Keane v Corns [2021] VSCA 223

PRACTICE AND PROCEDURE - Costs - Appeal - Judge ordering unsuccessful party to pay indemnity costs of whole proceeding when no such order sought by successful party - Denial of procedural fairness - Whether indemnity costs should have been ordered from time of unsuccessful party's refusal of open offer made by successful party - Offer not stated to have costs consequences if refused - Hazeldene's Chicken Farm v Victorian WorkCover Authority (2005) 13 VR 435 applied - Appeal allowed - Costs order varied - Unsuccessful party ordered to pay costs of proceeding on standard basis, rather than indemnity basis.

1 In August 2017, Carl Schlink, who had been diagnosed with cancer, died. He was survived by his adult daughter ('the plaintiff') and his domestic partner of some 20 years ('the defendant'). In December 2017, probate of the deceased's will (a will made in June 2016) was granted to the defendant. Pursuant to the will, the deceased bequeathed a legacy of $50,000 to the plaintiff, and left the residue of his estate to the defendant.

2 As the trial judge described it, the value of the deceased's estate was 'modest'.[1] The estate consisted of a property in Boronia where the deceased and the defendant lived, and a share portfolio. In the inventory of assets filed for the grant of probate, these assets were respectively valued at $585,000 and $110,326.58.

3 In June 2018, the plaintiff commenced a proceeding against the defendant seeking further provision from the deceased's estate pursuant to pt IV of the Administration and Probate Act 1958 ('the Act'). The proceeding was heard on 19 February 2020. On 15 April 2020, the judge delivered reasons for judgment dismissing the plaintiff's claim.[2] On 9 July 2020, on the basis of submissions made on the papers, the judge ordered the plaintiff to pay the defendant's costs of and incidental to the proceeding 'on the indemnity basis', with no order as to the plaintiff's costs of the proceeding.[3]

4 The plaintiff now seeks leave to appeal against both the order dismissing her proceeding and the costs order made by the judge. She advances five proposed grounds of appeal (grounds 1 to 5) against the order dismissing her proceeding, and one proposed ground of appeal (ground 6) against the order for costs. Ground 6 can be put to one side for the moment. In summary, under grounds 1 to 5, the plaintiff asserts that:

• the judge 'misapplied the laws of evidence' in relation to an occupational therapy report concerning the plaintiff's son (ground 3);
• the judge's discretion 'miscarried by reason of her mistaking facts, failing to take into account material considerations and allowing extraneous matters to guide her regarding the parties' relative financial needs and the size of the estate' (ground 2);
• the judge 'erred in law in her application of legal principles' regarding the making of Crisp[4] orders (ground 4);
• the judge 'erred in law misapplying the principles of family provision claims requiring her to take into account the burden of an applicant's dependents' (ground 5); and
• the 'exercise of the judge's discretion was on the facts plainly unreasonable and plainly unjust' (ground 1).

5 For the reasons that follow, leave to appeal on grounds 1 to 5 will be refused. However, leave to appeal on the costs ground (ground 6) will be granted, and the appeal on that ground allowed. In lieu of the trial judge's order for costs on an indemnity basis, we will order that the costs of the proceeding below be paid on a standard basis.

6 The plaintiff was the deceased's only child. She was born in September 1972, and was 47 at the time of trial. She and her husband (Kim Keane) from whom she is separated have a son and daughter, who were aged 12 and 8 at the time of trial.

7 For a number of years up to and including 2016, the plaintiff lived in Lismore. While the plaintiff and the deceased had telephone contact during this time (and in particular between 2008 and 2016), the plaintiff did not visit the deceased in person until 2016 when the defendant told her that the deceased was in hospital and had been diagnosed with bowel cancer.

8 Between 2016 and 2017, the plaintiff made a number of trips to Melbourne to visit the deceased. In July 2017, the deceased entered respite care and, as we have said, died the following month.

9 At the time of trial, the plaintiff was not working in paid employment. In the past, she had worked as a secretary in a law firm, but was made redundant some time in 2019. According to a Centrelink medical certificate dated 21 October 2019 tendered at trial, the plaintiff had been diagnosed with agoraphobia, panic attacks and a major depressive disorder with severe anxiety. The plaintiff's evidence was that, although she had made some effort to enter the workforce after being made redundant, these conditions affected her ability to find work.

10 At the time of trial, the plaintiff's weekly income was $538.05 (consisting of child support payments of $365.07 and a family tax benefit of $172.98). The plaintiff's evidence was that her weekly expenses totalled $658 - leaving a weekly shortfall of $119.95.

11 Additionally, evidence was given at trial that the plaintiff's son suffered from level 2 autism spectrum disorder, oppositional defiance disorder, attention deficit hyperactivity disorder and anxiety, giving rise to significant healthcare needs which were not then being met - although in cross-examination the plaintiff conceded that the NDIS had provided (and she expected would continue to provide in the following year) a level of support by paying some relevant service providers.

12 As to the plaintiff's assets, the evidence at trial was that she owned the premises in which she lived in Lismore (Goonellabah) - which she described as being in poor condition, but valued at $400,000. She also had other assets, being a motor vehicle valued at approximately $8,000, household contents valued at approximately $5,000 and savings of $199.01. Additionally, she had superannuation entitlements of $26,631.92.

13 As to the plaintiff's liabilities, the evidence at trial was that these totalled approximately $111,839.87. Of this, the sum of $82,422.40 was a mortgage on her home. Her other liabilities included council rates, utility bills, school fees and personal loans of $4,200 from her mother and $5,195 from her grandmother.

14 The defendant was born in September 1946, and was 73 at the time of trial. At the time of the deceased's death, the defendant had been his domestic partner for approximately 20 years. The defendant is originally from Canada. She and the deceased met in 1995, and in 1998 she emigrated to Australia and commenced living with the deceased at his home in Boronia which, as we have already said, was the major asset of the deceased's estate.

15 The defendant's uncontradicted evidence was that, during the period of their relationship, the deceased did not enjoy good health. In March 2015, he underwent surgery for bowel cancer. This led to him having to adjust to having a stoma, and requiring help with chemotherapy and bag changes associated with the stoma. The deceased suffered from considerable anxiety about his bag leaking. In June 2016, his doctors agreed to reverse the stoma. He underwent more surgery, more rehabilitation and was required to 'learn basic bodily functions again'. Chemotherapy was unsuccessful, and the deceased's cancer spread to his prostate and liver. The defendant described the deceased's medications at this time as 'a constant trial and error', with the deceased requiring increasing amounts of various drugs. In describing the terminal phase of the deceased's life, the defendant said:

He just wanted to be at home in his own bed and we managed to keep him at home for all of June [2017].

Carl finally agreed to enter Clovelly Cottage and their care on 21 July 2017.

Carl passed away [on] 24 August 2017 as I held him close and I honoured his last request by singing his favourite song: 'Wish me luck as you wave me goodbye'.

16 The judge commenced her principal reasons for judgment by identifying the respective positions of the parties. While the plaintiff had initially sought a lump sum of between 30 to 50% of the net value of the estate, in final submissions her counsel put the figure at 35%. Alternatively, the plaintiff sought 'deferred provision in the form of a freehold interest in [the Boronia property], subject to a life interest in the property in favour of the defendant'.[5]

17 On the other hand, as the judge recorded it, the defendant submitted that the $50,000 legacy to the plaintiff discharged any moral obligation of the deceased to make adequate provision for the plaintiff's proper maintenance and support. The defendant made this submission on the basis of the limited size of the estate, the nature of the estate assets, the strength of the defendant's competing claim and the deceased's wish to provide financial security to his long-term partner in the form of a freehold interest in the Boronia property. The defendant contended that the plaintiff's needs primarily related to providing for her two children, and that the father of those children was primarily responsible for them.[6]

18 Next, the judge described matters of background and identified the evidence given at trial. As the judge noted, the plaintiff relied upon two affidavits, sworn by her on 3 August 2018 and 13 February 2020, and gave evidence at trial; and the defendant relied on two affidavits, affirmed by her on 30 November 2018 and 4 July 2019,[7] and also gave evidence at trial. Additionally, the defendant relied upon an affidavit of a neighbour, Lisa Whitelaw, affirmed 24 October 2019; and an expert report, dated 24 October 2019, from Dr Robin Filshie, a haematologist, who had been involved in the care of the defendant since she had been diagnosed as suffering from a lymphoma in February 2018. The judge described the circumstances in which Dr Filshie's report was tendered and the conclusion in that report as follows:

The background to the report being filed was that, at the time the proceeding was set down for trial, the plaintiff sought an order that the defendant file a medical report setting out the state of her health. The basis for this appeared to be that, if the defendant's death was imminent, then she would have less need for the estate assets and greater provision could be made for the plaintiff. No orders were made by the Court. Subsequently, the defendant filed Dr Filshie's report to the effect that the defendant's treatment for lymphoma had been effective and she was in complete remission.[8]

19 After summarising the plaintiff's financial position,[9] the judge referred to the plaintiff's son's medical conditions and the evidence about the needs created by those medical conditions as follows:

Levi [the plaintiff's son] suffers from level 2 Autism Spectrum Disorder, Oppositional Defiance Disorder, Attention Deficit Hyperactivity Disorder and anxiety. The plaintiff said that these conditions gave rise to significant health care needs, which were not currently met as a result of her financial position. Counsel for the plaintiff initially stated that no funding from the NDIS was available to Levi, however, in cross-examination the plaintiff's evidence was that such support was received in the amount of $14,000 in 2018, $9,000 in 2019 and she expects to receive $7,000 for the coming year. These amounts were not referred to by the plaintiff in her affidavits. The funds from the NDIS are paid directly to the service providers, rather than to the plaintiff. The plaintiff said that she does not receive additional support from Levi's father to assist with managing Levi's disabilities.

