Plaintiff v Defendants

2 By originating motion dated 5 December 2011, the plaintiff, Donald Allen Baxter ('Donald') seeks further provision from the estate of the deceased pursuant to s 91 of the Administration and Probate Act 1958 ('the Act'). Instead of his legacy of $50,000 from the deceased's will, Donald seeks an increased amount of $400,000 for his future financial security.

3 The deceased was survived by his three adult children: the first defendant, William Robert Baxter ('William'), born 3 November 1946; Donald, born 17 June 1949; and the second defendant, Stewart Alexander Baxter ('Stewart'), born 26 August 1952. William has no natural children but has a step-daughter, Kirsty. Stewart married Wendy and has three children: Scott, Alison and Joanne.

(b) left all his moneys and entitlements standing to his credit in the Baxter Family Trust created on 5 June 1985 as follows:

(i) three-eighths to his grandson, Scott Baxter, subject to his attaining the age of 21;

(ii) two-eighths to his granddaughter, Alison Baxter, subject to her attaining the age of 21;

(iii) two-eighths to his granddaughter, Joanne Baxter, subject to her attaining the age of 21; and

(iv) one-eighth to William's step-daughter, Kirsty Baxter, subject to her attaining the age of 21.

5 According to the inventory of assets and liabilities filed in support of the application for a grant of probate, the deceased left a gross estate valued at $576,590 and no liabilities. At trial, the parties agreed that the value of the estate was $742,203.83.

6 The Baxter family live in Picola in north central Victoria. Their forebears moved to the Picola district in 1906. Over time, the family purchased various blocks of farmland in the Picola and Kotupna districts.

7 The deceased was born on 5 July 1914. He married Mavis Baxter, born on 5 July 1921.

8 In 1951 and 1952, on the death of his parents, the deceased inherited farming property that Donald thought comprised an area of approximately 3,000 to 4,000 acres, including land known as the Home block, Rose's block, Dave's block, Trickey's and Patterson's blocks, Potter's, Ballard's and Kotupna. He said additional farmland had been purchased since the 1950s with the result that the total acreage now owned by the Baxter family in the Picola/Kotupna area is approximately 6,000 to 7,000 acres. The chief activities on the farm has been grazing and cereal crops, particularly wheat, barley, oats, lucerne and canola, and occasionally other specialty crops, such as tomatoes, with some parts of the properties having access to irrigation water.

9 William is and has been the financial manager of the Baxter farming business, handling the corporate and financial affairs of the business and the Baxter family's share portfolio.

10 He said the deceased has not owned any land in his own name since 1997. Of the properties referred to by Donald, William said:

(a) the Home block was owned by the deceased until it was transferred to the Baxter Family Property Trust in 1997;

(b) Rose's block was owned by the deceased and transferred to Stewart in 1983;

(c) Dave's block was never owned by the deceased but by Ann Knox-Baxter, the deceased's sister;

(d) Trickey's block was not owned by the deceased but by Ann Knox-Baxter and sold by her 40 years ago to a third party;

(e) Patterson's block was owned by the deceased and transferred to Stewart in 1977;

(f) Potter's was owned by the deceased and transferred to Stewart in 1983;

(g) Ballard's was never owned by the deceased but by 'our grandmother', then by Herbert Moorhead Baxter, then by Mavis Baxter and has been owned by the Baxter Family Property Trust since 1997;

(h) Kotupna was owned as a tenants-in-common by the deceased and Herbert Moorhead Baxter until it was transferred to William in 1983.

11 William said the transfers of the land made to both Stewart and him were in the context that Stewart was working without wages on the family farm and were in recognition of their unpaid work and contributions to the family farming business.

12 In June 1985, when the deceased was aged 71 years, the Baxter Family Trust was settled with the primary and specified beneficiaries being the deceased and his wife, Stewart, Wendy, William and his wife. William is the appointor under the Trust. At the date of trial, the Baxter Family Trust had assets of approximately $4.9 million. Donald first became aware of the family trust after this proceeding was issued.

13 In October 1996, when the deceased was aged 82 years, the Baxter Family Property Trust was settled with the specified income and capital beneficiaries being William, Stewart, their spouses, their children and grandchildren. William said Donald was an income beneficiary of the property trust. Donald was not aware of the existence of the property trust until after he issued these proceedings. Donald said that William and Stewart are the appointors under the Property Trust. At the date of trial, the Baxter Family Property Trust had assets of approximately $1 million.

14 Donald Baxter learned of the existence of both trusts as a result of these proceedings.

15 The Baxter brothers initially attended Nathalia High School and then boarded at Scotch College in Melbourne. They all worked on the farm during school and university holidays, doing general farm work when they were available and as required.

16 Donald left school in 1966. From 1967 to 1969, he studied history and politics at Monash University, completing a Bachelor of Arts. He then worked and also completed a post-graduate librarianship diploma at the University of New South Wales. In 1971 and 1972, he worked at the Aeronautical Research Laboratories Information Centre at Fishermans Bend. In 1973 and 1974, he worked at the Bendigo Institute of Technology library.

17 In 1968 he commenced a relationship with Louise Davey and they lived together from 1971. He said the deceased made it clear to him that he did not approve of them living together and they were not allowed to go to his parents' home as a couple. William said that the suggestion that the deceased did not approve of Donald and Louise living together was an over-statement and there was certainly no estrangement between Donald and his parents.

18 In late 1974, Donald recognised that he was homosexual and separated amicably from Louise. He then moved to Adelaide and worked as a librarian between until 197. In 1979 he moved to Sydney, living with his then partner, John, until 1983. Since 1985 he has been living with his current partner, Rob, who works as the quality assurance manager with Lincoln Electric Welding Company.

19 In 1988, Donald started working as the Education Programs Manager for the AIDS Council of New South Wales. Between 1990 and 1996, he was the chief executive officer of the AIDS Council of New South Wales. From 1997 to 2001 he worked for the Australian Council for the Arts based in Surrey Hills, Sydney.

