Rutter v McCusker [2008] NSWSC 269 | Case summary

Total $2,620,730 13 Each of the foregoing items was held by the Deceased conjointly with Anne. Further, the house property at Shellcove Road secures a loan (to Anne or the Deceased) from the St George Bank, upon which a balance of about $1,140,000 is presently outstanding. It was the evidence of Anne that the Deceased was liable for one half of that amount, namely $570,349. 14 Since the death of the Deceased Anne has restructured her borrowings to include amounts previously borrowed by Designplace Pty Limited (that company being the vehicle through which Anne conducts much of her business activities; I shall refer to that company as "Designplace"). As at 31 January 2007 the total indebtedness of the Deceased, Anne and her company Designplace was in an amount of $3,719,262, that indebtedness now being in the name of Designplace. The foregoing amount includes the conjoint indebtedness of the Deceased and Anne for two loans from the St George Bank, totalling $1,140,699, and an amount $44,658. That latter amount, according to Anne, represents the balance of a loan account of Management Sciences with the National Australia Bank at the date of the death of the Deceased. Anne stated that she had undertaken liability for that loan, which had now been paid out by the St George Bank, and the amount whereof had now been included in the total liability (now in the name of Designplace) to that bank. 15 It was Anne's evidence that in about September 2003 she and the Deceased began negotiations with the St George Bank, in order to arrange a financial restructure of their borrowings. That restructure was completed on 25 March 2004, only few days before the death of the Deceased. 16 According to Anne, the foregoing assets set forth in the inventory of property were the only assets of the Deceased at the date of his death. However, David and Jane asserted that there were various other items of property which constituted assets of the estate of the Deceased and which were not disclosed in the executor's affidavit, and also items which David and Jane assert were, or may be, notional estate of the Deceased. I shall later return to these matters of additional assets of the Deceased and of notional estate of the Deceased. 17 At the time of his death the only liabilities of the Deceased which are disclosed in the evidence were an American Express credit card ($9,554) and a loan from Management Sciences ($232,282). Subsequent to the death of the Deceased Anne from her own funds has paid liabilities of the estate totalling $24,793. In addition, she has paid the amount of $10,365 in respect to legal costs relating to the application for probate and to administration of the estate. She has also paid almost $43,000 in respect to her costs in the two sets of Family Provision Act proceedings. 18 According to Anne, in the period from 1988 to 2004 the Deceased made borrowings from Management Sciences and on-lent those borrowed funds to Murumbula Stud Partnership ("Murumbula"). According to the executor those borrowings totalled $426,965 (although, in her affidavit of 19 February 2007, Anne subsequently stated that the amount of $232,282 was paid to Murumbula). It was Anne's evidence that she had been unable to ascertain whether that outstanding amount is recoverable from Murumbula. She said that any amount recovered would be used by her to repay the debt due by the Deceased to Management Sciences. Anne, as the surviving partner of Managing Sciences, stated that she was not making a claim on the estate of the Deceased for repayment of the money that that partnership had lent to the Deceased. 19 Considerable evidence was given by Anne, who is an engineer and a builder by profession, concerning various real estate transactions conducted by her (personally and through the vehicle of her company, Designplace) in the period from 1 June 2002 to 12 August 2003, that being before the death of the Deceased, and to the present time. 20 Anne agreed that the balance sheet for Designplace as at 30 June 2003 records a debt owing to the Deceased in an amount of $424,487 and records an identical debt owing to her. However, as I understand it, Anne disputes any such indebtedness. It was her evidence, that, in effect, she left the entirety of the preparation of the accounts of her company to the Deceased, and that she was in the practice of signing whatever documents had been prepared by the Deceased or by the accountants retained by that company. 21 After the death of the Deceased his estate received an income tax refund of $7412 for the year ended 30 June 2004. The Deceased's motor vehicle has been sold, and the proceeds of sale in an amount of $9,000 have been used to pay liabilities of the Deceased. Since the date of the Deceased's death the executor has paid liabilities totalling $41,205, and has received into the estate $16,412. In addition, an amount of $25,638 in respect to legal expenses owing to Teece Hodgson & Ward remains unpaid. 22 I have already referred to the assets of the Deceased as including one A class share in Halibut Pty Limited. The sole asset of that company is the rural estate known as The Murrah (but also referred to as Murrah Park), located at Murrah, near Bega, in southern New South Wales. The land and the buildings thereon were valued in January 2006 at $2,420,000. It was the calculation of the executor that the net assets of Halibut were in an amount of $2,402,287. 23 Halibut also has a contingent liability as guarantor for a loan taken out by David Rutter and Kim Rutter from the National Australia Bank in about 1992. The land owned by Halibut has been mortgaged in order to secure that loan. 24 I have already recorded that the principal item of jointly owned property, being the house property situate at and known as 66 Shellcove Road, Neutral Bay (to which the executor attributed an estimated value of $2,600,000), is now a part of the security for a loan from the St George Bank to Anne (through Designplace), upon which loan an amount of about $1,140,000 is presently outstanding. 25 By his will the Deceased gave to David his shares in Halibut Pty Limited, together with any moneys owed to the Deceased by that company. 26 The Deceased gave to Jane a legacy of $150,000, to be paid by equal quarterly payments, the first such payment to be made three months after the grant of probate. The Deceased also by his will gave to Jane his interest in the yacht known as Bungaree (although, if, as asserted by Anne, that asset was jointly owned with Anne, that gift will not take effect). The Deceased gave the residue of his estate to Anne (with a substitutionary gift to Flossiy, upon her attaining the age of 21 years). 27 There has been no distribution of any assets in the estate of the Deceased. 28 In calculating the value of the estate available for distribution the costs of the present proceedings must be taken into account, since any or all of the Plaintiffs, if successful, will normally be entitled to an order for her or his costs to be paid out of the estate, whilst the executor will normally be entitled to her costs out of the estate, irrespective of the outcome of the proceedings (although in the instant case the duty of upholding the terms of the will has, in proceedings 3119 of 2005, been undertaken by David and Jane). 29 It was estimated on behalf of Flossiy that her costs will total $150,242. However, that estimation was based upon a hearing occupying only six days, when, in fact, the hearing occupied seven days. Accordingly, it is likely that Flossiy's costs, based upon the foregoing estimation, will total well in excess of $150,000. 30 It was estimated on behalf of Jane and David that their costs will total $383,275. However, that estimation was based upon a hearing occupying only three days. Accordingly, it is likely that the costs of Jane and David will total well in excess of the foregoing figure. I would, however, in this regard note that Jane has entered into an agreement with her solicitors concerning their remuneration. The effect of that agreement is that Jane may, depending upon the outcome of the proceedings, reimburse her solicitors by way of provision of musical performances, rather than by monetary payment. 