Spata v Tumino

ee [2017] NSWCA 305 Texts Cited: New South Wales Law Reform Commission, Report on the Testator's Family Maintenance and Guardianship of Infants Act 1916 (Report 28, 1977) New South Wales Law Reform Commission, Uniform Succession Law: Family Provision (Report 110, May 2005) Queensland Law Reform Commission, Report to the Standing Committee of Attorneys General on Family Provision (Paper 28, December 1997) Category: Principal judgment Parties: Giovanni Spata (Appellant)

Franco Tumino (First Respondent) Enza Liberatore (Second Respondent) Representation: Counsel: JJ Loofs SC / J Brown (Appellant) J Armfield / A Katsoulas (Respondents)

Solicitors: Hunter Lawyers (Appellant) George Khoury & Co (Respondents) File Number(s): 2017/86435 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity - Family Provision List Citation: [2017] NSWSC 111 Date of Decision: 24 February 2017 Before: Brereton J File Number(s): 2015/087274

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

headnote [This headnote is not to be read as part of the judgment] A dispute arose concerning the estate of the late Gina Spata. The appellant is the deceased's adult stepson and the respondents are the deceased's nephew and niece. Probate of the deceased's will was granted to the respondents, to whom the deceased left her whole estate in equal shares as tenants in common. The appellant filed a summons seeking an order that he was eligible for provision under the Succession Act 2006 (NSW) in respect of the deceased's estate. The primary judge rejected the appellant's claim on the basis that "dependency" on the deceased had not been established. The primary judge found that if "dependency" had been established, there were circumstances warranting the appellant's claim and that inadequate provision for his proper maintenance and advancement had been made. An award of $300,000 from the deceased's estate would have been made. The issues on appeal were: (i) whether the scope and meaning of the term "wholly or partially dependent" used by the primary judge was narrower than that provided by s 57(1)(e) of the Succession Act; and (ii) whether on the facts of this case the appellant was "wholly or partly dependent" on the testator. The respondents cross-appealed. The issues there were: (iii) whether the primary judge erred in finding that there were factors which warranted the making of the appellant's claim; and (iv) whether the primary judge erred in finding that had the appellant been an eligible person he should have received provision from the deceased's estate, or alternatively if he did receive provision, an amount of $300,000 was an inappropriate sum. The Court, (Macfarlan and Payne JJA, Sackville AJA) dismissing the appeal and the cross-appeal, held: In relation to issue (i), per Payne JA at [53]-[72], Macfarlan JA agreeing at [1], Sackville AJA agreeing at [132], [135]-[139]: The word "dependent" is an ordinary English word and the question of whether a person is wholly or partly dependent on another is a question of fact. The correct approach to construction of a provision such as s 57(1)(e) of the Succession Act is that the court should be astute not to place a restricted construction upon the terms of such a law. The primary judge erred by regarding the issue of the appellant's dependency on the deceased as determined by the fact that the deceased was not a co-owner of the property in which she and the appellant lived for a period. It was necessary to have regard to the whole of the relationship between the appellant and the deceased. Succession Act 2006 (NSW) s 57(1)(e); Page v Page [2017] NSWCA 141; Petrohilos v Hunter (1991) 25 NSWLR 343; Aafjes v Kearney (1976) 180 CLR 199; Tobin v Ezekiel; Ball v Newey (1988) 13 NSWLR 489 applied. Clinch v Swift 13 October 1988, unreported; Shaw v Lambert 9 October 1987, unreported not followed. In relation to issue (ii), per Sackville AJA at [143]-[152], (Macfarlan JA agreeing at [1], Payne JA agreeing at [73]-[88]): The appellant did not discharge the burden of establishing that he was wholly or partly dependent on the deceased for the provision of accommodation. The appellant did not adduce credible evidence demonstrating that the deceased encouraged the appellant to remain at the property or actively supported or participated in a decision to enable him to stay at the property for a prolonged period. Accordingly, the primary judge did not err in ordering the summons be dismissed. In relation to issue (iii), per Payne JA at [94]-[104], (Macfarlan JA agreeing at [1], Sackville AJA agreeing at [153]): The primary judge was correct in the contingent finding that there were circumstances warranting the making of the claim and that all of the relevant circumstances, including representations made by the testator that she would make provision in her will for the appellant, created a moral obligation on the part of the testator to make provision for the appellant in her will. Succession Act 2006 (NSW) s 59(1)(b); McKenzie v Topp [2004] VSC 90; Lodin v Lodin [2017] NSWCA 327; Chapple v Wilcox (2014) 87 NSWLR 646 applied. In relation to issue (iv), per Payne JA at [110]-[128], (Macfarlan JA agreeing at [1], Sackville AJA agreeing at [153]): The primary judge was correct in the contingent finding that adequate provision for the proper maintenance, education or advancement in life of the appellant had not been made from the deceased's estate. The competing claims of the respondents were not such as to require the appellant's claim to be disregarded or discounted. The primary judge made a broad evaluative judgment in determining the amount of adequate provision. While reasonable minds may differ about the amount of provision, the respondents did not demonstrate that the primary judge erred in arriving at the figure of $300,000. Succession Act 2006 (NSW) s 59(1)(c); Aubrey v Kain [2014] NSWSC 15; Vigolo v Bostin (2005) 221 CLR 191; Singer v Berghouse (1994) 181 CLR 201; Andrew v Andrew (2012) 81 NSWLR 656; Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253 considered.