20 In December 2001, he was appointed the executive director of the Australian Federation of AIDS Organisation ('AFAO'), an organisation that works with the Commonwealth government on its domestic Asia Pacific region and international HIV/AIDS programs.

21 In June 2011, Donald stepped down from AFAO and has continued his AIDS work with an active participation in the global HIV response through honorary board member roles:

(a) on the board of the Global Fund for AIDS, TB and Malaria;

(b) as the treasurer on the International Council of AIDs Service Organisations; and

(c) as co-chair of the Global Forum for NSN and HIV Steering Committee.

22 These roles are not remunerated and do not pay sitting fees, though travel and accommodation costs are reimbursed. Donald has also undertaken some consultancies in these areas, although his honorary board responsibilities do not allow him to undertake many consultancies.

23 On 26 January 2014, Donald received the Australia Day honour of being made a member of the Order of Australia (AM) for his work in the field of AIDS.

24 William completed his schooling in 1964 with an active interest in politics. After leaving school, initially he became involved in the running of the family farm, but he also developed a political career, entering into political life at a relatively young age. In 1970, he became the president of the Nathalia Shire Council. In 1973, he was elected as a member of the Legislative Assembly and remained a member of the Victorian Parliament for more than 30 years. His first wife, whom he married in 1976, worked with him in politics both before and during their marriage. His first marriage ended in 1981. He remarried in 1986. His second wife has a child, Kirsty, from her previous marriage. William has no children of his own.

25 As a result of his expanded political responsibilities, William's role in the family farm altered and he became responsible for the financial management of the farm and the Baxter family wealth. In 2006, he retired from his parliamentary career and now receives a life time parliamentary pension.

26 After finishing school, Stewart went back to the farm and, with the deceased, actively worked the farm. In 1978 or 1979, Stewart married Wendy. She has always been actively involved in the farm. They have three children. Their son, Scott, together with Stewart, farmed the property with the deceased and continues to farm it with Stewart. Their daughter, Alison, is an executive at Ford Motor Company and their second daughter, Joanne, has recently completed a Bachelor degree at Swinburne University.

27 Donald said that his relationship with his family has largely been good but they have had their 'ups and downs'. In the 1960s and 70s, Donald and the deceased had a falling out over Donald's reluctance to register for conscription for the Vietnam war in 1969. The falling out was resolved when he registered.

28 The second falling out with the deceased was in 1971, when Donald lived with his then girlfriend. Donald said after he and Louise began living openly together, they were not allowed to come to the family home. Donald chose not to visit the farm unless Louise could accompany him. He did meet elsewhere with Stewart and Wendy several times a year and they told him they did not agree with the deceased's ban on Donald and his girlfriend.

29 The ban on Donald's visits with any partner, male or female, continued until 1986. In about 1986, Donald and his partner, Rob, were invited to visit the family home, which by then was occupied by Stewart and Wendy. The deceased was present when they arrived and upon meeting Rob, the deceased welcomed him warmly. The deceased and Rob found common ground by discussing Holden utilities from the 1960s (which Rob collected) and various welding machines.

30 From 1986 onwards, Donald and Rob travelled from Sydney visiting the family farm together once a year together. Donald also visited several times, probably three or four times, by himself throughout the year. His visits were not outside special occasions and were organised by him around his work commitments.

31 The trip was a 10 hour drive from Sydney. He would usually arrive on a Saturday, visit his parents and stay with Stewart for the night, sometimes for two nights. Sometimes he stayed at his parents' place before they moved into their retirement home.

32 On Sunday he would also visit his parents and then return to Sydney either on Sunday, sometimes Monday. He said these visits were with both his father and mother at their property, then in their retirement home in Picola and subsequently at their nursing home in Nathalia.

33 In his affidavit, Stewart adopted the evidence given by William, who said that, when Donald visited at Picola, he visited only for a few hours. In cross-examination, Stewart conceded that Donald did stay overnight. Donald also said, when he visited the farm, William was not around very much.

34 Donald felt his father enjoyed his visits, particularly when he drove his father around the farm as he got older. He said they would have one-on-one discussions about Australian politics, other current affairs issues, the state and future of the stock market, the nature and content of Donald's work as well as farm matters.

35 Donald felt his father would have preferred more frequent visits but he was aware that it was a very long drive or an airfare plus car hire for each visit. His father was also aware of the extent and intensity of Donald's work. Donald did not recall his father ever complaining to him that Rob and he did not visit often enough and his father always made it clear that his visits were very welcome right up until their last meeting just prior to his death. The deceased told Donald on several occasions that he thought Donald was working too hard and he needed to slow down to enjoy life. Donald took that as his father's oblique way of saying he would like to see more of him.

36 Donald said that no one in the family visited him in Sydney. He always went to the family. Over the years, Donald attended various family activities but within the constraints of the distance involved and his work responsibilities. These events included being best man at Stewart's wedding and attending his parents' funerals, accompanied by Rob.

37 William said generally that Donald only visited the Nathalia area and, in particular, their parents infrequently, usually no more than once or twice a year with the visits being only for a few hours. He felt that this was because Donald was getting on with his own life in Sydney and Donald only had a cursory concern with matters concerning their parents, the farming business or the wider Baxter family. He said Donald did not take any particular interest in the matters of principal concern to the deceased, being the running of the family farm, nor was he concerned with the careers and families of himself or Stewart. William agreed that Donald did attend some family activities, such as weddings and funerals, but his attendances did not extend to Christmas, family birthdays and other family gatherings on any regular basis. For his part, Donald said he was not included or invited to a lot of the family activities, travelling from Sydney to Picola was a very long way, and he worked full time as well.

38 William said that to his knowledge Donald did not communicate regularly by telephone or letter at any time with his parents. Donald agreed he did not telephone the deceased regularly. This was because the deceased was not keen on expensive long distance telephone calls and he discouraged them.

