Draper v Nixon [1999] NSWSC 629 | Case summary

1 MASTER: These are proceedings under the Family Provision Act 1982. 2 The proceedings were instituted by summons filed by the plaintiff Jennifer Mary Draper on 1 May 1997. That summons did not name a defendant. The relief claimed in that summons was as follows: 1. An order making provision out of the estate of the late Allan Francis Draper for her maintenance and advancement in life pursuant to section 7 of the Family Provision Act 1982. 2. Further orders. 3. Costs. 3 The plaintiff is the eldest of the five children of the late Allan Francis Draper (to whom I shall refer as "the deceased"). 4 The deceased died (by throwing himself under a locomotive) on 2 November 1995. At the time of his death the deceased was a widower, aged 74. The deceased left a will dated 6 December 1993, probate whereof was on 4 July 1997 granted to Susan Long and Christine Dianne Nixon, the executors named in such will, who are the defendants to the present proceedings. 5 I have already observed that the summons did not name any defendants. Presumably the reason was that at the date of the filing of the summons, 1 May 1997, probate had not yet been granted to the executors named in the will of the deceased. However, the Court on 13 October 1997 made an order (by consent of the plaintiff and the present defendants) that Susan Long and Christine Dianne Nixon be joined as defendants to these proceedings. 6 By that time the plaintiff had dispensed with the services of the solicitor who had acted for her at the institution of the proceedings; that solicitor filed a notice of ceasing to act on 5 September 1997. The plaintiff on 25 September 1997 filed a notice of intention to act without a solicitor, pursuant to Part 66 Rule 6(1)(a) of the Supreme Court Rules. The plaintiff thereafter conducted the proceedings in person until shortly before the hearing commenced on 28 October 1998, when she retained Counsel to appear for her. Counsel so retained was directly instructed by the plaintiff, without the intervention of a solicitor. 7 However, on 10 November 1997, whilst she was conducting the proceedings in person, the plaintiff filed in the Registry an amended summons. Prayers 2 and 3 in that document are identical to the equivalent prayers in the summons. However, by prayer 1 the plaintiff claims: An order making proper provision from the estate and notional estate of the late Allan Francis Draper for her maintenance and advancement in life pursuant to section 7 of the Family Provision Act 1982. 8 It will be appreciated that there is in that foregoing prayer a significant alteration from prayer 1 in the summons filed on 1 May 1997, in that the amended summons seeks provision from not only the estate but also the notional estate of the deceased. I will return, in due course, to the significance of that alteration, and also to the effect of the fact that the amended summons was filed more than eighteen months after the death of the deceased (that limitation period having expired on 2 May 1997 --- the summons itself having been filed on the penultimate day of the limitation period). 9 The amended summons bears the endorsement "Filed pursuant to leave granted on 13/10/97". It will be recalled that on 13 October 1997 the Court by consent made orders joining Susan Long and Christine Dianne Nixon as defendants to the proceedings. On that date also the Court by consent made orders for the further progress of the proceedings (providing a timetable in relation to the filing of affidavits, the service of the prescribed notice pursuant to Part 77 Rule 63 (1), the service of the prescribed notice in accordance with Part 77 Rule 63(2)). No order, by consent or otherwise, was made by the Court, either on 13 October 1997 or on any other date, granting to the plaintiff leave to file an amended summons. I shall, in due course, return to the significance of the filing of the amended summons, and also to the assertion made by the misleading, and false, endorsement upon it that leave to do so had been granted on 13 October 1997. 10 Subsequently, on 20 October 1998, when the matter was listed before me in order to ascertain its state of readiness (the hearing having been fixed to commence on Wednesday, 28 October 1998), the plaintiff filed in Court a further amended summons, dated 20 October 1998, seeking not only an order for provision of the nature claimed in prayer 1 in the amended summons, but also declarations pursuant to section 22 of the Family Provision Act, that the deceased during his lifetime entered into a number of prescribed transactions (referred to, at least by general description, in prayers 1, 2 and 3 in the further amended summons), and also an order, pursuant to "section 23 or section 24" of the Family Provision Act, designating as notional estate various pieces of real property which had been registered in the names of the deceased and/or the defendants and (in the case of one piece of real estate, in the names of "Susan Geraldine Long and Graeme John Long". (I would here interpolate that Mrs Long does not use the given name "Geraldine".)) 11 By his will, which was made in circumstances to which I shall shortly refer, the deceased left the entirety of his estate to the defendants. He made no provision for his other three children, being Jennifer (the plaintiff), Phillip, and Penelope. Clause 8 of the will is in the following terms: I SPECIFICALLY MAKE NO BEQUEST in favour of my daughters JENNIFER MARY DRAPER , PENELOPE JOCELYN PHILLIPS and my son PHILLIP JOHN DRAPER . 12 The inventory of property discloses that the deceased at the time of his death held an account with the State Bank in which there was an amount of $12,215, and that he held, as joint tenant with Susan Long and Christine Dianne Nixon, real property situate at and known as 14/510 Pacific Highway, Killara (to which an estimated value of $215,000 was ascribed). The liabilities of the estate consisted of funeral expenses ($2,518) and legal costs in relation to the administration of the estate ($694). 13 It will be appreciated that the entirety of the estate held by the deceased at the time of his death, consisting of the amount to his credit in the account with the State Bank, will be exhausted in the payment of the liabilities and in the payment of the costs of the defendants of the present proceedings (to which costs they, as executors, will, irrespective of the outcome of the proceedings, be entitled). 14 Unless she can establish an entitlement to resort to notional estate of the deceased, there is no fund from which any order for provision which ultimately might be made in favour of the plaintiff can be paid. It is obviously for that reason that the plaintiff filed the amended summons, claiming relief against not only the estate but also the notional estate of the deceased. 15 However, before it becomes necessary for the Court to proceed to a consideration of any question of whether the deceased might have entered into a prescribed transaction which would give rise to the possibility of property being designated as notional estate of the deceased, it is necessary for the plaintiff to establish an entitlement to an order for provision. 16 The plaintiff, as a daughter of the deceased, is an eligible person within paragraph (b) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such, she has the standing to bring the present proceedings. Each of the defendants, and each of the other children of the deceased, is also an eligible person within the same paragraph of the definition of that phrase. 