authorities who were employing him, and that he knew that he was possibly even breaking the law. I regarded the Plaintiff as being totally evasive in responding to questions about why he had worked under a false name. He was given every opportunity, both under cross-examination and (in the face of objection on behalf of the Defendant) in re-examination by his own Counsel, to give to the Court an explanation as to why he had worked under a false name. He offered no explanation whatsoever. His answers were totally non-responsive to the questions asked of him on this topic. I regarded the conduct of the Plaintiff in working under a false name as reflecting extremely badly upon his honesty and upon his credit as a witness in the instant case. I regarded the totally unsatisfactory and, in my view, deliberately evasive, responses given by the Plaintiff when questioned, both by Counsel for the Defendant and by the Plaintiff's own Counsel, concerning this topic as reflecting equally badly upon the Plaintiff's honesty and credit. I considered him to be an unreliable witness. I considered the Plaintiff to be totally lacking in frankness in his evidence, and to be far from forthcoming in the material which he chose to place before the Court. 35 Where the evidence of the Plaintiff conflicts with that of any other witness in the proceedings and that evidence of the Plaintiff is not supported by any independent oral or documentary evidence, I prefer the evidence of the other witness and reject that of the Plaintiff. 36 A very considerable body of evidence was presented, especially by the Plaintiff, concerning the extent of his contact with, and the nature of his relationship with the Deceased, and concerning the various physical activities asserted by him (but denied by his brothers) to have been performed by the Plaintiff for the benefit of the Deceased. 37 Most of that evidence was totally irrelevant to the matters which the Court must decide in the present proceedings. 38 It should be appreciated that an order for provision is not made as a reward for good conduct. Neither is it withheld as punishment for perceived bad conduct on the part of an applicant. 39 It cannot be emphasised too strongly that an applicant for an order for provision must establish his own case upon its own merits. It is totally beside the point that the chosen objects of the testamentary beneficence of the Deceased, if they had been left without provision and had brought a claim, might, on account of what was formerly referred to as conduct disentitling, have not succeeded in such a claim. 40 The Plaintiff in the instant case appeared to be mounting his claim to a very large extent upon what he perceived to be the lack of contact between his brothers and the Deceased, and their failure to act in a filial manner towards their mother. The three brothers of the Plaintiff need to prove nothing. They are the chosen object of the testamentary beneficence of the Deceased. Their financial and material circumstances are relevant only to the extent that those circumstances may have the effect of reducing, or even extinguishing, any order for provision an entitlement to which the Plaintiff might otherwise have established. Their circumstances can in no way establish, or enhance, the claim of the Plaintiff. 41 I have had the benefit of receiving written outlines of submissions from the respective Counsel for the parties. Those written outlines will be retained in the Court file. 42 The very careful and detailed submissions by Counsel for the Plaintiff relied largely upon the decision of the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201. In particular, the Plaintiff relied upon the distinction between "adequate" and "proper" and the interrelationship which exists between "adequate provision" and "proper maintenance", which was originally considered and explained by the Judicial Committee of the Privy Council in Bosch v Perpetual Trustee Company Limited [1938] AC 463 at 476, and was further considered by the High Court of Australia in Singer v Berghouse, at 209 (per Mason CJ, Deane and McHugh JJ). 43 In performing the first step in the two stage process identified by the High Court, at 208, to determine whether the Plaintiff has been left without adequate provision for his maintenance, education or advancement in life, the Court must assess whether the provision made (in the instant case a legacy of $5,000) was inadequate for what, in all the circumstances, was the proper level of maintenance appropriate for the Plaintiff, having regard, amongst other things, to his financial position, the size and nature of the estate of the Deceased, the totality of the relationship between the Plaintiff and the Deceased, and he relationship between the Deceased and other persons who have a legitimate claim upon her bounty. 