Stollery v Stollery

Supreme Court of NSW|2015-12-08|Before: Stevenson J, Hallen J

Solicitors: Maurice Buckley C T Poole & Son (Plaintiff) Paul Bard Lawyers (Defendant) File Number(s): SC 2014/259204

Introduction

This is a claim for family provision under s 59 of the Succession Act 2006 (NSW) ("the Act") by Mr Garry Stollery ("Mr Stollery") in respect of the estate of his late father, Mr John Stollery (the "Deceased").
In my opinion the application should be dismissed. I am not satisfied, for the purposes of s 59(1)(c) of the Act, that the Deceased did not make adequate provision for the maintenance and advancement of his son. Mr Stollery's case thus fails to pass the "first stage" identified in Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 208-209 (as applied to cases under the Act: for example see Nowak v Beska [2013] NSWSC 166 per Hallen J at [113]). It follows that I have no jurisdiction to make an order for provision: for example Lajcarova v Todorov [2011] NSWSC 522 per Hallen AsJ (as his Honour then was) at [79].
A significant factor leading to this result is my conclusion that Mr Stollery has made no attempt to place before the Court an accurate statement of his financial position. In any event, Mr Stollery and the Deceased were estranged for almost a quarter of a century before the deceased died. In the circumstances, Mr Stollery has not satisfied me that the modest provision the Deceased made in his will for Mr Stollery is not adequate.

Background

The Deceased died on 9 September 2013, aged 76.
He was survived by: 1. his widow, Enid Stollery, who is aged 87; 2. Mr Stollery, who is aged 55; and 3. his other son Mark Stollery, who is aged 52.
When he died, the Deceased also had six grandchildren. They are the children of Mark and his wife, Dianne Stollery; Amanda who is aged 27, Sarah who is 26 and Grant who is 21; and the children of Mr Stollery and his then de facto wife Ms Lynette Keep, Lincoln who is 20, Curtis who is 18 and Andrew who is 16.
I will refer to these individuals by their first names. I do so for convenience, and without intending disrespect to any of them.
By his will dated 9 September 2013 (that is the day he died) the Deceased appointed Dianne as his executrix and: 1. gave to his widow, Enid, the right to reside in a property he owned at Bexley (which was the matrimonial home) for life together with the household chattels; and 2. upon determination of that right of residence gave: 1. a property in Cronulla ("unit 18") to Amanda; 2. another property in Cronulla ("unit 11") to Sarah; 3. the Bexley property to Grant; 4. a legacy of $10,000 each to Mark and Mr Stollery; and 5. the rest and residue to Dianne.
Probate of the will was granted to Dianne on 27 February 2014.
The assets of the estate comprise: 1. unit 18 which is worth between $1.5 and 1.6 million; 2. unit 11 which is worth between $1 and 1.1 million; 3. the Bexley property which is worth between $1.1 and 1.2 million, and is encumbered in an amount in the order of $165,000; and 4. sundry personal property and cash at bank.
The net value of the estate is thus in the order of $3.5 to 3.8 million.
On the day he died, and made his will, the Deceased made a statutory declaration in the following terms: "1. I have determined in my will dated 9 September 2013 to leave to my son Mark Leslie Stollery ("Mark") the sum of $10,000.00 as a legacy for his own use and benefit absolutely. 2. I have determined in my will dated 9 September 2013 to leave to my son [Mr Stollery] the sum of $10,000.00 as a legacy for his own use and benefit absolutely. 3. I have determined to provide the above legacies to my children and acknowledge that they represent a small component of my estate. I have provided substantially to my sons Mark Leslie Stollery and [Mr Stollery] during their lifetime especially during their formative business years and that they have had the benefit of enormous financial support from me. 4. It is my clear intention that my sons receive a small amount as it is my wish that I benefit my grandchildren Amanda Jayne Stollery, Sarah Anne Stollery and Grant Stollery. The residue is to go to my daughter in law Dianne Stollery in recognition of the support she has provided to me over many years. 5. I believe that this will dated 9 September 2013 documents my wishes."

Enid's position

Enid is now incapable of managing her affairs and is in care. She has not resided at Bexley for some time. It appears highly unlikely that she will be able to avail herself of the right of residence provided for in the will.
Enid's position only emerged during cross-examination of Dianne. That led to the adjournment of the proceedings from 8 December 2015 to 8 February 2016.
On 14 December 2015 I appointed Mr Jeremy Glass, solicitor, as Enid's tutor.
In that capacity, Mr Glass has very recently commenced proceedings under the Act seeking an order for provision for Enid.
On 8 February 2016 I made directions for the service of evidence in those proceedings. It seems likely those proceedings will be resolved consensually on the basis of an order for provision for Enid sufficient to accommodate her need for ongoing care (in lieu of the right of residence at Bexley provided for in the will).
Mr Smith, who appeared before me for Mr Stollery, and Mr Bors, who appeared for the estate, agreed that I could nonetheless determine Mr Stollery's claim but defer pronouncing final orders until such time as Enid's claim is finalised.

