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[2003] NSWSC 552
defendant. The summons was dismissed. The plaintiff was ordered to pay the defendant's costs on a party and party basis ( [60]).
The deceased left his entire estate to his son, excluding his daughter. The daughter applied for provision, relying on her circumstances and her past contributions to her parents. The court assessed her needs against her financial position, the defendant's circumstances, the family history and the $70,000 she had received during her father's lifetime. It decided that her demonstrated needs did not warrant an order in the circumstances and dismissed the application. The defendant did not establish a basis for indemnity costs, so the court ordered ordinary party and party costs.
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In Purcell v Barry [2003] NSWSC 552, Master Macready of the Supreme Court of New South Wales considered a family provision application by Beryl Ellen Purcell, the adult daughter of Edward James Barry. The deceased died aged 91 on 24 May 2001. His last will, made on 30 November 2000, appointed his son, Edward John Barry, as executor and left the whole estate to him. The will gave reasons for making no provision for the daughter, including that she had received $70,000 from her brother, that the brother and his wife had cared for the deceased, and that the daughter had shown little interest in his welfare ([1]-[2]).
No linked legislation citations have been extracted yet.
The estate principally comprised the Yagoona house. At the hearing it was valued at $285,000, and only $1,150 in cash remained after funeral and administration expenses ([5]). The court recorded estimated legal costs totalling $104,326 for a two-day hearing, although the case took three days ([6]).
The property had a long family history. The daughter purchased the vacant land in 1950, initially with her then fiancé, using her own money. After the marriage plans did not proceed, the land was transferred into her name. In 1952, she transferred it to her parents for natural love and affection, after the family needed to find another place to live ([8]). The father later borrowed money to build a house on the land ([9]). The Master found the daughter's account of the land transfer more likely than the defendant's account that she had been paid. The contribution mattered, but the court assessed it as about 6 per cent of the value of the completed property ([35]-[36]).
The daughter provided practical help to her parents over many years. From about 1982 she visited regularly, helped with banking, shopping and household tasks, and later continued assisting her father after her mother's death in 1997 ([10], [26]-[27]). The son, meanwhile, moved in with his father in November 1998 and cared for him during the last two and a half years of his life, when the father was suffering from bladder cancer ([13], [39]).
The family relationship deteriorated during 2000. The court attributed the breakdown principally to disagreement about care arrangements. The daughter did not take her father into her home. The Master accepted that this was connected to her health and the physical layout of her home, and concluded that she was not in a position safely to care for him. The breakdown did not reduce her claim ([28]-[30]).
In April 2000, the son paid his sister $70,000 after discussions about the property and the expected inheritance. The father had previously made a will leaving his estate equally to both children, but later wills left the estate to the son. A statutory declaration accompanying the April 2000 will recorded the payment and the father's understanding that it was part of the reason for making no provision for his daughter ([3], [13]-[15]). The court considered the payment in assessing the family provision claim, while rejecting the idea that the daughter had an automatic legal entitlement to half of the eventual estate ([33]-[34]).
The daughter had assets, including an interest with her husband in a rented property, savings and investments, and no liabilities ([21]-[23]). She and her husband lived rent-free in a house held in trust for their grandchildren, and they had responsibility for the grandchildren after their daughter's death ([24]-[25]). The defendant had comparatively little net capital, relied on a pension, had cared for the deceased and had spent money on repairs to the deceased's house ([37]-[39]).
The Master dismissed the summons. He also rejected the defendant's application for indemnity costs, ordering the daughter to pay party and party costs instead ([59]-[60]).
The judgment adopted the two-stage approach described in Singer v Berghouse (1994) 181 CLR 201. The first question was whether the provision made was inadequate for the applicant's proper maintenance, education and advancement in life. The court stated that this assessment calls for consideration of matters including the applicant's financial position, the size and nature of the estate, the total relationship with the deceased, and the deceased's relationships with others who may have legitimate claims ([19]). The judgment also noted that the second stage, if reached, involves similar considerations ([19]).
The decision rested on the assessment of the evidence as a whole, rather than on any one fact. The Master accepted that the daughter had made a real contribution to the Yagoona property and had helped her parents for many years. He also acknowledged that she had medical concerns and substantial family responsibilities. But the evidence did not establish the scale of her household expenses or demonstrate a need for further income. The court observed that the daughter gave no evidence of her living expenses and was not satisfied that she needed additional income or provision for future medical costs ([43]-[47]).
