Carey v Robson

Court of Appeal (NSW)|2010-08-19|Before: Hodgson JA, Campbell JA, Palmer J

CITATION: Carey v Robson [2010] NSWCA 212

JUDGMENT OF: Hodgson JA at [1], [41]; Campbell JA at [39]; Sackville AJA at [40]

DECISION: Appeal dismissed with costs.

LEGISLATION CITED: Family Provision Act 1982 ss 7, 9.

Carey v Robson & Anor; Nicholls v Robson & Anor [2009] NSWSC 1142 Foley v Ellis [2008] NSWCA 288 CASES CITED: House v The King [1936] HCA 40; (1936) 55 CLR 499 Mifsud v Campbell (1991) 21 NSWLR 725 Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191

PARTIES: Marion Allinson CAREY (appellant) Alan Frederick William ROBSON (respondent)

COUNSEL: L J ELLISON SC/ R M LOVAS (appellant) J E ROBSON SC/ G R WAUGH (respondent)

SOLICITORS: Kerrisons The Law Firm (appellant) W A Baxter & Co Pty Ltd (respondent)

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): SC 4842/07; SC 5215/07

LOWER COURT DATE OF DECISION: 28 October 2009

LOWER COURT MEDIUM NEUTRAL CITATION: Carey v Robson & Anor; Nicholls v Robson & Anor [2009] NSWSC 1142

14 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 2010/21649

HODGSON JA CAMPBELL JA SACKVILLE AJA

THURSDAY 19 AUGUST 2010 Marion Allinson CAREY v Alan Frederick William ROBSON Judgment 1 HODGSON JA: The late Frederick Robson died on 5 April 2006 aged eighty-six, leaving a will dated 21 July 2005. He was survived by two daughters and one son, his wife having pre-deceased him. I will refer to members of the testator's family by their first names, as did the primary judge. 2 Probate of the testator's will was granted to the three children, Alan, Marion and Rosemary. Marion and Rosemary each brought proceedings under the Family Provision Act 1982 (the Act) (since repealed), in each case naming the other two executors as defendants. On 28 October 2009, Palmer J gave his decision dismissing both proceedings (Carey v Robson & Anor; Nicholls v Robson & Anor [2009] NSWSC 1142). On 10 November 2009, the primary judge made orders as to costs. Marion has appealed against the dismissal of her proceedings. 3 The background facts to the application were set out by the primary judge, in a manner not in dispute, at paras [5] - [12] of his judgment, as follows: [5] The testator was born in 1920. He married Margaret in 1955 and the marriage lasted until Margaret's death in 2005. There were three children of the marriage, Alan (born in 1958), Marion (born in 1960) and Rosemary (born in November 1963).

[6] The testator spent all his life on a property known as Heather Brae at Westdale on the outskirts of Tamworth. He had inherited the property from his father. Heather Brae comprised three separate titles: Lot 46, of approximately 135 hectares, Lot 2, of approximately 111 hectares, and Lot 105, of about 4 hectares. The family homestead is on Lot 46. There is a weatherboard cottage on Lot 2, which is tenanted. Lot 105 is vacant land.

[7] The testator carried on farming and grazing on Heather Brae, first in partnership with his father under the name "F.H. Robson & Son". The partnership was dissolved by the death of the testator's father in 1962. The testator inherited Heather Brae and ran the farming and grazing business in partnership with Margaret until July 1979, when Alan became a member of the partnership, thereafter conducted under the name "F.J. Robson & Son". Heather Brae was never a partnership asset. It remained in the ownership of the testator.

[8] In November 2003, part of Heather Brae, Lot 2, was transferred by the testator to Alan for nominal consideration. By his will, the testator gave: - Lot 105 to Marion and Rosemary equally; - the residue to Alan (essentially Lot 46) subject to Alan paying $250,000 to each of Marion and Rosemary by five equal annual instalments, the first of which was to be made on the third anniversary of the testator's death, ie 5 April 2009.