Mr Stollery's financial position

In his evidence-in-chief, Mr Stollery described himself as a professional punter.
In cross-examination he said: "Q. Sir, I think you agreed with my friend's characterisation of your occupation as professional punter? A. Professional is loose, but, yeah, punter. Q. When you say "professional is loose", why is it loose? A. I don't employ anyone, mate. It's just all my own - I just do my own thing. Q. So you're a lifelong gambler? A. Dash bookmaker. Q. Dash bookmaker? A. Correct."
In his affidavit Mr Stollery said: "From my late teens and through to my late 20s I lived life at both ends of the financial spectrum. There were times when I stayed at my brother's house because I could not afford anything else and at other times I rented a prestigious city apartment."
The "prestigious city apartment" that Mr Stollery referred to was the Connaught building in Liverpool Street, Sydney, overlooking Hyde Park, where he lived for a number of years in or around the early 1990s.
In cross-examination he said: "Q. So is it the case that you're not able to say with any specificity how much you might've gambled over that time? A. Gamblers don't do that, no. Q. You're not able to say-- A. No idea. Q. --how much you might've won over that time? A. Or lost. No idea. I just try and survive."
And later: "Q. Sir, it's your evidence. Can you tell us what's true? What's your average monthly winnings? A. I'm no accountant. I only go on what's in my pocket. Q. Sir, you know on average what you bet per month. A. No. I have got no idea. Q. You don't know what you bet per month. A. No. I wouldn't have a clue."
Mr Stollery said he did not maintain a bank account, had lodged no income tax returns and paid no income tax since the mid 1990s.
In support of his application, Mr Stollery adduced no evidence of his financial position between 1990 and 2014. Mr Stollery said he kept no records of his gambling activities and said he never gave any thought to doing so.
In his affidavit of 16 October 2014, filed in support of his summons, Mr Stollery said: "My approximate gross monthly income is $3,795.00 from horse racing but the amount varies from month to month. My approximate current monthly expenditure is $3,795.00."
Mr Stollery annexed to his affidavit a statement of his income and expenditure as follows: "Income Winnings from dog and horse races 3,795.00 Expenditure Rent at XXX Mandurah 2,140.00 Gas 10.00 Electricity 70.00 Petrol 200.00 Cleaning 100.00 Food & groceries 800.00 Motor vehicle expenses Service 100.00 CTP Insurance 35.00 Comprehensive Insurance 0.00 Registration 40.00 Telephone 50.00 Internet 50.00 Clothing & personal items 200.00 3,795.00 0.00"

The implication of this evidence was that Mr Stollery's annual income was in the order of $45,000 and that he had expenses to match.
In fact, Mr Stollery had no idea whether his average monthly "winnings from dog and horse races" was the figure of $3,795 stated in that summary.
Rather, he took the rent that he is paying on a property in Mandurah, south of Perth, and added his estimate of the nominated expenses and asserted or assumed that his average winnings must equal a total of those amounts.
In an affidavit sworn on 10 November 2015, shortly before the commencement of the hearing, Mr Stollery said: "My only income is from winnings from dog and horse races and the amount varies from month to month. My average approximate monthly income from this source is $2,200.00. My current approximate monthly expenditure is $4,100.00 particulars of which are set out on the schedule annexed and marked 'B'."
Annexure "B" to that affidavit was as follows: "Income Winnings from dog and horse races 2,200 Expenditure Rent at XXX Mandurah 2,140.00 Gas 10.00 Electricity 50.00 Cleaning 100.00 Food & groceries 900.00 Telephone 50.00 Internet 50.00 Airfares 600.00 Clothing & personal items 200.00 4,100.00"