The proposed work on the grandchildren's house was examined separately. Painting and carpeting were characterised as ordinary maintenance. The court considered that some bathroom work was practically appropriate, particularly in light of the husband's frailty, but noted that a provision for improvements would also benefit the grandchildren, who owned the property ([40]-[41], [46]). This discussion did not result in an order.
The $70,000 payment was material. The court considered the circumstances of the payment, including the parties' understanding of the property's value and the fact that the daughter received the money before the deceased's death ([31]-[34]). The Master did not decide the application by treating the payment as an exact substitute for a particular share of the estate. Instead, he considered it alongside the parties' resources and needs. He stressed that an earlier will giving the children equal shares did not create a legal entitlement to an equal share in the later estate ([34]).
The court also compared the parties' financial positions. The Master described an “overwhelming disparity” between them: the daughter and her husband were in a sound financial position, while the defendant and his wife had little capital. The defendant had used a substantial part of his superannuation to make the $70,000 payment and had also spent money on work to the deceased's home ([50]). The Master concluded that the daughter’s demonstrated needs were small and that, given the relative financial circumstances and the lifetime payment, no order should be made ([48]-[51]).
The costs decision was distinct from the family provision assessment. The defendant argued that the daughter had brought the claim for an ulterior purpose, had failed to show need, had not disclosed her finances promptly, and that the litigation might force him to sell the family home ([52]-[58]). The Master regarded the alleged ulterior purpose as the ground that came closest to relevant delinquency. However, he considered that the $70,000 payment was itself material to the application and that bringing the issue before the court did not establish relevant delinquency. The result was party and party costs, not indemnity costs ([59]-[60]).
The judgment does not set out a comprehensive account of the law before Singer v Berghouse, nor does it describe any later change to the law. It records and applies the two-stage approach attributed to the High Court in Singer ([19]). On the face of this judgment, the relevant framework was that the court first assessed whether provision was inadequate for proper maintenance, education and advancement, and then, if necessary, considered what order should be made.
The judgment's application of that framework shows the range of circumstances considered in this particular case: the applicant's financial position and needs, the estate's size and nature, relationships with the deceased, the position of other family members and lifetime provision. The Master treated the daughter's receipt of $70,000 as relevant, but did not equate it mechanically with a particular share of the estate ([31]-[34], [51]).
On costs, the judgment referred to Oshlack v Richmond River Council (1998) 193 CLR 72 when considering indemnity costs and to Degnan Pty Ltd (in liquidation) v Wright (No 2) (1983) 2 NSWLR 354 as an example of a case involving deliberately false defences and allegations ([52]-[53]). The Master ultimately found no relevant delinquency on the evidence before him ([59]). The judgment does not establish a broader rule that every unsuccessful family provision applicant should pay ordinary costs, or that a particular type of claim can never justify indemnity costs.
No post-judgment cases or later treatment have been supplied with this judgment. The effect of later decisions on its reasoning cannot therefore be assessed from the available source.
At [19], the judgment sets out the first question under the approach in Singer v Berghouse: was the provision, if any, inadequate for the applicant's proper maintenance, education and advancement in life? It explains that the answer depends on the circumstances, including the applicant's financial position, the estate and the relevant relationships. In plain English, the court looked beyond the will alone and assessed the applicant's situation in its family and financial context.
At [30], the Master said the daughter was “not in a position to safely look after her father”. This addressed the will's criticism that she had not invited him to stay during his illness. The court accepted that the care disagreement had affected the relationship, but did not treat it as reducing her claim.
At [34], the judgment says the daughter had no legal entitlement to half the estate simply because an earlier will had provided equal shares. In plain English, an earlier expectation of an inheritance was not itself a guaranteed right to that share. The court still had power to consider whether the later will made inadequate provision.
At [48], the Master concluded that the daughter's demonstrated needs were “quite small”. This was based on the evidence presented, including the absence of evidence about household expenses and the limited evidence of future medical costs ([43]-[47]).
At [51], the court referred to the “substantial difference” between the parties' financial situations and concluded that no order should be made. This expresses the combined significance of the financial comparison and the other circumstances, rather than a rule that a better-resourced applicant can never receive provision.