[9] The parties are agreed on the present market value of the real estate in question as follows: Lot 46 $4,500,000 Lot 105 $440,000 Lot 2 (claimed as notional estate) $4,800,000

[10] The present assets of the estate are: Lot 105 $440,000 Lot 46 $4,500,000 Cash invested 45,200 Total $4,985,200

[11] The liabilities of the estate comprise valuation fees and such costs of these proceedings as may be allowed out of the estate. Marion's and Rosemary's legal costs, incurred and estimated, total approximately $320,000. Alan's legal costs total approximately $204,000. If all costs, totalling some $525,000, are allowed out of the estate, the value of the distributable estate will be about $4,460,000.

[12] Accordingly, under the terms of the will each of Marion and Rosemary receives provision in the amount $470,000 (half the value of Lot 105 and a legacy of $250,000) and Alan receives the balance, about $4M. 4 Particulars of Marion's circumstances were set out as follows by the primary judge in a way not challenged on appeal: [13] Marion is now forty-nine years old. She spent her childhood on Heather Brae and, like Rosemary and Alan, she had a loving and secure relationship with her parents. She was educated at local State schools, leaving school after Year 12. She then undertook training as a nurse, ultimately attaining a Graduate Diploma in Health Management through the University of New England. She is now employed full time as a Senior Nurse Manager by Hunter New England Health. Her gross salary is $98,000 per annum.

[14] Marion married Robert Carey in 1990. There are two children of the marriage, Brighid, born in November 1991, and Joseph, born in September 1993.

[15] Robert is a farmer and grazier. He owns a property called Shannon View, of some 960 acres (388.6 ha) and he leases an adjoining property of some 100 acres (40 ha). Shannon View, on which is located the family home, is valued at about $1.425M.

[16] The farming business which is conducted on Shannon View and the adjoining leased land is operated by a partnership between Robert and Marion, t/as "R.A. & M.A. Carey".

[17] As at 30 June 2008, the assets of the partnership were $73,600 and its liabilities, consisting mostly of loans, were $476,700. Of these liabilities, the largest is an unsecured loan of $256,500 made to the partnership by Robert. The partnership business has been affected by drought over the last three years and has produced nett losses for the year ended 30 June 2006 of $60,000, $85,000 for the year ended 30 June 2007, and $99,000 for the year ended 30 June 2008 (all figures are rounded).

[18] Robert's separate nett assets, including the loan to the partnership, are approximately $1,654,000. He does not have superannuation. Marion's separate assets comprise her interest in Lot 105, valued at $220,000, various shares and personal items worth about $24,000, superannuation benefits presently totalling $172,000 and the amount of $250,000 which is to be paid to her under the terms of the testator's will - a total valued at about $666,000.

[19] Marion's personal liabilities comprise credit card debts amounting to some $18,500.

[20] Robert's income from the partnership as at 30 June 2008, as appears from his Notice of Assessment, was $16,380. However, the partnership accounts show rent for Shannon View payable by the partnership for that year of $67,500. It is not clear whether this amount has been received by Robert, but that is a fair assumption in that he is the owner of the property. 5 Particulars of Alan's circumstances were set out as follows by the primary judge: [37] Alan is now fifty-one years of age. He was brought up on Heather Brae and lived there until he married in 1999.

[38] Alan was educated at Tamworth High School to Higher School Certificate level. Throughout his childhood he assisted the testator in farming chores, according to his age and ability, as did his sisters. However, in his teenage years, the farm work became more physically demanding. By the age of fourteen years, Alan was carrying out work of all descriptions on the property. I accept that the testator called upon Alan more and more for assistance during Alan's later school years and that Alan had to miss school for significant periods of time in order to work on Heather Brae. Alan was not paid for his labour.

[39] When he left school, Alan did a year's course in farm technology and wool classing at Tamworth TAFE.

[40] The farming business carried on at Heather Brae was conducted by a partnership between the testator and Margaret. On 1 July 1979 Alan became a member of the partnership. Alan worked full time for the partnership on Heather Brae, doing the physical work with the testator and also in contract harvesting as part of the partnership business. Margaret was responsible for bookkeeping and financial records.

[41] In 1980 the testator suffered a major heart attack which reduced his capacity for heavy physical work on Heather Brae. Alan took a larger share of that work.

[42] In 1990 the partnership gave up contract harvesting and commenced a meat wholesale business. Margaret was now in chronic ill health and from 1991 the partnership employed a bookkeeper.