17 The plaintiff was born on 24 December 1946, and is presently aged 52. For most of her life (subject only to interruptions whilst she was teaching away from Sydney and whilst she was travelling overseas) the plaintiff resided with both her parents and then (after the death of her mother, Joyce Draper, on 15 May 1992) with her father, the deceased. Whilst living at home the plaintiff paid board to her mother. The family home throughout the latter part of the lifetime of her parents was 8 Hermitage Road, West Ryde, a property which at least after the death of her mother was owned by the deceased. 18 The plaintiff obtained her Leaving Certificate in 1963. According to her evidence she was employed in performing office work from 1964 until 1975 in Sydney and overseas. She was living away from home between 1970 and 1975, but, according to her, returned to the family home at West Ryde every weekend. 19 The plaintiff said that at the end of 1975 she returned to live permanently in the family home, whereupon she resumed paying board to her parents (which she asserted she had done from 1964 until she moved away from the family home). 20 The plaintiff said that she enrolled for, and passed, the Higher School Certificate in 1975, and that in 1980 she completed a "Bachelor of Arts (Honours) Degree with Diploma of Education". She said that she lived on her savings during that period. 21 The plaintiff was in employment as a teacher at Bowral in 1983. It was her practice to return to the family home each weekend. According to the plaintiff, she returned permanently to the family home in 1983 (apparently at the end of that year), on account of her mother's deteriorating health, and at the end of 1986 (she having taught at Strathfield in the intervening period) the plaintiff gave up work permanently, in order to assume the role of principal carer to her mother. She said that after her mother's death on 15 May 1992 (and especially after his motor accident in 1993) the plaintiff became the principal carer to her father. 22 According to the plaintiff, in 1990 she "commenced preliminary research towards a Doctorate". She said that that research was abandoned in 1991, suggesting that the reason for the abandonment was her mother's deteriorating health. 23 According to the plaintiff, after the death of her mother the deceased frequently said that it was important to him to honour a promise which he had made to her concerning the transfer to the plaintiff of certain moneys belonging to her mother. Accordingly, the plaintiff at the end of August 1992 accompanied her father to various financial institutions where money was held, and the following amounts were transferred into the name of the plaintiff: Hatmax Finance Limited - $20,000 Barclays Bank - $12,000 AGC - $7,000 St George Bank - $3,000 State Bank - $12,000 24 It was the evidence of the plaintiff that in October 1993 --- that is, only two months after the transfer of the foregoing amounts to her --- the deceased requested from the plaintiff the sum of $20,000 towards the replacement of his motor vehicle which had been damaged beyond repair in the preceding month. Accordingly, she said that she withdrew from Hatmax Finance Limited two amounts of money, which were then deposited by the deceased in his account with the State Bank at West Ryde, being $10,140.50 on 29 October 1993 and $9,900 on 2 November 1993. The plaintiff said that after she gave this money to her father he neither expended it on a new motor vehicle nor returned it to the plaintiff. 25 There has been placed in evidence (as annexure D to the affidavit of the plaintiff sworn 22 October 1998) a document described as "Codicil to my Last Will and Testament" signed by the plaintiff's mother, the late Joyce Draper, apparently before two witness whose signatures appear thereon, and dated 25 April 1984. The evidence is silent as to whether that document (or, indeed, any testamentary instrument of the plaintiff's mother) has ever been admitted to probate. However, the document is in the following terms, I give to my daughter Jennifer Mary Draper all money invested in Australian Guarantee Corporation. Details as follows: $15,000 holder No. 910885000 Certificate No. 18346414 $4,000 holder No. 910885000 Certificate No. 18243252 and also in St George Building Society Ltd account No. 051 147 601 also account No. 183 536 587. 26 It would appear that the transfer to the plaintiff of the various amounts of money in August 1992 was effected by the deceased consonant with the terms of the foregoing document (although it will be recognised that the funds referred to in that document are not identical with the various funds which the plaintiff says were transferred to her by her father at the end of August 1992). 27 On 4 September 1993, the deceased suffered a motor vehicle accident, in which he sustained fractured bones, lacerations and other physical injuries. According to the evidence of the plaintiff, after that accident the conduct of the deceased (with whom the plaintiff had previously enjoyed a good and affectionate relationship) became increasingly eccentric, not to say bizarre. 28 Eventually, on 16 November 1993, the plaintiff, her brother Phillip Draper (who at that time was residing at 10 Hermitage Road, West Ryde, next door to the deceased) and one of their sisters, Penelope Phillips, arranged for a psychiatrist, Dr Ruth Foster, in the company of a psychiatric nurse, to visit the deceased, for the purpose of psychiatric assessment. 29 It was this arrangement, the subsequent visit to the home at West Ryde by Dr Foster and the psychiatric nurse, the signing of a Schedule 2 of the Mental Health Act 1990 by Dr Foster, and the consequential removal of the deceased from his home to the Macquarie Hospital (formerly the Ryde Psychiatric Hospital), which ultimately gave rise to the present proceedings. 30 The deceased spent only some hours at the psychiatric hospital, before being allowed to return home. The purpose, as the plaintiff understood, of the deceased being taken to the psychiatric hospital, was to enable a psychiatric assessment there to be conducted. Apparently, however, the medical authorities at the psychiatric hospital decided several hours after the arrival of the deceased that there were no grounds upon which they could detain him there against his will. He was discharged into the care of one of his other daughters, Susan Long (one of the present defendants), who had offered to take him to her home. Despite the terms of that offer, Mrs Long took the deceased firstly to his own residence at West Ryde, where there was confrontation with the plaintiff. 31 During the course of that confrontation the deceased ordered the plaintiff to leave his home, expressing an intention that otherwise he would kill her. The plaintiff did leave the family home, and had no further contact with the deceased from that day, 16 November 1993 until his death on 2 November 1995. 32 The result of the forcible removal of the deceased from his home to the psychiatric hospital was that on 6 December 1993 he made a fresh will, being the will to which I have already referred, which was admitted to probate on 4 July 1997. 