David Lai Kan Pang v Susan Wai Wah Fong

The proceedings 10Mr Pang commenced these proceedings by summons filed on 9 May 2013. Relevantly, he sought an order that provision be made for his maintenance, education and advancement in life pursuant to s 59 of the Act out of the estate or notional estate of the father, as well as an order under the relevant sections of the Act designating as notional estate such property as the evidence may disclose. 11As the son of the father Mr Pang is an eligible person for the purpose of applying to the court for a family provision order under s 57(1)(c) of the Act. The evidence discloses that Ms Susan Fong is the only other eligible person. 12Apparently as a result of the small size of the father's estate, the defendants have not sought probate of the father's will. Accordingly, Mr Pang sought in his summons an order under s 91 of the Act granting administration to the defendants in respect of the estate of the father for the purpose only of permitting his application to be dealt with. It will be appropriate for such an order to be made.

Funeral and other expenses 13Ms Susan Fong's evidence is that the father's funeral expenses were $13,475.55, and in addition the estate is liable to an income tax expense of $1,615.85. She said in her primary affidavit that the shortfall in the estate after payment of the estate's debts was $12,176.70. In her affidavit sworn on 11 June 2014 Ms Eva Fong asserted that Ms Susan Fong had paid out estate expenses of $22,896.27. That amount may include the small amount paid to the defendants' solicitors on account of legal costs to which I refer below. The figures for the estate's expenses do not appear to reconcile, but the differences are not significant for present purposes.

Legal costs of the proceedings 14As I understand Mr Pang's solicitor's affidavit, his total incurred and estimated costs are almost exactly $60,000. I infer that that estimate is on an indemnity basis. 15According to the solicitor for the defendants, in his affidavit sworn on 22 May 2014, a little more than one month from the commencement of the hearing on 30 June 2014, and apparently in compliance with the requirements of SC Eq 7 par 17.2, the defendants' estimated legal costs, assuming a hearing not exceeding two days, on an indemnity basis, were $35,000. An amount of $3575 had been paid by one of the defendants on account of those costs. 16Surprisingly, on 5 August 2014 the defendants filed a notice of motion in which they sought leave to adduce further evidence in their case. One aspect of the additional evidence was contained in an affidavit sworn by the defendants' solicitor on 21 July 2014. The effect of the affidavit was that the solicitor, following the completion of the hearing, calculated the defendants' costs on an indemnity basis as being $74,172.42. He estimated that the costs to complete submissions and for a further appearance before the court (presumably including the costs of making the application to reopen the defendants' evidence) would be $8000 on the indemnity basis. No explanation was offered concerning the apparent increase of some $40,000 from the estimate made on 22 May 2014. That estimate was based upon an assumed two-day hearing. The length of the hearing was in fact two days, although, as the parties did not have adequate time to make submissions, I permitted them to supplement their oral submissions in writing. 17The defendants' application to lead this evidence concerning their actual costs was contested by Mr Pang. I heard the notice of motion on 15 August 2014. I gave the defendants leave to reopen to read the affidavit. I did so because it seemed to me that it was necessary for the court to know what the actual costs of the defendants were. That was so, even though there was no explanation at all as to why the solicitor had underestimated the costs by more than 50% little more than one month before the commencement of the hearing. I advised counsel for Mr Pang that I would have regard to her submissions in opposition to leave to reopen being granted, when I considered the issue of the costs order that should be made in these proceedings. I will return to the matter of costs below.

New claim by plaintiff abandoned at hearing 18Notwithstanding the terms of the relief claimed in his summons, which I have outlined above, in a written outline of submissions served a number of days before the commencement of the hearing, Mr Pang's counsel foreshadowed a claim based, first, upon the proposition that the whole of the $1,165,951.46 in the joint accounts was property of the estate, because all of the money had been paid into the accounts by the father, so that it was held by Ms Susan Fong on a resulting trust for the estate, after the father's death. Secondly, it was foreshadowed that it would be argued that, in the alternative, half of the $1,165,951.46 was held on behalf of the estate on the basis of a resulting trust, and the other half was available for the subject of a notional estate order because it had passed to Ms Susan Fong by survivorship for the purposes of s 76(2)(b) of the Act. It was counsel's third alternative that only half of the amount was available to support Mr Pang's claim for a family provision order, as being notional estate of the father. 19At the beginning of the hearing counsel for the defendants challenged the entitlement of Mr Pang to make any claim based upon the argument that Ms Susan Fong held any part of the funds in the joint accounts on a resulting trust for the father's estate, because that was a contentious issue for which no notice had been given by means of a proper pleading. Counsel for the defendants pointed out that the issue of whether a resulting trust arose, or whether the father intended to make a gift to his daughter for the purposes of the presumption of advancement, could only be resolved by the investigation of factual matters that were not before the court, because of the absence of notice of the issue. In the face of this opposition Mr Pang abandoned any claims that a family provision order could be made in his favour out of assets other than the half of the $1,165,951.46 that Ms Susan Fong received by way of survivorship.

Evidence of competing claims and amount available for notional estate order 20As I understand the evidence and the submissions, the defendants did not contest that the $582,975.73 could properly be made the subject of a notional estate order, provided that the conditions contained in the Act for the making of that order are satisfied, and provided proper allowance for payments already made is made. For instance, in par 9 of her affidavit sworn on 11 June 2014, Ms Eva Fong referred to the total of the father's estate "including notional estate" as being worth $574,049.18 to 4 June 2014. 21A significant feature of the evidence in the present case is that none of the residuary beneficiaries of the father's will, other than Mr Pang, have given any evidence concerning their present financial circumstances, or their own need for maintenance, education and advancement in life, that could be put in contest against those asserted by Mr Pang. 22Ms Susan Fong will have the benefit of the $582,975.73 that she received as one of the holders of the joint accounts, which is not the subject of any family provision application made by Mr Pang. She is married, and retired, and apparently they have their own home (although the evidence does not provide any details about Ms Susan Fong's assets and liabilities). Ms Susan Fong also appears to have received shares in various properties that were apparently acquired through the profits of businesses operated by the father, which I will consider below. 23Both of Mr Pang's daughters, Ms Edna and Ms Dona Pang provided affidavits in support of the defendants' case. The former describes herself as a hospital scientist, and the latter is apparently a research scientist with a management role for a major multinational pharmaceutical company. Neither daughter provided any evidence of their present assets and liabilities. 24Ms Eva Fong, the second defendant, is a medical practitioner. Her two sisters, Ms Yvonne Fong and Ms Lily Fong swore affidavits for the purposes of the proceedings. The part of their affidavits that made provision for disclosing their occupations was left blank. Mr Michael Fong described himself as an IT Consultant. None of Ms Susan Fong's children gave any evidence about their present financial or other circumstances in their affidavits. 25Of the eight residuary beneficiaries of the father's will, all except for Mr Pang and Ms Susan Fong stated in their affidavits that if required they would repay the $50,000 interim distribution that each received from the father's notional estate, if that was required as a consequence of any order made by the court on Mr Pang's application. 26It is therefore necessary, in the absence of any evidence of a specific nature of any competing needs of the other residuary beneficiaries (other than, of course, the fact that they are beneficiaries under the father's will), to examine the evidence that has been provided to support, or contest, the application made by Mr Pang.

