Lee v Lee; The Estate of Raymond William Lee

The Estate and other property

1. The net actual Estate after costs is $864,768.52. The Estate has total assets of $982,070.42 and the estimated costs of the probate and family provision proceedings are $117,301.90.
2. The notional estate is $1,530,869.47. The notional estate is largely made up of half shares in a number of properties which the Deceased owned with Margaret as joint tenants, including the Islay St Property. By survivorship, those properties are now solely owned by Margaret.
3. Kathryn maintained throughout the hearing that Margaret had failed to disclose all of the Estate's assets and that the size of the Estate was closer to $10 million. This claim was not supported by evidence.

The facts - Generally

1. While there were a number of matters about which the parties disagreed, the essential facts were for the most part not in dispute. It is neither practicable nor necessary to set out in detail every competing argument raised by the parties. Attention is given to those which the Court considers dispositive. To the extent that any other facts set out below were not agreed by the parties, I am satisfied they could not be sensibly disputed.
2. The Deceased and Margaret married in 1965. In 1966, the first of their three children, Kathryn, was born.
3. In 1978, the Deceased and Margaret purchased a property at Leppington as joint tenants (the Leppington Property), where they lived with their three children.
4. On 30 April 2008, the Deceased made the Will. In the event Margaret survived the Deceased for 30 days, the Will left the entire Estate to Margaret but omitted to name an executor.
5. In 2015, the Deceased and Margaret purchased a property at Weir Road, Lower Southgate, NSW (the Weir Road Property). They moved to the Weir Road Property and the Deceased began working with cattle.
6. In 2016, the Deceased and Margaret sold the Leppington Property.
7. In January 2016 and July 2017, Kathryn was injured in a series of car accidents. As a result of her injuries, she began working only intermittently in her occupation as a workplace health and safety consultant.
8. In December 2017, Kathryn's lease on premises at the Gold Coast expired. She took out a lease on an apartment at Main Beach from 2 January 2018 to 2 July 2018. Kathryn occasionally stayed overnight at the Weir Road Property. The Deceased and Margaret would give her small amounts of cash and fill her car with petrol.
9. In March 2018, the Deceased and Margaret purchased the Islay St Property as joint tenants with the proceeds from the sale of the Leppington Property. The contract for sale provided that the vendor could remain in possession until 29 November 2018.
10. In June 2018, the Deceased and Margaret transferred $9,993.58 to Kathryn to assist with her rent. In July 2018, Kathryn signed a new lease which expired in January 2019. In September 2018, the Deceased and Margaret transferred a further $9,993.58 to Kathryn to assist with her rent.
11. On 16 October 2018, the Deceased signed a statutory declaration written by Kathryn (the Statutory Declaration) which read: "I, Ray LEE, do solemnly and sincerely declare that I give my daughter Kathryn LEE XX ISLAY ST MACLEAN NSW 2463. Kathryn is to move into the house ASAP. In the event that I become incapacitated I appoint my daughter Kathryn LEE to fulfil my business role & directorship."
12. On 29 October 2018, Margaret transferred Kathryn an additional $4,993.58 to assist with rent.
13. On 4 November 2018, the Deceased was injured while working on the Weir Road Property. He died on 24 November 2018.
14. On 30 November 2018, the vendor of the Islay St Property, Mr Digney, gave Margaret the keys and vacated the property. Sometime between 30 November 2018 and 14 January 2019, Kathryn began living in the Islay St Property without Margaret's knowledge.
15. Around 14 January 2019, Margaret visited the Islay St Property and discovered that Kathryn had moved in. Margaret subsequently returned with a police officer, who was unable to work out how Kathryn had entered the house. Margaret gave a police statement on 16 January 2019 and arranged for the locks to be changed. Kathryn continued to live in the Islay St Property without Margaret's consent.
16. On 4 October 2019, Margaret's solicitors published a notice of intended application for administration. On 16 October 2019, Kathryn filed a summons seeking family provision. On 29 May 2020, Margaret filed a statement of claim seeking a writ of possession for the Islay St Property. On 17 September 2020, Margaret filed a summons for administration.
17. Margaret continued to pay the rates and bills for the Islay St Property while Kathryn resided there. On 21 September 2020, Linsday J made orders which included: "10) NOTE that, subject to any further order of the Court, the plaintiff gives to the Court an undertaking that during her occupation of the property known as XX Islay Street, Maclean hereafter she will pay or bear council rates levied against the property for the period of her occupation hereafter."
18. Kathryn continued to occupy the Islay St Property at the time of the hearing before me. At the conclusion of the hearing on 4 March 2021, the Court made orders which included: "5. Note that the plaintiff confirms that she will comply with her existing undertaking to the Court to pay rates levied in respect of the property known as XX Islay Street, Maclean (the "Property") in respect of the period that she is occupying the Property. 6. Direct that until further order the plaintiff's continued occupation of the Property is conditional upon her paying electricity, water and any other utilities for the period commencing on 1 January 2021 and thereafter while she occupies the Property on terms that any unpaid amounts (including amounts owing in respect of rates) will be deducted from any family provision that the Court will order in her favour."
19. Margaret is now in her early 70s and has expressed a desire to move into the Islay St Property, of which she is the sole owner.