In her affidavit sworn 13 February 2020, the plaintiff exhibited an occupational therapy functional capacity report by Ms Jessica Doyle dated 21 November 2019. Ms Doyle detailed Levi's treatment needs and indicated that he required additional and ongoing psychological support, occupational therapy, speech and language support, and intensive psychological intervention. Ms Doyle provided no detail of the likely cost of those services or whether such support might be funded by the NDIS. Ms Doyle did not give viva voce evidence at trial, and the plaintiff did not provide any further evidence on those topics. Ms Doyle did not refer to the expert code of conduct in making her report. In the circumstances, little or no weight can be given to her views.[10]

The judge's conclusion that little or no weight could be given to Ms Doyle's views, and the reasoning upon which that conclusion was based, is the subject of proposed ground 3.

20 Next, the judge identified the relevant provisions of the Act and applicable principles.[11] In doing so, the judge identified the following propositions which were not, and are not in this Court, in dispute:

(1) Adequacy of provision is determined by reference to matters that were known, ought to have been known, or were reasonably foreseeable to the deceased at the time of death.[12]

(2) By contrast, the Court's discretion in determining the quantum of any further provision is exercised by reference to the parties' circumstances at the time of trial.[13]

(3) The plaintiff bears the onus of proving the extent of any provision that should be granted.[14]

(4) The determination of what provision should be made for a plaintiff, in light of all the relevant circumstances, must be answered by reference to the touchstone of a wise and just testator. The Court must be mindful to interfere with the terms of a will only where a testator has failed in his or her moral duty.[15]

21 In the course of setting out and discussing relevant principles, the judge referred to s 91(4) of the Act, saying that paragraphs (a) and (b) of that section required the Court, in determining the quantum of any provision, to take into account the degree to which, at the time of death, the deceased had a moral duty to provide for an applicant, and the degree to which the distribution of the estate failed to make adequate provision for the proper maintenance and support of that applicant. The judge also referred to paragraph (c) of the section, the effect of which was that, in the case of adult children who do not suffer from a disability, the Court was also required to consider the extent to which they were not capable by reasonable means of providing for their own proper maintenance and support.[16]

22 Next, the judge referred to s 91A of the Act, noting that sub-s (1) required the Court to have regard to the deceased's will (if any), any evidence of the deceased's reasons for making the dispositions in the will, and any other evidence of the deceased's intentions in relation to providing for the 'eligible person';[17] and noting that sub-s (2) provided that the Court may also take into account:

(a) the relationship between the deceased and the eligible person, including, if relevant, the nature and length of the relationship;

(b) any obligations or responsibilities of the deceased to the eligible person, any other eligible person, and the estate's beneficiaries;

(c) the size and nature of the estate;

(d) the current and foreseeable future financial resources, including earning capacity and financial needs, of the eligible person, any other eligible person and any beneficiary;

(e) any physical, mental or intellectual disability of any eligible person or any beneficiary;

(f) the age of the eligible person;

(g) any contribution of the eligible person, otherwise than for adequate consideration, to building up the estate or to the welfare of the deceased or the deceased's family;

(h) any previous benefits provided to the eligible person or any beneficiary;

(i) whether the eligible person was being wholly or partly maintained by the deceased, and if so, the extent and basis of such maintenance;

(j) the liability of any other person to maintain the eligible person;

(k) the character and conduct of the eligible person or any other person;

(l) the effect that a family provision order would have on the amounts received from the deceased's estate by other beneficiaries; and

(m) any other matter the Court considers relevant.[18]

23 In the course of considering the factors which the Court was required to have regard to pursuant to s 91A(1) of the Act, the judge noted that by providing the residue of his estate to the defendant, the deceased ensured that the defendant had the security of the Boronia property and a small amount of money as a nest egg. She said that the relief sought by the plaintiff of a lump sum payment after the sale of the property 'fail[ed] to recognise the deceased's intention to provide a secure home for the defendant'.[19] As to the alternative remedy sought by the plaintiff, the judge said that while this recognised the deceased's intentions, 'it fail[ed] to provide the defendant with independent financial security'.[20]

24 The judge dealt sequentially with each of the factors which the Court was permitted to have regard to pursuant to s 91A(2) of the Act as follows:

(1) With respect to s 91A(2)(a), the judge said:

On balance, the relationship between the plaintiff and the deceased was not particularly close and, although they resided together for a time when the plaintiff was in her early twenties, they grew apart over the years and their contact was primarily over the telephone.[21]

(2) With respect to s 91A(2)(b), the judge accepted that the deceased had a moral obligation to provide for both the plaintiff and the defendant.[22]

(3) Under s 91A(2)(c), the judge considered the evidence relating to the size and nature of the deceased's estate. The judge concluded that the net value of the estate, after payment of the $50,000 legacy to the plaintiff and the repayment of a loan of $86,626 to the defendant, was between approximately $631,000 and $696,000, subject to the estate's liability for further legal costs which had been incurred.[23] In arriving at the value of the estate, the judge preferred the appraisal evidence tendered by the defendant over that tendered by the plaintiff.[24]

(4) With respect to s 91A(2)(d), the judge said that the plaintiff's financial position was not as severe or dire as alleged by her. She noted that if the plaintiff applied her $50,000 legacy to reduce the amount of her mortgage, the plaintiff could order her affairs so that the shortfall between her income and expenses would only be $19.95 per week - which the judge said could be made up 'through employment or government support income'.[25] The judge also observed that, 'in due course, it is likely that the plaintiff will receive income from either employment, the Newstart Allowance or disability payments if she remains ineligible for the Newstart Allowance on the basis that she is medically unfit to work'.[26] As to the defendant's financial position, the judge noted that the defendant's weekly living expenses totalled $738; her only significant asset was a self-managed superannuation fund; the current assets of that fund and shares were valued at $305,184.49 together with cash of $149,988.81; she had bank accounts with a net credit balance of approximately $25,000;[27] she receives a Canadian pension of CAD8,016.48;[28] she had advanced the sum of $86,626 by way of loan to the estate in order to pay its liabilities; and she was likely to incur significant expense for the repairs and modifications to be made to the Boronia property, the costs of which had been quoted at $176,288.80.[29]

(5) With respect to ss 91A(2)(e) and (f), the judge noted the plaintiff's evidence that she suffers from anxiety and depression which has affected her ability to find work. The judge also noted that, at the time of trial, the plaintiff was not 'receiv[ing] any government benefit in recognition of her mental health conditions'.[30] Additionally, the judge noted that the plaintiff was 47 years old; and the defendant was 73 and 'in complete remission from her diagnosis of Diffuse Large B cell lymphoma'.[31]

(6) With respect to s 98A(2)(g), the judge observed that the plaintiff had not made any contribution to building up the deceased's estate or to his welfare.[32]

(7) With respect to s 91A(2)(h), the judge noted that, save for some minor purchases, no material benefits were received by the plaintiff from the deceased during his lifetime.[33] While the deceased was unemployed for part of the 20-year period during which he and the defendant resided together, the defendant 'worked for the whole of their relationship'.[34] The defendant and the deceased paid their earnings into one bank account, from which they paid their joint living expenses (including mortgage payments on the Boronia property and share purchases).[35]

(8) With respect to ss 91A(2)(i), (j) and (k), the judge noted that save for the limited financial support provided to the plaintiff in her younger years, the deceased did not maintain the plaintiff;[36] no other person was liable to maintain the plaintiff, although her former husband contributed his share to the costs of raising their two children.[37] The judge also observed that there was no evidence that the character and conduct of the plaintiff or any other person was such as to disentitle the plaintiff to relief.[38]

