Chu v Ngar

Supreme Court of NSW|2015-08-27|Before: Hallen J, Santow J

[2011] NTSC 5 Flathaug v Weaver [2003] NZFLR 730 Foley v Ellis [2008] NSWCA 288 Foye v Foye [2008] NSWSC 1305 Gardiner v Gardiner [2014] NSWSC 435 Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep) Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 Goodsell v Wellington [2011] NSWSC 1232 Gorton v Parks (1989) 17 NSWLR 1 Grey v Harrison [1997] 2 VR 359 Harrison v Harrison [2011] VSC 459 Haskakis v Hatzopoulos [2015] NSWSC 1408 Hawkins v Prestage (1989) 1 WAR 37 Hitchcock v Pratt [2010] NSWSC 1508; (2010) 79 NSWLR 687 Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 Hunter v Hunter (1987) 8 NSWLR 573 Hyland v Burbidge [2000] NSWSC 12 In re Allardice; Allardice v Allardice (1910) 29 NZLR 959 In re Allen (Deceased); Allen v Manchester [1922] NZLR 218 In the Estate of Puckridge, Deceased (1978) 20 SASR 72 Kay v Archbold [2008] NSWSC 254 Kearns v Ellis (Supreme Court (NSW), Mahoney JA, 5 December 1984, unrep) Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Kohari v Snow [2013] NSWSC 452 MacGregor v MacGregor [2003] WASC 169 McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 Madden-Smith v Madden (estate of the late Doris Linda Madden) [2012] NSWSC 146 Marks v Marks [2003] WASCA 297 Mayfield v Lloyd-Williams [2004] NSWSC 419 Moore v Randall [2012] NSWSC 184 Palagiano v Mankarios [2011] NSWSC 61 Phillips v James [2014] NSWCA 4; (2014) 85 NSWLR 619 Pogorelicv Banovich [2007] WASC 45 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep) Re Buckland, Deceased [1966] VR 404 Re Salmon, Deceased [1981] Ch 167 Romascu v Manolache (No 2) [2012] NSWSC 87 Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473 Salmon v Osmond [2015] NSWCA 42 Shi v ABI-K Pty Ltd [2014] NSWCA 293 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 D H Singh v G K Singh; D J Singh v D H Singh; S Dillon v D Singh; G K Singh v D H Singh [2015] NSWSC 1457 Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253 Smith v Johnson [2015] NSWCA 297 Smith v Woodward (NSWSC, Macready M, 9 September 1994, unreported) Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stewart v Stewart [2015] QSC 238 Strano v Jovcevski [2008] NSWSC 380 Sung v Malaxos [2015] NSWSC 186 Szypica v O'Beirne [2013] NSWSC 297 Taylor v Farrugia [2009] NSWSC 801 Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757 Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100 Underwood v Gaudron [2014] NSWSC 1055 Underwood v Gaudron [2015] NSWCA 269 Verzar v Verzar [2012] NSWSC 1380 Verzar v Verzar [2014] NSWCA 45 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Vincent v Lewis [2006] NZFLR 812 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) Wilcox v Wilcox [2012] NSWSC 1138 Zannetides v Spence [2013] NSWSC 2032 Category: Principal judgment Parties: Angela Chu (Plantiff) Chow Ching Ngar as executrix of the Estate of the late Ching Chu (Defendant) Representation: Counsel: Ms R Winfield (Defendant)

Solicitors: William Chan & Co Solicitors (Defendant) File Number(s): 2012/397182

Introduction

HIS HONOUR: Ching Chu ("the deceased") died on 29 November 2011, aged about 72 years. He was survived by his wife, Chow Ching Ngar ("the Defendant") and their two children, Angela Chu ("the Plaintiff"), and Winnie Chu, who is not a party to the proceedings and who has played no direct part in the proceedings, although she was present in court throughout the hearing.
In writing this judgment, I have borne in mind the admonition of the Court of Appeal in Underwood v Gaudron [2015] NSWCA 269, at [11], that "[t]he relevant principles can be stated briefly… [and that] in a case where the moving party had not always had (and might after the trial no longer have) legal representation, unnecessary length and complexity in a judgment is to be avoided". However, it is to be noted that the hearing of these proceedings occupied 4 days, and as will be read, the only matters of importance agreed upon by the parties was that the Plaintiff was an eligible person and that she had not commenced the proceedings within the time prescribed by the Act.
It is, therefore, necessary to deal with all of the issues raised by one, or both, of the parties, whether legally represented or not. In the circumstances, it has not been possible to further reduce the length of the reasons for judgment. The case, unfortunately, demonstrates, yet again, the emotion and feelings of disappointment that is generated by family members in such claims.

The Claim

The Plaintiff commenced these proceedings by Summons filed on 21 December 2012, in which she sought a family provision order pursuant to Part 3.2 of the Succession Act 2006 (NSW) ("the Act") and costs. A family provision order is an order made by the court in relation to the estate, or notional estate, of a deceased person, to provide from that estate, or notional estate, for the maintenance, education, or advancement in life of an eligible person. The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009.
As stated, there is no dispute that the Plaintiff's application was not filed within the time prescribed by the Act (within 12 months of the date of the death of the deceased). It was commenced about 3 weeks out of time. In Paragraph 2 of her Summons, the Plaintiff sought an extension of time for filing the application "up to the hearing of the matter". I shall return to this topic later in these reasons.
The court was informed by counsel, that the Defendant had recently made an application for a grant of Probate in common form, but that application, at the conclusion of the hearing, had not been determined: T48.47-T49.05.
On the second day of the hearing, for abundant caution, the following orders were made, with the consent of the Defendant (an explanation having been provided to the Plaintiff for the need to make such an order) (T79.30-T79.50): "Orders, pursuant to Uniform Civil Procedure Rules 2005 (NSW), rule 7.10(2)(b), that the Defendant be appointed to represent the deceased's estate and notional estate for the purposes of these proceedings. Orders that any order entered or made in the proceedings binds the deceased person's estate and notional estate to the same extent as the estate and notional estate would have been bound had a personal representative of the deceased person to whom administration had been granted been a party to the proceedings."

The Course of the Proceedings

The matter, initially, was in the Registrar's List (until the commencement of the Family Provision List in March 2013). On 5 April 2013, I ordered that the matter be referred to court annexed mediation, which mediation was held in July 2013. Regrettably, but unsurprisingly bearing in mind the course of the proceedings since then, the mediation proved unsuccessful and the matter has been before me on a number of occasions.
For a time, the Plaintiff was legally represented. The Summons and first affidavit in support bears the name of a firm of solicitors, Carneys Lawyers, and bears the hallmarks of having been prepared by someone with legal experience. The Plaintiff was subsequently represented, by a solicitor, Mr D Angelkov, of Kent Attorneys, who appeared at one, or other, of the directions hearings. The first firm of solicitors filed a Notice of Ceasing to Act on 22 November 2013. The second firm of solicitors filed a Notice of Ceasing to Act on 1 June 2015.
On other occasions that the matter was listed for directions, the Plaintiff appeared with legal assistance (Mr J Burrell), although he was a solicitor who had not filed an Appearance. On others, the Plaintiff did not appear at all, or if she did, she appeared in person. She confirmed that she was not legally trained. On any such occasions, the court urged her to obtain, and retain, legal representation. The court reminded her that she was likely to be disadvantaged because she did not have sufficient legal knowledge, the skills, or the objectivity, to conduct this quite complex litigation.
On the occasion the matter was listed for pre-trial directions on 22 July 2015, the Plaintiff appeared in person. Following the directions hearing, the Plaintiff complained of chest pains and it was necessary to call an ambulance to ensure her medical safety. (I was informed of this at the final hearing as the events had occurred after I had adjourned.)
On 18 August 2015, prior to the final hearing, I requested my Associate to forward an email to the Plaintiff, and to Ms R Winfield, counsel for the Defendant, in the following terms: "Dear Ms Chu, His Honour notes that you may not be legally represented at the hearing commencing on Monday, 24 August 2015. You may care to go to the Supreme Court website which includes a section headed 'Representing yourself in civil proceedings'. You and Ms Winfield may also wish to consider:- Ciric v Ciric [2015] NSWSC 313; and Baird v Harris [2015] NSWSC 803 In each of which cases, his Honour has dealt with the principles in these types of proceedings. Finally, to date, your original Affidavit sent by Express Post last week, has not been received in Chambers."
At the commencement of the hearing, the Plaintiff acknowledged that she had received the email from my Associate. However, she said that she had only had the opportunity to look at the Supreme Court website at 3:00 a.m. on the morning of the hearing and had not looked at either of the cases: T10.35-T10.49.
Shortly prior to the commencement of the hearing, the court received an email from Dr Lawrence Lau, the husband of the Plaintiff from whom she stated she had separated, although from whom she has not been divorced. The email was, relevantly, in the following terms: "Dear Duty Judge, I'm trying to get a set of documents for a hearing set down at 10am Sydney time. The email I had for Judge Hallen's associate is not working. The Plaintiff needs to get these printed out and witnessed/signed. Is there an updated contact for Judge Hallen associate or a way to pass a message that the Affidavit + Statements are available? … Dear Ms Simmonds, I'm the McKenzie friend for Angela. She emailed me 11pm last night from internet cafe and due to time-zones, I won't be able to contact her at this point. Are you able to print out some documents ('Statement of Issues', Plaintiff Objections, etc) to hand to her before hearing, or during a recess? I'll try and get her to contact you first. But PLEASE remind her that as McKenzie friend, I can't give legal advice so she needs to select and cross out the items herself before getting it witnessed/dated. Dr. Lawrence Lau"
When the hearing commenced, it was clear that Dr Lau would not be attending, in person, to assist the Plaintiff. He was called outside the court, but he did not appear. When she was asked about her knowledge of the email, the Plaintiff did not seem to know it had been sent. She did not suggest that she had authorised Dr Lau to send it: T2.09-T2.44. Dr Lau did not play any part in the final hearing.
In view of the fundamental right of a litigant to appear in person, enshrined in the Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR") rule 7.1(1), the court accepted that the Plaintiff was to continue the hearing without legal representation.
Following confirmation by the Plaintiff that she was ready to proceed, the court confirmed its duty to ensure that the trial is fair and determined in accordance with the law, a duty that applied to both parties. The Plaintiff was also told that the court's duty was not to advise her of how to conduct her case; nor to advise her of how her rights should be exercised; and nor to become her advocate or stand in the shoes of her previous solicitor. Nor would the court unduly interfere with the conduct of the trial on her behalf. Any assistance would be proportionate in the circumstances and would be given not for the purpose of affording an advantage to her as a self-represented litigant: Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100, per Bell J, at 130; Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep), per Samuels JA; Cicek v Estate of late Solomon [2014] NSWCA 278, per Ward JA, at [126]-[130]. To appear unrepresented would not be an advantageous procedural step.
The Plaintiff was also informed that the court would not permit her to give evidence from the Bar table without oath or affirmation. She was told that there was a difference between evidence and submissions and that what she said during submissions would not be regarded as evidence. It was also made clear that the guidance of the court would not extend to advising her of how her rights should be exercised.
In order to assist the Plaintiff further, a copy of the Court Book, which the Defendant had attempted to provide to her prior to the commencement of the hearing, was handed to her. Because she did not seem to have access to a copy of all of the affidavits, I considered that the Court Book should be marked as an exhibit (Ex. 1) and the objections were marked on the affidavits within that Exhibit. It will remain with the court file.
As there were a number of the Plaintiff's earlier affidavits, and some documents annexed to her affidavit of 7 July 2015, not contained as part of Ex. 1, on the second day of the hearing, I marked a second folder of affidavits, together with the additional documents, that had been read by the Plaintiff, but not included in Ex. 1, as Ex. 2.
Finally, the Plaintiff confirmed that she had received a copy of the Defendant's Outline of Submissions.
I am satisfied that the Plaintiff was given every opportunity to be heard. I have no doubt that she is an intelligent woman who seemed to have no difficulty understanding what was said to her and keeping up with the procedural steps that were being taken. I also thought that her understanding of the English language was very good, which was unsurprising bearing in mind that she has been educated, principally in Australia, since her mid-teens.
As has been noted, "the right of a party to be given an opportunity to be heard… includes prior notice of the issues to be addressed, an opportunity to call evidence, an opportunity to make submissions and the right to have his or her evidence and submissions given appropriate consideration by the decision-maker. Whether such opportunities have been made available is a different question from whether they have been availed of. A party who has a reasonable opportunity to present his or her case and fails to make the most of it cannot later be heard to complain that there has been procedural unfairness": Shi v ABI-K Pty Ltd [2014] NSWCA 293, at [50].
Naturally, it was necessary for there to be some degree of tolerance and assistance, within the constraints of the duty to ensure a fair trial to both parties, given to the Plaintiff who is clearly without any legal knowledge. Overall, I am satisfied that the Plaintiff understood the nature of the proceedings and that she conducted them as well as she could. By way of example, I should mention, as a matter going to satisfying me the Plaintiff was sufficiently astute to understand the general nature of the proceedings, that she raised the question whether the Defendant, without a grant of Probate, was able to sell the deceased's shares in a private company, Chu Bros Pty Limited ("the Company") which he held at the date of death: T87.12-T87.43.
There were 4 affidavits in chief and 2 affidavits in reply relied upon by the Plaintiff and 9 affidavits relied upon by the Defendant. An inordinate amount of time was spent dealing with objections to the evidence (by both parties).
It was clear that the Plaintiff had considered (or had had assistance in identifying) the parts of the affidavit evidence to which she wished to object.
The Plaintiff and all of the relevant witnesses called by the Defendant were then cross-examined.
The Plaintiff complained, again, on the second day of the hearing, shortly prior to her cross-examination, of feeling unwell. The hearing was immediately adjourned to see if she would feel better following the long adjournment. I was informed, subsequently that, during the long adjournment, an ambulance had been called and had attended.
Upon the matter resuming, after the long adjournment, with her consent, the hearing continued with the Plaintiff being cross-examined. During the rest of the afternoon, she displayed no symptoms, and made no complaint, of feeling unwell. She seemed well able to deal with the cross-examination by counsel for the Plaintiff. I shall return to the evidence and my views on credibility later in these reasons.