At [59], the Master stated that there had been no “relevant delinquency” and ordered party and party costs. In plain English, he did not consider the defendant's reasons sufficient to justify making the daughter pay indemnity costs.
The judgment is relevant as an example of a family provision application by an adult child where the court had to assess the applicant's actual circumstances, not just their relationship to the deceased or the contents of an earlier will. It specifically involved a daughter who had previously been included in an equal-share will, but was excluded from the deceased's final will ([2], [13], [18]).
It is also an example involving a substantial lifetime payment connected to the anticipated inheritance. The court considered that payment as part of the evidence about provision, but examined it in context rather than treating the amount as automatically resolving the application ([31]-[34], [51]).
The decision may be particularly relevant to factual situations involving competing contributions and care: one child had helped the parents over many years and contributed the original land, while the other moved in to provide care during the deceased's final years and spent money on the property ([26]-[27], [35]-[39]). The Master weighed those matters with the applicant's needs and the parties' financial positions.
The judgment also illustrates the importance of evidence about need. Here, the court noted the absence of detailed evidence of living expenses and future medical costs, despite evidence of health history, family responsibilities and proposed home alterations ([40]-[47]). That is an account of the court's reasoning on this record, not a finding that those kinds of evidence will always be decisive in other matters.
Finally, the costs discussion may be relevant where indemnity costs are sought after an unsuccessful family provision application. The Master considered alleged ulterior purpose, disclosure and potential financial consequences for the defendant, but found no relevant delinquency in the circumstances before him ([54]-[59]).
The supplied text contains no later judgments discussing Purcell v Barry. It therefore does not establish whether later courts have followed, distinguished, applied or otherwise treated this decision. No later citation history should be inferred from the judgment alone.
The authorities discussed within Purcell are different from later treatment of Purcell. The Master applied the two-stage approach from Singer v Berghouse at [19]. He considered Oshlack v Richmond River Council in relation to costs and referred to Degnan Pty Ltd (in liquidation) v Wright (No 2) as an example involving deliberately false defences and factual allegations ([52]-[53]). Those citations show the sources considered in this judgment, not how later courts treated Purcell.
The judgment does not determine how the same approach would apply where an applicant has materially different financial needs, where the estate is larger or smaller, or where the lifetime payment was made on different terms. It also does not specify a formula for converting lifetime payments into an allowance against a family provision claim. The Master treated the $70,000 as relevant and considered the circumstances surrounding it, but made no general calculation rule ([31]-[34], [51]).
The judgment does not resolve how the land contribution should be valued in other cases. Here, the court found that the contribution represented about 6 per cent of the completed property's value and recorded an inflation-adjusted estimate, but did not turn that estimate into a separate award ([35]-[36], [49]).
The costs reasoning is also fact-specific. The Master considered whether the proceeding had been brought for an ulterior purpose, but found that the payment dispute was a material issue for the family provision application. The judgment does not set out a complete test for when conduct will amount to relevant delinquency or justify indemnity costs ([52]-[59]).
Finally, the supplied text gives no later case history. Whether subsequent courts have adopted or limited particular aspects of the reasoning cannot be answered on this source alone.
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CITATION : Purcell v Barry [2003] NSWSC 552 revised - 1/07/2003 HEARING DATE(S) : 28/05/03, 10/05/03; 16/06/03 JUDGMENT DATE : 24 June 2003 JURISDICTION: Equity Division JUDGMENT OF : Master Macready at 1 DECISION : I order that the summons be dismissed and order the plaintiff to pay the defendant's costs on a party and party basis.