Judgment

1. MACFARLAN JA: I agree with the judgment of Payne JA and also with that of Sackville AJA.
2. PAYNE JA: This is an appeal from a decision rejecting the appellant's eligibility for provision out of the estate of the late Gina Spata under the Succession Act 2006 (NSW): Spata v Tumino; Estate of Gina Spata [2017] NSWSC 111. Gina Spata died on 29 March 2014, aged 77. She was predeceased by her husband, Rosario (Ross) Spata, who died on 7 February 2010.
3. The appellant, Giovanni (John) Spata, is the deceased's stepson. The respondents, Franco Tumino and Enza Liberatore, are the deceased's nephew and niece. Without intending any disrespect, I will refer to the deceased as Gina, her late husband as Ross, the appellant as John and the respondents as Franco and Enza respectively.
4. On 17 June 2014, probate of Gina's will was granted to Franco and Enza, to whom she left her whole estate in equal shares as tenants in common.
5. On 23 March 2015, John filed a summons seeking an order under the Succession Act in respect of Gina's estate. The primary judge rejected the appellant's claim on the basis that John had not established that he was a person who was, at any particular time, wholly or partly dependent on the deceased, as required by s 57(1)(e) of the Succession Act. John was not eligible under s 57(1)(e) of the Succession Act as "dependency", either wholly or partially, upon Gina had not been established. The primary judge found that if he were wrong about "dependency", there were circumstances warranting the making of the claim by John and that inadequate provision for his proper maintenance and advancement had been made. Had John been eligible, the primary judge would have awarded him $300,000 from Gina's estate.
6. John appeals against the primary judge's decision. Franco and Enza cross-appeal against the contingent findings of circumstances warranting the making of the claim, the finding of inadequate provision and the quantum of the award.

Relevant facts

1. The facts found by the primary judge were not controversial on the appeal. Gina was born on 1 January 1937. Ross, the father of John, was born on 21 September 1926.
2. In about 1953, Ross married Nancy Barone. They had three children together: Salvatore (Sam) born in 1954; John born on 11 September 1955, and Roberto (Robert) born in 1957. Nancy died in 1973.
3. From at least the 1960s, Ross and his family occupied 306 West Botany Street Rockdale. By 1973 Ross had purchased the adjoining property at 304 West Botany Street Rockdale, and in the mid-1970s he purchased 24 Platts Avenue Belmore.
4. In June 1979, John married Valerie. Following their marriage John continued to reside in 306 West Botany Street with Valerie. They lived at 306 West Botany Street until the mid-1980s, when they moved to rented premises and subsequently purchased their own property.
5. On 8 March 1980, Gina and Ross were married. At that time, Gina owned a 5/6th interest in 2/59 Tebbutt Street Leichhardt, as tenant-in-common with her sister Giovanna Tumino, who owned the remaining 1/6th.
6. Following their marriage, Ross and Gina initially resided in 306 West Botany Street, together with John and Valerie. In about October 1980, Ross and Gina moved (with Robert) to Gina's flat in 2/59 Tebbutt Street Leichhardt, leaving John and Valerie occupying 306 West Botany Street. In December 1980, Robert married Marie and moved out of 2/59 Tebbutt Street.
7. In about 1982, Ross, who was employed by Schweppes at Alexandria as a fitter, retired as a result of a work injury. He received a compensation payment of approximately $40,000 which he used to purchase a motor vehicle and to fund his retirement.
8. In November 1982, Ross purchased Gina's sister's 1/6th interest in 2/59 Tebbutt Street.
9. Gina retired in 1988. Prior to that she was in full-time employment with AWA at Strathfield. At that time, Ross and Gina moved from Tebbutt Street to 24 Platts Avenue Belmore, which had been renovated over the preceding eight years. John and his brothers significantly contributed to the acquisition, conservation and improvement of Platts Avenue.
10. In 1989 or 1990, Ross transferred ownership of 306 West Botany Street to Robert.
11. John and Valerie separated in September 1995 and their marriage was dissolved in 2000. The primary judge found that John resided with Ross and Gina, at 24 Platts Avenue, for "a few years" after his separation. As will become apparent, the primary judge accepted evidence from Sam that John was invited to live at 24 Platts Avenue after his separation from Valerie by both Ross and Gina.

