Blair v Blair [2004] VSCA 149

Blair v Blair [2004] VSCA 149 - VSCA 2004 case summary — Zoe

[12]

So far as the respondent is concerned, after graduating he worked as a veterinarian in a number of places, including Mornington and, between 1986 and 1990, in Benalla and then Albury. During the latter period, he said, he assisted his father with veterinary advice and some animal husbandry. Being unable to gain entry into the veterinary practice at which he worked in Albury, and to the disappointment of his father, he moved to Geelong in 1990 where his wife's family was located. There he set up his own veterinary practice, at a time when the Geelong area was experiencing economic problems, including the aftermath of the collapse of the Pyramid Building Society. It is not surprising, therefore, that he found it difficult to establish his practice. In order to purchase his first home, where he initially had his surgery, the respondent borrowed $1,000 from his father (which he repaid), $14,000 from his father-in-law and $120,000 from a building society. He also borrowed $50,000 from a bank to purchase equipment and supplies necessary to establish his practice. Save for the above loan of $1000, the testator made no other contribution to the cost of establishing the respondent's practice. Later, the respondent moved to another house in Geelong, and the first premises that he had bought was used to conduct his surgery. Throughout this period he was assisted by his wife in the conduct of that practice, principally in the keeping of accounts in relation to it. Their combined income in 1999 was estimated to be a little under $46,000 and his debt to Macquarie Bank was in the order of $370,000. He told his Honour that, on his present income, he would not be able to afford to provide a private school education for his children. In April 2001 the respondent and his family moved to a small farm of some 100 acres near Geelong that is effectively owned by his wife's parents. The respondent and his family occupy that house rent-free and he runs a few head of cattle on that land. The respondent sought to sell his Geelong residence in order to reduce his debt to Macquarie Bank, but was unable to do so. He therefore leased it at a gross rent of $165 per week.

[33]

I now turn to what I have described as Mr Boaden's implicit claim that it was not open on the evidence for his Honour to find that the respondent had satisfied the jurisdictional requirements. In this context, Mr Boaden highlighted particularly the respondent's age, health and his established and flourishing veterinary practice. He also emphasised the size of the legacy that was provided to the respondent by the testator's will and that he had a sound start in life. It was contended that, given these factors and that it was the appellant who materially assisted his father in developing his farm and facilitated its increase in value, it could not be reasonably said that the testator abused his testamentary discretion. It seems to me that there is much force in that submission. Nevertheless, there was evidence on which this experienced judge could properly come to the impugned conclusions. His Honour was alive, as I have said, to the fact that the respondent did not present as one whose means of maintenance and support were obviously inadequate, but it was clearly open to him to take into account for these purposes the evidence that, at the date of the testator's death, the respondent was saddled with a debt that was not insignificant and which he tried, unsuccessfully, to liquidate, that he earned a relatively low income, that he needed the assistance of his wife in the conduct of his practice and that he had young children to support. Moreover, it was open to his Honour to take the view that the respondent's financial difficulties were, in large part, a consequence of the testator's failure to provide him with help when he most needed it, thereby giving rise to a moral duty that was extant at the date of his death. Since his Honour's decision on these matters involved, as I have noted, the making of value judgments and, since on appellate review they are to be treated as being akin to discretionary decisions, the appellant must establish, if he is to succeed, that his Honour erred in principle, or that the decisions are plainly wrong.

[41]

The appellant also contended that it was not open to his Honour on the evidence to increase the legacy in the testator's will by $50,000 and that, in any event, the judge gave no explanation of how he arrived at this figure. Mr Boaden advanced six reasons in support of this claim. First, it was said, the determination catered to a past need that had already been fulfilled and thus, there was no residual need that had to be catered for by testamentary provision on the part of the testator. But, for the reasons I have already given, his Honour effectively found that the respondent's need existed at the time of the testator's death and, in particular, that the testator's moral obligation to provide the respondent with seed capital continued and was in existence at the date of his death. Secondly, it was said, his Honour wrongly sought to produce "rough equality between the two sons". Again, for the reasons I have given, this claim must also be rejected. What the learned judge did, as I have noted, was to use the perceived extent of assistance given by the testator to the appellant as a guide to determine the amount of the respondent's relevant entitlement. The third reason was, essentially, that the respondent had failed to demonstrate the existence of financial need on his part at the date of the testator's death. As I have explained, the judge was satisfied that, in view of his findings as to the respondent's financial position, he had demonstrated financial need at the relevant time. The appellant's fourth reason, namely, that the judge's decision failed to take into account that the family of the respondent's wife provided him with the assistance to which I have referred, must also be rejected because it is plain from his Honour's reasons that he took that matter into consideration in coming to his relevant conclusions. The fifth reason really amounts to the contention that his Honour's exercise of discretion constituted "a wrongful assumption of power to take property from the intended donee of the testator's bounty and to give it to someone else". For the reasons already given, however, in light of his Honour's findings that were relevant to the threshold issues, the exercise of discretion by him could not be said to amount to a wrongful assumption of power as the appellant contends.

[42]

Lastly, it was said that there was no evidence, and no reasons given by his Honour other than the pursuit of equality, to show why the further amount of $50,000 was appropriate. While it is the case that his Honour did not provide an arithmetic basis for reaching this sum, he nevertheless explained, as I have noted and as was accepted by the appellant in his written outline of submissions, that the judge sought to quantify the additional amount by reference to the approximate sum that would be necessary to put the respondent in a position "roughly equivalent with [the appellant] in the amount of the provision each received from his parents for his maintenance and support". Importantly, his Honour recognised, rightly, I think, that, in the circumstances, "[e]xactness in the calculation of [the relevant amount] is impossible". Similarly, his Honour acknowledged that "in these things, perfect equality is likewise impossible, and for that reason the attempt to maintain it might even be unwise." Thus, it is not surprising that, as appears from his Honour's reasons, his determination of the additional sum involved the application of an instinctive synthesis, a process that has been approved by this Court in like cases where an arithmetic calculation was not possible.[18] But, I do not accept the appellant's underlying contention that his Honour arrived at the sum of $200,000 by "plucking a figure out of the air". It is apparent from the judge's reasons that the amount was arrived at by him after a careful analysis of the relevant matters that were required to be considered pursuant to s.91(4)(e)-(p). His Honour was plainly concerned to identify, in broad terms, the amount which would allow the respondent an equal start in life to that enjoyed by the appellant by reason of assistance provided to him by the testator. It also seems clear enough from his Honour's reasons that he recognised that this amount could not be calculated in an arithmetic sense, and the contrary was not argued for the appellant. In arriving at the relevant amount his Honour had regard to matters to which reference has already been made, including the familial relationship, the respective financial position of the brothers, and the assistance provided to each by the testator. In the end, however, the learned judge had to settle on an amount which, in his view, the deceased, as a wise and just testator, would have provided in his will as a legacy for the respondent. In the circumstances, I think it is plain that his Honour discharged the obligation to give reasons for his decision that the legacy in favour of the respondent be increased to $200,000, as that requirement has been explained in cases such as Sun Alliance v. Massoud Insurance Ltd[19], Cropp v. Transport Accident Commission and Beglehole[20], D.P.P. v. Suckling[21], Garrett v. Nicholson[22] and Perkins v. County Court of Victoria[23]. I mention for completeness that, once his Honour resolved the jurisdictional questions in favour of the respondent, what additional amount should be ordered in his favour was a matter that involved an exercise of discretion by the learned judge. In my view, the appellant has not established that his Honour erred in principle in that regard or that the decision is plainly wrong.[24] In the circumstances, I consider that this complaint has no substance.

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Judgment (81 paragraphs)

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