Hooper v Rowley & 1 Or

LOWER COURT Supreme Court - Equity Division JURISDICTION : LOWER COURT ED 2643/01 FILE NUMBER(S) : LOWER COURT McLaughlin M JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40456/03 ED 2643/01

SHELLER JA IPP JA BRYSON JA

Thursday 11 November 2004 BARBARA HOOPER v MAVIS ROWLEY & 1 OR Judgment 1 SHELLER JA: I agree with Ipp JA. 2 IPP JA: The appellant brought proceedings under the Family Provision Act 1982 (NSW) claiming an order for provision for her maintenance, advancement and education out of the estate of her late mother, Ethel Elizabeth Museth ("the deceased"). 3 The deceased died on 21 November 2000, aged 89. She had six surviving children who include the appellant and the second respondent, Patricia Ann Elizabeth Museth. By her will the deceased gave the entirety of her estate to the second respondent. 4 By judgment dated 2 May 2003 Master McLaughlin dismissed the appellant's claim. 5 The only significant asset in the deceased's estate was a house known as "Old Toongabbie". At the outset of the hearing the parties agreed that the value of the Old Toongabbie residence was $360,000. 6 The Master noted that, in upholding the terms of the will of the deceased, the respondents would be entitled to an order that their costs be paid out of the estate and, the appellant, should she be successful in the proceedings, would also be entitled to an order for her costs to be paid out of the estate. The Master observed that the appellant's costs had been estimated at about $34,600 while those of the respondents were estimated at about $56,000. He concluded: "Thus if the totality of the costs, in an amount of about $91,000 were to be paid out of the estate, it would be inevitable that the Old Toongabbie property must be sold. If that became necessary, then additional costs in respect to the sale and by way of administration expenses would be incurred by the estate. It was estimated on behalf of the [respondents] that those additional costs and expenses would total about $15,000. Thus, in those circumstances the net distributable estate would be in an amount of about $254,000." 7 In the course of the hearing before the Master, the appellant was asked what order she sought in the proceedings. She replied that she wanted one-sixth of the estate. She explained this on the basis that she was one of six surviving children of the deceased. Later she said that she wanted $50,000 plus costs. In her notice of appeal she claimed $80,000. 8 On 8 July 2004 the appeal was first called on for hearing. The appellant then sought an adjournment. One of the grounds on which she based her application was that the respondents, for the first time, had contended that the appeal required leave from this Court. The Court granted an adjournment on that basis. 9 When the matter came on for hearing again on 2 November 2004, the appellant filed a notice of motion seeking leave to appeal. 10 The appellant was undoubtedly correct in accepting that she required leave to appeal.

11 Section 101(2)(r) of the Supreme Court Act 1970 (NSW) provides: "(2) An appeal shall not lie to the Court of Appeal, except by leave of the Court of Appeal, from - … (r ) a final judgment or order in proceedings of the Court, other than an appeal: (i) that involves a matter at issue amounting to or of the value of $100,000 or more, or (ii) that involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more." 12 As regards s 101(2)(r)(i), the order of Master McLaughlin dismissing the appellant's summons involved a matter at issue of no more than $80,000, this being the amount claimed by the appellant in her notice of appeal (cf Bladwell v Davis [2004] NSWCA 170 at [23] per Bryson JA). 13 The meaning of s 101(2)(r)(ii) is illuminated by the discussion in Oertel v Crocker (1947) 75 CLR 261. Oertel v Crocker concerned s 35(1)(a)(ii) of the Judiciary Act 1903 (Cth). That section was later amended and s 101(2)(r)(ii) is in a form that is in substance the same as s 35(1)(a)(ii) of the Judiciary Act 1903 (Cth) as later amended. The difference between the form of s 35(1)(a)(ii) as it was when Oertel v Crocker was decided, and its amended form was explained by Gibbs J in Attorney-General (Q); Ex rel Duncan v Andrews (1979) 145 CLR 573 at 581 as follows: "Under the earlier section it was the judgment that had to involve the claim, demand or question of the kind described. Under the present section it is the proceedings that must involve the claim, demand or question." 14 Oertel v Crocker (at 267) held that, under s 35(1)(a)(ii) as it existed at the time, an appeal lay without leave when a judgment or order so dealt with a claim, demand or question that the interest of the appellant in obtaining the reversal or variation of the judgment or order was an interest of the value of £300 (that being then the relevant stipulated value) or more in respect of property or any civil right (s 35(1)(a)(ii). As Latham CJ observed (at 267-268): "Thus a plaintiff who has been denied by a judgment the establishment of a right which is a right to property or to a civil right and which is of the value of £300 [$100,000] has an appeal as of right. A defendant against whom a judgment has been given which prejudices him to the extent of £300 [$100,000] in respect of a claim made against him to any property or civil right also has an appeal as of right."