Primary judgment

1. The question of whether John was an "eligible person" pursuant to s 57(1)(e) of the Succession Act turns on whether John was "wholly or partly dependent" on Gina at any time.
2. John advanced two grounds for dependence upon Gina before the primary judge: 1. dependence upon Gina for accommodation; and 2. dependence upon Gina for the provision of domestic services and the supply of food whilst he resided with her in the same household.
3. The primary judge rejected both aspects of the claim of dependence. The primary judge found that John was a member of the household at 306 West Botany Street in 1980 (for a few months) and at 24 Platts Avenue from 1995 (for a few years), whilst Gina was a member of that household.
4. The primary judge, however, rejected the appellant's claim on the basis that eligibility under s 57(1)(e) of the Succession Act was not made out. His Honour held that "dependency", either wholly or partially, upon the deceased could not be established.
5. With respect to accommodation, the primary judge found that it could not be said that John was dependent upon Gina, as distinct from Ross, for accommodation. Ross was the registered proprietor of both 306 West Botany Street in 1980 and 24 Platts Avenue at all relevant times. The primary judge found that, in truth, Gina and John were both dependent upon Ross for accommodation.
6. With respect to the provision of domestic services, the primary judge found that John was not dependent on Gina for domestic services during either period they resided in the same household. The primary judge described the evidence of dependence given by John on these issues as relating to trivial assistance. In relation to the provision of food, the primary judge was not satisfied that Gina provided John's food and household supplies during the second period.
7. The primary judge was satisfied that had dependency been established, there were sufficient factors warranting the making of an application under s 59 of the Succession Act. The primary judge found that John, if eligible, would only have been so under category (e) of the definition in s 57(1), but that there were factors which gave John the status of a person who would generally be regarded as a natural object of testamentary recognition by the deceased: Re Fulop deceased; Fulop v Public Trustee (1987) 8 NSWLR 679 at 681E (per McLelland J); Churton v Christian (1988) 13 NSWLR 241 at 242G (per Hope JA), 244F (per Mahoney JA), 252A-E (per Priestley JA).

Notice of appeal

1. The appellant's notice of appeal dated 22 May 2017 raised the following issues: 1. whether the primary judge erred in finding that the appellant was not "wholly or partially dependent" upon the deceased and thus not an eligible person pursuant to s 57(1)(e) of the Succession Act (grounds 1 and 2); and 2. whether the primary judge erred in ordering the summons be dismissed rather than making an order that the appellant receive provision from the deceased's estate in the sum of $300,000 as adequate provision (ground 3).

Notice of cross-appeal

1. The notice of cross-appeal raised the following grounds: 1. the primary judge erred in finding that there were factors which warranted the making of the appellant's claim (ground 1); 2. the primary judge erred in finding the deed of family arrangement did not extinguish any obligation which the deceased may have owed to the appellant (ground 2); 3. the primary judge erred in holding the competing claims of the respondents were not such as to require the appellant's claim to be disregarded or discounted (ground 3); 4. the primary judge erred in finding that had the appellant been an eligible person he should have received provision from the deceased's estate, or alternatively if he did receive provision, an amount of $300,000 was an inappropriate sum (ground 4); and 5. the primary judge erred in finding that the deceased was impressed with a moral obligation to make provision for the appellant and his brothers (ground 5).
2. Because the respondent chose to proceed by cross-appeal it is necessary to address that topic even in the event that the appeal fails.

Appellant's submissions

1. The primary judge described the legal test for "dependency" at [59]-[67] of the judgment in a way which was not criticised by the appellant. The subject of attack was the reliance by the primary judge in applying that test upon two decisions of Young J in Clinch v Swift 13 October 1988, unreported and Shaw v Lambert 9 October 1987, unreported.
2. The appellant submitted that the finding of dependency by the primary judge was in error in that either: 1. the scope and meaning of the term "wholly or partially dependent" used by the primary judge was narrower than that provided in the statutory context of s 57(1)(e); or 2. the primary judge took into account irrelevant factors, or failed to take into account relevant factors, in the application of the dependency test.
3. The appellant submitted that the dependency test was not limited merely to a consideration of legal ownership and that the primary judge erred in treating as determinative the legal ownership of the relevant properties by Ross. The appellant submitted that the primary judge failed to apply authority to the effect that a context specific assessment of the relationship between the relevant parties is necessary in order to determine whether dependency should be found.
4. The appellant submitted that an assessment of the actual relationship between the parties was not given weight by the primary judge. That relationship was illuminated by the joint invitation made by Gina and Ross for John to live with them at 24 Platts Avenue, which was acted upon. The appellant, while accepting that the evidence of dependency before the primary judge was narrow, submitted that the invitation by Gina (which was acted upon) was direct, public and made in the presence of Ross.
5. The appellant submitted that Gina was in a position of critical importance when it came to determining who might live in the matrimonial home because: 1. she was Ross' wife and it should be inferred that the views of a spouse are material to if not determinative of the question as to who might reside in the matrimonial home - irrespective of ownership; and 2. in considering the consequences of a significant disagreement, Gina ultimately had the ability to bring the relationship to an end.
6. The appellant placed considerable reliance on the decision in Ball v Newey (1988) 13 NSWLR 489 which considered the eligibility requirements under the former s 57. The appellant also relied upon the decision in Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285, in particular the remarks made by Meagher JA at [109]-[111] with respect to the dependency test: "[109] It is also necessary to say something about the primary judge's treatment of Albert's dependency on his parents for accommodation. Dependency in this context means actual reliance on someone else for the total or partial satisfaction of some need. It is not limited to purely financial or material matters: Petrohilos v Hunter (1991) 25 NSWLR 343 at 346-347. Nor is it restricted to requirements of basic necessity and the standard or measure of satisfaction of any need is not to be determined by reference to any minimum or subsistence standard. In each case, the measure is the standard set by the parties: Ball v Newey (1988) 13 NSWLR 489 at 492. [110] Dependency may exist irrespective of whether the dependent person is financially or physically able to support himself or herself: Ball v Newey at 492. However, the reasons for and circumstances of the dependency are relevant when considering what claims the dependent has on the bounty of the testator. Whilst Albert lived with his parents so as to give rise to an expectation that they may make some provision in their wills for his accommodation, he was not financially dependent on them for accommodation. Nor was he physically or emotionally incapable of living apart from his parents or on his own and away from the Beach Road property. [111] The primary judge did not err in regarding Albert as being dependent on Lily and Abraham for accommodation…"