[43] The meat wholesale business of the partnership grew substantially as a result of the long hours and hard work of Alan. By 1992, the testator's health was beginning to fail seriously from several different causes, and in 1996 he had a major by-pass operation. That same year he was struck by lightning and in 1997 he broke his foot.

[44] From 1990 Margaret's health also began to fail seriously from a variety of causes. She had major by-pass surgery in 1998.

[47] Alan married in March 1999 and moved into Tamworth to live with his wife in rented accommodation. However, his parents' health continued to deteriorate seriously and they were unable to look after themselves. Alan was called upon for assistance with increasing frequency. He often spent the night at Heather Brae. These circumstances, coupled with the necessity of running the partnership business, placed enormous stress on Alan physically and emotionally.

[51] Alan is entirely dependant on the farming operations on Heather Brae and the income from the meat wholesale business. He does not presently live on Heather Brae, as he lives with his wife in Tamworth, but he wishes to move back to Heather Brae as soon as possible.

[52] Alan's assets are: Lot 2 (transferred by the testator for nominal consideration on 6 November 2003) $4,575,000 Lot 46 (passing under the will) $4,500,000 Former assets of the partnership $453,000 Shares $7,300 Savings $2,000 Superannuation $2,000 Household furniture $25,000 Total $9,564,300

[53] Alan's liabilities are essentially the liabilities of the former partnership together with borrowings on the security of the real estate to supplement his income from the meat wholesale business. The liabilities total $2,340,000.

[54] Alan's gross income from farming activities for the year ended 30 June 2009 was $357,000; his expenses were $353,000. As noted above, he has been living largely on borrowings secured over his real estate. The poor return from farming activities has been due largely to long periods of drought. He says, and I accept, that the income from the meat wholesale business has been poor because he has had insufficient time to devote to the business due to the demands made on him by his parents' ill health.

[55] It is clear that while Alan is "asset rich", he is extremely "income poor". Alan acknowledges that he needs to sell at least part of Lot 2 to discharge his liabilities so that he can continue his farming and meat wholesale business on Lot 46. 6 This account is not challenged on appeal as far as it goes. However, as will be seen, the appellant does claim that this account was inadequate, because it does not set out the financial circumstances of Alan's wife. 7 The relevant provisions of the Family Provision Act are as follows: 7 Provision out of estate or notional estate of deceased person

Subject to section 9, on an application in relation to a deceased person in respect of whom administration has been granted, being an application made by or on behalf of a person in whose favour an order for provision out of the estate or notional estate of the deceased person has not previously been made, if the Court is satisfied that the person is an eligible person, it may order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the Court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person.

9 Provisions affecting Court's powers under secs 7 and 8

(2) The Court shall not make an order under section 7 or 8 in favour of an eligible person out of the estate or notional estate of a deceased person unless it is satisfied that: (a) the provision (if any) made in favour of the eligible person by the deceased person either during the person's lifetime or out of the person's estate, or

(b) ….. is, at the time the Court is determining whether or not to make such an order, inadequate for the proper maintenance, education and advancement in life of the eligible person.

(3) In determining what provision (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person, the Court may take into consideration: (a) any contribution made by the eligible person, whether of a financial nature or not and whether by way of providing services of any kind or in any other manner, being a contribution directly or indirectly to: (i) the acquisition, conservation or improvement of property of the deceased person, or

(ii) the welfare of the deceased person, including a contribution as a homemaker,

(b) the character and conduct of the eligible person before and after the death of the deceased person,

(d) any other matter which it considers relevant in the circumstances. (4) Nothing in subsection (3) (a) limits the generality of subsection (3)(b), (c) and (d) and the Court may consider a contribution of the same nature as that referred to in subsection (3)(a) or of a different nature in so far as it considers it relevant under subsection (3)(b), (c) or (d). 8 In his judgment, the primary judge set out the needs of Marion as described in her evidence, as follows: [21] Marion's affidavit and oral evidence did not suggest that she needed provision out of the testator's estate to meet a present shortfall in her living expenses and the living expenses of her family or to discharge present liabilities which she and Robert would otherwise be unable to meet or to supply a present or future need for suitable accommodation. Both she and Robert are in good health so that there is no immediate threat to their ability to continue working in their present occupations for some time to come.