33 Whilst the deceased was living with Mrs Long he sold the West Ryde house, in March 1994. From the proceeds of that sale he purchased, as joint tenant with his daughters Susan Long and Christine Nixon, a home unit at Killara for $220,000. That is the home unit referred to in the inventory of property. In consequence, that home unit passed by survivorship to Mrs Long and Mrs Nixon upon the death of the deceased. The home unit was subsequently sold in May 1996, and the net proceeds of sale, in an amount slightly in excess of $210,000, were divided equally between Mrs Long and Mrs Nixon. 34 An enormous quantity of affidavit evidence was filed on behalf of the plaintiff. That evidence comprised 28 affidavits (running to a total of 168 pages), and included 15 separate affidavits sworn by the plaintiff herself (extending over 107 pages). Much of that evidence was totally irrelevant. (For completeness it should also be noted that twelve affidavits were filed on behalf of the defendants.) In relation to this superabundance of evidence, it is appropriate that I should set forth the following salutary views expressed in the High Court of Australia in Blore v Lang (1960) 104 CLR 124 at 137 by Windeyer J, in considering the statutory predecessor of the Family Provision Act (the Testator's Family Maintenance and Guardianship of Infants Act, 1916), The jurisdiction under the Testator's Family Maintenance Act is to provide for deserving persons according to their requirements, not to reward past services. This is sometimes overlooked and evidence concerning the present and probable future requirements of the applicant is subordinated to or submerged in evidence of past services to the testator. Allegations and denials concerning episodes in the past are then likely to become emphasised at the expense of evidence directed to the central issues in the case. 35 The foregoing comments are extremely apposite to the way in which the instant case was prepared and presented by the plaintiff. Further, it cannot be emphasised too strongly that it is for an applicant who claims an order for provision for her maintenance and advancement in life, to place before the Court as fully and as frankly as possible all available information concerning her financial and material circumstances. This the plaintiff in the instant case has signally failed to do. From the vast plethora of evidentiary material filed on her behalf, it is very difficult to extract relevant information concerning her present financial and material circumstances. 36 The affidavit evidence in relation to the needs of the plaintiff which (in consequence of comments made by me when the matter was listed before me on 20 October 1998, in the week preceding the commencement of the trial of the proceedings) was eventually filed, consisted essentially of what was (in my view, accurately) described by Counsel for the defendants as being a "wish list". 37 It was asserted by the plaintiff that she had academic qualifications as a teacher. She taught for some relatively short period, from 1983 to 1986. There did not emerge with any clarity from the evidence the reason why the plaintiff is not presently, and, apparently for at least the period since she departed the residence of the deceased on 16 November 1993 (and probably for the period since 1986), has not been, in remunerative employment. It would appear that the plaintiff is, and for some time has been, in receipt of some form of regular payments or benefits from the Department of Social Security. However, the nature of those payments has not been disclosed to the Court, nor the grounds and circumstances in which the plaintiff became entitled to receive those payments or in which she has continued to receive those payments. 38 On 8 September 1998 the plaintiff underwent investigative surgery, at which is was confirmed that she had a malignant tumour of the right ovary. In his report dated 6 October 1998 (annexure A to the affidavit of the plaintiff of 26 October 1998, such affidavit being marked A for identification), Dr John Murray, gynaecologist, stated that "the prognosis must be guarded". 39 It was asserted by the plaintiff that she had academic qualifications, being the degrees of Bachelor of Arts and Master of Arts. But precise details of those qualifications were not set forth in her affidavit evidence, and there seemed to be some uncertainty in the plaintiff's responses when, during the course of her cross-examination, she was asked questions concerning those degrees. Further, the plaintiff's evidence in relation to her intention of enrolling for, and ultimately achieving, a doctorate (presumably the degree of Doctor of Philosophy) at Macquarie University was not entirely clear. She did not see fit to obtain from Macquarie University a copy of her academic record, which would have placed beyond doubt her academic achievements from that institution. 40 At the commencement of her evidence the plaintiff declined to state orally her residential address, saying, "It is unsafe to disclose my residential address; therefore my sister's address appears on all of the documentation". However, the plaintiff wrote her address on a piece of paper, which then became part of the Court file. 41 In her affidavit of 10 November 1997 the plaintiff said (paragraph 36), Being reduced to live as a social security recipient and having no car,…I do not now have and never will have any security without a home. At present I am obliged to live in the dark and cold backyard garage of a migrant family who speak very poor English and where there is no privacy. My assets comprise household effects and furniture of no commercial value, such as a 30 year old black and white television set which works only occasionally, a record player, jug and iron of the same age, but no ironing board, bookcases from timber I purchased many years ago which Dad and I made together. 42 In the same paragraph the plaintiff also listed her income which included 7.3 percent quarterly interest on a deposit with Hatmax Finance Limited, being $109.50. Her social security payments were at that time $189.15 a week. The plaintiff listed her outgoings (including rent of $140 a week), which totalled about $216 a week. 43 The plaintiff's affidavit of 22 October 1998 (containing 47 paragraphs, extending over 12 pages, to which were annexed an additional 10 pages of annexures) purported to set forth the plaintiff's then current material and financial circumstances. That affidavit also purported to contain what is described therein as "[a] detailed and reasoned list of needs and wants" (which, as I have already stated, was described as a "wish list"). 44 According to that affidavit (paragraph 5) the plaintiff was still occupying a backyard garage owned by a migrant family, for which she was still paying rent of $140 a week. She said that that amount constituted more than 70 percent of her "social security payment which includes rent assistance". That is the first reference made by the plaintiff to the fact that she is in receipt of rent assistance. The plaintiff further said in that paragraph that she had no security of tenure in respect to her accommodation. 45 She expressed a need for new spectacles and dental work. 46 The plaintiff in that affidavit asserted that her "efforts to secure paid employment to date have been retarded in part by a need for basic necessities such as:", then setting forth a list of fourteen categories. Those categories included a computer and a printer (about $4,000), a motor car (about $14,000 plus $3,000 a year), a renewal of basic wardrobe items (about $2,000). 