Applications for Adjournment

On the second day of the hearing, the Plaintiff sought leave to file a document, purportedly in the form of an affidavit, which was signed on the last page by her, and in which she stated that she required an adjournment.
She stated that she had not had an opportunity to read the Court Book, which had been marked as Ex. 1, because it had only been provided to her on the first day of the hearing. As I have earlier stated, Ex. 1 contained a copy of the affidavits of each side upon which reliance was to be placed in date order and consecutively paginated. When shown to the Plaintiff, prior to its tender, she confirmed that there were only two, or three, affidavits which she believed that she had not seen, despite each having been sent by email to her. I had asked her to check her emails overnight to ascertain whether she had, in fact, received each, and she did not indicate that she had done so, or that she was satisfied that she had not received the emails and the documents.
Meantime, counsel for the Defendant asserted, from the Bar table, that there was email correspondence, which she was then not able to locate, which she indicated would establish that a copy of the affidavits had been forwarded, by email, to the Plaintiff.
Accordingly, I rejected the first basis for an adjournment. Subsequently, counsel tendered Ex. 5, part of which included a copy of an email from the Plaintiff to the Defendant's solicitor, acknowledging receipt of the two affidavits that the Plaintiff had said she had not received.
The email chain of correspondence relating to the service of the affidavits was tendered as Ex. 7. Counsel also tendered Ex. 8, which included an email regarding the service of an earlier affidavit upon the Plaintiff's then solicitors.
As stated previously, one of the issues the Plaintiff wished to agitate was the value of the shares in the Company. She maintained that she believed that the value attributed to those shares was too low. During the course of referring to Ex. 1, one of the Defendant's affidavits, was from a director of the Company to which was exhibited some extracts from the Company's books of account. The affidavit had been sworn in September 2013. The Plaintiff asserted that she had only received the extracts on the first day of the hearing.
I suspect, although I cannot be sure, that despite what the Plaintiff stated from the Bar table, she may have been referring, again, to receipt of the Court Book (Ex. 1), rather than the extracts exhibited that were contained within the Court Book, because it was clear, from the reading the Plaintiff's affidavit, sworn on 11 November 2014, that, by her then solicitors, Kent Attorneys, she had been served with, and had considered the contents of, the exhibit to that affidavit. Amongst other things, she had referred to the financial records as "extracts". (The Plaintiff's affidavit had been prepared whilst the Plaintiff was legally represented and bears the name of the solicitors on the front page of it.) The relevant part of the Plaintiff's affidavit dealing with the exhibit to Mr Pan's affidavit was read by the Plaintiff in reply.
The Plaintiff then complained that she did not have the exhibit to the affidavit before her because she had given it, the day before, to an accountant for examination and that "he want to come to the Court as a witness" (T83.40-T83.45). She also said that he would not be available during the course of the 4 day hearing. She said that "[t]he independent accountant takes time to audit the account": T86.22.
The Plaintiff was informed that the value of the Company's shares held by the deceased may prove to be something of a distraction, although clearly it was relevant. I referred to the deceased's Will which had identified "estate liabilities", which were required to be paid before the Defendant would receive any part of the deceased's estate. (I shall return to this topic later in these reasons.)
I also indicated that if the court were satisfied, on the whole of the evidence, that one of the debts of the deceased was a genuine debt owed to the Company, a matter apparently not in dispute between the Defendant and the Company, then it was a liability that was required to be repaid before the value of the distributable estate could be calculated.
It was also not in dispute between the Defendant and the Company that the Defendant was not receiving any part of the proceeds of sale of the deceased's shares in the Company as it was retaining the whole of the purchase price in accordance with the Share Sale Agreement.
The Plaintiff then raised the quantum of the debt as being relevant. I indicated to her that it was not a matter that the court was likely to determine. I pointed out that the Defendant, as the person who is entitled to the estate after the payment of all debts, seemed to agree that she would not receive any of the proceeds of sale, with the result that the significant issue appeared to be whether the deceased's interest in the Chatswood property should be designated as notional estate.
I also pointed out that there appeared to be no evidence to contradict the evidence of the Defendant or of the representative of the Company concerning the nature and amount of the debt.
(I should mention, as an aside, that whilst she was legally represented, in October 2013, I had granted leave to the Plaintiff to join the Company, but no Amended Summons has ever been filed, by or on her behalf of the Plaintiff, naming the Company as a second Defendant, and the Company has not filed any Notice of Appearance.)
In all the circumstances, I refused the Plaintiff's application for the adjournment.
On a number of other occasions during the hearing, the Plaintiff repeated that she had an accountant who was considering certain things for her and that she was waiting for him to produce evidence. On each occasion, she said she was unable to produce the evidence of the accountant with the consequence that I refused to delay the continuation of the hearing.

