Xiang bht Cao v Tong - [2021] NSWSC 44 - NSWSC 2019 case summary — Zoe

NSWNSWSC

Xiang bht Cao v Tong

[2021] NSWSC 44

Supreme Court of NSW|2019-08-15|Before: Hallen J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2019-08-15

Before

Hallen J

Source

Original judgment source is linked above.

Judgment (25 paragraphs)

[1]

Person under legal incapacity - Tutor - The Plaintiff commenced proceedings by tutor - Some evidence that Plaintiff falls within definition of person under a legal incapacity - Defendant does not dispute that Plaintiff requires a tutor - Court satisfied that Plaintiff requires a tutor in relation to the conduct of the proceedings, in order to protect his interests SUCCESSION - Family Provision - Claim by child of the deceased - The Plaintiff, a now adult child of the deceased, makes a claim for a family provision order under Chapter 3 of Succession Act - No dispute as to the Plaintiff's eligibility as a child of the deceased - Nature of relationship of the Plaintiff and the deceased - Medical condition of the Plaintiff - Dispute as to nature and value of estate - Little actual estate in New South Wales - Notional estate in New South Wales - Substantial estate and property that may be designated as notional estate outside New South Wales - No dispute that deceased was, at the time of his death, domiciled in New South Wales - Significant competing claim of the sole beneficiary, the Defendant, who is the widow of the deceased - Whether a family provision order should be made for the Plaintiff, and if so, the nature and quantum of the provision to be made and how the burden of the provision, if any, made should be borne Legislation Cited: Civil Procedure Act 2005 (NSW), ss 3, 56, 61, 62, 64, 66, 98 Family Law Act 1975 (Cth), ss 61B, 61C Family Provision Act 1982 (NSW), ss 22, 27 Interpretation Act 1987 (NSW), ss 11, 31 Practice Note SC Eq 7, pars 9.1, 17, 24 Practice Note SC Gen 18 Probate and Administration Act 1898 (NSW), ss 84A, 86 Succession Act 2006 (NSW), ss 3, 57, 58, 59, 60, 61, 63, 64, 65, 66, 72, 74, 75, 76, 77, 78, 79, 80, 83, 84, 87, 88, 89, 92, 99, 113, 127 Uniform Civil Procedure Rules 2005 (NSW), rr 7.13, 7.14, 10.2, 23.4, 31.3, 31.16A, 33.10 Cases Cited: Alexander v Jansson (2010) 6 ASTLR 432; [2010] NSWCA 176 Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 Andrew v Blair [2007] NSWSC 1003 Bartlett v Coomber [2008] NSWCA 100 Bkassini v Sarkis [2017] NSWSC 1487 Blendell v Blendell; Blendell v Blendell [2020] NSWCA 154 Blore v Lang (1960) 104 CLR 124; [1960] HCA 73 Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86 Borebor v Keane (2013) 11 ASTLR 96; [2013] VSC 35 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327 Burke v Burke (No 2) (2015) 13 ASTLR 313; [2015] NSWCA 195 Carey v Robson (No 2) [2009] NSWSC 1199 Cetojevic v Cetojevic [2006] NSWSC 431 Chan v Chan (2016) 15 ASTLR 317; [2016] NSWCA 222 Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 Chong v Mo [2010] NSWSC 251 Contract Mining Services Pty Ltd v Adelaide Brighton Cement Limited [2020] SASC 69 de Angelis v de Angelis [2003] VSC 432 Deputy Commissioner of Taxation v P (1987) 11 NSWLR 200 Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235 Diver v Neal (2009) 2 ASTLR 89; [2009] NSWCA 54 Edgar v Public Trustee for the Northern Territory [2011] NTSC 5 Estate Grundy; La Valette v Chambers-Grundy (2018) 17 ASTLR 64; [2018] NSWSC 104 Ferrier v Nationwide News Pty Limited (No 3) [2015] NSWSC 1806 Fiorentini v O'Neil (Court of Appeal (NSW), 4 December 1998, unrep) Foley v Ellis [2008] NSWCA 288 Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 Galt v Compagnon (Supreme Court (NSW), Einstein J, 24 February 1998, unrep) Ghougassian v Fairfax Community Newspapers Pty Ltd [2015] NSWCA 307 Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31 Goodsell v Wellington [2011] NSWSC 1232 Gorton v Parks (1989) 17 NSWLR 1 Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843 Grey v Harrison [1997] 2 VR 359 Hall v Hall (2016) 257 CLR 490; [2016] HCA 23 Hampson v Hampson (2010) 5 ASTLR 116; [2010] NSWCA 359 Harkness v Harkness (No 2) [2012] NSWSC 35 Herman v Premier Security Co-operative Ltd [2010] 3 SLR 110; [2010] SGCA 15 Heuston v Barber (1990) 19 NSWLR 354 Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep) Hitchcock v Pratt (2010) 79 NSWLR 687; [2010] NSWSC 1508 Hunter v Hunter (1987) 8 NSWLR 573 In re Butchart (deceased): Butchart v Butchart [1932] NZLR 125 James v Australia and New Zealand Banking Group Ltd [2017] NSWCA 84 John v John [2010] NSWSC 937 Kavalee v Burbidge (1998) 43 NSWLR 422 Keaton v Gumulak [2020] NSWSC 943 Kostov v YPOL Pty Ltd (2018) 98 NSWLR 1002; [2018] NSWCA 306 Kostov v Zhang (No 2) [2016] NSWCA 279 Liprini v Liprini [2008] NSWSC 423 Maniotis v J H Lever & Co Pty Ltd [2006] FCAFC 7 Mao v AMP Superannuation Ltd [2015] NSWCA 252 McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 McKenzie v Topp [2004] VSC 90 Megerditchian v Khatchadourian [2020] NSWCA 229 Meres v Meres [2017] NSWSC 285 Page v Hull-Moody [2020] NSWSC 411 Pain v Holt (1919) 19 SR (NSW) 105 Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52 R v Fisher (2009) 22 VR 343; [2009] VSCA 100 Rappard v Williams [2013] NSWSC 1279 Re Venables [2018] EWHC 1037 (Fam) Re XYZ, Solicitor [2005] NSWSC 72 Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473 Sammut v Kleemann [2012] NSWSC 1030 Saravinovska v Saravinovski (No 5) [2015] NSWSC 128 Sgro v Thompson [2017] NSWCA 326 Shannon v Steinmetz [2019] HCASL 332 Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 Sirola & Sirola [2016] FamCA 620 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297 Smith v Woodward (Supreme Court (NSW), Macready M, 9 September 1994, unrep) Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 Stott v Cook (1960) 33 ALJR 447 Sung v Malaxos [2015] NSWSC 186 Sydney South West Area Health Service v MD (2009) 260 ALR 702; [2009] NSWCA 343 Tanamerah Estates Pty Ltd as the trustee for Alexander Superannuation Fund v Tibra Capital Pty Ltd [2013] NSWCA 266 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Torok v Becker [2020] NSWSC 1570 Towson v Francis [2017] NSWSC 1034 Tugrul v Tarrants Financial Consultants Pty Limited (in liquidation) [No 2] [2013] NSWSC 1971 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 White v Barron (1980) 144 CLR 431; [1980] HCA 14 Yee v Yee [2017] NSWCA 305 Texts Cited: G E Dal Pont, K F Mackie, Law of Succession (2nd ed, 2018, LexisNexis Butterworths) New South Wales Law Reform Commission, Report 110 Uniform Succession Laws: Family Provision, (May 2005) Rosalind Atherton, "The Concept of Moral Duty in the Law of Family Provision - A Gloss or Critical Understanding?" (1999) 5(1) Australian Journal of Legal History 5 Rosalind Croucher, "Contracts to Leave Property by Will and Family Provision after Barns v Barns [2003] HCA 9" (2005) 27(2) Sydney Law Review 263 Category: Principal judgment Parties: Rio Kai Rui Xiang by his tutor Liu Mei Cao (Plaintiff) Yuhua Tong (Defendant) Representation: Counsel: J R Young (Plaintiff) R Kako (Defendant) (12 - 15 August 2019)