Respondents' submissions

1. The respondents submitted that no dependency upon Gina for accommodation could arise in circumstances where Gina was not the registered proprietor of either 306 Botany Street or 24 Platts Avenue. This is because the right to permit or prevent John to reside in each property was solely exercisable by Ross and not by Gina.
2. The respondents submitted that the fact that Gina may have expressly or impliedly acquiesced in Ross permitting John to reside at the property cannot be elevated into John being dependent upon Gina for accommodation.
3. The respondents submitted that the concept of dependency consistent in the Succession Act "may not permit the widest reading which the fair meaning of the language will allow. This is because a wide reading of the legislation may impose a burden on others by restricting their testamentary freedom." The respondents submitted that in Page v Page [2017] NSWCA 14, this Court rejected a submission that a younger sibling was partly dependent on an elder sibling who, at the request of their mother, ensured the home was secure and supervised his younger sibling. It was submitted that the present was an analogous case.
4. Finally, the respondents submitted that to construe the concept of "dependency" in the way contended for by the appellant would lead to absurd results and impose an unreasonable restriction on testamentary freedom.

The test to be applied on this appeal

1. In Page v Page Leeming JA (with whom Basten JA agreed on this point) held that in determining the question of "dependency" in s 57(1)(e) of the Succession Act, it was likely that the power of this Court to intervene was not limited by the considerations identified in relation to discretionary decisions by House v King (1936) 55 CLR 499; [1936] HCA 40, as explained in Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 (at 518 and 520 per Mason and Deane JJ) when addressing a broad evaluative decision. Rather, it was likely that the issue of dependency is determined by an appellate court determining for itself the "facts as well as the law" in accordance with Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 at 552 (per Gibbs ACJ and Jacobs and Murphy JJ).
2. The reasoning of Leeming JA about the role of this Court when addressing the question of dependency under s 57(1)(e) of the Succession Act is contained at [35]-[41]. His Honour concluded that the principles in House v The King are likely inapplicable to review of a finding of partial dependency within the meaning of that section and that nothing in Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 requires a different conclusion. I regard Leeming JA's analysis on this question as compelling. Nothing in the subsequent decision of this Court in Yee v Yee [2017] NSWCA 305 affects Leeming JA's conclusion as the question of dependency was not in issue in Yee: see [94]-[96] and [108].
3. The appellant submitted that the absence of dispute about the relevant facts in this case means that there is no practical difference in the outcome here regardless of which test is applied. That may be so, however, I will proceed on the basis that the issue of dependency is determined by this Court determining for itself the facts as well as the law in accordance with Warren v Coombes.

