Webster v Strang; Steiner v Strang

Supreme Court of NSW|2018-07-06|Before: Kunc J

Introduction

After a six day hearing in 2017 (the "Principal Hearing"), I delivered judgment in these proceedings on 23 April 2018: Webster v Strang; Steiner v Strang [2018] NSWSC 495 (the "Principal Judgment"). As set out in paragraph [61] and following of the Principal Judgment, this is the latest round in multiple proceedings between these parties that first commenced in 2012. The litigation will continue because an appeal from the Principal Judgment and, necessarily, these reasons has been foreshadowed. These reasons assume familiarity, and must be read, with the Principal Judgment. Defined terms in the Principal Judgment have the same meaning in these reasons. I shall again, without disrespect, refer to the various family members by their given names.
The process of determining what orders should be made to give effect to the Principal Judgment resulted in six motions being filed. Those motions were both by existing parties and by parties wishing to be joined in either or both of John's case and Robyn's case. I heard the argument in relation to all of the motions on 6 July 2018. This judgment resolves those motions and determines the final form of orders to give effect to the Principal Judgment.

Summary

The various motions and the parties' submissions raised four areas for consideration: 1. What provision should be made for John's accommodation; 2. Where the burden of any additional provision should fall; 3. The form of the orders generally; 4. Whether there should be a stay pending appeal.

Provision for John's accommodation

By motion dated 7 June 2018 filed in John's case, John sought leave to adduce and rely on further evidence updating the Court in relation to the circumstances surrounding his accommodation. That motion was not opposed by any party and leave was granted at the hearing.
The Court has determined that additional provision should be ordered for John in a sum which would enable him to purchase a two bedroom unit in Townsville in a geographically similar area to the Strand Property, but not necessarily the equivalent of the Strand Property. An appropriate additional provision for such a unit is $500,000, being the rounded up mid-point between the defendants' lowest example ($275,000) and John's preferred (and highest) example ($700,000).

Where the burden of additional provision should fall

Two separate issues were raised in this category.
First, identical motions were filed in both John's case and Robyn's case by Dorothy's daughter Lesley, Lesley's husband Wayne Jnr, their daughter Kelly, and SWW ("Lesley's Family"), to whom I referred in the Principal Judgment as the "2016 Judgment Creditors". Mr M K Meek of Senior Counsel appeared for Lesley's Family.
After applying for leave to be joined as defendants in each of John's case and Robyn's case, the burden of the two notices of motion was that insofar as the Principal Judgment determined that John should receive sufficient additional provision to pay off his debts, the debts of $481,502.37 plus interest which John owed to Lesley's Family arising from costs orders in earlier proceedings, and $35,000 owed to Lesley, should be paid from the specific legacies to John's children and grand-children set out in Clause 3(d) of the Will.
The point of these two motions was to ensure that, in the working out of the sources for John's further provision, no part of the entitlement of Lesley's Family should be diminished to pay debts owing to them. There was no opposition to this course. The Court accepts that common sense and justice support such an order being made and will make orders accordingly.
The motions filed by Lesley's Family also made clear their opposition to the relief referred to in the next paragraph.
The second issue in relation to how the burden of additional provision should be borne was crystallised by a further amended notice of motion filed on 28 May 2018 in Robyn's case by her children Wayne Bruce, Scott, Lance and Rhodora, and Dorothy's grand-daughter Madison (by her tutor and mother Elizabeth Vincent) ("Robyn's Family"). Robyn's Family was represented by Mr R D Wilson of Senior Counsel.
Robyn's Family sought an order that the Court vary the Principal Judgment so that the burden of any further provision in favour of Robyn should not be borne by their legacies under Clause 3(b) of the Will. In the Principal Judgment (at paragraphs [588] to [589]) the Court had determined that, in the first instance, any additional provision for Robyn should be borne by her children and grand-children. As a preliminary step, those applicants who were not already party to the proceedings sought to be joined as defendants in both Robyn's case and John's case.
At the Principal Hearing the defendants had read affidavits from Wayne Bruce, Scott, Lance and Rhodora about their circumstances. Further evidence was filed by each of them in support of the further amended notice of motion. The Court had taken their earlier evidence into account in reaching its conclusions in the Principal Judgment. The Court has concluded that nothing in the additional material which they filed, or in the submissions put specifically on their behalf, provides a sufficient reason to disturb its relevant conclusions in the Principal Judgment.

The form of orders to be made

In Robyn's case, subject to the outcome of Robyn's Family's motion (see paragraph [13] above), the orders to give effect to the Principal Judgment were agreed as between Robyn and the defendants.
Again, subject to the impact of the various notices of motion, there were relatively few issues which separated John and the defendants in relation to the form of orders to be made in John's case. These are resolved in the Court's observations set out at paragraphs [112] to [117] below.

Stay pending appeal?

The defendants filed a notice of motion in each of John's case and Robyn's case for a stay of the Court's orders giving effect to the Principal Judgment pending the determination of an appeal.
Provided that notices of appeal are filed within four weeks, the Court has decided that its orders giving effect to the Principal Judgment should be stayed pending an appeal in both John's case and Robyn's case. However, In reaching this conclusion, the Court accepts that undertakings proffered by Robyn made the case for a stay in Robyn's case far less compelling than in John's case. For this reason, the orders in Robyn's case will be stayed subject to a sum of approximately $880,000 being advanced to her.