[3]

Introduction

HIS HONOUR: These proceedings concern a family dispute following the death, on 26 January 2016, of Xiao Feng Xiang (the deceased). The Plaintiff, Rio Kai Rui Xiang, is one of the deceased's two children. The deceased's anglicised name was "Damon".
The Plaintiff is said to be a person under a legal incapacity. Whilst at the time the proceedings were commenced, he was a minor, he is no longer one. I shall return to the question whether he requires a tutor, now that he has reached the age of 18 years. I shall also refer to the medical evidence going to his current medical conditions later in these reasons.
The Plaintiff gave no evidence, himself, and most of the evidence upon which he relied in support of his application was given by his tutor, Liu Mei Cao (the tutor), who is his mother. The tutor's anglicised name is "Melody". Her consent to act as tutor was filed on 14 September 2016. She was cross-examined using an interpreter.
The Defendant named in the proceedings is Yuhua Tong, the widow of the deceased. She is the sole executrix and beneficiary named in the deceased's Will dated 14 July 2015, Probate of which Will was granted, by this Court, to her, on 21 March 2016. The Defendant's anglicised name is "Ivy". She was also cross-examined using an interpreter.
In relation to evidence, I have made allowance for language barriers, although both the tutor and the Defendant spoke some English. I listened to the evidence of each of the Plaintiff and the Defendant, and I have read the transcript of the evidence against the background of language difficulties that each faced as English is not the first language of either. Furthermore, I have borne in mind the passage of a substantial amount of time between certain events and the affidavits and the cross-examination.
The tutor gave evidence that when she affirmed her two affidavits in the proceedings, she had the contents translated into the Chinese language: Tcpt, 12 August 2019, p 54(37-40).
I formed an overall impression that each of the tutor, and the Defendant, was attempting to assist the Court, although, at times, each did not answer the question, in a direct way, I cannot conclude that either was untruthful. However, in some respects, I am cautious about the evidence of each of them. In the case of the tutor, she was not as forthcoming, in her affidavit evidence, as she could have been. In the case of the Defendant, at a time when she was legally represented, she seemed to have made the evidence about the nature and value of the deceased's estate far more complicated than it ought to have been. Furthermore, she was clearly emotional about having been involved in litigation involving her husband's estate, both here and overseas, which proceedings could result in that estate being reduced because of the provision made for the Plaintiff and the costs of the proceedings, which emotion, in my view, affected some of her evidence. (By way of example, I refer to her requiring proof that the Plaintiff was the biological son of the deceased, a matter that appeared to be clear on the evidence and the dispute about which delayed the hearing of the proceedings.)
The only other family member, who gave evidence in the proceedings, on behalf of the Plaintiff, was the deceased's sister, Xiaoqing Xiang. Her anglicised name is "Ellen". She was cross-examined.
The matter was adjourned following the conclusion of the cross-examination and after each party's legal representative, albeit late, had provided a written outline of submissions. The Plaintiff's counsel provided further submissions, in writing, shortly before the recommencement of the hearing and the Defendant provided further submissions on the day of the hearing. Then counsel for the Plaintiff, and the Defendant, through an interpreter, made oral submissions. I shall return to the topic of failure to comply with directions, shortly. The matter was then delayed, significantly, for reasons to which I shall come.
At the hearing, which commenced in August 2019, each party was legally represented. However, by the date of the continuation of the hearing, some 15 months later, the Defendant was no longer legally represented by either solicitor or counsel. She stated that she was unable to afford to retain legal representation. I find this assertion somewhat surprising bearing in mind the nature and value of the property that formed the estate of the deceased or that may be designated as notional estate, both in Australia and overseas.
However, for whatever reasons, the Defendant chose to appear without legal representation from the time the matter was adjourned part heard. This necessitated explaining to her, more than once, that she could not simply send correspondence to the Court, with or without including the Plaintiff's legal representative as a recipient of the email, upon which she wished the Court to act.
Although the first part of the hearing was conducted as a live hearing, when the matter resumed in November 2020, the Defendant was in China, and she was unable to appear, other than remotely. The current COVID-19 pandemic, therefore, necessitated the continuation of the hearing remotely, with the use of video technology and electronic document handling software. This required co-operation, planning, and flexibility, on the part of all involved.
The final part of the hearing was conducted, using Microsoft Teams, a video communication platform that enables multiple persons to appear together online and communicate face-to-face using audio and video facility.
At my request, my Associate arranged practical hearing preparation, including conducting a video-hearing test run using the platform on the day before the hearing commenced. Naturally, it was confirmed that when the hearing resumed on 17 November 2020, it would take place by videoconference.
Section 62(1) of the Civil Procedure Act 2005 (NSW) provides that the court may, by order, give directions as to the conduct of any hearing. Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 31.3(1) also provides that, if the court so orders, evidence and submissions may be received by telephone, video link or other form of communication. Thus, the Court has a general power to make orders permitting the evidence of a witness to be given by audio video link.
At the commencement of the continuation of the hearing, without opposition, the Court made the following direction: "The Court directs, pursuant to s 5B of the Evidence (Audio and Audio-Visual Links) Act 1998 (NSW), that each of the parties and his or her legal representative, respectively, shall make her, and his, submissions, by audio-visual link from a place within Australia, in the case of the Plaintiff other than Court Room No 2 Hospital Road, Sydney, and from outside Australia in the case of the Defendant."

[4]

