Peter Robert Durham v Bruce Albert Durham & Ors

Court of Appeal (NSW)|2011-03-15|Before: Tobias JA, Campbell JA, Young JA, Bryson J, Ball J

Headnote [ THIS HEADNOTE DOES NOT FORM PART OF THE COURT'S JUDGMENT ] On 25 July 1987 the appellant's father, the testator, died. Probate of the testator's will made on 21 April 1987 was granted on 16 November 1987. At the time of his death the testator had one substantial asset being a home unit at Collaroy (the property). The testator purported to leave a life estate or a personal right of residence in that property to his widow with the residue to be divided equally between his four children on her death. The testator's four children were the appellant, his brothers John and Paul and his sister Dianne. From the time the property was purchased in 1968 the appellant and his brother Paul lived there with their parents. In 1976 the appellant moved out of the house and lived at Kirribilli with his de facto partner until 1980 when he returned to live with his parents. He continued to live in the property both before the testator's death during which period he looked after both parents. After his father's death he cared for his mother until her death on 13 August 2008. He remains in occupation of the property. The appellant's mother made a will in June 1996 in which she purportedly left the whole of her estate to the appellant. In that will she stated that she had made no provision for her other three children as she considered that they were comfortably off and that the appellant had a greater need for provision. In fact his mother had no estate to leave as she only had, at most, a life estate in the property. Any application by the appellant for provision out of the testator's estate was required to be made within 18 months of the date of the testator's death, namely, on or before 24 January 1989. The application was not made until 10 July 2009, more than 20 years late. On 5 May 2010 Ball J dismissed an application by the appellant pursuant to s 7 of the Family Provision Act 1982 (NSW) (the Act) for provision to be made for him out of his father's estate. As the application was made more than 18 months after the testator's death, the appellant also sought an extension of time pursuant to s 16(2) of the Act in which to make the application which his Honour refused. The appellant appealed to this Court against those decisions. The issues for determination on appeal were: (i) Whether the primary judge erred in dismissing the appellant's claim to extend time for making a claim for provision under s 16(2) of the Family Provision Act 1982 (NSW); (ii) Whether the primary judge erred in considering the two questions posed by Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201; and (iii) Whether the grounds contained within the Notice of Appeal complied with Uniform Civil Procedure Rules 2005 (NSW) r 51.18(1)(e). The Court held, dismissing the appeal: In relation to (i) (per Tobias JA, Campbell & Young JJA agreeing)

Judgment 1TOBIAS JA : On 5 May 2010 Ball J dismissed an application by the appellant pursuant to s 7 of the Family Provision Act 1982 (NSW) (the Act) for provision to be made for him out of his father's estate (the testator). As the application was made more than 18 months after the testator's death, the appellant also sought an extension of time pursuant to s 16(2) of the Act in which to make the application which his Honour refused. The appellant appealed to this Court against those decisions. 2At the conclusion of the appellant's oral argument the Court, after taking a short time to further consider the matter, determined that the appeal must fail. It therefore ordered that the appeal be dismissed with costs, indicating that it would publish its reasons for making those orders in due course. What follows are my reasons for joining in those orders.