The family history 27I trust that I may make the following general observation, without appearing to be inappropriately culturally insensitive, that the evidence satisfies me that the father enjoyed a traditional Chinese patriarchal relationship with his children, which was manifested equally in relation to Mr Pang and Ms Susan Fong. The evidence suggests that in various important respects the father made decisions on behalf of his children, in relation to social and property matters, in circumstances where he expected to be obeyed, and was obeyed. That general observation is not in any way inconsistent with an acknowledgement that the father enjoyed a loving relationship with his children. 28According to Ms Susan Fong, the father married his wife and the mother of Mr Pang and Ms Susan Fong, Ms Sou Ching Yuen Pang, in China. I will refer to her simply as "the mother". He worked as a seaman. At about the time of Ms Susan Fong's birth in 1940 the father was working on a ship that sailed to Australia. He could not return to China because of the war. The father became part owner of a banana distribution business, and also part owner of a fish shop in Glebe Point Road, Glebe. 29Mr Pang gave evidence that he believed his father had been brought to Australia when he was only a baby, about one-year-old, and that he grew up in this country. Differences in family understandings about the personal history of the father before the family joined him in Australia are immaterial to the resolution of the present dispute. 30The father became an Australian citizen on 23 June 1960, and on 30 November of that year the mother, son and daughter joined the father in Sydney. 31The father bought out his partner in the fish shop, and thereafter Mr Pang and Ms Susan Fong began to work in the fish shop for their father on a relatively full time basis. 32Mr Pang's evidence was that he had a very traditional relationship with his father. He respected him and loved him and was dutiful towards him. He said that he believed his father loved him too, but neither of them displayed affection openly. 33Mr Pang said that he finished school when he was 19 years old, after which his father sent for him to come to Australia. Ms Susan Fong's evidence would place Mr Pang as being about 20 years old when the family joined the father in Sydney. 34Mr Pang said that he could not speak English at all at the time he reached Australia, so the only work he could do was manual work. He said that he wanted to go to school to learn English, but his father said "just work for me in the shop", so Mr Pang did what he was told. He pushed trolleys of bananas in the banana shop, and cleaned fish in the fish shop. Mr Pang said that he worked very hard every day. He was only paid pocket money by his father, and never paid a wage. Mr Pang was only given small amounts of cash from time to time. It was not a set amount every week. 35Mr Pang's evidence in this respect was not challenged in any significant way. (There was some contest as to whether Mr Pang worked in a restaurant every night after he finished working in the fish shop, or whether that only happened on Sunday nights). The evidence is consistent with other evidence, particularly that given by Mr Pang's first wife, Ms Mimi Lee Pang, who said that she also worked for the father from the third day after marrying Mr Pang. There were very little wages. She worked six days per week. Initially she did not receive any wages, but after a few years she was given a weekly wage of $24. 36Mr Pang said that, when he was about 26 years old, his parents found a wife for him in China, and brought her to Australia. Ms Mimi Lee Pang was that wife. By the time of his marriage, Mr Pang said, he had graduated to doing some of the cooking of fish and other food, and he also attended seafood auctions in the morning for the shop. 37Initially, Mr Pang and his wife lived above the fish shop at 219 Glebe Point Road, Glebe, with his parents and sister. Then his wife obtained another job, and they moved out into a room of their own. 38Mr Pang said that he worked for his father until he was in his early 40s. Ms Susan Fong's evidence was that the father retired in about 1974, when he was 60 years old. If that is correct, then Mr Pang was about 36 years old when his father retired. After his retirement, Ms Susan Fong said the father leased the premises from which the fish shop operated, and she, her mother and brother ceased working at the fish shop. 39The evidence therefore establishes that Mr Pang worked for his father at the fish shop, and for some period in the banana business, for somewhere between 16 and about 20 years. Mr Pang accepted in cross-examination that, during this time, he spent about one year in Hong Kong learning to be a chef. In working for his father for this amount of time, and for very little pay, Mr Pang forewent any opportunity that he may have had to learn English properly, and to better himself. Most significantly, Mr Pang worked for his father for many of the most productive years of his life for what could reasonably be described as a pittance. It should be said that the same appears to be true for Ms Susan Fong, and for a period also for Mr Pang's first wife. 40Mr Pang said that, after he finished working for his father, he had various jobs as a chef in Chinese restaurants. Mr Pang injured his back at work when he was about 58 years old, some 16 years ago, and has not worked again since that time. 41The evidence establishes that the father acquired and disposed of a number of properties during his lifetime. I infer that the father used the profits of the businesses in which Mr Pang, and the other family members, worked to assist him to make the acquisitions. The evidence concerning the dates upon which relevant transactions concerning the properties occurred is not complete. Mr Pang's evidence was that his father unilaterally made property decisions, but sometimes put properties in the names of members of his family, who then complied with his instructions as to how the properties should be dealt with. 42As I understand it, the father had an interest in the property at 219 Glebe Point Road from which the fish shop was conducted, and that property was at some time leased and then sold. There is evidence that the property was owned jointly by the father and the mother, and that the sale took place on 28 April 2003. From the net proceeds of sale and the deposit, $391,542.20 and $35,908.42 respectively were paid into trust for the estate of the mother, and also into a Commonwealth Bank Account in the name of the father and Ms Susan Fong. 43There was a property at 178 Smith Street, Summer Hill, which was owned at one stage as one undivided one fourth share by Mr Pang, one undivided one fourth share by Ms Susan Fong, and one undivided one half share by the father and the mother. By transfer registered on 5 October 1988 Mr Pang transferred his share to Ms Edna Pang. That property was sold on 8 April 2003. From the net proceeds of sale $310,093.90 was paid to the father, $250,093.90 was paid to each of Ms Susan Fong and Ms Edna Pang, and $190,093.90 was paid into trust for the mother's estate. Equal amounts of $19,989.42 were paid out of the balance of the deposit to or on trust for the four co-owners. 44A property at 180 Smith Street, Summer Hill, was at one stage owned by Mr Pang and Ms Susan Fong as tenants in common. Mr Pang transferred his share to his daughters, Ms Edna Pang and Ms Dona Pang. Ms Susan Fong transferred her share to her daughter Ms Yvonne Fong. Ms Eva Fong gave evidence that this property has been sold, but there does not appear to be evidence as to when that occurred, or how the proceeds of sale were distributed. 45Mr Pang gave evidence that, in so far as he participated in the acquisition and transfer of these properties, his father arranged for the conveyancing documents to be put before him with a request that he sign them, which is what Mr Pang did. He acted upon his father's directions. He was not told why the transfers were taking place, and he did not get any personal benefit from the transfers. 46There was no suggestion that the father had any other source of income by which he was able to accumulate the money that was ultimately placed in the joint accounts in the name of the father and Ms Susan Fong, than the businesses that he operated before his retirement. I am satisfied that, although the evidentiary trail is not complete, the father acquired the properties with the profits from the businesses, and the proceeds of realising the properties were the primary source of the funds that were deposited into the joint accounts. 47Probate of the mother's will was granted to Ms Susan Fong and Ms Eva Fong on 5 March 2003. The mother left her estate equally to her six grandchildren. The inventory of property suggests that the value of the estate was $460,000, which included $450,000 as the mother's half share in 219 Glebe Point Road, Glebe. The evidence discussed above suggests that, after the date probate was granted, the estate received $427,450.62 from the sale of the Glebe property, and $209,983.32 from the sale of 178 Smith Street, Summer Hill. It is likely that the mother's share in these properties was funded from the businesses operated by the father. 48After Mr Pang and his first wife left his parents' home, Mr Pang and his wife bought a home at 28 Darghan Street, Glebe in about 1968. Mr Pang did not dispute Ms Mimi Pang's evidence that, on 20 March 1990, Mr Pang caused a mortgage to be executed over the property in favour of Citibank to secure a loan of some $60,000, which Mr Chang borrowed to fund a Chinese restaurant business that he established. For that purpose Mr Pang wrote his wife's signature onto the mortgage, without her knowledge or authority. Mr Pang's only explanation for this act was that he "thought it was normal to sign on behalf of my wife when we were in the marriage relationship". The restaurant business failed. Ms Mimi Pang discovered the mortgage when Citibank commenced steps to enforce it. At that time the amount of the debt was over $80,000. This situation was resolved on the basis that Ms Mimi Pang (with the help of one of her daughters) took over the responsibility for repaying Citibank. Mr Pang and his wife transferred the property to the wife and two daughters as tenants in common on 27 September 1991 for the consideration of $60,000. As I understand the evidence, the consideration reflected the amount that Mr Pang had already borrowed from Citibank, and he did not receive that amount again. Mr Pang moved out of the home. He and his wife divorced. He became estranged from his two daughters. The only amount that Mr Pang got out of the property was effectively the $60,000 borrowed from Citibank, which was lost as a result of the failure of the restaurant business. 49A company controlled by the father, C S Pang & Co Pty Ltd, owned a house at 8 Caroline Street Kingsgrove. In about 1987 the father caused that property to be transferred to Mr Pang, Ms Susan Fong, Ms Eva Fong and Ms Edna Pang as tenants in common in equal shares. Those parties continue to own that property in the same shares. 50The evidence shows that, beginning in mid-2012, the co-owners of the Caroline Street property, other than Mr Pang, initiated steps to sell the property so that its value could be divided between them. By no later than 7 August 2012 they had agreed to the sale, but Mr Pang declined to sign the sales agency agreement, or to take further steps for the sale of the property. I find that Mr Pang adopted this position as a tactic to assist him to secure an outcome whereby he received some additional money from the assets that his father had accumulated during his lifetime. The defendants' present solicitors, who also acted for the other co-owners of the Caroline Street property, advised Mr Pang on 4 September 2012 that he could not expect to receive any money from the father's estate, which only contained $2614.70 plus furniture, clothing and personal effects. On 21 November 2012 the other co-owners threatened Mr Pang, through their solicitor, that they would be forced to commence proceedings for a statutory trust of the property for sale, if Mr Pang did not cooperate. Mr Pang admitted in cross-examination that he did not agree to the sale of the Caroline Street property "because in [his] father's will the distribution of assets was not fair". 51The parties agreed for the purposes of these proceedings that Mr Pang's share in the Caroline Street property is worth $200,000. 52Mr Pang said that, shortly after his mother died, which happened on 31 July 2002, his father said to him: "David I am worried that you don't have anything. I want to buy a property for you to live in. I will spend about $400,000". The father did not buy Mr Pang any property before he died. 53Mr Pang gave very confused evidence in his cross-examination as to whether the amount that his father mentioned was $400,000, or $50,000, or $600-700,000. I will deal with the issue of the credibility of Mr Pang's evidence below.