The implication of this evidence was that Mr Stollery's annual income at the time of swearing his 10 November 2015 affidavit was in the order of $26,000 and that his expenses exceeded, to a significant degree, that income.
In cross-examination Mr Stollery agreed that this was wrong.
Cross-examination of Mr Stollery on this topic showed that Mr Stollery's summaries of income and expenditure bore no relationship to his true financial position.
Indeed, my conclusion is that Mr Stollery has made no effort to place before the Court an accurate statement of his financial position.
Examination of Mr Stollery's Commonwealth Bank of Australia credit card statements for the period 12 months before the commencement of these proceedings in October 2014 shows that between 16 October 2013 and 7 October 2014 Mr Stollery made deposits to his credit card in the order of $80,000.
During that period he also generated, from his gambling activities, sufficient to pay approximately $25,000 in rent.
The evidence thus reveals that during that 12 month period Mr Stollery spent something in the order of $100,000.
Included in the expenses recorded in the credit card statements are numerous domestic airfare tickets, mainly associated with Mr Stollery's travel from Western Australia to the east coast to visit Ms Keep, and their three children, three international holidays with Ms Keep and the children, numerous meals at restaurants (on something approaching a weekly basis) and many other items of discretionary expenditure.
In cross-examination Mr Stollery said that his object was "just to survive" and that "I'm too old to be saving money at 54".
However, insofar as Mr Stollery's credit card statements are any guide, he is doing very much better than simply "surviving".
It is true that Mr Stollery's credit card statements for the period October 2014 to November 2015 show a smaller amount of deposits (something in the order of $40,000).
However, I approach this evidence with some caution because, as Mr Bors submitted: "There was no impediment to the plaintiff simply not depositing his winnings against his credit card liabilities during the currency of these proceedings - thereby giving the impression of reduced income - the plaintiff conceded that only he would ever know this, and the Court would have [to] 'take his word for it'; It is notable and significant that during the pendency of these proceedings the plaintiff has paid rent by credit card (as distinct from the previous year, when proceedings were not underway), and it must be conceded that the manner in which he conducts his financial affairs affords the plaintiff an obvious means of creating the misleading impression of increased liabilities - again the Court simply has to 'take his word for it'."
In these circumstances, as I have said, the conclusion to which I have come is that Mr Stollery has made no effort to place before the Court an accurate statement of his financial position. Insofar as I am able to draw conclusions as to Mr Stollery's true financial position from his credit card statements, it is nothing like the position as portrayed in his affidavit evidence.
An applicant for provision under the Act must place before the Court an accurate statement of his or her financial position. Otherwise, the Court is in no position to assess whether the provision made for the applicant in the will in question is otherwise than adequate.
As Campbell J (as his Honour then was) said in Collings v Vakas [2006] NSWSC 393 at [67]: "…before a court can be satisfied that a plaintiff has been left without adequate provision, the court needs to be persuaded that it has been presented, at least in broad outline, with the whole picture concerning the plaintiff's financial situation."
Mr Stollery did not disclose to the Court anything like the "whole picture" of his financial situation; not even in "broad outline".
Based on Mr Stollery's evidence, I have no idea what his true financial position is, save that it is nothing like what he swore to be true in the affidavits filed in support of his application.
For that reason alone, I would dismiss his application.
In any event, for the reasons that follow, I am not satisfied that adequate provision was not made for him in the will.

Mr Stollery's relationship with the Deceased

Like Mr Stollery, the Deceased was a professional bookmaker.
Mr Stollery had a difficult relationship with the Deceased. In his affidavit he said: "I had a great deal of conflict and unhappiness with the deceased and my mother and so it was difficult for me to continue to live with my parents at their Bexley home. For this reason I left home at the age of 16. I recall my father saying to my mother in words to the effect: 'It's either [Mr Stollery] or me.' My brother Mark continued to live in the house."
Mr Stollery moved to the Central Coast and obtained employment with a bookmaker.
Approximately 10 years later, in the mid 1980s he returned to Sydney and for a short time lived at Bexley. During this time he worked with the Deceased.
In his affidavit Mr Stollery said: "In the 1980's I helped the deceased run his business. I would take the bets at race meetings as the deceased did not seem to do that to any great extent. I became licensed as a bookmaker. From the age of 24 I worked with the deceased in his business as a bookmaker sharing the profits equally."
In cross-examination, Mr Stollery gave the following evidence: "Q. And you say you worked with the deceased in his business as a bookmaker sharing the profits equally. A. Correct. Q. And it's the case, isn't it, sir, that you've given no evidence of ever making any kind of capital contribution to the bookmaking business? A. What do you mean, make capital? When I took over my father was broke. That's why I took over. He said, 'You go. You have a turn.' Q. Sir, my question was, you have not given any evidence of making any capital contribution to the bookmaking business. A. But I don't understand your question. Q. Sir, in order to pay out on winning bets as a bookmaker there must be a reserve of cash. Correct? A. We'd probably start, say - give a figure - 10,000 each. Q. Sir, I'd like you to just focus on the question that I'm asking. A. Okay, but it doesn't make sense. Q. You did not make any contribution of capital to your father's bookmaking business in 1985 at the age of 24. A. That's not true. Q. You haven't given any evidence of any such capital contribution. A. There's no need to. Q. But you want to suggest, sir, don't you, that you were essentially your father's partner in that undertaking? A. 100%. What? Are you say[ing] I didn't run his business? Q. And wouldn't it be relevant if you were suggesting that you were your father's partner to put evidence of any capital contributions you made to that business before the Court? A. In 1984? Mate, it's just-- Q. Sir, you have seen fit to suggest to his Honour that you were sharing the profits of your father's business equally in 1984. A. Absolutely true. Q. So you didn't think it would also be relevant to put in further detail of the financial arrangements between you at that time? A. Mate, I have got no detail. I have got nothing for 1984. I don't know where you are coming from, to be honest. You could go to the Treasury Department maybe."
This passage gives a good insight into the kind of evidence that Mr Stollery gave before me. He had no records of his financial history and very few records of his current financial position.