The relevant factual background 3The testator died on 25 July 1987. Any application by the appellant for provision out of the testator's estate was required to be made within 18 months of that date, namely, on or before 24 January 1989. The application was not made until 10 July 2009, more than 20 years late. 4Probate of the testator's will made on 21 April 1987 was granted on 16 November 1987. At the time of his death the testator had only one substantial asset being a home unit at Collaroy that he had purchased in 1968 (the property). He purported to leave a life estate or a personal right of residence in that property to his widow with the residue to be divided equally between his four children on her death. 5The testator's four children were the appellant (born in 1949), his brothers John and Paul (born in 1947 and 1956 respectively) and his sister Dianne (born in 1944). 6From the time the property was purchased the appellant and his brother Paul lived there with their parents. In 1976 the appellant moved out of the house and lived at Kirribilli with his de facto partner until 1980 when he returned to live with his parents. He continued to live in the property both before and after the testator's death during which period he looked after both parents. After his father's death he cared for his mother until her death on 13 August 2008. He remains in occupation of the property. 7The appellant's mother made a will in June 1996 in which she purportedly left the whole of her estate to the appellant. In that will she stated that she had made no provision for her other three children as she considered that they were comfortably off and that the appellant had a greater need for provision. In fact his mother had no estate to leave as she only had, at most, a life estate in the property. 8It would appear that the appellant's mother had been suffering from ill-health since about 1960. In 1967 she was diagnosed with cancer and in 1982 underwent surgery. In December 1987 she underwent further surgery. From the time of the testator's death and until his mother was admitted to an aged care facility in June 2003, the appellant devoted himself to her care. Thereafter he visited his mother on a daily basis until her death in August 2008, 9The primary judge found (at [6]) that during the time that the appellant lived with both parents, he worked full-time in various low-paid jobs until October 2007 when he took voluntary redundancy. When at home he assisted in the care of his parents including doing their shopping, tending to general household work, some cooking and assisting with his father's care - for example, changing and sterilising his colostomy bag (due to the kidney condition from which his father suffered). The testator underwent dialysis treatment at home from 1987 until his death. 10While the testator was alive, the appellant paid rent of $20 per week except for approximately 12 months when he was unemployed. However, he ceased to pay rent when his father died. His Honour also found that both before and after the testator's death he contributed on occasions to household expenses such as gas, electricity, water rates and the like. 11Much was made in argument by the appellant's counsel of the appellant's apparent sacrifice that after he separated from his de facto partner in 1980 and returned to live with his parents at the property, the appellant became aware that any overtime at work or any future romantic relationship would be impossible because of the time and effort required to look after his parents and that accordingly, since 1980 he has not formed any romantic attachments. It was submitted that he had (albeit as a matter of choice) rejected the possibility of any romantic relationship in order to devote himself first, to looking after both his parents; and, second, after the testator's death, to looking after his mother until she was admitted to a nursing home in 2003. There was no doubt that he was a devoted son to both his parents. 12At the time the matter was heard before the primary judge, the evidence established that the current value of the property was approximately $430,000-$440,000 from which it would be necessary to deduct the costs of the sale (and any legal costs the testator's estate was required to pay) to determine the net distributable value thereof. His Honour noted that the appellant's costs at the time of the hearing were $25,500 and those of the respondent were $23,000. If one assumes the property was sold for $430,000 and factors in agent's commission of 2.2% (incl GST) and legal fees of $1,600, the net amount available for distribution, subject to the deduction of costs, would be $418,940. If one deducted the costs of the proceedings to the date of the hearing totalling $28,500, the net amount distributable between the four beneficiaries would be $370,440 or $92,610 each. 13The appellant stated in his evidence that as at 9 July 2009 he had $195,906 in his bank accounts. At [10] of his reasons his Honour found that the appellant had approximately $171,400 in savings and superannuation of approximately $57,000, a total of $228,400. If one added to that his entitlement under the testator's will of, say, $92,600, he would have a total of $321,000 available to him. So far as his income was concerned, his Honour found that he received $370 per fortnight by way of sickness benefits from Centrelink. He also owned a 2006 Holden Vectra motor vehicle. 14The primary judge then set out at [11]-[13] of his reasons the financial position of the appellant's siblings at the time of the hearing. His sister Dianne was then earning a salary of $64,000 per annum as a sales manager in a clothing store but planned to retire at the end of 2010 at the age of 57. Her principal asset was a half-share in a house at Leichhardt, the other half interest being owned by her son who had purchased it from his father following his parent's separation. Each half interest was worth approximately $400,000. Dianne also had approximately $183,000 in various forms of savings. 15The appellant's brother, John, was discharged from the NSW Police Force in September 1997 due to health issues. At the time of the trial he was 63 years old and in receipt of a police pension of $1,112.20 per week. It is not clear from the evidence if that was a gross or net figure. In any event, he lived with his wife in a property worth approximately $460,000-$480,000. His wife worked and earned approximately $480 per week. He also owned land at Stroud, the net value of which was approximately $165,000 and which he proposed to give to his son. He and his wife had other savings that, after deducting liabilities, amounted to approximately $68,000. He owned three motor vehicles totalling in value approximately $40,000. 16The appellant's other brother, Paul, worked as a postman for most of his life. He worked full-time until December 2007 and from then until July 2008 he worked approximately 10 hours per week on a casual basis. Since April 2009 he has received a disability support pension of approximately $950 per month, a family tax benefit of approximately $400 per month from the Family Assistance Office and a parenting allowance from Centrelink of $818 per month, a total of $2,168 per month or $500 per week. He and his wife own a house worth approximately $320,000 in which they live with their dependent son. They had other savings consisting largely of superannuation of approximately $323,000 and a motor vehicle and tractor worth approximately $23,500. 17The primary judge found (at [14]) that all of the testator's children had good and close relations with their parents.

The relevant statutory provisions 18Section 7 of the Act provided as follows: " 7 Provision out of estate or notional estate of testator person Subject to section 9, on an application in relation to a deceased person in respect of whom administration has been granted, being an application made by or on behalf of a person in whose favour an order for provision out of the estate or notional estate of the deceased person has not previously been made, if the Court is satisfied that the person is an eligible person, it may order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the Court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person . " 19However, before s 7 is engaged, s 16 provided for the time in which an application for the making of a provision pursuant to s 7 must be made. It was relevantly in the following terms: " 16 Time for application for provision (1) In this section, prescribed period in respect of an application in relation to a deceased person, means: (a) ... or (b) in any other case-the period of 18 months after the death of the deceased person. (2) An order under section 7 shall not be made unless the application for the order is made within the prescribed period in respect of that application or within such further period as the Court may, having regard to all the circumstances of the case but subject to subsection (3), by order, allow. (3) The Court may not make an order under subsection (2) allowing an application in relation to a deceased person to be made after the end of the prescribed period unless: (a) ... or (b) sufficient cause is shown for the application not having been made within that period. ...." 20As I have indicated, the time within which the appellant was required to have made an application pursuant to the Act expired on 24 January 1989. His application was not made until 10 July 2009, a delay of approximately 10 years.