The construction of s 57(1)(e) of the Succession Act

1. Section 57 of the Succession Act sets out those who are "eligible" to apply for a family provision order. In the present case, John submitted that he was an eligible person falling within s 57(1)(e): "57 Eligible persons (cf FPA 6 (1), definition of "eligible person") (1) The following are eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person: … (e) a person: (i) who was, at any particular time, wholly or partly dependent on the deceased person, and (ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member, …."
2. Section 59 of the Succession Act provides the power of the Court to make a family provision order: "59 When family provision order may be made (cf FPA 7-9) (1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: (a) the person in whose favour the order is to be made is an eligible person, and (b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of eligible person in section 57 - having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both. (2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made. Note. Property that may be the subject of a family provision order is set out in Division 3. This Part applies to property, including property that is designated as notional estate (see section 73). Part 3.3 sets out property that may be designated as part of the notional estate of a deceased person for the purpose of making a family provision order. (3) The Court may make a family provision order in favour of an eligible person in whose favour a family provision order has previously been made in relation to the same estate only if: (a) the Court is satisfied that there has been a substantial detrimental change in the eligible person's circumstances since a family provision order was last made in favour of the person, or (b) at the time that a family provision order was last made in favour of the eligible person: (i) the evidence about the nature and extent of the deceased person's estate (including any property that was, or could have been, designated as notional estate of the deceased person) did not reveal the existence of certain property (the undisclosed property), and (ii) the Court would have considered the deceased person's estate (including any property that was, or could have been, designated as notional estate of the deceased person) to be substantially greater in value if the evidence had revealed the existence of the undisclosed property, and (iii) the Court would not have made the previous family provision order if the evidence had revealed the existence of the undisclosed property. (4) The Court may make a family provision order in favour of an eligible person whose application for a family provision order in relation to the same estate was previously refused only if, at the time of refusal, there existed all the circumstances regarding undisclosed property described in subsection (3) (b)…."

Grounds 1 and 2 of the cross-appeal - factors warranting the making of an application

Respondents' submissions on the cross-appeal

1. The respondents submitted that the primary judge erred in finding that there were factors which warranted the making of John's application.
2. The respondents submitted that John was not a natural object of testamentary recognition by Gina. First, John had already received substantial provision from Ross' estate, namely $200,000. Secondly, John and Gina did not enjoy a relationship akin to parent and child. Thirdly, there was no provision in the Deed of Family Arrangement recognising any obligation to make provision. The Deed evinced an intention, the respondents submitted, to bring about a "clean break between them". Finally, the representations made by Ross that the properties were for his sons were presumably known to the parties at the time the Deed was entered into. In those circumstances, it was submitted that the representations did not give rise to a continuing obligation upon Gina to leave an interest in her estate to John. If there had been any intention to make provision for John, one would have expected a term to that effect to be included in the Deed.

Appellant's submissions on the cross-appeal

1. The appellant submitted that the "factors warranting" findings made by the primary judge were correct. The appellant submitted that the respondents' primary contention that the Deed evinced an intention on the part of the parties to it to bring about a clean break between them was considered and rejected by the primary judge.
2. The appellant submitted that the lack of a release in respect of the deceased's estate was relied upon by the primary judge to support an inference that the parties had not intended to sever the deceased's moral obligation. Such an inference was open on the evidence.

Consideration of factors warranting the making of a claim

1. The weight of authority in this Court is that a determination that there are factors warranting the making of a claim within the meaning of s 59(1)(b) of the Succession Act is the equivalent of a discretionary decision and review in this Court is subject to the restraints identified in House v The King and restated in Norbis v Norbis: Sassoon v Rose [2013] NSWCA 220 at [12] (per Meagher JA); Lodin at [130]-[132] (per Sackville AJA); Yee v Yee [2017] NSWCA 305 at [108]-[109] (per McColl JA). The parties on this appeal did not submit that any different approach should be adopted.
2. In Lodin, Sackville AJA gave close consideration to the requirement to demonstrate factors warranting the making of a claim in s 59(1)(b) of the Act. His Honour said at [106]-[107]; "[106] In Re Fulop, McLelland J construed s 9(1) of the FP Act, the forerunner to s 59(1)(b) of the Succession Act. His Honour stated the following propositions: (i) The question posed by s 9(1) of the FP Act cannot be resolved until all admissible evidence relevant to the issue of whether there are factors warranting the application has been tendered. Despite s 9(1) using language that apparently contemplates determining the question as a preliminary issue, ordinarily it is impracticable to isolate the evidence bearing on that issue from other evidence in the case. (ii) Section 9(1) is premised on a distinction between "factors which warrant the making of the application" and the circumstances which justify the making of the family provision order. Otherwise the subsection would be pointless. This means that in a particular case an applicant might establish that there are factors warranting the application, yet the court might decline to make a family provision order in the applicant's favour. (iii) The legislation also requires a distinction to be drawn between "eligible applicants" who do not have to satisfy s 9(1) (a spouse, de facto partner or child of the deceased) and those who do (such as a former spouse or grandchild). The difference is that the former are generally regarded as natural objects of testamentary recognition by a deceased, while the latter are not generally so regarded. Accordingly, the "factors" referred to in s 9(1) of the FP Act are those that give an eligible person in the second category "the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased". [107] These propositions have been accepted in subsequent cases arising under the FP Act, including cases in which a former spouse of the deceased claimed a family provision order. They have also been accepted as applicable to a claim by a former spouse under the Succession Act. Thus in Sassoon v Rose, Meagher JA said that the trial Judge in that case correctly identified the principles stated in Re Fulop as the basis for determining whether there were factors warranting the making of the application."