The Claim

The Plaintiff filed a Summons, by his tutor, on 14 September 2016. He sought a family provision order out of the estate and notional estate of the deceased, pursuant to Chapter 3 of the Succession Act 2006 (NSW) (the Act), and an order for his costs. A family provision order is one for the maintenance, education, or advancement in life, of an eligible person. The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (the former Act), which was repealed, effective from 1 March 2009.
The Summons seeks provision out of the wrong estate, referring to "the estate and/or notional estate of the late Ricardo Garcia of Glendenning in the State of New South Wales". No reference was made to this error and I have treated it as an irrelevant typographical error. The parties were aware of the estate out of which provision was being sought, the correct name of the deceased being referred to on the front page of the Summons and in the evidence.
Section 64(2) of the Civil Procedure Act provides that subject to s 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings. I have treated the name of the deceased, referred to in the body of the Summons, as having been amended accordingly.
A family provision order may be made in relation to property that is not part of the deceased's estate but is designated as "notional estate" of the deceased by an order under Pt 3.3 of the Act: s 63(5). "Notional estate" of a deceased person is defined in s 3(1) of the Act to mean property designated by a notional estate order as notional estate of the deceased person. "Notional estate order" means an order made by the Court under Ch 3 of the Act, designating property specified in the order as notional estate of a deceased person. A person's rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act.
Pursuant to s 80(1) of the Act, a notional estate order designating property specified in the order as notional estate of the deceased may be made if the Court is satisfied that the deceased entered into a relevant property transaction before the deceased's death, and that the transaction is one to which the section applies: s 80(2) of the Act. "Relevant property transaction" is defined in s 75, and examples of relevant property transactions are set out in s 76.
A person enters into a "relevant property transaction" if "he or she does, directly or indirectly, or does not do, any act that (immediately or at some later time) results in property being held by another person (whether or not as trustee) or subject to a trust, if full valuable consideration is not given to the person for doing or not doing the act": G E Dal Pont, K F Mackie, Law of Succession (2nd ed, 2018, LexisNexis Butterworths) at [20.60]; s 75(1) of the Act.
One example is provided in s 76(2)(b), which provides the circumstance of a person holding an interest in property as a joint tenant and the person does not sever that interest before ceasing (because of death or the occurrence of any other event) to be entitled to do so, with the result that, on the person's death, the property becomes, by operation of the right of survivorship, held by another person (whether or not as trustee) or subject to a trust.
As will be read, the Plaintiff claims that the deceased's failure to sever the joint tenancy, held with the Defendant, in certain property at Mosman, Sydney, New South Wales, at the time of his death, was a "relevant property transaction".
The Court may designate property as notional estate not only to make provision for an applicant but also, if making an order for provision for an applicant, for costs: s 78 of the Act. It was submitted that so much of one half of the value of the Mosman property as is necessary to satisfy any order for provision and costs that is made, can, and should, be designated as notional estate.
A notional estate order must not be made without consideration of the importance of not interfering with reasonable expectations in relation to property, and of the substantial justice and merits involved in making or refusing to make the order: s 87 of the Act. The Defendant has relied upon this section to support her submission that no notional estate order should be made.
It was suggested, at the time the Defendant was legally represented, that if provision is made for the Plaintiff and any of the Plaintiff's costs are ordered to be paid out of the estate, the lump sum could constitute a charge on the Mosman property held in the name of the Defendant. Naturally, the Defendant would be given an opportunity to satisfy the order for provision: Tcpt, 12 August 2019, p 18(19-24); Tcpt, 13 August 2019, p 71(17-26).
It seems, in circumstances where the Defendant, at the date of the conclusion of the hearing was living in the People's Republic of China, and it is not known when, or if, she will return, that an order will need to be made to ensure compliance with any orders for provision and for costs made by the Court. Section 66(1) of the Act provides that the Court may, in addition to, or as part of, a family provision order, make orders for the purpose of giving effect to the family provision order.
In view of what seems to be the nature and value of the deceased's actual estate, in New South Wales, and outside the jurisdiction, it may not be necessary to have recourse to the property that may be designated as notional estate of the deceased as the estate, overseas, appears to be sufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made. However, if provision were not made wholly out of the deceased's estate, the notional estate of the deceased, in New South Wales, will need to be considered: s 88(c) of the Act.
It will be necessary to return to the topic of the nature and value of the actual estate and notional estate later in these reasons.

[6]

Some formal matters

Section 57(1) of the Act provides that "eligible persons" may apply to the Court for a family provision order. It is not in dispute that, as a child of the deceased, the Plaintiff is an eligible person within s 57(1)(c) of the Act: Tcpt, 12 August 2019, p 5(07-14). The language of the sub-section is expressive of the person's status, regardless of age, as well as his, or her, relationship to the deceased. It is not necessary that the child be a dependant, at the time of the deceased's death, in order to be an eligible person under this head of eligibility (as dependency is not an element of the definition of an "eligible person" in s 57(1)(c)). However, under s 60(2) of the Act, relevantly for the purposes of the present case, the Court may consider, on the question whether to make a family provision order and the nature of any such order, "… (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which, and the basis on which the deceased person did so …". This matter will not be relevant to whether the applicant is an eligible person in the case of a child of the deceased.
It was not in dispute that the Plaintiff commenced the proceedings within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased): s 58(2) of the Act: Tcpt, 12 August 2019, p 5(16-21).
It was also not in dispute that, as the deceased had dealt with the whole of his estate in his Will, there was no scope for the operation of the intestacy rules, with the result that it is only necessary, hereafter, to refer to the Will of the deceased: Tcpt, 12 August 2019, p 5(23-28).
In the notice of eligible persons, filed on 14 September 2016, on behalf of the Plaintiff, the following persons were identified as persons who are, or who may be, eligible persons, namely, the Plaintiff, the deceased's and the Defendant's minor son, Yitong; the Defendant; the deceased's sister, Ellen; the deceased's mother, Shaoyi Xiang (née Chen); and the deceased's father, Yi Fei Xiang. Although not included in the notice of eligible persons, counsel for the Defendant acknowledged that the tutor, as a former de facto partner of the deceased, may also be an eligible person.
The basis of eligibility, in respect of the deceased's parents, and his sister, is not disclosed in the evidence. Perhaps, they are eligible persons within s 57(1)(e) of the Act, each being a person who was, at any particular time, wholly or partly dependent on the deceased, and who was at that particular time, or at any other time, a member of the household of which the deceased person was a member. However, this is merely speculation. In any event, it appears that each of them was served with a notice of the Plaintiff's application, and of the Court's power to disregard his, and her, interests, in the manner and form prescribed by the regulations or rules of court.
However, the deceased's and the Defendant's son, Yitong, was not served with such a notice. It was said that service upon him was unnecessary as he lived with the Defendant who supported him completely. Very little is known about Yitong's financial resources, needs, and any claim that he had on the bounty of the deceased. I shall not disregard his interests, as an eligible person, and will also consider that the Defendant, his mother, has the sole parental responsibility (meaning all the duties, powers, responsibilities and authority which, by law, a parent has in relation to a child who is not 18 years old) for him: Family Law Act 1975 (Cth), ss 61B, 61C.
Only the Plaintiff has made a claim for a family provision order. However, the Defendant, as the sole beneficiary, has given evidence of the bases of her claim, upon the bounty of the deceased. The Act specifically provides that the interests of a beneficiary cannot be disregarded, even though she, or he, has not made a claim: s 61(1) of the Act. A beneficiary is entitled to rely upon the terms of the deceased's Will and her, his, or its, competing claim, respectively, as a chosen object of the deceased's testamentary bounty.
As the sole beneficiary named in the deceased's Will and as the surviving widow, with a dependent minor child, the Defendant asserted a strong competing claim, together with a claim based upon her significant financial, and other, contributions, made to the deceased and to the jointly held assets (in particular, the Mosman property).
However, the Defendant did not give evidence of her financial resources or needs, although, as stated, she stressed her close connection with, and the bases of her claim upon the bounty of, the deceased.
There is significance in the deliberate forensic decision, made to adduce no evidence regarding a beneficiary's financial resources and needs. The effect of that silence in relation to financial resources and needs, in the cases, was considered by me in Sammut v Kleemann [2012] NSWSC 1030 at [137]-[140]. I recently repeated those principles in Keaton v Gumulak [2020] NSWSC 943 at [15]. I shall not repeat all that I have written again here.
The Court of Appeal, in Tobin v Ezekiel (2012) 83 NSWLR 757 at 783 [94]; [2012] NSWCA 285 at [94] (Meagher JA, Basten and Campbell JJA agreeing), stated the principle far more succinctly as follows: "… The fact that an executor has not led evidence as to the financial position of any beneficiary or beneficiaries will often provide a basis for the court to infer that each has sufficient income and resources to meet his or her needs: see, for example, Anderson v Teboneras [1990] VR 527 at 535-536; Mason v Permanent Trustee Co Ltd (Supreme Court, Macready M, 5 December 1996, unreported) at 6. The justification for that inference is an assumption that the executor has acted in accordance with his or her duty to lead such evidence, if relevant."
Also see Poletti v Jones (2015) 13 ASTLR 113 at 118 [23]; [2015] NSWCA 107 at [23] (Basten JA, Leeming JA agreeing).
Even if the Court may infer that a beneficiary has no need for provision from the estate of the deceased, and, that, on a comparative basis, she, he, or it, is better off than the Plaintiff, her, his, or its, silence does not mean that the competing claim of each of the beneficiaries should not be evaluated. As will be read, what is "proper" requires an evaluative judgement that has regard to all relevant circumstances, not merely the financial circumstances of the parties and of the beneficiaries.
As was written in Edgar v Public Trustee for the Northern Territory [2011] NTSC 5 at [46] (Kelly J): "There is no onus on the ... residuary beneficiary under the will to show that she is entitled to be treated as such - or to prove what may be necessary for her proper maintenance and support. Rather the onus is on the plaintiff to show that proper provision is not available for him under the terms of the will."
As stated above, the consequences of not disclosing a beneficiary's financial resources and needs simply means that the Court, in considering those resources and needs, may draw the inference to which I have referred above. Thus, in reaching the conclusion in regard to the family provision order sought by the Plaintiff, the Court will not disregard the competing interest of the Defendant as a beneficiary who has a claim upon the bounty of the deceased and as a chosen object of the deceased's bounty. In this way, the Court gives consideration to the relationship between the deceased and a beneficiary, in the Defendant's case having regard to their marriage of about nine years and her contribution to the deceased's estate, and also acknowledges the need to give due regard to "what the testator regarded as superior claims or preferable dispositions" as demonstrated by his Will: Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19 (Dixon CJ, McTiernan J agreeing); [1962] HCA 19. In doing so, a relevant matter is whether the deceased gave appropriate consideration to whether or not some provision ought to be made, on his death, for each of his children.
The Defendant, as the sole executrix, made a claim for reimbursement of $30,000, said to be "for travel to Australia [and] expenses in relation to proceedings". She did not explain how the amount claimed had been calculated. As the sole beneficiary, she receives the whole of the residuary estate, but it is relevant to consider the amount claimed as a potential liability of the estate.
In her first affidavit affirmed 28 February 2017, explaining the nature and value of the deceased's estate, the Defendant stated, at par 16, "I do not propose to charge any commission as executrix". That, of course, is a claim under s 86 of the Probate and Administration Act 1898 (NSW) "for the executor's … pains and trouble as is just and reasonable".