39 Donald had a close relationship with his mother throughout his childhood and beyond. His mother regularly wrote letters to him when he was at boarding school and this continued through the period when Donald was not allowed to visit the family farm with his partner. From the mid-1990s his mother's letters became less frequent and eventually ceased as her dementia condition developed.

40 Donald's mother died on 8 March 2008 leaving an estate valued at approximately $2.32 million. By her last will, Mavis Baxter:

(c) left all her moneys and entitlements standing to her credit in the Baxter Family Trust to her son, Stewart and his wife Wendy;

(d) left her land known as 'Old Sale Yards' to the trustee of the Baxter Family Property Trust; and

(e) left her shares to be divided between Stewart and William, their wives and her grandchildren and step-grandchildren.

41 Donald was disappointed with his mother's legacy of $50,000 but did not make a claim on his mother's estate as he was reluctant to cause family disruption and because, at that time, he believed that the deceased's estate contained most of the family wealth and he expected he would be provided for by the deceased from his estate.

42 After the death of the deceased, in an email to Donald, William told him that as the deceased father did not expect to outlive his wife, he progressively transferred assets to her in case death duties were re-introduced so that his estate would be much less than hers.

43 William said that Donald was supported financially through university by his parents. This was not disputed. Donald said the deceased bought him a Toyota Corona in 1967, at a cost of about $2,500. In 1982, the deceased lent Donald the sum of $9,000 as a part-deposit for the purchase of a terrace house in Sydney and did not request repayment of that loan.

44 William believes that, in the mid-1960s, Donald received a transfer of 320 acres of land at Picola. Donald agreed that was the case and thought that he sold it to Stewart's wife in the late 1970s for around $20,000, which he put towards the deposit for the purchase of the terrace house. William also said that in the early 1970s Donald was given a life assurance policy by the deceased. Donald agreed that he did receive such a policy and in 1979 he cashed it in for between $4000 and $5000, using it also for the deposit on the terrace house.

45 In his affidavit dated 2 March 2012, Donald said his earning capacity was in the range of $100,000 per annum and he had superannuation savings of approximately $500,000. He and Rob jointly own their home in Sydney, which he estimated to be valued at $700,000. He and Rob share a car valued at $35,000. He owns a studio apartment in Sydney that he estimated to be worth $170,000. He said at that time he wished to retire soon.

46 In his second affidavit sworn 23 April 2012, Donald updated his financial position. On 7 July 2011, he resigned from his position as executive director of AFAO. Since that date he has not been employed in any paid position but he does perform honorary work from which he receives partial remuneration for his expenses. He receives a dividend of $50,000 per annum from his superannuation and $10,000 per annum in rental income from his apartment. He said his partner retired in November 2011.

47 In his third affidavit sworn 21 October 2013, Donald updated his financial position again. His current income is approximately $62,000 derived from a pension of $39,000 per annum from his superannuation, $13,000 from his PSS pension (which is paid until his death) and rental from his investment property. His superannuation is now approximately $495,000 and he estimated that the capital in his super fund will be exhausted in 25 years. He has the same motor vehicle valued by him at $35,000. Donald produced at trial an appraisal of his studio apartment that valued the property at $260,000 to $280,000.

48 A recent appraisal was also produced at trial of his jointly owned property in Sydney that valued the property between $1.1 million to $1.2 million. No work has been done on the house since they moved into it in 1991 and it now requires significant renovation. He estimated the cost of the renovation as between $110,000 to $150,000, comprising the relocation of the bathroom to upstairs, replacing the kitchen and installing replacement stairs.

49 Donald's current minimum future living expenses, taking into account adjustments as a result of concessions made during cross-examination, are $60,103 per annum, based on 2013 prices. He has a small mortgage on the studio apartment and some credit card debt, in total, amounting to around $8,500. Donald said his lifestyle is far from extravagant. Whilst he is in a stable relationship at present, his security and financial position would suffer greatly if that relationship broke down.

50 On 8 June 2013, Donald was diagnosed with cancer. On 2 July 2013, he commenced a treatment regime that concluded on 9 August 2013. After the treatment, he had reduced physical strength, fitness and endurance. He commenced an exercise program with an attempt to restore his physical strength and resilience and expects to take some further months to recover his full strength and resilience. He has not yet received the 'all clear' from the cancer but his oncologist has told him his prospects are looking positive. He will be required to undergo regular testing for cancer in the future and, if further surgery is needed in the future, it is likely to be expensive. He is concerned about his physical strength and health, particularly the effect of any future operations on his mobility and what impact that might have on his financial needs.

51 I have considered the principles applicable in Part IV applications by adult children at length in a number of recent decisions, including Briggs v Mantz,[1] Brandon v Hanley,[2] Morris v Smoel,[3] and Salloum v Assouni.[4] For convenience, I repeat those principles here insofar as they are relevant. In an application for provision made under s 91 of the Act, the Court must decide:

(a) at the date of death of the deceased, whether the deceased had a responsibility to make provision for the maintenance and support of an applicant;

(b) if so, whether the deceased's will made adequate provision for an applicant's proper maintenance and support; and

(c) if not, the amount of provision that should be ordered.

(a) the Court must have regard to the matters set out in ss 91(4)(e)-(p);

(b) the Court must determine whether the deceased had a moral duty, responsibility or obligation to the applicant;

(c) keeping in mind the weight given to the freedom of testation, the Court will only interfere if the testator has failed in his or her moral duty; and

(d) that moral duty reflects an obligation to make adequate or sufficient provision by what is right and proper according to community standards.[5]

53 The basis of the Court's jurisdiction is responsibility, traditionally described as the enforcement of moral obligations.[6] The question is what a wise and just testator would have thought it his moral duty to make for the plaintiff,[7] as expressed by Lord Romer in Bosch v Perpetual Trustee Co Ltd:

Their Lordships agree that in every case the Court must place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father. This no doubt is what the learned judge meant by a just, but not a loving, husband or father. As was truly said by Salmond J in In re Allen (Deceased), Allen v Manchester:

The Act is ... designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the support of his wife and children, having regard to his means, to the means and deserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty. The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances.[8]