Purchase of Berkshire Park

During the time that Mr Stollery was working with the Deceased, the Deceased said to him: "I would like to purchase a property at Berkshire Park to raise and race a few greyhounds."
In his affidavit Mr Stollery said: "27. The property in question was 214-226 St Marys Road, Berkshire Park which was owned by Alan Chauncy who lived at the property and used it to raise and train greyhounds. The deceased proposed to purchase this property for $255,000.00. 28. Although the deceased and I had few things in common the possibility of purchasing this property to raise and race some greyhounds was one thing we did have in common and were both keen to implement. The deceased knew that I was having a winning time in the bookmaking business and said to me words to the effect, as best as I can recall: '[Mr Stollery], do you have any money that you could contribute to the purchase of the property because the purchase price is $255,000.00.' 29. I was keen to make a contribution. After considering the legal costs and other expenses for the purchase I said to the deceased words to the effect: 'I will be happy to go in halves with you and I can contribute $135,000.00.' 30. I personally handed him the money in cash instalments over the following weeks when I saw him at the race track. The deceased went ahead with the purchase. At that time I was not aware of the source of the other money. The deceased and I did not discuss as to the name in which the property would be purchased and I assumed that it would be purchased in his name. My understanding was that the deceased and I were partners in the property. 31. After completion of the purchase I travelled regularly to the property to help with maintenance and to assist with the raising and the care of about a dozen greyhounds. I recall that the ownership and the management of the property were amicable and friendly."
Mr Chauncy, who said he was well acquainted with the Deceased, and had known him for more than 30 years, gave evidence that: "I spoke to the deceased at length about selling the Berkshire Park property to him and I recall having a conversation to the following effect: Me: 'I will sell Berkshire Park together with all the furniture to you for $305,000. How will you make the payments?' The Deceased: I have enough funds for a substantial deposit and will take out a mortgage with the CBA for the balance to make up the sum of $255,000 plus I will make an additional payment of $40,000 in four monthly instalments of $10,000 after the sale'. He never mentioned that his son [Mr Stollery] would be contributing to the purchase of the property."
Another long standing friend of the Deceased, Mr Garry Carson, worked for many years with the Deceased. Mr Carson said: "I moved to Sydney to live at the end of 1971 and I again met [the Deceased]. Soon after that he offered me a job helping him with his betting business from his home in Percival Street, Bexley. My work for him involved clerking for him at greyhound meetings at Harold Park and Wentworth Park dog meetings. I worked for [the Deceased] almost every day of the week in some capacity by doing his correspondence, clerking for or going to horse meetings with him to help him back horses."
So far as concerns the purchase of Berkshire Park, Mr Carson gave this evidence: "I recall [the Deceased] saying to me before he purchased the property in 1989, words to the effect: 'I would like to purchase the Berkshire Park property for which I would need to borrow money from the bank. I think that [Mr Stollery] is travelling pretty well at the moment and I could approach him to ask him to come on board as a part owner of the property and the business'. In reply, I said to [the Deceased] words to the effect: 'Although you and [Mr Stollery] get along well together I have reservations about that lasting any length of time. John, I don't think it would work because you would give [Mr Stollery] no say in any running of the place'. I distinctly remember the example that I gave to support my view as I recall saying to [the Deceased] words to the effect: 'If [Mr Stollery] wants that wall painted white and you wanted [it] painted black then black it will be.' … My conversations about the purchase of the Berkshire Park property were all with [the Deceased]. I had no occasion to talk with [Mr Stollery] about that purchase. [The Deceased] and [Mr Stollery] both bred and raised greyhounds and the property was set up as a greyhound breeding and training property. I do not remember the specific terms of [the Deceased's] loan or overdraft to purchase the Berkshire Park property. Whilst not certain, my recollection is that he obtained an overdraft of $120,000.00 as he said to me words to the effect: 'If [Mr Stollery] puts in the $135,000.00 I can get a loan of $120,000.00 from the bank'. The purchase of the property went ahead and [the Deceased] arranged the conveyancing work to be done by the solicitor Mr Byrne."
In cross-examination Mr Carson gave this evidence: "Q. You say that Mr Stollery called you to ask you what you knew about the Berkshire Park purchase. A. Yes. Q. What did you tell him? A. I told him I knew he didn't get his cash back and he never would have. Q. Sir, you never gave any evidence in your affidavits of being aware of [the Deceased] receiving any money from [Mr Stollery], did you? A. Again, only what [the Deceased] told me. Q. You don't give any evidence in your affidavits of [the Deceased] ever telling you that he has actually received 135,000 from [Mr Stollery]. A. Okay. Q. Do you? A. No, I didn't. HIS HONOUR Q. Is that because [the Deceased] didn't actually tell you that he actually got money from [Mr Stollery]? A. Your Honour, he told me that that was the way he could buy the property, with [Mr Stollery] as a partner, and he went ahead and bought it very soon after. MR BORS Q. But, sir, it is the case, isn't it, that [the Deceased] never actually told you that he had received $135,000 from [Mr Stollery]? A. No, I don't recall him saying that. No."
Settlement of the sale from Mr Chauncy (and his wife) to the Deceased took place in or about April 1999. The transfer is dated 7 April 1999. The consideration shown on the transfer was $255,000. Mr Chauncy said in cross-examination that this was the final agreed sale price and that he decided to give to the Deceased the furniture mentioned in their conversation referred above.
Consistently with Mr Carson's recollection, the Deceased mortgaged the Berkshire Park property to the CBA. According to the Office of State Revenue's notation on the mortgage, the amount secured was $120,000.
Mr Stollery was not able to point to any documentary evidence supporting his contention that he contributed $135,000 to the purchase price of Berkshire Park. His case is, however, supported (although only inferentially) by Mr Carson's evidence of conversations he had with the Deceased.
What can be said is that as the ultimate purchase price of Berkshire Park was $255,000, and as the Deceased borrowed $120,000 from the CBA to fund the purchase, if Mr Stollery did contribute $135,000 to the purchase of the property, that contribution represented the totality of the Deceased's equity in the property at the time of settlement.
I will return to the question of Mr Stollery's alleged contribution to the purchase of Berkshire Park when considering the circumstances of its sale in 1994.

