Papantoniou v Foundouradakis

Papantoniou v Foundouradakis - [2023] NSWSC 1374 - NSWSC 2023 case summary — Zoe

[7]

Plaintiff

The evidence disclosed slight variations in the plaintiff's name. The plaintiff's passport records his given names as "Vasilios Bill": CB 146. Other variations include "Billy William" (CB 127) and "Billy Vasilis": CB 184. There are also photos of the plaintiff in Thailand where his given names are recorded as being "Billy Kang" (or the appellation on the photos is such): e.g. CB 367-373.
The plaintiff appears to have been married at least twice and is currently in a relationship, the nature of which was the subject of some question at the hearing.
In 2009, the plaintiff had a girlfriend, Lily: CB 42[27], 401[42].
Also in 2009, plaintiff met a Thai lady, Chintara Phiansuk (Chintara) in Thailand: CB 23, 354. They married on or about 28 or 30 January 2014 (the doubt arising from photographs of the wedding and apparent signing of the register dated 28 January 2014 (CB 367-373) and a Department of Immigration sponsorship form signed by the plaintiff which refers to the date of the marriage being 30 January 2014: CB 168).
The plaintiff says he, between 2009 and 2015, lived between Thailand and Sydney residing in Thailand for three months at a time: CB 23[20]. He says that in approximately 2016, he separated from Chintara: CB 23[22]. That evidence is somewhat at odds with the sponsorship form signed by the plaintiff on 5 August 2015 (CB 174) which indicates that he divorced Chintara on 25 December 2014: CB 168.
The plaintiff (according to the sponsorship form) met another Thai lady, Patchara Polyiem (Patchara) on 10 April 2014, committed to share a life together with her to the exclusion of all others from 30 June 2014 and married her on 9 July 2015: CB 167. That evidence appears curious if the timing is correct. First, he had only been married to Chintara for 5 months at the time (30 June) he was living "exclusively" with Patchara. Even more curious is that if the plaintiff did marry Patchara in July 2015, then there is no evidence that he divorced her. The plaintiff, at one point in his updating affidavit, made reference to "my first wife": CB 44[43]. However, the curiosity of whether the plaintiff was still married to Patchara (which might bear upon his financial obligations) was not addressed or probed on the hearing, and I say nothing further about it.
In or about 2016 (released 12 March 2017) and 2019 (released 6 June 2019), the plaintiff served two prison sentences for drugs and weapon charges: CB 184, 231, 353[10]. The sentences appear to have been respectively 10 months and 7 months: T 89.15. Leading up to each of his releases, the plaintiff had applied for, and upon release, was granted a one-off Centrelink Crisis Payment: CB 184, 231.
In about October 2019, the plaintiff says he commenced a relationship with Amie Azzopardi (Amie) (T 10), an archery instructor: CB 291. Amie has a young son, Ethan, who is about 10 years old: CB 29[68]. Amie, in her oral evidence, suggested that the relationship might have commenced earlier, stating she had been "involved with" the plaintiff for approximately five years (dating it back to 2018): T 75.21.
In approximately April 2023, the plaintiff, whilst riding a motorised scooter at Kyeemagh, hit a ditch in the track (T 13) and broke his left fibula and tibia and was admitted to St George Hospital for approximately a month (scooter accident): CB 45. Both the plaintiff and Amie, in their oral evidence, indicated that the relationship was since that time no longer an intimate one. The plaintiff described it more as a "closer friendship": T 10-11. Amie indicated that she was "not fully" still in a relationship with the plaintiff but was still supporting him (the context being non-financially): T 75.

[11]

Possession proceedings

At the time of the deceased's death, the plaintiff was residing in the Brighton-Le-Sands property, as was Mary. In January 2022, a few months after the deceased's death, Mary left the Brighton-Le-Sands property: T 110. However, the plaintiff remained in the Brighton-Le-Sands property.
There is no suggestion that the plaintiff paid any rent or fee to the deceased in respect of his occupation of the Brighton-Le-Sands property. Absent any such fee or arrangement with the deceased, at best the plaintiff had a revocable license from the deceased to enter and remain on the Brighton-Le-Sands property. A revocable license is automatically determined by the death of the licensor: e.g. Public Trustee v Bellotti (1986) 4 BPR 9196 at 9203 per Cohen J citing Terunnanse v Terunnanse [1968] AC 1086 at 1095 per Lord Devlin for the Board. Thus, from the date of the deceased's death, on termination of the license, technically, the plaintiff became a trespasser in the Brighton-Le-Sands property.
On 16 December 2022, the defendants filed a statement of claim seeking judgment for possession of the Brighton-Le-Sands property (proceedings 2022/379820). On 21 March 2023, after requisitions had been issued and responded to, a registrar gave default judgment for possession of the land in favour of the defendants.
On 24 March 2023, the defendants filed a notice of motion seeking leave to issue a writ for possession. On 27 March 2023, a registrar of the Court set aside the default judgment. On 18 April 2023, the defendants filed a notice of motion seeking review of the registrar's orders. On 24 May 2023, Garling J heard the notice of motion and made orders setting aside the registrar's decision and ordered that a writ of possession be issued forthwith: CB 490, Foundouradakis v Papantoniou [2023] NSWSC 662 at [29].
A judgment was entered against the plaintiff for $2,405 and the plaintiff was ordered to pay the defendants' costs of the proceedings. The costs estimated on the ordinary basis are $8,971.64 and on the indemnity basis $13,719.45: Agreed Schedule.
Notwithstanding the judgment of Garling J, the plaintiff declined to give vacant possession and, eventually, a writ was issued, and the plaintiff was evicted on 28 July 2023: CB 420.

[12]

Evidence and credit issues

Each of the plaintiff and defendants swore affidavits in the proceedings.
Leaving aside formal affidavits of the legal representatives in the plaintiff's case, the plaintiff relied upon affidavits from: 1. Amie; 2. Michael Karakatsanis (Mr Karakatsanis) - a friend; and 3. John Anagnostopoulos (Mr Anagnostopoulos) - a neighbour and family friend.
Leaving aside affidavits from their legal representatives, the defendants relied upon affidavits from themselves and also Mary.
The plaintiff presented as a witness who was respectful and attempting to assist the Court. Nonetheless, I had a number of concerns regarding the plaintiff's evidence, in particular, in relation to the reliability of aspects of his evidence which I address below.
The plaintiff was cross-examined at some length upon his financial circumstances. I refer to the details below.
Amie was cross-examined briefly and, generally, I accept her evidence.
Each of the defendants and Mary gave evidence. Generally, they gave their evidence in a straightforward way and other than as noted below, I accept their evidence.
There were some conflicts as between the evidence of the defendants and Mary on one hand and the plaintiff on the other.
With some qualification as noted below, I preferred the evidence of Mary over that of the plaintiff.
In relation to evidence that I describe below as pertaining to the March 2009 injuries (see [73] ff), Mary, whilst aware that the plaintiff had injured his foot, stated that to the best of her knowledge, the plaintiff had never had a back injury and that in relation to the foot injury, the plaintiff appeared to be fully recovered after three months: CB 401[42], [44]. Mary's evidence in that regard is at odds with documentary materials that I refer to below. It is possible that during this time when Mary was living away from the Brighton-Le-Sands property, that, as she says, the plaintiff never mentioned any back injury to her, and she had limited opportunity to particularly observe such an injury.
Ms Reid established in cross-examination that during the time that Mary lived with her mother (in context, from about 2016), she left for work at 7:30 AM and returned home in the evening at 5 PM: T 110. Whilst I accept that Mary was away from the house during those times, I generally accept her evidence regarding her indications of the extent of household assistance provided by herself on the one hand and, from her observations and sources of knowledge, by the plaintiff on the other.
The main areas in which there was particular dispute between the plaintiff and the defendants related to the extent of the plaintiff's residence with the deceased, the assistance he provided the deceased and, in particular, the circumstances of his eventual eviction from the Brighton-Le-Sands property.
The defendants had little tolerance for the plaintiff's claim. Tass expressly conceded that he was resentful that the plaintiff had made a claim on the deceased's estate: T 86. Whether as a result of the low tolerance or lack of observation, each, surprisingly, did not observe or recall a number of matters.
For example, the plaintiff gave evidence (CB 27[56]) which Mary accepted (CB 401[51]) that, in 2020, the plaintiff painted or contributed to painting the Brighton-Le-Sands property. Whilst there was dispute as to the precise details regarding the extent of the plaintiff's involvement, who paid for the paint and how long it took to paint the property, I accept the property was painted and the plaintiff albeit in a very limited way briefly assisted in doing that.
However, notwithstanding that Tass is a qualified painter (for 25 years) and had had opportunity to see the property after 2020, he stated that he was not aware that the house had been painted: T 93.
Although Ms Reid suggested to John that he did not really know what was going on at the house, he indicated that his source of knowledge was by discussion with his mother, and I accept his evidence in that regard: T 99.
John was asked whether he knew that the plaintiff had been involved in the scooter accident and whether or not he was in a wheelchair. John did not know about the scooter accident and did not notice whether the plaintiff was in a wheelchair on the day that he was evicted from the premises: T 100-101.
However, other than their lack of observation in respect of those matters, generally, I accept the evidence of Tass and John.