[7]

Whether the Plaintiff is a person under a legal incapacity

As earlier stated, although the Plaintiff was a child under the age of 18 years at the time the proceedings were commenced, at the date of the commencement of the hearing, he had reached 18 years of age.
Section 3(1) of the Civil Procedure Act contains the following inclusive, but not exhaustive, definition of the term "person under legal incapacity", which: means any person who is under a legal incapacity in relation to the conduct of legal proceedings (other than an incapacity arising under section 4 of the Felons (Civil Proceedings) Act 1981) and, in particular, includes - (a) a child under the age of 18 years, and (b) an involuntary patient, a forensic patient or a correctional patient within the meaning of the Mental Health Act 2007, and (c) a person under guardianship within the meaning of the Guardianship Act 1987, and (d) a protected person within the meaning of the NSW Trustee and Guardian Act 2009, and (e) an incommunicate person, being a person who has such a physical or mental disability that he or she is unable to receive communications, or express his or her will, with respect to his or her property or affairs.
Pursuant to s 11 of the Interpretation Act 1987 (NSW), which makes a definition in a statute also apply to delegated legislation made under that statute, the definition in the Civil Procedure Act also applies to the UCPR. In any event, a note to the Dictionary of the UCPR expressly adopts the definition of "person under legal incapacity" contained in the Civil Procedure Act.
UCPR r 7.13, which was described as "a supplementary definition" by Basten JA in Tanamerah Estates Pty Ltd as the trustee for Alexander Superannuation Fund v Tibra Capital Pty Ltd [2013] NSWCA 266, at [19], defines a "person under legal incapacity" as including "a person who is incapable of managing his or her affairs". Otherwise, there is no definition of the term in the UCPR.
UCPR r 7.14(1) requires a person under legal incapacity to commence, and carry on, proceedings by a tutor.
In Rappard v Williams [2013] NSWSC 1279, I noted, at [68], the fact of a tutor having been appointed, is not determinative of the question whether the proceedings should have been instituted by the Plaintiff through a tutor: also see, for example, Chong v Mo [2010] NSWSC 251 at [70] (McLaughlin AsJ).
I also wrote, at [71], [76] - [80]: "Where there is no evidence that a party fits within sub-paragraphs (a) to (e) of the definition of 'person under legal incapacity' in s 3 of the Civil Procedure Act, the only way in which she, or he, could be a person under legal incapacity is if the Court were satisfied that she, or he, is a 'person who is under a legal incapacity in relation to the conduct of legal proceedings' who does not fit within any of paragraphs (a) - (e) of the definition, or that she or he was a person who was incapable of managing her affairs within the meaning of UCPR rule 7.13. … Whether a person is under a legal incapacity is always a task, and time, specific, matter, dependent upon whether the person has the ability to understand and evaluate the particular task that is in question at the particular time: Guthrie v Spence [2009] NSWCA 369; (2009) 78 NSWLR 225 at [174] - [175]; Azar v Kathirgamalingan [2012] NSWCA 429, per Campbell JA, at [168]. In this case, whether the Plaintiff is a 'person who is under a legal incapacity in relation to the conduct of legal proceedings' must be considered. Thus, even though a party may be able to carry out tasks associated with daily living, she, or he, may lack the capacity to understand and evaluate the matters involved in the conduct of legal proceedings, and for that reason fall within the definition of 'person under legal incapacity'. Chadwick LJ in Masterman-Lister v Brutton & Co (referred to in the passage quoted above) also said, at [75]: '... the test to be applied, as it seems to me, is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law - whether substantive or procedural - should require the interposition of a next friend or guardian ad litem …' The 'conduct of legal proceedings' refers to doing the various things that would need to be done in the course of the proceedings in which the party is involved, including seeking advice as to the nature of the proceedings, about the difficulties, risks, costs and effort, involved in pursuing the claim, and the likely result, including the type of order that may be made, comprehending and evaluating that advice, and engaging in the continuing process of co-operation, interaction and decision-making that exists between lawyer and client in running any civil action. In other words, the sort of incapacity involved in the requirement for a tutor is incapacity to do the range of things that is involved in, not only starting, but also continuing, litigation and being able to give instructions and consider advice about settling the proceeding: see, for example, Pistorino v Connell [2012] VSC 438, per Dixon J, at [21] - [24]. In Dalle-Molle v Manos [2004] SASC 102; (2004) 88 SASR 193, Debelle J observed, at [23], that the question of whether a litigant has the capacity to understand the issues in legal proceedings so that he may conduct them is 'issue-specific' and 'relates to the facts and subject-matter of the particular case'. In Re P [2006] NSWSC 1082, Young CJ in Eq considered the evidence pointed to the defendant as a person with 'a mental problem in continuing with the litigation'. He found that the defendant had 'a problem which stops him from giving proper instructions to his lawyers and the lawyers would have difficulty in doing what they were instructed by the client because they could not be assured that his mind was proceeding his mouth'."
If one approaches the question according to the test propounded by Chadwick LJ, it is necessary to ask, in this case, whether the Plaintiff can deal with the issues in the proceedings with the assistance of appropriate explanation from his lawyers and the experts who have been retained to give evidence. This must extend to all the aspects of conducting a case: Rappard v Williams at [78].
There is no doubt that the Court may dispense with the requirement for a tutor to be appointed in particular cases: Mao v AMP Superannuation Ltd [2015] NSWCA 252 at [59] (The Court); Kostov v YPOL Pty Ltd (2018) 98 NSWLR 1002 at 1008 [20]; [2018] NSWCA 306 at [20] (The Court).
Counsel for the Defendant stated that the Defendant had "taken the view that we don't dispute there is a level of incapacity which warrants the intervention of a tutor" and counsel for the Plaintiff accepted that, even if the Plaintiff was not a person within the definition of a person under a legal incapacity, "in circumstances where a plaintiff can't deal with the issues in the proceedings, a tutor would be useful": Tcpt, 12 August 2019, p 5(30) - p 6(01).
Whether the Plaintiff falls strictly within the definition of "[a] person under legal incapacity" within the meaning of UCPR r 7.14, the medical evidence, to which I shall refer later in these reasons, persuades me that the Plaintiff requires a tutor in relation to the conduct of the proceedings, in order to protect his interests, even if there is insufficient evidence to enable me to be affirmatively satisfied that he falls within the various statutory definitions of 'a person under a legal incapacity': see Ferrier v Nationwide News Pty Limited (No 3) [2015] NSWSC 1806 at [20]-[21] (McCallum J).
In this case, I am also satisfied that, since the tutor has not brought her own proceedings for a family provision order, her interests are not adverse to that of the Plaintiff: Deputy Commissioner of Taxation v P (1987) 11 NSWLR 200 at 203-204 (Hodgson J); Saravinovska v Saravinovski (No 5) [2015] NSWSC 128 at [32]-[34] (Kunc J).