The plaintiff's present circumstances 54Mr Pang married his present wife, Ms (Kate) Cai Fang Yu, in about 1996. Ms Yu was born on 29 August 1954, and is 60 years old. She has one child, a daughter, from a previous marriage. The daughter is independent. Ms Yu has never worked in Australia. She has studied to learn English. 55Mr Pang and his present wife live in a Housing Commission flat in Abbotsford. They pay $309.20 rent per fortnight, which is automatically taken out of their Centrelink payments. Mr Pang receives an age pension of $326.30 per fortnight, after the rent is deducted. Ms Yu receives a carer's allowance of $753.50 per fortnight. 56Mr Pang effectively has no assets other than his $200,000 share in the Caroline Street property. He also has no significant liabilities. 57Mr Pang is not in good health. He had open-heart surgery twice in 2012. The back injury, which caused him to cease work, continues to give Mr Pang trouble, and he wears a back brace to support his lower back. Mr Pang said that he has been advised to undergo surgery on his back, but is very reluctant to do this. The evidence includes a report dated 9 March 2013 by Dr K G Ang, Mr Pang's treating general practitioner. The significance of the report was not fully explored in evidence, but the following verbatim extract largely speaks for itself: Mr David Pang is a regular patient to this surgery he is suffering from: 1. Type 2 diabets (sic) mellitus, 2. Severe mitral regurgitation with severe pulmonary hypertension, is now awaiting open hear (sic) surgery on 20/03/2003 at Sy (sic) Vincent hospital. 3. Hypertension. 4. Hyperlipidaemia 5. Chronic severe lumbar disc protrusion resulted in recurrent lower back pain, 6. Bilateral cataracts with previous operations. 7. Bilateral raised intraoccular pressure. 8. Haematuria with regular follow up by urologist Dr patel 9. Previous bilateral inguinal hernia operation at RPAH. 10. Left kidney stone. 58In his affidavit sworn on 3 June 2013 Mr Pang included a statement of estimated income and expenditure for himself and Ms Yu. Mr Pang is entitled to $326.30 per fortnight and Ms Yu receives $741.60, making a total of $1067.90. Their total expenditure is said to be $963. That expenditure excludes the fortnightly rent of $309.20, which is taken out of Mr Pang's pension before he receives the $326.30 per fortnight as pension. (Something strange, and unexplained, has happened with the list of the couple's expenditure per fortnight. The total given is $963. All entries except for one add up to $895. The final entry is $1079.80 per fortnight for car service. That cannot be correct). It was not suggested to Mr Pang that the level of his expenditure was unreasonable, and I find that it was not so (and that some transcription error has occurred in relation to the cost of car service). 59Mr Pang's evidence is that his general practitioner and many specialists do not charge him anything beyond Medicare, but his eye specialist charges extra, as does his acupuncturist. He also pays extra for Chinese medicine. He estimates the additional costs as $100 per week (which I assume is included in the couple's estimated fortnightly expenditure). 60The evidence shows that Mr Pang and Ms Yu live a frugal existence within their means. 61Mr Pang does not have access to any contingency fund to meet the costs of his, or his wife's old-age, particularly costs that may arise out of his poor health, which may not be covered entirely from public sources. 62I should note that, of the $50,000 interim distribution from the estate of the father that Ms Susan Fong voluntarily made, Mr Pang gave his wife a total of $30,000 to fund cancer surgery for the wife's mother in China. After payment of expenses associated with travel to China, as I understand the evidence, Mr Pang retains about $6000 from the interim distribution. When he was in China, it appears that Mr Pang paid out over $5000 to acquire gifts for his friends.

Care of parents 63There is evidence concerning the extent to which Mr Pang and Ms Susan Fong provided personal care and assistance to their parents. Ms Fong gave detailed evidence, which I accept, of providing close and regular assistance to both of her parents, particularly after her mother developed cancer, and to her father after her mother passed away, and during his declining years. 64Mr Pang said that his relationship with his father did not change after he moved out of home, or after he stopped working in the fish shop. He continued to visit his parents once a week; he drove them to doctors' appointments, and took gifts of food to them. This continued after his mother's death. During the 3 to 4 years that the father stayed in a nursing home before his death, Mr Pang says that he visited his father every week. Mr Pang's evidence was not substantially challenged in cross-examination. Ms Susan Fong challenged Mr Pang's evidence, but not in detail, and only by expressing a number of generalised opinions. 65Although, as I accept, Ms Susan Fong provided significantly more assistance to her parents than did Mr Pang, that does not justify a finding that Mr Pang had other than a loving and supportive relationship with his parents. Nor does the evidence provide any justification for a finding that the disparity in the provision that the father has made to Ms Susan Fong, when compared with that made in favour of Mr Pang, is in any way justified or explained by Mr Pang having an unsatisfactory personal relationship with his parents.

Considerations relevant to preparation for the hearing of family provision application 66Two interventions that I made during the course of the hearing appear to have invoked the law of unintended consequences. 67Even though it is true that, once the court determines that it is appropriate to make a family provision order in favour of the plaintiff, the framing of that order is likely to involve the exercise of considerable discretion, it is my strong view that, to the extent reasonably possible, the discretion should be exercised rationally. It may not be possible to expect that guesswork can be eliminated, but it is desirable that even broad discretions should be exercised within the framework of objective evidence. 68 That has consequences concerning the way that the legal advisors to both the plaintiff and the defendant should look at the preparation of the evidence. I would like to think that the process is obvious, but experience causes me to wonder whether that is so. What is the nature and value of the estate available for distribution as a result of the contest? To what extent - realistically - will the fund be reduced by legal costs? What is the plaintiff's optimal outcome? Is that outcome realistic in view of competing claims on the fund? Is the proportion of the fund that the plaintiff is likely to succeed in obtaining adequate for the acquisition of the plaintiff's optimal outcome? If not, or there is doubt, what less attractive outcomes may be acceptable? Will the available fund allow for the acquisition of the less attractive outcomes? Crucially, what evidence is reasonably and cost-effectively available to provide the court a rational basis to determine with a reasonable level of confidence what outcomes can practically be achieved as between competing claimants given the fund that is available? Even more importantly, what is the likelihood that, if the plaintiff limits his or her claim to the optimal outcome, but that outcome is not justifiable by reason of the competing claims of other persons, the court will be left in the position of having to guess whether the family provision order that ought reasonably be made in favour of the plaintiff will actually secure to the plaintiff some sufficiently adequate alternative outcome? Or is the reality that the tactical manner in which the plaintiff seeks to secure his or her optimal outcome will leave the court in the position of having to guess? 69Other questions must be asked in relation to the existing resources of the plaintiff, which include such matters as entitlement to pensions and public housing. What is the amount or value of the existing entitlements, and how will alternative forms of family provision orders that the court may make affect those entitlements? If the reality is that the amount of the fund available is not sufficient to provide for adequate provision in favour of all legitimate claimants, it is highly likely that the existing entitlements of the plaintiff and other claimants will influence the outcome of the proceedings. Accordingly, what evidence can reasonably and cost-effectively be led that will assist the court to avoid unintended and counter-productive consequences of particular family provision orders, that might be made in ignorance of the terms upon which the plaintiff and other claimants may be entitled to receive public benefits?