(9) With respect to s 91A(2)(l), the judge noted that an order for further provision in favour of the plaintiff, on either of the bases sought by her, would affect the entitlements of the defendant; there were insufficient cash funds to pay the plaintiff's entitlement of $50,000 and the other liabilities of the estate; and the defendant had stated that she would likely fund payment of the $50,000 legacy from her own funds, so as to meet any shortfall between the net value of the shares after the payment of the estate's liabilities and the $50,000 legacy.[39]

(10) Under s 91A(2)(m), the judge dealt with two submissions made by the plaintiff: first, that the costs of her son's treatment increases the strain on her financial circumstances; and secondly, that the court ought take into account that the defendant has no connection to the Boronia property or to Australia, and that it is likely that she will sell the property and return to live in Canada (which would result in relevant assets being 'lost to the plaintiff forever'). As to the first argument, the judge said:

The plaintiff failed to include in her affidavits the fact that some of the costs associated with Levi's treatment are funded by the federal government through the NDIS. There is no basis to claim that the deceased should provide any funds for Levi or that the deceased owed any moral obligation to provide for him. Levi and his sister are supported financially by their father through child support payments each week. Mr Keane also pays half of the school fees for both of the children.[40]

What the defendant chooses to do with any benefits received from the deceased and the likely distribution of her own estate are not relevant to the determination of the plaintiff's claim for further provision. The defendant is not required to justify the benefits she receives pursuant to the will, nor is she required to justify that a life interest in the [Boronia] property is not suitable to her.[41]

25 Having considered the matters which s 91A(1) required her to consider, together with the matters which s 91A(2) permitted her to consider, the judge commenced her consideration of the ultimate determination of the plaintiff's proceeding by noting that it was accepted that the deceased 'owed a moral obligation to the plaintiff'.[42] Additionally, her Honour noted that there was no evidence of any conduct or special feature in the relationship between the plaintiff and the deceased that might enhance or diminish the extent of the deceased's moral obligation.[43]

26 The judge then considered the claim made by the plaintiff, noting again the alternative claim whereby the plaintiff sought the freehold of the Boronia property, 'subject to a portable life interest in the form of a Crisp order to the defendant'.[44] The judge said that the usual circumstances in which a Crisp order may be appropriate is where an applicant for further provision is a surviving spouse or partner and the deceased failed to provide adequately for them.[45] The judge noted that no authority was referred to her in which a Crisp order had been made 'as a means of providing further future provision for a claimant and at the same time reducing the entitlements of a surviving spouse or partner of a deceased'.[46] The judge rejected the submission that a Crisp order should be made, saying:

The relief sought by the plaintiff in the form of a Crisp order is misplaced. The plaintiff's case focussed on her current financial circumstances, by reference to the shortfall in her weekly income and expenses, as well as the immediate financial support required for her son. The relief in the form of a Crisp order would not have the effect of satisfying those needs as any provision for the plaintiff is deferred until the death of the defendant. This means that none of the plaintiff's asserted financial need would be satisfied by such an order. On the basis of the defendant's current age and health, the benefit to be received by the plaintiff under a Crisp order would be many years away. By that time, the plaintiff's children would no longer be dependent on her and her mortgage would likely be paid out completely, particularly if she applies her legacy to reduce the capital owing. In addition, with the plaintiff's mother still being alive, the plaintiff may expect to receive an inheritance from her estate some time in the future.

Further, and in any event, the plaintiff's current financial need as deposed by her affidavits was called into doubt at trial. The analysis of her financial circumstances establishes that the extent of the plaintiff's financial need is not as dire as she maintained in her affidavits. Further, several relevant matters, such as the NDIS funding for Levi, were not mentioned at all. The plaintiff's preferred position for a Crisp order supports the conclusion that she is not seeking provision for her immediate needs. On balance, the Court considers that the plaintiff exaggerated her financial need and failed to include all relevant financial information in her affidavits.

A Crisp order as proposed by the plaintiff would also take away the defendant's freehold interest in the Landscape Drive property and threaten her financial security in the long term. The defendant has the paramount need. She is aged 73 years, is retired and dependent on her superannuation funds for her ongoing living expenses and long-term financial security. The deceased recognised her need by providing her with the freehold of the Landscape Drive property in which she lived with the deceased and to which she contributed during their relationship of almost 20 years. The sale of the Landscape Drive property or any lesser interest in the beneficial ownership of the property would threaten the defendant's long-term financial security. Her current freehold interest allows her to use the capital value of the home to fund any long-term living and care requirements that may arise.[47]

27 Finally, the judge rejected the plaintiff's claim for a percentage of the net proceeds of the Boronia property. As the judge put it:

[P]rovision in such an amount would be to the detriment to the defendant as she would not have sufficient funds to purchase another home, contrary to the deceased's intentions reflected in his will.[48]

28 The judge concluded her reasons for dismissing the plaintiff's application for further provision by again noting that the deceased's estate was modest,[49] and then saying:

The assets comprise the Landscape Drive property and a small share portfolio. The costs and expenses of the estate thus far at around $86,000 are substantial. In order to pay the legacy of $50,000 to the plaintiff, the defendant proposed that she would personally fund any shortfall between the net value of the share portfolio and the legacy. The estate cannot accommodate the plaintiff's first claim unless she sells the Landscape Drive property.

In the context of the plaintiff's actual need, the legacy of $50,000 is not a 'meaninglessly small provision', as was stated in her closing submissions. That amount will go a long way to ease any financial difficulty, in particular, if she paid that amount towards her mortgage debt. In all of the circumstances, the legacy of $50,000 to the plaintiff was sufficient to discharge the deceased's moral obligation to the plaintiff.[50]

29 The plaintiff's proposed grounds of appeal are somewhat prolix and tendentious. In a number of instances, they contain assertions that the judge made a finding which was not in fact made by her Honour. Having regard to the arguments advanced in this Court, it is necessary to set out grounds 1 to 5 in full.[51] Those grounds are:

1. The exercise of the judge's discretion was on the facts plainly unreasonable and plainly unjust:

(a) [the plaintiff] was objectively living in poverty as an unemployed single mother of two young children under 12, one disabled (Levi), burdened with debts and thereby had significant need;

(b) by reason of [the plaintiff's] age and significant mental health issues, the likelihood of her earning any future income was negligible;

(c) the deferred benefit to [the plaintiff] of a remainder interest in the estate property would have been significant value to her in her old age for future contingencies;

(d) the denial of a Crisp order was wrongly said to be for the financial security of the defendant when the only disadvantage to the defendant from such an order was a constraint against the repatriation of the estate to other people;

(e) in combination with the indemnity costs order her Honour's exercise of discretion was financially crushing to [the plaintiff].

2. The judge's exercise of discretion miscarried by reason of her mistaking facts, failing to take into account material considerations and allowing extraneous matters to guide her regarding the parties' relative financial needs and the size of the estate namely:

(a) giving no weight to the medical evidence as to [the plaintiff's] inability to work;

(b) assuming without any evidentiary basis [the plaintiff] would resume earning an income and pay off her mortgage;

(c) giving no weight to the medical evidence on the [plaintiff's] autistic son;

(d) wrongly holding [the plaintiff] had led no evidence about NDIS funding;

(e) giving no weight to the defendant's original valuation of the estate property which matched that of [the plaintiff];

(f) giving no weight to the objectively understated nature of [the plaintiff's] expenses;

(g) giving no weight to the [plaintiff's] evidence of the value of delayed provision;

(h) miscalculating the defendant's assets by failing to give any consideration to the $260,000 the defendant had withdrawn from her super prior to trial;

(i) concluding, without any basis that a Crisp order threatened the defendant's capacity to fund her aged care without any basis [sic];

(j) ignoring the support deceased had provided to [the plaintiff] in her adult years.

3. The judge misapplied the laws of evidence regarding the occupational therapy report of Jessica Doyle dated 21 November 2019 (the 'OT Report') at [28] by concluding that little or no weight could be given it by reason of:

(a) its failure to refer to the expert code of conduct which wrongly assumed Ms Doyle was engaged by [the plaintiff] as an expert witness;

(b) failing to consider the OT Report had been prepared for the purpose of Levi's NDIS needs assessment and was thereby being unrelated to the proceedings;

(c) failing to consider the prohibition on the ventilation of NDIS plans and fees and the cost and difficulty of obtaining NDIS plans for adduction into evidence.