Estrangement

A short time after the sale of Berkshire Park to the Deceased settled, the Deceased and Mr Stollery fell out.
Mr Stollery described the circumstances in his affidavit as follows: "I recall that my sleeping habits of sleeping until 11.00am upset my father when in fact he asked me to be at Berkshire Park earlier than midday. On one occasion I arrived when my father was digging holes or doing other work and he said to me words to the effect: 'If you're not going to help with the maintenance the partnership is over'. I recall my father's words as words of abuse to which I had been previously subjected on numerous occasions over the years. By that time I had had enough of his abuse and drove back to Sydney and did not ever return to the Berkshire Park property."
So far as concerns his "sleeping habits", Mr Stollery explained in cross-examination that at this time he was bookmaking in relation to night greyhound racing at Wentworth Park and would often work until the early hours of the morning.
In cross-examination Mr Stollery gave this evidence: "Q. So the falling out that you're referring to in [your affidavit] has its root cause in you not going to the property before midday and you had been asked? A. True. Q. You suggest that is the cause for some 20 odd years of estrangement as between you and your father? A. It sounds ridiculous, I know, but that's the way it was."
Not only did Mr Stollery not ever return to the Berkshire Park property, he had virtually no contact with the Deceased after this incident.
Mr Stollery said he made no further attempt to contact the Deceased, and that apart from a small number of occasions on which he saw his father "at the track" he did not see the Deceased again.
The term "estrangement" does not appear in s 60 of the Act. As Hallen J observed in Doshen v Pedisich [2013] NSWSC 1507, it does not describe the conduct of either party but is "the condition that results from the attitudes, or conduct, of one, or both, of the parties" (at [168]).
There are no "rules" about how the Court deals with circumstances of estrangement when considering applications for provision under the Act. It is a factor to be taken into account, along with all others.
In this case, it provides an explanation (perhaps not the only explanation) for the Deceased's decision to leave only a nominal bequest to Mr Stollery.