The facts - Kathryn

1. Kathryn is 55. She is the eldest child of Margaret and the Deceased.
2. Kathryn lived with her parents at the Leppington Property until she was around 25. Since then, she has lived independently in several different locations, including Baulkham Hills and the Gold Coast.
3. Kathryn previously worked for many years as a workplace health and safety consultant. She gave evidence in cross-examination that in some of her roles her income exceeded $130,000 and was at times close to $200,000.
4. Kathryn suffered psychiatric injuries in the course of her employment from 2012 to 2014 and as recorded at [16] above, she was injured in car accidents in January 2016 and July 2017. Kathryn has since worked intermittently, on short-term contracts. She is currently unemployed.
5. Medical reports in evidence assessed Kathryn as able to return to work. A report from her chiropractor indicated that she is able to work only in a reduced capacity: she cannot work full-time hours, remain seated for extended periods of time or lift objects heavier than 8kg. While Kathryn contended that she cannot work, her evidence was that she did bookwork and administration for the Deceased in the year before his death, and assisted him with some manual work on the Weir Road Property. Kathryn said in cross-examination that she would like to return to work if she could. She has retained mannequins used for her workplace health and safety training.
6. Kathryn receives JobSeeker (formerly Newstart) payments from Centrelink of approximately $1,240 per month.
7. Kathryn's estimated monthly expenses in her affidavit sworn on 9 October 2019 were $2,702.19. Her bank statements show that she spent approximately $4,770 per month over 2020.
8. Kathryn conceded in cross-examination that she does not check her bank statements and that she is unable to afford the outgoings on the Islay St Property. Kathryn spends approximately $265 per month dining out and $300 per month at the hairdresser and on beauty products and treatments. She appeared to be unaware that she was spending $50 a month on a lottery. Kathryn sees a chiropractor and a naturopath. Over 2020, she spent $993 on vitamins prescribed by the naturopath and $2,149 on beekeeping expenses, for reasons which were not entirely clear.
9. Kathryn did not provide an updated summary of her assets and liabilities. However, it appears that her assets comprise: 1. Car (2013 Nissan Dualis): estimated value $35,000. 2. Furniture: estimated value $30,000. 3. Other personal property, including mannequins for workplace health and safety training: estimated value $30,000. 4. Cash: the closing balance of Kathryn's bank account on 31 December 2020 was $565.61.
10. Kathryn stated in cross-examination that she had received a $10,000 total and permanent disabilities payment from AMP. She has other pending insurance and worker's compensation claims. Medical reports and submissions related to those claims were in evidence but there was nothing before the Court about the current status or quantum of the claims.
11. Kathryn withdrew her superannuation during the COVID-19 period in 2020. She has no remaining superannuation assets.
12. Kathryn appears to have a debt of $6,460 to her former neighbour, Mr Sinclair, and she owes outstanding payments to Margaret for rates and bills on the Islay St Property in accordance with the orders in [26] above.

The Will

1. Kathryn maintained throughout the hearing and her submissions that she believed the Will "may be fabricated" and that the Deceased made a subsequent will on 5 September 2018, which had been destroyed. She produced no evidence that would enable the Court to make any such finding.
2. The solicitor who drafted the Will, Mr Henshaw, gave evidence in the proceedings. In his affidavit sworn on 18 February 2021, Mr Henshaw stated: "I have checked our client records for the Deceased at Marsdens and there are no other records relating to anyone from Marsdens obtaining instructions or drafting any later will."
3. He gave evidence in cross-examination that: "… I made searches and caused other people to make searches, and there was no record of any further will by [the Deceased]. I knew him for many years. … And I'd done documents for him over the years. And I know that he would have contacted me if he'd made another will after the one he made, and that he did not. So if he went somewhere else that is a matter for someone to find. But, to my knowledge, he never changed the original will which was to leave everything to Margaret."
4. Mr Henshaw also gave evidence about the Will's failure to appoint an executor, a question to which I return at [118] below. He said that the Deceased's previous will dated 14 December 1997 appointed Margaret as executor. To his recollection, it was the Deceased's clear intention that Margaret would become executor and trustee of the Estate if she survived the Deceased. Mr Henshaw stated that in removing certain provisions of the Will on the Deceased's instructions, he may have accidentally removed the words appointing Margaret as executor.
5. Mr Henshaw indicated that the legal files relating to the preparation of the Will had been destroyed after seven years, in accordance with Marsdens' usual processes.
6. Mr Henshaw presented as a careful and honest witness. He frankly admitted his mistake in drafting the Will. He has retired from legal practice and has no pecuniary or other interest in the outcome of these proceedings. The Court accepts his evidence without hesitation.

The Islay St Property

1. A central issue as Kathryn presented her case was whether the Deceased intended the Islay St Property to be Kathryn's.
2. Kathryn's evidence was that the Deceased purchased the Islay St Property for her. She contended that before signing the Statutory Declaration, the Deceased had given her the keys and they were waiting for vacant possession so that she could move in.
3. Ms Catanzariti submitted that Kathryn's evidence that the Deceased purchased the Islay St Property for her was inconsistent with the fact that the Deceased had purchased it as joint tenants with Margaret, and never severed the joint tenancy. Margaret gave evidence that she and the Deceased had inspected the Islay St Property together before purchasing it, and that they planned to live there. Mr Digney gave evidence that the Deceased said he had bought the Islay St Property for Margaret, and that he heard Margaret and the Deceased talking about their plans to live in the Islay St Property together.
4. Ms Catanzariti contended that Kathryn broke into the Islay St Property. Mr Digney's evidence was that he gave the keys to the Islay St Property only to Margaret and only after the Deceased's death. Mr Digney remained in possession of the Islay St Property until 29 November 2018 and, to his knowledge, the only items in the property at that time were his and his wife's. Kathryn did not produce the garage remote she said the Deceased gave her in answer to a call and the evidence she gave about the number of keys was inconsistent with Mr Digney's evidence.
5. Kathryn's evidence was that the Deceased executed the Statutory Declaration because he was concerned about his health and wanted to ensure there were arrangements in place for her to live at the Islay St Property.
6. Ms Catanzariti submitted that there were suspicious circumstances surrounding the Statutory Declaration which raised questions about whether the Deceased knew and approved the contents. She properly conceded that her submission could go no higher than this on the evidence, but submitted that the Statutory Declaration should be given less weight because of those circumstances. Ms Catanzariti highlighted the following: 1. Kathryn conceded that the Statutory Declaration was in her handwriting, not the Deceased's. It was Kathryn's evidence that she had written the document on the Deceased's instructions. 2. Kathryn admitted that the Deceased wore reading glasses, and that she was not sure he had them on the day he signed the Statutory Declaration. 3. The Deceased was at the RMS the day the Statutory Declaration was signed in order to sign a statutory declaration about a driving fine. 4. Kathryn's explanation of the Statutory Declaration in cross-examination is not reflected in the document. Kathryn's evidence was that the Deceased was concerned about "what happens if I drop dead", but the document refers to the event in which the Deceased becomes "incapacitated". 5. Kathryn gave evidence that the Deceased told her to keep the Statutory Declaration because it was important, but she was unable produce the original. 6. The Statutory Declaration could be seen to be inconsistent with the contract for sale of the Islay St Property which provided that the vendor could remain in possession until 29 November 2018.