Grounds 3 - 5 of the cross appeal - an order for provision should not have been made and, if made, should have been in a lesser amount

Respondents' submissions

1. The respondents submitted that further consideration should have been given by the primary judge to the competing claims of Franco and Enza who had a very close relationship with Gina and who were her closest blood relations. Gina had no children of her own and was unmarried for many years. The evidence demonstrated that the respondents were regarded by Gina as if they were her own children.
2. The respondents contended that if the Court was of the view that an order for provision should be made in favour of John, the sum of $300,000, in the context of an estate of this size, is excessive and well beyond the range of a proper exercise of discretion. The respondents relied upon the decision of Aubrey v Kain [2014] NSWSC 15 at [190] as establishing "guidelines" about community expectations in relation to adult children. It was submitted that the amount of provision here ordered exceeded those "guidelines".

Appellant's submissions

1. The appellant submitted that no complaint is made as to the findings of the Court below regarding the assets of the respondents. The appellant further submitted that no complaint is made with respect to the finding that Franco had "since 2013…received a benefaction of $300,000" from the deceased, which significantly exceeded the provision made for John.
2. With respect to the moral claim owed by Gina to John, the appellant submitted that the primary judge carefully considered that claim and his reasoning was entirely orthodox.
3. The claim arose from John's legitimate expectation of inheritance from his father, which in turn arose from his contributions to the properties comprising his estate, and his father's representations that John was to inherit, as acknowledged by Gina. Further, Gina made later representations that she would honour Ross' wishes in this regard.

Consideration of grounds 3 - 5 of the cross-appeal

1. There is no doubt that the question of whether "adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person" within the meaning of s 59(1)(c) of the Succession Act is the equivalent of a discretionary decision and review in this Court of the decision of the primary judge is subject to the restraints identified in House v The King as restated in Norbis v Norbis.
2. Whether a two-stage analysis is applicable to claims for family provision orders under Ch 3 of the Succession Act has been the subject of significant debate in this Court, but was not addressed by the parties here. It is undesirable to address that question in the absence of any submission that the outcome of the debate could make a difference in this case.
3. In Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [74] Gummow and Hayne JJ cited the plurality in Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40, for the proposition that: "[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the Court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards."
4. What is "proper" requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties' financial circumstances. The Court's assessment of what is proper maintenance, education and advancement in life must be made at the time when the Court is considering the application. This does not, however, mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate.
5. In Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 at [12] Allsop P stated: "Accepted and acceptable social and community values permeate or underpin many, if not most, of the individual factors in s 60(2) and are embedded in the words of s 59, in particular 'proper' and 'ought'. That such values may be contestable from time to time in the assessment of an individual circumstance, or that they may change over time as society changes and grows can be readily accepted."
6. Allsop P acknowledged that orders made by reference to "perceived prevailing community standards of what is right and appropriate" referred to an imprecise, variable and contestable standard. See also White J in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [125]-[127].

Conclusion and orders

1. For the foregoing reasons I would dismiss the appeal and the cross-appeal. Whilst the cross-appeal was essentially defensive, considerable time was taken in addressing the issues raised in the written and oral submissions of the parties. That should be reflected in an adjustment in the award of costs. I propose the following orders: 1. appeal dismissed; 2. cross-appeal dismissed; 3. order that the appellant pay 70% of the costs of the respondents of the appeal and the cross-appeal.
2. SACKVILLE AJA: I have had the advantage of reading Payne JA's judgment in draft. I am grateful for his Honour's account of the facts and of the issues arising on the appeal and cross-appeal.
3. As Payne JA explains, the critical issue on the appeal is whether the primary Judge erred in finding that the appellant (John [1] ) had not established that he was a person: "who was, at any particular time, wholly or partly dependent on the deceased person", within the meaning of s 57(1)(e)(i) of the Succession Act 2006 (NSW) (Succession Act).
4. I agree with Payne JA's reasoning on this issue. In particular, I agree that what his Honour describes as the "traditional test" for determining whether a claimant was "wholly or partly dependent on the deceased person" should be applied in preference to the more limited construction supported by the respondents. [2]
5. I also agree with Payne JA that the primary Judge's finding that John was not wholly or partly dependent on Gina for accommodation was affected by an error. The primary Judge found that John had lived in the same house as his father (Ross) and his stepmother (Gina) "for a period of at least a couple of years following his [John's] separation from Valerie [John's wife] in 1995". [3] His Honour considered that although John was living in the same household as Ross and Gina, he could not be said to be wholly or partly dependent on Gina for his accommodation since Ross was the sole registered proprietor of the house. [4] The error in this approach is that the primary Judge did not take into account all of the relevant circumstances to determine whether, as a matter of fact, John was dependent upon Gina for the provision of accommodation during the whole or at least a substantial part of the period during which he lived at the house. [5]
6. Notwithstanding this error, in my respectful opinion this Court should not interfere with the primary Judge's ultimate finding on the question of dependency. The facts found by his Honour and the evidence as a whole do not in my view justify a finding that John was wholly or partly dependent on Gina for the provision of accommodation.