Background Facts

The following facts provide a useful background. The narrative represents the Court's findings in relation to these facts.
The deceased and the Defendant married in November 1969 and remained married at his death. (Although the Plaintiff wished to make a point about the nature of their marital relationship, she seemed to accept that, in Australia, a marriage subsists until dissolved by a decree nisi of divorce being pronounced by the court, which decree nisi had become absolute: see Chen v Lu [2014] NSWSC 1053, per Brereton J, at [80].)
The Defendant was born in April 1946 and is now aged 69 years.
There were two children of the marriage of the deceased and the Defendant, namely, Winnie, who was born in January 1971 and the Plaintiff, who was born in February 1973.
Although the deceased died whilst he was overseas, the court was informed, by counsel, without objection from the Plaintiff, that he was on holiday, overseas, at the time of his death: T328.29-T328.41. (It is not suggested that he was domiciled in Hong Kong at the date of his death.)
The deceased, the Defendant, and the Plaintiff, migrated to Australia in 1988. Winnie was already living in Australia at the time of their arrival.
The deceased left a duly executed Will that he made on 5 June 2004, in which he named the Defendant, as the sole executrix, and appointed her the sole beneficiary of all of his property after payment of all his estate liabilities (which he defined in the Will). In the event that the gift to the Defendant did not take effect, the deceased left all of his property, after payment of all his estate liabilities, to the Plaintiff and Winnie, in equal shares. (Of course, as the Defendant survived the deceased, the substitute provision does not apply.)
According to the Defendant's Inventory of Property, a copy of which was attached to her first affidavit, the property solely owned by the deceased, at the date of his death, was disclosed as having an estimated, or known, gross value of $264,127. His estate was said to consist of superannuation ($9,296), monies in bank ($130), shares in public companies ($6,700) and 8,070 shares in Chu Bros Pty Limited (to which I have referred as "the Company") ($248,000).
As I have mentioned, it was the Plaintiff's case, that the shares in the Company had a greater value than the value disclosed by the Defendant. She based her view simply on the assertion that the value of certain real estate owned by the Company was between $2.0 million and $2.5 million, with the result that the deceased's shareholding, estimated to be about 25 per cent, should equate to between $500,000 and $625,000.
However, the Plaintiff relied on no expert evidence going to the value of the shares in the Company despite the fact that the issue had been raised much earlier in the proceedings. (She did not have any accountant's report available before the conclusion of the hearing. This is not to say that had such a report been available, I would have permitted it to be tendered.)
In addition, in the Inventory of Property, the Defendant disclosed some property that was held jointly by the deceased and her, namely, monies in a joint bank account (one half of which was $140,145) and real estate at Chatswood (the estimated, or known, value of one half of which, at the date of death, was $362,500). She also disclosed the deceased's one third interest in real property (a home unit) in Hong Kong, China (having an estimated, or known, value, at the date of death, of $187,500), which real property he had held, as joint tenants, with the Defendant and with Winnie.
Thus, the deceased's share of the jointly held property, in New South Wales, and in Hong Kong, at the date of death, had an estimated, or known, value of $690,145. (I have omitted, and shall continue to omit, any reference to cents in the amounts to which I shall refer, which will explain any minor mathematical errors.)
A copy of an undated Notice of Death in relation to the Chatswood property forms part of the Plaintiff's evidence. The Chatswood property is now registered in the sole name of the Defendant.
There was no evidence, in any of the affidavits, disclosing when the real estate at Chatswood in which the deceased held his joint interest at the date of his death, had been purchased. However, during the hearing, the parties orally agreed that the Chatswood property had been purchased by the deceased and the Defendant in about 1987: T17.41-T17.43.
Although there was some dispute suggested by the Plaintiff, concerning the current value of the Chatswood property, on the second day of the hearing, the Defendant tendered a Valuation Report (Ex. 3), without objection, in which the estimated market value, shortly prior to the date of hearing, was estimated to be $1.0 million.
In Ex. 3, the Chatswood property was described as "a unit… positioned on the first floor level of a nine storey strata building… offering a central entry point; two adjoining kitchen areas, both with built-in cabinets… lounge/meals area with access onto a front balcony; bathroom; laundry; three bedrooms, main with ensuite. Positioned at the basement level is a single garage".
Thus, the Defendant accepted that the estimated current gross value of the deceased's interest in the Chatswood property, if the whole of the interest was designated as notional estate, should be taken to be $500,000. (In making this concession, the Defendant did not accept that the deceased's interest should be so designated.)
There is evidence that the real estate, in Hong Kong, was purchased, in about April 2011, the consideration being HK$4,500,000. Although there was some dispute, suggested by the Plaintiff, concerning the value of the Hong Kong property, at the date of hearing, the Defendant tendered a document described as a "Residential Property Valuation - Hong Kong" (Ex. 4), without objection, in which the value of the Hong Kong property, shortly prior to the date of hearing, was estimated to be HK$7,610,000 (or AU$1,312,068).
There was no description of the amenities of the Hong Kong property in the Residential Property Valuation.
The Defendant accepted that the estimated value of the deceased's interest in the Hong Kong property, if the whole of that interest were to be designated as notional estate, should be taken to be AU$437,356. (In making this concession, the Defendant did not accept that the court had power to designate property outside the jurisdiction as notional estate, or that, if it could, the deceased's interest therein should be so designated.)
During the oral evidence of the Defendant, the court enquired about the gross income received by the Defendant from the Chatswood property, and the rental income received by the Defendant and Winnie from the Hong Kong property.
The Defendant stated that the gross rental income received from the Chatswood property was about $3,320 per month, and that the gross income from the Hong Kong property was HK$12,000 per month (AU$2,068). She gave oral evidence that the repayments on the debt secured by mortgage on the Hong Kong property, that was paid out of the rental income earned, was HK$4,800 per month (AU$827). She also gave evidence that the income received was otherwise used to pay the outgoings on each property, including rates, management fees, and repair and maintenance costs. The balance of the income was received by Winnie, who used it to pay for all of the living expenses for the Defendant, including rent for her accommodation in Hong Kong, being HK$15,000 per month (AU$2,586).
The Defendant gave evidence that no part of the rent from the Hong Kong property was retained by Winnie separately (despite the fact that she was currently entitled to one half of the balance of the net income).
The Defendant disclosed that the deceased's superannuation had been distributed to her on 10 October 2012; that the shares in public companies had been distributed in June 2012; and the shares in the Company were transmitted into her name on 14 September 2012.
Whilst it was not entirely clear whether the Defendant retained the amount of superannuation, other evidence made clear that she had retained, at the date of the hearing, the shares in the public companies and the shares in the Company.
The Defendant also gave evidence that on 17 July 2015, she had executed a Deed, a copy of which she had annexed to her affidavit, between the Company and her, "in relation to buy back of shares in Chu Bros". The Deed contained the following recitals: "A. Ching Chu, formerly of Unit xx xxxxx, Chatswood NSW 2067 ('the deceased') died 29 November 2011. B. At all material times until his death, the deceased was a director of the Company who controlled the decisions of the Company and was solely responsible for bookkeeping and engagement of the Company's external accountants and auditor. C. The deceased was the owner of 8070 ordinary fully paid shares issued by the Company as shares numbered 3 to 8072 inclusive (hereinafter 'the Chu shareholding"). D. Chow is the deceased's widow and by his last will dated 5 June 2004 the deceased appointed her to be his executor or and trustee and the sole beneficiary of his estate. E. Except for the Chu shareholding, the only other property comprising assets in the deceased's estate, were an ANZ superannuation account and Westpac Master Gold card account to a value of $9,427.26, all of which assets were realised and applied to meet estate debts or expenses by Chow and certain listed shares to a value of approximately $11,700 that remain in the estate. F. In September 2012 the Chu shareholding was transferred to Chow upon approval by the Company of her application for transmission to her of the Chu shareholding. G. The directors of the Company subsequently became aware that before his death, the deceased had withdrawn amounts totalling approximately $681,000 from the Company that he had wrongly allocated in the books and records of the Company against amounts owed by the Company to other shareholders, without the concurrence, or consent of those shareholders (hereinafter 'the misappropriation claims'). H. In addition, at the time of his death, the deceased's own loan account with the Company was in debt in an amount of $227,903 approximately. I. On or about 23 July 2013 the Company made formal demand to Chow in her capacity as executrix and trustee of the estate of the deceased for full repayment of the sums identified in recitals G and H totalling approximately $908,903. J. In partial settlement of that claim, the parties have negotiated a selective share buyback transaction under which, subject to and conditional upon the necessary approvals and compliance with the applicable statutory requirements, they have agreed that the Company will purchase the Chu shareholding (which will then be cancelled pursuant to section 257H of the Corporations Act) in consideration for: reducing the amount of its claim against the estate of the deceased by an amount equal to the value of the Chu shareholding, as ascertained by valuation of those shares as at 31 December 2014, namely $354,212; b. releasing the estate of the deceased from the Company's claims for interest on that amount; c. entering into a conditional covenant not to sue for the balance of the claim as hereinafter provided. K. Attached to this Deed is a form of transfer of the Chu shareholding from Chow to the Company, executed by Chow (hereinafter 'the Transfer') and which is to be held by the Company in escrow pending satisfaction of the Operative Preconditions as defined in clause 1 of this Deed."
The Deed went on to provide, relevantly: "1. For the purpose of this deed, the operative preconditions (hereinafter 'the Operative Preconditions') are as follows: a. Lodgement of the documents identified in section 257D (4) of the Corporations Act with ASIC at before the notice of the meeting to consider approval of the terms of the buyback agreement is sent to shareholders; b. The terms of the buyback agreement herein provided for are approved by a special resolution passed at a general meeting of the company, with no votes being cast in favour of the resolution by Chow (being the person whose shares are proposed to be brought back) or by her associates; or by resolution agreed to, at a general meeting, by all ordinary shareholders as required under section 457D of the Corporations Act. 2. Subject to and conditional upon the Operative Preconditions being met and satisfied: a. Chow hereby agrees to sell and the Company agrees to purchase the Chu shareholding comprising 8070 fully paid ordinary shares in the Company b. the Company hereby agrees to and does reduce the amount of its claim against the estate of the deceased by $354,212, which amount is to be allocated as received by the Company on account of the misappropriation claims; c. the Company hereby agrees to and does release the estate of the deceased from the Company's claims for the interest on the said amount of $354,212; d. the Company hereby covenants not to sue for the balance of its claim against the estate of the deceased subject to the Covenant Conditions as defined in clause 4 of this Deed; 3. When the Operative Preconditions have been met and satisfied: a. the Transfer as attached hereto becomes immediately operative and ceases to be held by the Company in escrow; and b. the Transfer must be registered by the Company and the Chu shareholding so transferred must be cancelled in accordance with section 257H of the Corporations Act. 4. For the purposes of clause 2d of this Deed, the Covenant Conditions are as follows: … b. the covenant remains operative only for so long as, to the best of the Company's knowledge and information, there are no other significant assets available to the estate of Chu beyond the assets reference in the Recitals…"
At the hearing, as previously noted, the Defendant confirmed that she will not receive any part of the proceeds of sale which was said to be $354,212 in the Deed, all of which proceeds will be retained by the Company to reduce what is said to be the debt of the deceased.
There was some confusion in relation to whether the Chatswood property, if it were to be sold, would become available to the estate and clause 4 of the Deed would in turn become operative.
The Defendant and her counsel seemed to think this would occur (T275.31-T276.18): "HIS HONOUR: Ms Chu, I've told you that I'm not going to decide how much your father owes the company. All I'm going to decide is that your mother and the company have reached an agreement that $345,000 [sic], which they agree is the value of the sale price of those shares to the company, is going to be retained by the company to reduce the debt said to be owed by your father to the company. In addition, as I understand it, and Mr Pan, I'll ask you to correct me if I'm wrong, the effect of the agreement is that if the company receives the proceeds of sale of those shares, there will be no further claims by the company against either your mother or your father's estate. Q. Is that your understanding of the agreement? A. Yes ..(not transcribable).. HIS HONOUR: What's the problem about that? WINFIELD: That's not what the deed says. HIS HONOUR: I think it does. That's where I got it from, Ms Winfield. I thought there was a forbearance to sue. WINFIELD: It is, but it is limited. In the recital there's a clause which says that in the event that any money comes into the estate, it's only a forbearance to sue unless there's any‑‑ HIS HONOUR: Yes, but what's going to come into the estate, Ms Winfield? What else is in the estate that could possibly come into the estate? WINFIELD: I suppose if Orchard Street was sold‑‑ HIS HONOUR: But that's not part of the estate, Ms Winfield, it could never be part of the estate. I thought the whole case was about Orchard Street not being part of the estate. WINFIELD: It is, it's notional estate. HIS HONOUR: It doesn't come into the estate. It's designated as notional property if I find it to be. It is not part of the estate. Ms Chu, that's the position, and you can ask as many questions as you like--"
The Defendant also stated, at T226.29-T226.31, "…there were (sic) still some money owing to that company. They let me live in that Orchard Road unit because they concerned that I am a widow. I was informed that if that property was sold I will need to repay the remaining debt. So if that happened, how will I be able to make my life?"
As clarified during the hearing, the proceeds of sale of the Chatswood property would not form part of the estate of the deceased, if it were to be sold. Therefore, subject to any family provision order, the Chatswood property, or the proceeds of its sale, will remain the property of the Defendant as the sole registered proprietor.
Whilst each of the distributions of the property solely owned by the deceased at the date of his death, occurred at least 6 months thereafter, there is no evidence that the Defendant, as the legal representative of the deceased, had given notice in the form approved under s 17 of the Civil Procedure Act 2005 (NSW) that she intended to distribute the property in the estate after the expiration of a specified time.
There was also no evidence of the circumstances of the distributions having been made without a grant of administration, a matter, as I have noted, the Plaintiff raised.
The Defendant also stated that the bank accounts had been closed in February, or March, 2012, and that the deceased's interest in the real estate in Hong Kong had been transferred, on 29 March 2012, to her and to Winnie as joint tenants. (These distributions were not made at least 6 months after the deceased's death.)
The Will identified "estate liabilities" as including "my funeral expenses; all debts I owe when I die; all expenses my Trustee incurs in administering the estate; and all charges my Trustee makes for doing the work".
The Defendant disclosed no liabilities in the Inventory of Property. However, in her first affidavit, she stated that the deceased owed the Company $908,902; that there were debts secured on the Chatswood property ($46,130), which she had discharged on 29 March 2012; that there were credit card debts ($4,031) which she had caused to be repaid on 28 November 2011; and that there was a debt secured on the Hong Kong real estate ($62,500). She was not cross-examined on any of these liabilities, other than the Company debt.
(In an affidavit sworn on 24 July 2015, the Defendant stated that the debt owing to the Company was then $899,219. It had been reduced, she said, because dividends from the Company were being set off against the debt instead of being paid to her as the shareholder.)
In addition, the Defendant stated that Winnie had paid the funeral expenses ($7,102) using estate funds, and that she had paid $5,000 to one, Mrs Teng, using money from the estate. (The reason for the payment was not disclosed in the affidavit, but I was informed by counsel, from the Bar table, that Mrs Teng was a friend of the deceased and that he had owed her $5,000 which was the amount repaid. The precise reason for the repayment was not disclosed.)
It follows that, as a result of the distributions made to the Defendant of the estate in New South Wales, and because the sale proceeds of the shares in the Company will be used to reduce the debt said to be owed by the deceased to the Company, there is no actual estate available from which any order for provision in favour of the Plaintiff may be made.
There is property, however, in New South Wales that may be designated as notional estate, comprising the deceased's interest in the Chatswood property (with a current value of $500,000) which had been transmitted to the Defendant. The value of the deceased's interest in the Hong Kong property, if it were designated as notional estate (with a current value of AU$437,356) is also relevant.
It is clear, if the deceased's interest in the Hong Kong property is not available to be so designated, it is property that has passed, in part, to the Defendant and to Winnie and, at least so far as the Defendant is concerned, is provision that she has received as a result of the death of the deceased.
Bearing in mind the claim of the Plaintiff, as stated in her oral submissions, there is sufficient if only the deceased's interest in the Chatswood property were to be designated as notional estate.
The Defendant's counsel accepted that the money in bank that was jointly held by the deceased and the Defendant at the date of death and which was inherited by the Defendant by survivorship may also be designated as notional estate. However, as disclosed, only a portion of that money is currently retained by the Defendant.
It seems to me that the precise amount of the alleged liability of the estate to the Company is not directly relevant to the value of the property that may be designated as notional estate, since, at the date of hearing, the jointly held property is not the subject of a claim brought by the Company. No claim in any proceedings has been made by the Company in which it is asserted that the deceased used the Company's money to purchase any interest in the jointly held property, or used the Company's money to repay any debts secured on either the Chatswood property or the Hong Kong property.
Although there is evidence filed by the Defendant on behalf of the Company, no step has been taken by the Company to join these proceedings, at least one of the directors being well aware of them. Nor has it commenced any proceedings against the Defendant to have the deceased's estate administered under Part XI of the Bankruptcy Act 1966 (Cth) or otherwise to establish any claim it may have. (This was acknowledged by counsel who had submitted, in writing, that "the threat of legal proceedings by Chu Bros remains hanging over the Defendant's head".) I have earlier mentioned that leave had been granted to the Plaintiff to join the Company as a Defendant but she had not done so.
In addition, if the sale of the shares in the Company is completed in accordance with the Deed, the balance of any debt will, presumably, not be repayable. Accordingly, in light of the terms of the deceased's Will, the proceeds of sale would not form part of the estate of the deceased at the date of hearing.
In calculating the value of the estate or notional estate, finally available for distribution, the costs of the present proceedings should be considered, with circumspection, since the Plaintiff, if successful, normally, will be entitled to an order that her costs, to the extent that she has any, calculated on the ordinary basis, be paid out of the estate or notional estate of the deceased, whilst the Defendant, as the administrator, irrespective of the outcome of the proceedings, normally, will be entitled to an order that her costs, calculated on the indemnity basis, be paid out of the estate or notional estate.
I have dealt with the principles that apply to the costs of a self-represented litigant in Romascu v Manolache (No 2) [2012] NSWSC 87, at [27]-[31]. It is not necessary to repeat what I wrote in that case. There is no evidence about the Plaintiff's own costs, or out of pocket expenses, that she has incurred.
Yet, in her summary of liabilities, in her most recent affidavit, the Plaintiff stated that she has a debt to Carneys Lawyers (the solicitors initially instructed) of $25,000 and a debt to the solicitor (Mr J Burrell) who appeared with her at a number of directions hearings but who did not file an Appearance ($7,000).
During submissions, the Plaintiff did disclose, from the Bar table, and without objection, that the costs and disbursements said to be outstanding to Kent Associates, were $72,266 (inclusive of GST and calculated on the indemnity basis). (Mr Angelkov, the solicitor at Kent Attorneys, had happened to be present in court on the first day of the hearing and I requested him to inform the Plaintiff of the amount of costs and disbursements that the firm might claim from the Plaintiff.)
(It will be appreciated that even if she were successful, there is likely to be a difference between the Plaintiff's costs calculated on the ordinary basis and her costs calculated on the indemnity basis. That difference, unless a special costs order were made would constitute an amount that she would have to pay.)
Mr W Chan, solicitor, in an affidavit sworn on 23 July 2015, estimated the Defendant's costs and disbursements of the present proceedings, including counsel's fees, calculated on the indemnity basis (inclusive of GST and upon the basis of a four day hearing), to be about $102,955. Of those costs and disbursements, he stated that the Defendant has paid, from her own resources, $48,955. Mr Chan also stated that she will have to meet the balance of the costs and disbursements from her own resources as there are, or will be, no money in the actual distributable estate available to meet these costs.
The Plaintiff did not serve a notice identifying the persons who are, or who may be, eligible persons within the meaning of that term in the Act. The Defendant had asserted that each of the parties, and Winnie, and two of Winnie's children is, are, or may be, eligible. Whilst each of the parties, and Winnie, is clearly an eligible person, there is no evidence that either of the deceased's grandchildren was wholly or partly dependent upon him. Accordingly, I am satisfied that each grandchild is not an eligible person.
There is no evidence that the prescribed form of notice was served on Winnie. However, the court was informed by counsel for the Defendant that Winnie was well aware of the proceedings and that she did not wish to make any claim for a family provision order under the Act. As she was present throughout the hearing, I am satisfied that it is unnecessary to serve upon her a notice of the application, and of the Court's power to disregard her interests as a person by, or in respect of whom, an application for a family provision order may be made, but who has not made an application.
Of course, the Defendant is a party to the proceedings. However, as she is a beneficiary named in the Will of the deceased, the court may not disregard her interests.

Additional Findings of Fact

The deceased and the Defendant purchased a property at Hercules Street, Chatswood, in about 1991. They sold that property in February 2010. There is no evidence of the purchase price, of this property.
The Defendant gave evidence that from the gross proceeds of sale, about $400,000 was used to repay the debt secured by mortgage on the title, and an undisclosed amount was used to renovate the Chatswood property, with the balance of about $1.0 million placed on term deposit in the joint names of the deceased and the Defendant. Subsequently, an undisclosed part of the funds held on term deposit, was used to purchase the Hong Kong property. Finally, the Defendant asserts that she used part of the term deposit to repay monies borrowed by the deceased, without her knowledge, and gambled away by him.
In her affidavit of 4 April 2013, the Defendant stated that the balance left was $74,154. The Defendant also gave evidence, in that affidavit, that the Chatswood property had been rented and that she received rental income of about $4,750 per month, of which $2,375 per month was used to reduce the debt ($93,750) then secured on title to the Chatswood property.
The Company is an Australian proprietary company limited by shares. It was first registered on 5 March 1976. It has 32,282 issued ordinary shares, of which the deceased held 8,070.
There are three other shareholders who hold the same number of shares as did the deceased, and two other shareholders, who hold 1 share each in the Company.
The Company owns, amongst other assets, real estate at Gordon, Sydney, comprising a three story substantially brick building, comprising two shops, at ground level, with offices above and car parking at the rear. In late October 2014, the estimated gross value of the Gordon property, was said to be $2.0 - $2.5 million.
One of the directors of the Company, Li-Ning (Rhett) Pan swore an affidavit on 30 August 2013, in which he stated that the Company was formed by Mr Tokien Chuang, a family friend of the deceased, who effectively managed it until his death in 1989. It was 3 years later that the deceased began to administer the affairs of the Company as a director, although he had been a director since its registration. The deceased had kept the financial records of the Company and it is those records which have been relied upon to conclude that the deceased owed the Company the sum that it had claimed.
The Plaintiff was married, in 2007, to Lawrence Lau. They separated in about 2010 or early 2011. For most of their married life, they lived, rent and occupation fee free, in the Hercules Street property, although they did travel regularly to New Zealand, to Lawrence's home. They are not yet divorced and they maintain some contact via email (T137.43-T138.37).
The Plaintiff states that she received advice that she is "entitled to make a claim for equal division of relationship property under the Property (Relationships) Act 1976 (NZ)" against Lawrence. However, the value of her claim is "minimal at best and confined to a share of the value of the gemstones which Lawrence is withholding from me". I shall return to the evidence of the value of those gemstones.
Winnie lives with her husband and their two children in Hong Kong. She has not given any evidence of her financial and material circumstances. Since she is not a beneficiary named in the Will of the deceased, and as she has not made a claim for a family provision order, her interest, as an eligible person, may be disregarded.
It is clear that the Defendant relies upon Winnie to a large extent. Whilst they do not live together in Hong Kong, it was clear from the Defendant's evidence, that Winnie handles the financial affairs of the Defendant and generally looks after her where necessary.