The Islay St Property - Conclusions

1. I do not accept that the Statutory Declaration should be given less weight in determining the Deceased's intentions. The circumstances to which Ms Catanzariti pointed at [52] above are not necessarily inconsistent with the Deceased knowing and approving the contents of the document which he signed. There was no evidence before the Court that would enable a finding that the Statutory Declaration was forged or otherwise inauthentic. In the absence of such evidence, the Court accepts the document on its face.
2. However, even if he wanted to do so, the Deceased could not by himself give Kathryn the Islay St Property, by the Statutory Declaration or any other instrument. The Deceased owned the Islay St Property, like all of his properties, as joint tenant with Margaret. There was no evidence that he ever sought to sever the joint tenancy.
3. For the purposes of her family provision claim, the Court accepts that the Deceased's intention was that Kathryn should have secure accommodation. The Court infers this intention from the fact that the Deceased transferred Kathryn money for rent when she had difficulties with her accommodation on the Gold Coast, and subsequently signed the Statutory Declaration when the time for Mr Digney to vacate the Islay St Property approached. I return to the circumstances of Kathryn's occupation of the Islay St Property in [94(12)] below.

Authorities - Kathryn's family provision claim

1. The Act relevantly provides: "59 When family provision order may be made (1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that - (a) the person in whose favour the order is to be made is an eligible person, and … (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both. (2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made. … 63 Property that may be used for family provision orders (1) A family provision order may be made in relation to the estate of a deceased person. … (5) A family provision order may be made in relation to property that is not part of the estate of a deceased person, or that has been distributed, if it is designated as notional estate of the deceased person by an order under Part 3.3. … 75 Transactions that are relevant property transactions (1) A person enters into a relevant property transaction if the person does, directly or indirectly, or does not do, any act that (immediately or at some later time) results in property being: (a) held by another person (whether or not as trustee), or (b) subject to a trust, and full valuable consideration is not given to the person for doing or not doing the act. (2) The fact that a person has entered into a relevant property transaction affecting property does not prevent the person from being taken to have entered into another relevant property transaction if the person subsequently does, or does not do, an act affecting the same property the subject of the first transaction. (3) The making of a will by a person, or the omission of a person to make a will, does not constitute an act or omission for the purposes of subsection (1), except in so far as it constitutes a failure to exercise a power of appointment or disposition in relation to property that is not in the person's estate. … 80 Notional estate order may be made where estate affected by relevant property transaction (1) The Court may, on application by an applicant for a family provision order or on its own motion, make a notional estate order designating property specified in the order as notional estate of a deceased person if the Court is satisfied that the deceased person entered into a relevant property transaction before his or her death and that the transaction is a transaction to which this section applies. Note - The kinds of transactions that constitute relevant property transactions are set out in sections 75 and 76. (2) This section applies to the following relevant property transactions - … (c) a transaction that took effect or is to take effect on or after the deceased person's death. … 87 General matters that must be considered by Court The Court must not make a notional estate order unless it has considered the following - (a) the importance of not interfering with reasonable expectations in relation to property, (b) the substantial justice and merits involved in making or refusing to make the order, (c) any other matter it considers relevant in the circumstances. 88 Estate must not be sufficient for provision or order as to costs The Court must not make a notional estate order unless it is satisfied that - (a) the deceased person left no estate, or (b) the deceased person's estate is insufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made, or (c) provision should not be made wholly out of the deceased person's estate because there are other persons entitled to apply for family provision orders or because there are special circumstances."
2. Section 60(2) of the Act lists factors the Court may have regard to in determining whether to make a family provision order and the nature of any order.
3. In Bowers v Bowers [2020] NSWSC 109 (Bowers), Hallen J said at [284] that determining what provision ought to be made: "… involves "an instinctive synthesis that takes into account all the relevant factors and gives them due weight": Grey v Harrison [1997] 2 VR 359 at 367 (Callaway JA, Tadgell and Charles JJA agreeing). It is not a scientific, or arithmetic, or an exact exercise and it is often difficult to articulate the factors which contribute to that "instinctive synthesis". Indeed, it is often not susceptible of complete exposition and minds may differ as to the provision which ought to be made."
4. The principles in relation to claims by adult children were conveniently set out by Hallen J in Camernik v Reholc [2012] NSWSC 1537 at [159], in a passage which I respectfully adopt and will apply: "In relation to a claim by an adult child, the following principles are useful to remember: (a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. (b) It is impossible to describe in terms of universal application, the obligation, responsibility, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801. (c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death if he or she is able to do so. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute: Taylor v Farrugia. (d) If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland Deceased [1966] VR 404 at 411; Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 148; Goodman v Windeyer at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons to whom the applicant, however reasonably, wishes to support, where there is no obligation to support such persons: Re Buckland Deceased at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 537; Mayfield v Lloyd-Williams, at [86]. (e) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2), at 545; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45. (f) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 (28 August 2003) at [181], [182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 at [17]. (g) The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd at 149."
5. In Bowers, Hallen J observed at [285] that the testator: "… did not have an obligation, or responsibility, to provide an unencumbered home for him out of her estate simply because he was her son and because he does not have a home of his own."
6. If provision for accommodation is to be made, in determining the type of accommodation for which provision should be made the observations of the Court of Appeal in Smith v Johnson [2015] NSWCA 297 (Smith) (Sackville AJA, Macfarlan and Ward JJA agreeing) are relevant: "83 … No doubt there will be cases where an applicant who has no family responsibilities and no prospects of paid employment requires more space than is provided by a one bedroom unit. But the evidence in this case did not establish that Andrew's circumstances created a need for anything other than a reasonably appointed one bedroom unit in the St Mary's area. Specifically, the evidence did not show that Andrew had existing or foreseeable family responsibilities or work or other commitments that created a need for a two bedroom unit. 84 I acknowledge that the assessment of an applicant's needs is not a mechanical process. In Andrew v Andrew, [44] Allsop P observed that "[a]ccepted and acceptable community values permeate or underpin many, if not most, of the individual factors in s 60(2)". That observation applies to the concept of "financial needs" embodied in s 60(2)(d) of the Succession Act. The needs of a person depend on a range of factors that will vary from case to case. Some of those factors, such as the person's age and earning capacity, are specifically mentioned in s 60(2). Other factors, such as the person's financial or non-financial responsibilities to family members, [45] or the standard of living which the deceased encouraged the person to enjoy, are not expressly identified in s 60(2) of the Succession Act. 85 Nonetheless, an assessment of needs, particularly where it is directed to such an important matter as the nature and cost of accommodation required by an applicant, must have a sound evidentiary foundation. …"
7. On the question of provision for a buffer for contingencies, Sackville AJA stated in that same case at [90]: "… I would regard the figure of $90,000 awarded by the primary Judge as a "buffer" to be somewhat generous. I accept that adequate provision for Andrew's proper maintenance and advancement in life requires him to have some funds as a "buffer" against the vicissitudes of life, having regard to his psychiatric disabilities and his inability to obtain employment. Recognising that a figure involves an exercise of judgment, I would select a more modest figure in the range of $50,000 to $70,000 as an appropriate normal "buffer"."