4. Her Honour erred in law in her application of legal principles regarding the making of extended portable life interest/'Crisp Orders' in family provision applications by ruling:

(a) the future, or post-decision, disposition of an estate, to parties that the testator had no intention of benefiting, is an irrelevant matter;

(b) the bare preference as to residency of a surviving spouse is dispositive as to the treatment of the residence as an estate asset;

(c) the court must only have regard to an applicant's needs at the date of trial;

(d) an applicant's capacity to meet her weekly expenses until the remainder of an estate falls due, nullifies her need;

(e) Crisp orders should only be ordered in the case of applications by spouses;

Further, her Honour misconceived the evidence that supported her reasoning by concluding that the defendant's financial security was threatened by a Crisp order.

5. Her Honour erred in law misapplying the principles of family provision claims requiring her to take into account the burden of an Applicant's dependents.

30 The principal question in this application is whether the distribution of the deceased's estate made adequate provision for the plaintiff's proper maintenance and support. If it did not then the question becomes what provision should be ordered. The first question involves both the examination of questions of fact and the exercise of value judgments.[52] As this Court said in Davison, the evaluative nature of the decision stems from the fact that the Court must determine what constitutes 'adequate' provision and what it means for an applicant's maintenance and support to be 'proper' in the light of its own general knowledge and experience of current social conditions and standards.[53] The subsidiary question, should it arise, involves an exercise of discretion.[54] Thus, the principles set out in House v The King[55] are engaged.

31 While the plaintiff's first ground of appeal cavils with the judge's ultimate conclusion, asserting that the exercise of her discretion was 'plainly unreasonable and plainly unjust' (an invocation of the principles in House), in her subsequent grounds of appeal she alleges that the judge erred in her treatment of aspects of the evidence, made mistakes about the facts and made errors of principle. The resolution of these issues logically precedes any determination of whether the judge erred in the exercise of her discretion as contended for by the plaintiff. We will thus commence with ground 3, in which it is asserted that the judge 'misapplied the laws of evidence' when she concluded that little or no weight could be given to the occupational therapy report of Ms Doyle. However, before doing so, it is necessary to address a submission made by the plaintiff's counsel during the course of his oral submissions on proposed ground 1.

32 Notwithstanding the logically antecedent issues raised in later proposed grounds of appeal, the plaintiff's oral submissions commenced with proposed ground 1. The plaintiff contended that the judge found against her on all disputed issues, and was against her from the start. In support of her argument under proposed ground 1, the plaintiff submitted that the Costs Reasons were 'indicative of her Honour's mind-set from the outset'. While the plaintiff's counsel did not use the word 'bias', in an exchange between the Bench and counsel, we noted that there was no proposed ground of appeal alleging apprehended bias. Counsel accepted there was no such ground, and said that he did not seek to add a ground of apprehended bias. His submissions were directed to establishing that the judge's decision was plainly unreasonable and plainly unjust. In the circumstances it is not necessary for us to consider any question of bias, and we turn now to consider the proposed grounds of appeal relied on by the plaintiff.

Ground 3: the judge's treatment of the occupational therapy report

33 The occupational therapy report was dated 21 November 2019. The plaintiff exhibited it to her second affidavit in support of two propositions: first, that her son had 'limited psychologist support (sic)', which needed to be rectified; and secondly, that he required 'ongoing support from a specialised therapy team, including ongoing occupational therapy, speech and language support and intensive psychological intervention'. The plaintiff then deposed that she could not afford 'the out of pockets' for her son 'to obtain the psychological support he needs'.

34 The occupational therapy report described the work that its author, Ms Doyle, had performed with Levi since 2016. It referred to his diagnoses and the fact that he received regular speech and language therapy intervention. The report concluded:

From working with Levi over the three years it is evident that his daily life is significantly impacted upon by his disability and he requires ongoing support to achieve his NDIS goals and to become as independent as possible in the future. Given the complexity of Levi's needs he requires the continued support of a specialised therapy team, including ongoing occupational therapy and speech and language support and intensive psychological intervention.

35 As we have already noted, the judge dealt with this report by noting that Ms Doyle provided no detail of the likely cost of services or whether such support might be funded by the NDIS. The trial judge observed that Ms Doyle did not give viva voce evidence at the trial. The judge also observed that Ms Doyle did not refer to the 'expert code of conduct' in making her report. Undoubtedly, this was a reference to 'the Code' as defined in r 44.01 of the Supreme Court (General Civil Procedure) Rules 2015 (the 'Rules'). The judge concluded her treatment of the occupational therapy report by saying that, in the circumstances, 'little or no weight [could] be given to [Ms Doyle's] views'.[56]

36 The plaintiff made the following submissions in relation to the judge's treatment of the occupational therapy report:

(1) The judge erred in holding that Order 44 of the Rules had any application in this case, because the occupational therapy report had been prepared 'for the purpose of Levi's NDIS needs assessment', and not for the purpose of the present proceeding.

(2) The judge also erred by applying a 'contradictory standard of evidence' by accepting reports tendered by the defendant concerning the costs of renovations and maintenance that needed to be performed on the Boronia property, when these reports similarly did not contain any reference to the Code or Order 44 of the Rules.

(3) Moreover, notwithstanding the lack of costing in the occupational therapy report, the judge was wrong to give little or no weight to Ms Doyle's 'important conclusions' that Levi's daily life was 'significantly impacted upon by his disability'; and that he required ongoing occupational therapy, speech and language support and an increased level of psychological intervention.

37 The plaintiff's submissions must be rejected. First, contrary to the plaintiff's submissions, there was no evidence that the occupational therapy report was produced for some purpose other than use in the present proceeding. In her evidence at trial, the only evidence given by the plaintiff on the topic was that 'as part of [her] affidavit, she obtained the occupational therapy report'. This evidence was capable of supporting the proposition that the report was prepared for use in this proceeding.

38 In oral argument, counsel for the plaintiff asserted that the report 'was made for an NDIS service provider'. When asked to identify the evidence supporting that assertion, counsel said, '[o]nly that it's got an NDIS number on the front'. It need hardly be said that this 'evidence' did not support the assertion made by the plaintiff's counsel. Moreover, the existence of the NDIS number on the report said nothing about the question of the purpose for which the report was prepared.

39 Secondly, the judge did not apply any 'contradictory standard of evidence' as asserted by the plaintiff. Specifically, the 'Well Known Building & Maintenance Pty Ltd' report relied upon by the plaintiff in support of this contention was not an expert report. It was a quote for $176,288.80, given by that organisation for the performance of 'various repairs' to the Boronia property, which quote was 'only valid for 30 days'. As such, there was no occasion for that document to contain any reference to the Code or Order 44 of the Rules.

40 Thirdly, it does not appear that the amount of the quote tendered for the performance of repairs to the Boronia property (a property which the plaintiff referred to in her final submissions at trial as 'dilapidated') was the subject of any relevant dispute at trial. Thus, the judge's reliance upon it was not relevant to the question of the weight to be given to a different report that dealt with a different topic which was the subject of dispute between the parties.

41 Fourthly, while it is true that the judge made reference to Ms Doyle's failure to refer to the Code in making her report and then concluded that little or no weight could be given to her views, of more significance to her Honour's conclusion was Ms Doyle's failure to provide any detail as to the likely cost of recommended services or whether such support might be funded by the NDIS. A fair reading of her Honour's reasons shows that her Honour took account of Levi's diagnoses and disabilities, and the fact that these would likely be ongoing. The more pertinent issue was the extent to which necessary treatment or services would be funded either by the NDIS or someone external to the plaintiff.

42 In the circumstances, we see no error in the judge regarding Ms Doyle's opinions as being of little moment in the context of this case (involving as it did competing claims over an estate of modest proportions).[57]

Ground 2: mistaking the facts, failing to take into account material considerations and taking account of extraneous matters

43 Proposed ground 2 is framed in the language of the oft-cited passage in House:

If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.[58]

The chapeau of ground 2 asserts that the judge made errors of the second, third and fourth kind referred to in House.

44 In paragraph (a) of ground 2, the plaintiff contends that the judge gave no weight to the medical evidence as to her inability to work. In support of this complaint, the plaintiff contended that the judge's statement at Primary Reasons [24] that, 'A report from the plaintiff's medical practitioner was not tendered as evidence', demonstrated the judge failed to have regard to a medical report exhibited to the plaintiff's first affidavit.[59] That submission must be rejected. The document relied upon by the plaintiff was not a medical report: it was a medical certificate dated 28 May 2018, signed by a general practitioner, which merely provided:

This lady has been my patient since 2015.

She has a history of anxiety disorder, depression and panic attacks. She is on treatment with high dose SSRI medication, beta blocker.