47 In addition (in paragraph 20), the plaintiff claimed renewal of household items, listing 23 separate items, the total of prices ascribed to a number of those items exceeding $4,000, but some of the items not having a price ascribed to them. The plaintiff then set forth under the heading "Gardening Needs" a list of some 52 items (including, for example, "bonsaihouse/glasshouse", for the purpose of enabling her "to resume my lifelong gardening involvement"). 48 In her affidavit of 22 October 1998 the plaintiff brought up to date details of her income. She said that there had in the preceding month (that is, September 1998) been an increase in her "Social Security payment" to $199.30 a week; that quarterly interest on the $6,000 investment with Hatmax at 7.3 percent remained at $109.50; and that the monthly interest on the $7,000 investment with AGC at 7.5% remained at $43.75. Upon my calculations, the plaintiff's weekly income from those sources would be about $219. 49 The hearing of this matter was originally estimated to occupy two days. For that reason it was listed to be heard during the Family Provision Running List in October 1998, with the trial fixed to commence on Wednesday, 28 October 1998. The hearing occupied that day (the totality of which was spent in entertaining objections to the various affidavits which had been filed on behalf of the respective parties), and the next two days, 29 and 30 October. Since a conclusion of the case was still distant when the hearing on that lastmentioned date was completed, I considered it prudent (in the light of the estimate given by Counsel as to the period still remaining for the hearing) to reserve three further days for that hearing. Accordingly, I adjourned the matter, part-heard, to Tuesday, 9 February 1999, reserving also 10 and 11 February. On account of that protracted adjournment, and the statement made by Mr Amor-Smith of Counsel, for the plaintiff, in that regard, I had it noted that Mr Amor-Smith would be requiring to confer in the interim with his client, who was then currently under cross-examination. 50 The evidence concluded and the addresses of Counsel commenced at 2:40pm on Thursday, 11 February 1999, that being the fifth day of the hearing. When the addresses of Counsel commenced, Mr Amor-Smith said that there were a number of matters upon which he was desirous of consulting with his client and identifying passages in the transcript before making submissions to the Court. He therefore requested that he be allowed to furnish written submissions. In consequence, the last hour or so of the trial was occupied by the submissions of Mr Willmott of Counsel, for the defendants. 51 I acceded to the request of Mr Amor-Smith, and made the following orders: 1. Direct that the plaintiff lodge written submissions on or before 25 February 1999, and that the defendants lodge written submissions within 14 days after service upon them of the plaintiff's submissions. 2. Judgment reserved. 52 I also noted that the parties requested that I should not make any order for costs when delivering my reserved judgment, and that, in the light of my decision, I should then hear Counsel concerning costs. 53 Before the foregoing date for the lodgment of written submissions by the plaintiff a letter dated 18 February 1999 from Mr Amor-Smith, addressed to my Associate, arrived at my chambers on 19 February 1999. 54 That letter contained the following: Please be advised that on 16 February 1999 I received a communication from Ms Draper dated 14 February 1999, wherein Ms Draper said: "On Thursday afternoon 11 February, I took full responsibility for writing the document for which Mr [ sic , Master] J. K. McLaughlin asked in the Supreme Court on Thursday, 11 February 1999. I am handling the conclusion of this matter by myself. J.M. Draper." In the circumstances would you please advise the Master that I am no longer briefed in relation to the written submissions referable to this matter. 55 Subsequently, the plaintiff communicated to my Associate a request that she be allowed to lodge her written submissions beyond the limit of 25 February 1999, which had been provided in the direction in that regard made by me on 11 February 1999. A document purporting to constitute those written submissions headed "Summation" and bearing the date 4 March 1999 was delivered to my chambers on 5 March 1999 under cover of a letter from the plaintiff bearing that latter date. Subsequently written submissions on behalf of the defendants were lodged at my chambers on 18 March 1999. 56 The plaintiff, through her Counsel, had been granted an indulgence in regard to presenting submissions to the Court. In the hearing of a case such as the present, Counsel for the plaintiff would normally be required, at the conclusion of the evidence, to place before the Court his submissions is oral form. Since Mr Amor-Smith had come into the matter only a little over a week before the commencement of the hearing, I granted to him the indulgence which he sought, to allow him to consult with his client and to check various references in the transcript before presenting his submissions to the Court, and then to present those submissions in written form. 57 The plaintiff has now used the opportunity afforded by the indulgence given to her Counsel, firstly, to terminate the instructions of that Counsel, and secondly to use the purported written submissions as a vehicle by which to attempt to insinuate into the evidence a vast quantity of material which could have been --- but was not --- tendered as evidence at the hearing. Much of that material is totally inadmissible. If it had been tendered at the hearing it would have been rejected. 58 The conduct of the plaintiff in this regard is highly improper and amounts to a deliberate attempt to abuse the processes of the Court. (The plaintiff's conduct in this regard is consistent with her misleading and false endorsement upon the amended summons filed on 10 November 1997, which would not have been accepted by the Registry unless such leave had been granted or the consent of the defendants obtained.) 59 Apart from what actually constitutes submissions concerning either the evidence which was admitted at the trial or the legal principles to be applied to that evidence, I propose totally to disregard the entirety of the material lodged by the plaintiff in purported compliance with the opportunity given to her Counsel to lodge written submissions. However, all documents and material lodged by the plaintiff in purported compliance with the opportunity given to her Counsel to lodge written submissions will be retained in the Court file. 60 Not only did the plaintiff use this indulgence of written submissions for the improper purpose of attempting in a devious and underhand fashion to place before the Court totally inadmissible material, but, further, the plaintiff used this indulgence as a vehicle by which to make insulting and totally unjustified and baseless allegations against the conduct of the case by Counsel for the defendants, and by various solicitors. 