Authorities - Rectification of the Will

1. Section 27 of the Act provides: "27 Court may rectify a will (1) The Court may make an order to rectify a will to carry out the intentions of the testator, if the Court is satisfied the will does not carry out the testator's intentions because: (a) a clerical error was made, or (b) the will does not give effect to the testator's instructions. (2) A person who wishes to make an application for an order under this section must apply to the Court within 12 months after the date of the death of the testator. (3) However, the Court may, at any time, extend the period of time for making an application specified in subsection (2) if: (a) the Court considers it necessary, and (b) the final distribution of the estate has not been made."
2. The relevant principles were conveniently summarised by Hallen J in Estate of Aspasia Kandros [2019] NSWSC 757 at [60]-[66] in a passage which I again respectfully adopt and will apply: "60 It is a condition precedent to the exercise of the power in s 27 that the Court be satisfied that the Will does not carry out the will-maker's intentions and that this satisfaction be based on one of two specified reasons, namely, either that a clerical error was made, or that the Will does not give effect to the will-maker's instructions. 61 It is clear, then, that the Court must make findings about the "intentions" of the testator because, until it does, it cannot be satisfied that the Will does not carry out those intentions. Thus, what it was that the will-maker intended concerning the part of the will that is to be rectified must be established. What must be shown is the actual intention, not what the intention probably would have been had the will-maker thought about the matter: Trimmer v Lax; Estate M A Fresen (unrep, NSWSC, Hodgson J, 9 May 1997). 62 The intention must be examined as at the date of the Will, not the date of death: Re Estate of Spinks; Application of Mortensen and Eassie (NSWSC, Needham J, 22 August 1990, unreported); in the Court of Appeal in Bryan William Mortensen and Elizabeth Gedge Eassie v State of New South Wales (NSWCA, 12 December 1991, unreported), at 5; Rawack v Spicer, at [27]-[28]; and Vescio v Bannister (Estate of the late Betty Tait) [2010] NSWSC 1274, at [14-15]. 63 Rawack v Spicer was cited, with approval, by Barrett J in Long v Long; Estate of Ethel Edith Long [2004] NSWSC 1002. His Honour then went on to say, at [9]: "The important point is that the court must be satisfied, according to the balance of probabilities, as to not only a negative proposition (that the testatrix did not intend the will to be in the form it eventually took) but also a positive proposition (that the testatrix intended the will to be in the form for which the plaintiff contends). This is the effect of the statute and, as Sheller JA observed in Mortensen v State of New South Wales (unreported, NSWCA, 12 December 1991), the court's task is to give effect to the language of the section without paying 'over much regard to the principles evolved by equity as part of the doctrine of rectification'." 64 Although the standard of proof on the issue is on the balance of probabilities, clear and convincing proof is required: Re Estate of Max Frederick Dippert, at [34]; Rawack v Spicer, at [30]-[31], quoting Hodgson J in Trimmer v Lax at 12-13). 65 The meaning of "testator's intentions" was considered (albeit in relation to the former section) in Re Swain (Dawn) [2008] NSWSC 1343, at [25]-[27]: "Section 29A refers to the intention of the testator. In Mortensen v New South Wales (NSWCA, 12 December 1991, unreported) Sheller JA, with whom Mahoney and Meagher JJA agreed, said that s 29A: is available for mistakes, not for lack of vision or perception or knowledge. It is a section directed at mistakes in expressing the testator's intentions. In that case the testatrix had made it manifestly clear that she did not want her money to 'go to the government' which for all intents and purposes meant she did not want to die intestate. However, there was a failure of one of the gifts she made and the result was that there was a partial intestacy. It was argued that the testatrix's intentions were that no monies should go to the government, and accordingly the will should be rectified. The Court of Appeal, like Needham J at first instance, dismissed the application. Sheller JA said that it would seem on the evidence that the will was so expressed as not to carry out the testatrix's intentions. However, the section does not only require the court to find that fact, but also to find that the court can rectify the will 'as to carry out the testator's intention'. In the Mortensen case even though the intentions were that no monies should pass to the government, the testatrix had not indicated which of the possible options she would wish to pursue had she realised that her primary gift failed. Accordingly, the will could not be rectified." 66 Thus, the three questions posed by s 27 are, first, what were the will-maker's actual intentions with regard to dispositions in respect of which rectification is sought; second, is the will expressed so that it fails to carry out those intentions; and, third, is the will expressed as it is in consequence of either a clerical error, or a failure on the part of someone to whom the will-maker gave instructions in connection with the will, to comply with those instructions?"

