VAGG v VAGG

Court of Appeal (NSW)|1991-06-18|Before: Handley JA, Priestley JA

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY, PRIESTLEY and CLARKE JJA

Handley JA This is an appeal from the judgment of Master Windeyer who heard two applications under the Family Provision Act. The applicants before the Master and the appellants in this Court are the son and daughter of the first marriage of the deceased. The deceased, the late Neil Raymond Vagg, died on 20 January 1988 aged sixty-six leaving a will dated 11 January 1975, and being survived by the appellants, his divorced first wife and his second wife. In the events that happened a gift of real estate at Oatley contained in that will in favour of the appellants failed when it was adeemed in 1980 as a result of the deceased selling that property. In the result the will of the deceased made no provision for the appellants and his widow was the sole beneficiary.

After the deceased and his first wife separated he made only modest contributions by way of maintenance towards the support of his children. He made no further provision for them during his lifetime once they reached the age at which maintenance payments ceased.

The Master set out his findings of fact in a careful judgment and with one minor and presently irrelevant exception there has been no challenge to his primary findings.

The appellant, Mrs Ross, and her husband jointly own through a unit trust a half share in a printing business which was established during 1968. Their joint income after tax at the time of the hearing before the Master was about $29,000 a year. Mrs Ross said in her affidavit sworn in October 1988 some thirteen months before the hearing, that the joint assets of her husband and herself were then worth $220,500 gross and $128,500 nett. However, as the Master pointed out, Mrs Ross and her husband also had current accounts with the unit trust with a face value of some $16,000 and the printing business would have probably had some goodwill value which was not included in Mrs Ross' statement of the assets of her husband and herself.

Moreover, as the Master added there was no evidence of the annual outgoings of Mrs Ross and her husband or how they managed their income but he concluded that they obviously did manage since they were substantially supporting Mrs Ross' mother, the divorced first wife of the deceased, who lived in a granny flat which formed part of their matrimonial home.

So far as the other appellant, Mr Vagg, is concerned, his nett assets on his estimation were worth $155,000. The joint income of Mr Vagg and his wife is $450 per week and they are also provided with accommodation, food and a motor car by their employer who also pays some of their other living expenses such as electricity and the like.

The Master concluded that the only question which arose for decision in the case was that of need. He held, for reasons which he gave, that neither of the applicants had established a case under the Act for provision to be made for their benefit out of the estate of the deceased.

Although the case is a borderline one, in my opinion the appellants have failed to establish that the Master fell into error in reaching this ultimate conclusion.

Ms Beazley has drawn to the Court's attention some of the authorities which discuss the question whether the preliminary finding of jurisdiction under the Testators Family Maintenance Act 1916, the predecessor of the present statute and now the Family Provision Act 1982, involves a discretionary judgment of the kind which falls within the familiar principles stated by the High Court in House v The King (1936) 55 CLR 499.

Since I have reached the conclusion that the appellants have failed to establish that the Master was in error in his ultimate conclusion, there is no need for me to discuss further the question whether the preliminary finding commonly described as a finding on jurisdiction is a discretionary judgment of that kind.

We have been referred to all the well known cases dealing with the Court's approach to the question of need under the previous Act and under the present Act. There is nothing to suggest that these matters were not properly before the Master for consideration in relation to the evidence in this case and I can discern no error of principle or misdirection in the Master's reasons for judgment. Moreover, while as I have already said the cases are borderline I have also

reached the conclusion that the Master's ultimate finding on the question of need has not been shown to be erroneous.

For these reasons I am of the opinion that the appeal fails and should be dismissed with costs and that is the order I would propose.

Priestley JA As the Master remarks in his reasons, claims by children of former marriages in effect against the widow of a second marriage are always difficult. In the present appeals that remark was certainly applicable. To my mind the cases came close to the area in which it may have been appropriate for the Court at first instance to consider the making of orders in favour of the applicants.

However, notwithstanding the thorough analysis of the applicants' cases by Ms Beazley in argument in the appeals, I have seen nothing in the reasons and conclusions of Master Windeyer with which I disagree. The cases did not, in my opinion, require the making of orders in favour of the applicants. I agree generally with what Handley JA said and with the orders that he proposes.

The order of the Court is that the appeals are dismissed with costs. Counsel for the Appellant: M Beazley QC and J Pender.

Solicitors for the Respondent: John Staniforth - Canterbury.

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