CATCHWORDS : Family Provision. Claim by adult daughter. Consideration of provision made during lifetime. Application refused. Costs and whether indemnity costs should be ordered. - Held: Party and party costs ordered. PARTIES : Beryl Ellen Purcell v Edward John Henry FILE NUMBER(S) : SC 5281/2001 COUNSEL : Miss Karin Ottesen for plaintiff Mr CJ Bevan for defendant SOLICITORS : John Byrnes & Associates for plaintiff Turner Freeman for defendant
5281/01 Beryl Ellen Purcell v Edward John Barry JUDGMENT 1 Master: This is an application under the Family Provision Act 1982 in respect of the estate of the late Edward James Barry who died on 24 May 2001 aged 91 years. He was survived by the plaintiff, his daughter and the defendant, his son. The deceased's last will 2 The deceased made his last will on 30 November 2000 under which he appointed the defendant his executor and left the whole estate to him. In his will the deceased gave the following reasons for not making provision for his daughter in these terms: "4. I have made no provision .in this will for my daughter Beryl Purcell for reasons including the following :- (a) my daughter has been offered and has accepted the sum of Seventy Thousand Dollars ($70,000.00) from my son in return for giving up any entitlement she might have had to an interest in my estate; (b) my son and his wife have spent much of their time and effort over many years caring for me. For example, my son has left his home for an extended period during my recent illness to live with me in order to care for me during my illness; (c) my daughter has shown little or no interest in my health and welfare over many years. For example, my daughter has not invited me to stay with her during my recent illness." 3 The deceased had made a will on 26 April 2000 which also left his estate to the defendant. At that time he signed a statutory declaration in these terms: "1. I have this day made a new Last Will & Testament. A copy of that Last Will and Testament is annexed hereto and marked with the letter "A".
(a) The property situate and known as 760 Hume Highway, Yagoona. I am informed by my son Edward John Barry and verily believe that this property is worth approximately $190,000.00. (b) A Commonwealth Bank Account in an amount of $5,000.00. (c) A further Commonwealth Bank account in an amount of $4,000.00 which is held to cover the cost of my funeral. (d) Various items of furniture, furnishings and household effects contained in the property at 760 Hume Highway, Yagoona. I do not know the value of these items.
20 I turn to consider the various matters to which the High Court refers. The Situation of the Plaintiff 21 The plaintiff is married and aged 73 years. She has the responsibility for caring for her deceased's daughter's two children, Rebecca Rix ("Rebecca"), a university student now aged 19 years, and Nathan Rix ("Nathan"), a high school student now aged 16 years. 22 The plaintiff's financial situation is as follows:
23 The plaintiff has no liabilities. The rent she and her husband receive for their house is said to be below the market rent but the evidence does not disclose the amount of the current market rent. 24 This only paints part of the picture as the plaintiff and her husband since 1993 have lived in the house that used to belong to their daughter before she died. Their daughter's estate is held in trust under her will by her brother, John Michael Purcell, executor, pending Nathan Rix attaining his majority in Feb 2005 on which date the estate assets are to be transferred to these two sui juris beneficiaries in equal shares under will. The assets in the estate are:
26 Clause 4 (c) of the will of the deceased referred to his daughter showing little or no interest in his health over many years and gave as an example his daughter not inviting him to stay with her during his recent illness. There is no doubt on the evidence that the plaintiff looked after the deceased and her mother while the mother was alive since about 1982. She had a power of attorney from them, did their banking and she shopped for them. She also did cleaning and took them on visits to the doctor. 27 After her mother died in 1997 the plaintiff still visited the deceased two or three times a week to do the shopping, pick up medical prescriptions, do housekeeping and cooking. She continued to use the power of attorney from the deceased and did his banking and paid his bills from his pension up until August 2000. The plaintiff ceased doing the banking when a question arose about a payment to her brother from the deceased and she handed back the bank books in August 2000. 28 As I have indicated earlier, there was a breakdown of the relationship between the plaintiff and the deceased in the middle of 2000. This probably was a result of some actions by the plaintiff and her rearranging items in the house. It came to a head with discussions relating to relieving her brother from the continual care of her father. At that stage he had been looking after their father for about a year to a year and a half. 29 It seems clear that the plaintiff declined to have her father to stay with her. It is also equally clear that the deceased did not want to go to a nursing home and he was fully supported in these endeavours by the defendant. There were a series of well-meant suggestions by the plaintiff and her son about providing respite care for the defendant which he rejected and it was this difference in approach to their father's care which breached the relationship between the plaintiff and the deceased. The plaintiff was very concerned about her physical ability to look after the deceased both because of her own illnesses and the fact that many steps were to be found in the property in which she was living. It seems clear that the reference in the deceased's will was a reference to her failure to have him to stay to give his son some well earned relief. 