Kathryn's submissions - Kathryn's family provision claim

1. Kathryn's written submissions contained substantial amounts of material which is properly characterised as evidence. Ms Catanzariti raised no objection to the material, with the exception of a report by Sarah Woods concerning Kathryn's superannuation which was not read at the trial. I uphold Ms Catanzariti's objection to that report but have otherwise considered the material to the extent it was relevant. I have limited this summary to submissions, properly described.
2. Kathryn contended that the Court could make provision for her of the Islay St Property in its entirely under ss 75 and 80 of the Act. She submitted that in signing the Statutory Declaration, the Deceased entered into a relevant property transaction that would allow the Islay St Property to be designated as notional estate.
3. Kathryn submitted that applying Taylor v Farrugia [2009] NSWSC 801 (Taylor), a parent can choose to provide for their child, and that in purchasing the Islay St Property, the Deceased had demonstrated his moral obligation to provide accommodation for her.
4. Kathryn submitted that because she is unable to work, in addition to unencumbered accommodation, she requires funds for superannuation contributions and to cover the costs associated with owning a home and car (such as bills, insurance and registration) until she reaches retirement age in 13 years' time. Further, Kathryn submitted that she requires a buffer for contingencies and unexpected life events.
5. In relation to the matters set out in s 60(2) of the Act, Kathryn submitted: 1. Relationship with the Deceased (s 60(2)(a)): that she and the Deceased had a caring and loving relationship, that she attended the Deceased's work from a young age and learnt how to operate parts of his business, and that the Deceased intervened when her health deteriorated. 2. Nature and extent of the Deceased's obligations to the applicant and other beneficiaries (s 60(2)(b)): that by the Statutory Declaration, the Deceased had assumed responsibility for Kathryn, and that other potential applicants (notably, Kathryn's siblings) had chosen not to make a claim. 3. Nature and extent of the Estate (s 60(2)(c)): that she believes the value of the Estate is in fact approximately $10 million (see [9] above). 4. The resources and needs of the applicant and other beneficiaries of the Estate (s 60(2)(d)): that she has no financial resources because of her injuries and "special circumstances", and that Margaret is financially comfortable. 5. The applicant's contribution to the Estate and Deceased's welfare (s 60(2)(h)): that she assisted the Deceased with his business from a young age. 6. Provision made for the applicant during the Deceased's lifetime (s 60(2)(i)): that the Deceased provided financial support through cash for rent and living expenses (see [17] and [19] above), engaged her in his business and had a succession plan for her. 7. Evidence of the testamentary intentions of the Deceased (s 60(2)(j)): first, that the Deceased intended to provide the Islay St Property for her, and that the Statutory Declaration was evidence of that intention. Second, that the Deceased intended all his possessions to go to his children, and that this is evidenced by the affidavits of family and friends who knew him. 8. Character and conduct of the applicant (s 60(2)(m)): that her character and conduct was of a high standard, that she was involved in the Deceased's life and was respectful towards Margaret.

Margaret's submissions - Kathryn's family provision claim

Margaret's submissions - Notional estate

1. Ms Catanzariti submitted for Margaret that under s 88 of the Act, the Court must not have regard to notional estate in making provision for Kathryn. Ms Catanzariti submitted that the actual Estate of $982,070.42 is sufficient for Kathryn's family provision claim and costs, that there are no other applicants seeking provision, and no special circumstances that would warrant provision being made out of notional estate.
2. Ms Catanzariti submitted that even if the Court did designate notional estate, the Islay St Property could not be designated as notional estate having regard to "the importance of not interfering with reasonable expectations in relation to property" under s 87(a). Ms Catanzariti submitted that Margaret had a reasonable expectation that the surviving spouse would own the Islay St Property because it was purchased as joint tenants, with money from a joint bank account, the funds of which were derived from another jointly owned property. Ms Catanzariti drew attention to Margaret's evidence that she expected to live in the Islay St Property, Mr Digney's evidence that Margaret and the Deceased inspected the Islay St Property together and talked about living there, and the evidence of a friend of the Deceased, Mr Davis, that the couple intended to live there.
3. If the Court were to designate notional estate, Ms Catanzariti submitted that the Court could at most designate half of the Islay St Property. Ms Catanzariti submitted that the relevant property transaction the Deceased entered into that could allow the Islay St Property to be designated as notional estate under s 80 was the Deceased not severing the joint tenancy with Margaret. If the Deceased had done so, his half interest in the Islay St Property would have formed part of the actual Estate. However, the Deceased could not do any act that would have made the whole of the Islay St Property part of the Estate.
4. Ms Catanzariti submitted that Margaret's half interest could not be part of a relevant property transaction under s 75, because Margaret gave full valuable consideration for her share. Ms Catanzariti again drew attention to the fact that the purchase price for the Islay St Property was paid from one of the Deceased and Margaret's joint bank accounts, and that the money in the joint bank account derived from the sale of the Leppington Property, which was also jointly owned.

