Cooper v McNeice; Munday v McNeice

Family history 5The deceased's husband was born in November 1913 and the deceased herself in March 1919. They married in 1940 and had a large family. Anthony was born in July 1942; Judith, 1946; Marilyn, December 1948; Alan, November 1952. Pamela, May 1956; and Warren in September 1966. Warren is substantially younger than the other children. Judith left school in 1962 and went to work as a cleaner. That was some four years before Warren was born. Judith married and left home in 1969. 6The defendant in these proceedings is of course the family accountant. He started to act for various members of the family as their accountant in July 1970. 7The deceased and her husband purchased the property at Hilltop Avenue, Lake Heights in October 1970. Her husband worked for Wollongong City Council as a labourer. Alan acquired a property in Burgess Avenue, Figtree in 1977. From about 1980 onwards, Warren started to help his parents care for some cattle which they ran on an adjacent property to their home. He left school in about 1983 and obtained some employment which kept him occupied until 1991. Judith in the meantime in 1985 had moved into her Housing Commission premises at Kirrawee, where she still resides. In 1987 Alan transferred the Figtree property (referred to above) to his parents as joint tenants. In 1988 Warren purchased three residential flats at Albion Park for investment purposes. He provided, he says, the deposit but the balance of the funds were provided by his parents. In about 1991, as I have mentioned, Warren ceased work and started helping his parents and also assisted his brother Alan in his landscaping business. 8The deceased's husband Leslie died on 18 July 1996. Alan married and moved from Lake Heights in about 1998. He died on 17 April 2002. The deceased made her last will, as I have mentioned, on 9 October 2006. She died on 16 October 2008. 9Judith's summons was filed on 26 March 2010 and Warren's was filed on 28 February 2011. In his summons he made a number of trust claims but they were dismissed by consent on 10 November 2011. They sought to propound a claim that he had an interest in Anthony's property. Anthony died on 17 December 2011.

Eligibility 10Each of the plaintiffs are of course eligible persons. In applications under the Family Provision Act, the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two-stage approach that a court must take at p 209, which said the following: "The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder, where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."

Extension of time 11Warren brought his claim in response to the claim brought by Judith and it is out of time. Because the application is out of time, it is necessary for the court to consider s 16 of the Family Provision Act, which allows an application to be made notwithstanding it is out of time. There are a number of cases which refer to the principles to be applied in an application for an extension of time. In Re Guskett (deceased) [1947] VLR 212 the following was said: "It is necessary for the applicant to make out a case that will justify the grant of the indulgence sought. He is to show reasons why his failure to apply within the time allowed should be excused. Every case will have to be dealt with on its own facts but it would seem necessary for the applicant to satisfy the court that the circumstances are such as to make it unjust for him to be penalised for being out of time. As moreover he is seeking an indulgence he should apply promptly for an extension of time." 12Young J in several cases has dealt with the principles governing application to extend time under this Act. In Massie v Laundy (unreported, NSWSC, 7 February 1986) his Honour indicated that when looking at "sufficient cause" under 16(3) of the Act the factors which one looks at include the following: (a) is the reason for making a late claim sufficient? (b) will the beneficiaries under the will be unacceptably prejudiced if the time were extended? (c) has there been any unconscionable conduct on either side which would enter into the equation? 13Apparently he also accepts a view that was expressed by Needham J in Fancett v Ware (unreported, NSWSC, 3 June 1986) that there is no purpose in extending the time with respect to a claim that must fail. In Phillips v Quinton (unreported, NSWSC, 31 March 1988) Powell J when considering the matter at the substantive hearing leant to the view that a plaintiff seeking an extension of time under the Testators Family Maintenance Act must now demonstrate not merely a reasonable prospect but at least a strong probability of obtaining substantive relief. That view was not accepted by Hodgson J in Basto v Basto (unreported, NSWSC, 8 September 1989). 14In De Winter v Johnstone, a decision of the Court of Appeal on 23 August 1995, Powell J referred to this matter and in particular the fact that nowadays the application for extension of time is invariably dealt with at the time of the application for substantive relief. He said at p 23: "In such a case, so it seems to me no extension of time ought to be granted unless it be established (inter alia) that the applicant for an extension of time would, in the event of that extension being granted, be entitled to an order for substantive relief." 