30 It was an unfortunate break in the relationship between the plaintiff and the deceased but I do not see it as having any effect on the plaintiff's claim such that it would reduce her entitlement or consideration of her application. In my view she was not in a position to safely look after her father. The payment of $70,000 31 This is another reason for the deceased not leaving any provision in his will in favour of the plaintiff. It is perfectly clear from the statutory declaration and what happened at the solicitor's conference that, in the deceased's view, the $70,000 was less than one half of the value of the property. The plaintiff first recounted the discussions concerning this matter and did not indicate who initiated the discussions. It seems that the discussions arose at the time the parties were discussing the future care of their father and the plaintiff's inability to look after the deceased at her home. According to the defendant she offered to the defendant that perhaps he would buy her out of the estate now. According to the defendant she later offered to sell her interest for $65,000 to which the defendant responded that he would pay $70,000. This seems a little strange and perhaps suggests that the defendant knew more about the value of the house than the plaintiff at the time. 32 The situation became clearer at the discussion at the solicitor's office where it was indicated, as the solicitor recorded in his notes, that there was a real estate valuation of the house for $190,000. It was obvious from what occurred at the solicitor's office that the plaintiff was not happy about the $70,000 which she had reluctantly accepted a few days earlier. It is also clear that the defendant justified the figure by the fact that he had been caring for his father for a year or so and would be continuing to do so in the future. As the solicitor perceived at the time, this unresolved problem and dispute was bound to lead to trouble in the future. It was not resolved and the deceased insisted on the matter proceeding and the will was drawn on the deceased's instructions to leave the estate to the defendant. 33 The precise rights and wrongs of this approach on both sides do not have a substantial role in the consideration of the case at this stage. What is important is that the defendant made a payment in advance to the plaintiff. She had the benefit of receiving it at that time. Although it is probably not relevant to consider the extent to which it might represent what she thought she was entitled to, there is in evidence a letter obtained in April suggesting that the value of the house might be in the order of $205,000. The parties were working on a valuation, which has not been produced in evidence, of $190,000. Assuming the real estate was then worth in the order of $200,000 dollars the plaintiff's complaint is that she was being paid $30,000 less than a half share. 34 The problem with this whole approach to the matter by the plaintiff is that her sense of injustice is predicated on her being entitled to have one half of the deceased estate. She has no such entitlement in law and the deceased is free leave his estate to whom he pleases subject to the power of this court to make provision for dependants or other relatives if there has been an inadequate provision in a will. What has happened in fact is that the plaintiff has been paid by her brother for something less than half of the value of the estate on the basis that she took it early and that she was happy for the defendant to continue to look after her father at some personal inconvenience to himself and his family. Contributions to the Estate of the Deceased 35 There is a dispute on the evidence as to whether the plaintiff gave the Yagoona land to her parents in 1951 or whether her parents had paid her for it. The defendant gave evidence of conversations with his father in which his father stated that he had paid out his daughter. The defendant was only 15 years old at the time. Given the circumstances in which the deceased came to move and his reported financial situation I think that the plaintiff's account is more likely. 36 The purchase price of the land a year or two earlier was 150 pounds and probably reflected the then value of the land at the date of transfer. This contribution has to be taken into account. It was only a small proportion (6%) of the value of the completed property given the amount borrowed to construct the home The defendant's situation 37 The defendant is aged 65, married without dependants. He has lived with the deceased for some years before his father's death in order to look after him. During this period his wife remained in their rented Housing Commission flat. The defendant's assets are as follows:
NET ASSETS $ 8,862 38 The defendant receives a pension of $388 per fortnight and his wife a pension of $340.20 per fortnight. These figures will be reduced shortly when they resume living together in the same residence when this litigation is concluded. The expenses of maintaining their separate households consume their pensions. Once they do live together in one household they will receive a combined pension which will be less than the total of their present pensions and their rent of Pyrmont will be increased. The Defendant's Relationship with the Deceased 39 The defendant seemed to have a good relationship with his father throughout his life. At some personal inconvenience to himself and his family the defendant moved in to care for the deceased some two and a half years before the deceased died. In this period of time the defendant has made contributions to the estate property in that he effected repairs to the extent of somewhere between $13,000 and $20,000. Although he has been in occupation of the house since the date of death of the deceased he has met all expenses in respect of the house. The Plaintiff's claim for Provision. 