44 The High Court, at 210, said that that question, although it involves the exercise of value judgments, is strictly one of fact (see White v Barron (1980) 144 CLR 431 at 441-443; Goodman v Windeyer (1980) 144 CLR 490 at 501-502, 509; Hunter v Hunter (1987) 8 NSWLR 573 at 576). 45 In the instant case the Plaintiff in his principal affidavit said that he would like to decrease the time he works because of continuing pain in his right leg. However, he does not presently intend to undergo surgical removal of the pins in his leg, which procedure might extinguish or reduce that pain. 46 In his affidavit of 24 October 2001 (sworn on the day preceding the commencement of the hearing, and filed in Court during the course of the hearing) the Plaintiff referred to certain physical disabilities of his wife. He expressed a desire that he should receive from the estate a benefit which would enable him and his wife to holiday in Europe (where their son is undertaking postgraduate medical research and studies in Germany). Upon my calculation, based upon the figures set forth in that affidavit, such a holiday for the Plaintiff and his wife would cost in excess of $6,500. 47 In addition, the Plaintiff is desirous of travelling with his wife throughout the Australian continent. He expresses an aspiration to acquire a small carvan and a vehicle (such as a Toyota Landcruiser) costing about $40,000, to pull such a caravan. (I would here observe that those plans for overseas and Australian holidays are somewhat inconsistent with the physical disabilities alleged to be suffered by the Plaintiff and his wife). 48 The Plaintiff expresses a desire to effect renovations and improvements to their Manyana property. He also expresses a desire that he and his wife should acquire a new principal residence in Sydney, consisting of a single level - the West Ryde residence is of two storeys. 49 There is no suggestion in the evidence that the joint income of the Plaintiff and his wife is not sufficient to meet their outgoings or to maintain their present lifestyle, or that their assets (which include two residences, both unencumbered, and two motor vehicles) are insufficient for their needs. 50 Consonant with the foregoing principles stated by the Judicial Committee of the Privy Council in Bosch v Perpetual Trustee Company Limited, and by the High Court of Australia in Singer v Berghouse (and the authorities referred to therein) I have no hesitation in expressing my finding that the evidence demonstrates that the Plaintiff has not been left without adequate provision for his proper maintenance. 51 The foregoing finding is of itself sufficient to determine the present application. However, the Court must also look to the situation of other persons who have a claim upon the testamentary bounty of the Deceased. The only other such persons are the other sons of the Deceased, who are the chosen objects of the testamentary beneficence of their mother. None of those persons is by any means destitute; however, none can be described as being in affluent circumstances. None of them are in circumstances as generous as those of the Plaintiff. 52 In particular, the eldest son of the Deceased, John, who has never married, and who lived with his mother in the Cobham Avenue property, and who still continues to reside therein in consequence of the testamentary disposition made by her in that regard, would be greatly disadvantaged by any order for provision which might be made in favour of the Plaintiff. 53 Even if, contrary to the finding which I have just expressed, I were to consider that the Plaintiff has established that he has been left without adequate provision for his proper maintenance, and I were thus to answer in the affirmative the first question in the two stage exercise identified by the High Court in Singer v Berghouse, the competing claims of the three named beneficiaries (in particular, that of John Bennett) are such as would have the effect of requiring that the testamentary dispositions of the Deceased should not be disturbed by making an order for provision in favour of the Plaintiff. I should also here state that the various proposals set forth by the Plaintiff in his affidavit of 24 October 2001 are little more than a wish list, and the Plaintiff has not established that any of them are essential to his proper maintenance. 54 In consequence, therefore, the claim of the Plaintiff will be dismissed. 55 I make the following orders:

(2). I order that the Plaintiff pay the costs of the Defendant, such costs to be on the party and party basis.

(3). I order that the Defendant be entitled to retain or recoup from the estate of the late Hilda Aileen Bennett ("the Deceased") the difference between the costs of the Defendant on the indemnity basis and the amount of the costs referred to in order 2 hereof which the Defendants may recover from the Plaintiff. 56 The exhibits may be returned.

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