31 It was estimated on behalf of Anne that her costs will total $312,300. Of that amount Anne has already paid about $43,000. Further, it should be noted that the foregoing estimation was based upon a hearing occupying only four days, whilst, in the event, the hearing occupied a total of seven days. Accordingly, Anne's costs, based upon the foregoing estimation of $312,300, would be considerably greater for a seven day hearing. I shall, at this stage, limit my comments concerning costs, to stating that I consider an amount of almost $400,000 for a three day hearing and an amount in excess of $312,000 for a four day hearing to be totally excessive and to be outrageous. 32 The house property at 66 Shellcove Road, Neutral Bay was the family home of the Deceased and Anne, and their child Flossiy. That property had been purchased by the Deceased and Anne as joint tenants in 1988. It is presently valued at $2,600,000. At the date of death of the Deceased that property secured an indebtedness of $1,140,147 to the St George Bank and an indebtedness of $44,658 to the National Australia Bank. The debt to the St George Bank is now $3,848,806 and the house (together with other assets) is security for loans made by the St George Bank to the Defendant and to Designplace, following a restructuring of that debt on 13 May 2004 and 29 June 2004, when the Defendant and Designplace paid out the indebtedness upon the amounts then owing to the two banks. (Designplace is a company of which the Anne is the sole shareholder) 33 The Neutral Bay property passed by survivorship to Anne. Flossiy has lived in that property since infancy, and continues to reside there with her mother. It is the only home which Flossiy has known, and she said that she was very attached to it. That property comprises a significant heritage listed house, constructed in 1885. It appears to be a most commodious residence, containing five bedchambers. Anne currently has approval, given in May 2006, to undertake renovation and restoration work on that residence, costing $300,000, that work including the installation of an internal lift. 34 Flossiy, who is now aged 21, concluded her schooling at Wenona School, North Sydney in 2004. She thereupon enrolled in a Bachelor of Housing course at the University of Western Sydney. She expects to complete that course in mid-2008. Flossiy has also enrolled in a TAFE course which will ultimately enable her to be a real estate agent in respect to residential properties (but, not to commercial properties). 35 In January 2005, with the assistance of her mother, Flossiy purchased a house property situate at and known as 70 Tintern Avenue, Telopea for $499,000. That purchase was funded by a mortgage loan of $315,000 from the National Australia Bank. Flossiy's mother lent her the balance of the purchase price, together with the moneys for stamp duty and legal costs. (The financial arrangements between Flossiy and her mother were set forth in a document dated 21 January 2005, Exhibit 10). The purchase of that house was intended to facilitate Flossiy's attendance at the Blacktown campus of the University of Western Sydney and to avoid the necessity of her travelling between that location and the family home at Neutral Bay. However, Flossiy apparently spent only occasional nights at the Telopea residence. That property is now tenanted. The rent of $300 a week assists Flossiy in meeting the mortgage payments. The mortgage payments and outgoings in respect to the Telopea property total $31,192. Flossiy also pays electricity and council and water rates. 36 Flossiy depends upon her mother for financial support. Anne pays Flossiy an allowance of $1,900 a month, and in addition, provides her with the use of a motor vehicle for travelling to and from university and for social activities. Flossiy does not pay any board, but assists in the house. Flossiy's university fees are paid by her mother. 37 Flossiy receives some small and irregular earnings derived from training water polo players. 38 Flossiy's assets and liabilities are as follows House property situate at and known as 70 Tintern Avenue, Telopea $499,000 Cash bank account with NAB $100 Account with NAB $3,003 REST Superannuation $1,484 Total $503,588 39 Liabilities Mortgage loan $336,905 Loan from Defendant in respect to purchase of Telopea residence $200,000 NAB Visa Account $405 Total $537,311 40 According to Flossiy, her annual university expenses total $4,776 and books, stationery, computer materials cost amounts totalling $2116. 41 Flossiy expects to complete her Bachelor of Housing course in mid-2008, and hopes thereafter to undertake post-graduate studies. She said that she ultimately intends to repay the education fees which have been advanced to her by way of a loan from her mother totalling about $40,000. Flossiy's mother has also paid her legal costs, since Flossiy said that she herself has no moneys with which to pay those costs. 42 Although in her primary affidavit, of 11 October 2005 Flossiy referred to receiving an amount of $1,900 a month from her mother, no reference was made to that amount in her later affidavit evidence, and the impression given in her oral evidence was that her sole income consisted of the small and irregular amounts which she receives from her water polo coaching. 43 Nevertheless, in her oral evidence Flossiy said that the foregoing amount of $1,900 a month was to help her with the mortgage on the Telopea property, and was for no other purpose. Upon my calculations, however, the amount of $1,900 a month provides $22,800 a year, and Flossiy, in addition, receives $300 a week income from that rental property, totalling $15,600. Thus, she has an amount of $38,400 to meet mortgage payments and outgoings totalling about $31,200. There was no suggestion in Flossiy's evidence that she returned to her mother the balance of $7,200 a year. 44 It was disputed on behalf of Jane and David that Flossiy would be required to repay the advance of $200,000 made to her by her mother. Flossiy was vehement in her oral evidence that she must repay that amount to her mother. I am, however, satisfied from Anne's evidence that she does not propose to pursue Flossiy for that amount, or any other amounts which she has advanced to Flossiy, for Flossiy's education or for legal costs of the present proceedings. Anne did not include among her assets any alleged indebtedness to her by Flossiy. 45 David is a dairy farmer by occupation, carrying on business as such upon the rural property known as The Murrah, near Bega in southern New South Wales. He and his wife Kim Rutter have one daughter, Roxanna (also referred to as Roxi), who was born on 26 December 1993, and is presently aged 14. David, Kim and Roxi reside in the principal residence upon The Murrah. David has lived there for more than 30 years, since about 1977, and Kim has resided with him on that property since their marriage in about 1990. David and Kim have conducted, and continue to conduct, a dairy farming business on the property since about October 1992. 46 That property was originally purchased by the Deceased and his then wife, Mrs Anne Rutter (the mother of David and Jane), in about November 1972, through the vehicle of the company which the Deceased and his wife, Mrs. Anne Rutter, conducted, Halibut Pty Limited. The Deceased at that time was self employed as a management consultant, and conducted a business with Mrs Anne Rutter known as Management Sciences. That was a consultancy business through which the Deceased conducted conferences and courses for large companies on such topics as "cash flow techniques" and "risk analysis". 47 David became a director and shareholder of Halibut on 1 August 1986. Currently the other directors and shareholders are Jane and Mrs Anne Rutter. 48 David, Kim and Roxi reside in the homestead located upon the rural property. Kim's mother, Mrs Jenny Denys, resides next door to that homestead, in what is described as a relocatable home, which she acquired in 1995. She resides there consequent upon the terms of a licence agreement between herself and Halibut. 