45 By no stretch of the imagination could this desultory document be described as a report from the plaintiff's medical practitioner. Even if it could be so described, its contents could only have little (if any) probative value, merely asserting as it did that more than 18 months prior to trial the plaintiff had a history, going further back in time (but for an unspecified duration), of the conditions referred to in the certificate, without any reference to the significance of this past history, or its likely prognosis. No reference was made by the doctor to the effect of these conditions on the plaintiff's ability to work.

46 For the sake of completeness, we should also say that similarly we are not persuaded that the Centrelink medical certificate dated 21 October 2019 provided any firm basis for a finding that the plaintiff's prospects of future employment were substantially impaired (or 'negligible'[60]) by reason of any medical condition. While the certificate recorded the opinion of a general practitioner (a different general practitioner from the one who completed the medical certificate dated 28 May 2018) that the plaintiff would be unfit for work from 20 October 2019 to 20 January 2020, the medical conditions said to produce this unfitness were described as a 'temporary exacerbation of a permanent condition'. This certificate also made reference to the need for the plaintiff to adhere to a medication regime, and the possibility of the plaintiff modifying her lifestyle.

47 In paragraph (b) of ground 2, the plaintiff asserts that the judge 'assum[ed] without any evidentiary basis [that the plaintiff] would resume earning an income and pay off her mortgage'. The plaintiff submitted that this was the 'conclusion' that the judge made at Primary Reasons [56]. The short answer to the plaintiff's point is that the judge made no such 'assumption' or 'conclusion'. What her Honour in fact said was as follows:

In due course, it is likely that the plaintiff will receive income from either employment, the New Start allowance or disability payments if she remains ineligible for the New Start allowance on the basis that she is medically unfit to work.[61]

48 On the evidence, we see no basis for any suggestion that this somewhat anodyne statement could involve error on the part of the judge.

49 In paragraph (c) of ground 2, the plaintiff contends that the judge gave no weight to the medical evidence concerning Levi. In support of this contention, the plaintiff submitted that the judge ignored both the conclusion in the occupational therapy report that Levi's 'daily life is significantly impacted upon by his disability and he requires ongoing support', and a letter from Levi's treating doctor, Dr Schmidt. There is no substance in these submissions. In her reasons, the judge specifically referred to the plaintiff's son's medical conditions and the healthcare needs they gave rise to.[62] The issue at trial was the extent to which (if any) the plaintiff would be required to pay for the provision of Levi's healthcare needs. As to Dr Schmidt's report, we would also observe that this report was written in 2015, some five years prior to trial, when Levi was seven and a half years old. In the context of this case, this report had very limited (if any) evidentiary value.

50 In paragraph (d) of ground 2, the plaintiff asserts the judge wrongly held that she had led no evidence about NDIS funding. In support of this assertion, the plaintiff contended that the judge 'wrongly stated' at Primary Reasons [75] that she had 'failed to depose that the federal government provenance of funding Levi's treatment [sic] when she did so depose'. In support of her contention that she 'did so depose', the plaintiff relied on paragraph 81 of her first affidavit in which she said that Levi was able to receive 10 weeks of equine therapy through the NDIA,[63] together with the contents of the occupational therapy report which made reference to the NDIS.

The plaintiff's position included that her son, Levi, requires ongoing support and treatment as a result of his diagnosed Autism Spectrum Disorder. The plaintiff submitted that the costs of Levi's treatment increased the strain on her financial circumstances. The plaintiff failed to include in her affidavits the fact that some of the costs associated with Levi's treatment are funded by the federal government through the NDIS.

52 What the judge said at Primary Reasons [75] must be read in context with what she said at Primary Reasons [27]. The judge was initially told by the plaintiff's counsel that no funding from the NDIS was available to Levi.[64] In oral evidence, however, the plaintiff said that such support was received in 2018 and 2019, and was expected to be received in 2020.[65] As the judge correctly noted,[66] 'these amounts were not referred to by the plaintiff in her affidavits'. Thus, notwithstanding paragraph 81 of the plaintiff's first affidavit, the judge was correct at Reasons [75] when she said that the plaintiff failed to include in her affidavit the fact that some of costs associated with Levi's treatment (being those to which she referred in her oral evidence) were funded through the NDIS.

53 In paragraph (e) of ground 2, the plaintiff contends that the judge gave no weight to the defendant's original valuation of the Boronia property, which valuation was said to 'match the plaintiff's valuation'. In support of this contention, the plaintiff submitted that the judge erred by undervaluing the Boronia property when she adopted 'the defendant's lowest appraisal of around $650,000', despite appraisals that valued the property at a mid-range of $755,000 and $820,000.

54 The judge dealt with the dispute about the value of the Boronia property as follows:

There is disagreement as to the value of the principal asset of the estate, the [Boronia] property. The defendant valued the [Boronia] property in the inventory of assets at $585,000. At trial, the defendant relied on an appraisal by Ray White Ferntree Gully dated 3 June 2018, which valued the property at between $650,000 and $715,000 and noted that a purchaser would need to undertake renovations to the property. The defendant deposed that the [Boronia] property required significant repairs and future modifications to allow her to continue to reside in it, with those repairs and modifications quoted at approximately $176,000.

The plaintiff relied on an appraisal dated 28 July 2018, obtained by her solicitor from agents who did not view or inspect the property and relied instead on online sales data for their appraisal. These agents were located in Glenroy, an area that is far away from the vicinity of the property. The appraisal of the Glenroy agents valued the property between $780,000 and $840,000.

The quantitative difference between the appraisals is stark, with $130,000 at the lower value and $125,000 at the higher value. In assessing the likely value of the [Boronia] property, little weight can be placed on the plaintiff's appraisal given that it was based on online sales data and without an inspection to ascertain the condition and state of repair of the property. The property is in need of repair and renovation. The defendant's appraisal by the local agents is to be preferred as they have experience and knowledge of the real estate in the area and knowledge of the condition of the property.[67]

55 In support of her complaint that the judge erred in undervaluing the Boronia property, the plaintiff noted that the property was a two-storey, five bedroom property on a 990 sq m block of land. The plaintiff submitted the judge 'should have taken judicial notice that a square kilometre of land in Melbourne metropolitan area in 2020 is not available at the price suggested'. Two points may be made: first, the property was not on a 'square kilometre of land', it was on .099% of a square kilometre; and secondly, there was no basis upon which the judge could have taken judicial notice of any relevant fact in dispute on this issue. We see no error in the judge's determination of the value of the Boronia property.

56 In paragraph (f) of ground 2, the plaintiff contends that the judge '[gave] no weight to the objectively understated nature of [the plaintiff's] expenses'. In support of this contention, the plaintiff submitted that her 'list of expenses'[68] 'objectively dictates a monastic life'. As acknowledged by the judge, the plaintiff's weekly expenses totalled $658. There was no suggestion that these were in any way extravagant. Nor can it be suggested that the judge erred in having regard to what the plaintiff had set out in her affidavit. We do not see how the reference to 'monastic life' assists the plaintiff in this proceeding.

57 In paragraph (g) of ground 2, the plaintiff asserts that the judge gave no weight to her evidence of the value of the delayed provision of the Boronia property to her. There is no substance in this complaint. The judge dealt with the issue of the possible delayed provision of the Boronia property to the plaintiff at Primary Reasons [80]-[82].[69] The observations made by the judge in these paragraphs were entirely appropriate in the context of this case. The applicant's submissions to the contrary are little more than a polemic.

58 In paragraph (h) of ground 2, the plaintiff asserts that the judge miscalculated the defendant's assets 'by failing to give any consideration to the $260,000 the defendant had withdrawn from her super prior to trial'. In support of this assertion, the plaintiff submitted:

[H]er Honour failed, despite reference in the submissions of both parties, to consider the defendant's interest in the Compass Superannuation Fund at 1 July 2018 was $744,904 and at 30 June 2019 totalled $704,952.04 but by 18 February 2020 that asset decreased to $455,173.39 indicating she had relocated or spent the sum of $249,788.65.

59 The plaintiff submitted that this 'significant miscalculation' gave rise to a 'serious miscalculation of the resources available to the defendant that vitiated the reasoning required by s 91(2)(d) of the Act'.

60 These submissions are totally without merit. First, there was no evidence that the diminution in value of the shares in the defendant's superannuation fund was caused, or caused solely, by the defendant withdrawing or spending or relocating funds. Moreover, no suggestion of any such kind was put to the plaintiff in cross-examination, or otherwise made at trial. In her final written submissions at trial, the plaintiff observed that the defendant's superannuation entitlements had decreased $268,179.55 since the death of the deceased. The only submission that was then made was:

The plaintiff does not cavil with the defendant's expenditure of her funds as she is entitled to do, but it is open to the court to infer that [the] defendant does not live a modest and frugal lifestyle as alleged in circumstances where she has made two trips to Canada since the deceased's death and personally paid money to her lawyers to pay the estate's legal costs of $86,626.