Extension of Time

The Plaintiff provided some evidence explaining her failure to commence proceedings within the time prescribed by the Act. She stated in an affidavit sworn on 1 April 2014, that "[d]uring most of 2012 I was in Taiwan or Hong Kong and not in Australia. I was busy with other things and not mindful of any time limit on commencing this type of case". She also said that she had returned to Australia in December 2012 and engaged Mr A Carney, of Carneys Lawyers, who had provided her with legal advice.
In particular, she stated in her affidavit: "He advised me with words to this effect: 'The application should be lodged within 12 months of the date of death, it is out of time, we need to lodge it immediately'. A few days later, on 21 December 2012, the summons commencing the proceedings was filed."
The cross-examination of the Plaintiff revealed some more information on this topic which did not assist her. It was revealed that the Plaintiff, after she had been provided with a copy of the deceased's Will, had been in contact with the solicitor (one Mr E Teng), who had prepared that Will and who was one of the attesting witnesses to the deceased's signature on the Will. He had advised her to obtain independent legal advice.
The Plaintiff next contacted Mr P Stern, solicitor, by email. A copy of an email dated 11 April 2012, from Mr Stern to the Plaintiff (forming part of Ex. 6), responding to the Plaintiff's email, relevantly stated: "I'm sorry that I am in the same position as Edmund - I am not able to provide you with advice as to any entitlement you may have in relation to your late father's estate due to conflict of interest (landlord/tenant relationship). However, you should be aware that you must commence proceedings within 12 months of your father's death if you consider you have not been provided for adequately in your father's Will." [My emphasis]
The Plaintiff was cross-examined about her knowledge of the need to commence the proceedings (at T129-T130): "Q. You understood Mr Stern was telling you if you wanted to bring a claim, you had to bring it within 12 months of your father's date of death. A. Yes. Q. Nevertheless you say in your affidavit at paragraph 27, 'I was busy with other things and not mindful of any time limit on commencing this type of case.' But you were mindful of the time limit, weren't you, because Mr Stern had told you? A. I commit suicide overdose when I staying in my mother's place and I didn't want to contest it until that happened, so I was under depression and I was admitted in hospital, and then I flew into Sydney after one week of my overdose in hospital that I got discharge. Q. Mr Stern told you on 11 April, but you sought no alternative legal advice until you saw Mr Carney in December of that year, some eight months later, isn't that right? A. I was out of the country. That's the first day I came back and I went to see him with my luggage. Q. But you didn't need to be in the country to give a solicitor instructions to‑‑ A. I did try to get instruction, I get in touch with ..(not transcribable).. they say they not doing family provision case and did not - they don't have capacity. And also for Chinese culture, within 14 month, you're not suppose to contest it, it's disrespectful for my father. And also I'm concern that my mother was depression, she was suffering from depression and couldn't cope very well with my father's death, so I don't want to trigger her depression, so I try to resolve it outside the Court. So‑‑ Q. Ms Chu, you've said none of that in your affidavit that you swore on 1 April. A. That's why none of the lawyer are representing me because I told them to put it in and they didn't do - follow my instruction. Q. You did know and you simply didn't bother to do something in time, isn't that right? A. No, I deny that. I was very depress, and depression give you procrastination. Q. You just mentioned 14 months. That's just simply not correct, is it, that you can't do anything within 14 months of the date of death? A. And I didn't have money to buy the ticket to come back. HIS HONOUR Q. The question Ms Winfield asked you, you put to her a moment ago that in Chinese culture you must delay commencing proceedings for 14 months. A. Yes. Yes. Q. Ms Winfield suggested to you that that was not true. Do you maintain that it's part of your culture that you should not commence any proceedings for 14 months? A. Yes. HIS HONOUR: She's saying yes. She maintains that it's part of the culture. WITNESS: Disrespectful for the senior person eyes."
This is a case, therefore, in which the Plaintiff received some advice, well before the expiration of the period prescribed by the Act for making a claim, that if she wished to make a claim under the Act, she should do so within 12 months of the deceased's death. She knew of her rights, and knew of the time within which those rights should be exercised.
It is to be noted that, whilst in cross-examination, the Plaintiff gave evidence about reasons why she did not make such a claim, she had not provided those reasons in any of her affidavits. Her sole reasons, stated in her affidavits, were as set out above. Nor did the Plaintiff provide medical evidence relating to the period following the death of the deceased when she had allegedly suffered from depression or when she allegedly attempted suicide.
The Defendant did not give evidence that she expected that the Plaintiff would not make any claim on the estate, or submit that the Plaintiff was guilty of any unconscionable conduct in the delay in making her application. Nor was it suggested that the Defendant was prejudiced in her dealings with the assets of the estate by reason of that delay.
Nor is there any evidence that the Defendant would have acted differently had the Plaintiff's application been made within the time prescribed by the Act. As stated, the distribution of the estate appears to have been made during the period of 12 months from the date of the deceased's death.
Finally, on this topic, it is to be remembered that the Summons was filed only about three weeks outside the time prescribed by the Act.

Credibility of the Parties

Overall, I was unimpressed with some of the evidence given by the Plaintiff. However, I am satisfied that she was, and has been throughout the proceedings, extremely emotional about the case, which emotion has coloured some of her evidence. This was most obvious when she was cross-examining the Defendant about the deceased being a compulsive gambler and when she was cross-examining Mr Pan about the Company's allegation that the deceased had misappropriated money from the Company.
I am also satisfied that she currently suffers from anxiety. I shall return to the evidence about her medical condition later in these reasons. Her condition may explain some of her behaviour during the proceedings generally.
Yet, a medical condition does not explain the Plaintiff's failure to provide all of the evidence about the steps she had taken to obtain legal advice before the expiration of the period prescribed by the Act for the making of her application, the advice she was given, or, as importantly, more detailed evidence about her income in Australia, and overseas, or the current value of property, being gemstones, that she holds here, or in which she has an interest overseas. (As will be shown later, there is a significant difference in value, estimated by her, of the gemstones said to have been retained by her estranged husband. The difference in value is not satisfactorily explained.)
In Collings v Vakas [2006] NSWSC 393, a case decided under the former Act, Campbell J (as his Honour then was) stated, at [67]-[68]: "[B]efore a court can be satisfied that a plaintiff has been left without adequate provision, the court needs to be persuaded that it has been presented, at least in broad outline, with the whole picture concerning the plaintiff's financial situation. In the present case, even though there are two elements of the plaintiff's financial situation about which I am satisfied (that she owns no real estate, and has family responsibilities), when another crucial element of the plaintiff's financial situation (namely, her income and expenditure) is not satisfactorily proved, it is not possible to conclude that she has been left without adequate provision. In these circumstances, the plaintiff's claim is dismissed."
A similar approach was taken by McLaughlin AsJ in Foye v Foye [2008] NSWSC 1305, in which his Honour wrote, at [14]-[15] and then [41]: "It cannot be emphasised too strongly that it is incumbent upon an applicant for provision to disclose to the Court as fully and as frankly as possible all details of that applicant's financial and material circumstances. Where an applicant is living with a spouse or partner, that obligation extends also to the circumstances of such spouse or partner. It is quite inappropriate for an applicant to fail… to set forth the financial and material circumstances of his wife, and then to say that he was not asked to provide any information concerning her finances. Whether or not he is expressly requested to provide such information, an applicant has an obligation to place that information before the Court. Neither the Court nor the Defendant should be required to embark upon a search for information which [the Plaintiff] himself had an obligation to provide frankly and voluntarily in support of his claim. If he chooses not to inform the Court of the details of the finances of the wife with whom he is living, then the Court is entitled to draw appropriate inferences from that omission. ... I have already referred to the obligation of an applicant for provision to place before the Court as fully and as frankly as possible all information concerning the applicant's financial and material circumstances. I have also referred to the fact that it is not the responsibility of the Defendant to elicit evidence concerning those circumstances which the applicant herself fails to provide voluntarily."
In The Estate of the late Anthony Marras [2014] NSWSC 915, Bergin CJ in Eq, at [238], emphasised the need for applicants for provision under s 59 of the Act to make "full and frank disclosure of their financial circumstances" and to provide, at least in broad outline, the "whole picture" concerning their financial situation. Also see, D H Singh v G K Singh; D J Singh v D H Singh; S Dillon v D Singh; G K Singh v D H Singh [2015] NSWSC 1457, per Black J, at [152]-[154], where these cases are referred to.
It is difficult to conclude that the Plaintiff complied with her obligations to provide a full and frank picture of her financial resources. The fact that she produced very few financial documents also does not assist her. I have borne in mind that the Plaintiff, for some part of the proceedings, has been self-represented. However, as Black J noted in Singh v Singh, at [158], "the difficulty with… non-disclosure is not that it exposes [the applicant] to criticism, in respect of his conduct of the proceedings, but that it places the Court in a position where it cannot exercise a discretion to make orders for provision in his favour because it does not have an adequate evidentiary basis to do so. That position does not change, even if the non-disclosure was inadvertent or the result of a misunderstanding of… obligations rather than being deliberate."
Overall, I was satisfied that the Defendant was giving her evidence truthfully, albeit, at times, emotionally. In particular, I have no reason to doubt her evidence regarding matters relating to the deceased's gambling, or her being satisfied that there is a debt due to the Company. In regard to the latter matter, she has been legally represented throughout the proceedings. It is highly likely that if she had a reasonable basis for disputing the alleged debt, she would have done so.
Whilst it is true that the Defendant did not set out all of her current financial circumstances before the hearing commenced, there was no evidence, although it was suggested to her in cross-examination, that she had more money available to her than she had disclosed. I shall return to my findings about her current financial resources later in these reasons.
In relation to Mr Pan, whilst, at the commencement of the cross-examination, he was a little belligerent in answering questions, and unresponsive to some of the questions asked, this was, in my view, at least partly, a response to the manner in which he was being cross-examined. Later, after the court again explained to the Plaintiff that her cross-examination would need to take the form of questions, and explained to Mr Pan that his responsibility was to answer the questions not objected to by counsel, or rejected by the court, the questions and answers proceeded more smoothly.
I have no reason to doubt the evidence given by Mr Pan as to his investigations regarding monies alleged to have been misappropriated by the deceased by the Company.
The contents of the Deed to sell the shares back to the Company and allow the Company to retain the proceeds of sale, constitute, in my view, an admission against the Defendant's interest, and the admission should be accepted in preference to the assertions of the Plaintiff, who does not have any evidence that money was not taken by the deceased from the Company as is alleged.
It would be a conspiracy of significant proportions for the Defendant and the representative of the Company to make the assertions, under oath, in order to rebut the assertion of the Plaintiff that the proceeds of the sale of the shares in the Company form part of the estate of the deceased at the date of hearing.
It is not necessary, however, for me to express any conclusion about the amount said to have been taken by the deceased and which is said to now result in there being a debt owed to the Company. I am satisfied that the proceeds of sale of the shares that are to be sold back to the Company by the Defendant, will be retained by the Company, and will not be received by the Defendant. I am also satisfied that the proceeds will be used by the Defendant to satisfy, in whole or in part, a debt owed by the deceased at the date of his death.
Whilst the shares in the Company held by the deceased formed part of his estate, the sale proceeds will not be available to meet any family provision order.
During the course of Mr Pan giving evidence, counsel sought to tender a written valuation of the Company. I rejected the tender upon the basis that counsel could not explain why a copy of the document was not the subject of evidence prior to the hearing and why, in any event, it had not been served. To admit the valuation, at that late stage, would have required the matter to be adjourned, part heard, so that the Plaintiff could have a reasonable opportunity to consider it.
Although Mr Chan, the Defendant's solicitor, was cross-examined, his only affidavit read in the proceedings related to the costs of the proceedings, to which I have already referred. There is no need to doubt his evidence on that topic.

The Statutory Scheme - The Act

Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. I have collected the principles that are generally applicable in a number of other cases. However, in view of the importance of this case to the parties, one of whom is self-represented, I shall repeat the principles. It is equally important that they are able to follow the reasoning and for each of them to be satisfied that I have considered the evidence and the submissions in the application. I have endeavoured to state the relevant principles briefly but in a way that the Plaintiff, as an unrepresented litigant, should understand.

Introduction

The long title of the Act describes the new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. Importantly, this should not be taken to mean that the Act confers, upon those persons, a statutory entitlement to receive a certain portion of a deceased person's estate. Nor does it impose any limitation on the deceased's power of disposition by his, or her, Will. It is only if the statutory conditions are satisfied that the court is empowered, under the Act, to alter the deceased's disposition of his, or her, estate, to produce a result that is consistent with the purpose of the Act.
In cases such as the present, it is to determine (not necessarily in the order set out below) whether: (a) The Plaintiff is an eligible person within the meaning of that term in s 57(1) of the Act; (b) The time for the making of the Plaintiff's application should be extended; (c) The Plaintiff has been left with inadequate provision for her proper maintenance, education and advancement in life; and, if so, what, if any, provision (or further provision) ought to be made out of the estate for those purposes; and (d) Any property should be designated as notional estate.

Eligibility

The key provision is s 59 of the Act. The court must be satisfied, first, that the applicant is an eligible person within the meaning of s 57(1) (s 59(1)(a)). Relevantly, in this case, the Plaintiff relies upon the category of eligibility referred to in s 57(1)(c) of the Act. There is no dispute that she is a child of the deceased.
The language of the relevant sub-section is expressive of the person's status, as well as her, or his, relationship to the deceased. There is no age limit placed on an eligible person making an application.