49 David suffers from dyslexia, which was apparently diagnosed in about 1970 when he was aged about ten. In consequence, he did not achieve any particular academic success at school. He also suffered physical ill health in his later school years. As a result, it was decided between David and his parents in about 1975 that he should work upon the farm at The Murrah, which his parents had acquired about three years earlier. At that time there was a manager on the farm. David and a former school friend went to work on the property, the Deceased usually spending about three days there each week. 50 From the time he was 17 years of age David was employed by the Deceased to work on the farm, and was paid, at the outset, a wage of $50 a week. At no time was David ever required to pay any rent for his occupancy of the farm. By the early 1980s David's wage had increased to about $200 a week. By that time David had become the manager of the farm, and from time to time, under instructions from the Deceased, he would employ other farm hands to assist him in carrying out work on the property. David's wage increased to about $400 a week in about 1989. According to David, the Deceased from the early stages of David's farming career indicated to him in conversations that the property would ultimately belong to David. 51 In about 1987 Halibut (of which the directors at that time were the Deceased, Mrs Anne Rutter, David and Jane) set up a business known as the Murumbula Stud Partnership. That business conducted farming activities on the property. David worked on the farm and the Deceased oversaw the management of the Murumbula Stud partnership. That business ceased operation in 1992, when David and Kim commenced dairy farming upon the property, in the name, David Andrew & Kim Michelle Rutter, trading as Murrah Park. 52 David has no knowledge of any indebtedness of the Murumbula Stud Partnership to the Deceased. 53 David owns a 1989 FX Falcon utility motor vehicle, which he purchased second hand in 2002 for $2750. The dairy business also leases a Pajero LWB GLS diesel four-wheel drive motor vehicle which was acquired in August 2003 for $49,070. By December 2005 the amount owing in respect to that vehicle was $37,714. 54 In consequence of the recent drought conditions in New South Wales, David and Kim have received a one-off Exceptional Circumstances drought interest rate subsidy payment in an amount of $15,455, as well as Exceptional Circumstance Relief payments, totalling $17,589. 55 According to David, he and Kim conjointly own 120 milking cows. They owe $235,098 on a Farm Loan and $39,146 on an Adjustment Loan. According to David, he and Kim have expended more than $200,000 on improvements to the property, including the construction of an inground swimming pool. Their daughter Roxi attends the local public school, and does not receive any additional educational tuition. 56 David provided information concerning the income and expenditure of his wife and himself in recent years. For the period 1 July 2004 to 30 June 2005 their income (essentially arising out of the dairy farming activities) totalled $291,806, whilst their expenditure (again, essentially in respect to their dairy farming activites) totalled $376,870. For the year ended 30 June 2006 the income of David and Kim totalled $296,918, whilst their expenditure totalled $300,343. 57 Jane, who is presently aged 49, had previously been married, to William Mark Boekemann, but they divorced in late 2001. She has one child of that marriage, a son, Robert (known as Bertie), born in 1996 (who is presently aged eleven). 58 Jane has the primary custody of Bertie, although he spends some time with his father and also with his maternal grandmother, each of whom lives in Muston Street, Mosman, not far from Jane's residence. 59 Jane has been a professional flautist since 1981. She is now a world recognised concert musician, being a classical flautist of international renown. 60 In 1977, when she was aged about 17, Jane left Australia to study flute at the Paris Conservatoire, having been awarded a scholarship by the French Government. When she returned to Sydney in 1981 after her overseas studies, Jane took a part-time position teaching at the Sydney Conservatorium of Music. She also performed regularly as a session and freelance musician. 61 In 1997 Jane suffered a severe car accident, in which she sustained closed head injuries, and fractured ribs, and was in a coma for a few hours. She received a compensation payment of $200,000 in consequence of the accident. She used that sum towards the purchase of a property at 100 Grasmere Road, Cremorne, with one Angela Toohey (Jane acquiring an interest as to 86 per cent and Miss Toohey as to 14 per cent). She also gave her musical agent a sum of about $3000, in recognition of the agent's loss of income while Jane was not working. 62 The Grasmere Road property was purchased in 2001 for $660,000. The purchase was funded with the assistance of a mortgage loan in a total amount of $400,000 (being a fixed loan mortgage of $200,000 and an offset loan mortgage of $200,000). The repayments on those loans are presently in amounts totalling $2,600 a month, or $31,200 a year. Jane subsequently purchased her co-owner's 14 percent share for $118,000. She borrowed the sum of $30,000 from her mother to assist her in that purchase. Her mother has not requested repayment of that sum. 63 After her divorce in about December 2001 Jane, as a result of a property settlement, received $167,000. Of that amount she expended $80,000 in payment of outstanding taxation debts and $8000 in legal fees. According to Jane, her former husband still owes her $3,500 in respect to the property settlement and an amount in respect to arrears of child support. 64 Since 2003 Jane has received from her former husband child support for Bertie in an amount of $180 a week. Before that she received from him a total amount of $1,500 in cash, as a lump sum payment. She has also received some free meals and groceries supplied by him from the café which he owned. 65 Jane said that she did not own a motor car. However, she formerly owned a 1992 Holden station wagon which had been given to her by the Deceased in November 2003. She spent about $800 to keep that vehicle roadworthy, and eventually sold it in February 2006 for $500. 66 According to Jane, at the present time her assets and liabilities are as follows. 67 Assets Offset account $27,380 Grasmere Road property $850,000 Furniture, jewellery paintings, etc $80,000 Quarter interest in Halibut $605,000 Musical instruments $50,000 Superannuation fund $23,499 Total $1,635,879 68 Liabilities Loan to purchase flute $15,000 Loan to purchase interest of former co-owner in Grasmere Road property $30,000 Mortgage on Grasmere Road property $400,000 Debt on account of forensic accountant's report $14,879 Total $459,879 69 However, regarding Jane's assets, it is relevant here to record that in an application dated 29 September 2005 which she made to HomeSide Lending (Exhibit 21), seeking a loan in a total amount of $400,000, Jane provided information concerning her financial circumstances, which revealed that she was in a far more affluent position than was suggested by her affidavit evidence in the present proceedings. 70 For example, in that application (in which her profession/business was shown as "concert soloist, TV presenter, recording artist & lecturer") Jane gave the value of the Grasmere Road property as $980,000, and she disclosed credit balances and bank accounts totalling $83,000, a Holden Commodore motor vehicle valued at $6000 and a boat valued at $25,000, as well as musical instruments and jewellery worth a total of $100,000 and shares to a value of $2,000,000. The total value of her assets was shown as $3,614,000. She also listed superannuation, having an estimated payout value of $30,000 and goodwill of what was described as her "business" of $50,000, and stated that her home contents had an insured value of $110,000. That document also contained the statement that her share of "annual net business profit after expenses (but before tax) plus any salary expense paid to me by the business" was $120,000, and disclosed her total gross annual income as being $120,000. 71 On 20 March 2006 Jane swore a statutory declaration in respect to that loan, in which she stated, "My financial position remains unchanged in the last year. I am still able to service the mortgage loan of $400,000 - with ease". 72 If the information provided by Jane in September 2005 in support of her loan application to HomeSide Lending was accurate, then she is in a far better financial position than she would have the Court believe, and the Court should, for example, proceed upon the basis that the value of the Grasmere Road property is presently no less than $980,000. 