[8]

The proceedings in People's Republic of China

During the proceedings, the deceased's and the Defendant's property in the People's Republic of China, was said to have become the subject of legal proceedings being conducted there. The Defendant stated that she "[understands] that the Shanghai Pudong People's Court has full discretion over the matter and will make orders as it sees fit in accordance with Chinese inheritance law".
What was not made clear during the hearing but has become apparent upon a further consideration of the evidence, was that there were, in fact, two different proceedings in China. The first, bearing case number (2017) Hu 0115 Min Chu xxx, appears to have been brought by the Defendant in which she sought orders in relation to the Shanghai property (the first Chinese proceedings).
Although unclear, it appears from a document entitled "Legal Opinion on the Inheritance of Real Estate" prepared by Wang Lunfeng, a Chinese lawyer, that these proceedings concern whether the Shanghai property was the "common property" or "marital property" of the deceased and the Defendant. Whether that was so would determine whether the Defendant was entitled to a 50% share of that property, with the balance to form part of the deceased's estate: Affidavit, Yuhua Tong, 2 November 2017 at Annexure K.
The second proceedings, bearing case number (2019) Shanghai 0115 Min Chu xxx, appeared to be a claim, brought by the deceased's parents, contesting the validity of the deceased's Will and demanding "that the estate be divided according to the legal inheritance" (the second Chinese proceedings): Ex 2.
As I understand it, the first Chinese proceedings were stayed pending the conclusion of these proceedings and, perhaps, also, because, the Plaintiff is said not to be a party, as the evidence establishing that he is a child of the deceased had not been filed.
The Defendant stated that she is prepared to file the necessary evidence in this regard if necessary. (I do not suggest any criticism of the Defendant as the necessary evidence was obtained by the tutor and could have been filed in the Chinese proceedings by her, or by the deceased's parents, who are, as I understand it, parties in those proceedings: Tcpt, 14 August 2019, p 180(05-11).)
Annexed to the Defendant's affidavit affirmed on 2 November 2017, was a translated document headed "Legal Opinion on the Inheritance of Real Estate" dated 26 October 2017, from Mr Wang Lunfeng, referred to above. Mr Lunfeng is a Chinese lawyer who stated that he has "engaged in legal work for many years" and "has the in-depth study in the inheritance and corporate law".
Mr Lunfeng confirmed that the Shanghai property (to which reference has been made) is "the common property of the couple [the deceased and the Defendant] and no more than 50% will belong to [the deceased's] legacy judged by the court with jurisdiction". He added: "3. 'According to > Article 37: when the testator does not retain the inheritance share for the heirs lacking ability to work and with no source of income, in dealing with heritage, the necessary inheritance shall be left for the heir, and the remaining part can be dealt with in accordance with the assigned principle of the reservation.' According to the above law provisions, in the trial and judgment of the case, Shanghai Pudong New Area People's Court should reserve the necessary and sufficient share for the minor children and other eligible heirs, so Tong Yuhua cannot follow the will to inherit all the legacy. For the share judged to the minor children by the court, no one has the right to dispose it before the minor children get adult."
On the third day of the hearing, I raised the significance of this evidence with the parties and informed them that the Court would require assistance on the entitlement, if any, of the Plaintiff to share in the deceased's estate in China. Unfortunately, not much assistance was provided.
Counsel for the Defendant said that she had considered this aspect and would be making the submission that the Plaintiff's entitlement was a "financial resource" that the Court would be entitled to take into account for the purpose of determining whether to make a family provision order in favour of the Plaintiff and the nature of any such order: s 60(2)(d) of the Act.
Counsel was reminded that she had not raised this issue in her outline of submissions, and that she had not done so at any of the directions hearings that had been held. Even if my recollection were inaccurate, counsel should not raise matters such as this obliquely: Tcpt, 14 August 2019, p 142(26) - p 145(29).
Legal practitioners should be reminded of what was written in Maniotis v J H Lever & Co Pty Ltd [2006] FCAFC 7, by Finn, Emmett and Bennett JJ, at [72]: "In the efficient and proper conduct of civil litigation, even civil litigation hard fought between parties, it should always be recognised that, in the propounding of issues for trial, the parties should take steps to ensure that all relevant parties to the dispute are cognisant of what the issues are. Quietly leaving footprints in correspondence or directions hearings to be uncovered some time later in an attempt to reveal that a matter was always in issue is a practice that must be firmly discouraged. Where it is evident, or indeed suspected, that the other side is proceeding on the basis of a misconception or has not appreciated something, common sense will, as a general rule, mandate that a party ensure that the other is not proceeding on a misconception or that the other does appreciate something that has been said. No one's interests are advanced by litigation proceeding on assumptions which are seen or suspected to be false. The only consequence of keeping issues hidden or not clearly identifying them is to disrupt the business of the court leading to the waste of valuable public resources and to lead to the incurring of unnecessary costs by the parties, costs which ultimately have to be borne by someone: see White v Overland [2001] FCA 1333 at [4]."
In Sydney South West Area Health Service v MD (2009) 260 ALR 702 at 716 [53]-[54]; [2009] NSWCA 343, Allsop P (as his Honour then was) (Sackville AJA agreeing) commented upon what has been described as "the ambush theory of litigation". He wrote at [53]-[54]: "Thirdly, the Court of Appeal has on a number of occasions since 2001 made clear that the ambush theory of litigation is dead in this State. The same thing has been said in the Federal Court: see in particular Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; 53 NSWLR 116; Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243; and Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2008] NSWCA 206. As I said in White and Overland [2001] FCA 1333 at [4], which was approved in terms by the Court of Appeal in Nolan at [28] 128: 'by way of general principle I would simply like to make perfectly plain my view that in the efficient and proper conduct of civil litigation, even civil litigation hard fought between parties, it should always be recognised that in the propounding of issues for trial the parties should take steps to ensure that all relevant parties to the dispute are cognisant of what the issues are … [I]f, something has been said, where it is evident, or indeed suspected, that the other side is proceeding on a basis of a misconception or has not appreciated something, as a general rule, efficiency, common sense and an appreciation of the costs and resources (both public and private) likely to be wasted by confusion in litigation will mandate that a party, through his or her representative, ensure that the other side is not proceeding on a misconception or that the other side does appreciate something that has been said. Litigation is not a game. It is a costly and stressful, though necessary, evil. … [N]o one's interests are advance by litigation proceeding on assumptions which are seen or suspected to be false.' As I also said in Baulderstone at [160]: 'it cannot be emphasised too strongly that it is the responsibility of the parties, through their legal representatives, to exercise a degree of co-operation to express the issues for trial before and during trial. Such co-operation can now be taken as an essential aspect of modern civil procedure in the running of any civil litigation including [in that case] hard fought commercial cases'."
It is now abundantly clear that legal representatives are required to display openness and co-operation, and to express before, and during, the hearing, the relevant issues, and to avoid ambush or surprise. Furthermore, there is a statutory duty on the part of a party, and her, his, or its legal representatives in legal proceedings to assist the court to further the overriding purpose to facilitate the just, quick and cheap resolution of the real issues in dispute and to participate in the processes of the Court to that end: Civil Procedure Act, s 56.
There was discussion on how best to proceed, and on the fourth day of the hearing, it was agreed by the parties, and accepted by the Court, that the litigation in China probably should be determined before the determination of these proceedings. It should be observed that the Court had not been made aware, at that time, of the claim by the deceased's parents in the second Chinese proceedings.
It was obvious that expert evidence would be required and although there was discussion regarding the appointment of a single expert, the parties were of the view that it would be better if there was certainty in knowing how the estate in China was to be distributed. They thought that the proceedings in China could be determined within three to six months: Tcpt, 15 August 2019, p 190(16-29).
The following notations and orders were then made with the consent of the parties: "1. Notes that if there is any reason that the matter is to be re-listed for the purposes of informing the Court when the Chinese proceedings are likely to be heard and determined, the parties should send a joint email to the Associate to Hallen J requesting the matter to be re-listed for the purposes of obtaining a hearing date, with an estimated duration of 1 day plus, to conclude these proceedings. 2. Notes that in the event the matter is to be listed for a continuation of the hearing, each party will be required to serve updating evidence and an agreed schedule of assets and liabilities, as previously directed. 3. Orders that in the event the Defendant intends to take any step to increase the debt secured on the property situated at XX Bapaume Road, Mosman, she is to give 14 days' notice to the Plaintiff's solicitors informing them of the amount of the increase. 4. Stands the matter over before Hallen J at 9:30 a.m. on Thursday, 14 November 2019."
The parties' hope was no more than a forlorn one, as so far as the Court is aware, the proceedings in the People's Republic of China, have not been determined.