Accusation of theft

Each of Dianne, Amanda, Sarah and Grant gave evidence that the Deceased had said to them that the reason that he was estranged from Mr Stollery was because of his belief that Mr Stollery had stolen money from him.
Mr Chauncy gave evidence to the same effect. He said that in around 1988 or 1989 that he and the Deceased had this conversation: "The Deceased: '…[Mr Stollery] has been ripping me off. [Mr Stollery] was managing the betting stand while I was away. I knew something was wrong with the records and finally a client told me that [Mr Stollery] was not recording the losing bets in the ledger and had been putting that cash straight into his pocket, even large bets of $10,000 or more. He was only recording the winning bets and making the payouts out of my money. On top of that he went and bought an expensive red Mercedes Benz and told me that he was paying it off but I found the receipt for the car purchase and guess what, he had paid $70,000 for it in cash. I'm pretty sure I know where that cash came from. I'm not going to associate with him anymore'."
Mr Stollery denied, vehemently, that he had stolen any money from the Deceased.
In this regard, Mr Carson gave this evidence in cross-examination: "Q. Are you able to tell his Honour whether you know what the cause of that falling out was? I appreciate you would only know based on what you've been told, but were you told anything? A. Yes. I mean, [the Deceased] - look, we were very close, your Honour, John and I, and he would tell me things and it was always - not just [Mr Stollery], Mark also - everybody - whenever you fell out with [the Deceased] or had any form of argument, it was because you robbed him, including myself at one time. That was [the Deceased's]-- HIS HONOUR Q. He meant robbed literally; thieve, stole? A. He meant, yes, you took his cash and I could rattle off half a dozen names to your Honour of people that he supposedly robbed and I would say not one of them. Q. 'Supposedly was robbed by' do you mean? A. That robbed [the Deceased]. They robbed [the Deceased]. They took his money. Now, I can name I think half a dozen names of people that he had been friends with or some - no, I don't know how many come back as friends, not many, if any, except probably I was silly enough to, I guess, in a way but we'd been good friends for so long but he - look, there was Zorba. There was a bookie, Scott. There was both his sons. Mark mightn't be aware of that but even just prior - not long prior to him dying, I don't know the circumstances here because I was in Armidale except he told me that Mark was doing some business for him with a betting exchange or something and all it was there for was to rob [the Deceased]. Now, I know it wouldn't been right. I'm not for one minute suggesting it was. [Mr Stollery] robbed him. Wally Grimshaw robbed him. Rod Payne robbed him. They all done work for him but everyone robbed him, but I mean, that's not right. That was [the Deceased's] claim."
I accept Mr Carson's evidence. He had nothing to gain by giving this evidence. He was, as he said, a good friend of the Deceased. Nonetheless the Deceased had accused him (and many others) of "robbing" him (including not only Mr Stollery, but also Mark).
Mr Carson's evidence enables me to conclude that it is very likely that, as Dianne, Amanda, Sarah and Grant said (see below), the Deceased had accused Mr Stollery of stealing from him and had stated to them (although he did not say this in the statutory declaration he made on the day he died) that this was one reason why he proposed to make only modest provision for Mr Stollery in his will. However, in light of Mr Carson's evidence, I cannot reach any conclusion as to whether there was any truth in the Deceased's accusations.

Sale of Berkshire Park

In or about 1996, the Deceased sold the Berkshire Park property for $400,000.
Mr Stollery heard of the sale, but made no demand on the Deceased for the return of the $135,000 that he said he contributed to the purchase price of the property.
In that regard, Mr Stollery gave this evidence in cross-examination: "Q. Sir, it's the case, isn't it, that at no point since being told that your father had sold the property did you ever make any demand for the repayment of the money. A. That's absolutely true. Q. Why didn't you do that? A. It's not my style. Q. It's not your style to ask for that money? A. No. Q. It's not your style to ask for that money when your father was alive but it is your style to ask for the money now that your father is dead. Is that what you're saying? A. But I'm broke now. Q. You're broke now? A. Mm-hmm. Q. What your suggestion is is that at no point between 1996 when you were told your father had sold the property and - when did you go broke? A. No. I'm not going to - I mean, I wasn't going to cause a scene. Let sleeping dogs lie. I wasn't going to go-- Q. You weren't going to cause a scene but, sir, it was worth $135,000 to you, wasn't it? A. I've got a lot more on my list than my father that owes me $135,000, trust me."
Later he gave this evidence: "Q. Just so that I understand your evidence, the reason that you say you never tried to secure repayment of this $135,000 is that it is not your style. A. Mm-hmm. Q. You were making $100,000 a week. A. No, I said give or take; you know, win some, lose some. Q. Win some, lose some. A. Yes. Q. Can we extract from that that you weren't in a financial position where you needed to go after that $135,000 or seek its recovery? A. I was in a position where I didn't need it. Is that what you said? Possibly. HIS HONOUR Q. Did you see yourself as having any entitlement to get it back from your dad? A. When you're dealing with your dad, you're not thinking - you know what I mean? I was green and I'm not thinking I had to go through all that, you know. I thought I was in a property with my dad. I'm thinking: why do I need to worry about that? Q. That's a no, is it? A. That's a no, yes. "
And later: "Q. Would it be fair to say that between the point where you became aware that your father had sold Berkshire Park, sometime in 1996, and right up until your commencement of these proceedings you haven't needed the $135,000? A. That's not true. Q. So your suggestion to his Honour is that there have been times when you have indeed needed that $135,000? A. Numerous times. Q. Yet at those times you took no steps-- A. None at all. Q. --to bring about its recovery? A. And I wouldn't change it either. If I had my time again, I wouldn't do it."
Thus Mr Stollery's explanation for not seeking from the Deceased any payment from the proceeds of sale of the Berkshire Park property was that: 1. it was not his "style" to ask for such a payment; 2. he did not wish to "cause a scene" and was content to let "sleeping dogs lie"; 3. many people other than the Deceased owed him sums similar to $135,000; and 4. he was then "possibly" in a position where he didn't need the funds.
Mr Smith urged me to exercise caution in relation to the answers that Mr Stollery gave to my questions set out at [89] above (where Mr Stollery agreed that he did not see himself as having any entitlement to a return of funds). However, having seen Mr Stollery give the evidence that I have set out above, I have no doubt that he understood my question. He had no hesitation in giving his answer "that's a no, yes".
I regard as particularly significant Mr Stollery's statement that "I wouldn't change it either" and that "if I had my time again, I wouldn't do it". That comment was made spontaneously and not responsively to the question Mr Stollery was asked. It revealed, vividly in my opinion, that Mr Stollery did not then consider he had any claim on the Deceased concerning the Berkshire Park property.
Overall, Mr Stollery's conduct in the face of the Deceased's sale of Berkshire Park causes me to have grave reservations about Mr Stollery's untestable assertion that he contributed $135,000 to the purchase of Berkshire Park (notwithstanding Mr Carson's evidence).
Even if Mr Stollery did make the contribution that he claims to have made, his conduct in 1994, after he knew the Deceased had sold Berkshire Park makes clear that he did not see any injustice associated with the Deceased retaining the whole of the proceeds of sale of Berkshire Park. Whether that was because Mr Stollery did not in fact make any financial contribution to the purchase of that property, or whether that was because Mr Stollery thought he had been adequately rewarded by sharing equally with the Deceased the bookmaking business they conducted together, Mr Stollery's evidence makes clear to me that he then abandoned any claim he might otherwise have had against the Deceased arising from the business relationship together.