Provision for John's accommodation

The uncertainties surrounding John's accommodation were dealt with in the Principal Judgment: "590 In relation to John, the same considerations which informed the Court's conclusion that inadequate provision had been made for him lead to the result that additional provision should be made for John to ensure he is debt-free, has a three bedroom apartment to live in (given, as noted in the evidence and submissions, that John and Lynne sleep in separate bedrooms and that Anthony also needs a bedroom), and has an amount for contingencies. Given John's age and health and doing the best it can, the Court assesses $200,000 as an appropriate figure for contingencies. I do not accept the defendants' submission that, as a matter of discretion, an order for provision should not be made where it is the creditors who will benefit. Providing funds to reduce or eliminate debt can be a very effective way to maintain and advance a person who might otherwise be close to or in bankruptcy. … 592 However, determining an actual figure for additional provision for John after the $881,000 Loan is removed from consideration is not straightforward. The evidence at trial was that his liabilities (excluding the Loan) are $2,375,640.95. However, at the conclusion of the trial there was uncertainty about what action BoQ would take in relation to the Strand Property. If John is still resident at that property, then the additional provision should include a sum to repay the Loan to BoQ so that John owns that property unencumbered. If BoQ has repossessed the Strand Property then John's provision should include a sum for him to acquire a modest three-bedroom unit in Townsville and otherwise discharge his debts and be left with $200,000 for contingencies. If these matters cannot be agreed there may be a need for short further evidence and submissions."
John's updating evidence disclosed that the Strand Property was sold at the start of 2018. He and Lynn are currently living in a rental unit which John described as having "two small bedrooms, one bathroom and one car space".
The other significant recent development was that Anthony no longer resides with John and Lynn. He moved out in October 2017 and is now living alone in rented premises in Wallsend, New South Wales.
Anthony swore an affidavit for the purposes of the most recent hearing. In that affidavit he gives unchallenged evidence that he has no intention of moving back to Townsville to live with John and Lynn. John, on the other hand, gave evidence that he harboured some hope that Anthony would return to live with him (John) and Lynn. The Court accepts Anthony's evidence. The plausibility of Anthony's position is fortified by a significant change in the dynamic between Anthony and John. That change is the undisputed evidence that, at about the time Anthony moved out of the Strand Property, John informed Anthony that he (John) was not Anthony's biological father.
By reason of these changed circumstances in relation to John's accommodation and family circumstances, the Court will vary its finding in the Principal Judgment to be that adequate additional provision should be made for John to enable him to buy a modest, two bedroom apartment for him and Lynn to occupy in Townsville but not necessarily something equivalent to the Strand Property.
Before considering the evidence of Townsville property values, there are two other matters which should be noted. First, during his cross-examination John asserted that, because of his and Lynn's medical conditions, they needed to live close to the water, and ideally somewhere with a pool and gym. While John did tender updated medical evidence about his health, none of that evidence suggested that John's assertion was anything more than a wish rather than a medical necessity. In any event, the evidence of various properties in Townsville suggests that a pool is a common feature of blocks of units of quite varying price ranges.
Second, Mr Ellison submitted an alternative outcome would be to put John in a position to be able to rent suitable premises. The possibility of rental (including any calculations of the sum reflecting life expectancy and the cost of money) was not considered at the Principal Hearing. I accept Mr Condon SC's submission that now to consider the possibility of rental would be inimical to the Court's findings in the Principal Judgment and should not be entertained. Rental was not a matter that was canvassed at the Principal Hearing.
The evidence of value of suitable properties presented a wide range. For example, John relied on the valuation of a 7th floor two bedroom apartment which appeared to be in a similar location to the Strand Property and included a "resort pool, spa, tennis court and bbq area in complex" for $695,000. On the other hand, the defendants drew attention to a two bedroom unit on The Strand (but without facilities such as a swimming pool) valued at $275,000 or another two bedroom unit on The Strand with "on-site swimming pool, gardens and bbq area" for $360,000. The defendants also tendered evidence of a three bedroom unit very close to The Strand with an in ground swimming pool for sale for $528,000.
In considering the evidence, it is important to bear in mind that the Court is not determining that John should live in a particular unit in a particular place. The evidence is intended to enable the Court to come to a conclusion as to what amount of additional provision is likely, on the balance of probabilities, to enable John to buy suitable accommodation. I do so on the basis of a finding that adequate provision for John would enable him to purchase a two bedroom unit in Townsville in a geographically similar area to the Strand Property (given that is where he lived for quite some time), but not necessarily the equivalent to the Strand Property. The evidence suggests that the price of such a unit might vary significantly depending on its precise location, the age of the unit and the facilities available. In the circumstances, the Court finds that an appropriate additional provision for a suitable two bedroom unit of the kind which I have described is $500,000, being the rounded up mid-point between the defendants' lowest example ($275,000) and John's preferred (and highest) example ($700,000).

Where the burden of additional provision should fall - money owed to Lesley's Family

Before turning to the substance of this matter, the first point to be dealt with is Lesley's Family's application that they be joined as defendants in both John's case and Robyn's case. Robyn did not oppose their joinder in her case and an order will be made. Mr Condon SC submitted that Lesley's Family should not be joined as defendants in John's case.
Mr Condon SC submitted that there wasn't any utility in additional parties being joined in John's case. He was unable to identify any prejudice to John if Lesley's Family were joined in John's case, although he did submit that there may be some additional, unnecessary costs burden on the loser by reason of the presence of Lesley's Family as parties.
UCPR Part 6, r 6.24(1) provides: "6.24 COURT MAY JOIN PARTY IF JOINDER PROPER OR NECESSARY (1) If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party. (2) Without limiting sub rule (1), in proceedings for the possession of land, the court may order that a person (not being a party to the proceedings) who is in possession of the whole or any part of the land (whether in person or by a tenant) be added as a defendant."
Lesley's Family are persons "whose joinder as a party is necessary to the determination of all matters in dispute" in these proceedings for the following four reasons.
First, in both John's case and Robyn's case, the various beneficiaries who are not yet parties are now adopting adversarial positions between themselves. I accept Mr Meek SC's submission that this puts the defendants, as executors, in an invidious position by making it difficult, if not impossible, for them to carry out their traditional function of representing the interests of the estate and non-party beneficiaries in an even-handed way.
Second, as I set out in paragraphs [40] and following below, Robyn's Family seeks relief in Robyn's case as to how any additional provision for John should be borne by submitting that it should be borne by Lesley's Family. While that would not, in and of itself, necessarily be sufficient to justify their joinder, when to that is added the fact that John's case and Robyn's case were heard together, with the evidence in one being the evidence in the other, and the way in which the additional provision for John and Robyn intertwines after the gifts in clauses 3(b) and 3(d) of the Will have been exhausted, joinder of Lesley's Family in John's case becomes necessary to ensure that all parties interested in the Will are able fully to advocate their respective positions and be bound by the determination of the matters in dispute.
Third (and closely related to the preceding point), insofar as the defendants have indicated that they will be appealing from the orders the Court will make finally disposing of these proceedings, I am satisfied that it is desirable that the various individual interests should be able to advocate independently before the Court of Appeal, not least because different potential outcomes may affect different interests in different ways. This is most conveniently done by them being parties.
Fourth, I have not overlooked Mr Condon SC's submissions about the possibility of an unfair outcome in relation to costs to the extent that, depending on how the issues fall out, the joinder of Lesley's Family may not be necessary. Even allowing for the various possible twists and turns in the outcome of these proceedings, the possibility raised by Mr Condon SC seems to me, at this stage, to be more theoretical than real. Should that change, any injustice of the kind raised by Mr Condon SC can be dealt with by the Court making appropriate costs orders with knowledge of the final outcomes, facts and circumstances as they may stand at that future time.
The substance of the relief sought by Lesley's Family was: "3. An order pursuant to s 65(1)(c) of the Succession Act 2006 (NSW), or otherwise, that such part of order for provision for John Steiner in proceeding 2012/185566 as totals $481,502.37 plus interest of $33,343.00 as at 4 May 2018 accruing at $94.52 per day owing to the applicants and the sum of $35,000 owing to Lesley Margaret Webster (as referred to in paragraph 8 of the affidavit of Scott Anthony McDonald sworn 22 June 2018) be borne from the specific legacies to John Raymond Steiner's children and grandchildren provided for in clause 3(d) of the Will of the late Dorothy Steiner."
It will be recalled that under the Principal Judgment, once the various nominated sources of funds to provide additional provision to John are exhausted, only then can any remaining provision be satisfied from the legacies under the Will to Lesley's Family.
The amount of $481,502.37 plus interest represents the costs payable by John to Lesley's Family arising from the proceedings heard by Slattery J (see paragraphs [72] to [76] of the Principal Judgment). John admits that he owes Lesley $35,000, although his evidence was to the effect that he was unsure whether she would ever call for it.
At the most recent hearing, there was no opposition to an order of the kind sought by Lesley's Family (as set out in paragraph [36] above) being made. Furthermore, John's children and grandchildren (all beneficiaries under clause 3(d) of the Will) have not sought to be heard against their entitlements under the Will being used to provide additional provision for John. When to those matters one adds common sense and justice, the money owed by John to Lesley's Family should not, at least notionally, be paid from the entitlements of Lesley's Family under clause 3(c) of the Will. The Court will make an order to the effect sought by Lesley's Family.