[9]

Failure to comply with directions

Having reached this point, it is necessary to set out some of the procedural issues that arose culminating with the events surrounding the expert evidence and the delay that occurred.
The matter was, first, in the Family Provision List (as it then was) on 14 October 2016. The issues that were spawned thereafter, and before it was able to be set down for hearing, included arguments about documents relating to the financial resources of the Plaintiff, discovery of the financial records relating to the estate, the failure to comply with directions regarding service of affidavits, a late application for DNA testing of the Plaintiff, as the Defendant did not admit his paternity, and otherwise.
On 16 March 2018, the Court noted that both parties appeared to be in default of several directions made previously and that in the event that the matter was not ready to proceed because the parties had not completed the evidence, the matter would be listed for hearing and neither party would be able to rely on evidence served after 20 April 2018, other than with the leave of the Court or being evidence required to be filed by par 17 of Practice Note SC Eq 7.
On 17 August 2018, the matter was referred to the Equity Registrar for the purpose of obtaining a hearing date with an estimated duration of three days plus.
On 19 September 2018, the Equity Registrar listed the matter for hearing before Rees J on 6 May 2019, with an estimated duration of four days. The hearing date was vacated on 4 December 2018, and the matter was listed, for hearing, by the Equity Registrar, on 12 August 2019, for four days before me.
Neither party, by his and her legal representatives, complied with the directions made in regard to the preparation of the case for the hearing in August 2019, including the delivery of written submissions (albeit, in the case of the Defendant, the submissions were provided late, and with an apology). Furthermore, a schedule of assets, liabilities and costs, which was directed to be a joint schedule, was provided to the Court, only by counsel for the Defendant. This document, which comprised six pages in a spreadsheet, was far more complicated than it needed to be.
Counsel for the Plaintiff on the first day of the hearing frankly stated that the Plaintiff's representatives had not given consideration to this document. He could not provide any explanation for that failure: Tcpt, 12 August 2019, p 3(31-50).
By way of further example, on 9 August 2019, the Friday before the commencement of the hearing, Mr S Lu, an employed solicitor at the firm of solicitors acting for the Plaintiff, telephoned my Associate to ascertain when "was the latest time" that the Court Book, which had been directed to be provided by 6 August 2019, could be delivered.
Despite prompting by email sent on 6 August 2019, by the Court, to which there was no response, the Plaintiff's legal representatives did not provide any written submissions, until 9:03 p.m. on Friday 9 August 2019, when the whole of a Court Book, which included the written submissions, in nine different attachments, was sent, by email, to my Associate.
In addition, at the hearing, the Defendant tendered another folder of documents: Ex 1. (This bundle of documents was used to cross-examine the tutor and the deceased's sister.)
There is, and can be, no excuse for not being completely familiar with the Practice Note applicable in a specialist List, with directions made by the Court in relation to the preparation for the hearing, and for non-compliance, meticulously, with the Court's directions. This sentiment applies as much to those who regularly appear in the Succession List as to those who do not.
The only explanation proffered by counsel for the Plaintiff was that he had been involved in preparing for, and participating in, a hearing for the two weeks before this hearing and that he had not had an opportunity to attend to complying with the directions. There may be legitimate reasons why compliance with Court directions is not possible. That, on its own, is not one.
Furthermore, because, in his written submissions, counsel for the Plaintiff stated that the evidence of the Defendant on the nature and value of the property of the deceased, available for the making of an order for provision, was in dispute, far more time than was necessary had to be spent, determining the nature and value of the deceased's estate and notional estate in New South Wales and outside the jurisdiction.
What has been written above about the failure to comply with the directions of the Court should not be regarded as "mere pedantry and judicial petulance or worse": Re Venables [2018] EWHC 1037 (Fam) at [10] (Sir James Munby P). The Court, and the legal profession, must continue to enhance the culture of the timely preparation for hearings, and ensure proper compliance with the Court's directions. Section 56 of the Civil Procedure Act is relevant in this regard.
Furthermore, as was written, by Campbell J, in Re XYZ, Solicitor [2005] NSWSC 72 at [3]: "… The time taken for the hearing of the case in court is minimised if the judge has the opportunity to do these things in advance. Minimisation of court hearing time, insofar as can properly be done, is very important not only because court time is a scarce resource from the court's point of view, but also because the hearing is a time when all the legal representatives of the parties are present at the one time, and so is likely to be the time when the rate of incurring legal costs is at its highest. It is very wasteful if the legal representatives are all waiting in court while the judge reads material that could have been read in Chambers."
Regrettably, that is far from the end of the saga regarding the preparation of the case. The failures referred to were exacerbated by the subsequent failures to comply with the directions of the Court. As earlier stated, one of the reasons for the matter being adjourned part heard, was the assertion made that the Plaintiff might be entitled to provision out of the deceased's estate that was held in the People's Republic of China. This was only raised late during the course of the hearing. Even at the conclusion of the resumed hearing in 2020, whether he was, or was not, so entitled, is not entirely clear.
In this regard, more than enough opportunity, and time, was given to the parties to agree upon an expert to provide an opinion as to the likelihood of the Plaintiff being entitled to provision out of the deceased's property in the People's Republic of China and the matter was adjourned numerous times to enable agreement to be reached by them. Ultimately, no agreement was able to be reached.
On 12 May 2020, the matter was again before me, at a time when the Defendant was unrepresented. The Court made, inter alia, the following directions: "Notes that the various opportunities given to the parties to agree upon an expert to provide an opinion going to the entitlement of the Plaintiff, if any, to any share of the deceased's estate in China, based on Chinese Succession law, has not resulted in a single expert being able to be agreed upon. Orders that each party is to obtain such expert evidence as he or she considers necessary on the question whether the Plaintiff is entitled to any part of the estate of the deceased in China based upon Chinese Succession law, such opinion to be provided in writing no later than 30 June 2020. Directs that a copy of any expert report obtained by each party is to be served upon the other party no later than 7 days after receipt of the report from that expert."
The Plaintiff's expert report was dated 26 June 2020 and became Ex C in the proceedings. Counsel for the Plaintiff asserted, from the Bar table, without objection, that the report was served on 30 June 2020.
The Defendant failed to comply with the directions, as her expert report, entitled "Legal opinion from lawyer Han" bore the date 3 July 2020 and was sent, at least to the Court, on 5 July 2020. It became Ex 2 in the proceedings.
On 11 August 2020, the next return date for directions, the matter was listed for the completion of the hearing on 17 November 2020. A direction for the service of updating affidavit evidence, by 15 September 2020, was made. Neither party complied with this direction either.
On 13 October 2020, the Defendant informed the Court, by email, that on 30 September 2020, "the Pudong Court in Shanghai, China, heard our succession case". Other matters were asserted in the email correspondence.
At my request, my Associate then sent the following email to the parties: "This email is sent on behalf of his Honour Dear All, His Honour has read the email from Ms Tong. It is difficult to discern what is being sought, but whatever it may be, his Honour will not deal with any application based on email correspondence. Any application should be made by notice of motion, properly served. Any notice of motion should be filed and served urgently as the matter is listed for completion of the hearing on 17 November 2020."
On 21 October 2020, the Defendant sent an email to the Court stating that she wanted confirmation that "the court session on November 17th can be held by phone".
On 23 October 2020, the Defendant informed the Court, by email, that she had received "notice of opening session of Shanghai Court in China, the succession case is scheduled to be held at 9:30 am on November 4th …".
In view of these emails, another email was sent to the parties in the following terms: "This email is sent on behalf of his Honour Dear All, His Honour has been shown the email from the Defendant. As his Honour has previously indicated, he does not propose to deal with matters raised on the basis of email correspondence. His Honour again requests that the legal representatives, and the Defendant, liaise as to the manner in which the hearing can proceed on 17 November 2020. If the hearing proceeds by AVL, it is likely to be by way of Microsoft Teams. If an adjournment is sought, this should be done by notice of motion and affidavit in support."
It was not until 30 October 2020, that the Plaintiff's legal representatives filed an affidavit of the tutor, and an affidavit of Mr James Pope, solicitor on the record for the Plaintiff, going to the efforts made to contact an expert on Chinese succession law. In each case, the affidavits were filed more than six weeks after the date on which those affidavits were directed to be filed and served. The Plaintiff's legal representative filed an updating affidavit of costs on 16 November 2020, only one day prior to the hearing. There was also filed an affidavit of service of an email dated 9 November 2020, sent by a solicitor in the employ of the Plaintiff's solicitor, to the Defendant enclosing a Notice to Produce of the same date.
Then, the Plaintiff's solicitors filed two documents, on 30 October 2020, headed "Expert Report". One was a report by Dahong Li, said to be a senior partner, at a firm of lawyers in Shanghai, China, responding to the report dated 3 July 2020 served by the Defendant. The second was a report by Dr Andrew Ellis, a forensic psychiatrist, providing "an updated psychiatric report" relating to the Plaintiff. (His earlier report was one dated 12 August 2018, a copy of which had been marked as Ex A in the proceedings.)