54 In Collicoat v McMillan, Ormiston J explained what is meant by the idea of a 'moral claim' so frequently referred to in the jurisprudence on this and similar legislative provisions:

In my opinion the expression 'moral claim' has always been treated as a convenient shorthand expression referring to the right correlative to the duty imposed on testators to make adequate provision for the proper maintenance and support of persons within the class specified. That 'moral obligation', as described in Re Allen and many later cases, reflects a duty resting on a testator to make not merely adequate or sufficient financial provision for members of his or her family in the specified class but also the obligation to measure that adequacy or sufficiency by reference to what is right and proper according to accepted community standards.[9]

55 In Blair v Blair, Chernov JA (with whom Nettle JA and Hansen AJA agreed) stated:

It is probably apt to describe the obligation of the testator that forms the subject of the inquiry under subs (1) and (3) as a moral obligation, as that concept has been explained in cases that preceded the recent amendments to Part 4 of the Act, including the decision of Ormiston J in Collicoat v McMillan and Grey v Harrison. Thus, it is clear enough that the 'responsibility' of which subs (1) speaks is the moral duty or obligation of the testator to make provision for the proper maintenance and support of the claimant. Similarly, subs (3) is essentially concerned with whether the deceased - as a wise and just testator - has fulfilled his moral obligation to make adequate provision for the claimant's proper maintenance and support. Given, however, that the Court is now directed by the legislation to have regard to the matters specified in paragraphs (e) to (p) of s 91(4) when determining the jurisdictional issues, the characterisation of the deceased's relevant obligation by reference to moral duty is likely to be of less utility than was the case prior to the recent amendments to Part 4 of the Act. Be that as it may, it should be noted that while the criterion in each of paragraphs (e) to (o) of s 91(4) was concerned with a specific matter, paragraph (p) is open ended, enabling the Court to consider 'any other matter [it] considers relevant' and giving it a wide discretion to look beyond the specific statutory matters which are set out in the immediately preceding sub-paragraphs for the purpose of determining if the jurisdictional requirement has been satisfied and, where relevant, bringing into consideration the testator's moral obligation to the claimant.[10]

56 In his concurring judgment in Blair, Nettle JA stated:

The Court is bound in considering each of those questions to have regard to the matters mentioned in ss 91(4)(e) to (o) and, pursuant to s 91(4)(p), to any other matter considered to be relevant. Self-evidently, such matters are of themselves incapable of providing an answer to either question. To reason from the matters mentioned in s 91(e) to (p) to a conclusion that a testator had a responsibility to make provision for the claimant, or that the testator failed to make adequate provision for the claimant, necessitates the application of a test or standard to the matters to be considered. That test remains one of whether and if so what provision a wise and just testator would have thought it his moral duty to make in the interests of the claimant.[11]

57 A moral claim involves a broad evaluative judgment, made with respect to a capable testator's judgment as to who should benefit from the estate.[12] A balance must be struck between, on the one hand, the freedom our society accords to a person to do as he or she pleases with his or her own property, and on the other hand, the moral requirement that a testator consider those persons closest to him or her as being the first in the line of recipients of the estate. The Court should only interfere with the terms of a will if the testator has failed in his or her moral duty.[13]

it is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator's dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator's bounty and give it to someone else. In conferring a discretion in the wide terms found in s 91, the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent.[14]

59 The plaintiff bears the onus of proving that the deceased had such a responsibility, on the balance of probabilities. In assessing the evidence, the Court must have regard to the seriousness of an allegation that the testator has abused his freedom of testation, and the difficulty of assessing the evidence in the inevitable circumstance that the Court cannot hear from the deceased, in accordance with the principles expressed in Briginshaw v Briginshaw and s 140(2) of the Evidence Act 2008.[15]

60 Whether the testator had a duty to provide further, and whether there is a failure to make adequate provision for the proper maintenance and support of an applicant, are determined by consideration of the facts and matters known to the deceased at the time of his or her death. A wise and just testator is deemed to be aware of the relevant circumstances prevailing at the time of death, but the testator will only be deemed to be aware of subsequent events to the extent that they were reasonably foreseeable at the time of death.[16] Where an applicant's financial position was sound at the date of death but had worsened substantially at the date of trial, the time for assessing need is at the date of the trial.[17]

61 Although the value of the estate is now small in relative terms considering the number of beneficiaries named in the deceased's will, the adequacy or otherwise of any testamentary provision for an applicant cannot be considered in isolation from the resources and needs of other beneficiaries entitled to a share of the deceased's estate.[18]

62 Although it was long the position that for adult children, and in particular adult sons, 'some special need or some special claim must, generally speaking, be shown to justify intervention by the Court under the Act',[19] this is no longer the case.[20] Instead, the Court must, as with all applications under the Act, consider the responsibility of the deceased to the applicant, having regard to the factors set out in ss 91(4)(e)-(p).[21] In Walsh v Walsh, Hallen J helpfully summarised a number of general principles in relation to claims made by adult children:

(a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed.

(b) It is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation.

(c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise, they would be left destitute.

(d) If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant. But the Act does not permit orders to be made to provide for the support of third persons that the applicant, however reasonably, wishes to support, where there is no obligation of the deceased to support such persons.

(e) There is no need for an applicant adult child to show some special need or some special claim.

(f) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased.

(g) The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim.

(h) Although some may hold the view that equality between children requires that 'adequate provision' not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not consistent with that view. To the contrary, the Act specifically identifies, as matters that may be taken into consideration, individual conduct, circumstances, financial resources, including earning capacity, and financial needs, in the Court's determination of an applicant's case.