Extension of Time

As stated, s 58(2) of the Act provides that an application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the court otherwise orders on sufficient cause being shown. If sufficient cause is shown, then the court may, having regard to all the circumstances of the case, extend the time for making an application.
Clearly, permitting the Court to "otherwise order" was included in the Act to avoid the section becoming an instrument of injustice. Yet, "[t]he time constraint imposed by s 58(2) on the making of a family provision application is not a mere formality": Verzar v Verzar [2012] NSWSC 1380, per Lindsay J, at [98]. It is "a substantive provision laid down in the Act itself, and is not a mere procedural time limit imposed by rules of court which will be treated with the indulgence appropriate to procedural rules": Re Salmon, Deceased [1981] Ch 167, at 175.
In Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146, Pembroke J, at [23]-[24], put it more strongly: "… Section 58(2) reveals a clear legislative intention to limit applications for family provision orders to those made within a defined, and strictly confined, period. An application is made by filing an originating process commencing proceedings in the registry of the court: Section 58(3). The short time period imposed by Section 58(2) reflects the judgment of parliament that the welfare of society in connection with the administration of deceased estates is best served by imposing a strictly limited time for making applications. This is not unreasonable. In most cases the putative claimant will be well aware of the testator's death and the (allegedly) insufficient provision made for him or her. There will only occasionally be a good excuse for not making a claim within time. In fact, experience indicates that the deceased's relatives usually pay uncommonly close attention to such matters. That is not to say that cases will not arise where, for legitimate reasons, a claimant is quite unaware of the death, or of his or her legal right to make a claim, and is unable to comply with the 12 month time limitation. In those circumstances, the statutory exception requiring 'sufficient cause' may well apply."
It follows from these, and other, authorities that the making of an "otherwise order" is not automatic and it involves the exercise of discretion.
In Moore v Randall [2012] NSWSC 184, White J, at [39], said that the expression "sufficient cause" means "sufficient explanation or sufficient justification or excuse for the application not having been made within the prescribed period". In Verzar v Verzar [2014] NSWCA 45, in the Court of Appeal, Meagher JA wrote, at [24], that "[t]he sufficient cause or reason to which s 58(2) is directed is that for allowing an application to be made out of time".
To refuse to make an order extending the time for the making of an application that is devoid of merit would not visit an injustice on the applicant. As Meagher JA noted in Verzar v Verzar [2014], at [33]-[35]: "There are at least two respects in which the strength of the application sought to be made out of time may be relevant to whether there is 'sufficient cause' to extend the time for making it. The first is whether the application as made has sufficient prospects of success to justify an extension. That assessment should be of the application viewed at the time it is or is likely to be heard because of the provisions of s 59(1)(c) and (2)… The second respect in which the strength of the application may be relevant is if allowing the out of time application to proceed would or may have the effect of improving the applicant's position from that which would have obtained had the application been made in a timely manner. That is the consideration referred to by Tobias JA in Durham v Durham at [24], [37] when confirming the correctness of the approach adopted by the judge in that case and by Bryson J in Davison v Staley (unreported, Supreme Court of NSW, 21 August 1996)… Because the assessment of adequacy of provision for proper maintenance, education and advancement in life is to be made at the time the Court is hearing the application (ss 59(1)(c) and (2)), when addressing this question it is necessary first to consider when the application would have been likely to have been heard if made in a timely manner and then to compare the position in that event with the position in fact, namely that the application has been made out of time. Ordinarily, this analysis would assume, as is usually the case and as happened in this proceeding, that the application for an extension of time and the application for substantive relief are made in one proceeding and dealt with in a single hearing. (That was not the case with applications for extensions of time made under the Testator's Family Maintenance and Guardianship of Infants Act 1916: see De Winter v Johnstone [1995] NSWCA 120 at p 17 per Powell JA)."
As I said in Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748, at [117]: "Ultimately, justice is the paramount consideration in determining whether to extend the time for making an application…"
As there is some slight explanation for the delay (the state of health of the Plaintiff and that she was not in New South Wales), as there is no evidence of prejudice to the Defendant resulting from the delay of some three weeks, and there is no suggestion of unconscionable conduct by the Plaintiff, this is not a case where the court can refuse to "otherwise order" pursuant to s 58(2) and simply dismiss the application without a full consideration of the circumstances of the claim: Underwood v Gaudron [2015], at [89].

Inadequacy of Provision

It is only if eligibility is satisfied, and if sufficient cause is shown for an order extending the time for the making of the Plaintiff's application, that the court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made, relevantly, by the operation of the Will (the operation of the intestacy rules being irrelevant (s 59(1)(c))). It is this mandatory legislative imperative that drives the ultimate result and, it is only if the court is satisfied of the inadequacy of provision that consideration is given to whether to make a family provision order (s 59(2)). Only then may "the Court… make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made".
Relevantly, other than by reference to the provision made by the Will of the deceased, s 59(1)(c) leaves undefined the norm by which the court must determine whether the provision, if any, is inadequate for an applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the court to the provision made for the applicant in the Will of the deceased, on the one hand, and to the requirement for maintenance, education or advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education and advancement in life of the applicant.
In Grey v Harrison [1997] 2 VR 359, at 366-367, Callaway JA observed: "There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight."
Basten JA, in Foley v Ellis [2008] NSWCA 288, at [3], commented that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254, at [126], White J said that the assessment of what provision is proper involved "an intuitive assessment". Stevenson J has described it as "an evaluative determination of a discretionary nature, not susceptible of complete exposition" and one which is "inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific": Szypica v O'Beirne [2013] NSWSC 297, at [40].
Under s 59(1)(c), the time at which the court gives its consideration to the question of inadequacy of provision is the time when the court is considering the application.
In In the Estate of Puckridge, Deceased (1978) 20 SASR 72, at 77, King CJ said: "The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an early period of life in the members of the family: Blore v Lang, per Dixon CJ at p. 128." [Footnotes omitted]
In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, Murphy J wrote, at 505: "Provision for advancement may, for example, extend to retraining or the gaining of a qualification which could advance and perhaps enable an applicant to maintain himself or herself."
In Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, at 541, discussed the financial assistance which an applicant may need for his, or her, maintenance and advancement in life, in the following terms: "If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of the financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that… [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need."
In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said: "The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)."
The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, described by Rosalind Atherton in "The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?" (1999) 5 Australian Journal of Legal History 5, at 10, as reached upon "a purely economic and objective basis", whereas "proper" prescribes the standard, of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127, per Buss JA, at [72] and [77], which seems to invite more subjective criteria.
These words were considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463, at 476: "The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances."
Their Lordships went on to state (at 478): "The amount to be provided is not to be measured solely by the need of maintenance. It would be so if the Court were concerned merely with adequacy. But the Court has to consider what is proper maintenance, and therefore the property left by the testator has to be taken into consideration."
Dixon CJ and Williams J, in McCosker v McCosker, at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word "proper", that: "It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."
In Goodman v Windeyer, Gibbs J wrote, at 502: "[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards."
In Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, at [114], Callinan and Heydon JJ said: "[T]he use of the word 'proper'… implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here… The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."
Santow J pointed out in Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep), that "adequate" and "proper" are independent concepts. He wrote, at 12: "'Adequate' relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. 'Proper' depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied…"
In Palagiano v Mankarios [2011] NSWSC 61, at [72], White J observed that the question of what provision for a person's maintenance, education or advancement in life is "proper" and the question of whether the provision made by the deceased was "adequate" for that person's maintenance, education or advancement in life involve value judgments on which minds can legitimately differ, and there are no definite criteria by which the question can be answered.
If the court is not satisfied that adequate provision for the proper maintenance, education or advancement in life has not been made by the Will of the deceased, for the applicant, then the court is precluded from making a family provision order. In determining the question, the court has regard to, among other things, 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 circumstances and needs of the other beneficiaries or potential beneficiaries: see McCosker v McCosker, at 571-572; Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201, at 209-210; Vigolo v Bostin, at [16], [75], [112]; Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757, at [70]; Verzar v Verzar [2014], at [39].
The determination of the question whether the disposition of the deceased's estate was not such as to make adequate provision for the applicant will always, as a practical matter, involve an evaluation of the provision, if any, made for the applicant on the one hand, and the applicant's "needs" that cannot be met from his or her own resources on the other: See Hunter v Hunter (1987) 8 NSWLR 573 per Kirby P at 575.
Thus, whether an applicant has a "need" or "needs" is also a relevant factor at the first stage of the enquiry: see s 60(2)(d) of the Act. It is an elusive and an elastic concept to define, yet, it is an element in determining whether "adequate" provision has been made for the "proper" maintenance, education and advancement in life of the applicant in all of the circumstances. The concept involves economic considerations.
"Need" has also been used in the context of a value judgment or conclusion, namely, that the applicant is "in need" of maintenance, education or advancement in life, because inadequate provision has been made for his or her proper maintenance, etc.: see Gorton v Parks (1989) 17 NSWLR 1 per Bryson J, at 10-11.
Although the existence, or absence, of "needs" which the applicant cannot meet from her, or his, own resources will always be highly relevant and, often, decisive, the statutory formulation, and, therefore, the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc.: see Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 per Gaudron J, at 227. Compare Gorton v Parks per Bryson J, at 6-11; Collicoat v McMillan [1999] 3 VR 803, per Ormiston J, at [38], [47].
"Need", of course, is also a relative concept: de Angelis v de Angelis [2003] VSC 432, per Dodds-Streeton J, at [45]. It is different from "want" and does not simply mean "demand" or "desire". The latent difference between the words was stated by Lord Neuberger of Abbotsbury (now President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808, at [54]: "'Need' is a more flexible word than it might first appear. 'In need of' plainly means more than merely 'want', but it falls far short of 'cannot survive without'."
In Boettcher v Driscoll [2014] SASC 86; (2014) 119 SASR 523, David J, at [41], added: "'Need' is not so synonymous with 'want' such that the two are interchangeable."
As Callinan and Heydon JJ emphasised in Vigolo v Bostin, at [122], the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. The whole of the context must be examined. Thus, "need" may be assessed by considering the applicant's financial position, lifestyle and general expectations in life and health: Stewart v Stewart [2015] QSC 238, per Applegarth J, at [11].
In the event that the court is satisfied that the power to make an order is enlivened (i.e. in this case, it is satisfied that the Plaintiff is an eligible person, that sufficient cause has been established to extend the time for the making of her application, and that adequate provision for her proper maintenance, education or advancement in life has not been made), then, the court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the court at the time the order is made.
Then, under s 59(2) and s 60(1)(b) of the Act the court determines what provision, if any, ought be made for the applicant out of the deceased's estate or notional estate. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that this decision involves an exercise of discretion in the accepted sense. The fact that the court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour.
Section 60(2) of the Act, at least in part, is new. It provides: "(1)The court may have regard to the matters set out in subsection (2) For the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the 'applicant') is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person-the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered."
It can be seen that s 60(2) enumerates 15 specific matters, in addition to any other matter the Court considers relevant, described by Basten JA in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656, at [37], as "a multifactorial list", and by Lindsay J in Verzar v Verzar [2012], at [121] and [123], as "a valuable prompt" to which the court may have regard for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order. It has been suggested that the expanded list of criteria provides a "more focused direction to the court": Phillips v James [2014] NSWCA 4; 85 NSWLR 619, at [51] (Beazley P, Meagher JA agreeing).
White J wrote in Slack v Rogan; Palffy v Rogan, at [121], that s 60 "lists a wide range of matters" that the court "may have regard to", but these do not provide any tangible assistance in answering the question in any particular case whether the provision made in a will was less than adequate for an eligible applicant's "proper" maintenance, education or advancement in life.
In Chapple v Wilcox [2014] NSWCA 392; (2014) 87 NSWLR 646, Basten JA, at [7], wrote: "Section 60 of the Succession Act spells out the matters which the Court may have regard to in determining whether the claimant 'is an eligible person' and whether to make a family provision order: s 60(1). Most of the factors listed in s 60(2) will be irrelevant in relation to whether the applicant is an eligible person, a matter largely dependent upon the language of s 57. The matters set out must be available considerations in relation to both limbs of s 59(1) dealing with a family provision order, namely par (b) and par (c). Section 60 provides no assistance in relation to the different considerations which may arise in respect of each paragraph of s 59(1). The factors are also relevant to the determination of the 'nature of any such order', which presumably includes the discretionary element to be found in s 59(2): s 60(1)(b)."
The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of such of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed is, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender.
The section also does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical.
A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).
Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on "the discretionary question", namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently.
Sub-section (2)(d) refers to "earning capacity", which means no more than the capacity to find employment to earn or derive income.
Section 64 of the Act provides that a family provision order may be made in respect of property situated in, or outside, New South Wales, when, or at any time after, the order is made, whether or not the deceased person was, at the time of death, domiciled in New South Wales.
In Hitchcock v Pratt [2010] NSWSC 1508; (2010) 79 NSWLR 687, Brereton J followed Balajan v Nikitin (1994) 35 NSWLR 51 in holding that s 64 is invalid to the extent that it purports to authorise the making of a family provision order in respect of property situated outside New South Wales of a testator who, at the time of death, was domiciled outside New South Wales; but that section is not in excess of the State's legislative power so far as it extends the reach of the Act to immovable property outside New South Wales of a testator who, at the time of death, was domiciled in New South Wales.
His Honour repeated what he had earlier said in Chen v Lu, at [75], as follows: "In addition, there are the China properties worth about $700,000. (NSW) Succession Act 2006, s 64, provides that a family provision order may be made in respect of property situated in or outside New South Wales when, or at any time after, the order is made, whether or not the deceased person was, at the time of death, domiciled in New South Wales. In so far as this purports to make amenable to a family provision order property outside the State of a testator who dies domiciled outside the State, it has no sufficient connection with the State to be a valid exercise of the State's legislative power and, to that extent, is invalid [Balajan v Nikitin (1994) 35 NSWLR 51, 56; Hitchcock v Pratt [2010] NSWSC 1508, [12]-[17]]. However, in this case, Hong Jie died domiciled in New South Wales, and to the extent that s 64 extends the reach of the Act to immovables outside New South Wales of testators who die domiciled in New South Wales, it is not in excess of power [Balajan v Nikitin, 60-61; Hitchcock v Pratt, [19]]. No relief was in fact sought in respect of the China properties, but their existence as an asset of the estate may nonetheless inform the extent to which those having claims on the deceased's testamentary bounty have received and will receive provision, and thus what order should be made in respect of assets within the jurisdiction [cf Taylor v Farrugia [2009] NSWSC 801, [26]]. They also provide an asset to which Hong Wei can resort to meet the estate's costs, and thus can be relevant to what order is made in respect of costs [cf Taylor v Farrugia, [26], [74]]." [My emphasis]
Section 65(1) of the Act requires the family provision order to specify: (a) the person or persons for whom provision is to be made, and (b) the amount and nature of the provision, and (c) the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and (d) any conditions, restrictions or limitations imposed by the Court.
The order for provision may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner the Court thinks fit" (s 65(2) of the Act). If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act).
Any family provision order under the Act takes effect, unless the court otherwise orders, in the case if the deceased made a will, in a codicil to the will (s 72(1) of the Act).
Section 66 of the Act sets out the consequential and ancillary orders that may be made.
Section 99(1) of the Act provides that the court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate in such manner as the court thinks fit.