Relevance of Ms Keep's financial position

As I have mentioned, Mr Stollery was in a de facto relationship with Ms Keep. They have three children.
Mr Stollery's evidence was that his de facto relationship with Ms Keep ceased in 2012.
Mr Stollery gave evidence that he retains a cordial relationship with Ms Keep. The evidence reveals that he regularly flies from Perth to the east coast of Australia to visit Ms Keep in order to keep in touch with his children.
However, I accept Mr Smith's submission that there is insufficient evidence on which to base a finding that Mr Stollery and Ms Keep are now in a de facto relationship.
I found that to be a ring of truth in this evidence given by Mr Stollery in cross-examination: "Q. You are misrepresenting the status of your relationship with Ms Keep, in order to get what you want? A. Are you saying I'm with Ms Keep? I, listen, if, I'd give my right arm to be with Ms Keep tomorrow. I tell you that right now."

The position of Amanda, Sarah and Grant

Mr Smith devoted a considerable part of his closing submissions to analysis of the financial position of Amanda, Sarah and Grant.
I do not find it necessary to engage in a detailed assessment of their financial position. They are not claimants. They are the selected objects of the Deceased's testamentary bounty. It is not for Amanda, Sarah and Grant to justify their position as beneficiaries of the estate.
Nonetheless I will consider their financial position, albeit briefly.

Amanda

Amanda is now 27. She holds a Master's degree in architecture from the University of Sydney. She has studied in Berlin and completed an internship in Tokyo and at the Guggenheim in New York. She is currently employed by a firm of architects in Sydney earning $55,000 per annum. She lives at home with her parents. She has a HECS debt in the order of $19,000.
Amanda gave evidence that she had this conversation with the Deceased, very shortly before he died: "[The Deceased]: 'Amanda, I know that you love Cronulla as much as I do. I really want you to live in the Ozone St apartment and I plan to leave it to you in my will. You know that I am not very well I want to get things sorted.' Me: 'Thank you Pop, you know how much that means to me.' [The Deceased]: 'Grant, Sarah and you are really suffering from financial difficulty. You have a large HECS debt and you have not been able to get a well-paid job despite your best efforts.' Me: 'You are right Pop, it's frustrating to work so hard with very little reward.' [The Deceased]: 'The annoying thing is that [Mr Stollery] will contest the will. I do not want [Mr Stollery] to have any of my money or possessions so I have tailored my will to give [Mr Stollery] and Mark equal amounts of money, so that [Mr Stollery] would not be in a viable position to contest it'."
I was concerned about one aspect of Amanda's evidence, contained in the following passage of cross-examination: "Q. From the documents that you produced to us yesterday, the total balance of your four accounts in NAB and ANZ is a total of a bit over $22,000, on the current or latest statements. Do you agree with that? A. I don't know about ANZ but, yes, it must be. Q. The latest balance for ANZ appears to be $16,873.89. Does that sound right to you? A. That would be true. Q. You have got a car now and you have got savings in the bank of $22,000 and full-time employment. Now, your deposits since about February-March into those four bank accounts of yours add up to $81,856. Does that sound about right to you? A. I don't know because that would be ANZ-- Q. The total deposits to ANZ up until the last statement in November for a period of about eight months appear to be $49,401.69. A. Okay. I'm not sure. Q. Do you accept that the total deposits since about February or March up until the last statements in those four accounts amount to $81,856? A. I accept that it would be true because you're telling me it's true, but I don't know about ANZ. I don't have anything to do with that. Q. Why don't you have anything to do with ANZ? A. Because it's not really my bank account. Q. It's in your name. A. That's true. Q. Well, whose bank account is it? A. My dad's. Q. You're the owner I think of a bit over 50 greyhounds. Do you agree with that? A. I didn't know it was that much but, yes, it would be true. Q. Are they your greyhounds? A. They're in my name. Q. But do you consider them to be your greyhounds? A. No. Q. Do you share in the prize money? A. Absolutely not. Q. Are you involved with them at all? A. No."
There was evidence before me that five of the greyhounds registered in Amanda's name had, at the time of the hearing, won total prize money of $198,862.
Amanda's evidence suggests that her father, Mark, has arranged for a bank account relevant to his own greyhound racing business to be set up in Amanda's name and has caused the greyhounds to which Amanda referred to be registered in her name.
I will invite submissions from Mr Bors as to why I should not refer that evidence to the Greyhound Racing Authority for its consideration.