Where the burden of additional provision should fall - Robyn's Family's application that their interests under the Will not be reduced

Turning to Robyn's Family' further amended notice of motion, the first issue is their application to be joined as defendants in John's case and Robyn's case. For the same reasons given in paragraphs [32] to [34] above, the Court is satisfied that order should be made.
The substantive relief sought by Robyn's Family is: "2. Order pursuant to Part 36, r 36.16 of the UCPR that the judgment in this honourable Court dated 23 April 2018, [2018] NSWSC 495, be varied such that the burden/any further provision in favour of the plaintiff Robyn Gai Webster shall not be borne by the applicants' legacies under clause 3(b) of the will of the late Dorothy Steiner dated 7 June 2011."
The further amended notice of motion was supported by an affidavit of Robyn's Family's solicitor which included: "4. I am instructed despite paragraph 60 of Robyn's outline of submissions dated 18 May 2017, during the hearing, no party adequately advanced submissions that the burden of any further provision in favour of Robyn should not be borne by her children and granddaughter's interest under the Deceased's Will, but rather by the interests of Lesley Webster and Wayne Webster under the Deceased's Will."
On behalf of Robyn's Family, Mr Wilson SC's submissions, as they were ultimately put, may be summarised as: 1. His clients' interests had not been adequately advocated at the Principal Hearing in two respects. First, the relevant legal principles as to where the burden of any additional provision should fall had not been fully addressed. Second, the prospect of any additional provision for Robyn falling on her children and grandchildren's legacies had not been expressly opposed in submissions. 2. There had been a relevant change in circumstances for some of Robyn's Family. This should be taken into account because the Court's order for provision is made "having regard to the facts known to the Court at the time the order is made" (see s 59(2) of the Act). 3. If not all, then at least half of Robyn's additional provision should be borne by Lesley's Family, because the latter had not put their financial circumstances in issue and were much better able to bear the burden of the additional provision than Robyn's Family.
In addition to disputing Mr Wilson SC's submissions, Mr Ellison SC for the defendants submitted that Robyn's Family had been properly notified of the proceedings and the possible risk to their gifts under the Will. He submitted that this was, in and of itself, a powerful reason to reject their application.
It is convenient to deal first with the question of notice before turning to the arguments raised by Mr Wilson SC.
There was no dispute that the Court had the power under Rule 36.16 to make the orders sought by Robyn's Family. No judgment or order had been entered, so jurisdiction existed under Ruler 36.16(1). While the relevant sub-rule was not specifically referred to in submissions, the jurisdiction was clearly provided by sub-rule (1) and, perhaps, by sub-rule (2)(b): 36.16 FURTHER POWER TO SET ASIDE OR VARY JUDGMENT OR ORDER (1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order. (2) The court may set aside or vary a judgment or order after it has been entered if: … (b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or"…
The Court should be very slow to allow an application of the present kind when the Act and practice in relation to family provision applications makes specific provision for notice to be given to beneficiaries of their rights. The defendants submitted that this is exactly what had occurred in the present case in relation to the Robyn's Family.
Mr Ellison SC drew attention to the fact that on 4 July 2012, each of Robyn's Family (including Madison by her father Wayne Bruce) were sent letters by the Estate's solicitor. Those letters included: "We act for the executors of the Will of the above named deceased in relation to contentious, or potentially contentious, matters arising in the administration of the estate. Claims for additional provision for the Estate have been made by Robyn Gai Webster and John Steiner. As you are a beneficiary under the Will of the Deceased we are required to serve notice of those claims upon you. We accordingly enclose a notice of claim in respect of each of the claims … If the Supreme Court orders that any additional provision should be made from the Estate for either of the claimants then the Court will have to decide how that additional provision will be borne as among the beneficiaries under the Will … You are entitled to place before the Court evidence about matters which the Court may consider in determining the claims. Those matters may include evidence about your own financial and other circumstances for consideration in determining whether, or to what extent, the gift to you under the Will should be affected by any additional provision ordered for either of the claimants. While we are happy to prepare an affidavit to be made by you for use as evidence in the proceedings, we are unable to advise you as to your position as a beneficiary and we suggest that if you wish to obtain such advice then you should engage and consult your own solicitor."
The notice of claim was in the usual form and included: "If you are entitled to, and wish to apply for, an order for provision for you out of that estate, you must apply within a period prescribed by the Succession Act 2006 or allowed by the Court. If you do not, before the Court deals with the plaintiffs' application, apply for an order for provision for you out of that estate, the Court may deal with the plaintiffs' application without regard to any possible application by you."
By letter from the Estate's solicitors dated 12 April 2013, each of the Robyn's Family (including Madison by her father Wayne Bruce) was informed of an impending mediation of all disputes between the family members and invited to attend. Wayne Bruce attended that mediation on behalf of Robyn's Family and others.
At a directions hearing on 24 May 2013 in both John's case and Robyn's case, counsel appeared on behalf of legatees under the Will, including Robyn's Family.
On 29 May 2013 the solicitors instructed by Robyn's Family wrote to the defendants' solicitors inquiring about the possibility of an interim distribution in favour of Robyn's Family. That was declined by the defendants and the possibility does not appear to have been pursued further.
On 1 May 2017, the solicitor for the defendants wrote to Larry: "The hearing of the claims by John Steiner and Robyn Webster for provision from the estate is to commence in the Supreme Court on 22 May 2017. As beneficiaries under the Will your children are entitled, but not obliged, to place before the Court their own financial and other circumstances. The purpose of doing so is to inform the judge of their own need for the gifts to them under the will so that he may take this into account in determining what provision, if any, should be ordered in favour of the plaintiffs and what part of the estate should bear the burden of any provision ordered. Your children Lance, Scott, Wayne and Rhodora previously provided affidavits, sworn in April 2013, and a copies (sic) of their affidavits are attached. At that time you acted as liaison between us and your children and we have no direct contact details for the. So that I may prepare updated affidavits to be sworn by your children can you please have them print their respective copy affidavits, mark any changes needed to be made and scan and email this back to me. I will send you, or them if they prefer, an updated affidavit to be sworn and returned to me."
Updating affidavits were sworn by Lance, Wayne and Rhodora for the Principal Hearing. Scott did not swear an updating affidavit.
Mr Ellison SC submitted that the history set out in paragraphs [48] to [54] above made it clear that Robyn's Family had notice of John's case and Robyn's case and that they had chosen to participate to the extent they had, and in the way contemplated by the Act and practice in relation to such matters.
While they were not cross-examined on their affidavits, each of Robyn's Family (other than Madison) swore an affidavit which included a paragraph similar to this: "At no time, including the time of swearing my First Affidavit, or at any time prior to the handing down of the judgment on 23 April 2018 was I aware: 5.1.1 as to there being any risk that my gift under my grandmother's will would bear the burden of any further provision awarded to the plaintiff (my mother); or 5.1.2 that I should promptly contact [the defendants' solicitors] should my health or financial circumstances change; or 5.2.3 that I could seek leave to be separately represented in these proceedings."