[14]

Medical history

In March 2009, the plaintiff was injured on a number of occasions (March 2009 injuries). It appears that, at the time, he was working as a labourer on a full-time basis for Srgjan Welding Pty Ltd at the premises of Logistics Cargo in Melbourne: CB 61.
On 10 March 2009, he sustained a lower back strain performing what was described as an excessive amount of drilling with a cordless drill. It appears he took some time to report the injury: CB 61.
On 17 March 2009, he sustained injuries to his right foot, right leg, lower back and neck when he was accidentally hit by a forklift whilst erecting pallet racking at the premises of Logistics Cargo and was transported to Western Hospital in Melbourne: CB 61.
The details of this emerged in voluminous material the plaintiff provided principally for the purposes of establishing that he lived at the Brighton-Le-Sands property. Apart from disclosure of his existing injuries, there was no detail in the body of the plaintiff's affidavits of these events.
The March 2009 injuries appear to be long lasting and were the subject of a Work Capacity Assessment Report (WCA report) in December 2012: CB 54. Indeed, the plaintiff stated the back injury left him incapacitated, made it hard for him to walk and took him over six years to recover: CB 23[19].
In 2011, the plaintiff obtained Responsible Service of Alcohol (RSA) and Responsible Conduct of Gambling (RCG) certificates: CB 76. The plaintiff's Employment History for the WCA report in December 2012 was more extensive than what was revealed in his affidavit: CB 77. (Other listing of the plaintiff's limited household activities as at November 2012 occurs at CB 123).
On 6 January 2018, the plaintiff suffered a shoulder injury necessitating his transport from the Brighton-Le-Sands property to St George Hospital: CB 136, 139, 193. This appears to have led to him having varying degrees of capacity for employment at times - up till September 2018 having no capacity for work (with some exceptions) and, from that time until February 2019, having limited capacity for work: CB 196-207, 213-215, 218-220, 222-227.
It seems the plaintiff's right shoulder injury and other injuries limited the plaintiff's work at least until early July 2019: CB 233-234. Thereafter, he appears to have been certified as having capacity for work for eight hours a day (five days a week) but with some restrictions on his activities, through to at least November 2020: see, e.g., various pages between CB 237-274.

[19]

Plaintiff's operation of bank accounts

On 8 February 2023, the plaintiff was issued with a notice to produce: Exhibit D2 at page 1. The notice called for all bank statements from the period from 19 October 2019 to 8 February 2023: Exhibit D2 at page 2.
On 3 April 2023, the plaintiff's solicitors produced bank statements for: 1. his Complete Freedom Account for the period 21 September 2018 to 19 September 2022; and 2. his St George Maxi Saver Account for the period 15 July 2018 to 13 January 2023: Exhibit D2 at page 5.
The plaintiff accepted that the Complete Freedom Account was his main operating account: T 23. However, a couple weeks prior to the hearing, he ceased using it and had opened an account with HSBC (HSBC Account) just a bit over a week prior to the hearing: T 23-25.
The plaintiff accepted that he had not produced any bank statements for the Complete Freedom Account between 19 September 2022 and 8 February 2023: T 26. He was then cross-examined at length regarding transactions on the account. The cross-examination was, to a degree, conducted by reference to a number of account summary documents relating to the Complete Freedom Account for the period from 1 April 2022 to 19 September 2022.
The plaintiff was cross-examined about monies deposited to and withdrawn from his Complete Freedom Account over a period between 1 April 2022 and 19 September 2022 (being the last date for which he produced bank statements). The period is approximately 24.5 weeks (24.5-week period).
The cross-examination revealed that over the 24.5-week period (I take the following figures from the combined totals which I have calculated of the "monthly" statements comprised in MFI-1 which were shown to the plaintiff and which figures were accepted by him), the plaintiff received payments into the Complete Freedom Account from a number of different sources. The tables on which the plaintiff was cross-examined identified and totalled payments which the plaintiff received from nine different sources.
Over the 24.5-week period, the payments received from those nine sources into the plaintiff's Complete Freedom Account were as follows (in relation to six of those sources I will simply use the initials of the names of the persons the plaintiff received monies from): 1. Amie $2,723.64; 2. Stella $27,831; 3. Jobseeker Centrelink $6,438.10; 4. DS $6,140; 5. BN $2,300; 6. TM $13,420; 7. GG $1,620; 8. CS $720; and 9. VP $9180.

[20]

Transactions with Amie

Over the 24.5-week period, the plaintiff made payments to Amie totalling $21,622.06 and, as noted above, received payments from Amie in the sum of $2723.64.
A significant amount of monies were transferred from the plaintiff's accounts to Amie's account. The plaintiff denied that he was paying money to Amie. He characterised it as "transferring money": T 36. He denied that whilst he was in a relationship with Amie, he financially supported her: T 12, 36, 42.
The plaintiff indicated that he did this as a matter of convenience as he did not have a vehicle (to get to the ATM): T 36. There was some questioning of Amie regarding this: T 75-81. Amie indicated that the plaintiff transferred monies to her to withdraw monies for him as he did not have a card as it had been lost: T 75. He was without a card for approximately 3 to 6 months: T 75. He was unable to go to the bank because he did not have sufficient ID because his "ID" had been stolen: T 76, T 77, T 80.
I pause to observe that in January 2018, the plaintiff received notification from St George that a replacement Visa debit card would be on its way to him: CB 192. On 7 June 2019, the plaintiff's new St George Visa debit card arrived (the delay in arrival is unexplained): CB 230. It is unclear whether the plaintiff lost his card or was without a card again during the 24.5-week period, or whether his reference to being without a card during that time was a mistaken reference to the period in 2018-2019. However, in light of Amie's evidence, I have proceeded on the basis that he lacked a card during at least part of the 24.5-week period (i.e. apart from the 2018-2019 period when he was without a card).
It appeared that there was a facility for a cardless cash withdrawal. Thus, one could operate a St George ATM without a card using a cardless withdrawal facility. However, in order to do it, when one attended at the ATM, one needed a phone and an app. Whilst at the terminal, if one selects a cardless withdrawal, a code is sent to the user's phone and the user is then able to type in the code. However, the plaintiff did not have a working phone as he had dropped his phone cracking the screen and, accordingly, was not able to use the cardless cash facility unless Amie was present: T 79.14-81.4.

[22]

Payments from friends for gambling and cash withdrawals

Six of the sources of payments into the plaintiff's Complete Freedom Account came from persons who were revealed in the evidence to be "friends".
TM is a very close friend of the plaintiff and one of the witnesses that was, according to the plaintiff, supposed to come to court to give evidence: T 30, 38. GG is a friend, identified by the plaintiff as the friend who owned the apartment that he was walking the dog to in the video: T 31. DS is also a friend: T 32. BM was a friend but is no longer a friend of the plaintiff: T 30. Each of VP and CS were friends of the plaintiff who he does not speak to anymore: T 38, 40.
The plaintiff accepted that the majority of monies received from the "friends" including BN (T 30), DS (T 32, 36), CS and from VP was for online gambling: T 40.
The plaintiff accepted that he was the repository of the monies received from the "friends" for gambling purposes: T 41. He attempted to explain how the gambling operation worked. He indicated that he was the locus of the gambling operation amongst his friends because his grandparents used to have "Manila" games or gambling at the house which he described as like poker with his grandfather's close friends and relatives and that they happened from when he was young, and he became accustomed to it: T 48-49. He paid the money to a friend, "Michael" (T 50), it being unclear whether that Michael is the same person as the witness Mr [Michael] Karakatsanis. The monies were apparently dispersed into gambling pools which he described as a "TAB-type pool": T 46. The monies transferred to his Complete Freedom Account by the friends he indicated were solely for gambling (subject to my comment below regarding TM) and it appears that the majority of the cash withdrawals he made were for gambling: T 47-48. Cash withdrawals from the account over the 24.5-week period totalled $39,330.
The plaintiff indicated that TM lent him money as well as helping him out: T 30. He later clarified that at least in respect of some of the monies paid by TM to him, or into his account, TM did not require or expect the plaintiff to pay the monies back: T 61. In that regard, the plaintiff accepted that TM was a person that supported him (financially) and acknowledged that he had not disclosed that he had received such support from TM when he swore his affidavits: T 61.
Monies he received from TM appear to have been, in part, for assistance to him and, in part, for online gambling. For example, he indicated that the majority of the $2,490 he received from TM in July 2022 was for online gambling: T 38.
When questioned about the gambling, the plaintiff accepted that he did not regard it as a form of entertainment but an addiction although acknowledged that he had not disclosed to the Court that he had engaged in gambling, stating that "I didn't know I had to", although accepting that it was incumbent on him to fully and frankly disclose his financial circumstances to the Court: T 44.
Ultimately, Mr Morrison submitted that the Court had been provided with an incomplete picture of the plaintiff's financial position. He submitted that the income described in the plaintiff's affidavit evidence was not consistent with his oral evidence, that the monies received from Stella were much larger than the "$2,400 net [per] month that he deposed to in his first affidavit" (I infer that figure was taken from the $600 net per week) and the Court did not know how much of his money he had put into gambling: T 148.
I accept that there is considerable force in Mr Morrison's submissions in this regard. The plaintiff denied that he deliberately failed to disclose gambling and other matters to the Court and denied that his intention was to create a false impression to the Court of his income: T 60. Nonetheless, the lack of clarity regarding the plaintiff's financial position is far from ideal.
Further, it is clear that the plaintiff had not produced at least a degree of the bank account records relating to his account, proffering in the witness box "I can try forward them to you now, if you like": T 67.40.