The issue of construction

1. Payne JA has referred to the authorities which have consistently applied the "traditional" test for determining whether a claimant was wholly or partly dependent on the deceased person. I do not repeat his Honour's analysis.
2. The respondents relied on observations of Basten JA in Page v Page [6] for the proposition that s 57(1)(e)(i) of the Succession Act, when read in context, posits a more limited test of dependency than the traditional test. Basten JA said that the form of dependency contemplated by s 57(1)(e)(i) is that: [7] "which gives rise to a statutory obligation to make provision from the deceased person's estate for the proper maintenance, education or advancement in life of the dependant".
3. Apart from the matters identified by Payne JA, there is a textual difficulty with the more limited construction of s 57(1)(e)(i) of the Succession Act advanced on behalf of the respondents. Section 57(1) specifies six categories of "eligible persons" who may apply to the Court for a family provision order. A claimant who relies on s 57(1)(e) to be an eligible person must satisfy two criteria. He or she must be a person: "(i) who was, at any particular time, wholly or partly dependent on the deceased person, and (ii) who … was, at that particular time or at any other time, a member of the household of which the deceased person was a member".
4. A finding that a claimant was wholly or partly dependent on the deceased person does not establish that the claimant is entitled to a family provision order. Even if the claimant satisfies both requirements in s 57(1)(e) of the Succession Act, he or she must also establish that:

• there are circumstances warranting the making of the application (s 59(1)(b)); and
• the deceased person has not made adequate provision for the proper maintenance, education or advancement in life of the claimant (s 59(1)(c)).

1. In short, as Payne JA points out, a finding of dependency is merely the first step in determining whether the circumstances give rise to a statutory obligation in the deceased person to make provisions out of his or her estate for the proper maintenance, education or advancement in life of the claimant. To construe s 57(1)(e)(i) as limited only to dependency of a kind that gives rise to a statutory obligation to make provision for the claimant tends to conflate the two quite distinct preconditions for the making of a family provision order. A claimant who establishes that he or she is an eligible person by reason of dependency on the deceased (and membership of the same household) may or may not be a person to whom the deceased owed an obligation to make provision by way of testamentary disposition. The concept of dependency in s 57(1)(e)(i) of the Succession Act is not to be limited by incorporating criteria that are only to be considered once the claimant establishes that he or she is entitled to apply for a family provision order.

Appellate review

1. In Page v Page [8] two members of this Court (Leeming JA, with whom Basten JA agreed) expressed the view that review by this Court of a finding of dependency or non-dependency is not confined by the principles governing discretionary decisions stated in House v The King. [9] As the third member of the Court, I did not find it necessary to express an opinion on the question. [10] However, I agree with Payne JA that the reasoning of Leeming JA is persuasive and that appellate review of a finding of dependency is not confined by the principles stated in House v King.
2. But the fact that appellate review is to be conducted in accordance with the principles stated in Warren v Coombes [11] does not obviate the need for an appellant to demonstrate error in the finding made by the primary Judge. [12] What is necessary to establish error depends on the nature of the findings or conclusions reached by the primary Judge. [13] As Allsop P observed in DAO v The Queen: [14] "The degree of intensity of review on appeal of any particular question depends upon a number of things - the terms of the statutory provision providing for appellate review, the nature of the question under review, the need to discern error, the respective advantages and disadvantages of the court below and the appeal court and, implicitly, a degree of legal policy (though the last matter is rarely explicated). I strongly agree with the Chief Justice that labels are apt to mislead in this context, most particularly the word "discretion" and the phrase 'House v The King review' as an alternative to 'Warren v Coombes review' as the exhaustive universe of alternatives (which they are not)."
3. Where a finding depends on weighing a range of factors on which reasonable minds might differ, it is not necessarily enough to demonstrate error on the part of the trier of fact for the appellate court to prefer a different outcome. [15] While a finding of dependency perhaps does not involve a range of legitimate choices as wide as some other evaluative factual issues, it does require a number of considerations to be taken into account and, to this extent, involves a value judgment. Depending on the circumstances, a finding of dependency (or non-dependency) may be finely balanced and may not admit of a single correct answer.

Error has been shown

1. There is no occasion in this case to consider further the precise scope of appellate review since, as I have noted, the primary Judge's finding was affected by an error of principle. His Honour regarded the issue of John's dependency on Gina for accommodation as foreclosed by the fact that Ross was the sole registered proprietor of the property at Platts Avenue, Belmore (Belmore Property) in which John lived for at least two years after his separation from Valerie. The established principles explained by Payne JA require the question of dependency to be determined as a matter of fact by reference to the whole of the relationship between the claimant and the deceased person. [16] Thus it is necessary to consider whether John relied on Gina for the total or partial satisfaction of his need for accommodation. [17] The fact that Gina was not a co-owner of the house is only one factor to be considered in determining whether John has established that he was wholly or partly dependent on Gina for accommodation. It is not decisive.