[22] Marion's needs are described in her affidavits thus: Brighid's school fees : Brighid is a boarder in Year 12 of a private school in Sydney and she is doing extremely well. Her tuition, boarding fees and other associated expenses for this year are estimated at $37,500.

Brighid's university expenses : Brighid would like to pursue a science-based course of study at Sydney University. Her school results show that this is quite achievable. Marion estimates that tuition fees, which she would pay, for Brighid's four year course would be about $96,000, her accommodation in a university residential college would be about $44,000, Marion's contribution to Brighid's living expenses would be about $20,000, and the cost of a car for Brighid while she is at university would be about $10,000.

Brighid's future needs : Marion believes that it is likely that Brighid will marry, some time in the future. Marion would like to be able to contribute to the costs of the wedding. She estimates her contribution to a wedding costing $40,000 at $10,000.

Marion would also like to contribute to Brighid's purchase of a home in due course. She estimates that she would contribute $40,000 towards the deposit.

Marion would also like to contribute to the costs of setting Brighid up in professional career, probably medicine, pharmacy or physiotherapy. She is unable to give a present estimate of this contribution.

In summary, Marion's needs for the education and advancement in life of Brighid are presently estimated at $257,500.

Joseph's school fees : Joseph is a boarder in Year 10 at a private school in Sydney. Like Brighid, he is doing extremely well. Joseph's tuition, boarding fees and associated expenses until he leaves school at the end of Year 12 are estimated to be $96,000. Joseph's university fees : Marion believes that Joseph is likely to pursue a four year course of studies at Sydney University. His school results show that that is quite achievable. Marion estimates that Joseph's tuition fees for a four year course would be $96,000, accommodation in a residential college would be $51,500, living expenses would be $20,000, and a small car would be $10,000.

Joseph's future needs : As in the case of Brighid, Marion would like to be able to contribute $40,000 towards Joseph's purchase of a home in due course and to provide further assistance in order to set him up in a professional career or to go into business.

In summary, Marion's needs for the education and advancement in life of Joseph are presently estimated at $313,500.

Renovation and improvement to Shannon View homestead : The homestead on Shannon View was built in 1926. It comprises three bedrooms, an office, dining room, lounge room, kitchen and bathroom/laundry. Marion says that the homestead needs substantial renovation and a second bathroom. A building report has been obtained. It shows that maintenance and renovation work could well be done but it does not indicate that the house is unliveable or in a poor and dilapidated state. The renovations and extensions are estimated to cost $250,000.

Restoration ofd cottage : There is also a cottage on Shannon View. It has not been occupied for many years and it is uninhabitable. A building report estimates that restoration of the cottage would cost about $65,000.

Marion has not explained why restoration of the cottage to a liveable state is necessary, desirable or appropriate for her maintenance and advancement in life.

Construction of a hay shed : There is no hay shed on Shannon View. It may be assumed that this has been the case ever since Robert and Marion began farming the property. Marion says that a hay shed would significantly enhance storage of hay. The cost of construction is estimated at $22,500.

Construction and erection of new wool shed and yards : Marion says that the existing wool sheds are run down and need replacement. She would also like to purchase a new wool press. The cost is estimated at $92,000.

Upgrading cattle yards : Marion says that the existing cattle yards are inadequate and need replacement. The estimated cost is $16,400.

New bores and troughs : Marion says that an additional two bores are necessary to augment the existing water supply. The total cost is estimated at $21,000.

Further fencing and soil conservation : Marion says that further farm fencing and soil conservation work is required. The cost is estimated at $15,000.

In summary, Marion says that the costs of restoration of the cottage on Shannon View and other improvements to the farming property would be a total of $232,000 (in round figures).

Upgrading plant and equipment : An agricultural expert has recommended upgrading machinery such as the purchase of two new tractors and other related equipment, at a cost of $190,000.

Complete revision of the farming methods employed on Shannon View is also recommended. The cost, including the purchase of further new equipment, personal motor vehicles and the construction of other new facilities is calculated at $162,000.