[23]

The defendants and Mary

Tass indicated, and I accept, that he maintained a close and loving relationship with his parents throughout their lives: CB 408[15].
The deceased (and, indeed, Bill) did not hold a driver's licence and, accordingly, Tass, Anna and also Mary and John throughout the deceased's life took them to family functions, medical appointments or other places where they needed to attend: CB 408[17].
In or about 2016, John ceased to attend the Brighton-Le-Sands property in the sense of going inside to visit the deceased. Nonetheless, he continued to care for her and continued to take her shopping on Saturdays: CB 415. It was evident that the plaintiff's presence in the house was a sore point with John who indicates that he had numerous arguments with the deceased and begged her to get him out of the house, in particular, because of concern about "random people" coming and going from the house. Nonetheless, the deceased "would not listen" responding "What do you want me to do?" and declined to remove the plaintiff from the house: CB 415-416.
Tass indicated that, in the last couple of years prior to the deceased's passing, he (and the family I infer) stopped attending family dinners at the Brighton-Le-Sands property and said that "[s]trangers were approaching the property and we found drug paraphernalia and weapons in the garage": CB 410[35]. Nonetheless, he took his mother out for outings to a restaurant or to his place with Mary: CB 410[36]. Tass says that the deceased told the plaintiff that he needed to clean himself up, get a job and move out, and complained that the family did not visit because of the plaintiff and requested Tass to attempt to talk the plaintiff into moving out of the Brighton-Le-Sands property: CB 410-411[46]-[47].
I accept that Mary assisted the deceased including with showering and dressing (CB 403[72]), would see the deceased regularly and would take her out shopping, for coffee and to visit her brother: CB 404[70].
Neither of the defendants raised their financial circumstances as a competing financial claimant: CB 318. Mary did not make any specific disclosure of her financial circumstances other than noting that she had been in constant employment since 1980, only having not worked when she was recovering from a foot injury in about 2020: CB 402[65].
Beneficiaries (who are not making a claim) are entitled to elect not to make disclosure about their financial resources and material needs. A beneficiary may remain silent about such matters, and simply look to the Court to not disregard the deceased's freedom of testamentary disposition and the deceased's preferable disposition to him or her as the sole beneficiary, regardless of his or her financial position or needs: Jodell v Woods [2017] NSWSC 143 at [29]-[30] per Hallen J citing Sammut v Kleemann [2012] NSWSC 1030 (Sammut v Kleemann) at [137]-[140] per Hallen J.
Where beneficiaries do not make a disclosure of their financial circumstances, it has been said that the Court proceeds effectively on the basis that such a beneficiary is not contending that their financial circumstances are such as to reduce or limit what might be assessed as proper provision for the applicant: Field v Inglis (Supreme Court (NSW), Young J (as his Honour then was), 8 February 1994, BC9402261, unrep) at 2.
However, the effect of s 61(1) of the Succession Act is that the Court cannot disregard the interests of beneficiaries of the estate as such: Page v Page [2017] NSWCA 141; (2017) 16 ASTLR 331 at [68] per Sackville AJA; Underwood v Gaudron [2015] NSWCA 269; (2015) 324 ALR 641 at [35]-[37] per Basten JA (as his Honour then was) (Macfarlan JA and Ward JA - as the President then was - agreeing).

[25]

Plaintiff's residence with the deceased

One of the disputes in the proceedings related to the extent of the plaintiff's residence with the deceased. The plaintiff, in his affidavit in chief, stated in the opening paragraphs: "I have lived with the deceased all my life and was dependent on her for much of my life": CB 21[6]. That was qualified later in the affidavit by reference to the plaintiff's indication that he lived between Thailand and Sydney in 2009 and 2015: CB 23[22]. The defendants disputed that position even with the qualification. In the plaintiff's updating affidavit, he nonetheless asserted that he lived with his grandmother at all times when he was not in gaol or overseas: CB 41[16].
The plaintiff was cross-examined regarding the periods during which he lived with the deceased. Initially, the plaintiff asserted that, other than when he was in gaol or overseas, he lived with the deceased at all other times: T 68.27-32. He disputed without qualification that between 1987 and 1999, he did not live with the deceased but, rather, lived with his parents at a property in Peakhurst: T 68. He also disputed that between approximately 2004 until 2012, he lived with his mother at a property in Bexley: T 69.
Certainly, from the plaintiff's evidence, an impression was given that, from the time he was born in 1982 until 2009, he lived with the deceased. That was disputed by the defendants and, in particular, disputed by his mother, Mary.
Subject to one matter which I will refer to, I accept Mary's evidence regarding the plaintiff's residence with the deceased.
Mary indicates that from 1979 (the time of her marriage to Con) until 1987, she lived with the deceased at the Brighton-Le-Sands property: CB 398[10]. Between 1987 to around 1998-1999, when Mary and Con purchased a property at Peakhurst (Peakhurst property), she indicates that she and their two children (including the plaintiff) moved out of the Brighton-Le-Sands property and into the Peakhurst property: CB 399[16]-[17].
In or around 1998 (give or take a year on either side), Mary's relationship with Con broke down and she returned to live with the deceased for a number of years: CB 399[18]-[19].
At the time of Mary's marriage to Sam (either March-2004 or 2005), they bought a property at Bexley (Bexley property) and Mary indicates that she, Sam and the two children moved to live in the Bexley property. She indicates that the plaintiff occupied the attic upstairs: CB 399[20]-[21].
In or about 2012, Mary and Sam sold the Bexley property. She indicated that between 2012 and 2014, the plaintiff rented a property in Kingsgrove and, from about 2012, she saw the plaintiff around three days a week either in Brighton-Le-Sands, at his residence (in context, the rented property in Kingsgrove) or at the deceased's house. She states that in about 2013, the plaintiff started travelling to Thailand and, from 2014 onwards, following his marriage, he travelled to and from Thailand: CB 399[23]-[28].
Mary accepts that, between trips to Thailand, the plaintiff stayed at the Brighton-Le-Sands property.
In about 2016, Mary was living in Lane Cove and then left there to live with the deceased in the Brighton-Le-Sands property: T 111.34-112.8. She remained living with the deceased till the deceased's death in October 2021. In relation to the period after 1987, Mary was cross-examined by reference to a photograph showing a picture of the plaintiff in a class photo in Year 4 in 1992 at Brighton-Le-Sands Public School: CB 53 (also MFI-2).
Mary, upon questioning regarding the anomaly, indicated that whilst she, Con and the two children were living in the Peakhurst property, they moved back to live with the deceased whilst the Peakhurst property was knocked down and being rebuilt. It appears they stayed with the deceased for a period of two years during that time: T 106. The two-year period appears to have coincided with at least part of the school year in 1992 when the plaintiff attended at Brighton-Le-Sands Public School.
Accepting the qualification that I have noted above regarding the two-year period in which Mary, Con and the children returned to live with the deceased whilst the Peakhurst property was being rebuilt, I accept Mary's evidence regarding the plaintiff's residence with the deceased and reject his evidence otherwise.
The plaintiff accepted that he did rent a property in Kingsgrove although disputed that it was for a period of two years, indicating that it was only for about six months, and he had the property for storage: T 69.

[26]

Plaintiff's care for the deceased and contributions to her welfare and property

The plaintiff (without outlining particular detail) indicated that he would try to do as much work around the Brighton-Le-Sands property to help the deceased as he could, though noted that she was adamant to do the cooking on her own until (according to the plaintiff) she deteriorated physically in the last months before her death: CB 29[73].
The plaintiff states that about four weeks before her death, the deceased started to deteriorate physically and Amie helped the deceased in getting out of bed, getting her into the toilet and with toileting, changing her clothes, getting her into the shower and cleaning herself and doing the cooking, washing up and laundry: CB 29[74]. Mary disputed the length of time during which the deceased deteriorated. She indicated that it was really only five days before the deceased passed away that particular assistance was given: T 112. She accepts that the plaintiff helped with some physical activities such as lifting the deceased off a chair: CB 403[73], T 112. However, Mary disputed that the plaintiff assisted the deceased with showering and dressing: CB 403[72]; T 112. I accept Mary's evidence.
The plaintiff gave evidence that he contributed in some ways to the upkeep of the Brighton-Le-Sands property. He asserted he did small jobs in the house including unblocking the drains, maintaining various appliances (fixing wiring in the oven in 2021) and cleaning and vacuuming the interior of the house: CB 27[56]. Mary disputed this indicating that her nephew Bill and a plumbing company would unblock the drains, on occasion, unblock the main sewer, and that an electrician was organised to fix the oven. She stated that she vacuumed the house and attended to the cleaning of the interior of the house and that the deceased attended to the cooking: CB 401-402.
The plaintiff claimed that since he was an adult, he was in charge of the gardening of the Brighton-Le-Sands property and always mowed the lawn and bought a lawn mower to do so: CB 27[56]. Mary appears to have accepted that but asserts that from about 2020, she paid for lawn mowing services from her own funds and says the plaintiff attended to the edges with a line trimmer: CB 401[52].
The plaintiff also indicates that in 2020, he cleaned and painted the exterior of the Brighton-Le-Sands property and paid for the painting supplies and paint: CB 27[56]. Mary asserts that the deceased bought the paint and that she paid for one tin and the deceased paid for the other. She indicates that the plaintiff and Spiros did paint the outside of the house but was somewhat damning with faint praise asserting that it took them about two months to complete painting three sides of the house: CB 401[51]. She was cross-examined about this and asserted that in fact Spiros was the one who is the painter and that the plaintiff helped "for one day": T 114. I accept Mary's evidence regarding payment for the paint and the extent of the plaintiff's involvement in painting the house.
It is clear that other family members assisted and took the deceased as needed to a GP (principally for blood tests) and on other occasions.
Mr Karakatsanis gave some evidence bearing upon care as between the plaintiff and the deceased. He indicates that he was a regular visitor to the Brighton-Le-Sands property until he went to England in about 2012 and, on his return from England (seemingly in 2015 or 2016), visited the plaintiff at the Brighton-Le-Sands property but not as often as prior to his trip to England. He states that "[f]rom as long as I can remember, Bills [sic] grandmother would assist with caring for Bill when he was injured and Bill caring for her on other occasions": CB 300[11].
Mr Anagnostopoulos noted that he was aware that the plaintiff had had some injuries over the years and that the deceased assisted him with duties around the house. He stated that "[w]hen Bill was capable and not injured, he would assist his grandmother with things particularly the older she got and the more help she needed, like most people": CB 306[7]. The evidence of those witnesses was fairly generalised.
A section of the December 2012 WCA report deals with the plaintiff's instrumental activities of daily living at that time. Some insight as to who was providing care within the household is given in that section of the report at least at that time (December 2012).
The plaintiff reported that in relation to kitchen maintenance and meal preparation that the deceased performed most of the household duties. He reported that he had attempted to make his bed approximately six months ago (June 2012) and aggravated his lower back pain symptoms and since then he had been avoiding bed making and received assistance from the deceased with that task. He reported that the deceased assisted with paying a gardener to perform lawn mowing and that the deceased and his mother performed grocery shopping: CB 73. In relation to "Relationship Factors", he reported that he lived with the deceased and had a good relationship with her although advised that the deceased performed most of the household duties with occasional assistance from other family members: CB 74.
The plaintiff, as I have noted, acknowledged that it took him over six years to recover from the 2009 injuries: CB 23[19]. In addition, as noted, he suffered shoulder injuries in 2018 which have had ongoing effects. A medical assessment report dated 31 May 2023 by Dr Veda Sofic at the Family Health Clinic in Rockdale (CB 139) referred not only to the recent scooter accident that the plaintiff had suffered but also to the chronic lower back pain he had had since 2009 as well as the foot injury at that time and also right shoulder surgery in 2018: CB 136.
On the whole, I have the impression and find that the assistance that the plaintiff provided to the deceased was, at least by dint of his injuries since 2009, fairly minimal. Conversely, in light of the plaintiff's evidence that "[s]ince I have been born the deceased has cooked for me, done my laundry and emotionally supported me" (CB 28[66]), Mary's evidence (CB 400[36]), and the WCA report (CB 73-74), I find that the deceased provided the plaintiff with fairly significant assistance in the form of cooking and domestic chores.