(i) There is no obligation on a parent to equalise distributions made to his, or her, children so that each child receive benefits on the same scale as the other. There is no standard measure for the extent of the duty owed by a parent to a child.[22]

63 In Phillips v James, Basten JA, in considering the concept of prevailing community standards in the context of a dispute between siblings, made the following apposite statement:

there is probably a reasonable level of acceptance for the view that, other things being equal, siblings should be treated broadly equally. Unfortunately, other things rarely are equal. One sibling may have shown devotion and care to the testator over a long period; another may have had minimal contact of any kind during his or her adult life. One sibling may have acted responsibly in relation to his or her own family, another as a wastrel.

The latter example highlights a particular difficulty: the responsible sibling (who may have been favoured by the testator) may be better off than the other and less in need than the other who has made nothing of whatever opportunities were available. One approach in the latter case is to say that the wastrel should not expect more, despite being in greater need, than a proportionate share of the estate. In relation to the former case, involving the inattentive or distant sibling, a less than equal share may be thought appropriate.[23]

64 In assessing the claim by Donald, the Court is required, pursuant to ss 91(4)(e)-(o) and (p) of the Act, to consider all of the relevant circumstances. In this regard, I have reached the following conclusions.

(e) Any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship.

65 Generally, the plaintiff described a happy childhood and thereafter. He fell out with the deceased on two occasions in his youth as a result of a difference of views between the deceased and him. The falling out was mended and Donald commenced visiting the deceased from 1986 onwards and did so regularly each year, three to four times a year, that is, every three or four months. The trip from Sydney to Picola was a ten hour drive and Donald worked full time with a busy professional life. The deceased did not travel to Sydney so their face to face contact was during those visits every three or four months. Donald visited the deceased and the family farm as best he could considering he lived so far away, while working full time. The deceased discouraged long distance calls owing to the cost. The deceased made it clear to Donald that he welcomed his visits. At no stage did Donald have the benefit of the deceased visiting him in Sydney.

66 Although the defendants were critical of the lack of frequency of Donald's visits to his parents and the family farm, it was the case that Donald was required to travel to the family in Picola rather than the family travelling to him in Sydney. William was not always at the farm when Donald visited and Stewart agreed in cross examination that Donald's visits were more frequent than asserted by William.

67 Although the defendants did not allege any estrangement between Donald and the deceased, they said the relationship was distant or disengaged. Although the visits between Donald and the deceased were every three to four months per year, I do not conclude that the relationship was disengaged. To make the visits regularly each year required a degree of commitment and effort on the part of Donald. It is not easy driving 20 hours in two or three days and working full time. Donald's impression was that the deceased enjoyed his visits and he welcomed them and Donald kept visiting him. I consider the relationship between Donald and the deceased was warm and loving, not disengaged.

(f) Any obligation or responsibilities of the deceased's person to the applicant, any other applicant and the beneficiaries of the estate.

68 Apart from the obligation and responsibilities that arise as a parent, the deceased did not have any obligations and responsibilities to Donald or the other beneficiaries in his will.

(g) The size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject.

69 The parties agreed the size of the estate at the date of trial was $742,203.83.

(h) The financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future.

70 The plaintiff's financial position as at the date of trial is set out at [45] to [49]. Generally, his income covers his expenses. Two thirds of his income derives from his superannuation of around $500,000. He does not live extravagantly.

71 There was some evidence of the defendants' financial resources and those of the grandchildren and the step grandchild, principally as a result of cross-examination. Their financial resources and needs were not in contention.

72 William gave limited financial evidence. He receives a lifetime tax free parliamentary pension of $145,000 per annum. He is a specified primary beneficiary of and receives distributions from the Baxter Family Trust, which has assets of approximately $4.9 million. He is a primary beneficiary of the Baxter Family Property Trust, which holds assets of approximately $1 million. William and his wife received approximately $239,933 each under the will of the deceased's wife and he will receive approximately $100,000 under the deceased's will. He is the appointor of the Baxter Family Trust and one of two appointors of the Baxter Family Property Trust. William is the person in the Baxter family who manages the Baxter family wealth and it was apparent from Stewart's evidence that, on all matters of a financial nature concerning the Baxter family, Stewart deferred to William.

73 Stewart gave limited evidence of his financial position. In his affidavit sworn 10 April 2012, he set out his taxable income for the period 2007 to 2010, which averaged $31,058 per year. He estimated his 2011 taxable income at $50,000. In cross-examination, he agreed that his and Wendy's income for the financial year ended 30 June 2012 was around $180,000 and he expected their income for the year 30 June 2013 would be in that vicinity as well. Stewart has a share portfolio valued at approximately $500,000 and he owns shares jointly with Wendy worth approximately $1.2 million. Stewart has a beneficiary loan account of approximately $940,000 with the Baxter Family Trust and Wendy's loan account is approximately $883,000. He did not dispute that his superannuation was approximately $792,000. Stewart owns approximately 1,500 acres of farming land and he and his family have lived in the family home 'Lislea Lodge' on the farm since they married. Stewart and Wendy each received a legacy of approximately $573,434 under the will of the deceased's wife and Stewart will receive approximately $100,000 under the deceased's will.

74 None of the grandchildren or the step-grandchild of the deceased gave evidence. However, cross-examination elicited the following limited financial circumstances in respect of each of them:

(a) Scott is a grandson of the deceased. He is a primary beneficiary of the Baxter Family Trust and the Baxter Family Property Trust. He owns two parcels of land. He lives and works on the family farm. He received approximately $161,064 under the will of the deceased's wife and a legacy of $193,125 under the deceased's will;

(b) Alison and Joanne Baxter are the deceased's granddaughters. They are primary beneficiaries of the Baxter Family Trust and the Baxter Family Property Trust. They each received approximately $161,064 under the will of the deceased's wife and a legacy of $128,750 under the deceased's will; and

(c) Kirsty Baxter is a step-granddaughter of the deceased. She is a primary beneficiary of the Baxter Family Trust and the Baxter Family Property Trust. She received approximately $161,064 under the will of the deceased's wife and a legacy of $64,375 under the deceased's will.

(i) Any physical, mental or intellectual disability of any applicant or any beneficiary of the estate.