Dixon J (at 272) quoted with approval the principle expressed by O'Connor J in Amos v Fraser (1906) 4 CLR 78 (at 87-88) as follows: "There are two ways in which [s 35(1)(a)(ii) of the Judiciary Act] may be read, viz, that if the property is of the value, or the civil right is of the value, of £300 [$100,000], no matter what the value of the claim may be, an appeal lies. I do not think that is the proper interpretation. It would lead to very great absurdities. The other interpretation is that the claim, demand, or question must in itself involve directly or indirectly the value of £300 [$100,000]. That I think is the right interpretation of the section. That is to say, in any case in which, directly or indirectly, the claim of the appellant involves a right in respect of property which right is in itself of the value of £300 [$100,000], an appeal lies. In other words, the measure of value is to be the value of the appellant's right in the property." 15 The dispute in Oertel v Crocker was whether the defendant had any and, if so, what interest as a tenant of certain property. Latham CJ observed that the title of the plaintiff to the freehold of the land was not in dispute and said (at 268): "[The title of the plaintiff to the freehold] is not a subject matter of claim, demand or question. The value of the freehold is therefore irrelevant for the purpose of determining whether there is an appeal as of right."

His Honour went on to observe (at 268): "The judgment of the Supreme Court is a judgment with respect to the claim of the plaintiff for possession and to the claim of the defendant to retain possession against the plaintiff. The value of the possession under the tenancy is the relevant matter in applying s 35." 16 In Ballas v Theophilos [No 1] (1957) 97 CLR 186 Dixon CJ, Webb and Fullagar JJ (at 195) adopted what O'Connor J had said in Amos v Fraser in the passage quoted in Oertel v Crocker (at 272) as to the formulation of principle, namely: "[T]he measure of value is to be the value of the appellant's right in the property." ( Amos v Fraser (at 88)).

Their Honours then said: "That is the right claimed by [the appellant] but denied by the judgment." 17 In the present case the measure of the value of the appellant's right in the property (should that right be established) could not exceed $80,000. That is to say, the proceedings do not involve a claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more. Hence, leave to appeal is essential. 18 As was the case in Bladwell v Davis, the proposed appeal could not settle any legal principle and would involve no question of general importance to the community. As in Bladwell v Davis, litigation has already consumed an excessive proportion of the estate. The second respondent is a needy person with a claim found to be meritorious by the Master. Any further prosecution of the appeal leading to the incurring of further legal costs might result in her being deprived of her home in which she has lived virtually all her life. These matters militate strongly against the grant of leave to appeal. 19 Further, it seems to me that the appellant's claim is entirely without merit. 20 The Master undertook an orthodox examination of the appellant's claim by reference to the two-stage process identified in Singer v Berghouse (1994) 181 CLR 201 at 208 and I shall comment on his findings in this regard. 21 The first stage involved determining whether the appellant had been left without adequate provision for her proper maintenance and advancement in life. In deciding this issue the Master bore in mind what he described as "the realities of the personal relationship" between the appellant and her husband and between the appellant and her daughter, Deborah. While the appellant was separated from her husband, the Master was not persuaded that she was entirely without financial support from him or without the means of obtaining financial support from him. The Master was also not persuaded that the appellant was not "other than secure in her residential accommodation" which was provided by her daughter. 22 The disclosure by the appellant of her financial position was neither open nor complete. The same may be said about the financial circumstances of her husband. In cross-examination it was revealed that about a year prior to the hearing before the Master, the appellant's husband had settled a claim against a firm of solicitors and had, in consequence, become entitled to $465,000. Of this sum $75,000 was paid to the appellant's husband, $22,000 was paid to the appellant and $363,000 was paid to the appellant's daughter. No adequate explanation was provided by way of evidence as to why the appellant and her husband had not made disclosure in their affidavits of the receipt of these monies. Moreover, there was no detailed evidence before the Master as to why $363,000 was paid to the appellant's daughter (albeit that the appellant, from the bar table, informed us that her husband directed the $363,000 to be paid to her daughter in discharge of a loan the daughter had made to finance legal fees incurred by the appellant's husband). The appellant and her husband did not provide cogent evidence as to their respective assets and liabilities. 23 In summary, the Master found the evidence of the appellant and her husband to be unsatisfactory and did not accept their testimony that supported the appellant's argument that she was a person in need. The appellant has not demonstrated that the Master was in error in making these findings. 24 In my view, therefore, the appellant has no prospect of success in overturning the finding of the Master that she had not discharged the onus upon her of proving that, in the absence of provision made for her by the will of the deceased, she had been left without adequate provision for her maintenance. 25 As regards the second stage of the Singer v Berghouse inquiry, the Master found that: "[T]he competing claim of the [second respondent] is such as would, in any event, extinguish any order for provision [of] an entitlement to which the [appellant] might otherwise have established."

This finding was based principally on the Master's view that the competing claim of the second respondent was very strong. The Master found that the second respondent, the deceased's heir, was "a devoted and loving daughter to her mother, whose principal carer she was during [her] declining years". The Master found that while the appellant had security of residence, should any provision be made for the appellant from the deceased's estate, the second respondent would be deprived of her home (in which she had lived virtually all her life together with the deceased). 26 In my view, the reasoning of the Master cannot be faulted. 27 In all the circumstances, I would dismiss the application for leave to appeal with costs. 28 BRYSON JA: I agree with Ipp JA. **********

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