15Sheller J considered that it was only necessary to show that the application was not bound to fail. Cole JA seems to have adopted the parties' approach of looking at the strength of the plaintiff's case. 16The case of De Winter v Johnstone (unreported. NSWCA, 23 August 1995) is also useful in that Sheller J commented on the meaning of 'unconscionable'. He was dealing with an appeal from Master McLaughlin (as his Honour was then) and he referred to the Master's comments to the following effect: "Unconscionable conduct in this context of course relates to such matters as whether the plaintiff has made an informed decision not to make a claim against the estate and has then decided after the limitation period has expired to make such a claim on account of some change in her financial and material circumstances which has occurred after the expiry of the limitation period." 17With regard to the Master's comments, his Honour observed: "...with all respect I would not have thought this to have been unconscionable conduct. No doubt it depends on the circumstances. However, the concept of unconscionable conduct is to be directed towards a deliberate holding off designed to lull beneficiaries into false sense of security. There is nothing to suggest anything of that sort in the present case." 18It is clear that Warren had no knowledge of time limits until he sought advice from his present solicitor. They then acted with reasonable expedition in commencing proceedings. The defendant does not oppose the granting of an extension. Judith does but does not put forward any good reasons not to extend time. There is no prejudice identified. 19I extend the time for Warren to bring proceedings up to the date of the filing of his summons.

The situation in life of Judith 20Judith is 64 years of age, single, with no dependants. She lives in a Housing Commission home with a rental subsidy. 21She has $2,500 in household contents, $360 in superannuation and $29 in the bank. Her debts total $2,000. 22Judith works as a cleaner three days a week, a job she has been doing for many years. Her income from work is $400 per fortnight and she receives a part pension of $540 per fortnight. This is all consumed in her expenses. 23Judith's marriages have failed and she is almost at an age where she has to retire. Her education only took her to year 7 and, apart from some time off to raise children, she has worked in low paid jobs all her life. 24Her relationship with the deceased was always good but for most of her life since she left home she has lived in Sydney. She travelled to Wollongong to see her mother on a fortnightly basis. 25The reason for her receiving only $10,000 seems to have been because her mother thought that the properties should stay with the male line. The deceased must have known of Judith's poor situation because when Alan died she gave Judith $1,000 to assist her poor situation. In April 2002 she gave Judith $350 to fix a broken tooth. The only reason why Judith only got $10,000 was this mistaken belief of the deceased.

Warren's situation in life 26Warren is 46 years of age, single, with no dependants. 27He still lives in the family home which he has been in since it was purchased in 1970. Alan owns a block of three units at Propane Street, Albion Park. The deceased and her husband provided most of the funds for this property. It is owned outright. There are two estimates of value, one by an agent looking at the outside, from $450,000 to $470,000; and one by the agent Raine & Horne, which actually manages the property. They valued it at $320,000. Given their closer familiarity with the property, I will adopt that value. 28He has a Toyota Hilux and his family's old car. 29He has a share portfolio, most of which has been lost in the global financial crisis. Its present net value is $36,772.39. 30His bank accounts total $2,195, although there is some doubt as to whether there might be other bank accounts. 31His claims in respect of other properties have been dismissed and he has no other assets. 32He does not qualify for a pension and his present income appears to be the following: Rent from Albion Park 3 × $190 = $570 per week Rent from Burgess Avenue 2 × $170 = $340 per week Tenant in the home flat $100 per week 33There is also another flat at the home which is not presently let. 34He earns little from what work he does, occasionally transporting stock in his Hilux. At most he would earn some $60 a week. 35Warren has always suffered from some problems and he has not worked effectively from 1991. He has problems with literacy and cannot tell the difference between a bill and a receipt. The only way he can manage is each week he takes all the letters to the accountant's and there the accountant's staff helps him with what has to be paid. Unfortunately, he does not recognise his own problems but does take advice from people such as the accountant. Having seen him in the witness box, I think it unlikely that he will ever work again. He plainly is a very vulnerable person and has difficulty coping in the world. 36In the future he will be dependent on the rental income for his livelihood. That will, as a result of this case, decrease due to the sale of the Burgess Avenue property. 37He gave up work to look after his parents and all the evidence points to him being a devoted son to his parents. This included personal care and attention. He also did a lot of work at home and on the rental properties. He was provided substantially with Albion Park by his parents.

