DECISION
84 Dealing first with the Sayer appeal, there is force in Mr Hallen's submissions that Mrs Sayer should not have to sell her house, and that she needed help from rent from the Cottage in relation to her income; and that the $90,000 provision for Francesca was excessive.
85 However, this is not a case where any significant identifiable error has been shown. The appellant's case depends upon, to adopt the words of Kirby P in Golosky, an appeal to a different evaluation which, objectively speaking, may be no better than the first. It depends upon an appeal judge saying, in relation to a matter of discretion, that the decision of the trial judge is so plainly wrong that there must have been some error. And in coming to such an opinion, it is incumbent upon the appeal judge to recognise both that he or she is dealing in an area of discretion, and that his or her own opinion on the matter may, objectively speaking, be no better than the trial judge's.
86 It seems to me that there are two crucial opinions expressed by the trial judge which are at the heart of his exercise of discretion: first, that an award of $90,000 to Francesca was appropriate; and second, that Mrs Sayer was adequately provided for by what was left after expenses and provision for Francesca.
87 In relation to the second finding, I note that the trial judge did have evidence before him of apparently reasonable two bedroom villa units on offer in the Bowral area in the range of $105,000 to $130,000. I note also that this was not a case, like King v Foster, of a lifetime marriage, with shared raising of children, and with a substantial contribution from the wife to the assets of both parties; although, as the trial judge found, the marriage was not a short one and the widow did have the strongest and the largest claim. Further, although the trial judge noted that Mrs Sayer's living expenses were almost equal to her income, it would seem that some of those living expenses may be reduced if Mrs Sayer moves into a unit, for example rates of $1,500 per annum and expenses for house and garden maintenance in a similar sum; and also that there could be a significant capital sum left over after purchase of a villa unit.
88 Accordingly, although there is force in the contention that Mrs Sayer should be able to retain a house and garden to which she has a very strong attachment, I am unable to say that the trial judge was plainly wrong in this second finding.
89 Coming to the question of the appropriateness of a sum of $90,000 for Francesca, this must be considered in the light of the general principle that the Court should not interfere with the testator's dispositions any more than is necessary to ensure that the applicant does have adequate provision for his or her proper maintenance, education and advancement in life. The trial judge stated that Francesca needed about $20,000 to meet present needs and carry her through to her first degree, in a position to pay her HECS and loan obligations and pressing needs and start her working life free from debt. He went on to say that she should also have a capital amount which will assist her to become established in life, and it appears that he took the view that $70,000 was such an appropriate capital amount. However, he gave no further explanation of how he arrived at this figure of $70,000.
90 The trial judge's view is supported by the consideration that Francesca has minimal assets, and has no prospect of assistance, either in the near future or the medium term future, from any close relative. Further, community expectations may be troubled by the possibility that, if no order is made in Francesca's favour, the whole of Mr Sayer's estate will eventually find its way to Mrs Sayer's children, to the exclusion of the testator's descendants, in circumstances where those descendants would probably have no claim on Mrs Sayer's estate. However, this consideration does not significantly affect what would now be adequate provision for Francesca's proper maintenance, etc.
91 Further, I am not certain that I would identify repayment of HECS obligations as a pressing need of Francesca. The applicable law, as I understand it, requires repayment of these amounts out of income, once a threshold of $22,000 per annum is passed, on a sliding scale beginning at 3% and going to a maximum of 6% where the gross income reaches $39,500 per annum. Interest on these amounts, as I understand it, is charged only to the extent necessary to equal CPI, so that there is no undue disadvantage in repayment being delayed until the income threshold is crossed. Another important consideration is that, whereas Francesca may reasonably be expected to be able to improve her situation as time passes, it is likely that Mrs Sayer will not be able to improve hers, so that whatever provision she receives from this estate will need to be adequate for her proper maintenance for the remainder of her life: having regard to her age, health and circumstances, it would not be reasonable to expect that she would work in the future.
92 In all the circumstances of this case, my opinion is that $90,000 is too high a figure. It seems to me that, if Francesca had effectually been given (say) $25,000 by the testator, there would have been no chance whatsoever that a court would have treated such provision as inadequate. While I believe that Francesca had a legitimate claim and a need, which could properly be quantified in such an amount as this, and to that extent be allowed to reduce Mrs Sayer's provision, it seems clear to me that Mrs Sayer's claim to the difference of $65,000 is stronger. The question is, should I give such weight to this evaluation, which may objectively speaking be no better than the trial judge's evaluation, as to conclude that the trial judge's discretion must have miscarried. It is appropriate to give more than lip service to the statement in Golosky, to which I have referred.
93 However, while I must recognise the possibility discussed in Golosky, I still must ultimately act upon my own opinion; which is that $90,000 is so excessive as to indicate that the trial judge's discretion has somehow miscarried. However, that view does not I believe mean that I must totally disregard the trial judge's other opinions and findings; and in my opinion, I can and should still give weight to the trial judge's opinions concerning the sufficiency of the estate to provide for Mrs Sayer after provision has been made for Francesca. Although it could be suggested that this opinion is itself vitiated by the trial judge evaluating Francesca's claim too highly, I take the view that the trial judge is not shown to have been in error in his assessment that Francesca's claim was a strong one, and should not be entirely defeated by Mrs Sayer's claim to be able to remain in her house.
94 In exercising its own discretion, this Court will consider relevant changes in circumstances since the original hearing; but I do not believe the recent affidavits of Mrs Sayer and Francesca materially affect the position. Mrs Sayer's recent evidence about the availability and price of accommodation comparable to the Queen Street house does not displace the trial judge's opinion to the effect that less expensive accommodation would be appropriate for her needs. In my opinion, provision of $25,000 to Francesca would be appropriate. It would give her the choice of repaying her education debts and starting her working life free from debt; or alternatively, if she considers other uses of that money more pressing, she could apply it to those uses.
95 For those reasons, I would allow the appeal to the extent of reducing the provision for Francesca from $90,000 to $25,000. I would not disturb the costs order below. I would order that Francesca pay Mrs Sayer's costs of the appeal, and have a certificate under the Suitors' Fund Act. Having regard to the relatively small provision for Francesca, I would be minded to make some adjustment in her favour to the extent that the certificate does not cover all the costs of the appeal.
96 As regards Mrs Garbutt's appeal, I accept that need was shown, and I accept that the trial judge's decision proceeded on the basis that Mrs Garbutt had been left without adequate provision for her proper maintenance.
97 Turning to the second stage, the discretionary decision, in my opinion it was appropriate for the trial judge to take into account Mrs Garbutt's lack of contribution to the welfare and assets of the testator, the strength of competing claims, and her own irresponsibility - even recognising that the illness which greatly contributed to that irresponsibility can in no way be considered her fault.
98 Taking these matters into account, in my opinion no ground is shown to disturb the trial judge's exercise of discretion. I would therefore dismiss the appeal in this case, with costs.
99 DAVIES AJA: I agree with Sheller JA.
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