61 While the matter now sought to be agitated was not explored at trial, the financial documents that were tendered suggest that a more likely explanation for a significant portion of the diminution in the value of the defendant's superannuation, is that the price of the shares in the defendant's superannuation fund went down. Indeed, the plaintiff's counsel conceded this when the bench directed his attention to the Compass Superannuation Investment Summary Report of 30 June 2017, which showed that the then current value of the shares in the fund was some $500,000 less than the cost of purchasing them.[70] In any event, if the plaintiff had wished to put some argument that the defendant's assets were in fact greater than she suggested, or that she had spent more than a quarter of a million dollars in order to fund an extravagant lifestyle, this should have been put to the plaintiff in cross-examination.

62 In paragraph (i) of ground 2, the plaintiff contends that the judge erred in concluding, without any basis, that the making of a Crisp order would 'threaten the defendant's capacity to fund her aged care'. In support of this contention, the plaintiff relied wholly upon the submissions she made with respect to proposed ground 4. Accordingly, we will deal with this contention when we come to consider ground 4.

63 In paragraph (j) of ground 2, the plaintiff asserts that the judge 'ignor[ed] the support the deceased provided to the plaintiff in her adult years'. In support of that assertion, the plaintiff referred to Primary Reasons [68] where the judge observed that the deceased assisted the plaintiff from time to time in her younger years with minor purchases, but otherwise 'no material benefits were received by the plaintiff from the deceased during his lifetime'. Additionally, the plaintiff complained that the judge prevented her from leading evidence about her closeness to the deceased in the form of Facebook posts and text messages. The plaintiff submitted that these errors infected the judge's reasoning when she said at Primary Reasons [46] that, 'on balance, the relationship between the plaintiff and the deceased was not particularly close'.

64 There is no substance in these submissions. Such support as the deceased provided the plaintiff during her adult years was, on any view, modest. Reasonable minds might differ as to the appropriate adjective to describe the relationship between the plaintiff and the deceased. Having considered all of the evidence afresh for ourselves, we are unable to conclude there was any relevant error in her Honour's description of the relationship. While her Honour did not say so in terms, plainly she preferred the evidence of the defendant to the evidence of the plaintiff on disputed questions of fact. On the defendant's evidence, the judge was well-entitled to describe the relationship between the deceased and the plaintiff as one which was not particularly close. Of course, we have not had the benefit of seeing the witnesses give evidence. In those circumstances, we are not satisfied that there is any proper basis upon which we could find that her Honour erred in her consideration of the relationship between the deceased and the plaintiff.

65 As to the Facebook posts and text messages, we note that these were produced late on the eve of trial. The tendering of them was objected to by counsel for the defendant. The judge doubted that they were relevant in the context of the issues in dispute between the parties. She did not rule that they could not be tendered. No attempt was made to tender them during the plaintiff's examination-in-chief. In re-examination, counsel for the plaintiff sought to lead evidence about them. The judge noted that, if this was to be done, it should have been done in evidence-in-chief. There was then further discussion, in which the judge said that she did not see the relevance of the evidence. Ultimately, and in the light of that comment by the judge, counsel for the plaintiff did not press the point. Contrary to the plaintiff's submissions in this Court, the judge did not prevent the plaintiff from leading evidence of her closeness to the deceased, either in the form of Facebook posts and text messages, or at all.

66 Under proposed ground 4, the plaintiff contended that the judge was wrong when she rejected her submission that the Court would take into account that the defendant had no connection to the Boronia property (or to Australia) and that she was likely to sell the property and return to live in Canada.[71] The plaintiff submitted that the judge erred when she said that what the defendant chose to do with any benefits received from the deceased was not relevant to the determination of the plaintiff's claim for further provision.[72] The plaintiff submitted that this reasoning was 'contrary to the confluence of three mutually supporting principles' ('the plaintiff's supporting principles').

67 The first of the plaintiff's supporting principles was said to be that courts are 'rightly concerned with the likely falling of an estate held by an aging beneficiary to unintended beneficiaries'. In support of this principle, the plaintiff relied upon the judgment of Keane JA in Hills v Chalk,[73] wherein his Honour cited Mason J's judgment in White v Barron,[74] as follows:

It is not irrelevant to note here, as well, that it is well-settled that the Act is not intended to facilitate improvements in the lot of the dependants of elderly persons who seek further provision. In White v Barron, Mason J said:

'Circumstances are infinite in their variety and orders must be moulded to the circumstances of the particular case in order to ensure that the provision which is made is adequate for the proper maintenance of the widow, where that is possible. A capital provision should only be awarded to a widow when it appears that this is the fairest means of securing her proper maintenance. However, the provision of a large capital sum for a widow who is not young, may, in the event of her early death, result in a substantial benefit to her relatives, contrary to the wishes of the testator, when a benefit of another kind would have afforded an adequate safeguard to her personally, without leaving her in a position in which she could benefit her relatives from the proceeds of the legacy.'[75]

68 As to the second of the plaintiff's supporting principles, the plaintiff relied upon Nettle J's judgment in McKenzie v Topp.[76] The plaintiff submitted that McKenzie was an example of a 'principle [which] concerned the appropriateness of biological children waiting until after [a] stepparent has died to take from estates largely of the biological parent's provenance'. In McKenzie, Nettle J said:

Other things being equal, right thinking members of society are likely to accept that the needs of the widow of a second marriage should rank in priority ahead of the claims of the children of a first marriage; although of course it is always a question of fact. But equally, upon the death of the widow, and as it were in the event of a surplus, most would surely say that the children of the first marriage should rank for their fair share. For once the widow is gone, and therefore no longer in need of provision, her needs no longer warrant that the children rank behind her or thus her chosen successors.

Of course that is to speak in terms of broad generality and upon the assumption not only of an estate of sufficient value to provide for the children of the first marriage but also of a need for their provision.[77]

69 The third of the plaintiff's supporting principles was described as the 'inherent nature and value of Crisp orders that they involved deferred or delayed transfer of assets through the remainderman'.

70 The plaintiff contended that these three 'principles' required the judge to consider whether the capital of the estate 'might be fully utilised for the benefit of [the] surviving spouse yet preserved howsoever possible (sic) for the benefit of the deceased's only child with significant need'. The plaintiff submitted that the judge erred in concluding that Crisp orders were confined to cases where spousal applicants were seeking to enhance existing life interests. She also submitted that s 96(2) of the Act gave the judge 'very broad powers to make orders as justice demanded and she erred in ruling she was so confined'. In support of her submission that there was authority permitting the making of a Crisp order in a case where a child of the deceased was the applicant for further provision, the plaintiff relied upon Brereton J's decision in Stone v Stone.[78] In Stone, the deceased left his entire estate (including the matrimonial home) to his third wife. An application for provision was made by the adult daughter of the deceased and his second wife. While Brereton J's judgment contains no reference to Crisp, ultimately his Honour made an order that the third wife receive absolutely only a two-thirds share of the deceased's half interest in the matrimonial property, and a life interest in the other one-third share; with the adult daughter receiving the remainder interest in the one-third share. It does not appear that the plaintiff referred to Stone at trial.

71 Finally in respect of this ground, the plaintiff submitted that, insofar as the judge referred to the plaintiff's supporting principles, 'she materially misconceived the underlying facts that should have properly influenced her reasoning' by:

(a) failing to give any weight to the applicant's status 'as default beneficiary';

(b) ruling, without any basis, that a Crisp order threatened the defendant's long term financial security;

(c) failing to consider that 'the solitary benefit of maintaining the freehold of the real estate contended for by the defendant was being able to disburse (sic) (contrary to the defendant's sworn intention) by sale said real estate prior to any need for funds for aged care';

(d) failing to consider the defendant's 'inherently contradictory contention for freedom to sell [the] property while swearing an intention not to';

(e) failing to give any weight to the evidence that the defendant's whole family and background was Canadian and 'a portable estate was likely to return there';

(f) ruling that the delayed provision was of no benefit, while making no assessment of the defendant's likely longevity which was 'doubtful by reason of her age and illness'; and

(g) finding 'the small size of the estate and the defendant's other resources mitigated against such an order when they likely exceeded $1.4 million'.