61 The insulting allegations made by the plaintiff against Counsel for the defendants are consistent with the attitude and manner adopted by the plaintiff towards Mr Willmott during her cross-examination (and are also consistent with the form and style of her affidavits responding to affidavits filed on behalf of the defendants). 62 In his written submissions on behalf of the defendants Mr Willmott with admirable restraint said (at page 37, paragraph 5.3) that "comments and assertions made by the plaintiff in submissions which are no more than gratuitous insults are ignored". However, I consider that the Court has a responsibility to protect from such insults and allegations made by a party acting in person members of the legal profession who are doing no more than carrying out their duty to their clients and to the Court. Indeed, in the case of the solicitors who are the subject of the written abuse by the plaintiff, those practitioners have no opportunity of answering the allegations made against them --- indeed, they are probably totally unaware of such allegations having been made. 63 Had a member of the legal profession acted in the way in which the plaintiff has done in relation to the content and form of her purported written submissions, such conduct would have attracted the attention of that practitioner's professional association. 64 Even after making all possible allowances for the fact that, for large parts of the proceedings, the plaintiff was acting for herself, nevertheless, I consider her conduct in making such allegations to be highly improper. 65 Not even Mr Amor-Smith emerged unscathed from these criticisms made by the plaintiff. I have already recorded that at the conclusion of the hearing on 11 February 1999 the parties through their respective Counsel requested that I should not make any order for costs when delivering my reserved judgment, and that, in the light of my decision, I should hear Counsel concerning costs. Nevertheless, in her Summation (page 22) the plaintiff said Although the barristers, J. Amor-Smith and M. Willmott, may have asked to be heard on costs after the Court has made a final decision, J. Amor-Smith did not have instructions from me at any time to make such a request or to consent to deferring this matter. In view of the failure of both barristers to conclude these proceedings on 11th February, requiring this further documentation to be prepared following the Hearing, both barristers are extremely selfish in seeking to prolong the proceedings even further. 66 The request that costs should be argued in the light of my final decision appeared to me a reasonable one, and one which could possibly be of benefit to the plaintiff. If, however, she does not wish to have that opportunity, then such opportunity will not be granted to her. The reason why the present proceedings did not conclude on 11 February (indeed why they did not conclude after only two days of hearing, in accordance with the original estimate) can be attributed entirely and exclusively to the conduct of the plaintiff herself, both in deluging the Court with a torrent of, almost totally irrelevant and inadmissible, affidavit material, and in failing to place before the Court evidence addressing the essential issues in this case, being primarily the need of the plaintiff, and then the various questions in relation to prescribed transactions and notional estate. I regard the criticisms directed by the plaintiff against Counsel for the defendants, who carried out a difficult task with the utmost propriety, as being totally without foundation. 67 In exercising the power vested in it by section 7 of the Family Provision Act the Court is required to carry out a two-stage process. In Singer v Berghouse (1994) 181 CLR 201 Mason CJ, Deane and McHugh JJ said, at 208, The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased's estate for the applicant. The first stage has been described as the "jurisdictional question" (see, for example, White v Barron (1980) 144 CLR 431 at 456; Bondelmonte v Blanckensee [1989] WAR 305 at 307; Golosky v Golosky Court of Appeal, 5 October 1993, unreported). That description means no more than that the court's power to make an order in favour of an applicant under section 7 is conditioned upon the court being satisfied of the state of affairs predicated in section 9(2)(a). 68 Section 9(2) of the Act provides, relevantly, The Court shall not make an order under section 7 or 8 in favour of an eligible person out of the estate or notional estate of a deceased person unless it is satisfied that --- (a) the provision (if any) made in favour of the eligible person by the deceased person either during his lifetime or out of his estate; is, at the time the Court is determining whether or not to make such an order, inadequate for the proper maintenance, education and advancement in life of the eligible person. 69 The plaintiff lived at her parent's home continually from 1986, when she gave up teaching, until about 1994. She had also lived at home with them for earlier periods during her adulthood, except when she was overseas or was teaching at Bowral. During the years from 1986 until 1994 it would appear that she paid no board and made no other financial contribution towards the expenses of the household. Such accommodation for a period of eight years was a considerable benefit to the plaintiff. 70 Although the plaintiff said that the reason for her giving up work was to enable her to look after her mother, the Court should approach with caution that evidence of the plaintiff. At that time, in 1986, Mrs Joyce Draper had not been diagnosed as suffering from any illness, no medical practitioner had been consulted by her, and the plaintiff had not been requested by her mother to give up work. 71 It is obvious that the chief reason why the plaintiff chose to leave her remunerative employment as a teacher was to undertake further study, not to care for her mother (who at that time was aged only 66 and enjoyed reasonably good health). 72 After the death of her mother the plaintiff continued to reside free of charge with her father until the incident on 16 November 1993. In August 1992 the plaintiff received from the deceased amounts of money totalling $54,000 (although it is recognised that shortly thereafter she returned to him an amount of $20,000; the plaintiff also said that she paid $1,200 for the purchase of a new television for the household and paid $1,400 for renewal of guttering). The plaintiff also said that, when the deceased appeared to have changed his mind about fulfilling a promise alleged to have been made by him to his late wife, the plaintiff herself gave $5,000 to her brother Phillip and her sister Penelope (but nothing to either of the defendants). 73 Even accepting all the foregoing payments alleged to have been made by her out of the amount of $54,000, the plaintiff undisputedly received the benefit of $54,000 for a period of time, and ultimately the unqualified benefits of about $22,000. 74 On 16 November 1993, after he had returned home from the Macquarie Hospital, the deceased gave the plaintiff a cheque for $5,000. 75 I have already observed that the plaintiff has been far from frank or forthcoming in placing before the Court full details concerning her financial and material circumstances. Her oral evidence in this regard was quite unsatisfactory, and her answers were at times evasive. 76 There is no evidence as to what employment the plaintiff is capable of undertaking. If she is unable to work she has not placed before the Court any evidence as to the reason for that inability. 