Margaret's submissions - Provision for Kathryn

1. Margaret accepted that inadequate provision was made for Kathryn in the Will, and that some provision should be made.
2. Ms Catanzariti's primary submission for Margaret was that only provision for a modest buffer for contingencies should be made for Kathryn. Relying on Taylor, Ms Catanzariti submitted that the community does not expect a parent to support their child in every way possible and that this is not a case where the community would expect more than a buffer to be provided. She submitted that provision should not be made for an unencumbered home. Ms Catanzariti drew attention to the following factors in support of her primary submission.
3. First, Kathryn did not live with the Deceased and had not lived with the Deceased since she was a child.
4. Second, Kathryn was financially independent from the Deceased. Even after her accidents, there is at most evidence that the Deceased paid Kathryn's rent for several months, occasionally provided her with cash for living expenses and filled her car with petrol when she visited him.
5. Third, Ms Catanzariti submitted that Kathryn had chosen not to buy a home and to instead rent large, expensive properties while on a single person's, limited income.
6. Fourth, Kathryn was not the Deceased's carer and Kathryn's evidence about how she assisting the Deceased with his business was disputed. Ms Catanzariti contended that any contribution Kathryn made to the Estate or the Deceased's welfare was modest and that, at most, the Deceased was planning to involve Kathryn in his work in the future.
7. Fifth, Ms Catanzariti submitted that Kathryn received provision during the Deceased's life, namely, the funds for rent, other cash and petrol. Further, for a number of months, Margaret paid all outgoings on the Islay St Property while Kathryn was living there.
8. Sixth, while Margaret did not put her financial circumstances in issue, Ms Catanzariti submitted that the Court should consider her moral claim as the nominated beneficiary of the Estate and the surviving owner of the jointly held property (s 60(2)(b)), s 87, Sammut v Kleeman [2012] NSWSC 1030 [136]-[140]). Margaret and the Deceased were married for over 50 years until his death, jointly owned property from 1978, and used joint bank accounts. Multiple witnesses gave evidence that the Deceased spoke fondly of his wife.
9. Seventh, the Deceased had three children and there is evidence that he said he was equally close to them and wished to benefit all of them (notwithstanding that Kathryn's two siblings are not participants in these proceedings).
10. Eighth, Ms Catanzariti submitted that there would be a moral hazard in making provision for accommodation given Kathryn's conduct. Ms Catanzariti highlighted evidence that Kathryn unlawfully entered and remained in the Islay St Property, and refused to leave or pay bills. Ms Catanzariti contended that this conduct also compelled the Estate to incur the costs of the possession proceedings.

Margaret's submissions - Buffer for contingencies

1. Ms Catanzariti submitted that the Estate should only be required to provide a modest amount to Kathryn as a buffer for contingencies. Ms Catanzariti advanced two main reasons for this.
2. First, Ms Catanzariti contended that Kathryn's failure to accumulate a buffer was her own choice, relying on Barbuto v Barbuto [2019] NSWSC 1023. Ms Catanzariti submitted that the Court should not be overly generous in providing a buffer when Kathryn's choices, and not a lack of opportunity, have meant she is without one.
3. Second, Ms Catanzariti submitted that Kathryn has reasonable prospects of being able to work and earn income in the future.
4. Ms Catanzariti put that $100,000 would be an appropriate buffer, with an additional $20,000 for discretionary spending and $10,000 for a car, if the Court accepted her primary submission that a buffer for contingencies alone should be provided. She submitted that the buffer should be for contingencies and not specific payments, given that Kathryn is receiving Centrelink payments and may work in the future.
5. Ms Catanzariti contended that if the Court did not accept her primary submission and made provision for accommodation, $60,000 would be an appropriate buffer.

Margaret's submissions - Accommodation

1. Margaret's primary submission was that no provision for accommodation should be made (see [75]). However, Ms Catanzariti submitted that if the Court were to make provision for accommodation for Kathryn, it should at most be a modest two-bedroom house with a lock-up garage and a small yard. It was also contended that a rental or strata property would be more suitable for Kathryn than a house, as she would not have the same maintenance obligations.
2. Ms Catanzariti raised the following factors in support of these submissions. Kathryn's health issues mean she has difficulty maintaining a property, and she hires people for many cleaning and gardening tasks. Kathryn has indicated that she cannot afford rates, water, electricity and other expenses for a large property. Kathryn is single and has no dependents who reside with her. Kathryn did not explain why her mannequins needed to be stored in a bedroom rather than storage, but if they did, that would require only a second bedroom. Ms Catanzariti conceded that rural areas do not have many one-bedroom properties, and that accordingly a two-bedroom property is a more likely possibility. Ms Catanzariti drew attention to the observations in Smith about the appropriate number of bedrooms set out in [61] above.
3. On the question of location, Ms Catanzariti contended by analogy with Smith that Kathryn need not live in Yamba or Maclean, and could instead reside in other parts of the Clarence Valley and Northern Rivers area where the average price of accommodation is lower. Ms Catanzariti highlighted that Kathryn's bank statements show she often shops at Grafton. She submitted that a larger regional centre, such as Grafton, Casino or Lismore, would have more extensive medical services to support Kathryn's needs. Kathryn's only significant attachment to Maclean is her chiropractor, however if she lived in Grafton, she would remain within driving distance.