I accept Mr Ellison SC's submission that, while they had not been cross-examined on that statement, given the history set out in paragraphs [48] to [54] above, the Court should place little weight on that aspect of Robyn's Family's evidence. Furthermore, it was submitted that Robyn's Family's knowledge of and participation in the proceedings as set out above, when added to the general principle in favour of the finality of litigation, weighs heavily against granting the relief sought by Robyn's Family. I also accept that submission. Mindful of these submissions, I will now turn to consider the matters relied upon by Robyn's Family which they submitted warranted granting them the relief they sought.
The first part of Mr Wilson SC's submission that his clients' position had not been adequately advocated at the Principal Hearing was that the Court did not have the advantage of a full exposition of the law as to how the burden of any additional provision should be allocated between beneficiaries. In that regard, he adopted Mr Meek SC's helpful summary of the authorities leading to the conclusion that the discretion as to how the burden of additional provision should be borne should be exercised according to the rules of reason and justice (see, in particular, the decision of Street J (as his Honour then was) in Re Seer and the Testator's Family Maintenance Act (1969) 90 WN (Pt 1) (NSW) 400 at 408-409) and the decision of White J (as his Honour then was) in Hoobin v Hoobin [2004] NSWSC 705 at [139]).
Mr Meek SC's submissions also grappled with the question of the source of the Court's discretion for the determination of which part of an estate ought to bear the burden of orders for additional provision. His submissions suggested that it was either or both of s 66(2) or s 72(2) of the Act: "66 CONSEQUENTIAL AND ANCILLARY ORDERS (1) The Court may, in addition to, or as part of, a family provision order, make orders for or with respect to all or any of the following matters for the purpose of giving effect to the family provision order: … (2) The Court may make such additional orders as it considers necessary to adjust the interests of any person affected by a family provision order and to be just and equitable to all persons affected by the order. … 72 EFFECT OF FAMILY PROVISION ORDER (1) A family provision order takes effect, unless the Court otherwise orders, as if the provision was made: (a) in a codicil to the will of the deceased person, if the deceased person made a will, or (b) in a will of the deceased person, if the deceased person died intestate. (2) Without limiting subsection (1), the Court may at the time of distribution of an estate that is insufficient to give effect to a family provision order make such orders concerning the abatement or adjustment of distributions from the estate as between the person in whose favour the family provision order is made and the other beneficiaries of the estate as it considers to be just and equitable among the persons affected."
I accept that each of those sections may, in appropriate circumstances and in accordance with their terms, provide a source of power for the Court to make particular kinds of family provision orders. However, in my respectful view, the fundamental source of the Court's power to allocate the burden of an order for additional provision among beneficiaries is s 59 of the Act (which sets out the circumstances in which the Court may make a family provision order) when read with s 65(1)(c): "65 NATURE OF ORDERS (1) A family provision order must specify: (a) the person or persons for whom provision is to be made, and (b) the amount and nature of the provision, and (c) the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and (d) any conditions, restrictions or limitations imposed by the Court."
So understood, the allocation of the burden of additional provision is a feature of "the nature of" a family provision order (see s 60(1)(b) of the Act). As such, the discretion to determine upon whom the burden of any additional provision will fall is to be exercised including, to the extent the Court considers relevant, by reference to the matters set out in s 60(2) of the Act. For that purpose in the Principal Judgment the Court had regard to the following in relation to Robyn's Family: "60 MATTERS TO BE CONSIDERED BY COURT … (2) The following matters may be considered by the Court: … (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, … (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate,:
At the Principal Hearing, the case in relation to how any additional provision should be borne was argued by reference to the general principles applicable in the case of a family provision order. For the reasons I have just given, in my respectful view that was the correct way to approach the matter. Accordingly, I do not accept the submission that there was inadequate advocacy at the Principal Hearing about the legal principles in relation to how any additional provision should be borne.
The second aspect of this part of Mr Wilson SC's submission was, as I understood it, to the effect that the Court did not have the advantage at the Principal Hearing of a focused submission put on behalf of Robyn's Family that no part of any additional provision for Robyn should be visited on them. Quite properly, Mr Wilson SC accepted that this was not a submission that the defendants had failed to fulfil their roles as executors in the proceedings. Rather, he submitted that in the complexities of this particular case the interests of justice for his clients meant that more than the even handed discharge by the defendants of their duties was required.
Taken literally, Mr Wilson SC's submission is correct. There was no express submission that any additional provision for Robyn should not be borne by her children and grandchildren. However, that cannot be the end of the matter. An examination of the submissions that were put at the Principal Hearing by both John and Robyn (and for present purposes I will confine my observations to Robyn's case) was for any additional provision to be borne by Lesley's Family, none of whom had put their financial circumstances in issue. In other words, the case presented at the Principal Hearing was exactly the case for which Robyn's Family now contended, albeit with the qualification during the course of oral address that, as an alternative, a just outcome would be for half of Robyn's additional provision to be borne by Lesley's Family, with the other half to come from Robyn's Family.
In the Principal Hearing, the defendants read affidavits of Wayne Bruce sworn 26 April 2013 and 19 May 2017. Wayne Bruce's evidence in those affidavits is summarised at [484] of the Principal Judgment. The affidavit evidence of Wayne Bruce also pertained to his daughter Madison's circumstances (there being no affidavit evidence from Madison, who is currently 13 years old). Wayne Bruce was called in Robyn's case and cross-examined by Mr Ellison SC, however none of his oral evidence related to his personal or financial circumstances.
The defendants also read affidavits of Lance sworn 26 April 2013 and 19 May 2017. Lance's affidavit evidence is summarised at paragraph [486] of the Principal Judgment. Lance did not give oral evidence.
Finally, the defendants read two affidavits of Rhodora, sworn 24 April 2013 and 22 May 2017. Rhodora's affidavit evidence is summarised at paragraph [487] of the Judgment. She did not give oral evidence.
Robyn's submissions at the Principal Hearing recognised that the question as to the adequacy of provision for her proper maintenance or advancement in life could not be approached in isolation from the resources and needs of other claimants to Dorothy's testamentary bounty (referring to Foley v Ellis [2008] NSWCA 288 at [88] and Chan v Chan [2016] NSWCA 222 at [22] per Basten JA).
Robyn submitted that the deceased would have set Robyn and John's demands and interests above, first, grandchildren and great-grandchildren, particularly as those beneficiaries did not advance any competing need, and above, secondly, those who are evidently in affluent positions in contrast to the obvious needs that are faced at the present point in time by both Robyn and John.
Mr Bilinsky submitted that to make provision for Robyn in the order of $1.2 million would have no material adverse financial effect on "certain beneficiaries" (T 370.16-17). To that end, he noted that Lesley and Wayne, their daughters (Kelly and Katrina), and their grandchildren had not sought to advance in the proceedings any competing financial claim upon Dorothy's bounty.