Evidence of available alternative accommodation for plaintiff 70As I have recorded above, in the present case Mr Pang and his current wife are entitled to pensions, and they have the benefit of living in a Housing Commission apartment. At various stages during the course of the hearing I raised the question of how Mr Pang's existing entitlement to share in the ownership of the Caroline Street property, which is worth $200,000, and how any additional family provision, may affect these entitlements. 71Mr Pang's case is relatively simple. He puts that a family provision order should be made in his favour that, together with his existing $200,000 entitlement, will enable him to buy a suitable two-bedroom apartment in an appropriate location, and hopefully there will be some amount left over for contingencies. Understandably, he expresses preferences as to location and amenity of the apartment. Because of his health situation, he must have convenient access. He is used to living in the Abbotsford area, and he has reasonably ready access to the Chinese community, and to Chinese shops. He would like the benefit of a two-bedroom apartment, as that will ease the realities of daily life when two people live in a relatively small apartment. 72That aspiration naturally gives rise to questions about whether suitable apartments are available for purchase at a price that may be met by Mr Pang's existing resources, and the amount of any appropriate family provision order. If not, what will be the effect of any family provision order, when added to Mr Pang's existing $200,000 fund, on his entitlement to continue living in his existing Housing Commission apartment, and to receive his existing pension? These are but two forms of many questions that may arise about the consequences of various alternative family provision orders that might be made by the court. Where the total fund available is inadequate to make proper provision for all claimants, it will be natural for the court to want to avoid the situation that it denies claimants other than the plaintiff, with the unintended consequence that the family provision order made in favour of the plaintiff causes the plaintiff to lose entitlements of significant value. 73In the course of the hearing Mr Pang's legal advisers produced and tendered a bundle of internet printouts from the website of a real estate advertiser of properties for sale. The bundle became Exhibit B. It contained information concerning six two-bedroom units, two of which are located in each of the suburbs of Ashfield, Abbotsford and Five Dock. The asking prices ranged from $679,000-$700,000. 74In my view evidence of this nature is admissible, because it does not go to the value of any asset, and is only relevant to prove what properties are actually on offer, and at what price, and what are the attributes and amenities of those properties. 75Two consequences of this evidence became apparent. The first requires a broad consideration of the fund that is available if the assumption is made that the whole of the amount in the joint accounts that Ms Susan Fong received by way of survivorship can properly be made the subject of a notional estate order. Calculating in broad terms: the starting point is $583,000, less $23,000 (estate expenses), less $60,000 (Mr Pang's legal costs), less $82,000 (the defendants' legal costs assuming they are awarded in their entirety), less $44,000 (being the part of Mr Pang's $50,000 that he has already received and spent). That gives $374,000. If Mr Pang's existing $200,000 is added to that sum, the total is $574,000. 76It does not require complicated arithmetic to conclude that a fund of $574,000 is not sufficient to acquire an apartment with a price of $679,000-$700,000. 77The defendants responded by putting into evidence a bundle of 23 internet printouts, which became Exhibit 4. These printouts related to one or two-bedroom apartments in Ashfield, Belmore, Lakemba, Meadowbank, Newtown, Parramatta, Punchbowl, Ryde and Wiley Park at prices ranging from $309,000 to $395,000. 78Apart from the question of the suitability and amenity of these alternative apartments, it is immediately obvious that their prices are considerably less than the $574,000 that is notionally available. 79The outcome is that the evidence before the court concerning apartments that may be available for Mr Pang to buy misses the mark by a substantial margin in both cases. 80It became apparent in the cross-examination of Mr Pang, or at least it appears likely to be the case, that the alternative apartments that were the subject of Exhibit B had not been discussed with Mr Pang in any detail, or at least in sufficient detail to enable him to form a view (if necessary in consultation with his wife), as to whether in fact he would prefer to live in each of those particular apartments than to continue to live in his present Housing Commission apartment. 81When counsel for the defendants asked Mr Pang in cross-examination whether he would prefer to live in each of those apartments, or continue to live in his present Housing Commission apartment, his evidence uniformly was in effect that he would prefer the status quo. 82That led the defendants, in their supplementary submissions, to put the submission that the effect of Mr Pang's evidence was that he would prefer to reside in his existing Housing Commission apartment than any of the apartments listed in Exhibit B; the fund available was in any case insufficient to enable Mr Pang to purchase one of those apartments when added to his existing $200,000; and the court should not make an order that would enable Mr Pang to purchase one of the apartments listed in Exhibit 4, because that would be against his preference.

Credibility of plaintiff's evidence 83It is convenient at this point to make related observations concerning the strength of this submission by the defendants, and the credibility of Mr Pang's evidence generally. 84In her oral submissions, Mr Pang's counsel started with the concession that Mr Pang was a very poor witness. It is not necessary to review his evidence chapter and verse. In his affidavit he said that, shortly after the death of his mother, his father told him that he would buy Mr Pang a house with a value of $400,000. At one point in his cross-examination he said, as I have noted above, the figure was $50,000. At another point he said it was $600- to $700,000. Mr Pang's case was, as outlined above, that he wanted a family provision order that would enable him, with his existing $200,000, to buy an apartment in his own name. In cross-examination he appeared reasonably readily to agree that he and his wife would comfortably be provided for, for the rest of their lives, by the existing $200,000, plus their present Housing Commission apartment. 85It is sufficient for me to say that, from my observation of Mr Pang in the witness box, and the uncontroversial evidence, Mr Pang is an elderly and infirm gentleman, who still does not speak English after some 54 years in this country; he does not appear to have any significant financial acumen; and he gave his evidence under significant physical difficulties. His counsel informed me before the beginning of his cross-examination that he suffered from a bad back, and it was obvious to me that he was in some pain during his cross-examination. I offered to allow him breaks if needed, and he had to take advantage of that offer on a number of occasions. I observed Mr Pang being given what I infer to be painkilling medication during the period of his cross-examination. He frequently appeared to be quite confused. To my observation that appeared to result from his physical circumstances, and not from being caught out in cross-examination. Mr Pang appeared frequently to be very tired. All this was on top of the difficulty that witnesses may experience when they are obliged to deal with cross-examination through an interpreter in the stressful environment of a court room. 86In the view that I have taken of the evidence in this case, the issue of the credibility of the evidence given by Mr Pang in cross-examination is of very little significance. I have frequently in my outline of the evidence in this case referred to evidence in the form that Mr Pang said, or Mr Pang claimed. Generally, I accept the substance of the evidence given by Mr Pang where I have related the evidence above in this form. That is essentially because of the simplicity of the evidence, its inherent likelihood, and the fact that it has not been thoroughly challenged by the witnesses for the defendants, if at all. In my opinion the present case can properly be decided on the basis of the broad evidence. 87In particular, I propose to give little weight to the evidence given by Mr Pang in cross-examination concerning his preferences as between buying one or other of the apartments listed in Exhibit B, and remaining in occupation of his present Housing Commission accommodation. Apart from the fact that this evidence was gathered virtually overnight at my prompting, it was in my view clearly not put forward as evidence of apartments that Mr Pang actually wished to purchase, if he was given the opportunity to do so. The information was provided solely for the purpose of establishing that there was alternative accommodation available to be purchased by Mr Pang, which broadly suited his aspirations as to location and amenity. For the reasons that I have set out above, the evidence failed in that regard. However, I reject the submission that the cross-examination concerning Exhibit B establishes that the court need not look further than to conclude that the existing Housing Commission accommodation is adequate and proper for Mr Pang's purposes. 88I would add that, it appeared to me from a number of observations that Mr Pang made during his cross-examination, that he did not feel able to make any positive assertion as to his preferred accommodation without having the benefit of his wife's opinion. Common experience would suggest that that was a reasonable, and perhaps wise, position for Mr Pang to adopt. 89I would only add the practical suggestion that, in the future, it would be wise for legal representatives, who propose to tender evidence of the form of Exhibit B, to enquire of their client as to the suitability of the accommodation before the evidence is tendered. It would be prudent, to check that the amount that would be available, if a particular family provision order is made, would be sufficient to permit the purchase of the properties selected.