Purchase of additional land : An agricultural expert has advised that the purchase of an adjoining parcel of land, presently leased by Robert, "would have beneficial impacts on the farm". The cost of purchasing the additional property is calculated at $570,000.

Holidays : Marion says that she would like to take her family on annual holidays. She estimates the costs over the next ten years at $100,000.

Retirement fund : Marion says that in order to provide Robert and herself with about $80,000 per year in retirement benefits, she needs a capital sum of $1.3M. Her present retirement benefits are $172,000 so that she needs a further $1.28M from the testator's estate.

Total needs : The total of all needs described by Marion is as follows:

Brighid's education and advancement in life $257,500 Joseph's education and advancement in life $313,500 Renovations to Shannon View homestead $250,000 Renovation of cottage and improvements to farming property $232,000 Upgrading plant and equipment and improvement of farming methods $352,000 Purchase of additional land $570,000 Holidays $100,000 Retirement fund $1,128,000 TOTAL $3,203,000 9 The primary judge made the following findings in relation to Alan: [45] I accept that due to the testator's declining health, from at least 1992 onwards, Alan assumed a larger and larger burden of running the meat wholesale business and running the farming operations on Heather Brae. I accept also that from 1990 onwards Alan bore the major burden of looking after his parents, whose health was seriously deteriorating. While Marion and Rosemary, as loving and supportive daughters, did whatever they could to assist, they had as their first priority their own homes, their growing families and their careers, while Alan was unmarried and lived at Heather Brae, working in the partnership business and looking after his parents.

[46] I accept that it was only due to Alan's willingness to work in the partnership business virtually unaided by his parents from 1998 onwards that the partnership business was able to continue and his parents were able to continue living at Heather Brae, as they wished to do.

[48] I accept that Alan has foregone the education and career prospects which he might well have had otherwise in order to run the partnership business and to look after his parents. I accept that, because of his decision to do so, Alan has been severely restricted in his personal life and in his relationships. He has no children, which he feels deeply: see e.g. T99.20-T101.50.

[49] I accept without reservation that, had Alan not continued to work as hard as he did in the partnership business, at the same time caring for his parents on a daily basis, the testator would not have been able to support himself and Margaret financially from about 1996 onwards without selling some, and possibly all, of his real estate assets and he and Margaret would then have had to move to a nursing home, contrary to their strong wishes.

[50] This conclusion is supported by the testator's own perceptions. The evidence shows that he fully appreciated that he was leaving the far larger proportion of his estate to Alan and that Rosemary and Marion may well feel aggrieved by the fact that he had not treated all his children equally. However, the testator confirmed in a note intended to be read by his daughters that while he and Margaret acknowledged all that they had done, Alan had, nevertheless, done far more: Alan was "at our beck and call at all times - for no remuneration": see Alan's affidavit dated 11 July 2008, p 153; see also the testator's notes for his solicitor as to the reasons for the unequal division of the estate at p 148. 10 In relation to Marion's claim, the primary judge at pars [57] - [71] discussed the principles to be applied. In the course of that discussion, he made this comment on the claim: [62] The estate in the present case, worth some $4.4M after costs, is large but not munificent by contemporary standards. The "needs" of Marion and Rosemary which they say should be met out of the estate are $3,203,000 for Marion and $968,000 for Rosemary, a total of $4,171,000, so that if those needs were met in full Alan would be left with some $229,000 out of the estate. 11 The primary judge then continued as follows: [72] Marion has a shared parental obligation to provide for Brighid's education until she turns eighteen years of age and leaves school. The remaining school fees are estimated at $37,500. Marion has no parental obligation to provide for Brighid's advancement in life as an adult in a way which can be characterised as Marion's own need for her own maintenance and advancement in life for the purposes of a claim under the Family Provision Act. These same considerations apply to Marion's wishes for Joseph. His school fees are estimated to amount to $96,000.

[73] Accordingly, the only "needs" or "obligations" or "wishes" of Marion in respect of her children's advancement in life which I should take into account in assessing whether further provision should be made for her out of the estate are school fees amounting to $133,500. If Marion uses what she is already to receive from the estate to pay school fees, she would have some $336,500 left for other purposes, such as home renovations, holidays, and improvements to the family business or contributions to her superannuation fund. All of that amount is available for discretionary expenditure because Marion already has sufficient to provide comfortably for herself. In other words, even if Marion alone bears the school fees, she will have out of the estate some "jam or cheese" left over to spend as she wishes. Should she have more?