73 If, however, as Jane asserted under cross-examination, she deliberately exaggerated the information concerning the worth of her assets and the size of her income for the purposes of obtaining the loan, then that fact reflects poorly upon Jane's veracity. 74 Regarding Jane's financial and material circumstances, it is relevant here to record that in her affidavit of 29 June 2006 she stated, "Currently, I do not own a car." Whilst that statement is strictly accurate, she has the exclusive use of a Mazda motor car provided to her by Mazda Australia. Shortly before the trial of the proceedings Jane was informed by Mazda Australia that that entity was going to change the car which she presently held and provide a new vehicle for her. In none of the three affidavits which she swore in the present proceedings did Jane reveal to the Court that she had exclusive use of a motor vehicle which was fully maintained and paid for by a third party. 75 It cannot be emphasised too strongly that an applicant for provision has an obligation to place before the Court as fully and as frankly as possible all information concerning the applicant's financial and material circumstances. In regard at least to the motor vehicle, it is quite apparent that Jane has deliberately chosen not to fulfil that obligation. Whilst she was literally accurate in her statement that she did not own a motor car, the effect of that statement was to mislead the Court. 76 According to Jane, it was difficult for her to set forth precisely her monthly income. She said that usually that income was in the range of between $4000 and $6000, although in some months she received no income, as it could happen that she was without work for two or three months at a time. She usually tours once or twice a year, and on those tours she can earn up to $20,000 in a month. 77 Jane provided the following information concerning her taxable income for the years 2004 to 2006: 2004 taxable income $15,912 2005 taxable income $12,749 2006 taxable income about $18,000 78 For 2006 Jane's gross income was about $85,000, and allowable deductions totalled about $56,000. That figure of $85,000 is significantly less than the figure of $120,000 stated by Jane in the loan application of 29 September 2005. 79 Jane provided details of her regular monthly expenses, totalling $8140 (that is, $97,680 a year), and details of other annual expenses, totalling $5,920, bringing the totality of all her expenses and outgoings to $103,600 a year. 80 Jane has been doing little teaching of the flute, because, as she said, she is required as a travelling performer to have a very flexible timetable which does not allow for much teaching or regular work. 81 Even though she has had three ABC Classic best seller CDs in the last two years, nevertheless, Jane has received total CD revenue of about $30,000 in respect of those CDs. Normally she expects to release a new album every one and half to two years. Although she has achieved international fame, Jane has performed for commercial success only twice in the year preceding the institution of her claim, for which she received about $1,600 per performance. Jane gave details of her professional expenses, including agent's fees, musician's fees, publicity, recording expenses, travel, video production, and associated expenses. In most years, her expenses total about 75 per cent of her total income. In the year preceding the institution of her claim it was necessary for her to purchase a new flute costing $15,000. However, because of her celebrity status, she received a $10,000 discount in respect to the purchase of that flute, in return for her providing commercial endorsement. Jane has had legal problems of expenses associated with a former business partner which have led to legal costs of $7,000, and a significant loss in respect to royalty payments. 82 Jane gave details of her monthly expenses and outgoings, in a total amount of $8,877. Those details included expenses associated with her son Bertie, who receives various musical and sporting lessons, and participates in extra-curricular activities. Bertie also receives coaching (at a cost of $60 an hour) in writing and mathematics, but that cost apparently is not included in the figure of $1026 ascribed to Bertie's expenses. Jane expressed her aspirations regarding Bertie's future education. According to Jane's evidence, her father had offered to assist financially with that education. 83 According to Jane, she either has, or expects to have an average shortfall each month of between $2877 and $4877 (depending upon whether her income is $4000 or $6000 a month). She said that she funds shortfalls by using credit and by delaying creditors as long as possible. It was Jane's evidence that, whilst she has recently released a new album, which had been very successful in the classical music charts, her likely income from that source was not high. She received an advance payment of $9,000 from the album's publisher, which she applied to meet credit card debt and other expenses. Apart from that advance payment she expects to receive only a relatively small sum by way of royalties. 84 Jane said that she had only five regional concerts planned for the latter part of 2007, and that she expected to earn about $15,000 from those concerts. 85 She said that upon the basis of her present financial position she could only afford to send Bertie to a public school, although she had hoped to send him to a private school in 2008. 86 Jane gave evidence concerning a loan by her of $10,000 to the Deceased at some time shortly before December 2001. 87 Jane also gave evidence concerning a personal assistant, whom she said she currently employs at the rate of $15 an hour, to help her with occasional phone calls and errands. However, Jane's evidence under cross-examination on this topic was anything but clear regarding the precise nature of the employment of this personal assistant. 88 Jane set forth details of the nature of the provision which she was desirous should be made for her by the Court, totalling $1,326,000. 89 A task preliminary in the consideration of the applications by, first, Flossiy, and, second, David and Jane, is to determine the value of the estate. 90 The only significant assets disclosed in the inventory of property were the Deceased's shareholding in Halibut and a loan to that company in an amount of $47,545, as well as a loan to Murrumbula Stud Partnership in an amount of $385,538. 91 However, it would appear that that last asserted asset, a loan to the Murrumbula Stud Partnership, is incorrect. That entity ceased to exist more than 15 years ago, when David and his wife commenced dairy farming on The Murrah. Nevertheless, it emerged during the course of the hearing that there was a debt owed to the Deceased by Designplace in the vicinity of $560,000. That debt constitutes an asset in the estate. 92 In regard to that debt owed to the Deceased by Designplace, it should here be recorded that on 24 July 2007 (the second day of the trial) Jane and David provided a document entitled "Assets not contained in affidavit of Executor", in consequence of a direction made by me earlier on that day, that those Plaintiffs provide the Court with a document setting forth with specificity and particularity any and all items which both parties assert constitute assets of the estate of the Deceased which are not disclosed in the affidavit of the administrator, or which those parties assert are, or may be, able to be designated notional estate of the Deceased. That document asserts the amount of the loan of the Deceased to Designplace as being $424,887, and that there should be interest thereon at the rate of 7.5 per cent per annum compounded daily from 1 July 2003 to 24 July 2007, in an amount of $151,468, thus resulting in a total indebtedness of Designplace to the Deceased in an amount of $576,356. 93 That document further asserts as notional estate of the Deceased, one half of the Neutral Bay property, the agreed total value whereof is stated to be $2,600,000. Thus the one half interest of the Deceased asserted as notional estate has value of $1,300,000. 