Possible effect of family provision orders on Housing Commission entitlement 90The second unintended consequence of my intervention during the course of the hearing related to the issue of the effect on Mr Pang's continuing right to occupy the Housing Commission apartment of any particular family provision order being made in his favour, when added to his existing entitlement to $200,000. 91Mr Pang tendered no evidence on this issue. 92The defendants tendered Exhibit 5, which on its face is a printout from the website of NSW Family & Community Services concerning eligibility for social housing. There was no explanatory evidence in relation to the printout. With respect, the printout is one of those carefully crafted administrative documents, which initially appear to be capable of understanding by the lay reader, but which then causes a niggling doubt, followed by a pervasive certainty, that it has not correctly been understood. It is sufficient to say that, on my reading of the print out, it caused me to suspect that there may be disadvantageous consequences to Mr Pang, in relation to his entitlement to continue to reside in the Housing Commission apartment, if a substantial family provision order was made in his favour, in addition to his existing $200,000, but that was not sufficient to enable him to buy his own apartment privately. Exactly what that disadvantage might be I would not be game to say, without proper assistance as to how the printout should be interpreted.

Application by defendants to reopen 93These difficulties appear to have led to the defendants' notice of motion seeking leave to tender further evidence, which I have mentioned above. The evidence took the form of a new affidavit sworn on 14 August 2014 by the defendants' solicitor, together with Exhibit MDH 1 to that affidavit, which contained a more complete printout from the website of NSW Family & Community Services, concerning eligibility for social housing, together with printouts of the information contained in links within the primary website information. 94Mr Pang opposed the defendants' being given leave to tender the additional evidence in their case. At the end of the hearing of the notice of motion it was necessary for me to reserve my judgment, as I had only received the new evidence very shortly before the hearing (the affidavit was sworn on 14 August 2014, one day before the hearing). 95Accordingly, it will be necessary for me to deal with this aspect of the defendants' application to reopen their case in these reasons for judgment on the principal issue. 96The defendants relied upon the additional evidence to prove that, because Mr Pang and his wife entered into their Housing Commission lease before 27 April 2005, their lease was considered to be a "continuing lease" for the purposes of the income eligibility and asset limits applied by the Department. Counsel for the defendants advised me that, for that reason, the information in Exhibit 5 did not apply to Mr Pang and his wife, so that the exhibit was misleading. It is apparently put that Exhibit 5 suggests that Mr Pang would suffer disadvantages that will not actually occur. In short, the defendants assert that the new evidence would prove that Mr Pang and his wife could enjoy a weekly income up to $1730 per week without affecting their Housing Commission entitlement, and that the effect of Mr Pang having available any sum between $200,000 and $600,000 would only be to increase the rent he and his wife were required to pay to market rent. 97I interpolate that there was no offer by the defendants to tender evidence of what the market rent for the Housing Commission apartment would be. 98There are two aspects to the evidence that the defendants have applied to tender. The first is encapsulated in annexure J to the solicitor's affidavit. On 7 August 2014 the solicitor sent an email to Ms Suzanne Hook, who described herself in an earlier email to the solicitor as an "Advocate/Investigator Department of Family and Community Services, Housing NSW, Legal Services". In his email the solicitor summarised his understanding of the relevant information in the printout that was Exhibit MDH 1 to his affidavit. In broad terms the summary was to the effect of what I have outlined above, as to what the defendants hope to prove by tendering the evidence. Ms Hook replied on 7 August 2014 by saying: "You have interpreted the policy very well and yes, you are correct with the details as outlined below". In an earlier email on 25 July 2014 Ms Hook had stated that she could not provide specific information about particular clients without formal authorisation. 99Mr Pang objected to this aspect of the evidence, in part on the ground that it was evidence that was readily available before the conclusion of the hearing, and also on the ground that the authority and expertise, and even the identity, of Ms Hook, had not properly been proved. In the course of argument counsel for the defendants properly conceded that the documentary evidence that emanated from Ms Hook could not strictly be admitted as a business record, because it was obtained for the purpose of conducting the present proceeding within the meaning of s 69(3)(a) of the Evidence Act, 1995 (NSW). 100In these circumstances, given the position of Mr Pang, I reject the application by the defendants to reopen to tender the email correspondence involving Ms Hook. 101That leaves open the question of whether the printout in Exhibit MDH 1 is admissible, and whether in the circumstances the defendants should be given leave to reopen to tender that evidence. 102I will not make any statement of general principle concerning the admissibility of evidence of the form contained in the Department's printout. I recognise that, as a practical matter, more particularly for the saving of legal costs, it may often be advantageous for the court to receive evidence of this form, whatever the strict technical position may be concerning its admissibility. 103I have examined the printout, and I am not satisfied that it sufficiently speaks for itself to establish with the necessary clarity the propositions which the defendants say are established by the printout. It is not appropriate that I attempt to justify this conclusion by a detailed examination of the printout. It does appear to show that applications for leases that were received before 27 April 2005 are to be assessed "against a different set of income eligibility limits because their income eligibility has been preserved". The printout contains the statement: "Clients who applied for social housing before the announcement of the Reshaping Public Housing Reforms on 27 April 2005, will have their income eligibility preserved ('grandfathered'). This means that they can remain on the NSW Housing register as long as they continue to meet the previous income eligibility limits in addition to all other eligibility criteria for social housing". This appears to require a knowledge of the "previous income eligibility limits". The terms of the printout suggest that the required information is contained in sections 2 and 3. The simple fact is that I am not confident that I can accurately interpret the meaning of the printout without experienced guidance. I also have difficulty in understanding the information contained in the printout concerning the consequences of a tenant becoming entitled to a substantial additional amount of capital. 104In the circumstances I conclude that it is proper to reject the defendants' application for leave to tender exhibit MDH 1. I would add, although the point was not taken by counsel for Mr Pang, that I would be inclined to reject the tender under s 135(b) and (c) of the Evidence Act. 105In my view evidence of the type contained in Exhibit MDH 1 may be useful, if not essential, in cases such as the present. It is not clear that it is for the defendants to tender evidence of this nature. It would be preferable for the legal representatives of the parties to family provision proceedings to consider this issue before the occurrence of the directions hearing following mediation contemplated by Practice Note SC Eq 7 par 17. It would then be possible for the parties and the court to consider how the necessary evidence might most cost-effectively be used, to ensure that the court is able to understand the effect of family provision orders that might be made, after the parties have had ample time to consider the effect of the relevant administrative rules, and after any issues that are truly in dispute have been identified. The utility of this observation is not limited to issues concerning eligibility for social housing, but extends to such matters as pensions.