A similar submission was made at paragraph [44] of Robyn's outline of submissions dated 18 May 2017. That outline of submissions also contains the following comments in relation to where the burden of any family provision order should fall (at [59]-[60]): "59. Insofar as the interests of particular grandchildren or great-grandchildren (especially those not advancing any competing financial need) would be circumscribed to assist the making of further provision for Robyn, the same community standards or expectations dictate that a grandparent does not ordinarily have a responsibility to provide for a grandchild (let alone great-grandchildren), even where in the context of normal family relations and affections the grandparent may have previously bestowed gifts: see Bowditch v NSW Trustee & Guardian [2012] NSWSC 275 at [133] per Hallen AsJ. 60. In addition, Robyn submits that given the undeniably comfortable financial positions of Lesley and Wayne Webster, and bearing in mind the significant entitlements they receive under the will, the Court ought to adjust their interests in the estate by making proper provision in the amount sought by Robyn for her maintenance and advancement in life."
In her closing written submissions, Robyn again emphasised that there would be no adverse financial effect on certain beneficiaries if the Court were to order provision for Robyn in the amount sought, and stressed that it was important for the Court to note that Lesley, Wayne, and their children and grandchildren had not sought to advance any competing financial claim, saying that, as a corollary, the Court was entitled to infer that as beneficiaries of the estate they all had adequate resources upon which to live, and would not be affected in any material way by an order for provision in Robyn's favour.
It will be apparent from paragraphs [68] to [72] above that the unequivocal tenor of Robyn's submissions at the Principal Hearing was that any additional provision should be borne by Lesley's Family, including Dorothy's grandchildren and great-grandchildren. That is precisely the same submission which Mr Wilson SC advances now. While it is true that no express submission was made that the additional provision for Robyn should be borne by Lesley's Family and not be borne by Robyn's own children and grand-children, as I will set out in greater detail below, the position of Robyn's Family was expressly taken into account by the Court at the Principal Hearing. In those circumstances I am not satisfied that the absence of an express submission advocating for maintaining the integrity of the gifts to Robyn's Family would be, alone or with any other consideration advanced by them, a sufficient reason to re-exercise the Court's discretion as to where the burden of additional provision should fall.
The final aspect of Mr Wilson SC's submissions was that the updating evidence provided in relation to Robyn's Family constituted sufficient new additional evidence, including a change of circumstances since the hearing in some cases, to warrant revisiting the Court's conclusions as to how the burden of extra provision was to be borne because the order for provision is made "having regard to the facts known to the Court at the time the order is made" (see s 59(2) of the Act)..
In considering this aspect of the arguments put for Robyn's Family, I approach it on the basis that the issue for determination is whether the evidence they have presented warrants variation of the approach to how the additional provision should be borne as set out in the Principal Judgment. While I do not propose to repeat the full reasoning for that approach in these reasons, they may be summarised by referring to these paragraphs of the Principal Judgment: "588 The question remains as to how the balance of Robyn's legacy and the additional provision are to be paid. At this point of the analysis two considerations have informed the Court's proposed approach. First, proper weight should be given to Dorothy's intentions as evidenced by the Will. This means that her broad scheme of distribution should be disturbed as little as possible (including by noting what appears to be her allocation of specific sums to each of the family groups for grandchildren and great-grandchildren). Secondly, and noting the authorities set out above (from [521]), in my view community standards would expect the resources of even a large estate to be directed to the children of Dorothy who needed help, rather than to more remote descendants. In the circumstances of this case, I am satisfied that the needs of John and Robyn must displace Dorothy's laudable intention to benefit her grandchildren and great-grandchildren. … 594 In directing that additional provision first come from the legacies to Dorothy's grandchildren and great-grandchildren, the Court has not overlooked that it received evidence from some of them about their circumstances. That evidence is summarised above (from [481]). However, as I have already said, in this case their interests must yield to those of Robyn and John as Dorothy's children. None of her grandchildren or their children claims a special relationship with Dorothy or is in need that is more acute than John and, to a slightly lesser extent, Robyn. It is also least disruptive to Dorothy's testamentary intentions if, in the first instance, the funds she allocated to Robyn's and John's families are redirected to Robyn and John themselves."
I will consider the updating evidence in relation to each of Robyn's Family individually. However, before doing so, I note that I accept that the scheme of the Act necessarily permits the possibility of updating evidence being provided between the time of the hearing and the making of any orders. This is because s 59(1)(c) of the Act directs attention to "the time when the Court is considering the application". On the other hand, s 59(2) refers to the order for provision being made "having regard to the facts known to the Court at the time the order is made".
The Principal Judgment summarised the then available evidence in relation to Wayne Bruce: "484 The defendants read affidavits from four of Robyn's five children. Her eldest son, Wayne Bruce, receives a pecuniary legacy of $400,000 and his daughter, Madison Joey Webster, receives $150,000 (clause 3(b)). Wayne deposes (in an updating affidavit sworn 19 May 2017) that he provides financial assistance to his former wife, Elizabeth Vincent, and that his daughter Madison is dependent upon him. He owns his own home and, apart from high blood pressure, he is in good health (as is his daughter). His total assets are well in excess of his liabilities, and his income exceeds his expenditure. He says that he intends to use his legacy to pay off debts and pay for a family medical insurance plan; and that his daughter intends to pay for a university education with her legacy."
In this latest application, Wayne Bruce swore an updating affidavit of 26 May 2018. While his updating affidavit suggests that his financial position has deteriorated since his affidavit of 19 May 2017, for reasons which I will now set out, the updating affidavit does not include sufficient information for the Court to conclude that Wayne Bruce's position has changed sufficiently to cause the Court to depart from its conclusions in the Principal Judgment.
A fundamental difficulty with Wayne Bruce's updating affidavit is that it does not include a statement of assets and liabilities. This makes it impossible to assess the significance of the following evidence in his updating affidavit: "14. On 23 November 2015, I loaned the plaintiff, my mother Robyn $300,000 (interest free). In order to obtain the funds to loan Robyn $300,000, I took out a second mortgage on my home which incurred additional interest. 15. In or around 7 December 2017, I was forced to sell my home at 21 Nirvana Court, Runaway Bay Queensland as I was unable to continue interest payments on the secondary mortgage with the Commonwealth Bank."
In the statement of assets and liabilities attached to his 19 May 2017 affidavit, Wayne Bruce disclosed an excess of assets over liabilities of $328,334.21. This included his loan to Robyn of $300,000 as an asset, his house at 21 Nirvana Court with a value of $1,065,600 and a liability to the Commonwealth Bank of $487,000.
Presumably the sale of the Nirvana Court home reduced or eliminated his loan from the Commonwealth Bank. Nevertheless, assuming it sold for the value given in his 19 May 2017 affidavit, he still should have had approximately $600,000 equity from the sale. His updating affidavit gives no information as to how that equity was applied, for example whether he has purchased where he is currently living or whether he is renting.