40 It is necessary to see how the plaintiff claims that she has been left without adequate and proper provision for her maintenance, education and advancement in life. The plaintiff in her affidavit evidence advanced three areas for consideration. The first was that she wished to make some repairs and maintenance to the house, which is held on behalf of their grandchildren and in which the plaintiff her husband and their grandchildren reside. Quotations were given in evidence for painting amounting to $6,500, carpets $4,008 and renovation of two bathrooms amounting to $19,780. The evidence before me indicates that the first two items are matters which would be part of the ordinary maintenance of the premises. The bathrooms which are to be renovated are apparently some 22 years old but no particular problems are referred to in respect to their current condition. It is however recommended by the home care service that because of the plaintiff's husband's frailty there would need to be some alterations. There is a need for rails in the shower area and for an increase in the shower recess space as it is too confined. Clearly there will have to be alterations to at least one bathroom. 41 If an amount is provided to cover these items it will be for the benefit not only of the plaintiff but also of the grandchildren whose property will increase in value. The does not necessarily make it an inappropriate provision but the amount must be considered carefully. 42 The second area for provision was originally expressed by the plaintiff saying that she would like to create investments for her grandchildren. She explained this as wanting to have some monies available to her that she could use to assist her in looking after the grandchildren. Given the funds presently available to her I would have thought that she has adequate funds particularly as the moneys on deposit have increased over time. 43 The plaintiff also asked for a lump sum for her security in the future as she wished to avoid having to dip into capital to meet her expenses. The plaintiff gave no evidence at the trial of her living expenses and I am not satisfied that she has this problem. There is no doubt that at the moment she has a responsibility for the maintenance of the two grandchildren. That will be for a limited time in respect of Rebecca and in respect of Nathan it is not known how long he will require support. 44 The plaintiff also referred to the uncertainty in respect to her medical situation and that of her husband. There was evidence from Dr Peter Campbell who dealt with the plaintiff's medical condition, namely, her breast cancer that she suffered 7 1/2 years ago. He says that she has been free of any evidence of reoccurence since the surgery. She needs to have follow-up mammography and ultrasound on an annual basis and remain under care. He says that although there is a potential for a recurrence of breast cancer she is in a favourable prognosis group. She is at an increased risk of developing synchronous breast cancer thus there is the need for follow-up examinations and imaging. He regards her lymphoedema as likely to have reached its maximum extent. 45 There were no estimates of any likely future medical costs apart from the costs of a dressing for her arm to manage her lymphoedema which is $100 each six months. Consideration of the Application 46 Although the home in which the plaintiff and her husband are residing will pass to their grandchildren in two years' time, given Nathan's condition, it is probably likely that they will stay there with the blessing of their grandchildren for some time to come. In this regard it is to be noted that the plaintiff and her husband have the benefit receiving rent in respect of their property that assists in them meeting their living expenses. As they occupy the home it is properly reasonable that they should feel an obligation to spend some moneys on it as a matter of practicality and also because some alterations to a bathroom will be necessary for the plaintiff's husband. In this respect I would have thought that some part of the expenses for renovations would be appropriate. It would be the en suite bathroom, which would require renovation, and, accordingly, the figures I have referred to above could be reduced by the sum of $10,990. 47 Given the absence of evidence advanced of the plaintiff's expenses and outgoings I am not satisfied that there is any need demonstrated for further income or for future medical expenses. 48 The plaintiff's demonstrated needs are quite small. It is abundantly clear from cross-examination of the plaintiff that the reason why this application was brought was because of her perceived unhappiness as a result of the arrangements for the purchase of her "half share" of the estate by her brother. 49 One must bear in mind the contributions that both the plaintiff and the brother have made towards the estate and the happiness and well-being of their father. Their father lived until the age of 93 years and was in most of his life well supported by his children. The defendant certainly went out of his way to support this father over the last two 1/2 years of his life. The plaintiff made a real contribution to the property in the estate as she contributed to some 6 percent of its cost which, with inflation, would now amount to some $17,100. The defendant himself has spent money on improvements in something in excess of $13,000. 