Is the plaintiff entitled to a family provision order? 106It is now necessary to consider whether Mr Pang has demonstrated that he is entitled to the benefit of a family provision order, and if so, what the terms of that order should be. Chapter 3 of the Act governs these issues, as the father died after 1 March 2009. 107In West v Mann [2013] NSWSC 1852 at [12] Kunc J set out a list of questions and issues that the court should address when dealing with an application under Ch 3 of the Act. 108The preliminary matters raised by Kunc J in questions (1) to (4) are satisfied in the present case because, as I have noted above, Mr Pang is an eligible person for the purposes of s 57(1)(c) of the Act, and he commenced these proceedings within 12 months of the father's death, as is required by s 58(2) of the Act. 109The next step in the process (question (5)) requires the court to identify what provision has been made by the father by his will for the proper maintenance, education or advancement in life of Mr Pang. 110This requirement arises out of the terms of ss 59(1)(c) and (2) of the Act. The first relevantly provides: "(1) The Court may...make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that... (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person..." 111"Family provision order" is defined in s 3 of the Act to mean" "an order made by the Court under chapter 3 in relation to the estate or notional estate of a deceased person to provide from that estate for the maintenance, education or advancement of an eligible person." 112Section 59(2) then provides: "(2) The Court may 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." 113The question is whether, at the present time, the father has not by his will made adequate provision for the proper maintenance, education or advancement in life of Mr Pang. That is why it is necessary to start by identifying the provision that has been made by the father. 114In the present case that provision is a gift of 1/8 of the value of the father's estate, being $3000. The provision made in favour of Mr Pang by the father's will is therefore $375. 115The next step posed by Kunc J (question (6)) is whether the court is satisfied, at the present time, that the provision is not adequate for the proper maintenance, education or advancement in life of the applicant? That question arises out of the terms of s 59(1) of the Act. I propose to treat this question as being a separate question to that raised by s 59(2) of the Act, and for that purpose will follow the conclusions stated by Hallen J in Underwood v Gaudron [2014] NSWSC 1055 at [163] - [165]. 116At the present time the adequacy of the provision made in the father's will in favour of Mr Pang must be considered in the light of the fact that Mr Pang retains an interest in the Caroline Street property, which was given to him by the father, and which has a value of $200,000. Additionally, Mr Pang has received $50,000 from Ms Susan Fong, which in my view must be regarded as an asset that was available for his maintenance and advancement in life, notwithstanding that he has chosen to spend most of it. Although it may be artificial to consider Mr Pang's entitlement to a family provision order on the basis that he still retains the $50,000, in my view the requirement in s 59(1)(c) of the Act that the relevant time is "the time when the court is considering the application" does not justify the court ignoring the fact that Mr Pang has already received $50,000 of the benefit of the family provision order that he is seeking, given that he has expended most of the money for an understandable, but discretionary, purpose. The $50,000 was paid by Ms Susan Fong as an interim distribution from the notional estate, although that description of the payment does not conform strictly to the terms of the Act. 117The question therefore becomes whether a fund of $250,375 is, or was, adequate for the proper maintenance, education or advancement in the life of Mr Pang? 118Hallen J has set out important principles relevant to determining the answer to this question in Underwood v Gaudron at [130] - [153]. I respectfully adopt those statements of principle, and will state in summary form the principles that I consider to be material to the present application. 119In the present case Mr Pang is not in need of additional education, but his claim for an additional source of income comes within the concept of maintenance, and his claim for provision of a capital sum to enable him to buy an apartment in his own name falls within the concept of advancement in life. 120Section 59(1)(c) requires that the court determine whether the will has not made adequate provision for the proper maintenance, education or advancement in life of Mr Pang. The question is not simply whether the provision is adequate. The meaning of the terms "adequate" and "proper" are crucial. As Hallen J stated in Aubrey v Kain [2014] NSWSC 15 at [63]: "The word 'adequate' connotes something different from the word 'proper'. 'Adequate' is concerned with the quantum, whereas 'proper' prescribes the standard, of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 W.A. are 127, per Buss JA, at 145 [72], [77]." Hallen J set out extracts from authorities that have considered the difference in meaning of the two words at [63]-[70]. 121It will be sufficient to set out the following extract from the judgment of Dixon CJ and Williams J in McCosker v McCosker (1957) 97 CLR 566, at 571-572 in relation to how the court should apply the concept of "proper": "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." 122In Alexander v Jansson [2010] NSWCA 176, Brereton J (with whom Basten JA and Handley AJA agreed), said at [18]: 'Proper maintenance' is not limited to the bare sustenance of a claimant...but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility. 123The court must assess the provision made by the testator from the perspective of whether it is "wise and just". Testamentary power lies principally in the testator. The size of the estate available is an important consideration, because the testator is limited in his or her determination of what is wise and just by the extent of the property available for distribution, and accordingly a provision may be "proper" in the circumstances of a particular estate, when that would not be so if the testator had available more assets for distribution. The testator is also entitled, and required, to consider all of the competing claims upon his or her bounty and their relative urgency. 124As Hallen J noted in Aubrey v Kain at [50], in cases identified by his Honour, judges of this court have used the following expressions to describe the mental process involved in deciding whether a provision made by a testator is relevantly adequate and proper; being that the state of satisfaction "depends upon a multi-faceted evaluative judgment" (Basten JA); it involves "an intuitive assessment" (White J); and it is "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" (Stevenson J). 125In Butler v Morris [2012] NSWSC 748 at [106] Hallen J set out principles that are "useful to remember" that may be relevant where the applicant for a family provision order is an adult child. I respectfully agree with the observations that his Honour made. However, there are significant aspects of Mr Pang's circumstances that call for some special consideration, and which fall outside the ordinary considerations that Hallen J suggested are useful to remember. 126In the present case Mr Pang has no assets other than his entitlement to what remains of the $250,375 that he was given by the father, or was paid to him by Ms Susan Fong. He does not own his own home, and the amount of capital that he has is clearly not sufficient to enable him to buy his own home. He and his wife are reasonably secure in Housing Commission accommodation, but it is probable that that level of accommodation is relatively Spartan. Mr Pang and his wife are dependent upon pensions, and must live a very frugal life. The remaining amount of the $250,375 provides some level of protection against future vicissitudes, and, while it is retained, a basis for earning a small supplement to Mr Pang's income. Mr Pang is by no means destitute, but he is obliged to live substantially on the beneficence of the State. 127The most significant feature of this case is that Mr Pang worked for his father for many years, apparently in excess of 15 or so years, for minimal reward. He sacrificed his present and future prospects for the benefit of his father. It is not possible to gauge Mr Pang's contribution to the assets acquired by the father in any precise quantitative way, but it is reasonable to infer that Mr Pang made a valuable contribution to the process whereby the assets were acquired. 128Mr Pang's contribution entitled him to make a substantial call on the bounty of the father, and the moral duty that the father owed to make a proper provision for the maintenance and advancement in life of Mr Pang was in my judgment relatively exceptional. The useful principles collected by Hallen J in Butler v Morris do not comprehend the circumstances of the present case. That is no doubt because it is the common experience of modern Australian life that children do not work for their parents for a substantial part of their working life for next to nothing, and if they do work within the family, proper arrangements are made for their reward. 129I do not by this proposition suggest that Mr Pang is entitled to be rewarded for past services provided to the father; see Blore v Land [1960] HCA 73; (1960) 104 CLR 124 per Windeyer J at 137; and Raiola v Raiola [2014] NSWSC 967 per Black J at [69]. Rather I find that this is a relatively exceptional case where Mr Pang devoted a substantial part of his working life to his father for little reward; that provided substantial assistance to the father in building up his estate; it was a material cause of Mr Pang's present lack of financial resources and security; so that in the present circumstances Mr Pang has a strong case that the father has not made adequate provision for his maintenance and advancement in life. 130The evidence clearly shows that Ms Susan Fong is, in broad terms, equally entitled to the bounty of her father's estate as is Mr Pang. However, this is not a case where the question whether the provision made for Mr Pang's maintenance and advancement in life was proper must be governed in a limiting way by the need to ensure that proper provision is also made for Ms Susan Fong. If no family provision order is made in favour of Mr Pang, then Ms Susan Fong would have received from her father the $1,165,951.46 in the joint accounts (less the $50,000 she has paid to each of Mr Pang and the other residuary beneficiaries, and the estate expenses of $22,896.27); plus a total of $270,083.32 from the sale of 178 Smith Street, Summer Hill; plus Ms Susan Fong also owns a one fourth share in the Caroline Street property, which is worth $200,000. On the hypothesis that Ms Susan Fong is entitled to the whole of the money in the joint accounts, it would follow that the payments totalling $350,000 that she elected to make to the residuary beneficiaries under the father's will other than herself were gifts. There is scope for argument as to how the court should treat those payments, but the argument is not significant for the purposes of determining whether the provision made in favour of Mr Pang was proper. The simple fact is that, by and large, Mr Pang and Ms Susan Fong had comparable claims on the bounty of their father's estate, and the benefits received by Ms Susan Fong appear to be wholly disproportionate to the benefits received by Mr Pang, even if a considerable allowance is made in her favour as a result of the greater support that she gave her parents, than apparently did Mr Pang. 131Albeit that the evidence is scant, I have been assisted in forming the view that the provision made for Mr Pang was not proper by a doubt that the father actually intended to achieve the outcome that has been brought about by the terms of his will and the common law principle of survivorship concerning jointly owned property. The limited evidence that is available provides some support for a conclusion that the father made it a practice to place assets in the names of his children on the basis that they would deal with the assets at his direction. Ms Susan Fong was not a signatory on the joint accounts. The father made his will on 17 December 2003. As I have noted above, following the settlement of the sale of the Glebe Point Road property on 28 April 2003, a total of $427,450.62 was paid into a joint account in the name of the father and Ms Susan Fong. Following the sale of 178 Smith Street, Summer Hill, on 8 April 2003, a total of $330,083.32 was paid to the father. The evidence does not show whether this money was paid into a joint account, and if so when, although it is likely that the money did find its way into a joint account, as it is unlikely that the father spent the money, and at his death almost all of the money that he had accumulated was in the joint accounts. These transactions happened only shortly before the father made his will. In that will he solemnly left his residuary estate in equal shares to eight people. That was a pointless exercise, if the father understood that the effect of putting his money into the joint accounts in the names of himself and Ms Susan Fong was, as a matter of law, that when he died she would automatically become entitled to all of the money by survivorship. The evidence does not permit any positive finding as to what the state of understanding or intentions of the father were. There is no more than a basis for doubt about whether he actually intended to achieve the result that all of his residuary beneficiaries would get next to nothing, and Ms Susan Fong would effectively get everything. This consideration fortifies me in the conclusion that I have reached, but I would have reached the same conclusion in any event. 132I find that adequate provision for the proper maintenance and advancement in life of Mr Pang was not made by the will of the father.