72 The authorities relied upon by the plaintiff, in support of the existence of the plaintiff's supporting principles, contain statements which give guidance to courts in the hearing and determination of applications under pt IV of the Act. The statements in those authorities, however, are not absolute principles of law to be applied in every case, regardless of its particular facts. Plainly, in the cases in which the statements relied upon by the plaintiff were stated, they were of assistance in the resolution of the particular case.

73 The real issue in relation to ground 4 is whether the judge erred in not accepting the plaintiff's submission that there should be an order for further provision, made in her favour, which limited the defendant's interest in the Boronia property to a life interest, with the remainder interest going to the plaintiff. Clearly, such an order could have been made by the judge if she was satisfied that it was justified in all of the circumstances. Neither Crisp, nor any absence of authority applying Crisp to circumstances of the present kind, prevented the judge from making such an order if that was otherwise the appropriate order to be made.

74 While one might cavil with some of her Honour's reasoning in relation to her refusal to make an order limiting the defendant's interest in the Boronia property to a life interest of some kind, in our view the judge's conclusion was unimpeachable. Of critical importance in this case was the fact that the defendant lived with the deceased in the Boronia property for almost 20 years; they pooled their earnings into one bank account; and from that account, they paid their joint living expenses, including mortgage payments.[79] In the circumstances, we do not see how it could sensibly be contended that the judge should have made an order of the kind sought by the plaintiff in relation to the Boronia property. We also agree with the judge when she said that any lesser interest in the beneficial ownership of the property would threaten the defendant's long term financial security.[80]

75 Ultimately, we see no error in her Honour's conclusion that the plaintiff was not entitled to any order, of the kind sought by her at trial, giving her some remainder interest in the Boronia property. It remains, under this ground, to deal with one further submission made by the plaintiff, which the defendant objected to as not having been made at trial.

76 In oral argument, the plaintiff submitted that the Crisp order she sought in respect of the Boronia property was one which would have permitted the defendant to have sold the property and used not just the income from the proceeds, but the capital as well 'for every necessity'. The plaintiff submitted that such an order was contemplated by Crisp.

77 In support of the submission that this was what was sought at trial, the plaintiff referred to a submission made by her counsel at trial that, 'she [the defendant] gets the house, the ability to do anything with it...'; and her written final submissions, in which it was said:

A Crisp order provides the very thing the defendant claims will be taken away: flexible provision for every necessity.[81]

78 The plaintiff submitted that these submissions demonstrated that her position at trial was that she was content for the defendant to have a 'flexible, portable life interest' in the Boronia property, which could possibly result in the defendant selling the property and spending the entire proceeds of sale before her death. As it was put by counsel for the plaintiff in this Court, the plaintiff was 'prepared to take her chances about this'. The plaintiff submitted that there was no reasonable basis upon which the judge could have rejected her submission that an order of this kind was appropriate in all the circumstances. Acceding to the submission would have given the defendant everything she wanted from the property, including the ability to spend (at least on necessities, if not more widely) the entire proceeds of any sale of the property.

79 The defendant answered these submissions by noting that no such submission was made at trial. There was no suggestion at trial that the order being sought by the plaintiff would have permitted the defendant to sell and spend the whole proceeds of sale so that nothing was left at the end of the defendant's life. If any such submission had been made, it would have been necessary to explore and delineate the circumstances in which the defendant (notwithstanding only having a life interest) might be permitted to spend the entirety of the proceeds of sale so as to leave nothing for the person holding the remainder interest. There was no such investigation of this issue at trial. The defendant submitted that the plaintiff should not now be permitted to advance a case that was not put at trial.

80 Having examined the submissions of the parties made at trial, we think that the many references to Crisp orders by the plaintiff's counsel were properly construed as references to orders of the kind described by Ipp J in Milillo as follows:

A Crisp order is an order of the kind made by Holland J in Crisp v Burns Philp Trustee Company Ltd (NSWSC, 18 December 1979, unreported). Generally speaking such an order gives a plaintiff an interest for life in real property or in an interest in the property, with the right to it (should the need arise) for the purposes of securing, for the plaintiff's benefit, more appropriate accommodation. In Court v Hunt (NSWSC, 14 September 1987, unreported) Young J (as he then was) said that a Crisp order was intended to provide flexibility, by way of a life estate, the terms of which could be changed to 'cover the situation of the plaintiff moving from her own home to retirement village to nursing home to hospital'.

Thus, for example, a Crisp order may entitle a plaintiff, from time to time, to require the executor of a will to sell a home devised by the will, or otherwise owned by the estate, and to use the proceeds for purposes that may include purchasing another home for the plaintiff's use and occupation, or providing accommodation for the plaintiff in a retirement village or similar institution, or in like accommodation providing hospitalisation and nursing care. The flexibility provided by such an order underlies the notion that a Crisp order confers a 'portable life interest'.[82]

81 We do not read the plaintiff's submissions at trial as widely as was asserted by counsel for the plaintiff in oral argument in this Court. At trial, the plaintiff was seeking the provision of a valuable remainder interest in the Boronia property. If the plaintiff had sought some more complex order, which would have permitted the defendant to spend the capital of any proceeds of sale of the Boronia property, the precise terms of form of that order were never articulated or put to the judge. Even if they had been, one can immediately see difficulties about the formulation and enforcement of any such order. In the circumstances, the plaintiff should not now be permitted to pursue a case which was not put at trial.[83]

82 All of that said, we remain of the view that, for the reasons given above, the judge was correct not to make any order (however limited) that affected the defendant's interest in the Boronia property.

Ground 5: failing to take into account the burden of the plaintiff's dependents

83 Under proposed ground 5, the plaintiff submitted that, at Primary Reasons [75], the judge misstated her contention 'as being that the deceased had a moral obligation to provide for Levi, and then failed to apply binding authority to the effect that support of dependents is a relevant factor in determining appropriate provision'. In support of the contention that an applicant's support of dependents is a relevant factor to be taken into account, the plaintiff relied upon Re Buckland;[84] Hughes v National Trustees, Executors and Agency Co of Australasia Ltd[85] and Goodman v Windeyer.[86] The plaintiff submitted that the judge erred in giving no weight to Levi's dependence on her when assessing her financial need; alternatively, the judge wrongly assumed that support for Levi's needs would be provided by Levi's father, despite evidence to the contrary.

84 The plaintiff's submissions must be rejected. The judge did not misstate the submissions made by the plaintiff at trial. As we have already said, at Primary Reasons [75] the judge set out the plaintiff's position that Levi requires ongoing support and treatment, together with the plaintiff's submission 'that the costs of Levi's treatment increased the strain on her financial circumstances'. Later in the paragraph, the judge correctly observed that there was no basis to claim that the deceased should provide any funds for Levi or that the deceased owed any moral obligation to provide for him; and that Levi and his sister are supported financially by their father through child support payments and his payment of half of their school fees. None of this involved any misstatement of the plaintiff's submissions.

85 To the extent that the plaintiff submitted that the judge failed to take into account Levi's medical conditions and the fact that he was dependent upon the plaintiff, that submission must be rejected. Her Honour's repeated references to Levi and the relevance of his circumstances show that her Honour took those matters into account, albeit that, in all of the circumstances of the case, they did not rise to a level which her Honour thought sufficient to grant the plaintiff's application. Having looked at the evidence afresh for ourselves, we are unable to conclude that her Honour erred in this regard.

Ground 1: whether the exercise of the judge's discretion was unreasonable or plainly unjust

86 In support of her contention that the judge's decision was plainly unreasonable and plainly unjust, the plaintiff contended that the evidence showed she was 'objectively living in poverty as an unemployed single mother of two young children' (one of whom was disabled), burdened with debts and thereby had a significant need for support. She contended that the evidence disclosed that the likelihood of her working in the future was 'negligible' and that the deferred benefit of a remainder interest in the Boronia property would have been of significant value to her 'in her old age for future contingencies'. The plaintiff submitted that the judge erred by finding (contrary to authority) that government benefits were an adequate source of maintenance. The plaintiff then submitted:

Her Honour further erred by, contrary to authority in Taylor v Farrugia [2009] NSWSC 801 at [59] and the authorities there cited, throwing the burden of supporting the applicant and her children on to the State.

87 To the extent that the plaintiff submitted that there were absolute rules concerning the way in which government benefits are to be treated in applications under pt IV of the Act, we reject that submission. As Brereton J actually said in Taylor v Farrugia:

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] VicRp 72; [1992] 2 VR 417, 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].[87]

88 The deceased's estate was, as the judge correctly observed, modest. Its major asset (the Boronia property) was one to which the defendant had made a significant contribution over the almost 20 years in which she lived there with the deceased as his domestic partner. During that period she worked full time (save for the period when the deceased became 'very ill', and she 'had to cut back [her] work hours to facilitate [her] caring for [him]'). And all through that period, she pooled her income with the income of the deceased (who, it is to be remembered had substantial periods where he was not in paid employment during this time), and thus making a substantial contribution to the payment of their expenses (including the mortgage over the Boronia property).