The primary judge's findings 21The first question the primary judge was required to consider was whether an extension of time should be granted pursuant to s 16(2) of the Act for the making of the appellant's application. At [15] his Honour observed that, assuming that the requirements of s 16(3)(b) were satisfied, he had a discretion to grant an extension of time " having regard to all the circumstances of the case ". He noted, and it was not contested, that in the exercise of that discretion the Court should take into account whether the beneficiaries under the will would be unacceptably prejudiced if time were extended. 22His Honour concluded that the condition set out in s 16(3)(b) had been satisfied and there is no challenge to that finding. However, at [17] of his reasons he concluded that he should not grant an extension of time since to do so would cause serious prejudice to the beneficiaries other than the appellant. 23The primary judge referred at [18] to Davison v Staley (Supreme Court of New South Wales, Bryson J, unreported 21 August 1986). The relevant statutory provision in that case was the Testator's Family Maintenance & Guardianship of Infants Act 1916 (NSW) (the TFM Act), the predecessor to the Act. It required an application to be made within 12 months from the date of the grant of probate but gave the Court a discretion to extend time. The application in that case was made some 32 years out of time. 24On the facts of that case, Bryson J declined to extend time. In so concluding, his Honour placed considerable emphasis on the fact that, had the application been made within time, the prospects of it succeeding, having regard to the interests of the testator's widow in that case, were very small. 25As the primary judge observed in the present case at [18]: "Bryson J expressed a reluctance to grant an extension of time which may have had the effect of improving her [one of his daughter's] position in comparison to the position she would have been [in] if she had made an application within time." 26The primary judge noted at [19] of his reasons that the appellant had sought to distinguish Davison on the basis that the legislation was different and only permitted the Court to take into account the circumstances which existed at the time of the testator's death and those that were reasonably foreseeable at that time. In contrast, s 9 of the Act required the Court to consider the position at the time of determination. 27However, at [20] of his reasons the primary judge considered that that distinction counted against the appellant rather than in his favour. He said: "In my opinion, however, this distinction counts against the [appellant] not in his favour. If an application had been made within time, the facts that the Court would be considering would be very different. The [appellant's] mother would still have been alive and the Court would have to have considered the [appellant's] claim in light of her position. Moreover, the extent to which the [appellant] would have cared for his mother, to the extent that that is relevant, would not have been known. Nor would the relative financial positions of the children. If an extension of time is granted the [appellant] would receive a very substantial benefit (and his siblings a corresponding detriment) because of the evidence that he is now able to so adduce . (Emphasis added) 28At [21] his Honour observed that even if he had been prepared to grant an extension of time, he was not satisfied that an order should be made in the appellant's favour. I shall return to this aspect of his Honour's judgment after dealing with the appellant's submissions with respect to his Honour's conclusion that an extension of time should be refused.

The Grounds of Appeal 29Three grounds of appeal were advanced. They were drafted in the following terms: (1)The learned trial judge erred in the exercise of his discretion in dismissing the appellant's claim to extend the time for making a claim for provision from the estate of Gavan Campbell Durham. (2)The learned trial judge erred in finding that the provision made for the appellant by his late father was not inadequate for his proper maintenance and advancement in life. (3)The learned trial judge erred in the exercise of his discretion in dismissing the appellant's claim for provision from the estate of Gavan Campbell Durham. 30Each of these grounds as drafted failed to comply with UCPR r 51.18(1)(e). One of the purposes of grounds of appeal is to inform the appellate court and the respondent in a brief and precise manner of the basis of the challenge to the relevant findings of fact and law of the court below. It is not enough merely to allege that the primary judge erred in law or fact. The grounds must identify the respects in which those errors occurred. That was not done in the present case and it tends to be a common fault of grounds of appeal as currently drafted. It should not happen. In my view, consideration will need to be given, if the practice continues, of denying to a successful appellant the costs associated with the drafting of the grounds of appeal which fail to comply with the rules. 31Since writing this judgment I have had the benefit of reading in draft the reasons of Campbell JA in this matter and who has sought to bring to the attention of the profession the fact that grounds of appeal drafted in the manner of those in the present case do not comply with the provisions of UCPR r 51.18(1)(e) and (2) and otherwise do not conform to the bases upon which one appeal in a Family Provision matter can succeed. I fully endorse his Honour's comments on this issue and, in particular, his remarks at [84]-[85] of his reasons.

The appellant's submissions with respect to Ground 1 of the Notice of Appeal 32The appellant accepted that as observed by Campbell J (as his Honour then was) in Cetojevic v Cetojevic [2006] NSWSC 431 at [58], the prejudice to which s 16(3) refers is that which has been occasioned by the delay in the lodging of the application. It was nevertheless submitted that at [20] of his reasons the primary judge had acted on the wrong principle in taking into account matters that did not give rise to a relevant prejudice to the beneficiaries other than the appellant. However, this submission was ultimately refined in oral argument to a contention that although his Honour had not erred in his statement of the relevant legal principles, he had erred in their application. There was some inconsistency between this concession and the submissions that followed. 33It was thus submitted that the finding that the appellant's claim would have been weaker had it been brought and determined within the prescribed period, did not constitute a relevant prejudice to the other beneficiaries. Rather, the question to which his Honour ought to have directed himself was whether the beneficiaries would have been any worse off if the claim had been brought within the prescribed period, and not whether the appellant would have had a weaker case at that time. This was especially so as there was no evidence that any of the beneficiaries had adopted a detrimental position in the expectation that their respective share of the testator's estate would remain undisturbed. 34It was further submitted that his Honour's finding that if time was extended the appellant would receive a very substantial benefit and his siblings a corresponding detriment was not a proper basis for refusing to extend time and did not constitute a relevant prejudice. In particular, beneficiaries did not suffer any relevant prejudice because events occurred after the prescribed period elapsed which might strengthen the applicant's claim for provision under the Act. This was because, as I understand the submission, when dealing with an application for an order under s 7, the Court is required to make an assessment of the applicant's future needs and that that prognostication necessarily involves an element of uncertainty. Upon the assumption that the appellant's claim been brought within the prescribed period, the position of the appellant's mother would have involved a degree of crystal-ball gazing in that one could not say with any certainty what her position or attitude would have been to such a claim by her son. The appellant's claim, even if bought within time, may have failed or, alternatively, any claim made by his mother may have failed, but in neither case was it permissible for his Honour to indulge in what was mere speculation. 35It was also submitted that in any event the appellant's case would have been more likely to have succeeded had it been made within time or that it was at least arguable that it would have. 36Finally, it was submitted that Bryson J's decision in Davison did not provide any relevant precedent upon which his Honour could rely. Rather he had to determine the issue of whether or not to grant an extension of time as a matter of fact.