What family provision order should be made in favour of the plaintiff? 133If the requirement in s 59(1)(c) is satisfied, then the Court is empowered by s 59(2) of the Act in terms that it "may 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." (Questions (7) - (11) posed by Kunc J in West v Mann concern this issue). It is clear that the effect of the inclusion of the word "may" is that the court has a true discretion as to whether any order should be made, and if so what order ought to be made: Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 20 at 212 per Mason CJ, Deane and McHugh JJ. 134Section 60(2) of the Act sets out a list of factors that the court "may" consider in determining whether to make a family provision order and the nature of any such order. The matters that are listed in s 60(2) are a helpful list of factors that may be taken into account, but the section makes plain that the court can have regard to any other matter that it considers relevant, and the factors are not necessarily determinative in any case: West v Mann at [12(10)]. 135In a general way, many of the matters listed in s 60(2) are material to Mr Pang's application: 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, ... (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. 136I have omitted the paragraphs contained in s 60(2) that do not appear to me, and were not submitted to be, significant to the present application. 137The reference in par (c) to the property of the father "that is, or could be, designated as notional estate of the deceased person" is clearly crucial in the present case, as the value of the estate is only $3000. 138Section 80(1) of the Act empowers the court to make a notional estate order designating property specified in the order as notional estate of the deceased person, if the court is satisfied that the deceased person entered into a relevant property transaction before his or her death and that the transaction is a transaction to which the section applies. As Ms Susan Fong did not provide any valuable consideration to her father in respect of the deposit by him of his funds into the joint accounts, the effect of s 76(1) and (2)(b) of the Act is that the half share in the joint accounts to which Ms Susan Fong became entitled by survivorship on the death of the father (because he did not sever the joint tenancy before his death) is an available subject for a notional estate order, as being a relevant property transaction. 139 The effect of s 77(3) of the Act is that, in this case, the relevant property transaction took effect at the time of the death of the father. Accordingly, the relevant property transaction occurred within the time period required by s 80(2) of the Act, so it is eligible for the making of a notional estate order. 140 Section 79 of the Act empowers the court to make a notional estate order in respect of the father's half interest in the joint accounts, notwithstanding that Ms Susan Fong distributed $350,000 of that money to herself and six other residuary beneficiaries under the father's will. I am satisfied, in the terms of s 83(1)(d) of the Act, that the relevant property transaction involved an omission by the father to exercise a right before his death, being to sever the joint tenancies, that could have been exercised by the father so as to result in a benefit to the estate of the father, being that half of the value of the funds in the joint accounts would have become solely beneficially the property of the father. Accordingly, s 83 of the Act does not preclude the court from making a notional estate order in this case. 141 I am required by s 87 of the Act to consider the importance of not interfering with reasonable expectations in relation to property, the substantial justice and merits involved in making or refusing to make a notional estate order, and any other matter that I consider to be relevant in the circumstances. The evidence shows that Ms Susan Fong has voluntarily accepted that half of the moneys in the joint accounts should be treated as notional property of the estate. All of the other recipients of the $50,000 distributions, except for Mr Pang, have provided evidence of their willingness to repay the money received to the estate, if the court should make an order that requires that repayment. There is no evidence that would suggest that the making of a notional estate order in relation to any part of the half of the moneys in the joint accounts would cause any injustice at all, let alone any substantial injustice. 142Section 88 of the Act provides: The Court must not make a notional estate order unless it 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. 143While, in the present case, the father did not leave "no estate", the estate of $3000 is negligible. The real question for the court arises under s 88(b), which effectively requires the court to determine whether a family provision order should be made in favour of Mr Pang, and if so what the substance of that order should be. The court may only make a notional estate order to make up a deficiency in the extent to which the family provision order can be met from the assets in the estate. The court may also make a notional estate order to cover the costs of the proceedings that may be ordered to be paid out of the notional estate pursuant to s 99 of the Act. 144The upper limit of the notional estate order that the court could make in this case is therefore the amount of $582,975.73. 145Paragraph (d) of s 60(2) is particularly significant in the present case. On the one hand evidence has been given of Mr Pang's financial resources, including his earning capacity, and his financial needs. The paragraph calls for attention also to be given to the financial resources and needs of the other beneficiaries of the deceased person's estate. As I have noted above, none of the other beneficiaries have provided any evidence as to their financial resources or needs. The absence of that evidence has the effect of removing a consideration that otherwise would have a tendency to depress the value of the family provision order that the court could consider making in favour of Mr Pang. It is not a consideration that has a positive effect of justifying a more ample family provision order. 146Paragraphs (f) and (h) of s 60(2) are of the most significance in the present case. Mr Pang suffers from significant physical disabilities, as I have outlined above. There is no evidence that any of the other beneficiaries suffer from any material physical, intellectual or mental disabilities. Furthermore, as I have also discussed above, the evidence justifies a conclusion that Mr Pang made a substantial contribution, by his long period of working for the father without proper remuneration, to the acquisition of the properties that now fall within the notional estate of the father. It is not possible to assess in quantitative terms the value of that contribution, but it is reasonable to conclude that it was substantial. 147As the issue is the provision that the court thinks ought to be made for the maintenance or advancement in life of Mr Pang, in my view Mr Pang has a proper claim for a substantial proportion of the value of the property acquired by the father during his lifetime. It must be remembered that Ms Susan Fong's evidence was that she and Mr Pang stopped working for their father after he retired. There is no evidence to suggest that the father substantially increased his assets by business activities in which he engaged during his retirement. 148The relative strength of Mr Pang's claim must be measured against the strength of the claims of any person with equal or comparable entitlement to Mr Pang, but the only person with an equal claim is Ms Susan Fong, and she will in any event enjoy considerably more than half of the property accumulated by the father that is available as between her and Mr Pang. There is no other person who has made any claim in relation to the estate of the father. 149In these circumstances I reject the defendants' submission that a proper consideration of the matters referred to in s 60(2) of the Act would justify a conclusion that Mr Pang ought to be left in the position where he is dependent upon public resources and whatever he can make of what is left of his $250,375. 150In Butler v Morris Hallen AsJ (as his Honour then was) collected the following authorities, concerning the relevance of the entitlement of an applicant for a family provision order to a pension to the determination of what, if any, provision ought to be made in favour of that person: "[109] In Taylor v Farrugia at [59], Brereton J said: The Court's attitude to the eligibility for means tested pension benefits of eligible persons and beneficiaries varies, depending on the circumstances of the case. Ordinarily, a testator makes a will and provides for those who have a claim on the testator without regard to the claimant's eligibility for a pension. However, in a small estate where there are competing claims, a testator, and this Court on an application under the Act, may take into account the eligibility of a claimant for a pension as a means of deciding how such limited benefits as are available from the estate should be shared between claimants, and how those benefits might be structured. But this qualification to the principle that the burden of support should be borne in the first instance by an estate rather than by social security arises mainly, if not exclusively in smaller estates [Parker v Public Trustee (1988) NSWSC, Young J, 31 May 1998; Whitmont v Lloyd (New South Wales Supreme Court, 31 July 1995, Bryson J, unreported); King v Foster (Court of Appeal, 7 December 1995, unreported); King v White [1992] 2 VR 417 at 424; Shah v Perpetual Trustee Company [1981] 7 Fam LR 97 100; Gunawardena v Kanagaratnam Sri Kantha [2007] NSWSC 151; Chan v Tsui [2005] NSWSC 82. [110] An earlier authority, with which I respectfully agree, is Thom v The Public Trustee (NSWSC, 2 April 1992, unreported), in which Master McLaughlin (as his Honour then was) said: It seems to me that it would be totally unrealistic for the Court to approach the moral obligation of the deceased to make provision for the applicant by disregarding the fact that for a period of 20 years before the deceased's death, the applicant was in receipt of a pension from the State, and the fact that, to the extent of that pension, the deceased was relieved of the necessity to support the applicant from his own funds. That being so, I do not see how, upon the death of the deceased, the moral obligation upon the deceased to make provision for the applicant by will, could be approached without recognising the fact that the applicant would be entitled to continue to receive such a pension. [111] The availability of a disability support pension provided to an applicant ought not be regarded as a substitute for the obligation on the deceased to make adequate provision for him or her. Yet, it is not necessary to make an order that would operate primarily in relief of the taxpayer." 