[27]

Plaintiff's possessions

There is an issue in the proceedings regarding the plaintiff's possessions.
The defendants adduced evidence indicating the state of the Brighton-Le-Sands property at the time following being granted possession. Tass took a number of photos of the inside of the Brighton-Le-Sands property asserting that it was full of furniture, contents and rubbish and was generally unkept: CB 421, 501-508.
Apart from the photograph at CB 508 depicting a number of items including electrical equipment and several motorised scooters in one of the rooms of the house, the photos do not suggest the house was left in a mess. It may be that some of the photos were taken after rubbish was removed.
Tass indicates that the garage was full of furniture and contents and exhibited a number of photographs regarding this. Certain of the photographs are somewhat blurry. However, the photographs do depict quite a lot of items: CB 421, 509-515. There are three pictures of what appear to be two trucks filled with items which are said to be in volume between 14 and 16 m³: CB 421, 516-518. Tass obtained a quote for repair work and painting required for the inside of the Brighton-Le-Sands property estimated to be at a cost of $1,500 and $3,950 respectively.
Each of the defendants was cross-examined regarding the state of the house on the day that the plaintiff moved out.
Tass was shown a number of photographs depicting the state of the house: Exhibit P1. He agreed that the photos depicted the state of the house on the day. He was shown a further series of photos depicting equipment belonging to the plaintiff including scooters and bikes: Exhibit P2, T 94. The tenor of the cross-examination was that the plaintiff had packed all his things together in boxes and plastic bags. Tass did not agree with that. There were some boxes, however, it is not evident to me that the photos suggest that everything was packed "ready to move": T 95.
Tass was shown a number of photos that were said to depict items that had been cleared out of the house: Exhibit P3, T 96. The four photos show a considerable amount of material, in particular, in the first photo, alongside the side of the house. The point of the cross-examination was to suggest that the defendants had not dealt appropriately with the plaintiff's belongings. Tass' response was to the effect that he considered that the plaintiff had had plenty of time to get his belongings out of the house. He indicated that from the time that sheriffs took possession, there was a certain time (4 August 2023) after which the items were to be thrown out if they had not been collected. He indicated that they were not collected, and Tass arranged for rubbish removalists to come in and remove the items. In response to a question as to whether he attempted to preserve the items, Tass indicated that it was not his job to do that: T 96.
John was also cross-examined about this. He confirmed that he was present at the time that the house was cleared out of items. John asserted that even after the sheriff had removed the plaintiff, a further seven days was given for the plaintiff to remove his items towards the end of August 2023: T 99-100.
I do not consider that it is necessary to delve deeply into the issue of the circumstances of the plaintiff being removed from the Brighton-Le-Sands property.
I accept that the plaintiff, having had the scooter accident in April 2023, was under some limitations regarding mobility. On the other hand, it appears that the defendants had had some difficulty in the process of obtaining orders for possession and were more particularly focussed on clearing the Brighton-Le-Sands property than engaging the plaintiff further about arrangements for storage of items. I will briefly return to this topic below as it bears upon one aspect of what was put in submissions as part of the plaintiff's claim for provision. I note that one of the photos in Exhibit P3 shows a computer keyboard amongst the "rubbish" items left for removal or disposal.

[29]

Eligibility

The plaintiff's claim to eligibility to apply for a family provision order is based on the contention that he was a grandchild of the deceased who was, at least at some particular time, partly dependent upon her: s 57(1)(e) Succession Act.
Dependency is a question of fact and I adhere to what I stated in this regard in Shymko v Lach [2022] NSWSC 1096 (Shymko) at [767]-[787].
The plaintiff indicated a number of ways in which he was dependent upon the deceased. Apart from an indication that the deceased provided some care for the plaintiff and looked after him during the plaintiff's early childhood (see CB 22[12] as referred to above), the plaintiff also asserted that "[s]ince I have been born the deceased has cooked for me, done my laundry and emotionally supported me": CB 28[66]. He further indicates that the deceased would often (sometimes, multiple times a month) hand him cash in denominations such as $20-$50: CB 28[67].
It is clear that in family provision proceedings, the deceased's provision of accommodation to an applicant can give rise to a sufficient basis for satisfying the requirement of dependency: see Shymko at [786] and the cases cited therein.
Mr Morrison did not dispute that the plaintiff was eligible.
On any view of the matter, whilst there was some ultimate refinement in the evidence regarding the periods of time that the plaintiff resided with the deceased, it is clear that he resided with her for a substantial period of time that, on one view of it, may have approximated half his lifetime.
This included, as I have found above, periods from approximately 1982 (from the time of his birth) until 1987, a two-year period in or about 1992 (when the family returned to the Brighton-Le-Sands property whilst the Peakhurst property was being renovated), from approximately 1988-1989 until 2004, for some periods of time between 2012 and 2017 (whilst the plaintiff was travelling to and from Thailand) and from approximately 2016/2017 until the deceased's death, excluding the total of approximately 17 months (between 2016 and 2019) during which the plaintiff was imprisoned.
There is no suggestion that the plaintiff paid any rent for his accommodation.
I find that the plaintiff was eligible by reason of his dependency upon the deceased.

[30]

Factors warranting

In the case of an applicant who is eligible only by reason of being a dependent grandchild (paragraph (e) of the definition of eligible person in s 57), before the Court may make a family provision order, the Court must be satisfied that there are factors which warrant the making of the application: s 59(1)(b) Succession Act.
This Court, for many years, has heard and determined family provisions claims on the basis of the understanding of factors warranting as outlined by McLelland J (as his Honour then was) in Re Fulop deceased (1987) 8 NSWLR 679 (Re Fulop) at 681D, indicating that the factors referred to are factors which, when added to facts which render the applicant an "eligible person", give him or her the status of a person who would generally be regarded as a natural object of testamentary recognition by the deceased. In this regard, I refer to what I indicated in Shymko at [792]-[799] and in Robertson v McCann [2023] NSWSC 159 at [467]-[473].
In this case, Mr Morrison did not dispute that there were factors warranting the making of the plaintiff's application for provision, accepting that the plaintiff's long periods of dependence upon the deceased for accommodation constituted factors warranting: DOS at [33].
There is an interesting question on the analysis of McLelland J in Re Fulop as to the ambit of what is meant by the factors warranting being "factors which when added to facts which render the applicant an "eligible person" give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased": at 681D.
The concession by Mr Morrison that the plaintiff's long periods of dependence upon the deceased for accommodation constitute factors warranting might, on one view, not be sufficient on the basis that his dependency for accommodation would not be factors "added to facts which render [him] an "eligible person"".
Often, the requirement for such added factors is satisfied by reference to a deceased's recognition of the applicant in testamentary instruments. In this case, other than a gift over, there is no express recognition of the plaintiff in the deceased's Will.
Ultimately, in submissions, Ms Reid on behalf of the plaintiff submitted that apart from accommodation, matters to consider on the aspect of factors warranting included that the plaintiff (on his evidence) actively cared for the deceased, that there was a very loving relationship between the two of them and that he regarded the deceased as basically his mother: T 120.
Whilst I doubt that the extent of the plaintiff's care for the deceased was as extensive as he claims, and I also doubt the extent of the plaintiff's claim that he was raised exclusively by his grandparents, I do accept that there was a loving relationship between the plaintiff and the deceased. Further, I accept that, apart from the provision of accommodation per se, the deceased did actively care for the plaintiff by means of the provision of meals and other domestic chores in the manner that I have outlined above.
I am mindful that when John was cross-examined about his and Tass' encouragement of his mother to request the plaintiff to leave the Brighton-Le-Sands property, he acknowledged that the deceased refused to do that: T 99.42-47. The reasons for the deceased's refusal were not explored. However, the refusal is suggestive that there was some bond as between the deceased and the plaintiff which for whatever reason she did not wish to sever.
Having regard to all the circumstances of the case, I am satisfied that there are factors warranting the making of the plaintiff's claim.