The affidavit of service by the solicitor in the employ of the Plaintiff's solicitor, to which I have referred, made no reference to service upon the Defendant, by email, or otherwise, of a copy of any of the affidavits referred to, or to the expert reports to which I have referred.
The Plaintiff's legal representatives gave no explanation for the failure to comply with the directions of the Court made in August 2020.
Despite these affidavits being filed, none of them were served upon the Defendant until the day before the hearing was due to be recommenced. On 16 November 2020, following the test call which was held with the Court, the solicitor for the Plaintiff and the Defendant, an email was received from the Defendant in which she complained that she had been sent "a total of six emails today involving a lot of new evidence and litigation requests". The nature of the emails that had been sent, naturally, and thankfully, were not sent to the Court.
At the recommencement of the hearing, I asked each party to identify the additional documents sought to be relied upon. It was, at this time, that counsel for the Plaintiff identified documents, including an updated costs affidavit, and confirmed that they had not been provided to the Defendant until 5:48 p.m. Sydney time, the day before the hearing was to resume: Tcpt, 17 November 2020, p 206(05-30).
Unsurprisingly, and not unreasonably, the Defendant complained about the late service of the documents and affidavits.
UCPR r 10.2(1) provides that a party intending to use an affidavit that has not been filed, must serve it on each other interested party not later than a reasonable time before the occasion for using it arises.
It would appear that the second report of the Chinese expert relied upon was served also on the day before the hearing was to recommence. Furthermore, bearing in mind the number of occasions the issue of the expert evidence regarding the entitlement of the Plaintiff, if any, to any share of the deceased's estate in China, based on Chinese Succession law, had been agitated before the Court, delay of this kind in serving evidence is unacceptable.
Even though the affidavits were filed, they were not served on the Defendant, a litigant in person, until the day before the hearing recommenced. In my view, that is not a reasonable time before the occasion for using the affidavit arises and there was not a reasonable opportunity given to the Defendant to consider, and, if necessary, respond to, any of them. Section 61(3)(e) of the Civil Procedure Act provides that if "a party to whom such a direction has been given fails to comply with the direction, the court may, by order, do any one or more of the following - … (e) it may strike out, disallow or reject any evidence that the party has adduced or seeks to adduce".
In Herman v Premier Security Co-operative Ltd [2010] 3 SLR 110 at 121-122 [24]-[26]; [2010] SGCA 15, the Court of Appeal of Singapore observed, at [24]-[26] that: "… every litigant has a general right to bring all evidence relevant to his or her case to the attention of the court. This general right is so fundamental that it requires no authority to be cited in support of it; in fact, to say that the right derives from some positive decision or rule is to understate its constitutive importance to the adversarial approach to fact-finding. The importance of the right is reflected in the fact that a litigant may pray in aid the machinery of the court to compel, on the pain of contempt, all persons who are in a position to give relevant evidence, to come forward and give it. The general right is, of course, subject to specific limits … The adduction of relevant evidence must, as far as practicable, take place in accordance with the rules of procedure whose purpose is to ensure the fair, economical, swift and orderly resolution of a dispute. Finally, a litigant is prohibited from manipulating the court's machinery to further his ulterior or collateral motives in an abusive or oppressive manner. In striking the proper balance between the general right and the specific limits, a trial judge must not only be guided by the applicable rules and decisions, but must look beyond the mechanical application of these rules and decisions, and carefully assess the interests at stake in every case to ensure that a fair outcome is reached through the application of fair processes. It should always be borne in mind that grave consequences might flow from the wrongful exclusion of evidence (such as by shutting out a witness from testifying or preventing cross-examination)." (emphasis in original)
In this case, matters that were of significance in determining whether or not to allow the Plaintiff's evidence referred to, included: first, the delay since the commencement of the proceedings and the delay since the matter was adjourned; second, that the Defendant was self-represented; third, the Defendant was not in New South Wales; fourth, the lack of adequate, or any, reason for the failure to comply with the Court's various directions; and fifth, the date of the documents apparently being served.
The principled exercise of the Court's discretion required the Plaintiff not being permitted to read that evidence.
Based upon that ruling, counsel for the Plaintiff made an application for the matter to be adjourned for not less than 28 days to allow the Defendant an opportunity to consider, and respond to, the evidence. The Defendant opposed the granting of any adjournment, aptly stating "…the case has been drag (sic) on for a long time": Tcpt, 17 November 2020, p 207(46-47).
Whilst the Court clearly has power, at any time, and from time to time, by order, to adjourn to a specified day any proceedings before it or any aspect of any such proceedings (see, s 66 of the Civil Procedure Act), in the exercise of my discretion, I declined to grant the adjournment sought. Any further adjournment, at that time, would have meant a significant delay in the conclusion of the hearing bearing in mind the time of year. The proceedings had been on foot since 2016, and, as the above makes clear, have been dogged by delay, caused by, amongst other things, a failure to comply with the Court's directions. The Court has an obligation to deal with the matter, and to do so in a just, quick and cheap manner. In my view, to indulge the Plaintiff, by granting another adjournment, would have achieved none of those aims.
The matter then proceeded and was completed on 17 November 2020, at which time, I reserved my decision.
I should mention, to complete the procedural issues, that the Defendant sent an email dated 13 January 2021 to the Court, without, apparently, it being provided to the legal representative of the Plaintiff. She sent another email to the Court on 15 January 2021, although this one was sent to the legal representatives of the Plaintiff. The Defendant's emails prompted the Plaintiff's tutor to send an email to the Court on 3 February 2021 (comprising about 9 pages). This, in turn, prompted the Defendant to send a further email to the Court later on the same day.
I have ignored the email correspondence sent by the parties directly to the Court and the parties were informed thereof by emails sent, to each, at my request, by my Associate.
A litigant in person, whilst not being bound by Professional Rules that apply to solicitors and barristers, must remember, as must legal representatives, that: "Written communications between a party to litigation and the judge's associate should normally be confined to matters concerning practice or procedure. Communications including emails containing allegations, matters of substance or requests for substantive advice should not be forwarded to a judicial officer without the party's express agreement (save in an exceptional case warranted for example by an ex parte application). Unless the subject of express prior consent of the other parties, written communications should not include information or allegations which are material to the substantive issues in the litigation. In all circumstances, the other parties to the litigation should be copied in on any such correspondence. If a communication which apparently fails to comply with those requirements is received in chambers, it would be for judicial staff promptly to enquire whether the other party has been notified before engaging in any further exchanges with the sender. The ubiquity and prevalence of informal email communications between courts and litigants entails many advantages but, unless approached with an appropriate protocol by litigants and within judges' chambers, presents potential risks of the errors demonstrated in the present case."
See: R v Fisher (2009) 22 VR 343 at 352 [38]-[39]; [2009] VSCA 100 at [38]-[39] (Redlich and Dodds-Streeton JJA).
In Tugrul v Tarrants Financial Consultants Pty Limited (in liquidation) [No 2] [2013] NSWSC 1971, Kunc J, after referring to R v Fisher added, at [21]-[22]: "There should be no communication (written or oral) with a judge's chambers in connection with any proceedings before that judge without the prior knowledge and consent of all active parties to those proceedings. Particularly in relation to written communications, given the ubiquity and speed of emails, the precise terms of any proposed communication with a judge's chambers should be provided to the other parties for their consent. There are four exceptions to this: (1) trivial matters of practice, procedure or administration (e.g. the start time or location of a matter, or whether the judge is robing); (2) ex parte matters; (3) where the communication responds to one from the judge's chambers or is authorised by an existing order or direction (e.g. for the filing of material physically or electronically with a judge's associate); and (4) exceptional circumstances. There are three other matters. First, any communication with a judge's chambers which falls into any of the categories set out in sub-paragraphs [21] (2), (3) and (4) above should expressly bring to the addressee associate's or tipstaff's attention the reason for the communication being sent without another parties' knowledge or consent. Second, where consent has been obtained, that fact should also be referred to in the communication. Third, all written communications with a judge's chambers in relation to proceedings should always be copied to the other parties."
More recently, in Sirola & Sirola [2016] FamCA 620, McClelland J, at [15], added: "… if consent to communicate with a Judge's chambers cannot be obtained from the other party or parties, then the party seeking to communicate with the Judge should make a formal application for the matter to be listed before the Judge so that the argument that the party wishes to present can take place in open court. It goes without saying that open justice is a fundamental aspect of procedural fairness that is foundational to proceedings before all Australian courts."
Also see, Contract Mining Services Pty Ltd v Adelaide Brighton Cement Limited [2020] SASC 69 at [28] (Livesey J).