151The fact that Mr Pang and his wife are entitled to pensions from the State, and presently enjoy a public housing entitlement, are relevant considerations. In cases where the deceased's estate is relatively small, in the sense that it cannot accommodate the proper claims of all persons who have a call on the bounty of the deceased, the entitlement of an applicant for a family provision order to public benefits may become very significant, and the court may have to look carefully at the consequences of the making of particular family provision orders on the continuing entitlement of the applicant to enjoy the benefit of public resources. However, the present is not a case where Mr Pang's entitlement to a pension and public housing is determinative. His present lifestyle is confined by his need to rely upon those public benefits, because he has no choice. 152In the present case the determinative issue is that Mr Pang has a strong claim in relation to what remains of the notional estate of the father, and there are no competing claims that would have the natural effect of depressing the share in the notional estate that could properly be awarded to Mr Pang. 153I find in all of these circumstances that Mr Pang is entitled to a family provision order that has the effect that he will receive the benefit of all of the $582,975.73 that remains available to be the subject of appropriate notional estate orders, after allowing for all proper and necessary payments out of that sum. 154I bear in mind that the evidence does not satisfy the optimal requirement, which I have considered above, that I will be in a position to forecast with some degree of confidence that Mr Pang will be able to achieve, as a result of the family provision order being made, the outcome for which he has made his application in the first place. However, I am satisfied that the proper application of Ch 3 of the Act justifies the making of the proposed order; that is what Mr Pang seeks and it is a matter for him and his legal advisers as to how he can achieve the outcome to which he aspires with the funds that will be available; and finally, there are no other competing claims which stand in the way of Mr Pang having the benefit of the proposed order. 155I propose to invite Mr Pang's legal advisers to prepare and serve on the defendants, and deliver to my associate, draft short minutes of order to give effect to these reasons for judgment. It is likely that some discussion will be required between the legal advisers of Mr Pang and the defendants as to the detail. 156The outcome of these proceedings in my view suggests that the just way to provide for the estate's expenses, given that they exceeded the $3000 value of the estate, is that the cost of the balance should be met equally by Mr Pang and Ms Susan Fong. That will have the result that the orders to be made by the court should provide for half of all of the estate's expenses to be paid out of the notional estate. 157Given the payments that have been made to date out of the $582,975.73 that was originally available to be made the subject of notional estate orders, it will be necessary to ensure that appropriate orders are drafted to conform to the requirements of the Act. 158It will be necessary to have regard to the provisions of s 78 of the Act, which require that the court may only make an order designating property as notional estate for the purposes of a family provision order, or for the purposes of an order that the whole or part of the costs of proceedings in relation to the estate or nominal estate of the deceased person be paid from the notional estate of the deceased person. I will return to the issue of costs below. 159The family provision order that is to be made must comply with the requirements of s 65 of the Act. 160During the course of the hearing I expressed to counsel for Mr Pang some concern about the fact that Mr Pang very quickly spent most of the $50,000 interim distribution that he received. I did not mean to suggest any criticism of Mr Pang, as I understand the compassionate reasons for which most of the money was expended. However, I do have a concern to ensure that the fruits of the family provision order that the court proposes to make will be applied in the acquisition of a home for Mr Pang and his wife, and to the extent possible for the provision of a fund to provide for contingencies. Counsel, albeit without the benefit of instructions, expressed an open mind about the advisability of consequential orders being made under s 66 of the Act, in relation to the creation of an appropriate trust. This remains an open issue, but it will need to be addressed by Mr Pang's legal advisers. 161It will be necessary to include an order under s 91 of the Act. 162The remaining issue concerns the costs of the proceedings. 163The defendants should bear their own costs, and pay Mr Pang's costs on the ordinary basis, of the notice of motion in which they sought leave to adduce further evidence. The order that permitted the defendants to tender evidence of their actual legal costs was an indulgence. They failed on the balance of the notice of motion. 164As Mr Pang will receive, by means of the proposed family provision order, all of the funds that remain available out of the amount that was originally capable of being subject to a notional estate order, it probably matters not whether his costs of the proceedings are ordered to be paid out of the notional estate on the ordinary or the indemnity basis. One way or another Mr Pang will have to bear all of those costs. 165The issue of how the defendants' costs should be dealt with remains an open matter. Having given an estimate on 22 May 2014 that the defendants' costs would be $35,000, they proved by an affidavit dated 21 July 2014 that the costs to the end of the hearing were $74,172.42. Neither the court nor Mr Pang was favoured with an explanation. Counsel for Mr Pang had no opportunity specifically to address the issue of what order should be made in favour of the defendants out of the notional estate concerning their costs. That remains an open issue, which I invite Mr Pang to address. 166Counsel for the defendants observed in submissions that "ordinarily costs come out of the estate on an indemnity basis". This observation concerned the defendants' costs. I agree, provided appropriate emphasis is given to the word "ordinarily". The discretion given to the court by s 99 of the Act to order that the costs of the proceedings be paid out of the estate or notional estate applies to the defendants' costs as much as it does to the plaintiff's. It is true that it is generally accepted that the executor has an obligation to uphold the will. However, there will be many cases where the executor is a beneficiary with an interest in defeating the plaintiff's claim. Provided the executor acts properly, that should not matter. 167In Szlazko v Travini [2004] NSWSC 610 at [10], [11] Young CJ in Eq (as his Honour then was) said: [10] It is certainly true that there are many decisions which say that the executor's duty is as I have set out [being that an executor's duty in what is now a Succession Act application is to put before the Court all the necessary material that can reasonably be found and to uphold the will]. They are summarised in Professor Dickey's book Family Provision After Death (LBC, 1992) p 183 and the principal decisions are Vasiljev v Public Trustee [1974] 2 NSWLR 497; Dijkhuijs v Barclay (1988) 12 Fam LR 367 and Warren v McKnight (1996) 40 NSWLR 390. [11] However, it must be remembered that the utterances of the learned Judges in those cases were directed to a particular point. Whilst the law is that the executor is expected to put before the Court all material necessary for the Court to make its decision, none of the Judges ever thought when they were saying this that any executor would take into his head that he must defend Family Provision Act proceedings as if they were a jury trial in a fraud case. Furthermore, as is plain from judgments such as Jackson v Riley Cohen J, 24 February 1989, unreported and Propert v O 'Connor Master Macready, 29 July 1994, unreported, there is a duty upon practitioners, and this attaches to defendants as well, to compromise claims in relation to small estates and to be careful when presenting evidence not to allow the costs of the defence to exceed sensible proportions. Accordingly, although the executor has the duty in the authorities, he or she must be careful to have a due sense of proportionality. These days, executors in a small estate would be expected not to look under every bushel for evidence, but to put forward before the Court the essential material and to seek to compromise, if at all possible, in a way that would save both the plaintiff and the other beneficiaries' costs. 168These are, with respect, salutary observations on the part of his Honour. The fact that the remaining beneficiaries, as well as a successful applicant for a family provision order, will usually bear some proportion of the legal costs that are ordered to be paid out of the estate can be expected to act as a brake upon the development of an expectation that defendants can act with impunity in respect of the issue of the costs of the proceedings. However, it is fundamentally important that defendants consistently bear in mind that they have a duty not to incur costs when the subject matter of the costs does not confer a proportionate benefit for the purposes of the outcome of the dispute. 169In the present case the most thoroughly developed issue in the defendants' evidence concerned the circumstances in which Mr Pang placed his first wife's signature on the mortgage in 1990 without her knowledge or authority. Perhaps the prejudicial effect of the evidence was perceived to be irresistible. There was no evidence that the father formed an intention to exclude Mr Pang from the benefit of his estate, because of Mr Pang's conduct. In fact there was some evidence that Mr Pang's parents continued to act in a kindly way towards him notwithstanding his conduct. Section 102 of the Evidence Act has the effect that credibility evidence about a witness is not admissible in chief. The issue was mentioned briefly in the defendants' written opening, which contained a recitation of the bare facts of the incident, but nothing at all was made of it in the defendants' oral or written closing submissions. Why then was all of this evidence produced in fine detail in the affidavits? 170The plaintiff is directed (after discussion with the defendants) to submit to the court draft short minutes of order to give effect to these reasons for judgment. 171I will give directions for the completion of the issues that remain outstanding.

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