[32]

Plaintiff's claim for provision

In this regard, it is germane to consider how the plaintiff has outlined his claim for provision.
As I have noted above, there is very little outlining of his claim. He intimated that the financial assistance he needed was with "[p]urchasing a property" and providing "[a] buffer against contingencies": CB 26[53].
No details were given by him regarding the purchasing of a property.
Ultimately, in submissions, Ms Reid addressed the nature of his claim.
I had raised with counsel for the parties for their consideration at the commencement of the second day of the hearing a question of whether, if the plaintiff was given any provision at all, the provision might need to be in some protective form such as through a trust: T 83. I did this having regard to the evidence emerging from the plaintiff's cross-examination regarding gambling activities.
Ms Reid, in submissions, embraced the possibility that I had raised earlier in the hearing regarding some form of provision being given to the plaintiff in the form of a trust: T 124.25.
Ms Reid, as I understood her, outlined a claim for provision essentially as follows: 1. $150,000 in the form of a trust - to assist the plaintiff with emergency housing (T 129); 2. between $50,000 and $75,000 - as a contingency fund to cover general medical expenses over the next couple of years and some monies to set him up in accommodation covering goods and chattels (T 130-131); and 3. $30,000 or $40,000 - seemingly to cover some initial immediate expenses such as paying a bond or purchasing furniture and otherwise to make somewhat comfortable his day-to-day living: T 134.
The figures outlined above approximate a claim for provision in the order of $230,000 to $265,000. A little later in submissions, prior to Mr Morrison commencing his submissions, Ms Reid stated that if I was minded to make orders according to what she had put, it would mean approximately $100,000 being taken from the bounty of each of the three children beneficiaries (i.e. approximately $300,000): T 136.
I could not readily reconcile the figure of $300,000 with the other figures that Ms Reid had noted above. It is not clear to me whether she included any additional component for costs although, on any view of it, the plaintiff's costs on the ordinary basis on the figures she indicated would, even on the lower figures for provision, exceed an amount of $300,000.
In relation to the component for provision of a sum in the order of $150,000 on trust, I sought some clarity as to how the trust might operate and whether there would be access to income or both income and capital. Ms Reid submitted that a fund held on trust by way of provision should permit access to both income and capital essentially with a view to it being exhausted over a period of approximately 3 to 5 years: T 131.
Whilst I was appreciative of Ms Reid giving some degree of indication of figures in relation to provision, there was an inherent difficulty in her being able to support the submissions in the sense that there is simply no detail in the evidence supporting the manner and form of accommodation, as I noted in the course of submissions: T 129. Further, although in the context of the contingency fund Ms Reid noted that the plaintiff's "goods and chattels no longer exist" and he has "no computer" and "no televisions" or "anything", there was a void of evidence on the matter. The plaintiff had not provided any evidence (as I noted) indicating that his goods and chattels had been thrown out and destroyed and that he had a need for particular items and listing items and indicating how much they were going to cost: T 130.
At the time of the hearing, the plaintiff was residing in temporary accommodation at Summer Hill provided through Housing Pathways: T 8.

[33]

Defendants' response

Mr Morrison's submissions focussed upon financial aspects of the plaintiff's claim.
He submitted that there were two primary issues. First, that the plaintiff had not articulated with any precision his claim for provision (including needs or how they were to be met) other than by reference to accommodation and a contingency fund: T 136, 141. Secondly, the plaintiff had not provided sufficient clarity regarding his financial resources such that there was an uncertainty or "cloudiness" in respect of his resources: T 141.
Mr Morrison submitted that whilst there was evidence that the plaintiff is in some form of temporary housing accommodation, the Court was not provided with information to know how long that housing would be available, whether in the future there would be scope for more permanent public housing and, if so, whether it would be suitable for his needs or not: T 139. Based on Ms Reid's submissions, I had understood the plaintiff's claim to be not for a deposit per se towards accommodation, but, rather, a fund to assist with rental over the next 3 to 5 years: T 139.
Mr Morrison submitted that the Court should not make provision to deal with the plaintiff's "needs" where there was no evidentiary basis for the Court to do so: T 136, 138.
In response to Ms Reid's outline of the plaintiff's claim for provision, Mr Morrison described a claim for a contingency fund or sum as perhaps the least precise head of provision that is sometimes awarded to plaintiffs: T 140.
Mr Morrison drew my attention to the comments of Kunc J in Maria Oliveira by her tutor Ivo De Oliveira v John Antonio Oliveira [2023] NSWSC 1130 (Oliveira) at [7]-[15], essentially for the purpose of indicating that if any contingency fund was awarded, the amount would be modest or moderate, there being "on the upper limits of what some cases might find in terms of a contingency sum": T 140-141.
In relation to the plaintiff's health and medical condition, Mr Morrison submitted that whilst the plaintiff had suffered the recent scooter accident and was injured, there was no evidence about the extent and severity of his injury: T 138.
In support of the proposition that the Court should not make provision in the absence of an evidentiary basis, Mr Morrison referred to the decision of Sheller JA (with whom Cripps JA agreed) in Singer v Berghouse [1992] NSWCA 230. There are statements of Sheller JA in the Court of Appeal's decision which refer to the fact that the appellant, whilst she received income from investments, had not provided evidence as to precisely what her income was from them: at 3 per Sheller JA. His Honour also referred to comments of Master Windeyer (as his Honour then was) which noted that the plaintiff appellant had given no evidence of expenses other than some rough figures for outgoings on the relevant property and provided no evidence of earnings from employment that she had had prior to entering the marriage: at 15, 16 per Sheller JA.
Mr Morrison also referred to comments of Young JA in Evans v Levy [2011] NSWCA 125 to the effect that the Court had to be presented with adequate evidence before it could make a family provision order and that time and time again the Court has been denied what would appear to be very basic material required to support a claimant's case: at [38] (Campbell JA at [1] and Sackville AJA at [79] agreeing).
Mr Morrison submitted that the plaintiff had, at the time of his first affidavit, a serious relationship with Amie, noting that they had cohabited briefly at the Brighton-Le-Sands property and elsewhere in more recent times and yet had not disclosed the nature of his financial dealings with her: T 147. He further submitted that the plaintiff's income as described in his affidavit evidence was not consistent with his oral evidence referring, in particular, to monies received from Stella and from TM and that he had not disclosed his expenditure on items, more particularly gambling and recreational drugs: T 148. Further, it is the case that the plaintiff's statement with HSBC whilst apparently produced had not been tendered (T 141) and a belated attempt to tender the material by Ms Reid was opposed and ultimately not persisted in: T 150.
Mr Morrison, when I questioned him about it, was not so bold as to say that I should dismiss the plaintiff's claim: T 143.
Nonetheless, he clearly indicated that the coupling of inadequacy of financial disclosure of resources with a failure to not only articulate but provide evidence of the claim for provision made it very difficult for the Court to embark upon the analysis that it is required to do in order to exercise its jurisdiction: T 143. Mr Morrison submitted that the Court should not award any provision for accommodation or medical expenses, rather, the Court should make a modest provision by way of a contingency fund between $20,000 and $40,000 in the form of a trust structure: T 144. In the event that I was minded so to do, Mr Morrison embraced my suggestion that rather than attempting to form precise orders for provision, I should invite the parties to bring in short minutes of order with regard to how the "machinery" of any such form of trust structure should operate: T 144.

[35]