Notional Estate

Section 73(1) states that Part 3.2 of the Act applies to property designated as part of the notional estate of a deceased in the same way as it applies to property that is part of the estate of a deceased.
The notional estate provisions of the Act are dealt with in Part 3.3 of the Act. However, in s 3 of the Act, "notional estate" of a deceased person is defined as meaning "property designated by a notional estate order as notional estate of the deceased person". "Notional estate order" means "an order made by the Court under Chapter 3 designating property specified in the order as notional estate of a deceased person".
Importantly, the power to make a notional estate order does not arise unless the Court is satisfied that (a) the deceased person left no estate, or (b) the deceased person's estate is insufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made, or (c) provision should not be made wholly out of the deceased person's estate because there are other persons entitled to apply for family provision orders or because there are special circumstances (s 88).
Furthermore, the Court must not designate as notional estate, property that exceeds what is necessary, in the Court's opinion, to allow the provision that should be made, or, if the Court makes an order that costs be paid from the notional estate under s 99, to allow costs to be paid as ordered, or both (s 89(2)).
The effect of a notional estate order is that "a person's rights are extinguished to the extent that they are affected by a notional estate order" (s 84).
The Court's power to make a notional estate order is also circumscribed by other sections. Section 87 provides: "The Court must not make a notional estate order unless it has considered the following: (a) the importance of not interfering with reasonable expectations in relation to property, (b) the substantial justice and merits involved in making or refusing to make the order, (c) any other matter it considers relevant in the circumstances."
In reference to s 87(a), Basten JA wrote in Phillips v James, at [125]: "While it remains true that the section… is silent as to whose 'reasonable expectations' must be considered, the requirement is a constraint on the making of a notional estate order. It is not sensibly construed as referring to the reasonable expectations of the applicant who wants a share of, but does not own, the property. Nor does it sensibly refer to the expectations of the deceased person, because the court must already have determined that an adjustment in the distribution effected by the will was appropriate: s 89(2). Since a notional estate order will only be made in relation to property which never was, or no longer is, part of the estate, it is unlikely to refer to the expectations of any person other than the person who is the present holder of an interest in the property."
Section 89(1) of the Act, relevantly, provides that in determining what property should be designated as notional estate of the deceased, the Court must have regard to (a) the value and nature of any property the subject of a relevant property transaction; (b) the value and nature of any consideration given in a relevant property transaction; (c) any changes in the value of property of the same nature as the property referred to in paragraph (a), or the consideration referred to in paragraph (b), in the time since the relevant property transaction was entered into; (d) whether property of the same nature as the property referred to in paragraph (a), or the consideration referred to in paragraph (b), could have been used to obtain income in the time since the relevant property transaction was entered into; and (e) any other matter it considers relevant in the circumstances.
Section 90 of the Act, which applies in this case because the application for a family provision order is made later than 12 months after the date of the death of the deceased, relevantly provides: "(2) The Court must not make a notional estate order in the proceedings unless: (a) it is satisfied that: (i) the property to be designated as notional estate is property that was the subject of a relevant property transaction or of a distribution from the estate of a deceased person or from the estate of a deceased transferee, and (ii) the person who holds the property holds it as a result of the relevant property transaction or distribution as trustee only, and (iii) the property is not vested in interest in any beneficiary under the trust, or (b) it is satisfied that there are other special circumstances that justify the making of the notional estate order."
In this case, the Defendant submits that the Plaintiff's application is being made later than 12 months from the date of the deceased's death. The property sought to be designated as notional estate (the deceased's interest as a joint tenant in the Chatswood property) is property said to be the subject of a relevant property transaction (the failure to sever the joint tenancy), and that property passed to the Defendant, beneficially, as a result of the relevant property transaction, and is vested in interest. Accordingly, it was submitted that the Plaintiff must establish, pursuant to s 90(2)(b), that there are "other special circumstances… that justify the making of a notional estate order".
I dealt with these matters in Underwood v Gaudron [2014] NSWSC 1055, at [183]-[204].

Other Applicable Legal Principles - Substantive Application

Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act. Other judges and I have repeated them in many cases under the Act.
Bryson J noted in Gorton v Parks, at 6, that it is not appropriate to endeavour to achieve "an overall fair" disposition of the deceased's estate. It is not part of the court's function to achieve some kind of equity between the various claimants. As Pembroke J has recently repeated in Sung v Malaxos [2015] NSWSC 186, at [5]: "Fairness and equality are not touchstones for relief under the Succession Act."
The court's discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation. "Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court": Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, at 19 (Dixon CJ); McKenzie v Topp [2004] VSC 90, at [63].
Of that freedom, in Grey v Harrison, Callaway JA said, at 366: "[I]t is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator's dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator's bounty and give it to someone else. In conferring a discretion in the wide terms found in s 91, the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent."
In Vigolo v Bostin, at [10], Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour explained: "It preserved freedom of testamentary disposition, but subjected that freedom to a new qualification."
In Goodsell v Wellington [2011] NSWSC 1232, I noted, at [108], that: "Freedom of testamentary disposition remains a prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated."
As Pembroke J said in Wilcox v Wilcox [2012] NSWSC 1138, at [23]: "The court does not simply ride roughshod over the testator's intentions… The court's power to make an award is limited. The purpose of the discretionary power under Section 59(1) is to redress circumstances where 'adequate provision' has not been made for the 'proper maintenance, education or advancement in life' of the claimant. The adjectives 'adequate' and 'proper' are words of circumspection."
Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales, at 19; Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.
In Chapple v Wilcox, Basten JA, at [12], and Barrett JA, at [63]-[64], emphasised the central role played by "community standards" or "community expectations" in any decision whether to take the significant step of overriding the expressed wishes of the deceased.
In all cases under the Act, what is adequate and proper provision is necessarily fact specific.
The Act is not a "Destitute Persons Act" and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice; Allardice v Allardice (1910) 29 NZLR 959, at 966. The use of the word "proper" requires consideration to be given to more than satisfying the basic needs of an applicant (cf Chandler v Coulson [2015] NSWSC 172, per Pembroke J, at [26]).
The standard of living of an applicant during the lifetime of the deceased is relevant, but the fact that he, or she, has lived frugally, or that he, or she, has become accustomed to a life of relative penury, does not mean that the deceased's obligation under the Act is satisfied so long as the applicant can continue in that state: Pogorelic v Banovich [2007] WASC 45, [62]; Butcher v Craig [2009] WASC 164.
All of the financial needs of an applicant have to be taken into account and considered by reference to the other factors referred to in the Act and in Singer v Berghouse. What is proper provision is not arrived at by adding up all of the identified financial needs: Hyland v Burbidge [2000] NSWSC 12, at [56]. Nor does it follow that if the court decides it is inappropriate to make a specific provision in respect of one identified head of claim that any identified financial need, even a contingent need, in relation to that claim becomes irrelevant to the final assessment: Mayfield v Lloyd-Williams [2004] NSWSC 419, at [89].
As stated in the above passage, the size of the estate and notional estate is a significant consideration in determining an application for provision. It is important to remember what Salmond J said in In re Allen (Deceased); Allen v Manchester [1922] NZLR 218, at 221: "Applications under the Family Protection Act for further provision of maintenance are divisible into two classes. The first and by far the most numerous class consists of those cases in which, owing to the smallness of the estate and to the nature of the testamentary dispositions, the applicant is competing with other persons who have also a moral claim upon the testator. Any provision made by the Court in favour of the applicant must in this class of case be made at the expense of some other person or persons to whom the testator owed a moral duty of support. The estate is insufficient to meet in full the entirety of the moral claims upon it, in the sense that if the testator had possessed more he would have been bound to do more for the welfare of his dependants. In such a case all that the Court can do is to see that the available means of the testator are justly divided between the persons who have moral claims upon him in due proportion to the relative urgency of those claims."
In relation to the Plaintiff's claim, being a claim by an adult child, the following principles are useful to remember: (a) The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. (b) It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, child up in a position where she or he can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia, at [57]; Kohari v Snow [2013] NSWSC 452, at [121]; Salmon v Osmond, at [109]. (c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise, they would be left destitute: Taylor v Farrugia, at [58]. (d) If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland, Deceased [1966] VR 404, at 411; Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, at 148; Goodman v Windeyer, at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons that the applicant, however reasonably, wishes to support, where there is no obligation of the deceased to support such persons: Re Buckland, Deceased, at 411; Kleinig v Neal (No 2), at 537; Mayfield v Lloyd-Williams, at [86]. (e) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2), at 545; Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37, at 45 (Nicholson J). (f) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169, at [179]-[182]; Crossman v Riedel [2004] ACTSC 127, at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297, at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig, at [17]. (g) The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd, at 149.
A very similar statement of the principles which I set out in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [111], was cited with approval in Chapple v Wilcox at [21] (per Basten JA); at [65]-[67] (per Barrett JA), and were referred to, with no apparent disapproval (although in that appeal there was no challenge the correctness of those principles) in Smith v Johnson [2015] NSWCA 297, at [62].
In Foley v Ellis, Sackville AJA, at [88], noted that Singer v Berghouse "strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim under the Family Provision Act".
The Defendant, of course, is not an applicant for provision. She does not have to prove an entitlement to the provision made in the deceased's Will or otherwise justify such provision. In determining the case, the court must have regard to all relevant circumstances including the size of the estate and the nature of the competing claim by her. Edgar v Public Trustee for the Northern Territory [2011] NTSC 5, per Kelly J, at [46], should be remembered: "There is no onus on the... residuary beneficiary under the will to show that she is entitled to be treated as such - or to prove what may be necessary for her proper maintenance and support. Rather the onus is on the plaintiff to show that proper provision is not available for him under the terms of the will. In determining whether this is the case the Court must have regard to all relevant circumstances including the size of the estate and the nature of the competing claim by the [residuary beneficiary]. In performing this task the Court must have due regard to the will of the testator and should interfere only to the minimum extent necessary to make adequate provision for the proper maintenance, education and advancement in life of an applicant who has passed the first jurisdictional hurdle. As Dixon CJ said in the passage from Scales quoted above, due regard must be had to 'what the testator regarded as superior claims or preferable dispositions' as demonstrated by his will." [Footnotes omitted]

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.
It is necessary for the court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the bases for a family provision order have been established. Every case is different and must be decided on its own facts. As Lindsay J said in Verzar v Verzar [2012], at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."
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.