Sarah

Sarah gave this evidence of a conversation she had with the Deceased a number of weeks before he died: "[The Deceased]: 'I have left you a unit in my will because you will never make enough money as a dance teacher to be able to buy a place of your own. I would have liked to have transferred it to you now but I don't have the money to pay for the transfer costs'. Me: 'Thank you Pop'. [The Deceased]: 'I don't want to leave anything to [Mr Stollery]. He has already stolen too much from me'."
Sarah is 26 years of age. She has studied dancing in the United States of America, toured internationally and worked for the Sydney Dance Company. She is presently employed as a dance teacher and performer.

Grant

Grant gave this evidence of a conversation he had with the Deceased shortly before he died: "[The Deceased]: 'It is my wish that Amanda, Sarah and you share the bulk of my estate. I'm dying and it is very important to me that my will provides for the three of you properly. I want to ensure that you are all taken care of when I die as I want to give you a better start in life and more opportunities than I had at your age. I certainly do not want [Mr Stollery] to have a claim over my estate and I am going to execute my last will and testament accordingly'. Me: 'Why don't you want to leave a significant amount to [Mr Stollery]?' [The Deceased]: The breakdown of my relationship with [Mr Stollery] happened more than twenty years ago. [Mr Stollery] was of poor character, deceitful, untruthful and greedy. [Mr Stollery] stole a significant amount of money from me many years ago while he was working for me at the Wentworth Park Greyhound facility. I am so disappointed that I never want to speak to or see him ever again'."
Grant is 22 years of age. He has been offered placements to study law at two universities this year and intends to accept one of those offers. He is living at home with his parents.
Grant also gave this evidence: "Q. Isn't it the case, [Grant] that you're a registered bookmaker at Wentworth Park? A. That's true, yes. Q. So why do you say you're unemployed? A. Well, it's in my name. It's basically run by my father. I've got no financial interest in it at all. Q. Do you go to the track? A. Wentworth Park, I have been once in the last four months and there's two meetings every week. Q. Why is it that you're a registered bookmaker? A. My dad had like proceedings with NAB, he had to sell, so - sorry, I'm a bit nervous - he asked to put it into my name to help with that settlement. Q. So your dad settled those proceedings? A. Yes. He settled them about, I'd say, three months ago and I have expressed my wish that it be taken out of my name since then."
Grant also said that: "There's also two other stands that operate in my name; Potts Park which is once every two weeks and I haven't been there in over two years, and Coonamble which is once a year and I haven't been there for over a year."
This evidence suggests that Mr Mark Stollery has arranged for a number of bookmaker stands to be registered in Grant's name because of proceedings involving the National Australia Bank.
Again, I will invite submissions as to why this evidence should not be referred to the Greyhound Racing Authority.

Conclusion

From an estate worth something in the order of $3.5 to $3.8 million, the Deceased left Mr Stollery a nominal legacy; something like 0.25 per cent of his estate.
Nonetheless, for the reasons I have outlined above, my conclusion is that Mr Stollery's claim fails as I am not satisfied that he has established that the Deceased did not make adequate provision for him.
I am not satisfied that Mr Stollery has placed before the Court evidence of his true financial position. I am therefore not satisfied that I am able to make any assessment of what his true financial needs are (if any).
It is not incumbent upon a respondent to a family provision case to elicit from the applicant for provision the truth in relation to the applicant's financial position. It is the application's duty to place before the Court, candidly and fulsomely, the applicant's financial position.
Further, there has been no contact between Mr Stollery and the Deceased for almost 25 years.
The estrangement between Mr Stollery and the Deceased was deep and long lasting.
Finally, such contribution as Mr Stollery may have made to the Berkshire Park property cannot, in my view, be given any significant weight in assessing the question of adequacy for provision.
If Mr Stollery did make the contribution he claims to have made to the purchase of Berkshire Park he was content to let the cards lie where they fell when he learned of the Deceased's later sale of the property.
As he said, even now, he "wouldn't change it".
The order I propose to make is that Mr Stollery's application be dismissed.
I will defer further consideration of the matter until Enid's application for provision has either been heard or resolved.

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: 11 February 2016

At a glance

Court

Decision date

Before

Source

Judgment (19 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (5)

Cited By (1)