94 I have already recorded that Halibut is the registered proprietor of The Murrah, upon which a dairy farm is conducted by David and his wife, and that that rural property is the only asset of Halibut. The land and improvements thereon were valued at $2,420,000 in January 2006. The liabilities of Halibut total somewhat less than $18,000. In addition, Halibut has a contingent liability as guarantor for a loan taken out by David and his wife Kim in about 1992 from the National Australia Bank. That loan is secured by registered mortgages over the land owned by Halibut (which comprises a number of separate titles). 95 There was considerable evidence presented to the Court concerning, first, the interest of the Deceased in Halibut, and, second, the value of that interest. 96 The evidence disclosed that before 1987 the Deceased held one A class share in that company and, his wife, Anne Rutter, held one B class share therein. In 1987, before the birth of Flossiy, the company issued one A class share and one B class share to Jane, one A class share and one B class share to David, one A class share to Anne Rutter, and one B class share to the Deceased. That shareholding is reflected in the annual returns of the Halibut until 1996. In the annual return for that year there is revealed a change in the shareholding, in that each of Jane, David, Anne Rutter and the Deceased is shown as holding one A class share and the Deceased as also holding one B class share. 97 The B class shares in Halibut are redeemable preference shares. A corporation is entitled to issue such preference shares, but it may redeem them only on such terms and in such manner as are provided by the articles (Corporations Law, section 191; Corporations Act 2001, section 254J). The articles of Halibut required, amongst other matters, that notice, of the company's intention to redeem be given to the holders of shares to be redeemed. 98 It was the evidence of Jane, David and their mother, Mrs Anne Rutter, that no notice was given to any of those persons of an intention by Halibut to redeem the B class shares held by them. That evidence was not challenged, and I accept that evidence. Evidence by those three persons is sufficient to rebut the presumption that the register and the annual returns of the company are correct. Additionally, there is no evidence of any resolution of directors or of shareholders relating to any redemption of shares, and no notification of any such redemption was ever made to ASIC. It was submitted on behalf of Jane and David that if there was such a purported redemption of their B class shares, it was made without authority and was of no effect. I accept that submission. 99 I am satisfied that the shareholding of the Deceased in Halibut at the time of his death was one A class share and one B class share, and that each of Jane, David and Mrs Anne Rutter also at that time held one A class share and one B class share. That is, the Deceased had a one fourth interest in Halibut at the time of his death, and each of Jane, David and their mother, Anne Rutter, also had a one fourth interest in that company. 100 The question then arises as to the value of the one fourth interest of the Deceased in Halibut. 101 The valuation of shares in a closely held company, such as Halibut, is not an easy matter. Anne asserts that the valuation should be conducted solely by reference to the value of the assets of Halibut, namely the land which it owns. However, it was submitted on behalf of David and Jane that such an approach is not appropriate where, as here, the other shareholders intend to carry on the current use of the land. In such case, they submit that it is more appropriate to value the shares with regard to the profits and dividends, although some reference may also be had to the value of the assets backing. 102 In Mallet v Mallet (1983) 156 CLR 605 Mason J (as he then was) said, at 627 - 628, that the most appropriate method of estimating the value of shares in a proprietary company depended upon a variety of factors, including the purpose for which the valuation is made, the nature of the of shareholding, the character of the company's business, its capacity to earn profits, and the net value of its assets; further, that a valuation based on earning capacity is generally most appropriate, because the hypothetical purchaser of shares in a company which is a going concern is looking, not to a winding up, but to the profits which will ensue from the company continuing to trade; nevertheless it has been recognised that valuation by reference to assets backing or a liquidation basis will be appropriate where earning capacity provides no real measure of the true share value, or presents overwhelmingly difficulties, or where the shareholding is such as to enable the holder to bring about liquidation of the company. See, also, Cassegrain v Cassegrain [1999] NSWSC 1165.) 103 Mr Christopher Bestic, the valuer retained on behalf of Anne, valued the A class shares at $1 each and the B class shares at $234,322. It was submitted on behalf of David and Jane that the Court should not accept those valuations, which, so it was submitted, did not take into account the character of the company in which the shares were held or the intention of the directors of Halibut regarding the use of the land owned by the company. David and Jane submitted that, given that the land is currently in use, that it is very unlikely that the company would be wound up, the fact that the shares may be redeemed at par, and the fact that there is a severe restriction on the transfer of shares, the proper value of the shares is little more than minimal. 104 I do not accept that submission. Recognising the difficulties inherent in conducting a valuation of a closely knit family company, it seems to me, nevertheless, that the value cannot be less than the assets of the company, in the instant case that being at least the land owned by Halibut, having a value of $2,420,000. Whether or not the value is greater than that amount, it is (as was recognised by Mason J in Mallet and by Bryson J (as he then was) in Cassegrain) difficult upon the evidence presently before the Court to express a firm conclusion. But it can certainly be no less than the foregoing figure. 105 The financial records of Designplace (which, it should be recognised, is a company controlled by Anne) disclosed, most recently, for the year ending 30 June 2003, that an amount of $424,887.96 was owing to the Deceased. Those financial statements were prepared in compliance with the statutory requirement of section 286 of the Corporations Act 2001, and are prima facie evidence of the matters recorded therein (section 1305 (1)). It was submitted on behalf of David and Jane that that debt attracted interest. Since at least 1998 the income tax returns of Designplace disclose that interest was paid by that company to the Deceased every year. At a meeting of directors of Designplace on 21 July 2003 it was resolved that that company would be financed over the then current year by Anne and the Deceased and that interest would be paid at a commercial rate upon the amount outstanding. Further, that if either Anne or the Deceased were to be in debt to the company each of those persons agreed to pay to Designplace daily interest "at a similar commercial rate and for this year 7.5%". 106 Alternatively to the foregoing submission that an agreement to pay interest (and the rate of such interest) may be inferred from the foregoing resolution for the directors, it was submitted on behalf of Jane and David that interest may be awarded where a promise to pay can be inferred from a course of dealings (see De Havilland v Bowerbank (1807) 1 Camp 50; 70 ER 826). It was calculated on behalf of Jane and David that interest at the rate of 7.5 per cent would result in a total amount of indebtedness at the date of hearing being $576,356. 107 No attempt has been made by Anne, in her capacity as executor of the estate of the Deceased, to get in the foregoing indebtedness (whether interest be added thereto, or not) owing by Designplace to the estate. The obvious reason for that failure on her part to carry out one of the fundamental duties of an executor - to get in the assets of the estate - is doubtless that she is the sole shareholder and sole director of Designplace, and that she personally stands to benefit if that company is not required to pay its indebtedness to the Deceased. 