Discussion 38It is necessary to see how Judith says she has been left without adequate and proper provision for her maintenance, education and advancement in life. 39Primarily she seeks funds for her to buy a house. 40In McGrath v Eves [2005] NSWSC 1006 Gzell J referred to the court's approach to the question of moral duty when considering claims by children to be provided with funds for a house. He said: "[67] When it comes to children, as Young J observed in Shearer v The Public Trustee (NSWSC, unreported, 23 March 1998), it has never been said by any court that the community expects a mother to leave her children in a position to have a house of their own. That observation applies equally to a father. And in Gorton v Parks (1989) 17 NSWLR 1 at 7, Bryson J pointed out that there is no special principle that able-bodied adults earning a living have no claim, his Honour pointing out that such a proposition in relation to resources of any size was quite erroneous. [68] In Barbara Mayfield v Suzy Carolyn Lloyd-Williams [2004] NSWSC 419 at [109]-[110], White J, having referred to this passage, went on to observe that there was no rule to the effect that proper provision for an adult and presently able-bodied child did not extend to providing him or her with a house or money to buy one. His Honour noted that instances in which this had occurred included Re Buckland, deceased [1966] VR 404 and Ogden v Green [2003] NSWCA 352. [69] White J's decision was upheld by the Court of Appeal in Lloyd-Williams v Mayfield [2005] NSWCA 189. In the course of his judgment, Bryson JA at [31] pointed out that there were features to the case that were rarely encountered in claims under the Family Provision Act 1982 and rarely encountered together. First, the value of the shares designated as notional estate was very large in comparison with the estates ordinarily encountered. Secondly, because the appellant was otherwise amply provided for, the further provision ordered by White J could have no adverse effect on her wellbeing. Thirdly, the applicant did not have any needs in terms of lack of present provision for necessities and amenities of life on an ordinary scale of needs as understood in the community generally. [70] It was submitted that Mayfield was distinguishable by the absence of these features in the instant circumstances and because the appellant in Mayfield had filed no financial evidence and put forward no competing financial or other needs for the Court to consider. [71] There are differences of fact between Mayfield and the present case. But they do not affect the central proposition that there is no rule to the effect that proper provision for an adult and presently able-bodied child does not extend to providing him or her with a house or money to buy one. That proposition was not criticised by the Court of Appeal. Indeed, at [32], Bryson JA observed that it was open to White J and altogether appropriate to look well beyond needs when interpreting and applying community standards to decide what provision the court ought to order." 41Initially, she asked for $240,000 to $300,000 to buy a single-bedroom unit. Later in the proceedings this was increased to $350,000 to $599,000 for a two-bedroom unit. 42She is in secure accommodation, on which she would need to spend some money to make it liveable. 43Plainly, she needs new furniture and whitegoods which would cost in the vicinity of $11,000. She needs a three-wheel scooter, which is probably appropriate, costing something between $2,500 and $5,000. She needs new dentures, which will cost $1,850. Glasses, $368. She needs to repay debts of $2,000. All these matters, apart from a home, are all quite proper needs which should be met. 44The claim for a house has to be seen in the context of the now small size of the estate and the pressing needs of Warren. 45Although it was sad for the family, the death of Anthony has reduced the pressure of claims on this small estate. Anthony's estate, which includes his house worth $300,000, passes to a friend who has known him for 11 years. There is no suggestion in the evidence that the deceased knew of the friend. Plainly, she has no claim on the bounty of the deceased. 46I see that Warren has a real need for accommodation and the family home would be ideal as it also earns some rent. Judith is fortunate to have a Housing Commission home. The attitude which the court should take in relation to the provisions of State accommodation and pensions was discussed by me in Chan v Tsui [2005] NSWSC 82, where I said: "[59] I discussed treatment of pensions in Mitchell v Osborne (17 November 1994) in the context of a war pension, where I said the following: 'On the need for maintenance it was suggested that I should disregard his pension entitlement. In Parker v The Public Trustee (unreported, 31 May 1988) his Honour Young J had the following to say: "In my view the attitude that the court takes in this area of the law is this problem under the authorities appears to be as follows: (1) The object of the Act is to compel persons to make provision for their dependants and not throw the maintenance of dependents upon the public