[74] In answering this question, I take into account the following considerations: - the nett estate, after legacies and costs, is about $4M; - Alan has spent all of his working life building the value of the estate, with little remuneration, at first with the testator and then, increasingly, by his own efforts; - Marion has contributed little, if anything, to the value of the estate; - Alan has borne by far the largest burden of looking after the testator in his illness; - but for Alan's efforts, the testator would probably have been compelled to sell his real estate in his lifetime and cease operation of the partnership business; - the testator acknowledged, correctly, that he had a much greater moral obligation to provide for Alan than for Marion; - Alan has received Lot 2, worth $4.8M and is entitled under the will to Lot 46, worth about $4.5M, so that he would have real estate worth $9.3M but that property is subject to mortgages, totalling $2.34M, for which he alone is liable; - Heather Brae and Lot 2 provide Alan with his livelihood and with the only lifestyle he has ever known, but they produce a very small income; - Marion and Robert are in good health and are able to continue working for some years; - many of Marion's stated "needs" are for the improvement of Robert's property, which does not reflect directly on her own needs for maintenance or advancement; - if Marion's wishes were to be satisfied by a further substantial provision out of the estate, Lot 46 would have to be sold, depriving Alan of the ability to continue operating his farming business as he has done and living at Heather Brae as he has always wished to do.

[75] In summary, the estate is not so large that providing more for Marion, as she wishes, would have no, or minimal, impact on Alan, who has a far stronger claim on the testator's bounty than does Marion. In this regard, this case is very different from Lloyd-Williams v Mayfield [[2003] NSWCA 189; (2005) 63 NSWLR 1] at [31]. If the court in this case is to be more generous to Marion than the testator has been, it will be at Alan's considerable expense.

[76] In these circumstances, I am not satisfied that the testator's provision of $470,000 out of his estate for Marion is inadequate for her proper maintenance and advancement in life. 12 The appellant relies on the following grounds of appeal: 1. His Honour erred in not finding the provision made for the Appellant was not "proper and adequate".

His Honour erred in not finding the Appellant had need, which need was to be satisfied by (additional) provision out of the estate of the deceased.