75 In June 2013, the plaintiff was diagnosed with cancer. After treatment, his level of fitness, physical strength and endurance deteriorated and he is undergoing a physical strengthening programme. His specialists have not confirmed the success of his treatment but suggest the outcome may be positive. He will be required to undergo regular check-ups and scans for any further signs of the cancer. If any surgery is required in the future, the costs are unknown but are likely to be expensive.

76 The defendants did not depose to any physical, mental or intellectual disability of any beneficiary of the estate.

(k) Any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased.

78 The plaintiff worked on the family farm during his childhood, as did William and Stewart. Stewart remained on the farm and Donald and William established careers outside of farm life. William remained involved in the farm and is responsible for the finances. Stewart deferred to William in respect of the financial aspects of the family farm.

79 Donald did not assist in the welfare of the deceased but he did visit him about three to four times each year.

(l) Any benefits previously given by the deceased person to any applicant or to any beneficiary.

80 Each of the Baxter children were provided with a private secondary school education by their parents. The three children received financial benefits during the lifetime of the deceased. They all received parcels of land, with Donald receiving 320 acres, William receiving 881 acres and Stewart receiving the blocks known as Rose's, Patterson's and Potter's. Other properties, such as the Home block, owned by the deceased were transferred to the Baxter Family Property Trust.

81 The benefits received by Donald were up to the 1970s and provided him with sufficient funds for part of a deposit on the purchase of his first home.

82 The benefits given to William and Stewart and their respective families are opaque in that only some detail of their and Scott's receiving land was given. On their marriage, Stewart and Wendy moved into the family home and continue to live there. Four farming properties were transferred to Stewart between 1966 and 1983. William also received land in 1983. Around $6 million of the family wealth now resides in either the Baxter Family Trust or the Baxter Family Property Trust, controlled by either William alone or William and Stewart.

83 The three Baxter children, the grandchildren and the step-grandchild received benefits under the will of the deceased's wife, as well as under the deceased's will, with Donald receiving the smallest amount. The largest combined benefits under the two wills pass to Stewart, Wendy and Scott, then William and his wife, then Alison and Joanne, with Kirsty at the end. Kirsty, a step-grandchild of the deceased received more than double the amount that Donald did.

(m) Whether the applicant was being maintained by the deceased person before that person's death, either wholly or partly, and, where the court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility.

(n) The liability of any other person to maintain the applicant.

85 Donald has a partner, Rob, who is also retired. They share expenses and own their home jointly.

(o) The character and conduct of the applicant or any other person.

86 The character of the plaintiff is not in issue. The defendants do not allege any disentitling conduct on the part of the plaintiff.

(p) Any other matter the Court considers relevant.

87 The Baxter family farm is a substantial farming enterprise from which the plaintiff has been excluded and receives no ongoing benefits. The farming wealth was built up over generations of the Baxter family from when they moved to Picola in 1906, and not just by the deceased, William and Stewart.

88 The plaintiff was not specified as a beneficiary of the Baxter Family Trust or the Baxter Family Property Trust, save that William said that Donald was an income beneficiary of the property trust. Both trusts having been created when the deceased and his wife were relatively elderly. Much of the Baxter family wealth has been distributed or transferred from the deceased during his lifetime, with effective control of the trusts with William and/or Stewart. William manages the corporate and financial affairs of the Baxter family and the family's share portfolio.

89 The consequence of these arrangements is to keep control of the farming business and other family assets in the hands of William, Stewart and their immediate families. The arrangements do not include Donald.

90 The deceased's will substantially favours those of the Baxter family who have remained on the farm, being Stewart, Wendy and Scott. However, Donald is not the only beneficiary under the will to pursue a career outside the farm. William also moved away from the farm for his political career. There was no evidence that the deceased's step grandchild or grandchildren, apart from Scott, worked on the farm.

91 The defendants do not contest that the deceased had a moral responsibility to make provision for the maintenance and support of Donald. They make no allegations of disentitling conduct or estrangement on the part of Donald. They say the legacy of $50,000 to Donald did make proper provision for his proper maintenance and support and he does not have any financial need. They also submit there is no obligation on a parent to treat children equally or fairly under his or her will.

92 On the question of need in the context where Donald has been left a bequest of $50,000 they submit that Donald received sufficient financial support from the deceased during his lifetime so as to enable him to pay the deposit on his first home in Sydney. They also point to Donald's successful career with well paid employment and that he lives a comfortable lifestyle that includes overseas travel. Since the proceeding was issued, Donald has 'stepped down' from paid employment and pursued honorary work that continues to include overseas travel for which he is partially reimbursed.

93 He has a small debt of around $8,500 that could be paid from his legacy of $50,000 and still be left with a reasonably substantial lump sum. He jointly owns his own home with his partner, has an investment property and superannuation. He has no dependants to support and shares his expenses with his partner. He should be regarded as being in relative good health for a person of his age, and his medical prognosis appears to be good. I note that the only medical evidence given was by Donald himself.

Did the deceased fail to make proper provision for Donald?

94 Whether the deceased has failed to make adequate provision for Donald's proper maintenance and support, requires a consideration of the facts and matters known to the deceased at the date of his death.

95 At the date of his death, the deceased knew that Donald was working and had a successful career. Because Donald was aged 62 years when the deceased died, he knew that Donald would be likely to retire from paid employment in the near future. He knew that Donald jointly owned his home in Sydney, had some superannuation and a small investment property.

96 He knew that Donald was in comfortable financial circumstances with only a small amount of debt. He knew that when Donald retired he would not continue to have the same amount of income that he received while he was in paid work. He also knew that Donald had enjoyed good health during his lifetime and that it was foreseeable that his good health might alter with his age.

97 Of the other beneficiaries named in his will, the deceased knew William had worked in politics for his whole life and would retire with a lifetime pension. He knew that William and his wife each received $239,933 under the will of the deceased's wife. The deceased therefore knew that Donald was financially secure

98 Stewart, with Scott, was running the Baxter family farm and it was a financially viable farm with extensive land holdings. Both Stewart and Wendy received $573,434 under the will of the deceased's wife and Scott received $161,064. These amounts, together with the benefits of the family farm assets, as now held by the two trusts, ensure that Stewart, Wendy and Scott were financially secure.