purse: see, eg, Liberman v Morris (1944) 69 CLR 62. (2) It is no answer to a claim that a deceased failed to make proper provision for his dependant and that dependant is entitled to a pension under the Society Security Act: Re Hunter (1940) Gazette L.R. (NZ) 100, at p 101. (3) When making provision a wise and just testator usually makes his will without regard to any means-tested pension that a beneficiary may be able to receive: Shah v Perpetual Trustee Co (1981) 7 Fam LR 97, at p 100 and Dickie v Dickie, an unreported decision of Master Gressier handed down on 21 February 1986, at p 9. (4) A wise and just testator, however, when formulating his bequests does take into account the income that the various beneficiaries would be receiving under superannuation or other pensions: Re Lawford (1954) NZLR 1142, at p 1145. (5) A testator has no duty to organize his affairs so that his beneficiaries receive the maximum benefit from his estate so long as he makes adequate provision for them. (6) It would be contrary to the policy of the Act for the Court to so make an order that there was thrown on to the public purse the support of a dependant to the advantage of a 'wealthy' beneficiary: see, eg, in the Family Law area, Re F (1982) 8 Fam LR 29. (7) Where the estate is small and especially where there are a series of claimants on the testator's bounty it may well be proper for the testator when making his will and the Court when framing its order to preserve a pension entitlement. See again the analogous cases in the Family Law area, Re Brady (1978) FLC 903 and Re Kauriers (1986) 11 Fam LR 42." One is forced to observe that the situation today in the 1990s is substantially removed from the type of situation that applied in 1944 when the High Court in Lieberman v Morris made the comments about throwing the cost of maintenance of dependants upon the public purse. In the last twenty years for example in Australia we have seen unemployment at a level that was not experienced for many years before that period. In fact it is something that has not been experienced in the period since the last great depression in 1929. The receipt of social services payments given the higher levels of unemployment is not seen as a stigma or regarded in the same way as it was regarded in 1944 or perhaps even in 1981 when Shah v Perpetual Trustee was decided. Perhaps the time has come (and perhaps it is not for me to do it) to consider whether this characterisation of the purpose of the Family Provision is still appropriate.' [60] As I indicated in Studdert v Wildlash (unreported, 5 October 1995), an examination of the cases referred by Young CJ in Eq does not reveal a detailed recent consideration of the matters of principle involved. Indeed in Lieberman v Morris the matter, while referred to by Latham CJ, was not part of the ratio of his decision or that of that of the court. The Family Provision Act became law at a time when there was substantial provision by Commonwealth legislation for unemployment, aged and invalid pensions. This puts a different perspective on the Act and cases such as Shah v Perpetual Trustee Co and Dickie v Dickie which were all cases under the Testators Family Maintenance and Guardianship of Infants Act 1916. This led me to conclude in Studdert v Wildlash that, given the comments I have made above in respect of unemployment, it is in this day and age appropriate to take into account a pension entitlement. [61] I have since had drawn to my attention the useful comments of Hedigan J in King v White (1992) 2 VR 417 at 424, where he said: 'There would, I think, be strong public policy reasons against permitting the moral obligation of testators to make adequate provision for the proper maintenance and support of those with claims on their bounty to be deflected by resort to the expectation of the continued payment from the public purse to survivors of sums in satisfaction of the testator's duties. Moreover, there could be no legitimate expectation that the payment of social service or old age entitlements would continue at any particular level on the same conditions, or be appropriately linked to rising costs. Further, the provision of such benefits are subject to political vagaries. It is a fact well known in the community that the receipt of the old age pension is now assets and means tested. Indeed, in this very case, this issue has been partly addressed in relation to the possible provision of an additional source of income for the widow. I am fortified in these views by the comments of Rath J in Shah v Perpetual Trustee Co (1981) 7 Fam LR 97. In that case, his Honour expressed the view that he did not think the consideration of the pension entitlement of the plaintiff and their continuance in the future could assist in the formulation of proper provision for the plaintiff. Further, his Honour stated, in the circumstances of the case: "I think that a wise and just testator would make provision for his widow out of his estate without regard to a means tested pension. The position could be different in the case where the competing claims on the testator would cause strains on his capacity to