His Honour erred in not ordering (additional) provision for the Appellant out of the estate of the deceased. 13 There is in this Court no dispute as to the principles to be applied. In order for this appeal to succeed, it would be necessary that this Court conclude that the primary judge erred in his determination of what has been called the jurisdictional question under the Act, this being the first stage of a two stage process to be undertaken in determining applications under the Act. This jurisdictional question involves determination of whether the provision, if any, made for the person applying under the Act is at the time of the Court's determination inadequate for the proper maintenance, education and advancement in life of that person: see s 9(2) of the Act. 14 What is involved in this question has been authoritatively stated as follows in Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 at 209-10: The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. 15 It is accepted that accordingly the resources and needs of other claimants on the deceased's bounty are to be taken into account: Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 at par [122], Foley v Ellis [2008] NSWCA 288 at pars [88] - [89]. Further, attention may be given to how the parties have lived and might reasonably have expected to live in the future: Vigolo at par [114]. 16 It is now clear that even though the determination of this question is not a true discretionary decision, the principles that govern appellate review of discretionary decisions apply: Singer at 212, Vigolo at par [82]. Broadly, this requires either that some error material to the conclusion be identified, or that the conclusion itself be so unreasonable that the appeal court may infer that there must have been error: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-5. 17 Mr Ellison SC for Marion submitted that the primary judge erred in seven respects: (1) applying too stringently tests as to the degree of need that a plaintiff needs to demonstrate; (2) taking into account an exaggerated restatement of Marion's grounds for relief; (3) failing to take into account evidence that the testator's intentions in respect of benefits to his children under his will were frustrated by events; (4) proceeding on a premise that Marion's case was an all or nothing one; (5) finding that Marion's needs for improvements of her husband's property did not reflect directly on her own needs for maintenance and advancement in life; (6) failing to take into account that Alan would, in any event, have to sell some property; and (7) failing to take into account the financial circumstances of Alan's spouse. 18 As to the first point, Mr Ellison submitted that the matters set out in par [21] of the primary judgment were wrongly treated as determinative; that the primary judge dismissed evidence of need to renovate because this evidence did not indicate that the house was unliveable or in a poor or dilapidated state; that the primary judge disregarded the financial straits which were likely if the needs of the farming enterprise of Marion and her husband were not provided for; and that accordingly the criteria applied by the primary judge to find that Marion had sufficient to provide comfortably for herself were too harsh; and this finding was incorrect. 19 As to the second point, Mr Ellison submitted that the primary judge erred in saying that the strongest ground for relief by Marion was that the provision for her was vastly disproportionate to that for Alan, and in referring to the parable of the labourers in the vineyards. Mr Ellison pointed out that this parable concludes with the rhetorical question "Is it not lawful for me to do what I wish with my own things?", a policy that conflicts with the policy of the Act; and he submitted that this parable presupposes that the farmer knew the value of what he was dispensing, whereas here the testator was mistaken as to the relevant value of his gifts. 20 As to the third point, Mr Ellison submitted that the net benefit to Alan from the gift of lot 2 and the residue of the estate was nearly $8 million, amounting to about ninety per cent of the testator's assets, having the effect of recompensing him at the rate of over $230,000 for each of the thirty-three years that Alan worked on the property, which Mr Ellison submitted was a disproportionate recompense, showing that the testator had greatly undervalued the assets going to Alan. Mr Ellison submitted that the letter of the testator's solicitor dated 27 May 2005 (Blue 588-91) showed that the testator was assuming much lower values for lot 2 and lot 46 than they actually had. 21 As to point four, Mr Ellison submitted that what the primary judge said at pars [62] and [75] of his judgment showed that he was treating Marion's case as all or nothing. 22 As to point five, Mr Ellison submitted that the primary judge erred in saying in par [74] that many of Marion's stated needs were for improvement of her husband's property, which did not reflect directly on her own needs for maintenance or advancement. This, Mr Ellison submitted, was erroneous in fact and, in any event, there was no requirement that reflection on needs must be direct. 23 As to point six, Mr Ellison submitted that the primary judge erred in holding in par [74] of his judgment that if Marion's wishes were to be satisfied by further substantial provision out the estate, lot 46 would have to be sold. The evidence showed that some property would have to be sold in any event, and provision for Marion would not necessarily require the sale of lot 46. 24 As to point seven, which was raised in oral submissions, Mr Ellison submitted that Alan's financial circumstances included or were greatly affected by the financial circumstances of his wife, who was earning about $60,000 to $70,000 a year and had assets of about $600,000. Mr Ellison submitted that the primary judge's failure to take this into account in regard to competing claims, in the course of assessing what provision for Marion was adequate for her proper maintenance and advancement in life, was an error justifying appellate intervention. 25 Mr Ellison submitted that the appeal should be allowed, and that in lieu of the $250,000 gift in the testator's will, Marion should have provision of $1 million or some other provision determined by the Court. 26 I am not satisfied that any material error by the primary judge has been shown. 