The evidence

1. Mr Loofs SC, who appeared with Mr Brown for John, submitted that John's dependency on Gina was established by the finding that Ross and Gina extended a joint invitation to John to live with them following his separation from Valerie. That finding rested on the primary Judge's acceptance of evidence given by Sam (John's older brother) of a conversation that occurred in 1996. [18] Sam's evidence was as follows: "In around 1996, John moved into the Belmore property. I was present for a conversation between John, [Gina] and [Ross] at Belmore at that time, in which we exchanged words to the following effect: John 'I've split up with Valerie. I am devastated.' [Gina] 'Don't worry, you can come and stay here.' [Ross] 'Yes, come and stay here.' At the meeting I noticed that John was crying and very emotional about his marriage breakup." The primary Judge also appears to have accepted Sam's evidence that on subsequent visits to the Belmore Property he observed that John occupied the second bedroom and that Gina prepared and served John's meals and washed his clothes.
2. Mr Loofs did not identify any other evidence which supported John's case on dependency, other than Gina's affidavit evidence in earlier proceedings that she and Ross generally had a happy marriage until Ross' death in 2010. Mr Loofs submitted that the subsistence of a generally happy marriage between Gina and John during that relevant period supported the inference that Gina was instrumental in permitting John to live at the Belmore Property and that John was therefore partly dependent on Gina for the provision of accommodation.
3. The Court's attention was not drawn to any evidence that explained the circumstances in which John was permitted to live in the Belmore Property, not merely for a short period following the breakdown of his marriage but for a period of at least two years. While the evidence shows that Gina participated in the decision to permit John to stay at the Belmore Property in the immediate aftermath of his separation from Valerie, the evidence does not address who made the decision to allow John to remain in occupation for a prolonged period. It is not clear, for example, whether Gina encouraged John to remain in the Belmore Property or whether she merely acquiesced in a decision made by Ross. It is also not clear whether Ross' ownership of the Belmore Property was or was not a significant factor in the decision (if there was one) to allow John to continue in occupation of the Belmore Property. There are a number of possibilities that seem not to have been explored in the evidence.

Other issues

1. If I had reached a different conclusion on the question of dependency, I would have agreed with Payne JA that the primary Judge was justified in finding that there were factors warranting the making of John's application. With some hesitation I would also have agreed that no error was shown in the primary Judge's contingent assessment that provision should be made from Gina's estate in favour of John in the sum of $300,000.

Orders

1. I agree with the orders proposed by Payne JA.

Endnotes

1. Like Payne JA, for convenience I shall refer to the parties and family members by their first names. No disrespect is intended.
2. See at [68**]-[72**] above.
3. Spata v Tumino; Estate of Gina Spata [2017] NSWSC 111 (Primary Judgment) at [58].
4. Primary Judgment at [69].
5. See at [143**]-[151**] below.
6. [2017] NSWCA 141.
7. Page v Page [2017] NSWCA 141 at [8].
8. [2017] NSWCA 141 at [21], [39]-[41].
9. (1936) 55 CLR 499; [1936] HCA 40.
10. [2017] NSWCA 141 at [92].
11. (1979) 142 CLR 531 at 552.
12. Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833 at [21], [25]-[28] (Allsop J, Drummond and Mansfield JJ agreeing).
13. Branir at [24]; Costa v Public Trustee [2008] NSWCA 223 at [14]-[19] (Hodgson JA); Gett v Tabet [2009] NSWCA 76; 254 ALR 504 at [10]-[20] per curiam, aff'd Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12.
14. (2011) 81 NSWLR 568; [2011] NSWCCA 63 at [88]. The reference to the Chief Justice is to the observations of Spigelman CJ at [51]-[52].
15. Sanderson as Liquidator of Sakr Nominees Pty Ltd (in liq) v Sakr (2017) 93 NSWLR 459; [2017] NSWCA 38 at [50] (Bathurst CJ; Beazley P, Gleeson JA, Barrett and Beach AJJA agreeing); DAO v The Queen at [90] (Allsop P).
16. Ball v Newey (1988) 13 NSWLR 489 at 491 (Samuels JA; Hope and Mahoney JJA agreeing).
17. Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [109] (Meagher JA; Basten and Campbell JJA agreeing).
18. Primary Judgment at [54].
19. Primary Judgment at [72].
20. Primary Judgment at [71]
21. Primary Judgment at [77].
22. Primary Judgment at [79].
23. McKenzie v Baddeley [1991] NSWCA 197 (Priestley JA; Hope AJA agreeing).

Amendments 15 February 2018 - Typographical errors in headnote, [53], [55], [68] and [89] amended. 01 March 2018 - Typographical error on coversheet amended. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 March 2018