The appellant's submissions on Ground 1 should be rejected 37In my opinion the appellant's submissions were flawed in the following respects: (a) It is correct that in Davison , Bryson J was required to consider the question of whether the applicant had been left without adequate provision for her proper maintenance, education and advancement in life according to the situation which existed at the testator's death, whereas under s 7 of the Act the Court is required to have regard to the circumstances at the time the order is made. However, as will appear, that factor generally has no application to a determination under s 16(2) of the Act or its equivalent provision in the TFM Act when considering whether to extend the time for the making of an application. Bryson J when considering whether an extension of time should be granted, felt it was appropriate to ask what would have happened if the applicant had proceeded to apply for provision within 12 months after the grant of probate. His Honour then said: "There might then have been a decision that she was left without adequate provision; in substance she was left with no provision although a nominal provision was made. But when I consider what the Court might then have done the prospects that the Court might then have recognised the inadequacy of the provision by diminishing the provision made for the testator's widow seem very small. So too the prospect that the Court would then have ordered more substantial provision for the plaintiff but postponed until after her mother's death also seems extremely small. With the use which the Court can make of the actual occurrence of events which were foreseeable to the testator and the power of the Court to have recourse to the assets of the testator at the time of the making of an order to meet an obligation measured according to the strength of moral claims at the time of his death, it seems to me quite likely that the benefit to flow to the plaintiff from a successful application would be very significantly greater than the benefit she would have received had her case been heard in a timely way. I am reluctant to grant an extension of time which may have the effect of improving her position in comparison with that in which she would have stood had she proceeded in a timely way." (b) In my view the primary judge in the present case was correct to adopt Bryson J's approach in Davison . This is because, in both that case and the present, the Court was postulating what might have occurred had the relevant application been made within time. The consequence of that exercise is that there is no relevant difference between determining the prospects of the applicant in Davison had she made an application within the relevant period, or the appellant in the present case if he had made an application within the prescribed period. In each case the question was being considered at or about the same time and assumes that there is no relevant change of circumstances between the date of the testator's death (being the relevant date under the TFM Act) and the date of the order (being the relevant date under the Act). In other words, in performing the hypothetical exercise in question, the fact that pursuant to s 7 of the Act the Court is looking to the position of the applicant and the beneficiaries at the time of the making of the order rather than as at the time of the testator's death, is generally of no material relevance when determining the relative merits of an application made within time for the purposes of s 16(2). It is, of course, possible that things may have changed between the time of the testator's death and the hearing of an application made within time, but that would need to be proved. (c) It cannot be the case that there was no relevant prejudice to the appellant's siblings occasioned by the appellant's delay in the filing of his application merely by virtue of the fact that there has been no change in the intervening period in those beneficiaries' entitlement under the testator's will. Subject to the life estate of their mother, they were each entitled to one-quarter share of the property on the testator's death as well as at the time the appellant filed his application in 2009. If the case were otherwise, there would never be relevant prejudice to the beneficiaries as a consequence of the applicant's delay. (d) Although I accept that there is a degree of what was referred to on behalf of the appellant as crystal-ball gazing regarding what decision the Court may have made or as to how the testator's widow may have reacted had the appellant brought his application within the prescribed period, nonetheless, applying a reality check to the facts of the case, reveals the following. 38First, the testator's estate was small and consisted, in effect, of only one asset, namely, the property; second, the widow, who had no other means of support, was dependant upon her life estate (if such it be) in the property for her future accommodation; third, if the appellant had made an application within the prescribed period seeking an order, as he now does, that he receive the whole of the testator's estate, then at least as a matter of probability his mother would have made a claim to the fee simple of the property which, in my opinion, would have been successful as the appellant ultimately conceded. This is because the testator's holograph will relevantly provided for his widow as follows: "I offer her [the appellant's mother] the Unit at xxxxxx Collaroy as her home (rent free) for as long as she shall live." It might well have been suggested that this was not a devise of a true life estate but only a right to live rent-free in the property whilst she was alive, that is, a right of personal residence only. She could therefore have lost her interest in the property if, for example, she had wished to move to another location or was unable to live in the property due to illness or disability but needed funds in order to provide for her care in a nursing home or the like. Fourth, in those circumstances if the appellant had made a claim to the whole of the property, his mother would have been advised to counter-claim for a fee simple interest in the property so that her needs, which at that time would have undoubtedly taken precedence over those of the appellant, could only have been satisfied by an order that she receive the whole of her husband's estate in circumstances where there was nothing to suggest that they had had other than a long and happy marriage. 39Finally, a particular weakness in the appellant's submission that he would have been in a stronger position had he made his application within the prescribed period is that although there was evidence as to the financial position of his siblings at the time of the hearing, there was no such evidence as at the time of the testator's death or within 18 months thereof. The onus lay upon the appellant to demonstrate lack of prejudice due to his delay in instituting proceedings and that required him to elicit evidence of the comparative financial position and needs of those competing for the testator's property at the relevant time. Each of his siblings filed affidavit evidence but none were cross-examined to ascertain their financial position or other needs at the time of the expiry of the prescribed period. In these circumstances, it is impossible for the appellant to assert that he had a stronger case in 1989 than in 2009. 40I would therefore reject the appellant's contention that he would have had a stronger case had he brought his application within the prescribed period vis--vis the other competing beneficiaries. In the intervening years his mother died and her position and needs were no longer required to be considered as would have been the case had his application been brought within time. Further, he had the advantage of bolstering his case due to his efforts in caring for his mother, which his Honour held was a relevant circumstance. 41Accordingly, it was clearly open to the primary judge to conclude as a matter of fact that if an extension of time was granted, the appellant would receive a very substantial benefit because of the evidence he was now able to adduce and, as a consequence of his stronger position vis--vis his siblings, the latter would sustain a corresponding detriment due to the appellant's delay in commencing his application. 42It should also be borne in mind that in determining whether to grant an extension of time pursuant to s 16(2) of the Act, his Honour was exercising an evaluative judgment upon which minds could easily differ given the statutory requirement to have regard to all of the circumstances of the case. As I have noted, the primary judge relied upon the appellant's advantage caused by the removal of the competing claim of the appellant's mother in the intervening years and the evidence of his care of her as increasing his prospects of obtaining an order for increased provision at the present time. In my view that was a finding that was clearly open to him and no error of principle or fact has been demonstrated. Ground 1 was therefore rejected with the consequence that the appeal failed at its threshold. However, as the primary judge proceeded to deal with the merits of the application, so shall I.