provide. That is not this case."' [62] As an example of the latter proposition see Warland v Reece [2000] NSWCA 380. [63] Since my earlier decisions in King v Foster (Court of Appeal, unreported, 7 December 1995) Sheller JA referred with approval to the discussion by Bryson J in Whitmont v Lloyd (unreported, 31 July 1995) on the subject. At p 14 his Honour had the following to say: 'The protection of public funds from claims by indigent persons is not a purpose of family provision legislation but they are incidentally protected by the legislation, which was not enacted solely for protection of private interests and serves public policy: see Dillon v Public Trustee of New Zealand [1941] AC at 303, 304 and observations, not uniform in their import in judgments in Lieberman v Morris (1944) 69 CLR 69. In my opinion, the availability of Age Pensions and other social benefits is a circumstance which should be regarded, and particularly in small estates it may be appropriate to leave an applicant wholly or partly dependent on them or to mould the provision made so that their availability is preserved in whole or in part. The acceptance of benefits for which statute law provides is in every way legitimate, involves no social stigma and incurs no disapproval from the Court. It is not the Court's task to be vigilant to throw burdens off public funds and on to private estates. Still it is true that the legislation has a public policy purpose and it is not appropriate that where there is wealth in an estate it should be directed away from the less fortunate and successful of the eligible persons so as to enhance their claims to social benefits and maximise the resources of others; the Court should not disregard the interest of the public in public funds, which can receive incidental protection from the workings of this legislation. Where wealth is available it should be used to meet needs for maintenance, education and advancement of eligible persons. The significance of social benefits is related to the available resources. In my understanding this expresses the view on which this Court administers the legislation. See my observations in Wentworth v Wentworth (14 June 1991, unreported at 132) which appears not to have attracted criticism in the Court of Appeal (3 March 1992): "The testator should not have disposed of all the family wealth in ways of his own choosing and left the family's economic casualty to relative penury or dependence on social agencies." See too Parker v Public Trustee (Young J, 31 May 1988) and Thom v Public Trustee (Master McLaughlin, 2 April 1992), both noted in Leslie's Equity and Commercial Practice F30: 1010.' 47This is now a small estate so it is appropriate to have regard to her lifetime entitlement to accommodation. 48It seems to me that Warren should have the house. The remaining assets after payment of costs should be shared equally between Judith and Warren. 49The orders I make are as follows:

1. In lieu of the entitlements of the beneficiaries specified in the will of the deceased (a) the plaintiff Warren Fletcher Munday receive a bequest of the property of the deceased at Hilltop Avenue, Lake Heights; (b) the plaintiff Warren Fletcher Munday and the plaintiff Judith Cooper share the residue equally.
2. The defendant's costs on an indemnity basis and the plaintiff's on an ordinary basis be paid out of the estate of the deceased. 50I wish to note in respect of costs that this case is just above the $500,000 amount in the Practice Note which might lead the court to make a capping order in respect of costs. 51The defendant's costs are most reasonable and I will not comment on Warren's. His case would be difficult to prepare. 52Judith's costs on an indemnity basis come to $108,849. In a case of this size, which was quite straightforward, they seem to me to be excessive. There is nothing, as required in the Practice Note, to explain these apparently excessive costs. I note that all that they have achieved is to increase Judith's legacy from about $10,000 to $100,000. It seems to be another example of a lack of proportionality in these Family Provision Act matters. 53As Judith's solicitors were not cross-examined, I will of course hear anything which counsel wishes to say in respect of those costs so that, if necessary, I can deal with them or incorporate anything further in the judgment. 54The exhibits are to be returned on the usual undertaking to retain them pending an appeal. 55(Counsel addressed on costs.) 56I have heard counsel and I can confirm that there were difficulties in the case because Warren's case was not prepared properly so that everyone knew precisely what was his financial situation. It was difficult until the hearing was actually underway to see that situation. I also note that there was a change with Anthony midway through. Anyhow, the matter will be resolved by an appropriate assessment of costs in due course. I note these matters but will not say anything further on them. 57I reserve liberty to apply for any further argument as to costs, provided my associate is notified by next Tuesday.

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: 03 May 2012