Nature of orders for provision

The statutory language which speaks to the type of order which the Court may make is in very broad plentiful terms: see ss 59, 65 and 66 Succession Act.
The composite expression "maintenance, education or advancement in life" (s 59 Succession Act) is a way of describing types of provision. The powers in ss 65 and 66 Succession Act are reflective of the way that a deceased may provide for a beneficiary with the deceased's financial resources whether by income, capital or otherwise: Tarbes v Taleb at [203], [207].
I addressed the nature of orders for provision in part in Tarbes v Taleb at [200]-[209]: 200. The adjective "adequate" derives its meaning in context. The adjective generally conveys the meaning of something being equal to or fully sufficient to the particular requirement or occasion: Macquarie Dictionary, online ed. Within s 59(1)(c), the adjective "adequate" qualifies the noun "provision". 201. The adjective "proper" derives its meaning in context. Generally, the word conveys the notion of something being fit or suitable or appropriate to the particular purpose or circumstances being addressed: Macquarie Dictionary, online ed. Within s 59(1)(c), the adjective "proper" qualifies the expression "maintenance, education or advancement in life" (emphasis added). 202. "Adequacy" is concerned with the form and or quantum of provision, whereas what is "proper" is concerned with the standard of the maintenance, education and advancement in life of the applicant for relief: Verzar v Verzar [2012] NSWSC 1380 (Verzar v Verzar) at [127] per Lindsay J. 203. The composite expression "maintenance, education or advancement in life" is a way of describing types of provision. An order for provision operates as a codicil to a Will (or a Will in the case of intestacy) unless the Court orders otherwise: s 72(1) Succession Act. 204. The statutory language which speaks to the type of order which the Court may make is in very broad plentiful terms. Thus, a family provision order may require the provision to be made in various ways including various forms of payment, by application of specified existing or future property, by way of an absolute interest, or a limited interest only, in property, by way of property set aside as a class fund for the benefit of two or more persons, or indeed in any other manner the Court thinks fit: s 65(2) Succession Act. 205. The extraordinary breadth of the form and type of provision is seen in the statutory power entrusted to the Court to make consequential and ancillary orders in a multitude of ways including in any other matter the Court thinks necessary: s 66(l) Succession Act. 206. For that reason, it is wrong to assume that orders addressing an applicant's proper "maintenance, education or advancement in life" are limited to only particular purposes or types of provision. 207. The powers in ss 65 and 66 are reflective of the way that a deceased may provide for a beneficiary with the deceased's financial resources whether by income, capital or otherwise. 208. Once one understands the above, that assists in understanding the generalised way in which the Court in dealing with family provision claims refers to "maintenance, education or advancement in life". Invariably, the Court describes these terms in ways which give a generalised indication of their nature but allow flexibility for types of provision to be filled by content from the facts of each given case and to adapt to changes in society and how life is generally lived over time. 209. For example, one sees in the caselaw descriptions indicating that: 1. "provision" covers the many forms of support and assistance which one individual can give to another: Mallitt v Gow [2022] NSWSC 1012 at [187] per Hallen J citing Diver v Neal at [34] per Basten JA (Allsop P and Ipp JA agreeing); 2. "maintenance" includes provision over and above a mere sufficiency of means upon which to live but is clearly not confined to that: Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 (Vigolo v Bostin) at 228-229 per Callinan and Heydon JJ; and 3. "advancement" goes beyond the need for education and maintenance. In a proper case, it will extend to a capital payment designed to set a person up in business or upon marriage: Bartlett v Coomber [2008] NSWCA 100 at [50] per Mason P (Hodgson JA agreeing) citing McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 at 575 per Dixon CJ and Williams J; Stiles v Joseph (Supreme Court (NSW), Macready M, 16 December 1996, unrep); Mayfield v Lloyd-Williams [2004] NSWSC 419.
Whilst it is common for the Court to order provision by reference to identifying types or heads of provision, there is no statutory mandate to do so. Indeed, it would be unduly and inappropriately restrictive for judges to have to "pigeon hole" family provision orders into heads of provision.
Indeed, McLelland J (as his Honour then was) in Aroney v Aroney (Supreme Court (NSW), 26 July 1988, BC8801702, unrep) at 6 stated that when the Court considers types of provision in terms of accommodation, income and fund for contingencies, these are only guides and the components of an award for provision are not necessarily mutually independent.
At times, judges make reference to types or heads of provision because applicants have done so in outlining their claims and also as a means of exposing, or being transparent in, the evaluative assessment.
However, to be effective, an order for provision which follows a principled evaluative assessment having regard to relevant evidence whether it be specific or generalised, can be detailed, but often need do no more than provide a single figure as a legacy sum as the amount for provision encapsulating various matters to be provided for.
An order for accommodation, leaving aside properties given in specie, does not need to adopt a claim for specific housing by a plaintiff. The order may simply include a component for what the Court describes as being intended to be drawn on by the applicant to purchase "reasonable accommodation" simpliciter or within a geographic area or a suburb: e.g. Mayfield v Lloyd-Williams [2004] NSWSC 419 at [131] per White J (as his Honour then was).
The nature of legislative family provision powers has at times naturally been explained by reference to what a Will-maker might do.
For example, in Estate of Leahy (Dec'd); Earl v Moses [1975] 1 NSWLR 246, the applicant sought a declaration that some restrictions included in prior family provision orders made in her favour by McLelland CJ in Eq in 1961, under s 3 Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW) (TFM Act), were invalid.
Bowen CJ in Eq (as his Honour then was), with respect to the jurisdiction under the TFM Act, considered that it was going too far to say that the Court acting under the statutory power could do nothing that the testator could not have done, but, nonetheless, there was no warrant under s 3(1) TFM Act for the Court, in making provision, to disregard or depart from the ordinary principles which apply to dispositions of property, including the principle against undue restraints upon alienation: at 251D.
His Honour considered that, in imposing conditions, the Court is not confined to doing what the testator himself might have done. It has ample power to deal with circumstances which have arisen since the testator died: at 251D-E.
Nonetheless, his Honour considered that in imposing "conditions", as in making "provision", the Court is bound to observe its own rules of public policy, such as the rule against undue restraints upon alienation: at 251E-F; see also RJ Davern Wright QC, Testator's Family Maintenance in Australia and New Zealand (3rd ed, 1974, The Law Book Company Ltd) at 136-140; Anthony Dickey, Family Provision After Death (1992, The Law Book Company Ltd) at 133.
Generally, under an order for provision, once the Court makes the order for provision, the Court does not retain control over the property or funds that are the subject of provision. Whilst it is rarely commented upon in family provision judgments, the hearing is normally conducted on the basis of evidence and submissions that applicants who ask for specific provision will likely, but not necessarily, use funds for the purposes they have requested the funds for.
However, unless there are specific conditions or limitations placed on the provision, applicants who have been given provision are not obliged to use the provision for what they have requested.
Thus, if a widow, for example, was given a house in specie, subject to the niceties of transferring the property into her name, there would be nothing, at least technically, to stop the widow from selling the property within a short time after the date of the order and spending the proceeds of sale as she might wish.
This practical reality has been recognised by leading family provision judges in a number of cases. For example, in Porthouse v Bridge [2007] NSWSC 686 (Porthouse v Bridge), Bryson AJ (as his Honour then was) stated at [33]: 33. … Buying a business, and buying a dwelling, are simply out of any scale that I regard as appropriate to be ordered according to the requirements of s 7. To be an effective advancement the provision ordered should at least be sufficient to repay all his current debts. Whether he should use all or part of his resources for purchasing a motor car, or going on an overseas holiday or purchasing a computer is for his judgement; it is for him to decide the balance between keeping a fund as a buffer against adverse events and contingencies, and recognizing particular needs and deciding to spend money on them.
Further, in Kusumo v Kusumo [2014] NSWSC 1704 (Kusumo), Hallen J, in considering whether to make a protective order (a matter which I will return to), stated at [202] as follows: 202. I have considered whether I should make some protective order. Having considered all of the circumstances of this case, I do not think it is necessary for me to do so. If Iskandar chooses to spend the lump sum that he receives in an irresponsible manner, then, in his later years, he will find himself without any capital to provide for exigencies of life. That will be his own doing. (In any event, neither counsel suggested that I should do so, although the power of the court to do so was the subject of discussion between Bench and bar.)

[36]