The primary judge's alternative finding on the merits of the appellant's application 43As I have stated, his Honour indicated that even if he had been prepared to grant an extension of time, he was not satisfied that an order should be made in the appellant's favour. At [22] of his reasons he noted that whether or not an order should be made raised two questions: first, whether the appellant had been left without adequate provision for his proper maintenance, education and advancement in life; and second, whether, assuming he had, what provision if any should be made for him: Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201; Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191. 44His Honour then discussed (at [23]-[24]) what was meant by the words " adequate " and " proper ". It was not suggested by the appellant that his Honour misstated the relevant principles to be applied for the purposes of s 7 of the Act. Rather, it was submitted that his Honour failed to consider the first question of the enquiry that he had identified at [22], namely, whether the appellant had been left without adequate provision for his proper maintenance, education and advancement in life. In this context his Honour said (at [25]): "In this case, the [appellant] essentially points to three factors which he says demonstrates that the provision made for him was inadequate. They are: (a) the direct contribution that he made to the welfare of his father; (b) the contribution that he made to the welfare of his mother; and (c) the fact that, unless an order is made, and in contrast to his siblings, he will not be able to remain in his current home and is likely to have difficulties buying alternative accommodation." 45The primary judge then concluded (at [26]) that the considerations to which he had referred at [25] were insufficient to demonstrate that the provision made for the appellant was inadequate. He then gave a number of reasons which it unnecessary to canvass, except to note that at [28] his Honour accepted that the testator could have considered in the circumstances that greater provision should be made for the appellant than for his other siblings. However, his Honour was also of the view that consistent with community standards, it was also open to the testator to think that the appellant had derived sufficient benefits from living at home, that his estate was small, that he had a loving relationship with his other children and that it was appropriate that they should also benefit under his will. 46Of particular relevance is his Honour's consideration of the third matter to which he referred at [25], namely, that unless an order was made and in contrast to his siblings, the appellant would be unable to remain in his current home and was likely to have difficulties in acquiring alternative accommodation. As to this factor he said (at [29]): "As to the third matter raised by the [appellant], it is true that, in the absence of an order, the [appellant] will have to look for alternative accommodation and that his siblings are not placed in that position. But, as I have said, the Estate is small and none of his siblings is well off. One of them has a dependant child. All of them had a good relationship with their father. In those circumstances, I do not think that the testator was required to do more than he did for the [appellant]."