99 The deceased knew the Baxter Family Trust and the Baxter Family Property Trust had been created, and that control of the trusts rested with either William or William and Stewart. He knew the two trusts contained assets worth many millions of dollars, all of which stood to the credit of the beneficiaries' loan accounts and he knew that Donald was not a beneficiary of the two trusts.

100 He also knew the two other grandchildren and step grandchild each received under the will of the deceased's wife and he therefore knew they were financially secure.

101 In my view, taking into account all of these matters and having regard to the balance between the deceased's freedom of testation and the moral requirement to make proper provision for an adult child, in my view, the deceased's provision of $50,000 for Donald was inadequate for his proper provision.

What provision should Donald be awarded out of the deceased's estate?

102 In determining how much provision to award, the Court is exercising a discretion.[24] The Court's approach to the quantum of provision is careful and conservative.[25] The authorities are clear that there is no presumption that beneficiaries within the same 'class' should be treated equally and the circumstances of each case must be considered by the court. [26]

103 In Collins v McGain,[27] the Court said that it was not necessary for an applicant for provision to identify particular needs that have not been adequately provided for. This is so because, in determining what is adequate provision for an applicant's proper maintenance and support, the Court is entitled to allow for contingencies that are no more than mere possibilities, eg, future marriage difficulties or financial mismanagement. Tobias JA said:

the question of needs must not be too narrowly focused. It must, in my view, take into account, depending on the circumstances of the case, present and future needs including the need to guard against unforeseen contingencies.

He has focused too much on the particular or specific needs of the appellant rather than upon his needs in the 'relevant sense', namely, in the sense of what was necessary for the appellants' 'proper maintenance, education and advancement in life.'[28]

104 In Sellers v Hyde,[29] Mandie J accepted that, whilst evidence of living expenses, including expert evidence as to the capital sum required to produce a certain income stream over various periods of years, was useful, the Court had to take a 'broad brush' approach rather than an arithmetical approach to the award of provision.

105 The defendants were critical of Donald's evidence concerning his current financial position on the basis that he did not call evidence from an accountant and produced his up to date financial information at the date of trial and not before. Whilst that was the case, the information that was produced was easily understood. In respect of the appraisals for Donald's two properties, they are not the same as sworn valuations, however, they do give a guide to the potential value of the properties. In addition, Donald was cross-examined of his income and expenses as listed in his affidavit and he readily made concessions where they were needed.

106 Donald's financial position and health have deteriorated since the date of death of the deceased. Although the defendants were critical of Donald's decision to step down from his paid work, it was inevitable with his being in his early 60s that he would not work for much longer. He is now dependent on his superannuation for his income, which will be exhausted in 25 years. At present, his income more or less matches his outgoings. He owns, in effect, half a house with his partner. Although that house had not been renovated since 1991 and needs work done on it, Donald's estimates were his own rather than from a builder or other professional. I accept that a property that has not been updated since 1991 would require some work but not necessarily all the work in his estimate. Instead of renovating the house, he may be better served financially by looking at alternative accommodation.

107 In my view, Donald's current financial situation is such that he has no financial buffer against future financial contingencies. The authorities show that concepts of proper maintenance and support encompass enough to keep the 'wolf from the door' and sufficient to 'keep the wolf from pattering around the house';[30] not just sufficient for the bread and butter of life but for a little of the cheese or jam that a just and wise parent would appreciate should be provided if circumstances permit.[31] This is because the larger the estate the easier it is for all of the moral claims upon it to be satisfied. As Adam J said in Re Buckland (dec'd):

Throughout the hearing the vastness of the estate has tended to overshadow all other elements in the case. I can appreciate readily enough the significance of the size of the estate when the question is whether the estate is sufficient to provide what an ample estate would be adequate for proper maintenance of a claimant. Where there are competing moral claims for maintenance and the estate is insufficient to satisfy all, one can understand that less than what otherwise would be proper maintenance may be considered adequate provision in a will for proper maintenance. I can understand also that where the estate is ample and competing moral claims may be disregarded, the purposes of the legislation are not served by the judge being niggardly.[32]

108 Counsel for Donald submitted that the appropriate amount for proper provision for Donald was a legacy of $400,000.

109 In this case the estate is not large and it is not small; it was described by counsel as 'middling' in value. It is middling because most of the wealth of the deceased was transferred during his lifetime to the Baxter Family Trust and the Baxter Family Property Trust. This is not untoward and no criticism is made of that fact. The result, however, is that the quantum of the estate is reduced. In my view, this fact and the fact that there are no competing claims from any other beneficiary are significant counterveiling factors and should be taken into account in assessing what is adequate provision for Donald. It means that most of the estate is available for the proper provision for Donald for any future contingencies. These contingencies should include a component of renovating his home, alternatively, purchasing another home, a lump sum in addition to his current superannuation lump sum and a further amount in case either his age or a recurrence of his cancer means that his health deteriorates.

110 In my view, the amount of provision to be allowed to Donald should be $350,000 inclusive of his legacy under the will. This calculation is in a 'broad brush' manner allowing for his legacy of $50,000 under the will, an amount of $200,000 for investment purposes, $50,000 for either renovations or home change and $50,000 for any contingencies relating to any deterioration in his health.

111 Accordingly, I am satisfied the deceased failed to make proper provision for Donald. Further provision should be made for Donald from the estate of the deceased by the payment of a pecuniary legacy in the total sum of $350,000. I shall hear the parties on the form of orders and as to costs.

[1] [2014] VSC 281 (22 August 2014).

[2] [2014] VSC 103 (21 March 2014).

[3] [2014] VSC 32 (14 February 2014).

[4] [2013] VSC 591 (1 November 2013).