27 In relation to Mr Ellison's first point, I do not read par [21] of the primary judgment as suggesting that the factors referred to in it were determinative, nor do I read par [22] as suggesting that the primary judge dismissed or disregarded evidence of need to renovate. I do not understand the primary judge to have disregarded the partnership losses which are referred to in par [17] of the judgment. At par [73] of the judgment, the primary judge referred to the availability of $336,500 for other purposes, including improvements to the family business. I am not satisfied that the primary judge did other than apply the criterion of what, in all circumstances, would be adequate provision for Marion's proper maintenance and advancement in life, as required by s 9(2) of the Act. 28 As regards the second point, an assessment by the primary judge that the strongest ground among those urged by Marion was the vast disproportion of provision would not, in my view, be an error. This disproportion was a reflection of the relation between the total assets available and the provision made for Marion, and this reflected in turn on what, in all the circumstances, would be adequate provision for Marion's proper maintenance and advancement in life, and whether this had been provided. However, although this disproportion is relevant in this way, it is not in my view determinative, and in my opinion that was the point of the primary judge's reference to the parable of the labourers. I do not understand this reference to be saying any more than that, if Marion has been provided with adequate provision for her proper maintenance and advancement, the fact that Alan has received very much more does not give Marion an entitlement to some further provision. 29 As regards Mr Ellison's third point, in my opinion neither the mathematical calculation of percentages nor the letter of 27 May 2005 provides a sound basis for inferring that the testator did not intend the effect that his will actually had. 30 As regards his point four, I do not read what the primary judge said in pars [62]-[75] of his judgment as indicating an all or nothing approach. In my opinion, a reading of the whole of the primary judge's judgment shows that he did not disregard the possibility of a provision for Marion falling short of her claimed needs. 31 As regards the fifth point, I do not read the primary judge's statement in par [74] of the judgment as suggesting that he disregarded matters that reflected only indirectly on Marion's needs. I understand the reference to improvement of her husband's property to be a reference, not to improvement of the house in which they lived, but to improvement of the property as a farm. I accept that improvement to the husband's property in that sense would reflect on Marion's needs by reference both to the profitability of the business in which she was a partner, and to her husband's capacity to contribute to the welfare of herself and her children. 32 I do not think there is any bright line to be drawn between what can be considered to reflect directly and what can be considered to reflect indirectly on a person's needs; and I do not think it was an error to say that these matters reflected indirectly rather than directly on Marion's needs. 33 As regards point six, the primary judge certainly had in mind that some property of Alan would have to be sold in any event. It is true that the necessity of selling lot 46 would arise only if the provision made for Marion was substantially more than the additional $750,000 for which her counsel ultimately submitted; but in par [74] of the judgment the primary judge was referring to what would happen "if Marion's wishes were to be satisfied," this, in my view, referring to her claim for $3.2 million. This had relevance to the primary judge's decision although, as noted above, it does not mean that the primary judge did not consider the possibility of a lesser provision, such as the additional $750,000 put in final submissions. 34 As regards the final point, the financial circumstances of Alan's wife had relevance to Alan's needs and thus to the strength of Alan's legitimate claim on the testator's bounty. This in turn had possible or potential relevance to determination of whether Marion had adequate provision for her proper maintenance and advancement in life, to the extent that what was adequate and what was proper could be affected by the capacity of the testator's property to make provision. 35 In the circumstances of this case, the relevance of the financial circumstances of Alan's wife in this way was at best small, since it was not suggested that limitations on the testator's property having regard to the legitimate claims upon it was a major factor in constraining what was adequate and proper. Further, the circumstances of Alan's wife were not such as to have made a significant difference, having regard to the calls made on them by her own family situation. The only submission made to the primary judge that had any relation to this point was a brief reference to the income of Alan's wife. 36 Having regard to all these considerations, in my opinion the financial circumstances of Alan's wife was not a matter of such relevance to the primary judge's decision that failure to specifically advert to it was indicative of error: see Mifsud v Campbell (1991) 21 NSWLR 725. 37 Accordingly, I am not satisfied that any particular material error in the primary judge's judgment has been identified. I do not understand it to have been submitted that the result reached is so unreasonable as to justify appellate intervention in a discretionary judgment, and I do not in any event take the view that the result is unreasonable in that way. This is a case where an adult child in apparently good health, in good employment and in reasonable financial circumstances was given a little under half a million dollars by the testator's will, and in those circumstances, in my opinion, it was well open to the primary judge to reach the conclusion that it had not been shown that this provision was inadequate for her proper maintenance and advancement in life. 38 For those reasons, I would propose that the appeal be dismissed with costs. 39 CAMPBELL JA: I agree. I would add only concerning the submission that the judge approached the matter on an all or nothing basis that pars [70]-[73] of the judgment below, in my view, falsify that proposition. There the judge gave separate consideration to whether a claimed need arising from the expenses of tertiary education of Marion's children in themselves gave rise to a relevant need. 40 SACKVILLE AJA: I also agree with the orders proposed by the presiding judge and his Honour's reasons. I agree with the additional observations made by Justice Campbell. 41 HODGSON JA: The order of the Court is: appeal dismissed with costs. oOo

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Judgment (88 paragraphs)

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Cases Cited (11)