Consideration - Kathryn's family provision claim

1. Kathryn's family provision claim was filed on 16 October 2019, within 12 months of the Deceased's death (s 58(2) of the Act). As a child of the Deceased, she is an eligible person under s 57(1)(c).
2. As set out in [74] above, Ms Catanzariti conceded that the Will did not make adequate provision for Kathryn's proper maintenance, education or advancement in life (s 59(1)(c)). The question before the Court was therefore what provision should be made.
3. In what follows, I cross-reference the sub-paragraphs to the relevant provisions of s 60(2) of the Act setting out matters which may be taken into account by the Court: 1. Relationship with the Deceased (s 60(2)(a)): Kathryn was the Deceased's daughter. 2. Obligations owed by the Deceased to Kathryn and to Margaret as the beneficiary of the Estate (s 60(2)(b)): Kathryn was an adult child who had lived independently from the Deceased for many years. Margaret was the Deceased's spouse for over 50 years. 3. The size of the Estate, including any property that could be designated as notional estate (s 60(2)(c)): this is set out in [7] and [8] above. 4. Financial resources and earning capacities of Kathryn and Margaret (s 60(2)(d)): this is set out in [34]-[40] in relation to Kathryn. While Margaret did not put her financial situation in issue, the Act provides that the Court can consider her needs as the beneficiary of the Estate. Margaret is in her early 70s and other than investments, she has limited capacity to earn income into the future. 5. Any disability (s 60(2)(f)): Kathryn's injuries are set out in [32] above. 6. Age (s 60(2)(g)): Kathryn is 55. 7. Any contribution to the Estate or the Deceased's welfare (s 60(2)(h)): Kathryn's involvement with the Deceased's work was disputed. Kathryn contended that she did bookkeeping and earthworks for the Deceased, and that he had a succession plan for her. Margaret's evidence was that the Deceased was largely retired and that Kathryn had little to no involvement in his work. I accept that Kathryn did do some work to assist the Deceased but, having observed her in the witness box, I consider her evidence is likely to have been exaggerated on this point. In any event, given the conflicting evidence and the existence of other, more significant factors in the present case, this was a minor factor in the exercise of the Court's discretion. 8. Provision made by the Deceased for Kathryn (s 60(2)(i)): the Deceased made no provision for Kathryn in the Will. The provision made by the Deceased for Kathryn during his lifetime is set out at [17] and [19] above. 9. Testamentary intentions of the Deceased (s 60(2)(j)): As set out at [55], the Deceased intended to ensure Kathryn had secure accommodation. The Deceased's testamentary intention as seen in the Will was to leave the entire Estate to Margaret if she survived him, and to their children in equal shares if she did not. 10. Whether Kathryn was being partly maintained by the Deceased before his death (s 60(2)(k)): as set out at [19] and [21] above, the Deceased was maintaining Kathryn's accommodation before his death through payments for rent. The Deceased also provided Kathryn with small amounts of cash and petrol, but Kathryn was financially independent from the Deceased and had been since she was a young adult. 11. Whether any other person is liable to support Kathryn (s 60(2)(l)): no other person is liable to support Kathryn. She has pending insurance claims, but failed to make proper disclosure about what stage these claims had reached or their likely outcome. 12. Kathryn's character and conduct before and after the Deceased's death (s 60(2)(m)): Kathryn has been squatting in the Islay St Property since the Deceased's death. Because Margaret changed the locks, the Court finds that Kathryn would necessarily have broken in or searched for a way to deliberately enter the house without Margaret's consent. Based on the evidence set out in [49] and [50] above, especially of Mr Digney who was an independent witness who I accept as a witness of truth, I am also satisfied that Kathryn initially broke into the Islay St Property. While she may have genuinely believed in her own mind that she was entitled to the Islay St Property, her state of mind is only an explanation and not an excuse for her behaviour.
4. It is clear that Kathryn's primary need is for accommodation. She is currently squatting in the Islay St Property. She has no available funds with which to purchase a home and her unstable financial situation places her in a precarious position as a renter.
5. The Court has accepted that it was the Deceased's intention to ensure that Kathryn had secure accommodation. In light of that intention, taken together with her current financial circumstances and her somewhat limited prospects of future employment, the Court finds that provision of funds should be made to allow Kathryn to purchase a home.
6. Kathryn contended that the cost of a suitable property would be $740,000-$800,000. She stated that she had previously lived by herself in a four-bedroom house with a five-car garage and lap pool. She indicated that she needed storage space and a spare room for visitors and a home office. She stated that she needed at least two bathrooms because "I don't share".
7. As outlined at [89]-[91] above, Ms Catanzariti submitted that Kathryn would be suitably accommodated in a modest two-bedroom property with a garage in the Northern Rivers area. The Court accepts Ms Catanzariti's submission that such a home would be suitable for Kathryn.
8. Market analysis and real estate searches in evidence showed that such a home could be purchased for approximately $250,000-$350,000 in Grafton, $350,000-$450,000 in Townsend, and $400,000-$500,000 in Maclean or Yamba.
9. While Kathryn is a single person, I accept that she requires a two-bedroom home to allow for a home office, space for friends or family to visit, or a carer in later years. For Kathryn to return to her work, she would also require storage space for equipment and records, which would be served by either a garage or another bedroom.
10. However, the Court concludes that appropriate provision for accommodation for Kathryn would go no further than this. The primary reason Kathryn sought provision for a larger and more expensive property appeared to be what Kathryn referred to in cross-examination and the evidence as her "status" or "station in life": "A. … I don't need to be living in sloppy seconds and a standard that does not fit what I am used to. Q. So you - A. I work hard at maintaining standards. Even if I'm out there with a less than 10 kilo lawnmower that I've bought from Aldi, I try to mow the flat parts of the ground. A. So you're saying you need a place that's appropriate to your status. Q. Very much so. And Dad purchased Islay Street to put me there because it met my status..."
11. A medical report from Dr Wyatt of 13 October 2019 noted that: "[Kathryn] referred on a number of occasions to her station in life being substantially reduced since she last worked in full-time employment. She said that while the house in Maclean was probably the most expensive in Maclean it was still a step down from what she was used to when she was residing in Sydney. On multiple occasions she referred to a large house in Sydney with a five car garage."
12. Kathryn said in cross-examination: "Why shouldn't I live in luxury, quite frankly?"
13. Kathryn admitted that she cannot maintain a large property and garden herself, and hires people to assist her. She said that "I've always had gardeners or whatever assistance I may have needed at the time I get it."
14. The evidence did not reveal any other persuasive reason why Kathryn would require a larger property. While Kathryn has two cats, Chanel and Dior, there was nothing to suggest that a larger home would be necessary to accommodate them. There was also no evidence to support a conclusion that Kathryn requires a large garden for any beekeeping activities. She refused to disclose the whereabouts of the beehives she had purchased, stating: "I'm not telling you. They are stored in a secret bee house."
15. It does not appear that Kathryn has any particular attachment to Maclean, an expensive location relative to other towns in the Northern Rivers. While Kathryn expressed a desire to continue seeing her chiropractor in Maclean, she has been his patient for a relatively short period of two years. Kathryn has only resided in Maclean since 2018, has no close friends there, does not get along with her mother who lives nearby, and regularly shops at Grafton and other nearby towns. In reply to a question about where she would live if she could not stay in Maclean, Kathryn volunteered that she would consider moving to Tasmania, South Australia or returning to the Gold Coast.
16. Kathryn's response to more affordable locations in the Northern Rivers area suggested by Ms Catanzariti, such as Grafton and Lawrence, was that "the demographics, geographics, and psychographics of Grafton do not suit Kathryn Lee."
17. Having regard to these facts, I am not persuaded that the Court should order provision for accommodation of the amount sought by Kathryn. While Kathryn may want a large house that befits her "status", unencumbered accommodation of that nature is certainly not something that the Deceased had a moral obligation to provide for an adult child who had been financially independent for at least 30 years. This conclusion is strengthened in circumstances where making such provision would exhaust the entire Estate which the Deceased intended to leave to his wife of over 50 years, and where on Kathryn's own evidence, she is unable to maintain a large property without hiring people to assist her (which she does not have the funds to do).
18. The other needs Kathryn identified were funds to cover the costs of owning a home and car, superannuation and a buffer for contingencies. It is clear that Kathryn is not in a secure or sustainable financial position. It is apparent that she spends significantly more than her income from JobSeeker, even without expenditure on rent or rates, water, electricity and gas bills. She has no superannuation or financial buffer for contingencies.
19. I accept that Kathryn has been injured for a number of years and it has been difficult for her to work. In the terms of the authorities to which I have referred at [58]-[62] above, Kathryn is an adult child who has fallen on hard times. She has no financial reserves or funds for retirement, in part because of ill health. There are assets available in the Estate to ensure that she is not left destitute.
20. In light of these matters, I consider that it would also be proper to make some provision for discretionary expenditure and a buffer for contingencies for Kathryn. To the extent she cannot afford to pay bills and other necessary expenses, provision of funds for discretionary expenditure would assist her to cover those costs until she returns to work. Those funds would also assist Kathryn to make superannuation contributions, re-train or replace her car if necessary.
21. However, I consider that the amount of provision for both discretionary expenditure and a buffer should be only modest. Kathryn is 55 and the evidence is that she will be able to work and earn income for a number of years to come. Absent her injuries, part of her financial predicament clearly arises from choices she made to live a lifestyle that reflected not her means but her view of her "station in life." The Deceased did not have a moral obligation to set Kathryn up financially for the rest of her life, particularly in circumstances where Kathryn was for many years in a position to save for retirement and contingencies, but chose not to do so.
22. Balancing all the matters referred to in [94] above and following, the Court has concluded that provision should be made for Kathryn in the sum of $510,000. In reaching this sum, the Court has allowed: 1. Having regard to the wide range of valuations set out in [99] above, $420,000 for accommodation (comprising $415,000 to purchase a home and $5,000 for conveyancing fees. As Kathryn has not owned her own home before, no transfer duty would apply). 2. $30,000 for discretionary expenditure. 3. $60,000 buffer for contingencies, being the figure advanced by Ms Catanzariti (see [88] above).
23. There is therefore no need for the Court to make a notional estate order. As Ms Catanzariti submitted, s 88 prohibits the Court from making such an order because the actual Estate is sufficient for the amount of provision the Court has concluded should be made for Kathryn. Further, I accept Ms Catanzariti's submissions set out at [71]-[73] above that even if the Court were to designate notional estate, the Court could not order provision of the entire Islay St Property for Kathryn.