50 One has to consider the financial and personal situation of the plaintiff and the defendant. When one analyses this one sees an overwhelming disparity in the situation of the parties. Although one can feel sympathy for the plaintiff when one has regard to the medical problems she and her husband have suffered and responsibilities which they have had to adopt in respect of the grandchildren, they are clearly in a sound financial position. On the other hand, the defendant and his wife have had little by way of capital and the defendant used almost half of his superannuation entitlement to make the plaintiff's payment. Part of the remaining funds were used to do work on the deceased's house and to provide for his daughter's wedding and he has little remaining. 51 As a result of the payment of $70,000, the plaintiff received in 2000 something on account of what she might have expected the deceased to leave to her. That sum has to be taken into account. In the circumstances it seems to me that when one has regard to the matters to which I have referred and, in particular, the substantial difference in the financial situation of the plaintiff and the defendant, that no order should be made on the application. Accordingly, I propose to dismiss the application. Costs 52 The defendant made an application that in the event that I dismissed the plaintiff's claim that I should order the costs against the plaintiff on an indemnity basis. The defendant referred to be decision of the High Court in Oshlack v Richmond River Council (1998) 193 CLR 72 at page 89. There the High Court referred to the matter of these turns: "It may be true in a general sense that cost orders are not made to punish an unsuccessful party. However, in the particular circumstantial the case involving some relevant delinquency on the part of the unsuccessful party, and order is made not abiding party costs but the costs on May "Lister and client" basis and brought on an indemnity basis. The result is more fully or adequately to compensate the successful party to the disadvantage in what otherwise would have been the position of the unsuccessful party in the absence of such delinquency on its part." 53 Many cases have dealt with the relevant delinquency or "special circumstances". One example that was referred to by the High Court was the case of Degnan Pty Ltd (in liquidation) v Wright (No 2) (1983) 2 NSWLR 354. That was a case where Justice Holland concluded that the unsuccessful party had prolonged the trial by deliberately false defences and allegations of fact. 54 In the present case the defendant suggests there are five reasons why there has been the relevant delinquency. The first was that the plaintiff claimed for a reason that had nothing to do with the purpose of the Family Provision Act. It was suggested that it was for an ulterior purpose. The evidence demonstrates that she brought the application because of her perceived unhappiness as a result of the arrangements for the purchase of her "half share" of the estate. 55 For example at pages55 to 56 of the transcript the cross examination of the plaintiff was in these terms: Q. You know that your father was aware of the arrangement made with Ted when it was made? A. Yes, to get half share. Q. The reason you brought these proceedings is because you wanted to in effect have the court review the arrangement you made with Ted in April 2000 to ensure you receive, together with what Ted has already given you, half of your father's estate? A. Yes.
Q. And that is because in the third last will, that is the will your father had made prior to 26 April 2000,your father had left the estate equally to you and Ted? A. Yes.
Q. You thought it fair that you and Ted continue to receive half the estate? A. Yes. Q. And that is why you brought these proceedings, you wanted the difference between half the estate and the seventy thousand Ted had already given you? A. Equals half. 56 Second, the plaintiff has failed to demonstrate any need for provision. On my finding some has been demonstrated but is quite minor. Third, the defects in the plaintiff's claim were brought to the plaintiff's attention early in the proceedings and were rejected by her or ignored. 57 Fourth, the plaintiff has failed to voluntarily make the requisite true and full disclosure of her financial position until obliged to do so six days before the hearing commenced to resolve the issue by the defendant pre-trial subpoenas. This may be so but there has been at least the appropriate disclosure. 58 Fifth, the result will be that unless indemnity costs are ordered the defendant will have to sell the family home and move back to rented premises. There does not seem to be any evidence that the plaintiff deliberately brought the proceedings with this objective in mind and therefore this result is not relevant of itself. 59 Of these reasons the only matter that really approaches relevant delinquency is the question of whether the plaintiff brought her claim for an ulterior purpose. Many plaintiffs bring this type of proceeding as a result of a perceived injustice at the hands of the testator. In this case it is the perceived injustice resulting from the actions of the testator and the defendant. Although the matter occupied some time in the hearing and in the affidavit material the provision of the funds by itself was a material matter for the court to consider on this application. Accordingly, I do not think that there has been any relevant delinquency and costs will be on a party and party basis. Orders 60 I order that the summons be dismissed and order the plaintiff to pay the defendant's costs on a party and party basis. **********
Last Modified: 07/15/2003 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.
Purcell
Barry
(1994) 181 CLR 201
(1998) 193 CLR 72
(1983) 2 NSWLR 354
The summons was dismissed. The plaintiff was ordered to pay the defendant's costs on a party and party basis ( [60]).