Additional Facts

I set out the additional facts I am satisfied are either not in dispute, or that, in my view, have been established by the evidence. I do so by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come. I have taken this course, not "to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59" (Verzar v Verzar [2012], at [124]), but in order to complete the recitation of facts that will assist me to determine the questions that must be answered. (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship
The Plaintiff lived with the deceased and the Defendant, initially in Hong Kong, and then, after 1988, in Australia.
After arriving in Australia, the Plaintiff attended high school as a boarder, and when she changed schools, it appears that she did not move back to live with her parents, but moved into rented accommodation, paid for by the deceased, in Strathfield.
Following the completion of High School, in 1991, the Plaintiff undertook an Associate Diploma in Architectural Drawing at TAFE, during which time she lived in rented accommodation, also paid for by the deceased.
In about 1993, the Plaintiff enrolled in a Property Agency and Management Diploma at TAFE. During this period, she received Austudy payments, which provided her with income to pay the rent. However, the deceased provided her with additional financial assistance.
In 1994, the Plaintiff moved into the Chatswood property, where she lived, rent and occupation fee free for 1 year. The deceased, again, provided her with financial assistance for general living expenses.
In 1995, the Plaintiff returned to Hong Kong, where she established an opal wholesale and manufacturing business, which operated under a company incorporated in Hong Kong. She had a business partner. She returned to Australia in 1996, but did not receive financial assistance from the deceased, as the business provided "her rent and living expenses comfortably". During this time, she spent time not only in Australia, but also in Hong Kong and the United States of America.
In 1999, the business relationship between the Plaintiff and her business partner ended. This resulted in the downturn of the business. Throughout this period, her relationship with the deceased continued to be a close and loving one. She says that the deceased provided her with financial and emotional assistance. (For example, in 2003, the deceased gave the Plaintiff AU$100,000 to purchase a property in Hong Kong. Even though she was not able to borrow the balance of the purchase price, and did not buy the property, the deceased did not require her to repay the amount to him. In 2007, the deceased gave her other funds (about $12,500) to enable her to return to Australia from Germany.)
The Plaintiff married Mr Lau in November 2007. They remained together for about 3 years, during which period, they lived, rent and occupation fee, free, in the Hercules Street property with the deceased.
During the period in which they were married, the Defendant and Winnie were living in Hong Kong, while the deceased lived in Australia. The deceased was "the only family member [the Plaintiff] really had in Australia" and that her "mother and sister [had] no real knowledge of [her] living arrangements with [her] father".
Following the breakdown of her marriage, the Plaintiff again turned to the deceased for support, which he provided, both financially (about $16,100) and emotionally.
There is no dispute that the Plaintiff attended the deceased's funeral but did not attend the cremation of the deceased: T211.34-T212.01. She blames Winnie for providing her with incorrect information, but I am satisfied, having read some contemporaneous email correspondence sent to the Plaintiff, that the Plaintiff did not attend having been provided with correct details thereof. The failure to attend does not reflect any lack of relationship with, or lack of love for, the deceased. (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate
There is no definition of the words "obligations" or "responsibilities" to which the sub-section refers to in the Act. Importantly, the Act does not expressly refer to, or identify, any "moral duty". Yet, what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities to not only the applicant, but also to the beneficiaries.
This factor requires a balancing of potentially competing obligations as between the applicant and the beneficiary.
Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal obligation to each of his children, as an adult, imposed upon him by statute or common law. (There is no suggestion of any promise of testamentary benefaction having been made or that the Plaintiff, to the knowledge of the deceased, changed her position in the expectation of an inheritance.)
Yet, an obligation or responsibility, to make adequate provision for the proper maintenance, education or advancement in life, is recognised in the case of a child. In Flathaug v Weaver [2003] NZFLR 730, at [32], the origin of the obligation which underpins the Act's recognition of the duty owed by a parent to a child was put in this way: "The relationship of parent and child has primacy in our society. The moral obligation which attaches to it is embedded in our value system and underpinned by the law. The Family Protection Act recognises that a parent's obligation to provide for both the emotional and material needs of his or her children is an ongoing one. Though founded on natural or assumed parenthood, it is, however, an obligation which is largely defined by the relationship which exists between parent and child during their joint lives."
Although the relationship of parent and child is important and carries with it an obligation or responsibility reflected in the Act, it is nevertheless an obligation largely defined by the relationship which actually exists between parent and child during their joint lives: Vincent v Lewis [2006] NZFLR 812, at [81]. The boundaries of that obligation or responsibility are not amenable to rigid definition.
The size of the deceased's estate is also relevant to the extent of the obligation or responsibility.
Clearly the deceased owed an obligation or responsibility to the Defendant as his spouse of a long marriage. From the terms of his Will, he regarded her as the primary person with a significant claim upon his bounty.
In my view, the deceased's obligation and responsibility to the Defendant, as his spouse, was significantly greater than the obligation and responsibility to the Plaintiff. (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered
I have earlier dealt with these matters. The net value of the property that may be designated as notional estate is modest, both the distributed property and the deceased's interest in jointly held property, in New South Wales, is not large. The sale proceeds of the shares will not be received by the Defendant and will not form part of what may be available to satisfy any order for provision out of the estate.
The deceased's interest in the Hong Kong property, whilst relevant to the financial and material circumstances of the Defendant, is not to be the subject of a designating order. I shall, of course, bear in mind the other distributions of property out of the deceased's estate made to the Defendant, following the death of the deceased. (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate
I have earlier dealt with the Plaintiff's evidence about her financial position. Subject to the matters to which I have adverted, the other evidence suggests that she is not in a very strong financial position.
Most recently, in August 2015, the Plaintiff attended the Lightning Ridge Opal Festival to sell opals. She said she earned $500, on which amount she has been living since then.
The Plaintiff confirmed that she had not provided documents to the Court going to her current income (T199.04-T199.06). She asserted that her income remained the same as set out in her affidavit of 6 February 2013. Whilst this is possible, the Defendant has had no way of confirming that the Plaintiff's evidence was accurate as there were simply no financial records produced.
In an affidavit of 11 November 2014, she also set out a summary of her assets and liabilities. She stated that her two companies have no assets, but some liabilities, totalling $439,629. In addition, she set out her personal liabilities (other than legal costs payable to her solicitors), totalling $49,108.
She added that her gross monthly income, on average, was $1,666, or $20,000 per annum. She also set out her outgoings, which totalled $3,090 per month when she lives in Australia and $1,480 per month when she lives in Taiwan. Again no documents to corroborate these amounts were provided.
She does not appear to have any significant amounts in the bank accounts, the scant records in respect of one account she produced. At the hearing, the Plaintiff produced some documents showing that in her Westpac bank accounts, she had a total of $1,271, as at 15 July 2015.
The Plaintiff's evidence in relation to the value of the gemstones currently held by Lawrence was very vague. In her affidavit of 6 February 2013, she had estimated the value of these gemstones at AU$300,000. However, she subsequently wrote in her affidavit of 11 November 2014 that these gemstones were valued at US$100,000. She said that she and Lawrence each owned a half share of the gemstones.
During cross-examination, the Plaintiff referred to the earlier valuation of the gemstones, being AU$300,000, and gave further evidence which was not included in her affidavits, that of the gemstones currently held by Lawrence, "One-third was our stock; two-third is on consignment": T139.08. It was unclear whether the US$100,000 referred only to the value of "our stock".
She also gave the following evidence, at T199.15-T199.26: "… I don't know from your evidence of the value of any gemstones that you currently have in your possession that belong to you. Is that right? A. Yes. Q. I don't have any evidence of the current gemstones that you have which you say you hold on consignment. Is that right? A. Yes. Q. Is it also right to say that I don't know the current value of the gemstones that are held by your husband Lawrence in New Zealand? A. Yes."
The Plaintiff was cross-examined on whether she held any stock which she could then on sell (at T136.38-T137.02 and T137.13-T137.36): "Q. But you keep stock, don't you? You buy your stock and then you on sell it? A. I borrow stock. Q. Sorry? A. I borrow. Q. You borrow stock? A. Consignment, that's the official name. Q. You do have your own stock, don't you? A. Not much. Q. But you do have some and you've always had a store of opals, a stock of opals that you trade in, haven't you? A. Not opal, I already told you. … Q. You do have a stock of opals and gemstones, don't you? A. Maybe 3 per cent of my stock, that my friend kind enough to lend it to me on consignment. Q. No, you have your own, don't you? A. My husband took the whole lot when we separated. It's in the, his safe deposit box. Q. It's in a safe deposit box? A. Of the trust, of Lawrence Lau. Q. So it's still in existence? A. It's in existent but it's not returning. Q. In your affidavit that you filed on 6 February 2013 you told the Court that you had, at that stage, $10,000 in stock; do you recall saying that? A. On which page and which date of the affidavit? Q. It's your affidavit of 6 February 2013; it's on page 56 of that affidavit which is-- A. Prepared by which lawyer? That will help me. Q. This is prepared by Mr Carney. Do you recall you said that? A. Yes."
The Plaintiff was asked about other gemstones that she had in her possession but she was unable to state the value of gemstones held either by her as owner or on consignment. She gave the following evidence in relation to any records that she kept pertaining to stock held on consignment (T143.20-T144.18): "… Do you keep a balance sheet, do you have a balance sheet and a profit and loss sheet, do you keep records for your company? A. Yes. Q. Do you keep records for the trading? A. Yes. Sometimes, not all the time. Q. You keep receipts and invoices? A. No. Q. None? A. No. Q. You don't keep any receipts or invoices. A. No. Q. What about if you sell a gemstone to somebody, you don't issue a receipt for that? A. No. Q. What about if you purchase a gemstone? A. No receipt, no invoice. Q. You deal entirely in cash, do you? A. Can we go back to your tax return? HIS HONOUR Q. No, Ms Chu. The question that you‑‑ A. Yeah. Q. ‑‑were asked was do you deal entirely in cash? A. Not entirely in cash, but we don't get receipts and invoice. WINFIELD Q. If you have gemstones on consignment, how do you inform the person who owns the gemstones what you've sold it for? A. A trust. Q. So when they give you gemstones on consignment, you don't sign any document acknowledging what you've got? A. Yeah, I sign a note. Q. You must have a copy of that. A. Most of the note is like toilet paper, to be honest, so we just chuck it away when we return it. And also the - you ask the tax return, I'm not a tax resident in Australia because I spend less than 50% time in Australia."
It is difficult to gain any understanding of the value of the Plaintiff's gemstone business and the income generated therefrom: T144.07-T144.17. I do not have any confidence in the Plaintiff's evidence on this topic. As stated earlier, I found her evidence on this topic confused and confusing.
Finally, on this topic, I am satisfied that the Plaintiff does have an earning capacity. That she has not set out very much information about her current income does not assist her.
The Defendant set out her financial and material resources in a document which was tendered as Ex. 11. She set out her position, as of 15 August 2015, as follows: "8/35 Orchard Street Chatswood 1,000,000.00 39B, Block 2, South Horizon, Ap Lei Chau 586,206.00 Bank account 4,191.86 William Chan trust account 40,000.00 Westfield Trust shares @ $9.15 14,403.40 Scentre Group @ $3.61 12,472.55 1000 Challenger shares… @ $7.04 7,040.00 892 IAG shares… @ $5.15 4,592.80 Household contents 1,000.00 Personalty 5,000.00 Total assets: 1,675,106.61 Liabilities Home mortgage in Hong Kong 117,643.02 Income tax 201.00 Total liabilities: -117,844.02 Net assets: 1,557,262.59"
The Plaintiff asserted that the Defendant owned a parking space in Hong Kong that was not disclosed. Her evidence was that there was a parking space but there was no evidence as to the amount of rent received by the Defendant.
Earlier, I have set out the gross income generated from each of the Chatswood property and the Hong Kong property. The Defendant asserted that after payment of outgoings, she did not "even have spare money for my personal care methods such as even though I want to dye my hair I don't have money": T233.11-T233.19.
Although the Plaintiff suggested that there may be more assets, there was no evidence to enable me to reach the conclusion that the Defendant does, in fact, have other property, which she has not disclosed (other than, perhaps, the parking space to which I have referred).
Because the Defendant rents premises in Hong Kong rather than living in the Hong Kong property, there is a significant drain on her financial resources. She explained that she did not live in the Hong Kong property as, when the deceased died, it was being rented out and that she does not wish to terminate the lease. She also said that it faced a cemetery and that to live there would constantly remind her of the deceased: T232.30-T232.33. I accept this latter explanation for her not living in the Hong Kong property. The earlier reason is more difficult to accept, but, in all the circumstances, it probably does not matter.
Of course, it is to be remembered that Winnie is a co-owner of the Hong Kong property. (There were some questions asked of the Defendant regarding her understanding of what would happen to the Hong Kong property on her death. She did not seem to understand that title to that property would pass to Winnie by survivorship: T210.) (e) if the applicant is cohabiting with another person-the financial circumstances of the other person
There is no evidence that the Plaintiff is currently cohabiting with any person whose financial position is relevant.
(There was a suggestion that she was in a relationship with a person in Taiwan. However, she denied this and said that whilst she lives in the home of this man, their relationship is that of landlord and tenant. Although I am a little sceptical, I cannot conclude that I should not believe the Plaintiff on this topic.) (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated
It is clear that the Plaintiff suffers from anxiety, and at times, depression. She was seeing a clinical psychologist in Sydney and she has also seen a psychiatrist.
She states that these proceedings are causing her great distress. However, it has not been submitted that the anxiety prevents her from working although she does complain about being "tired, lack[ing] the motivation to live and feel[ing] unable to cope with my life as it is". There is some medical evidence to support the complaint of anxiety and depression.
She says that she suffers from iritis, which I understand to be inflammation of the iris of the eye. There is no dispute about this condition as it appears that the Defendant has attended with her at a doctor and has paid for some of the treatment.
She also says that she only has 50 per cent visibility in her left eye.
She did not state, and nor was there any medical evidence, of how her medical conditions affect her ability to work. (g) the age of the applicant when the application is being considered
The Plaintiff was born in February 1973 and is currently aged 42 years. (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant
The Plaintiff does not give any evidence of any financial contributions. Indeed, she acknowledges that she did not make any. However, she says that she may have made some contribution to the welfare of the deceased "by keeping in regular contact… and always having a good relationship" with him.
Overall, I am satisfied, that her relationship with the deceased was a reasonably good one. (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate
It is accepted that the deceased made substantial, and generous provision for the Plaintiff during his lifetime. I have set out some of the amounts that he provided to her. I have earlier stated that the Plaintiff receives nothing under the Will of the deceased. (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person
There is no evidence about the testamentary intentions of the deceased other than his Will to which reference has been made.
Both parties do, however, refer to a conversation with the deceased, in 1994, when he suggested that the Chatswood property be sold and the proceeds of sale (estimated to be about $400,000) would be divided equally between the parties, the deceased and Winnie, meaning that each would receive $100,000: T225.25-T225.30. This sale did not eventuate at that time. Subsequently, however, the deceased did make a gift of $100,000 to the Plaintiff. (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so
The deceased did maintain the Plaintiff partly, at different times before his death. Similarly, the Defendant has provided financial assistance to her from time to time. (l) whether any other person is liable to support the applicant
There is no person liable to support the Plaintiff. I have referred to her husband, from whom she is separated.
In her affidavit of 11 November 2014, the Plaintiff says that the only items that Lawrence owned were a one-third share in a family trust, an old car of insignificant value and a half share in gemstones valued at US$100,000, with the other half share in the gemstones being owned by the Plaintiff. (m) the character and conduct of the applicant before and after the date of the death of the deceased person
An evaluation of "character and conduct" may be necessary, not for the sake of criticism, but to enable consideration of what is "adequate and proper" in all the circumstances. Importantly, the Act does not limit the consideration of "conduct" to conduct towards the deceased.
In Collicoat v McMillan, at [40], Ormiston J wrote, in relation to the manner in which an applicant's behaviour towards the deceased is to be considered: "Ordinarily each of the persons who have a statutory right to make [an] application are entitled to have their position considered by a testator but their behaviour (right or wrong) towards the testator may only provide a basis for measuring appropriately the testator's obligation to make provision for each of those applicants. Their sins are irrelevant except in so far as a testator might properly take exception to their behaviour."
Much of the evidence filed in the proceedings, which was rejected, went to the relationship between the Plaintiff and the Defendant and the conduct of each towards the other. It is clear that they do not get on, and that they have not done so for some time.
However, in the witness box, each professed her love for the other. (n) the conduct of any other person before and after the date of the death of the deceased person
I am satisfied that there is no relevant conduct of the Defendant that impacts on the determination of what provision should be made for the Plaintiff out of the estate of the deceased. I remember, of course, that she is the sole chosen object of the deceased's bounty. She is also the spouse of the deceased and they were married for over 40 years at the date of his death.
I also have remembered that the Defendant lived in Hong Kong whilst the deceased remained in Sydney, but I do not draw any inference from this fact. Married persons choose to live married life in many ways, and what is more important is that they remained married to each other and that the deceased made a Will in which he named the Defendant as his sole beneficiary.
It is to be noted that the deceased and the Defendant owned the Chatswood property for many years prior to his death. The Hong Kong property was owned for only a short time before his death.
Despite the criticism of the Defendant in not making further enquiries concerning the value of the shares in the Company, I am satisfied that she has satisfied herself that what she is doing is necessary and that the agreement she has reached with the Company will relieve her from any anxiety about the deceased's prior conduct and the estate from any further liability in respect of the debt. (o) any relevant Aboriginal or Torres Strait Islander customary law
This factor is not applicable. (p) any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered
It is also important to note the monetary contributions made by the Defendant to the Plaintiff. Between June 2011 and October 2011, the Defendant provided AU$6,000 to her. In about April 2012, the Defendant provided HK$10,000 to the Plaintiff. From about July 2012 up until January 2013, the Defendant transferred money to the Plaintiff, upon her request, amounting to at least HK$30,000. Finally, the Defendant gave the Plaintiff HK$5,000 at the funeral parlour at the time of the deceased's funeral.