Consideration - Possession of the Islay St Property

1. By her statement of claim filed on 29 May 2020, Margaret seeks: "1. An order for possession of the property situated at and known as XX Islay St, Maclean being the land comprised in folio identifier XXXX ("Property"). 2. Leave to issue a writ of possession forthwith. 3. Order that the Defendant vacate the Property forthwith. 4. Order that the Respondent pay the Plaintiff occupation rent of $400.00 per week since 14 January 2019 to date. 5. Costs. 6. Such further or other orders as the court sees fit."
2. Margaret is the owner of the Islay St Property, as the surviving joint tenant. Kathryn has no legal entitlement to reside in the property. As a joint tenant, the Deceased could not transfer the Islay St Property to Kathryn by signing the Statutory Declaration. Accordingly, the Court will grant Margaret an order for a writ of possession.
3. However, given Kathryn's present financial difficulties, the Court will stay the order for six months from the date of payment of the provision from the Estate which the Court will order for Kathryn. This will allow Kathryn time to find alternative accommodation with the benefit of those funds.

Consideration - Rectification of the Will

1. Margaret's further amended summons for probate, filed in court on 16 February 2021, seeks: "1 Order that the time for filing this application be extended until the date of filing of this further amended application pursuant to section 27 Succession Act 2006 (NSW). 2 Order that the first sentence of clause 2 of the will of the late Raymond William Lee dated 30 April 2008 be rectified pursuant to section 27 Succession Act 2006 (NSW) to read as follows: "IF my wife MARGARET ROSE LEE ("Margaret") is proved to have survived me by thirty (30) days, then I APPOINT her as my executor and I GIVE to her the whole of my Estate."
2. Clause 2 of the Will as presently drafted reads: "IF my wife MARGARET ROSE LEE ("Margaret") is proved to have survived me by thirty (30) days then I GIVE to her the whole of my Estate. If however Margaret is not proved to have survived me by thirty (30) days then the following provisions will apply."
3. Margaret requires an extension of time for the making of her application, pursuant to s 27(3) of the Act. The Court will grant this extension. The Court considers it necessary because the Estate will otherwise be without an executor (s 27(3)(a)). Final distribution from the Estate has not been made (s 27(3)(b)).
4. The evidence about the Deceased's intention in making the Will is set out at [44]-[46] above. On the basis of this evidence, the Court is satisfied that the Deceased intended to appoint Margaret as executor in circumstances where she would be the sole beneficiary of the Estate. The Will fails to carry out that intention because appoints no executor in the circumstances which have arisen. The Court is also satisfied that the omission was a clerical error by Mr Henshaw in drafting the Will.
5. For those reasons, the Court will grant Margaret the relief she seeks as set out at [118] above.

Conclusion

1. The parties will be given time to attempt to agree on orders to give effect to these reasons and as to costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 July 2021