The appellant's submissions with respect to Grounds 2 and 3 of the Notice of Appeal should be rejected 47The appellant first submitted that his Honour at [25] had misconstrued the submissions made on his behalf as the matters there identified were not directed to whether the provision made for him was inadequate but rather to the issue of whether what, if any, provision ought to be made in his favour. In other words, the submission went to the second question referred to in Singer v Berghouse rather than the first question. However, it was conceded that the two stages in many ways were interrelated. 48In support of this submission the appellant provided the Court with the written submissions made to the primary judge on his behalf. A reading of paragraphs 18-21 of those submissions which were directed to the first stage test convinces me that his Honour accurately summarised at [25] of his reasons the factors relied upon by the appellant in those submissions with respect to that test. This first alleged error had no merit. 49There was no ground of appeal and nothing in the appellant's written submissions that sought to challenge the primary judge's finding at [29] that none of his siblings were " well off ". When this was brought to the attention of the appellant's counsel, she immediately sought to effect such a challenge. She acknowledged, however, that the expression " well off " could have different degrees of meaning depending on the particular circumstances. It could therefore be said that each of the appellant's siblings were financially comfortable but not " well off " in the sense of having sufficient monies to enable them to indulge in gratuitous spending. Rather, their savings that included, in at least two cases, superannuation, were required by them to fund the necessities of life rather than the luxuries. 50The appellant then submitted that the primary judge had not considered the first stage test relating to whether he had been left without adequate provision for his proper maintenance, education and advancement in life. In my view this submission was without merit in that it flies in the face of his Honour's finding in the first sentence of [26] which is supported by his reasoning in that paragraph and at [27]-[29]. 51The appellant next submitted that his Honour " ignored completely " the appellant's evidence of his needs including his inability to meet those needs from his own means and from the quarter share of the net distributable estate to which he was entitled. 52The only relevant need of the appellant was to either remain in the property or to have sufficient funds to acquire alternative premises to satisfy his need for future accommodation once the property was sold. The appellant's claim therefore was for the whole of the testator's estate: it was put on an all or nothing basis. However, the fact that he was not as " well off " as his siblings so far as the question of accommodation was concerned did not necessarily require a finding by the primary judge that he had been left without adequate provision for his maintenance and advancement in life. 53As ultimately conceded, there was no relevant misstatement of principle by the primary judge and it was open to him to find that the appellant had not established that he had been left without adequate provision for his maintenance and advancement in life. The appellant's complaint, in essence, was that his Honour had not accorded determinative weight to the fact that whereas his siblings owned their own homes, the appellant did not. It was further submitted that he had given " undue weight " to what he referred to at [26] as the appellant's receipt of subsidised accommodation. But the primary judge was not bound to give the first matter determinative weight or to give the second matter less than undue weight. Matters of weight are irrelevant to the question as to whether his Honour's exercise of his discretion miscarried within the meaning of the principles referred to by the High Court in House v The King (1936) 55 CLR 499 at 504-505. Provided the permissible bounds to an exercise of discretion are not exceeded, giving more or less weight to matters of fact cannot give rise to appellable error in the exercise of a discretion. 54It was finally submitted that the primary judge had given no consideration to the appellant's financial position at the time of the hearing. But the appellant's financial position was allied to his claim that he had a need for the whole estate for otherwise he would be left with insufficient funds to enable him to acquire alternative premises for his future accommodation needs. However, his Honour was alive to that consideration as the first sentence of [29] of his reasons demonstrated. 55It follows from what I have said above that the appellant' submissions in support of Grounds 2 and 3 of the Notice of Appeal could not be sustained. Accordingly, it was for the foregoing reasons that I joined in the orders of the Court made on 15 March 2011 that the Appeal be dismissed with costs. 56CAMPBELL JA : The reasons of Tobias JA state why I joined in the order the Court has already made in this appeal. 57In the present case the drafting of the grounds of appeal has not caused any particular problem for the Respondents, because the deficiencies that the Appellant alleged were to be found in the judgment below, were ultimately articulated in the written submissions of the Appellant. Even so, some remarks should be made about the grounds of appeal. 58The Notice of Appeal contained three grounds of appeal, namely: "1 The learned trial judge erred in the exercise of his discretion in dismissing the appellant's claim to extend the time for making a claim for provision from the estate of Gavan Campbell Durham. 2 The learned trial judge erred in finding that the provision made for the appellant by his late father was not inadequate for his proper maintenance and advancement in life. 3 The learned trail judge erred in the exercise of his discretion in dismissing the appellant's claim for provision from the estate of Gavan Campbell Durham." 59Too often, this Court sees notices of appeal concerning litigation under the Family Provision Act 1982 that resemble these grounds. Such a statement of grounds of appeal does not comply with the requirements for a proper notice of appeal, nor is it apt to fill the purposes that the rules requiring a notice of appeal to state the grounds of appeal are designed to serve. The frequency with which the Court sees such grounds of appeal suggests that it is time to restate some basic principles.

Rules Re Grounds of Appeal 60Uniform Civil Procedure Rule 51.18(1) lists mandatory requirements for the contents of a notice of appeal. One such requirement is that it must state: "(e) briefly, but specifically, the grounds relied on in support of the appeal ..." 61Uniform Civil Procedure Rule 51.18(2) provides: "Without limiting sub-rule (1), the appellant must also specify in the notice of appeal any material fact that the appellant contends that the court below should, or should not, have found." 62Those rules are supplemented by Practice Note SC CA 1. Clause 10 of that Practice Notice provides: "A notice of appeal ... must state the matters required by r 51.18. It is not enough merely to allege that the primary court erred in law or fact or that its decision is against the evidence or the weight of the evidence. The grounds of appeal must identify the respects in which error in law or (if applicable) fact occurred as well as any material findings that it is said that the primary court should or should not have made, and any material facts that it is said that the primary court should or should not have found."