108 Anne attempted to establish that the foregoing debt by her company to the Deceased did not exist. The first explanation which she offered (in her affidavit of 19 July 2007) was that "any such debt was extinguished by his [the Deceased's] share of the debts to St George Bank and HSBC." Under cross-examination Anne said that there could have been no debt because the Deceased never had sufficient income to create such a debt. When it was then suggested to her that she had never previously offered this explanation, she responded by saying, first, that it was a secondary matter, the primary answer being the repayment by Designplace, and, second, that she had in fact, given the evidence previously. I am not persuaded that those responses explained why the assertion that the indebtedness of Designplace to the Deceased had been extinguished, either during the lifetime of the Deceased or after his death. 109 Jane and Davide relied upon the evidence of Mr Trevor Pogroske, a chartered accountant with extensive experience in analysing the financial affairs of closely related entities, concerning this. His opinion was that there was nothing to suggest that this debt, which appeared in the loan account of Designplace, had increased or decreased in the period from 1 July 2003 to 29 March 2004. Mr Pogroske also considered that there is nothing to show that the loan had been repaid as at 30 June 2006. 110 Mr Armstrong, a chartered accountant, also gave expert evidence concerning this loan account (such evidence being given in the case for Anne). Mr Armstrong sought to reconstruct a spreadsheet found by Anne a year earlier on the Deceased's computer. However, it was readily conceded by Mr Armstrong that in doing so he looked at no primary documents. He also accepted under cross-examination that, if Designplace was liable on a particular loan account (as was shown on its balance sheet for the relevant period), his calculation in respect of one transaction alone would have been out by $104,000. That inaccuracy of itself cast serious doubt on Mr Armstrong's methodology and conclusion. 111 I am not satisfied that Anne has displaced the prima facie position established by the financial statements of Designplace for the year ended 30 June 2003, namely, that the Deceased was at that time owed $576,356 by Designplace. Further, I am not satisfied that that indebtedness has been repaid. Accordingly, that indebtedness constitutes an asset in the estate of the Deceased. 112 It follows from my foregoing conclusions that at the time of his death the significant assets owned solely by the Deceased consisted of a one fourth interest in Halibut, having a value of no less than $605,000; together with a debt owed to him by Halibut of $47,545, and a debt owed to him by Designplace of about $576,000, being assets totalling in excess of $1,228,000. 113 Had it not been for the institution of the present proceedings, those assets would have been more than sufficient to meet the testamentary dispositions of the Deceased, by giving his interest in Halibut and the indebtedness to him by that company to David and by giving to Jane a legacy of $150,000. Anne, as the residuary beneficiary, would have received the outstanding balance of the indebtedness of Designplace to the Deceased. 114 Regarding the value of the distributable estate it should also here be observed that Anne asserted that the Deceased was jointly liable with her for one half of the indebtedness to the St George Bank which was secured over the Shellcove Road property. However, Anne cannot have it both ways. If, as she asserts, that property passed in its entirety to Anne, then she alone should be liable for the entirety of the indebtedness to the bank which is secured by that property (including the Deceased's interest therein). If she wishes to establish that the Deceased (and now his estate) was jointly liable for one half of the indebtedness to the bank which was secured by that property, then she must bring into account as an asset in the estate the one half interest of the Deceased in that property. Since the property passes by survivorship to Anne, I am not persuaded that the estate has a continuing liability for one half of the indebtedness to the bank for which the property was the security. The totality of that indebtedness (secured by the totality of the Shellcove Road property) is now a liability of Anne alone. 115 However, irrespective of the outcome of the present proceedings, the exorbitant costs (especially those of David and Jane and of Anne) would more than exhaust the assets represented by the indebtedness of Halibut to the Deceased and the indebtedness of the Designplace to the Deceased if any costs order were to be made against the estate of the Deceased. 116 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claims of the three Plaintiffs. I have received the benefit of a chronology and a written outline of submissions from Counsel for the respective parties. Those documents will be retained on the Court file. 117 Each of the Plaintiffs, as a child of the Deceased, is an eligible person within paragraph (b) of the definition of that phrase contained in section 6(1) of the Family Provision Act. Accordingly, each of the Plaintiffs has the standing to bring her or his present claim. 118 It will be appreciated, however, that the claims of David and Jane have been brought outside the limitation period of 18 months prescribed by section 16 of the Family Provision Act, and that each of those Plaintiffs has sought an order that he or she be allowed to bring that claim outside such prescribed period. 119 In carrying out the first stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208 -210 (the correctness of which test was affirmed by the High Court in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191) the Court must determine whether in consequence of the provisions of the will of a testator the applicant has been left without adequate provision for his or her proper maintenance. 120 In the instant case it is not possible to deal with each of the three claims in isolation from the other two, since the High Court in Singer v Berghouse (at 209 - 210) said that the determination of the first stage calls for an assessment whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. 121 In the instant case, the only persons who have legitimate claims upon the bounty of the Deceased are the three children of the Deceased, being the three Plaintiffs, and the de facto spouse of the Deceased, Anne (who is a significant object of the testamentary beneficence of the Deceased, being the residuary beneficiary, and who is also the person to whom the Deceased's interest as joint tenant in Neutral Bay property passed by survivorship). Each of those persons is an eligible person in relation to the Deceased (Anne being such within paragraph (a) of the definition of the foregoing phrase contained in section 6 (1) of the Act). The only other eligible person in relation to the Deceased is his former wife, Mrs Anne Rutter (who is such within paragraph (c) of the foregoing definition), but who makes no claim against his estate. 122 Flossiy is a young woman aged 21, with her life ahead of her. However, unlike most young people of her age, she is the owner of a house property, having a present value of almost half a million dollars. Whilst not currently in full-time employment, she is pursuing tertiary education, which will qualify her for a profession in the housing and real estate fields, and she thus has the potential to earn an adequate income. It was Anne's intention that Flossiy should join her in the business of building and selling houses. 123 Flossiy resides in an extremely valuable residence, which has been her home since infancy and to which she has an emotional attachment. She leads a comfortable lifestyle, all her needs being provided by her mother. Flossiy has accommodation, sustenance, and a motor car provided for her without charge. In addition, Anne provides Flossiy with the sum of $1,900 a month. Although Flossiy said that that sum was to meet mortgage repayments on the Telopea property, it in fact enables her to have an excess of $7,200 a year over the outgoings and mortgage payments in respect to that property. Anne pays Flossiy's university fees (totalling $40,000), and has already paid part of Flossiy's legal costs in the present litigation. There was no suggestion that this situation, in which Flossiy is completely maintained by her mother in a most comfortable and generous lifestyle, will change. 