77 A very considerable quantity of oral evidence was directed to the desire of the plaintiff "to resume work towards a Doctorate". However, I am far from satisfied that the plaintiff has ever taken any formal steps towards enrolment for a doctorate, or, that she is qualified so to enrol. I regarded her responses concerning the preliminary research she claimed to have undertaken as being evasive and vague. It seemed to me to be of significance that no evidence was given either by Professor Naguib Kanawati (under the general academic authority of whom the plaintiff asserted that she was undertaking preliminary research) or by any other person of academic standing concerning the plaintiff's doctoral aspirations. Further, the evidence concerning the advances (in an amount of $5,000) made to the plaintiff by an entity known as the Rundle Foundation appeared to me to be far from satisfactory. Indeed, there seemed to me to be considerable substance in the submission made on behalf of the defendant that the plaintiff had dishonestly retained that amount of money and did not propose to return it. 78 I have already referred to the medical report from Dr Murray concerning the malignant ovarian tumour from which the plaintiff suffered. However, there was no evidence placed before the Court concerning the extent, if any, to which the plaintiff's physical condition will affect her ability to undertake remunerative employment (or, indeed, academic research). 79 I am not satisfied that the plaintiff has established the state of affairs predicated in section 9(2)(a) of the Act. In particular, I am not satisfied that the plaintiff is unable to undertake remunerative employment. The fact that she does not do so appears to be a result of her own deliberate choice. She certainly did not place before the Court evidence of any attempt to obtain employment either after the death of her mother or after she left the North Ryde residence on 16 November 1993. Further, during the lifetime of the deceased the plaintiff received from him very considerable direct financial benefits (in August 1992 and in November 1993), and very significant non-financial benefits (by way of accommodation from the latter part of 1986 until 16 November 1993). 80 My conclusion that the plaintiff has not established the state of affairs predicated in section 9(2)(a) (and, in particular, has not established any relevant need) of itself is sufficient to dispose of the present proceedings. 81 However, even if, contrary to the view which I have just expressed, the plaintiff were to have established need, the question then arises of whether the deceased was justified in disposing of his estate (and of any property which might potentially be regarded as notional estate) in such a fashion that the plaintiff was deprived of any interest therein. One can envisage few situations to which the phrase "conduct disentitling" could with more accuracy be applied than to that which culminated in the incident of 16 November 1993. 82 The facts which emerged in the instant case constitute the very circumstances so greatly loved by Victorian novelists and dramatists, where a sane person was sent to a lunatic asylum on the evidence of a scheming relative and his accomplices. 83 The deceased was entirely sane at the date of the incident on 16 November 1993 when, at the instance of the plaintiff, her sister Penelope and their brother Phillip, an attempt was made to have the deceased committed to a psychiatric hospital, under the Mental Health Act 1990. Having been forcibly removed from his home at the insistence of three of his children, the deceased was, a few hours later, released from the Macquarie Hospital, North Ryde, to which he had been taken against his will. 84 The plaintiff can hardly have been surprised at the reaction of the deceased to that incident. He was in my view totally justified in telling the plaintiff to leave his home. The threat that if he saw her again he would kill her, although denied by the defendants, seems to me to be an entirely justifiable reaction on the part of the deceased. It says a great deal for the forbearance of the deceased that he, in fact, wrote a cheque for $5,000 in favour of the plaintiff at the time when he ordered her from his home. 85 It will be appreciated that no challenge has ever been made by the plaintiff, or by any other person, to the testamentary capacity of the deceased, or to the validity of his last will. 86 Even if (contrary to the conclusion which I have already expressed) the plaintiff were to have satisfied the Court as to the first stage of the two-stage process described in Singer v Berghouse, I am satisfied that her foregoing conduct constitutes conduct of such a nature and to such a degree as to disentitle her totally from the benefit of any order for provision to which she might otherwise, in consequence of any relevant need, have established an entitlement. My conclusion concerning the conduct of the plaintiff is, of itself, sufficient to dispose of the present application. 87 Even if (contrary to my foregoing conclusion) I were to be satisfied that the plaintiff had established an entitlement to an order for provision, that entitlement must be viewed in the light of any competing claims upon the testamentary bounty of the deceased. 88 Apart from the plaintiff, the only other persons who might have such claim are the other four children of the deceased. Neither Penelope nor Phillip makes any claim upon the estate of the deceased. Accordingly, the only other persons the claims of whom must be considered as competing with that of the plaintiff are the two defendants. It must be recognised that they are the chosen objects of the testamentary beneficence of the deceased. Not only did the deceased name them as the sole beneficiaries in his will, but during his lifetime the deceased, in consequence of acquiring the Killara home unit in joint tenancy with the two defendants, ensured that, upon his death, they would jointly be entitled to the totality of such property. 89 It is appropriate, therefore, that I should set forth details of the financial and material circumstances of each of the defendants. 90 Susan Long was born on 21 September 1956, and is presently aged 42. She is the youngest of the five children of the deceased. She lived at home with her parents until 1976, when she commenced training as a nurse at the Hornsby District Hospital. She qualified as a nurse in 1980, and in the following year obtained an additional qualification in midwifery. She practised full-time in the nursing profession from 1976 until 1993. From 1993 to the present time she has worked part-time as a midwife at the Sydney Adventist Hospital at Wahroonga. On average she works five or six shifts a fortnight. 91 On 29 September 1979 Susan married Graeme Long. They have three children, whose ages range from 10 to 15. Mrs Long's husband, who has been retrenched on two occasions, is currently employed as a financial controller. She and her husband have a combined net weekly income of about $1,000. Their assets consist of their residence at 49 Pretoria Parade, Hornsby (which has a present value of between $350,000 and $375,000, and upon which there is outstanding an amount $2,500 secured by way of mortgage to the State Bank). Mr and Mrs Long own two motor vehicles, one being a 14 year old Ford Laser and the other being a three year old Holden station wagon. 