Contingencies

It is common in family provision applications to see claims for contingency funds. It would not be an overstatement to say that hundreds of family provision cases make reference to claims for, or awards of, a type of provision in the form of an amount or a fund for "contingencies".
The choices of meaning which the Macquarie Dictionary, online ed ascribes to the noun "contingency" ("contingencies" is the plural form) are: 1. a contingent event; a chance, accident, or possibility, conditional on something uncertain. 2. fortuitousness; uncertainty; dependence on chance or on the fulfilment of a condition. 3. something incidental to a thing.
Exactly what might or might not be covered by "contingencies" in family provision law has, so far as I can tell, never been the subject of deep judicial exposition nor systematically analysed in texts.
The genesis of provision in the nature of contingencies appears to date back to the earliest operation of the legislation.
In 1900, the New Zealand Parliament passed the Testator's Family Maintenance Act 1900, 64 Vict, c 20, the first family provision legislation in the common law world: John de Groot, and Bruce Nickel, Family Provision in Australia (6th ed, 2021, LexisNexis) (de Groot & Nickel) at 4.
Even in one of the early famed cases, Wilkinson v Wilkinson (1904) 24 NZLR 156, it is clear that in considering the claim of an adult daughter aged 56 who was suffering from slight valvular disease of the heart, and unable to do anything towards her own support, Stout CJ, in assessing provision for an increased annuity, took into account future contingencies being that she would probably require medical advice and medicine: at 157.
In re Allardice; Allardice v Allardice (1910) 29 NZLR 959 (Re Allardice) not only shows that future possibilities or contingencies may be taken into consideration, but may make the difference between whether an order for provision is made or not made. The earlier family provision legislation had been amended and consolidated and, by 1910, the Family Protection Act 1908, (No 60 of 1908) (NZ) was operative. Claims of children of the testator's first wife were dismissed by Chapman J at first instance. The Court of Appeal (Stout CJ, Williams, Edwards and Cooper JJ) allowed the claims of 3 daughters but dismissed the claims of 2 sons. Stout CJ, in his reasons for allowing provision, considered the prospect that the daughters' husbands may not be able to support them into the future as well as they had been supported: at 971, Williams J agreeing (at 971), and Edwards and Cooper JJ agreeing though adding further comments regarding the operation of the legislation: at 971-975. An appeal to the Privy Council was dismissed: Allardice v Allardice [1911] AC 730 at 735 per Lord Robson for the Board.
"Contingencies", when referred to by judges in family provision cases, usually are uncertainties relating to either uncertainties of life generally or to a specific topic.
The notion of some consideration of contingencies in the general sense was alluded to by Lord Romer in delivering the advice of their Lordships in the Privy Council's decision Bosch v Perpetual Trustee Co Ltd [1938] AC 463 (Bosch) at 478 as follows: The amount to be provided is not to be measured solely by the need of maintenance. It would be so if the Court were concerned merely with adequacy. But the Court has to consider what is proper maintenance, and therefore the property left by the testator has to be taken into consideration. So, too, in the case of children, a material consideration is their age. If a son is of mature, or nearly mature, age, his needs both for the present and the future can be estimated without much difficulty. In the case, however, of a son of tender age, although his immediate needs can be readily ascertained, it is extraordinarily difficult even to guess what his needs may be in the future, Where, therefore, the testator's estate is a large one the Court will be justified in such a case in making provision to meet contingencies that might have to be disregarded where the estate is small.
Thus, a contrast was made between immediate needs which "can be readily ascertained" and future needs which "it is extraordinarily difficult even to guess" what they may be.
Some insight as to the elusive character of provision taking account of contingencies was given by the Privy Council in its conclusions regarding the award of provision. Their Lordships concluded at 483: For these reasons their Lordships are of opinion that the discretion of the learned judge must be reviewed, and that inasmuch as they are in possession of all the material facts they should indicate how, in their opinion, the discretionary power given to the Court by the sub-section in question should be exercised in the present case. The task of exercising the power must always be one of great difficulty and delicacy. It must always be one largely of guess-work, especially in a case like the present, which is concerned with children of tender age of whose needs in the future nothing can be predicted with any certainty. But, guiding themselves by the principles which have been discussed in an earlier part of this judgment, bearing in mind that the testator died possessed of a fortune of over a quarter of a million pounds, that he himself just before his death was of the opinion that the provision made for his sons by his will and second codicil was inadequate in the circumstances, and that he was a person who, to say the least of it, was not likely to take an exaggerated view of what would constitute proper maintenance, education and advancement, bearing in mind, also, the tender age of the appellants, and the possibility, therefore, that by the time they are of an age to embark upon a career, or to marry, the value of money and the rates of interest may be much depreciated, not forgetting the wishes of their mother as to their education, and taking into consideration all the other circumstances of the case, their Lordships have come to the conclusion that, in order to make adequate provision for the proper maintenance, education and advancement of the appellants, there should be provided out of the residuary estate of the testator for each appellant the additional sum of 10,000 l., to be held by the trustees upon the same trusts in all respects as are declared by the will, or by the will and second codicil of the testator (as the case may be), as such trusts are varied by the order of Nicholas J. of December 11, 1936.
Thus, whilst proper understanding of the statutory provisions at hand is essential, their Lordships acknowledged that the task of exercising the power is always one of great difficulty and delicacy and "must always be one largely of guess-work, especially in a case like the present, which is concerned with children of tender age of whose needs in the future nothing can be predicted with any certainty".
An example of contingencies relating to a specific type of provision is given in Re Buckland, deceased [1966] VR 404 (Re Buckland). That case involved (at its time) a very large estate (£4.829M). Adam J, following reference to the statements of the Privy Council in the above passage, said at 415: I consider the proper conclusion to be drawn from the authorities is that the court's jurisdiction, whatever the size of the estate, is limited by the claimant's need for maintenance and support; but that the maintenance and support to which he or she may for this purpose be treated as needing is that appropriate to his or her station or condition in life. For a child, particularly a dependant daughter of an exceptionally wealthy father, the standard of maintenance may justly be set high ensuring a degree of comfort and freedom from anxiety for the future which for those not so circumstanced might well seem somewhat extravagant, but it should fairly come within the conception of maintenance and support. The greater the estate the more may contingencies, even remote contingencies which may arise in the future, be provided for in the assessment of such maintenance.
In finding that an amount of an annuity for the deceased's daughter should be substantially increased, his Honour accepted that the Court should have regard to the incidence of taxation and also to contingencies such as the possibility of rises in the rate of income tax, and the possible future effect of inflation: at 415.
Both Bosch and Re Buckland associate the process of taking account of contingencies (in making provision) with large estates.
Certainly, as the decades have passed by, the notion of provision making an allowance for contingencies has not been confined to large estates.
The notion of taking account of contingencies for matters bearing upon specific provision and provision more generally subsists.
In New South Wales, it has been common for judges to make an allowance for provision to address unforeseen adverse exigencies in life.
Terminology for this type of provision varies. In many cases, reference is simply made to "contingencies". Other expressions include: 1. "a hedge against any unforeseen contingency or disaster that life might bring": Elliott v Elliott (Supreme Court (NSW), Powell J, 18 May 1984, unrep) at 11 (appeal dismissed, see Elliott v Elliott (Court of Appeal (NSW), Kirby P, Glass and McHugh JJA, 24 April 1986, BC8601072, unrep)); 2. "capital sum for exigencies" or "capital sum to meet exigencies": Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 at 38G, 47D per Sheller JA (Handley JA agreeing). 3. "any unforseen circumstances and contingencies": e.g. Barnaby v Berry [2001] NSWCA 454 at [21] per Young CJ in Eq (as his Honour then was), Mason P and Ipp AJA at [23],[24] agreeing; 4. "nest egg to provide for the contingencies of life": Radzyminski v Radzyminski [2008] NSWSC 239 at [25] per Young CJ in Eq; Dunne v Dunne [2013] NSWSC 1911 at [34] per Young AJ; and 5. "a back-stop or buffer of reserve funds to meet pressing needs and adverse contingencies": Porthouse v Bridge at [33] per Bryson AJ.
In Oliveira, as noted by Mr Morrison, Kunc J made a number of observations. In particular, his Honour stated (at [11]-[12]): 11. It may be accepted that specific proof of the likelihood and nature of vicissitudes is rarely required. In the torts field of discourse (where it is often discussed in the context of deductions) the assessment for vicissitudes or contingencies has been described as quasi-discretionary or intuitive: see, for example, Nestle Australia Ltd v McDougall [1998] NSWCA 158. Nevertheless, as the product of the exercise of judicial power, it must be determined rationally and for a proper purpose. 12. There must be a demonstrable basis both as a matter of reason and evidence for making an allowance for contingencies. In my respectful view, in most cases that is provided by an inference that the Court draws by accepting as not reasonably open to question and common knowledge (see Evidence Act 1995 (NSW), s 144) that the unexpected does happen in the course of life which may require expenditure. Putting it colloquially, it is analogous to "rainy day" savings that a prudent person tries to maintain if they can. So understood, this also explains why, in the absence of specific potentialities being established by proper evidence, such allowances are generally not large and rarely in six figures (although the size of the available estate will always be a matter to be taken into account in making any such award).
I agree with those remarks.
The facts of Oliveira are important. It is clear that the plaintiff, who lived in a shared house with others, would live her whole live in care, and all of her current needs were being met by her NDIS package and Commonwealth pension: at [4], [5], [14], [18]. Neither counsel, nor his Honour, were able to identify "any even remotely likely event that could happen to [the plaintiff] that would not be covered by her current or similar arrangements": at [14] (emphasis added). Indeed, his Honour had express regard to the likelihood that the plaintiff would (as part of her resources going forward) inherit $20,000 under her mother's Will, which the parties accepted her mother no longer had capacity to change: [15]. (I note the notion of a statutory Will application was not mentioned, nor do I suggest it ought to have been).
Generally, provision for contingencies proceeds on a premise that whilst some future events might be likely to occur or expected to happen, the future that a plaintiff might face cannot be envisaged or predicted with a high degree of accuracy. As such, a provision for contingencies allows for the possibility that some events adverse to the plaintiff's wellbeing or property may occur and give rise to a need for resources to respond to them.
However, in Oliveira, it was clear that the known facts rationally allowed an inference that the likelihood of there being future unforeseen adverse exigencies of life of a magnitude that would not be covered by her financial resources was very limited. In statistical terms, one might say that the relevant risks associated with adverse exigencies and lack of financial resources was minimal. In that sense, Oliveira is an exceptional case and outcomes denying provision for contingencies in exceptional cases should not be pressed into service as a sure guide for how claims for contingencies in other cases should be determined.
In light of the above, it should not be thought that Oliveira is a precedent to deny provision for contingencies simply because in any given case no event for which a contingency might be provided can be identified (which, as noted above, was not the point of Mr Morrison's submission). Specifically, I do not read Kunc J's comments in Oliveira as mandating that possible adverse events that might befall someone must necessarily be identified with precision before a sum or component for contingencies can be awarded.
Young AJ (as his Honour then was) in Colosi v Colosi [2013] NSWSC 1892 commented that, on occasion, it is evident that applicants have a need for items which are not directly claimed by them, and people who are at or about the age of retirement, in particular, often find there is a need for a cash fund to cover medical expenses or accommodation. His Honour stated at [24]: 24. … Furthermore, it can be seen that there were some items that she has not put in, and again one has to consider that she is entitled to a sum for contingencies, because people who are sixty-eight and over often find that all of a sudden they need some expensive medical procedure, or they have to change house or what have you, and a wife of twenty years is entitled to have a little nest egg or a contingency.
In Smilek v Public Trustee [2008] NSWCA 190, the Court of Appeal (comprised of McColl JA, Bell JA (as her Honour then was) and Handley AJA) observed that in Collins v McGain [2003] NSWCA 190, the Court of Appeal considered that adequate provision for proper maintenance may require provision for contingencies that are unforeseen or no more than mere possibilities. The passage at [28] is as follows: 28. Allied to the submission as to the content of the concept of advancement was Mr Ellison's contention that his Honour had focussed on the necessity to identify some specific need, as distinct from considering more general needs, including the provision for contingencies: Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24; Collins v McGain [2003] NSWCA 190. In Permanent Trustee Co Ltd v Fraser, this Court approved the Master's determination that adequate provision for the proper maintenance and advancement of the 59 year old respondent required secure accommodation for life and "a capital sum to meet exigencies" (per Sheller JA at 47). In Collins v McGain, this Court considered that adequate provision for proper maintenance may require provision for contingencies that are unforseen or no more than mere possibilities (Hodgson JA at [6], Tobias JA at [42]).
In light of the above, it would be a mistake to think that the Court, acting in a principled way, is (exceptional cases aside) necessarily restrained in making some allowance for contingencies that are unforeseen or no more than mere possibilities.
Finally, it should be noted that provision for "contingencies" is not the same (or not necessarily in any given case the same) as provision for "advancement in life". Provision may be given to advance an applicant's position in life that has nothing to do with "needs" or "contingencies" per se but more to do with what is assessed to be proper and adequate provision having regard to an applicant's station or life or lifestyle or some other fact or factors. Nevertheless, on occasion, an award of provision in a single lump sum might be given which encompasses both advancement in life and contingencies.