124 It was Flossiy's evidence that she intends to repay the sum of $200,000 advanced to her by Anne towards the purchase of the Telopea property and to repay the education expenses of $40,000. Nevertheless, it would be unrealistic of the Court to fail to recognise that Flossiy is Anne's only child, and that Anne has, for the entirety of Flossiy's life, been to her an indulgent mother and provided her with a more than adequate and comfortable lifestyle. I am satisfied that Anne will not take any action to recover from Flossiy the foregoing amounts of $200,000 or $40,000 if Flossiy chooses not to repay them. It is relevant here to observe that Anne in giving evidence of her financial circumstances did not include among her assets either of those amounts (or, indeed, any alleged indebtedness to her by Flossiy). 125 Further, it was noted during the course of the proceedings that Flossiy did not make any claim against notional estate of the Deceased, to the extent that she did not seek to disturb the sole ownership by her mother of the Neutral Bay residence. 126 It is quite apparent that the present proceedings by Flossiy have been brought with the complete support and encouragement of her mother. I would very much doubt whether Flossiy would have in any way sought to institute proceedings against the estate of her late father if part of that estate had not been given by the will of the Deceased to David and Jane. That is, I am completely confident that if Anne had been the sole beneficiary of the estate it would never have occurred to Flossiy to institute the present proceedings. 127 It was submitted by Flossiy that she should receive a legacy in the sum of $100,000, such legacy, as I understand it, to give her a start in life. It is further submitted that any such legacy should be charged upon the Deceased's shareholding in Halibut. I would not be disposed to make such an order. 128 It is difficult to resist the conclusion that the claim of Flossiy has been instigated (and financially supported) by Anne essentially with a view to reducing the benefit given by the will of the Deceased to his two elder children. Such conduct on the part of Anne is totally inconsistent with her duty as executor to act even-handedly in the interests of all the beneficiaries, and not, for example, to prefer the interests of her daughter Flossiy (who is not a beneficiary under the will) to those of David or Jane. 129 Any order for provision made in favour of Flossiy would have the practical effect of reducing the benefit given to one or other, or both, of David and Jane. For reasons which will emerge, I am not persuaded that those testamentary dispositions of the Deceased should be altered. 130 Not only am I not satisfied that Flossiy has established any relevant need, but I would not be disposed to make an order in favour of Flossiy which would have the effect of reducing, let alone, extinguishing, the benefits which have been given by the Deceased to David or to Jane. 131 However, were I (contrary to my foregoing conclusion) to accept that Flossiy should receive a benefit from the estate of the Deceased, be it a legacy in the sum of $100,000 or a legacy in any sum, I consider that any such legacy should be borne by that asset which consists of the indebtedness of Designplace to the Deceased. The practical consequence of an order being made in favour of Flossiy along those lines would be that Anne (who has clearly instigated Flossiy's claim, and who as the principal of Designplace and as the residuary beneficiary would not, as a matter of practicality, need to repay that debt owing to the estate) would bear the practical financial burden of meeting that claim. 132 However, as I have already stated, I am not persuaded the Flossiy has established any relevant need. 133 In consequence, therefore, the claim of Flossiy will be dismissed. 134 It is appropriate, for reasons which will emerge, that I should next proceed to a consideration of the claim of Jane. 135 Jane seeks from the estate of the Deceased a legacy in the sum of $400,000. Such a legacy, it was submitted, will allow for a reduction of her liabilities (especially the mortgage upon her residence) and some provision for her retirement as well as the education of her son. 136 Jane has significant assets. She lives in an expensive residence (the valuation of which is at least $850,000, and probably in excess of one million dollars). On account of her lack of frankness in disclosing to the Court full details of her financial and material circumstances, it is not possible for the Court to be certain as to the value of her various assets. It is apparent, however, that Jane, who is a concert musician of world renown, leads a comfortable and international lifestyle. Whilst her actual income may not be extremely high, she certainly has the potential to increase that income, if she desires to alter the emphasis of her musical career from performances around the country and overseas, to teaching of the flute. There is no suggestion that she is presently having any problem in meeting the mortgage payments on her residence. Indeed, in her statutory declaration of 20 March 2006 Jane swore that she could meet those payments "with ease". 137 Jane is the owner of a one fourth share in Halibut, the value of which share must be at least in excess of $600,000. That shareholding is more than sufficient to meet any asserted need by Jane of the nature for which she seeks a legacy of $400,000. She has, however, stated that she does not propose to do anything concerning Halibut, since any sale or liquidation of the company or the sale of the single asset of Halibut, being The Murrah, would have the practical effect of dispossessing her brother David and his family from their home and of terminating the dairy farming business conducted by David and his wife. 138 Regarding the question of relevant need, it should be observed that any asserted need can be overcome by Jane choosing to exercise her rights as the owner of one fourth share in Halibut and thus in the assets of Halibut. She chooses not to do so for personal and familial reasons, which she considers to be overriding. That is a matter for herself, but she cannot then expect the Court to make an order for provision which would have a consequentially detrimental effect upon Anne, and, as a practical matter, upon Flossiy. 139 Instead, Jane is desirous that an order for provision in her favour should be made against the notional estate of the Deceased, such notional estate being the interest of the Deceased in his residence at Neutral Bay. The practical result of any such designation of the interest of the Deceased in that residence as notional estate would be to dispossess Anne and Flossiy of their home of more than 20 years. I would not be disposed to make an order which would have that effect. 140 Further, it should not be overlooked that by his will the Deceased gave to Jane a legacy of $150,000 (to be paid by equal quarterly payments), as well as a yacht having an estimated value of $20,000 (although, if Anne's assertion of joint ownership of the yacht be accepted, that gift will not take effect). That legacy will go a considerable way to meeting the need for which Jane asserts a claim to receive a legacy of $400,000, being for the purpose of reducing her liabilities (especially the mortgage upon her residence) and making some provision for her retirement as well as for the education of her son. 141 But, in any event, I am not satisfied that Jane has established any relevant need. The consequence of that conclusion is that Jane's claim will be dismissed. 