Bases Upon Which a Family Provision Appeal Can Succeed 63The Family Provision Act 1982 has been repealed by section 5 of the Succession Amendment (Family Provision) Act 2008 . The latter Act added to the Succession Act 2006 a new Chapter 3 that dealt with the topic of family provision from deceased estates. However, under clause 11(2) of Schedule 1 of the Succession Act 2006 , the provisions of the Family Provision Act 1982 "continue to apply in relation to the estate of a person who dies before the commencement of this clause, in so far as they are not affected by the operation of this Part." That clause commenced on 1 March 2009: section 2(1) Succession Amendment (Family Provision) Act 2008 and Government Gazette No. 38 of 20 February 2009, page 1036. While the judgment from which the present appeal is brought was given concerning an application under the Family Provision Act , many of the principles to which this judgment refers will continue to apply to appeals concerning claims under Chapter 3 of the Succession Act . 64What is capable of being achieved on an appeal depends on both the nature of the particular appeal that is involved, and on characteristics of the decision that is appealed against. 65An appeal to the Court of Appeal from the Equity Division in an application under the Family Provision Act is made under s 75A Supreme Court Act 1970 . Such an appeal is by way of rehearing. Notwithstanding its name, an appeal by way of rehearing does not involve the appellate court in considering the matter completely afresh, as though the decision below had not been made. Rather, the subject matter of an appeal by way of rehearing is the decision appealed from. On an appeal by way of rehearing, the Court of Appeal can intervene if " ... making proper allowance for the advantages of the trial judge, they conclude that an error has been shown ..." : Fox v Percy (2003) 214 CLR 118 at [27], 127-128. There is other authority that before an appeal is upheld, the Court of Appeal needs to be satisfied that the trial judge was in error: Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359 at 369 per Beaumont and Lee JJ; Williams v The Minister Aboriginal Land Rights Act 1983 and The State of New South Wales (2000) Aust Torts Reports 81-578, [2000] NSWCA 255 at [60] per Heydon JA (with whom Spigelman CJ and Sheller JA agreed); Allesch v Maunz (2000) 203 CLR 172 at 180-181, [23]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at 435-436, [21]-[25]; Jovic v Lamont [2007] NSWCA 47 at [60]; Zorom Enterprises v Zabow [2007] NSWCA 106 (Special leave refused by the High Court - 14 December 2007) at [99]. 66There can sometimes be an error capable of being corrected on an appeal under s 75A when the error has caused the trial not to be conducted according to law, or arises from the judge failing to carry out the duties of a judge, such as by a failure to give adequate reasons. This judgment does not deal with formulation of the grounds of appeal for an appeal based upon that sort of error. Rather, it concerns the usual situation where there is no allegation that the trial has miscarried or the judge has failed to carry out his or her judicial duty, and the error is alleged to lie in the judge having made the wrong decision. 67Whether an appellate court is satisfied that a decision in the court below was erroneous can depend on characteristics of the decision appealed against. There are numerous ways, not restricted to ability to form a view about the reliability of disputed testimony, in which a trial judge can be in a superior position to that of an appellate judge ( Fox v Percy at 126 [23]; Seiwa Australia Pty Ltd v Beard [2009] NSWCA 240; 75 NSWLR 74 at [147]-[154]). Any decision that the trial judge came to a wrong decision must be made bearing in mind the possibility that the trial judge was in a superior position to decide. Of particular relevance to appeals in Family Provision Act matters, sometimes the nature of the decision that the trial judge is called on to make itself imposes limitations on when an appeal court can hold that a trial judge was in error. The relevant aspect of the nature of the three types of decisions under the Family Provision Act that are the subject of the present appeal is that they are, or are treated for the purposes of appeals as being, discretionary decisions. I will turn to examine each of those types of decision individually. Extension of Time 68The power to extend time in which to bring a claim made under the Family Provision Act 1982 arose under s 16 of that Act. Under Schedule 1 Clause 11(2) Succession Act , the particular form of s 16 of the Family Provision Act that continued to apply to the estate of the Appellant's father was that contained in the Act at the time of its repeal, namely: "(2) An order under section 7 shall not be made unless the application for the order is made within the prescribed period in respect of that application or within such further period as the Court may, having regard to all the circumstances of the case but subject to subsection (3), by order, allow. (3) The Court may not make an order under subsection (2) allowing an application in relation to a deceased person to be made after the end of the prescribed period unless: (a) the parties to the proceedings concerned have consented to the application being made after the end of that period, or (b) sufficient cause is shown for the application not having been made within that period. " 69For applications made under the Succession Act 2006 , the relevant provision is s 58(2), which provides: "An application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown." 70Under both those provisions, the decision of the court to extend time is a discretionary decision. 71The conventional statement of the principles for appellate review of discretionary decisions is that in House v The King (1936) 55 CLR 499 at 504-5: "It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." 72The explanation for this limitation on the power of a court to hear an appeal by way of rehearing from a discretionary decision arises from the nature of the discretionary decision itself. It is the nature of a discretionary decision that there is no single right answer to the question that that decision seeks to answer. Rather, a range of possible decisions is legitimately open to a judge called on to make a discretionary decision. The limits to that range are set by requirements that the judge act on correct principles, not be guided or affected by extraneous or irrelevant matters, not mistake the facts, and take into account the material considerations. Within that range, the weight that the judge gives to various matters entering into his decision is a matter for the judge, not for the appellate court. Sometimes, if the outcome is unreasonable or plainly unjust, the appellate court can conclude that the judge must have acted outside the legitimate range of his or her discretion, even if the precise error cannot be identified. 73While the passage I have quoted from House v The King has been cited in Australian appellate courts repeatedly in the last 85 years, it is the thoughts that it conveys about the permissible scope for appellate review of discretionary decisions, rather than the precise words itself, that are important. What a ground of appeal against a discretionary decision must identify in the decision appealed against is an error that, in substance, falls within the test laid down in House v The King . 74The grounds of appeal that seek to overturn a discretionary decision, such as a judge's decision whether to extend the time in which to bring an application under the Family Provision Act , should clearly identify the error or errors that the appellant alleges the trial judge has made. Because it is only if an error of the type identified in House v The King has been made that a discretionary decision can be overturned, the allegation should be one that identifies a specific error, of a type that, if made out, would warrant an appellate court in overturning the decision. Thus, for example, such a ground could allege that the judge acted upon a wrong principle, in that he acted on the basis that ABC, whereas the principle upon which he should have acted was DEF. Such a ground could allege that the judge took into account an irrelevant matter, namely, GHI. It could allege that the judge had mistaken the facts, in that he held that JKL, whereas he should have held that MNO. It could allege that the judge has failed to take into account a material consideration, namely PQR. It could allege that the decision of the judge is unreasonable or plainly unjust in that STU. 75The first ground of appeal in the present case did not comply with these criteria. The Jurisdictional Question and the Decision Re Nature and Quantum of Any Award 76Before a court can make an award under the Family Provision Act , s 9(2) requires the court to be satisfied that: "(a) the provision (if any) made in favour of the eligible person by the deceased person either during the person's lifetime or out of the person's estate; or (b) in the case of an order under section 8: (i) if no provision was made in favour of the eligible person by the deceased person, the provision made in favour of the eligible person under this Act out of the estate or notional estate, or both, of the deceased person, or (ii) the provision made in favour of the eligible person by the deceased person either during the person's lifetime or out of the person's estate as well as the provision made in favour of the eligible person under this Act out of the estate or notional estate, or both, of the deceased person, is, at the time the Court is determining whether or not to make such an order, inadequate for the proper maintenance, education and advancement in life of the eligible person." 77That criterion is commonly referred to as "the jurisdictional question" in Family Provision applications, as unless it is answered favourably to the applicant, the court is not empowered to make an award. 78A similar jurisdictional barrier must be overcome before an award can be made under the Succession Act 2006 . Section 59(1) of that Act provides: "The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: ... (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both." 79If the court answers the jurisdictional question that arises under the Family Provision Act favourably to an applicant, the nature and quantum of the order that the court is then empowered to make is stipulated by s 7 Family Provision Act as being an order that: "... in the opinion of the Court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person." 80If the court answers the jurisdictional question that arises under the Succession Act favourably to an applicant, the power of the Court to make an order under the Succession Act arises under s 59(2): "The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made." 81Under both the Family Provision Act and the Succession Act whether the jurisdictional question is satisfied is a matter of whether an evaluative standard has been met, rather than truly a matter of discretion. Even so, there is clear authority that a trial judge's decision on the jurisdictional question can be overturned on appeal only in the same circumstances as an appellate court can alter a discretionary decision by a trial judge: Singer v Berghouse (1994) 181 CLR 201 at 212; Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 at [82] 220; Clifford v Mayr [2010] NSWCA 6 at [67]-[74]; Carey v Robson [2010] NSWCA 212 at [16]. Thus, an appeal alleging that the judge has come to the wrong answer to the jurisdictional question can succeed only in accordance with the principles established in House v The King . 82A judge's decision as to the amount and type of an award to be made is a true discretionary decision, whether that decision is made under the Family Provision Act or under the Succession Act . Thus, such a decision is reviewable by an appellate court only in accordance with the principles established in House v The King . 83In these circumstances, the grounds of appeal that base a challenge to a judge's decision on the jurisdictional question, or on the particular terms of the order for provision that a judge has made, must likewise allege errors of the type that, if established, would justify the appellate court in setting aside the judge's decision. Those grounds should have the degree of specificity of the examples that I have given earlier at [74]. Grounds 2 and 3 of the notice of appeal in the present case do not meet that standard.