In his updating affidavit he states that he continues to help Robyn cover her daily living costs. That situation will be reduced or eliminated when Robyn receives the fruits of her judgment in Robyn's case.
Wayne Bruce makes reference in his updating affidavit to a payment he made in January 2016 of just over $22,000 to Madison's mother Elizabeth Vincent for heart surgery. I give no weight to that evidence. It is not referred to in, and predates, his 19 May 2017 affidavit and there is no suggestion in either his 2017 or his latest affidavit that the January 2016 payment continues to have an adverse impact on his current financial position.
I have taken into account that Wayne Bruce's updating affidavit also discloses that he has had to take a pay cut from $125,000 to $100,000 from Luv Bridal Pty Ltd, that his child support payments since January 2018 for Madison have increased from $500 a month to $1,000 a month due to Madison's recent ill health, and that he is currently paying $180 per week for Madison to see a physio/chiropractor. I note that during 2017 he says he also provided accommodation and additional cash to his brother Lance.
Notwithstanding all of this, his updating affidavit says "I presently need to reduce my debts", but does not give any evidence as to what those debts are, and their terms and quantum.
In all the circumstances, the evidence contained in Wayne Bruce's updating affidavit is not sufficient to persuade me that there has been a change in his circumstances that would warrant varying the Principal Judgment when weighed against all of the reasons set out in the Principal Judgment as to why the Court reached the conclusion it did as to how the additional provision for Robyn should be borne.
The Principal Judgement recorded the evidence in relation to Scott: "485 Robyn's second son, Scott Raymond Webster, also receives a legacy of $400,000 under the Will (clause 3(b)). As of 2013, Scott was temporarily renting an apartment in Phuket, Thailand because, he said, he could not afford to live in Australia. He deposes that he does not live with, or give financial assistance to, any other person. He refers to a motorcycle and/or car accident which have left him with continuous back, neck, shoulder and knee pain, and to a need to reduce his debts and improve his financial situation so that he can return to Australia for the shoulder operation. He deposes to liabilities which exceed his assets by more than $200,000, and to monthly expenditure in excess of his income. However, Scott Raymond was not cross-examined and has not sworn any further affidavits since his affidavit of 26 April 2013; the Court therefore is not informed of his present living or financial situation."
For his present application Scott has sworn an updating affidavit on 26 May 2018. He proffers no explanation as to why he did not swear an updating affidavit for the purposes of the Principal Hearing. In the exercise of the Court's discretion, that is a fact which weighs against permitting him to now take advantage of his 2018 affidavit.
In any event, Scott's updating affidavit, even when read with his affidavit of 26 April 2013, is devoid of significant detail about his financial position beyond asserting that his debts have now increased by reference to "approximately $656,000 AUD in loans including rising unpaid interest to pay off". He gives no detail as to the nature or terms of those loans. This is significant when, at least in 2013, $163,000 of his $207,900 in liabilities was loans from Larry.
Like Wayne Bruce, Scott deposes to having taken a salary reduction from $125,000 to $100,000 and he says that he has approximately $28,000 AUD in the bank for day to day living expenses and paying down his loans and paying off his overdue bills (said to be $3,500 AUD). He says he intends to use his legacy to pay down his loans and seek medical and dental treatment.
Scott is currently living in the United States but says nothing about his accommodation circumstances, for example whether he is renting or owns his own home. Scott's updating affidavit does not indicate whether, apart from servicing his debts, his income exceeds his expenses.
I have taken into account that Scott has significant debts. However, the weight to be given to those debts is indeterminate in circumstances where he has failed to disclose to whom they are owed and the terms of those debts. He has not been forthcoming about the relationship between his day to day income and expenses. When those matters are combined with the lack of an explanation as to why he did not provide any updated evidence for the Principal Hearing, the Court is not satisfied that Scott's evidence discloses a sufficient basis to vary the Principal Judgment when weighed against all of the reasons set out in the Principal Judgment as to why the Court reached the conclusion it did as to how the additional provision for Robyn should be borne.
The Principal Judgment described Lance's position: "486 Robyn's third son, Lance Taylor Webster, likewise receives $400,000 (clause 3(b)). He says that he owns his own home, describes his health as "quite good", and says that he does not live with, or give financial assistance to, any other person. However, he says that he is currently unemployed (as at 19 May 2017) and that his liabilities exceed his assets by $119,500. He says that he intends to use his legacy to reduce his debts and start a business."
Lance has sworn an updating affidavit for the purposes of the present application on 23 May 2018. It discloses that he has had to sell his home because he could not afford the mortgage repayments. After paying out his $600,000 mortgage and $24,000 in arrears, he "had almost nil surplus". He owes Larry $8,363 (which Larry loaned Lance to pay off the latter's mortgage arrears). Since 27 February 2018 Lance has been living in a caravan which he purchased with another loan of $62,000. His monthly repayments of $200 to Larry are currently on hold until he (Lance) returns to employment. He remains unemployed and the caravan is parked in Robyn's yard at Lot 276 Noosa. He suffers from diverticulitis. His liabilities now exceed his assets by $197,692 (increased from $119,500 in 2017), noting that approximately $244,000 of his liabilities are loans to Larry. Beyond saying that his $200 per month repayments to Larry for his caravan loan are presently suspended, Lance gives no evidence as to the terms upon which Larry has made the various loans.
Lance deposes that he has monthly expenses of $3,885, and says he does not receive any government benefits. While he says nothing about other sources of income nor does he say that he cannot meet his monthly expenses, or that he can only do so by increasing his debts or by some other means. He deposes that he intends "to use the legacy given to me under the will of the deceased to pay off my loans and fund my daily medical expenses until I can return to work".
The Court accepts that Lance's indebtedness to his father Larry has increased and that he no longer lives in his (Lance's) own home. Nevertheless, I am not satisfied that the evidence of those changes in circumstances are sufficient to warrant varying the Principal Judgment when weighed against all of the reasons set out in the Principal Judgment as to why the Court reached the conclusion it did as to how the additional provision for Robyn should be borne.
Rhodora's circumstances were recorded in the Principal Judgment: "487 Finally, one of Robyn's daughters, Rhodora Steiner Rose, is entitled to a legacy of $100,000 under the Will. She owns her own home in Utah, has two sons dependent upon her, and has "generally fine" health but suffers from persistent asthma and bronchitis. Rhodora deposes to assets exceeding her liabilities by $66,268, but says that her monthly expenditure exceeds her income. She deposes to a present need to fund the educational costs of her two sons; says that her father, Larry Webster, has been providing her with financial assistance since her divorce; and intends to use her legacy to pay off outstanding bills, start saving college funds for her sons, and pay down her home mortgage as much as possible."
For the purposes of her present application, Rhodora has sworn an updating affidavit on 24 May 2018. That affidavit discloses broadly similar circumstances to those that existed at the time of the Principal Hearing. Her assets continue to exceed her liabilities, but now by an amount of USD$42,719 (compared to USD$66,268 in 2017). Her monthly expenditure continues to exceed her income by approximately USD$600. She has purchased a car for her elder son for USD$12,200 so he can attend college and drive to work. She plans to purchase a car for her other son, who is currently having mental health issues and is being treated by a psychologist. Rhodora is paying USD$200 per month for that son's therapy and USD$300 per month for his medications.