142 But even if (contrary to my foregoing conclusion) I were satisfied that Jane had established some relevant need, which would otherwise entitle her to the benefit of a legacy (be it in the sum of $400,000 or some considerably smaller sum), I would not be disposed to make an order for the provision of such legacy from the notional estate of the Deceased, since such an order would have the practical consequence of dispossessing Flossiy and her mother from their home. The only other asset against which such an order for provision could be made in favour of Jane would be the indebtedness of Designplace to the Deceased. An order along those lines would have the practical effect of significantly reducing the assets of Anne and of detrimentally affecting the lifestyle of both Anne and Flossiy. The competing claim of Anne and the consequent deprivation to Flossiy would be such that I would not be disposed to make such an order. 143 Further, even if (contrary to the foregoing conclusions which I have already expressed) I were to be persuaded that Jane had otherwise established an entitlement to receive a legacy in some amount, to be borne by either the actual or the notional estate of the Deceased), it would still be necessary for Jane to show sufficient cause as to why the Court should allow the claim to be made after the expiry of the limitation period of 18 months from the death of the deceased prescribed by section 16 of the Act. 144 Essentially, the explanation offered by Jane for not instituting the proceedings within that prescribed period was that it was not until April 2006, after the expiry of that limitation period (about her awareness of the existence whereof she seemed to be uncertain) that she became aware that the Neutral Bay property was held in the joint ownership of the Deceased and Anne, and that, in consequence, she was not until then aware that she would have to resort to the notional estate of the Deceased. I do not accept that explanation. 145 It emerged from the evidence that Jane's solicitors were fully aware by 17 May 2005, at least six months before the expiry of the limitation period, that the Neutral Bay property was held by the Deceased and Anne in joint tenancy. If those solicitors did not pass on that information to Jane (and to David), then that is a matter between Jane and David and their solicitors. Similarly, Jane was in consultation with her solicitors well before the expiry of the limitation period. It was their obligation to advise her concerning the existence and nature of such limitation period. 146 I am not satisfied that there has been adequate explanation for the present proceedings by Jane (and by David) not being instituted before the expiry of the limitation period. I am not persuaded that there are any grounds for the extension of that period. Accordingly, the claim of Jane fails at the outset. But, as I have already recorded, even apart from this matter of the limitation period, I am not satisfied, first, that Jane has established any relevant need, or, even if such relevant need be established, that her claim warrants interference with the testamentary benefits given by the Deceased to Anne. 147 It should also here be noted that Jane contemplated instituting the present proceedings only when she became aware that Flossiy had made a claim against the estate of the Deceased. It is open to the Court to infer that at least one of the reasons why Jane instituted the present proceedings, was to thwart Flossiy's claim. 148 I turn now to the claim of David. I have already observed that it is incumbent upon an applicant for provision to make as full and as frank disclosure as possible of the applicant's financial and material circumstances. David in his evidence omitted any reference whatsoever to the shareholding of himself and his wife in the Bega Cooperative, in which they hold almost 90,000 shares. David made no effort to provide to the Court the value of that shareholding. However, since the value of those shares was between $3.50 and $4.00 each, that shareholding has a total value of at least $315,000, and possibly of $360,000. Neither did David disclose the fact that he owns 14,000 shares in Diary Farmers Milk Co-operative (now ACF). He is entitled to dividends as well as capital in consequence of his ownership of those shares. He said that he had no idea of the value of those shares. Neither did David disclose the value of his dairy herd, consisting of 90 cows and 30 dairy heifers, 4 bulls, 3 pigs, and a few chooks. However, the bank valued his dairy cattle at about $1000 each (which, upon my calculation, would be $124,000). It emerged under cross-examination that the various horses have a total value of about $28,000. The area of The Murrah is about 1200 acres, and David agreed that he had given to the bank a value of the that land at $5,000,000 (or, possibly, $6,000,000). 149 The needs asserted by David were to provide a residential flat for his mother on the farm, and to make some provision for his retirement. However, he agreed that currently he manages to get by. 150 David agreed under cross-examination that the only reason he instituted his claim was to defeat the claim of Flossiy. Whilst this motivation is not of itself determinative of David's claim, nevertheless, it is relevant to his application for an extension of time. 151 Whilst David may be poor in income, nevertheless he has significant assets. Exhibit B reveals that his shareholding in the various Cooperative societies is worth in excess of $300,000. In addition, he has a one fourth interest in Halibut, although, like his sister Jane, he is unwilling to take any action which would have the effect of liquidating that company. 152 David is presently meeting his obligations to the bank under the mortgage. He has a secure livelihood. Under the will he receives the Deceased's shares in Halibut and the debt due by Halibut to the estate. He is a major beneficiary under the will of the Deceased. The Deceased's shareholding in Halibut has a value of no less than $600,000. The indebtedness of Halibut to the Deceased is disclosed in the balance sheet of that company as being $47,545. Those benefits are more than sufficient to satisfy any claim which David might otherwise have against the estate of the Deceased. 153 I am not satisfied that David has any relevant needs which he is not able to meet. The laudable desire to provide accommodation upon The Murrah for his mother does not constitute a need of David. Whilst his income may not be great, his assets are both substantial and significant. 154 I am not satisfied that David has established an entitlement to receive any additional benefits from the estate of the Deceased. 155 However, even if (contrary to my foregoing conclusion), David had established such an entitlement, for the reasons which I have already expressed regarding to the claim of Jane, I would not be disposed to make any order for provision in favour of David which would have the effect of dispossessing Anne and Flossiy of their residence. 156 Further, even if (contrary to my foregoing conclusions) I were to be persuaded to make an order for provision in favour of David, he, like Jane, would need to satisfy the Court that he was entitled to an extension of the prescribed limitation period in which to make his claim. The views which I have expressed concerning the application of Jane in that regard have equal application to David. There is the further matter that David's motivation in instituting the present proceedings was not primarily for his own benefit, but was essentially to thwart the claim of Flossiy. I would not in any event, be prepared to make an order extending the prescribed period for the institution of proceedings by David. It follows, therefore, that David's claim must also be dismissed. 157 I summarise, therefore, my foregoing conclusions. 158 In proceedings 3119 of 2005, I propose to order that the claim of Flossiy be dismissed. 159 In proceedings 2138 of 2006, I propose to order that the claim of David and the claim of Jane each be dismissed. Upon the cross-claim of Anne I propose to make an order determining the shareholding in Halibut Pty Limited as being a one fourth share held by each of the Deceased, Anne, David and Jane. No consequential relief arises out of the foregoing determination. 160 Consonant with the requests made in that regard by Counsel for the respective parties, I will not deal with costs at the present time, but will allow an opportunity for any applications to be made concerning costs, in the light of my substantive orders herein. 161 I make the following orders:

Rutter v McCusker

At a glance

Court

Decision date

Before

Source

Judgment (25 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (7)

Cited By (2)