Purpose of the Identification of Grounds of Appeal 84Proper identification in a Notice of Appeal of the grounds of appeal against a decision under the Family Provision Act or Succession Act is not a matter of pointless compliance with rules. It serves a real purpose in promoting the just, quick and cheap resolution of the real issues in the proceedings (cf s 56 Civil Procedure Act 2005 ). Precise identification of possible grounds of appeal is a necessary part of a lawyer advising whether to appeal. Early and precise identification of the respects in which the judgment below is alleged to be mistaken assists in focusing the mind of the person advising on an appeal or drafting the Notice of Appeal. The drafter is encouraged to consider whether the respects in which it is contended that the judge was mistaken are really matters that could be the basis of an appellate court overturning that decision. The drafter is also forced to advert to whether presenting the matters concerning the judgment below about which the potential appellant is dissatisfied would involve, in substance, nothing more than inviting the appellate court to substitute its own discretion for that of the judge. An appeal in this type of litigation is bound to fail if it is nothing more than an invitation for the appellate court to substitute its own discretion for that of the trial judge. The sooner a potential appellant or their lawyers realises that that is the true nature of the proposed appeal the better. 85Appeals are costly. The present appeal was quite simple, and argument of the appeal finished in less than an hour and a half as the respondent was not called on. We are informed that the solicitor-client costs and disbursements of the two sides together of the present appeal would exceed $38,000. The professional costs part of that sum exceeds $33,000, of which, for some reason not readily obvious, the costs of the Appellant are over 63%. All too often the parties to Family Provision litigation simply cannot afford the sort of costs that have been incurred in the present appeal. 86As well as being useful for enabling a potential appellant to identify a weak or hopeless case at an early stage, proper formulation of the grounds of appeal assists a respondent to not waste time and money in dealing with matters that are not the precise grounds on which the judgment is alleged to be wrong. Further, proper formulation of the grounds of appeal assists the court in identifying the real issues. 87YOUNG JA : I agree with Tobias JA.

Amendments 14 April 2011 - Incorrect paragraph references Amended paragraphs: [31] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 April 2011

Family Provision Act 1982(NSW)

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