92 When the home unit at Killara was sold in May 1996 Susan received an amount of $105,017.99. That amount was used in order to repay $40,000 in respect to the mortgage on the house property in Pretoria Parade, Hornsby, $35,000 on renovations and extensions to that house property, a family holiday ($8,000), an investment in respect to the school fees of her children ($20,000), and a deposit in respect to those school fees ($1,500). 93 Christine Dianne Nixon was born on 11 October 1950 and is presently aged 48. She is the second-eldest of the five children of the deceased. 94 Christine commenced training as a teacher at Sydney Teachers College in 1969. She has worked in the teaching profession since she qualified at the end of 1971. She has taught at the Burwood Girl's High School, Strathfield South High School, and Balmain High School from 1972 until 1993. From 1994 until 1997 she was employed as a special education teacher at Concord High School. At the end of 1997 Christine's employment in that position terminated. She is presently assisting the school with its literacy program, holding a temporary position from term to term. There is the possibility that her appointment might be terminated and that she might become redundant. 95 On 8 January 1972, Christine married Peter Nixon. Of that marriage were born three children (one of whom died in infancy). Christine and her husband separated in 1993 and were divorced in the following year. They resided at 9 Smalls Bay Road, Ryde, from November 1972 until their separation. Christine continues to reside in that house property, which is unencumbered and has a present value of about $200,000. Christine owns a 1990 Daihatsu motor vehicle. 96 Christine's two children, now aged 22 and 17, still reside with her. 97 Evidence was given by Christine concerning the need for repair and renovations to her house property. 98 Until the end of 1997 Christine's net income as a teacher was about $34,000 a year. In addition she receives child maintenance from her former husband in an amount of $580 a month; interest of about $185 a month; and $23.50 a fortnight child support. Her annual outgoings amount to more than $33,000 a year. 99 Christine from the sale of the Killara property also received an amount of $105,018. That amount was disbursed by her upon the discharge of the amount owing by way of mortgage on her residence ($40,000), the purchase of her present second-hand motor vehicle ($15,000), renovations, extensions, and furnishings for her house ($20,000), investment for children's education ($25,000), and a holiday ($3,000). 100 In about 1976 Christine was diagnosed as suffering from a condition which was then described as manic depression, but which is now known as bi-polar mood disorder. She suffers severe mood swings from extreme bouts of manic to severe depression. Christine has been in the care of the Ryde Hospital and Community Health Services and the Macquarie Psychiatric Hospital for the past 20 years. She has check-ups every three to four months or when she is unwell. In consequence of the death of her infant son in 1980, Christine suffered a bout of depression. During the period of her employment at Concord High School, it has been necessary for Christine to have two periods of extended sick leave as a result of her mental condition. During early 1996 she was off work for a period of seven weeks. During April and May 1997 she was off work for a period of eight weeks. After she returned to work following each of those periods, she did so under heavy medication. 101 Christine in her affidavit evidence referred to the problems which she had experienced in her teaching and in her relationship with the Principal of Concord High School, who has suggested that she take early retirement. She is of the view that it is unlikely that if her present position is declared redundant she will be able to obtain further employment as a teacher, especially since her qualification is that of a three year trained teacher, whilst schools currently prefer to employ university trained teachers. 102 The competing claims of the chosen objects of the testamentary beneficence of the deceased, especially the claim of Christine (divorced from her husband, still with one dependent child, in a precarious employment situation and suffering from a significant mental disorder), are such that, even if the plaintiff had otherwise established an entitlement to an order for provision, I would not, in the exercise of my discretion, make any such order for provision for the plaintiff out of the estate or notional estate of the deceased. It will be appreciated that, were any such order to be made, the consequence would be to deprive each of Susan and Christine of benefits which they have already received --- and have largely expended --- from the proceeds of sale of the Killara home unit. 103 I have already observed that the estate of the plaintiff is not sufficient to meet any order for provision an entitlement to which the plaintiff might otherwise have established. Accordingly it becomes necessary for her to resort to notional estate of the deceased. 104 It will be appreciated that the Court is entitled to make an order designating property as notional estate of a deceased person only in circumstances where the Court has already reached the conclusion that an order for provision should be made. Where, as here, I have reached the conclusion that such an order for provision should not be made, not merely is it unnecessary for me to proceed to a consideration of whether or not an order should be made designating property as notional estate of the deceased, but the Court is precluded, by section 28 of the Act (in particular, subsections (1) and (2) of that section) from making such an order. 105 But even if (contrary to all the foregoing conclusions which I have expressed) I were to be satisfied that the plaintiff has established an entitlement to an order for provision, then it would be necessary, before the Court could make an order designating part or all of the proceeds of the sale of the Killara home unit as notional property of the deceased, firstly to proceed to a consideration of whether the deceased entered into a prescribed transaction of the nature contemplated by paragraph (b) of section 23 the Act. 106 The prescribed transactions which are, at least by general reference, asserted in prayers 1, 2 and 3 in the further amended summons, relate firstly to the sale by the deceased of the house property at 8 Hermitage Road, West Ryde, secondly to the acquisition by the deceased as joint tenant with each of the two defendants of the Killara home unit and the failure by the deceased before his death to sever that joint tenancy, and thirdly to "the balance of each and every investment and bank account in the deceased's name including but not limited to State Bank Account No. 070-320957-81 in the amount of $12,215.15". 107 Section 22 (1) provides the circumstances in which a person shall be deemed to enter into a prescribed transaction. Paragraph (a) of that subsection requires that as a result of the act or omission which is asserted to constitute the prescribed transaction, either (i) property becomes held by another person (whether or not as trustee); or (ii) property becomes subject to a trust. 