The home which Rhodora owns is over 40 years old and she has had to make significant repairs to it. These were financed by her father Larry, of which $USD15,000 of that financing is a loan which he made to her against her inheritance under the Will. Larry continues to provide her with financial assistance of USD$1,000 per month to make up the shortfall between her monthly income and expenses, but her evidence does not suggest that assistance is by way of loan. She works two jobs and wishes to become financially independent of her father, as well as paying off her home and debts to enable her to reduce her monthly expenses to save for the education of her sons.
While there has been some change in Rhodora's circumstances, I do not regard them as being either sufficient in size or of such a nature as to warrant varying the Principal Judgment when weighed against all of the reasons set out in the Principal Judgment as to why the Court reached the conclusion it did as to how the additional provision for Robyn should be borne.
At the Principal Hearing, the evidence in relation to Madison was given through Wayne Bruce (see paragraph [77] above). For the purposes of the present application, Madison's mother and tutor, Elizabeth Vincent, swore an affidavit on 24 May 2018. That discloses that Madison is currently 13 years old, but has skipped two grades so that she will graduate high school in three years time. She intends to study a Bachelor of Psychological Science and Bachelor of Law at Bond University. According to the 2018 schedule of fees these degrees would cost $186,868.00. Ms Vincent deposes that when Madison turns 17 she will require a car and will incur approximately $1,200 per month in basic living expenses at university. Wayne Bruce currently pays Madison's school fees. Ms Vincent also deposes that Madison currently has some special health issues including a diagnosis of severe gluten allergy and suffering from regular, serious migraines which are currently the subject of specialist medical assessment.
Significantly for present purposes, Ms Vincent does not suggest that, if Madison does not receive her legacy under the Will, she will not be able to undertake her proposed tertiary study or that Madison's current health issues and other requirements are unable to be met by Ms Vincent and Wayne Bruce. Weighing Madison's circumstances against those of Robyn, I am not satisfied that the evidence of her circumstances as Dorothy's grandchild is sufficient to warrant varying the Principal Judgment when weighed against all of the reasons set out in the Principal Judgment as to why the Court reached the conclusion it did as to how the additional provision for Robyn should be borne.
While I have considered the position of each member of Robyn's Family individually, the conclusions I have reached in relation to each of them are also informed by the following more general considerations.
First, I am fortified in my view of the importance to be attached to Dorothy's obviously deliberate testamentary scheme by the decision of the Court of Appeal in Sgro v Thompson [2017] NSWCA 326 especially per Payne JA at [4]-[6] and White JA at [68]-[74] and [80]-[88]. While that authority deals with the determination of what is sometimes referred to as the jurisdictional question, in my respectful opinion its emphasis on the importance of giving due weight to a testator's testamentary scheme must apply equally at the point of determining where the burden of any additional provision should fall. Furthermore, given the views I have expressed in paragraphs [60] to [61] above, such an approach is permitted pursuant to s 60(2)(j) of the Act, which invites attention to "any evidence of the testamentary intentions of the deceased person", with the Will itself being the best such evidence.
Second, I have taken into account that each of Robyn's Family would be better off if they received their legacies under the Will. So much is self-evident. However, that cannot be the end of the inquiry. As with the jurisdictional question, determining where the burden of any additional provision should fall involves an evaluative judgment that looks at all the facts and circumstances as they relate to the applicants for additional provision and the other beneficiaries of the estate. For example, I have also taken into account that Robyn has the benefit of Lot 276 Noosa (albeit subject to her $2,000,000 liability to Larry) whereas Lance (and perhaps Scott) do not have their own homes. Nevertheless, taking into account the respective circumstances of each of Robyn's Family now elucidated by the further evidence they have filed, and weighing that against Robyn's needs as determined in the Principal Judgment, I am not persuaded that their circumstances warrant changing the outcome in the Principal Judgment when Dorothy's testamentary scheme is given due weight, along with what I consider would be the community's expectation that a wise and just testator would have a primary obligation to support his or her children over more remote lineal descendants. That statement may be of less application in the situation where there is a history of special support or a special relationship between a testator and a grandchild or great grandchild, but the evidence in this case discloses no more than what might be called, without any disrespect, a normally affectionate relationship between Dorothy and her grandchildren and great-grandchildren.
Third, I have given careful consideration to, but cannot agree with, the submission put by Mr Wilson SC in his written submissions: "21. The starting point of any analysis for the burden of Robyn's increased provision should be the identification of which beneficiaries will be least affected by having their benefits under the Will reduced. Combined with this is the over-arching consideration stemming from the parens patriae jurisdiction that the Court should be jealous to protect the interests of minor children at the expense of claims by their parents and relatives."
Assuming, without deciding, that the parens patriae jurisdiction of the Court would support the conclusion contended for by Mr Wilson SC, it is irrelevant to the present case. The Court is not exercising its parens patriae jurisdiction. It is exercising a statutory jurisdiction pursuant to the terms of the Act. Moreover, while the Act permits the Court to have regard to anything which it might consider relevant in exercising the relevant discretions under the Act, I am unable to accept that any incident of the parens patriae jurisdiction is relevant.
Nor, with respect, can I accept Mr Wilson SC's submission as to the starting point of the analysis being the identification of those beneficiaries who will be least affected by having their benefits under the Will reduced. This approach risks creating a presumption which ignores the complex, fact based evaluative exercise which the Court must undertake. I have taken into account the circumstances of the various beneficiaries as a highly relevant factor, including that Lesley's Family have not put their financial circumstances in issue.
However, I do not think that it must follow in every case that the default position becomes that the "well off" beneficiaries virtually automatically bear the burden of any additional provision. There will undoubtedly be many cases where that should be so. However, in the present case, in my respectful view that consideration is considerably tempered by the clear and rational division which the Will demonstrates between the three families. Perhaps making this last point in a slightly different way, to say that Lesley's Family should bear the additional provision because "they can afford it", fails to give any, or any proper, weight to Dorothy's intention to give the substantial benefit of her estate to Lesley, Wayne and Kelly to reflect their very considerable role in generating Dorothy's wealth.
For these reasons, while the Court accepts that Robyn's Family have demonstrated circumstances sufficient to warrant the Court considering evidence directed to their position "at the time the [family provision] order is made", the Court declines to order that any part of the additional provision for Robyn (a half, all of it or anything else) should be borne by Lesley's Family's shares of the estate under clause 3(c) of the Will.