[5] Collicoat v McMillan [1999] 3 VR 803, 818 (Ormiston J). See also Blair v Blair [2004] VSCA 149; (2004) 10 VR 69, 77-80 (Chernov JA); Forsyth v Sinclair [2010] VSCA 147 (22 June 2010), [61] (Neave JA); Lee v Hearn [2005] VSCA 127; (2005) 11 VR 270, 273-4 (Callaway JA); Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656, 660 (Allsop P), 679-80 (Barrett JA).

[6] Collicoat v McMillan [1999] 3 VR 803, 818 (Ormiston JA); Blair v Blair [2004] VSCA 149; (2004) 10 VR 69, 75-6 (Chernov JA); Forsyth v Sinclair [2010] VSCA 147 (22 June 2010), [61] (Neave JA).

[7] Bosch v Perpetual Trustee Co Ltd [1938] AC 463, 478-9 (Lord Romer); Grey v Harrison [1997] 2 VR 359, 361 (Tadgell JA), 364 (Callaway JA); Collicoat v McMillan [1999] 3 VR 803, 820 (Ormiston J); Blair v Blair [2004] VSCA 149; (2004) 10 VR 69, 76 (Chernov JA); Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, 200 (Gleeson CJ); Forsyth v Sinclair [2010] VSCA 147 (22 June 2010), [60] (Neave JA).

[8] [1938] AC 463, 478-9 (citations omitted). Cited with approval in, for instance, Grey v Harrison [1997] 2 VR 359, 364-5 (Callaway JA); Collicoat v McMillan [1999] 3 VR 803, 815-19 (Ormiston J).

[9] [1999] 3 VR 803, 818. See also Blair v Blair [2004] VSCA 149; (2004) 10 VR 69, 77-80 (Chernov JA); Forsyth v Sinclair [2010] VSCA 147 (22 June 2010), [61] (Neave JA); Lee v Hearn [2005] VSCA 127; (2005) 11 VR 270, 273-4 (Callaway JA).

[10] [2004] VSCA 149 (27 August 2004), [13].

[12] White v Barron [1980] HCA 14; (1980) 144 CLR 431, 440 (Stephen J); Whitehead v State Trustees [2011] VSC 424 (2 September 2011), [40] (Bell J); Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656, 660 (Allsop P) 679-80 (Barrett JA); Slack v Rogan [2013] NSWSC 522 (10 May 2013) [125]-[127] (White J).

[13] Forsyth v Sinclair [2010] VSCA 147 (22 June 2010), [60] (Neave JA); Lee v Hearn [2005] VSCA 127; (2005) 11 VR 270, 273-4 (Callaway JA); Grey v Harrison [1997] 2 VR 359, 365 (Callaway JA).

[14] [1997] 2 VR 359, 366.

[15] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362, 368-9 (Dixon J); Schmidt v Watkins [2002] VSC 273 (24 July 2002), [17]-[21] (Harper J); Webb v Ryan [2012] VSC 377 (3 September 2012), [21] (Whelan J); State Trustees v Bedford [2012] VSCA 274 (16 November 2012), [104] (Neave JA); Webb v Ryan [2012] VSC 377 (3 September 2012), [22] (Whelan J).

[16] Coates v National Trustees Executors & Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494, 507-8 (Dixon CJ); Blore v Lang [1960] HCA 73; (1960) 104 CLR 124, 130 (Dixon CJ); Prosser v Twiss [1970] VicRp 29; [1970] VR 225, 232 (Lush J); Slack v Rogan [2013] NSWSC 522 (10 May 2013), [127] (White J).

[17] Panozzo v Worland [2009] VSC 206 (25 June 2009), [56]-[57] (Forrest J).

[18] Singer v Berghouse [1994] HCA 40; (1994) CLR 201, [15].

[19] Re Sinnott (dec'd) [1948] VicLawRp 48; [1948] VLR 279, 280-1 (Fullagar J); Hughes v National Trustees Executors and Agency Co of Australiasia Ltd [1979] HCA 2; (1979) 143 CLR 134, 147 (Gibbs J); Anderson v Teboneras [1990] VicRp 47; [1990] VR 527, 538 (Ormiston J); Niehoff v Niehoff [1995] VicRp 61; [1995] 2 VR 356; Grey v Harrison [1997] 2 VR 359; Collicoat v McMillan [1999] 3 VR 803 (Ormiston J).

[20] Blair v Blair [2004] VSCA 149; (2004) 10 VR 69, 78-9 (Chernov JA).

[21] Allan v Allan [2001] VSC 242 (25 July 2001) [67] (McDonald J).

[22] Walsh v Walsh [2013] NSWSC 1065 (12 August 2013) [121] (Hallen J) (citations omitted). Where his Honour refers to the Act, it is a reference to the Succession Act 2006 (NSW). However, the same principles would apply in the context of the Victorian regime.

[23] [2014] NSWCA 4 (6 February 2014) [113]-[114].

[24] See Singer v Berghouse [No 2] [1994] HCA 40; (1994) 181 CLR 201, 211.

[25] McKenzie v Topp [2004] VSC 90, [63].

[26] Re Hodgson [1955] VicLawRp 77; [1955] VLR 481, 485; Niehoff v Niehoff [1995] VicRp 61; [1995] 2 VR 356, 371; Blair v Blair [2002] VSC 95, [81]; Phillips v James [2014] NSWCA 4 (6 February 2014).

[27] [2003] NSWCA 190.

[29] [2005] VSC 382.

[30] Re Harris [1936] SAStRp 52; [1936] SASR 497, 501 (Cleland J).

[31] Re Borthwick (dec'd) [1949] Ch 395, 401; [1949] 1 All ER 472, 475; Blore v Lang [1960] HCA 73; (1960) 104 CLR 124, 135.

[32] [1966] VicRp 58; [1966] VR 404, 414. See also Bosch v Perpetual Trustee Co Ltd [1938] AC 463, 478; Kleinig v Neal [1981] 2 NSWLR 532, 541; Anasson v Phillips SC (NSW) Young J unreported 4 March 1998.