89 On the other hand, the evidence called at trial about the plaintiff's need for support in relation to the cost of supporting and providing services for Levi was thin, to say the least. While the evidence raised the speculative possibility that the plaintiff might have to pay for some of the services Levi required, it fell far short of establishing this fact or the likely quantum of any such amount. Similarly, if it was to be seriously contended that the plaintiff's prospects of employment in the future were negligible, one might have expected some hard evidence from medical experts as to the plaintiff's condition and prognosis at the time of trial. No such evidence was, however, led or tendered by the plaintiff.

90 When one examines all of the evidence led at trial, the submission that the judge's decision was plainly unreasonable or plainly unjust must be rejected. To the contrary, in our view the judge's decision was plainly correct. Even if we were persuaded that her Honour's decision was vitiated by some error, having reviewed all of the evidence for ourselves, we would come to the same conclusion as her Honour that the plaintiff's claim for further provision from the deceased's estate should be dismissed.

91 The plaintiff's application for leave to appeal against the judge's order dismissing her proceeding must be refused.

92 The costs of the proceeding below were dealt with on the papers. The plaintiff submitted that the defendant should pay her costs out of the estate. The defendant submitted that the plaintiff should pay the defendant's costs up to and including 19 February 2020 (the day on which the trial was conducted) on a standard basis; and from 20 February 2020 onwards, on an indemnity basis. The defendant's submission for indemnity costs was made on the basis of a contention that the plaintiff had unreasonably rejected an open offer made at the commencement of the trial. The offer was put in the following terms by the defendant's counsel:

I am instructed to put, and I have put to my learned friend albeit only this morning, an open offer by the defendant to finally resolve this case and that open offer is that in lieu of the legacy of $50,000 that the plaintiff is left in the Will, that the plaintiff receive $150,000 but inclusive of her costs.

93 As we have already noted, the judge ordered the plaintiff to pay the defendant's costs of and incidental to the proceeding 'on the indemnity basis', with no order as to the plaintiff's costs of the proceeding. The applicant's proposed ground 6 is as follows:

The judge erred by awarding costs of the proceeding to the defendant and doing so on an indemnity [basis] on a misconceived basis as to:

(a) the reasonableness and timing of the defendant's offers and the commensurate reasonableness of [the plaintiff's] rejection of them;

(b) the prospects of [the plaintiff's] case on proper advice;

and further erred in the exercise of her discretion by having no regard to:

(c) the crushing financial effect on [the plaintiff];

(d) the requirement under s 23 of the Civil Procedure Act 2010 to have regard to the parameters of the dispute set by the parties;

(e) denying [the plaintiff] natural justice [sic] in the right to be heard on indemnity costs for the whole proceeding.

94 The judge ordered the plaintiff to pay the defendant's costs of the whole proceeding on an indemnity basis, notwithstanding that the only application made by the defendant was for indemnity costs from 20 February 2020. Moreover, the judge did not foreshadow to the parties the possibility that she might make a costs order in favour of the defendant which was more favourable than the one actually sought by the defendant. To that extent, the plaintiff was denied procedural fairness, and the costs order must be set aside.

95 The judge rejected the plaintiff's submission that she should have her costs out of the estate. The judge observed that the defendant's position as residuary beneficiary meant that an order that costs be paid out of the estate would result in the defendant paying those costs.[88] The judge also said that it would be unjust in the circumstances for the defendant to bear her own costs. As the judge put it:

The value of the estate is modest with the bulk of the value represented by the Boronia property, which is the defendant's home. The burden of the costs should not fall on the defendant, either as trustee of the estate or as the residuary beneficiary.[89]

96 We agree. For the reasons given by the judge, the plaintiff should not have her costs of the proceeding below out of the estate, and she should pay the defendant's costs of that proceeding. The only issue that remains is whether all or any part of those costs should be on an indemnity basis (either from 20 February 2020 as sought by the defendant at trial, or of the whole proceeding as ordered by the judge).

97 Exercising the costs discretion for ourselves, we do not think that the plaintiff's case at trial was so lacking in merit as to justify ordering her to pay the costs of the whole proceeding on an indemnity basis. We are fortified in that view by the fact that no such order was sought by the defendant at trial. We turn now to the question of whether the costs to be paid by the plaintiff from 20 February 2020 should (as sought by the defendant in the proceeding below) be paid on an indemnity basis.

98 While the judge set out the history of the offers which passed between the parties, in our view the only relevant offer for present purposes is the open offer made on the morning of the trial. We would make two observations about that offer: first, in making the offer, there was no foreshadowing of any application for indemnity costs in the event of the plaintiff rejecting the offer;[90] and secondly, we do not know what the likely quantum of the plaintiff's costs might have been on the morning of the trial.

99 The proceeding between the parties was a one day trial. The open offer was made shortly after the trial commenced. The defendant did not foreshadow any application for indemnity costs in the event that the offer was rejected. In all the circumstances, we are not persuaded that the defendant should be awarded any of her costs on an indemnity basis. In our view, the defendant should have her costs of the proceeding below on a standard basis.

100 Leave to appeal on grounds 1 to 5 will be refused. Leave to appeal on ground 6 will be granted. The appeal on ground 6 will be allowed. Paragraph 2 of the order made 9 July 2020 will be varied by replacing the words 'the indemnity basis' with 'a standard basis'.

[1] Re Schlink; Keane v Corns [2020] VSC 180 ('Primary Reasons').

[3] Re Schlink; Keane v Corns [No 2] [2020] VSC 417 ('Costs Reasons').

[4] Crisp v Burns Philp Trustee Company Ltd (Unreported, Supreme Court of New South Wales, Holland J, 18 December 1979) ('Crisp'). For a description of a 'Crisp order', see Milillo v Konnecke [2009] NSWCA 109, [47]-[48] (per Ipp JA) ('Milillo').

[7] For completeness, we note that the defendant relied upon two further affidavits, both affirmed on 18 February 2020. One affidavit concerned the financial position of the estate, and the other related to the defendant's then current financial position. While the judge did not expressly refer to these two affidavits, there was no suggestion by the parties that her Honour overlooked any of this material in them in coming to her decision.

[17] 'Eligible person' is defined in s 90 of the Act to mean a domestic partner or a child or one of a number of other identified categories of person set out in the paragraphs of that definition.

[51] As we have already said, ground 6 (dealing with costs) can be put to one side for the moment.

[52] Davison v Kempson [2018] VSCA 51, [63] ('Davison').

[55] (1936) 55 CLR 499, 505 ('House').

[58] House (1936) 55 CLR 499, 505.

[59] Ex LMK-13 to the plaintiff's affidavit sworn 3 August 2018.

[61] Primary Reasons [56] (emphasis added).

[63] National Disability Insurance Agency.

[64] For the sake of completeness we note that what the plaintiff's counsel initially told the trial judge was that the plaintiff had not 'applied for NDIS funding yet', not that such funding was 'not available' in any definitive sense. The plaintiff's counsel later described his statement as 'inaccurate'. No party sought to make any issue about this in this Court.

[65] For the sake of completeness we note that at Primary Reasons [27] the judge referred to this evidence being given in cross-examination. The evidence was, however, given in evidence-in-chief. That said, no party sought to make any issue about this in this Court.

[68] As to which, see Primary Reasons [26].

[70] The 2017 Report of the fund showed that a number of unsuccessful investments had been made by the fund. In one case, 5000 shares purchased for at $1.77 per share, were recorded as having a current value of $0.01.

[73] [2008] 1 Qd R 409, 430 [51] ('Hills').

[74] [1980] HCA 14; (1980) 144 CLR 431, 444-5 ('White').

[75] Hills [2008] 1 Qd R 409, 430 [51].

[76] [2004] VSC 90 ('McKenzie').

[78] [2016] NSWSC 605 ('Stone').

[82] Milillo [2009] NSWCA 109, [47]-[48].

[83] See Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598, 1608 [51].

[84] [1966] VicRp 58; [1966] VR 404, 411.

[85] [1979] HCA 2; (1979) 143 CLR 134, 148.

[86] [1980] HCA 31; (1980) 144 CLR 490.

[87] Taylor v Farrugia [2009] NSWSC 801, [59].

[90] As to the relevance of this, see Hazeldene's Chicken Farm v Victorian WorkCover Authority (2005) 13 VR 435, 442 [25].