The final form of the orders - Robyn's case

Against the possibility that Robyn's Family's application would be unsuccessful, Robyn and the defendants provided what I understand to be agreed short minutes of order to give effect to the Principal Judgment, including as to costs. Some additional procedural orders will need to be added.

The final form of orders - John's case

The competing forms of orders provided by John and the defendants indicated a very large measure of agreement, including as to costs. There are, however, four remaining matters on which the Court's determination is required.
First, John contended that the final orders should contain precise figures for his various debts which had to be paid. The defendants proposed that there be a mechanism for those amounts to be determined. John has provided evidence in support of the various figures. To allow for a further process of determination would be inconsistent with the just, quick and cheap resolution of this already very long drawn out dispute. The Court will include in the final orders the amounts for the various debts proven by John in John's case.
Second, John was cross-examined in relation to whether or not the fees of certain professional advisors were on a "no win, no fee" basis, or an arrangement to that effect. It is not necessary for the Court to make specific findings because, on any view of those arrangements, John has succeeded so he is obliged to pay those fees. There is no basis for the Court to conclude that any of those advisors were acting for free.
Third, insofar as a number of John's debts to be discharged by the additional provision ordered by the Court constituted debts to lawyers, the defendants were anxious to preserve whatever rights they had to challenge the reasonableness of those fees under the Legal Profession Uniform Law Act (NSW) and its Queensland equivalent. The Court was not required by the parties to express a view as to whether, in the events which have happened, the defendants would have any such rights. However, it is obviously sensible that if the defendants do have such rights, the Court should make clear that its orders are without prejudice to them.
Fourth, the defendants submitted that it would be appropriate for the debts which were the subject of the final orders to be paid by them directly from the estate, rather than money being paid over to John for that purpose. They submitted that John had a history of improvidence which warranted such an order being made. Whether a matter of improvidence or misfortune, I accept that the interests of all parties will be better protected if John's debts are paid by the defendants (unless the defendants agree otherwise).
The approach set out in the preceding paragraph should also extend to the additional provision being ordered for John to purchase accommodation. The defendants submitted that the additional provision should lapse if he did not purchase a new home within six months. Although there was no evidence as to how quickly or easily John might purchase a new home unit, I think it appropriate for the Court to err on the side of caution and provide that John should have 12 months to purchase a home unit with the benefit of the additional provision ordered by the Court.

Should the final orders in John's case be stayed?

The defendants applied for a stay of the Court's final orders pending the outcome of a proposed appeal. In relation to John's case, Mr Ellison SC submitted that there was a serious question to be tried whether, given both Dorothy's generosity to John in life and the $2,000,000 provided for him under the Will, any further provision should have been ordered for him. On the balance of convenience it was submitted that John's poor financial circumstances made it clear that any moneys paid over to him or his creditors would not be recoverable if the defendants succeeded on appeal.
The Court accepts Mr Ellison SC's submissions. In doing so, I will set out the Court's responses to the four arguments put by Mr Condon SC against the application for a stay: 1. Mr Condon SC referred to the bankruptcy proceedings being brought by Lesley's family against John in reliance upon the costs judgment of Slattery J (see paragraph [38] above). He submitted that John should be entitled to resolve those proceedings by being put in a position to pay the debt. The force of this submission is dispelled by an undertaking which the Court will require (and which has been proffered) by Lesley's Family not to take any steps in the bankruptcy proceedings pending the determination of the defendants' appeal in John's case. 2. It was submitted that, if any appeal succeeded, John would agree to sell any home unit which he had purchased. This proposal is impractical. There would undoubtedly be some irrecoverable transaction costs, and no guarantee of the property being able to the sold promptly or at or above the price for which it had been purchased. Such an undertaking would not adequately protect the interests of the other beneficiaries and of the defendants. 3. Mr Condon SC submitted that, because of John's poor financial circumstances, John should receive a further interim payment now. In the absence of a specific application supported by evidence for a further interim payment, I consider that John's interests will be adequately protected by the defendants prosecuting any appeal expeditiously in accordance with an undertaking they have proffered, and by requiring any notice of appeal to be filed within four weeks of the making of the final orders. 4. Insofar as some of John's debts were owed to the solicitors instructing Mr Condon SC, it was submitted that firm would undertake to repay them if the defendants' appeal was successful. However, there was no suggestion that John would suffer any prejudice if his lawyers had to await payment until after the determination of any appeal.
Finally, the history of the litigation among the Steiner family to date demonstrates that at each stage of the litigious process different and unexpected permutations of outcome can be the result. That consideration, combined with the matters in paragraph [118] above, is why I am of the view that the final orders in John's case should be stayed in their entirety to maintain the status quo pending the determination of any appeal. However, to ensure expeditious prosecution of the appeal, the stay will only continue if the defendants file a notice of appeal within four weeks of the making of those final orders.

Should the final orders in Robyn's case be stayed?

Robyn sort to defuse the defendants' application that the final orders in Robyn's case be stayed by proffering this undertaking if she were to receive at least the additional provision which the Court will order: "The Plaintiff undertakes to the Court that until further order but subject to the payment of the further provision of $1,200,000 (the Further Provision) as ordered by this Court the Plaintiff shall: 1 pay any arrears of local Council rates affecting all that real property known as Lot 276 Noosa River Drive, Noosa North Shore, Queensland (the Property) within 14 days of receipt of the Further Provision and shall thereafter punctually pay same; 2 reduce the total balances of all debt facilities secured by the Property to no more than One Thousand Dollars ($1,000) and shall provide evidence of same by way of bank statement/s if required by the Defendants. 3 not assign, further encumber, lease, part with possession or otherwise deal with the Property; 4 keep the Property in good repair; and 5 keep the Property insured for full replacement value of all improvements thereon."
The offer of the undertaking was accompanied by evidence from Robyn that the loan facility secured by registered first mortgage over Lot 276 Noosa was currently drawn up to $843,559.73 with a limit of $880,000. It was put by Mr Bilinksy that, in effect, should any appeal by the defendants succeed, Robyn would be able to draw up against the loan facility to repay at least that much.
In contradistinction to his submissions concerning the stay in John's case, Mr Ellison SC did not base the defendants' argument for a stay on the submission that there was a serious question to be tried on the appeal. Rather, he submitted that unless the orders in Robyn's case were also stayed it would be impossible to work out anyone's entitlement. This consideration, he submitted, meant that the orders resolving both John's case and Robyn's case had to be stayed.
I do not agree. Under the Court's orders, Robyn will be entitled to both the difference between her $2,000,000 legacy and the pro rata adjusted amount of that legacy payable on distribution of the estate, and to the additional provision of $1,200,000. At this stage, the first of those two amounts is unknown. However, both of them are to be paid rateably from the legacies of Robyn's Family which total $1.55 million. In those circumstances, it seems to me that should any repayment be required: 1. subject to the next paragraph, Robyn would be able to draw up against her loan facility to make any repayment, and, 2. it should be straightforward to allocate what is repaid among the various interests.
Having said that, I am conscious that Robyn asks for the full amount of her additional provision in circumstances where the facility has a limit of $880,000. In my view an appropriate balancing of the parties' respective interests will be achieved by the following: 1. Robyn should receive by way of advance under her entitlements from the final orders in Robyn's case that amount which is equal to what is necessary to pay down her facility to $1,000 and to pay off her arrears of Council rates (which were about $13,000 as at 6 July 2018) (the "Advance"); 2. Securing the Advance by giving an undertaking to the Court in the form proffered by her (see paragraph [121] above) amended as to the amount, and including an obligation not to draw up on the facility unless agreed with the defendants or by further order of the Court, and providing to the defendants a document confirming that they are entitled to lodge a caveat over Lot 275 Noosa to secure any repayment of the Advance.
The balance of the final orders in Robyn's case will then be stayed pending further order or the determination of any appeal.

Conclusion

With these reasons I will provide to the parties copies of the Court's proposed final orders based on their drafts which were forwarded to my Associate, with such further amendments as I consider necessary to reflect these reasons. The parties will have an opportunity to make any further, brief submissions about the form of those orders at a directions hearing I will appoint for the making of the final orders. 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: 13 September 2018

At a glance

Court

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Before

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Judgment (14 paragraphs)

Legislation Cited (1)

Cases Cited (6)

Cited By (5)