108 The conduct of the deceased in selling the Ryde property did not result in property --- the proceeds of sale --- becoming held by another person or becoming subject to a trust. The deceased continued to hold the proceeds of sale himself. 109 Accordingly, I am not satisfied that the conduct of the deceased in selling the Ryde property can constitute a prescribed transaction. 110 Although the deceased failed to sever the joint tenancy within the period of one year before his death, I am not satisfied that his omission to do so "was entered into at a time when the deceased person had a moral obligation to make adequate provision, by will or otherwise, for the proper maintenance, education and advancement in life" of the plaintiff or of any other eligible person which was substantially greater than any moral obligation of the deceased to enter into the prescribed transaction (that is, to maintain the joint tenancy) (section 23 (b) (ii)). I have already expressed my conclusions which constitute the absence of any moral obligation of the deceased to make provision for the plaintiff by will or otherwise for her maintenance, education or advancement in life. 111 I do not understand how any prescribed transaction can arise in respect to the subject matter of the third of the prayers for relief, relating to investments and bank accounts. 112 Accordingly, I summarise my foregoing views concerning prescribed transactions and notional estate by saying that I am not satisfied that the deceased entered into any prescribed transaction. It follows, therefore, that the Court does not have the power to designate as notional estate of the deceased any part of the proceeds of sale of the Killara home unit. 113 If, however, I am wrong in my foregoing conclusion, and the conduct of the deceased in failing to sever the joint tenancy does constitute a prescribed transaction, then it becomes necessary for the Court, before making an order designating part or all of the proceeds of the sale of the Killara property as notional estate of the deceased, to consider the various matters set forth in section 27 of the Act. 114 In the circumstances of the instant case, the matters to which I have referred in relation to the competing claims of each of the two defendants, and the effect of those competing claims upon the claim of the plaintiff, are equally relevant to the various matters referred to in paragraphs (a), (b) and (c) of subsection (1) of section 27. I consider that each of the defendants had reasonable expectations in relation to the ultimate proceeds of sale of the Killara home unit. Further, I consider that the substantial justice and merits involved in making or in refusing to make the order designating property as notional estate of the plaintiff require that I should not make any order which would have the effect of reducing or detrimentally affecting the present financial and material situation of each or either of the defendants. 115 In the light of the views which I have just expressed, and in the light of the substantive merits of the plaintiff's claim, which are significantly less than the entitlement of the defendants as the chosen objects of the testamentary beneficence of the deceased, I am not satisfied that the plaintiff has established that she is entitled to an order designating as notional estate of the deceased any part of the proceeds of sale of the Killara home unit. 116 In consequence of the conclusion which I have just expressed, there would be no assets available to meet any order for provision to which the plaintiff (contrary to all my earlier conclusions) might otherwise have established an entitlement. 117 I should also, for completeness, refer to the significance of the fact that when the proceedings were originally instituted on 1 May 1997 (within the limitation period of eighteen months after the death of the deceased) no relief was sought in relation to the notional estate of the deceased. That relief was sought for the first time in the document described as amended summons which was filed on 10 November 1997 --- that being more than two years after the date of the death of the deceased. 118 In the light of the earlier conclusions which I have expressed concerning the claim by the plaintiff to an order for provision out of the notional estate of the deceased, it is unnecessary for me to do more than state my view that the purported amended summons, which was filed without leave, was a nullity and of no effect. If the plaintiff were otherwise entitled to obtain leave to seek relief in relation to the notional estate of the deceased --- and I am not satisfied that she is entitled to such leave --- that leave would be granted only in relation to any parts of the proceeds of sale of the Killara home unit which were not dealt with by the defendants in the intervening period between the institution of the proceedings on 1 May 1997 and the filing of the further amended summons on 20 October 1998 However, as I have already observed, there is no practical significance to be attached to the claim of the plaintiff in respect to notional estate being made out of time, since, even had it been made within time, I would not have acceded to any such claim. 119 The consequence of all my foregoing conclusions can be summarised as follows. 120 I am not satisfied that the plaintiff has established the state of affairs predicated by section 9(2)(a) of the Act, and in particular I am not satisfied that she has established any relevant need. Even if (contrary to that conclusion) she has established such need, the claim of the plaintiff must be approached in the light of the competing claims of the defendants. In the light of those competing claims, I am not satisfied that the plaintiff has established an entitlement to an order for provision. Even if (contrary to my foregoing conclusions), she has established such an entitlement, the estate of the deceased is not sufficient to meet any such order for provision. If it were to become necessary for the Court to proceed to a consideration of possible notional estate of the deceased, I am not satisfied that the deceased entered into a prescribed transaction of the nature contemplated by section 22 of the Act. Even if (contrary to that conclusion) the deceased did enter into such a prescribed transaction, I am not satisfied that an order for provision ought to be made on the application of the plaintiff; thus it follows that the discretion which by section 23 is vested in the Court is not activated. Further, in any event, I am satisfied that the various matters set forth in subsection (1) of section 27 are such as to preclude the Court (even if I were otherwise minded to do so) from making an order designating property as notional estate of the deceased. The claim in respect to notional estate has not formally or properly been made. The plaintiff is now out of time to make a claim. She has not established an entitlement to an order for leave to make such a claim outside the prescribed period. 121 It follows therefore, from all the foregoing conclusions, that the plaintiff's claim for provision must fail. 122 I make the following orders: 1. I order that the proceedings be dismissed. 2. I order that the plaintiff pay the costs of the defendants. 3. The exhibits may be returned.

Draper v Nixon

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