Determination

Being an "eligible person" is a necessary precondition to the court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. There is no dispute the Plaintiff, as a child of the deceased, is an eligible person within the meaning of that term in s 57(1)(c) of the Act.
I shall return to the issue of the extension of time after I deal with the question whether, at the present time, adequate provision for the proper maintenance, education, or advancement in life, of the Plaintiff has not been made by the deceased's Will.
Certainly, there is no provision in the deceased's Will for the Plaintiff. However, this does not mean, automatically, that she will have established the jurisdictional threshold for the making of an order.
Based upon what she has disclosed in her evidence, which, in my view, should have been more complete, it would appear that adequate provision for the Plaintiff's proper maintenance or advancement in life was not made by the Will of the deceased. In other words, if the question were to be answered solely by reference to the financial resources that she disclosed, and if I were satisfied that the Plaintiff's complete financial resources had been disclosed, an affirmative answer to the first question regarding the inadequacy of provision would likely be given.
However, that is not all that is required in determining this question. Whether inadequate provision was made requires an assessment of the Plaintiff's financial position, the size and nature of the deceased's estate, the relationship between her and the deceased, and other persons who have legitimate claims upon the deceased's bounty and the circumstances and needs of those other persons.
In this case, any provision the Court makes in favour of the Plaintiff has to be made at the expense of the Defendant to whom the deceased believed sole provision ought to be made, and whose claim for provision from the deceased's estate is far more compelling than the claim of the Plaintiff.
Furthermore, to make provision for the Plaintiff, as well as for her costs, would be likely to result in the sale of the Chatswood property, which property provides one principal source of income for the Defendant. Whilst there would be some capital sum left, which could provide income, that income would be significantly less than the income the Defendant currently receives.
I test the matter in this way. The Plaintiff submitted that she should receive a lump sum out of the notional estate of about $300,000. Assuming that the value of the deceased's interest in the Chatswood property is $500,000 (that is the Defendant would receive net proceeds of sale of $1,000,000), after payment of that legacy, and the payment of costs calculated on the ordinary basis, which I shall estimate to be about $80,000 for the Plaintiff, the balance available to the Defendant would be $120,000, which, when added to her share of the proceeds of sale of the Chatswood property ($500,000) would provide a total amount of $620,000. Assuming an interest rate of, say, 2.5% per annum, that amount would provide a gross monthly income of about $1,300, or about one half of the gross income currently generated from the Chatswood property. Such a reduction of income would impact significantly upon the Defendant's financial circumstances. (In this calculation, I have ignored the costs of the Defendant being deducted from the proceeds of sale.)
Even allowing a lesser sum, say $100,000, the balance available to provide an income would be $820,000, which using the same rate of interest, would yield, $1,700 per month, which income is also significantly less than the amount of monthly income currently generated.
I must also remember that the task of the court is to make a determination "according to the feeling and judgment of the fair and reasonable man in the community, the spokesman of which is, and must be, the court itself": Kearns v Ellis (Supreme Court (NSW), Mahoney JA, 5 December 1984, unrep), at 8. Doing so, I remain of the view that there was not a failure, on the part of the deceased, to make adequate and proper provision for the Plaintiff.
Although the Plaintiff suggested that the Defendant would not have to sell the Chatswood property to provide a lump sum for the Plaintiff, it is to be remembered that the Defendant is 69 years of age, that her primary assets are the two properties, one of which is not in New South Wales, which properties provide substantially the whole of her income, taken with a small amount from interest and dividends (and perhaps from the car parking space in Hong Kong). (The Hong Kong real estate is subject to a mortgage debt.)
I must also remember that the Defendant, currently, has a liability for her own costs of the proceedings, which will consume at least the amount held in trust by her solicitors. The value of the other property that she has is less than $50,000.
Finally, there are authorities, decided under the former Act, that the court does not order provision if it is merely to go to the applicant's creditors: Caska v Caska [1999] NSWSC 289; Strano v Jovcevski [2008] NSWSC 380; Diver v Neal [2008] NSWSC 304). However, on appeal, in Diver v Neal [2009] NSWCA 54, Basten JA (with whom Ipp JA agreed) wrote, at [69], that: "The dicta in Caska should not be treated as establishing any general principle. A financial benefit in circumstances where an applicant's business interests require an injection of capital may be of great assistance in permitting advancement in life. The fact that the benefit goes to paying off creditors, thereby saving the loss of an asset or reducing ongoing liabilities, does not diminish the benefit to the applicant."
Allsop P, concurred, saying, at [1], that: "One could envisage a particular predicament of an eligible person whereby it would be relevant to consider that any order in his or her favour would diminish the estate to meet the claims of others to no appreciable (financial or social) benefit to him or her in his or her debt-ridden condition. That is not to say, however, that relief from indebtedness may not be of significant benefit to an eligible person. A small bequest to someone with considerable debts may make the difference (as Mr Micawber said) between happiness and misery."
Therefore, the fact that some, or all, of the provision made for the Plaintiff may go to discharge her debts, does not, necessarily, tend against an order for provision. Yet, the repayment of some of her debts, in this case, is unlikely to provide a significant benefit to the Plaintiff.
Regrettably, also, this is a case in which "it is not possible to meet all the claims on the [deceased's] bounty which have been shown to exist. Determination whether there is power to make an order… and also what order should be made, requires the Court to have regard to the assets available for distribution; and the assets available are not sufficient to satisfy all proved needs and claims on the [deceased's] bounty. There can be no truly satisfactory outcome for this litigation. No-one with a claim on the [deceased's] bounty could receive adequate provision in relation to that person's needs except at the expense of making less than adequate provision available for some other such person": Bladwell v Davis [2004] NSWCA 170, at [11].
Taking into account all of the matters that I am required to consider, I am not satisfied that the Plaintiff has established the jurisdictional threshold for the making of an order. I have referred to the concerns regarding the incomplete disclosure of her financial resources and her income. Furthermore, the size of the estate and what may be notional estate, and the Defendant's significant competing claim upon the bounty of the deceased, does not enable me to conclude that inadequate provision was made for the Plaintiff by the Will of the deceased. Accordingly, the Plaintiff's claim fails.
If contrary to my foregoing conclusion, I were to be satisfied that the Plaintiff had been left without adequate provision for her proper maintenance or advancement in life, for completeness, I turn, then, to make an evaluative judgment as to what provision, if any, ought to be made out of the estate of the deceased 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. This involves "an instinctive synthesis that takes into account all the relevant factors and gives them due weight": Grey v Harrison, at 367. It is not a scientific, or arithmetic, exercise and cannot be answered in any logical or reasoned way: Haskakis v Hatzopoulos [2015] NSWSC 1408, per White J, at [96].
As a matter of discretion, I would not make an order in favour of the Plaintiff.
In this regard, apart from the matters in s 60(2) to which I have referred, I also consider the provision made for the Plaintiff during the deceased's lifetime, which provision would have reduced the value of the deceased's estate. This is a relevant matter to take into account.
I also remember that the Defendant is the widow of an extremely long marriage with the deceased. Due regard must be had to what the deceased regarded as a superior claim or preferable disposition as demonstrated by his will: Pontifical Society for the Propagation of the Faith v Scales per Dixon CJ at [6], and I must not overlook the fact that the Court is not invested with a discretion to remake a deceased's Will upon some principle of fairness.
Given the conclusions that I have reached above, it is not necessary for me to deal with the question of notional estate or extension of time. However, I shall briefly set out my views in regard to each aspect. I do so in a summary way.
Relevantly, (and ignoring the distribution of the shares in the Company for the reasons explained earlier in these reasons), the designation of property as notional estate requires there to be, first, a relevant property transaction. Here, the relevant property transaction is said to be that the deceased died without having terminated the joint tenancy in the Chatswood property, and converted it into a tenancy in common.
It is clear that a failure to terminate a joint tenancy is the type of conduct which can be a relevant property transaction.
If the relevant property transaction occurred, s 83 and s 87 imposes some extra requirements before property can be designated as notional estate. I have taken into account the various matters to which these sections refer. When one considers "reasonable expectations in relation to property", it is likely that the Defendant's reasonable expectations were that the joint tenancy would not be severed prior to the death of the deceased, and that she would inherit the Chatswood property by survivorship. After all, the Chatswood property was purchased in about 1987, and held, for about 25 years thereafter, by the deceased and the Defendant as joint tenants. The length of time the Chatswood property was held, leads, in my view, to a reasonable expectation held by the Defendant that the Chatswood property as held would be enjoyed solely and absolutely by her, as the survivor, upon the death of the deceased, who was the other joint tenant.
Even if the Defendant did not hold the expectation that the deceased would not sever the joint tenancy after all those years, the terms of the deceased's Will, following his death, would have created the expectation that she would inherit the deceased's interest therein as a tenant in common.
(To the extent that it is relevant, the deceased's reasonable expectation would have been that the Defendant would inherit the Chatswood property, either by survivorship or, if he severed the joint tenancy, by the terms of his final Will.)
On the other hand, and to the extent that it is relevant, there is no evidence that the Plaintiff had any expectation, reasonable or otherwise, in respect of the Chatswood property. Whilst she may have lived in that property for a period of time, and accepting that in 1994, the deceased suggested selling the property and splitting the proceeds equally to each family member, there is no evidence that the deceased expressed any intention to provide her with any share of the Chatswood property on his death.
The other mandatory considerations in s 87 include "the substantial justice and merits involved in making or refusing to make the order" and "any other matter it considers relevant in the circumstances". The substantial justice and merits of the case incline the court towards not making an order to place the burden of any provision for the Plaintiff, or costs, upon the Chatswood property due to the competing claim of the Defendant as a spouse of a marriage which lasted over 40 years. Making an order for provision in favour of the Plaintiff out of the notional estate would reduce not only the Defendant's income but also her capital. This is an unacceptable outcome considering her needs and her competing claim on the bounty of the deceased.
Next, s 88 requires the court to consider other matters. Had I considered that an order for provision should be made, I am of the view that s 88(1)(b) would be satisfied because the deceased's estate would have been insufficient for the making of the family provision order, and any order as to costs, that the court was of the opinion should be made.
Section 89 would require the court to have regard to the matters identified in determining what property should be designated as notional estate of the deceased. In this regard, only the deceased's interest in the Chatswood property is seen as being available to be so designated. Even then, the Court must not designate as notional estate property that exceeds that necessary, in the Court's opinion, to allow the provision that should be made, or, if the Court makes an order that costs be paid from the notional estate under section 99, to allow costs to be paid as ordered, or both.
In respect of s 90, I am satisfied that the property that could be designated as notional estate (the deceased's interest in the Chatswood property) was the subject of a relevant property transaction and that the Defendant, the person who holds the property, holds it as a result of the relevant property transaction. As the Defendant does not hold the property as a result of distribution as the trustee only, I am also satisfied that the property is not vested in interest in any beneficiary under a trust.
In those circumstances, the Plaintiff would not need to overcome s 90(2)(b), and establish "special circumstances", even though she can bring her application only because an extension of time is granted.
If I were wrong in reaching the last conclusion, I am unable to find any "special circumstances" which would justify the making of a notional estate order of a one-half interest in the Chatswood property.
Had I found that an order for provision ought to be made, I would have made an order extending the time for the making of the Plaintiff's application. The Summons was filed three weeks later than the time prescribed and there was no evidence of any prejudice suffered by the Defendant, or any unconscionable conduct of the Plaintiff.
However, because I am not satisfied that adequate provision for the applicant's proper maintenance, education or advancement in life has not been made, and that, even if contrary to that finding, I would not make an order, as a matter of the exercise of discretion, there is no need to make an order extending the time for the making of her application. There is no injustice in refusing to extend the time for the making of the application in circumstances of the Summons being dismissed.
In all the circumstances of this case, I order that the Summons be dismissed. I also order that the notice of motion filed on 17 February 2014 by the Defendant be dismissed. (I confirm the order that I made, on the second day of the hearing, the notice of motion should be dismissed: T80.11.)
The Defendant requested me to allow the parties an opportunity to make submissions on the question of costs of the proceedings. I shall publish these reasons and hear the parties on the costs orders to be made.
The Defendant should seriously consider whether further costs should be incurred arguing about the costs of the proceedings. However, that is a matter entirely for the Defendant. Currently, there seems to be no basis for the Plaintiff to seek an order for her costs since she has been unsuccessful.
Subject to any further argument on costs, my present view would be to make no order as to costs to the intent that each party should pay her own costs of the proceedings.

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: 21 October 2015

Family Provision Act 1982(NSW)

At a glance

Court

Decision date

Before

Source

Judgment (21 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (94)

Cited By (4)