[37]

Consideration of the claim

In determining whether to make a family provision order and the nature of any such order, the Court may have regard to a number of matters enumerated in s 60(2) Succession Act.
Ms Reid drew my attention to the comments regarding s 60(2) of Hallen J in Dodds v Dodds [2013] NSWSC 1933 at [90]. I have considered those matters and also accept what his Honour helpfully said regarding the operation of s 60(2) in Mallitt v Gow [2022] NSWSC 1012 at [222]-[224].
In relation to consideration of the claim, Ms Reid drew my attention to the comments of Brereton J (as his Honour then was) in Taylor v Farrugia [2009] NSWSC 801 at [58] as follows: 58. Generally speaking, the community does not expect a parent to look after his or her children for the rest of their lives and into retirement, especially when there is someone else, such a spouse, who has a prime 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. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents 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. It is no longer the case, if it ever was, that an adult child has to establish a special need before obtaining provision from the estate of a deceased parent.
Ms Reid also referred to comments of Gaudron J in Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 at 227 to the effect that the existence or absence of needs which the claimant cannot meet from his or her own resources will always be highly relevant. The phrasing of her Honour's comments was in slightly different terms. It is as well to set out the relevant paragraphs from the decision (omitting footnotes): It is well settled that the preliminary question which arises under testators' family maintenance legislation, namely, whether the provision (if any) is inadequate, is to be determined in the light of all the circumstances of the case. It follows, at least as a matter of law, that the issue goes beyond the question whether the applicant has needs and requirements that cannot be met from his or her own resources. Conversely, if an applicant does establish needs and requirements of that kind, he or she will have gone a very long way towards satisfying and, as a general rule, will satisfy the requirement in s. 9(2)(a) of the Act. That was the point of Hunter v. Hunter to which the Master referred in his decision. There may be cases where, given the circumstances and the size of the estate, an applicant will, in practical terms, only succeed by proving needs and requirements that cannot be satisfied from his or her own resources. But that is a practical consideration only. And it will not even be a practical consideration in a case where the estate is sufficient to meet the moral claims of all members of the family.
Matters which Ms Reid submitted the Court should consider by reference to s 60(2) included the following, which I address seriatim: 1. The plaintiff had a close, loving and caring relationship with the deceased. I accept that, by and large, that was the case. 2. The extent of the plaintiff's residence with the deceased. I accept that the plaintiff lived with the deceased for a significant period of time. 3. The plaintiff lived with the deceased and most especially throughout her cancer illness and was available to care for her needs on a day-to-day basis. Whilst the plaintiff refers to the deceased's cancer, he did not detail particular care that he had provided for the deceased at that time. According to John, the deceased's cancer was diagnosed in about 1988 and she had to have major surgery to have one breast removed and the other partially removed: CB 415[15]. However, 1988 does not coincide with a time when the plaintiff was residing in the Brighton-Le-Sands property. I have already indicated that I do not accept that the plaintiff provided any significant care for the deceased in the sense of cleaning, providing meals, attending to her personal care and the like. In fact, the evidence suggests it was the deceased that provided these things for the plaintiff. However, making that observation is not necessarily a factor against the plaintiff. The fact that the deceased did those things for the plaintiff manifested her undoubted love and care for him, which is a relevant consideration. Ms Reid submitted that the greatest contribution made by the plaintiff to the welfare of the deceased was the day-to-day care he provided for her in the latter stages of her life from 2017 to 2021 without remuneration. I am not satisfied that the plaintiff cared for the deceased in such a way. I do accept that in the last week or so of her life, he assisted in providing care as Mary described. 4. Ms Reid drew attention to the size of the estate noting that the Brighton-Le-Sands property was valued at $1.6 million, and the estate had minimal liabilities. I accept that the size of the estate is large enough to make provision for the plaintiff if it was otherwise appropriate to do so. This is not one of those cases in which the estate is too small to satisfy all competing needs. 5. Ms Reid referred to the plaintiff's recent scooter accident and unemployment and what was said to be his minimal resources. The difficulty with the submission is that the plaintiff has not produced all the relevant bank statements which he was asked to produce. I accept Mr Morrison's submission that the extent of the plaintiff's income or, more particularly, his financial resources, from sources including Stella and TM, are at odds with his affidavit evidence and I cannot be confident that I have been provided with a completely clear picture of the extent of his financial resources. 6. Ms Reid observed that the three beneficiaries have declined to disclose their current financial circumstances to the Court. That is their prerogative. However, as Mr Morrison submitted, whilst the Court may infer that each of them have adequate resources on which to live and do not wish to advance a competing financial claim upon the bounty of the deceased, the Court must still have due regard to the testatrix's wishes and evaluate their competing (non-financial) claims: e.g. Sammut v Kleemann at [137]-[140] per Hallen AsJ (as his Honour then was). 7. Ms Reid made the submission that the plaintiff will need financial assistance to rehouse himself and to provide a necessary buffer to assist him with future employment difficulties which would be detrimental to his ability to earn a "living wage". My sense of the evidence is that there is likely some truth to that. However, the failure of the plaintiff to adduce particular evidence of what he claimed by way of provision places a significant practical limitation on the Court as to what provision may be ordered. 8. Ms Reid indicated that the plaintiff is not cohabiting with another person and no other person is liable to support him. On balance, I accept the plaintiff's and Amie's evidence as to the status of their relationship, namely, that they have a close friendship which currently is not intimate. 9. Ms Reid referred to the plaintiff's health conditions including Tendonitis (Tendinitis) in the left wrist, Stenosis Polaris, migraines, back issues, Depression and Anxiety and residual injuries as a result of his recent scooter accident. Whilst it is true, as Mr Morrison observes, that the plaintiff has not provided particular evidence of prognosis in relation to his recent scooter accident, there is evidence that I referred to above that the plaintiff has had seemingly lengthy periods of either lack of ability to work or reduced capacity to work since 2009. I have commented on this above. 10. I accept Ms Reid's submission that the plaintiff provided some physical assistance around the house in terms of cleaning and maintenance and some painting. However, as I have indicated, I find it was more limited than as asserted by the plaintiff. 11. Ms Reid submitted that the deceased indicated to the plaintiff in the latter stages of her life that he would be "looked after". I confess that is not evident from the evidence. The plaintiff in his first affidavit stated that "… up until the day she passed away the deceased always made sure that I was okay": CB 28[63]. However, the plaintiff, in his affidavit in chief, indicated that he did not know what the deceased wanted to do with her estate: CB 28[60]. 12. Ms Reid acknowledged that the plaintiff had "made his mistakes" but submitted that his conduct towards the deceased was always that of a loving, caring grandson. I accept that the plaintiff's general disposition towards his grandmother was one of love and affection. Although Ms Reid referred to the plaintiff assisting the family to give the deceased's home a facelift to prepare it for sale (I infer this was a reference to the painting), his refusal to leave the Brighton-Le-Sands property when requested to do so gave rise to a degree of unnecessary expense in the defendants having to commence, and progress with, possession proceedings.
As I have indicated, Mr Morrison cautioned the Court against making provision for accommodation or medical expenses in the absence of there being specific evidence to do so. Nonetheless, he accepted that some provision could be made for contingencies.
As I noted in Tarbes v Taleb, an applicant's claim for provision is at risk of rejection in whole or in part where there is inadequate proof of a crucial element of the claim: at [318]. Further, a claim is at risk of being dismissed where a crucial element of the applicant's financial circumstances is not satisfactorily proved: Tarbes v Taleb at [316] citing Cringle v Cringle [2018] NSWSC 1558 at [36] per Ward CJ in Eq (as the President then was) and Collings v Vakas [2006] NSWSC 393 (Collings v Vakas) at [67] per Campbell J (as his Honour then was). In Collings v Vakas, Campbell J was satisfied of several aspects of the plaintiff's financial position (that she owned no real estate and had family responsibilities) but was not satisfied of another crucial aspect of her financial position, namely, her income and expenditure. His Honour dismissed the claim.
Mr Morrison accepted that there is no suggestion that the plaintiff has a large amount of assets that have been undisclosed: T 142.10-12. His submission as to nondisclosure focussed upon the plaintiff's income and expenditure.
The particular concerns regarding disclosure of income or monies really fall into three categories. First, there is a large amount of monies that came into the plaintiff's Complete Freedom Account received from persons whom he described as being "friends" (albeit that some of them are no longer so). The monies were used for gambling. Secondly, monies were received from Stella. They appear to be, in part, monies that were owed to the plaintiff: T 33. Thirdly, he received some monies from TM some of which were also for gambling, but some were, in part, loans which in substance became gifts (as requirement for repayment was waived): T 38.17-29, 52.15-18.
The plaintiff's nondisclosures regarding the gambling aspect of the monies coming into the plaintiff's Complete Freedom Account were not ideal. However, I am not persuaded that the plaintiff has any significant income from other undisclosed conventional (non-gambling) sources. The fact that part of the monies received from Stella appear to have been monies she owed to him as distinct from income per se suggests that the plaintiff's income from Bestway is not as high as the total of the deposits might suggest. Further, the plaintiff did provide Centrelink payment summaries for the financial years ended 30 June 2020 to 30 June 2022 and a statement for the period from 8 December 2022 to March 2023: Exhibit D2 pages 5, 329-334.
Further, whilst an applicant's financial needs and the financial needs of other persons with claims on a deceased's testamentary bounty are important, and often highly important considerations, it "is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter": Chan v Chan [2016] NSWCA 222; (2016) 15 ASTLR 317 at [22] per Basten JA (as his Honour then was) (Simpson JA - as her Honour then was - agreeing). Proper provision and adequate provision is not to be determined purely by a calculation of financial needs: Sgro v Thompson [2017] NSWCA 326 at [71] per White JA (McColl JA agreeing) quoting Chan v Chan at [22] per Basten JA.
In my estimation, the plaintiff was dependent upon the deceased for accommodation and also to a not insubstantial degree upon her for domestic homemaker care particularly during his times of injury and incapacity (at least in part) whilst he recovered.
Overall, I consider that some provision ought to be given not for specific items (there being an absence of evidence) but, rather, for the plaintiff's advancement in life and to incorporate some amount for contingencies to meet adverse exigencies of life.

At a glance

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Before

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Judgment (41 paragraphs)

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Legislation Cited (4)

Cases Cited (42)

Cited By (3)