[10]

Background Facts

It is next convenient to set out some of the background facts. In relation to any facts that are in dispute, to which I refer, these background facts should be regarded as the findings of the Court.
The deceased was born in December 1967 in the People's Republic of China, and died, aged 48 years, in Sydney, in January 2016. His only younger sister was born in September 1969, in Shanghai, the People's Republic of China.
The deceased came to Australia in about 1989. After a few years in Sydney, he started his own cleaning business, which, according to his sister, was quite successful for a time. As a result of an uninsured workplace accident, he lost the business and many of his assets. By 2003, he was working in casinos, as a professional gambler, in Sydney and then in Melbourne (from both of which casinos he was, subsequently, banned).
The deceased moved to Melbourne, in late 2003 or early 2004, where he lived with his parents, and his sister. The tutor and the Plaintiff visited him there, on one occasion, and stayed for about one week.
In February 2004, the deceased was granted Australian citizenship. Subsequently, he lost his Chinese citizenship. He was an Australian citizen at the date he executed his last Will in Australia, and at the date of his death.
The deceased moved back to the People's Republic of China, as a temporary resident, in about 2006, although, in the previous two years, he would regularly travel overseas to gamble at casinos. He returned to Shanghai, where he lived until about 2013. He then returned to Australia.
The Defendant conceded that, at the date of death, the deceased was domiciled in New South Wales: Counsel for the Defendant's Written Submissions, 7 August 2019 at par 1. This is an important concession in these proceedings.
The tutor, who as stated, is the mother of the Plaintiff, was born in March 1965 in Jiangsu, in the People's Republic of China. She was in a relationship with the deceased between about 1998 and about 2003. She is almost 56 years old.
The Plaintiff was born in August 1999 and is now 21 years old. (The paternity of the Plaintiff was disputed, as his birth certificate did not disclose the name of the father. However, during the proceedings, the issue of his paternity was resolved, by the results of a paternity test, it being established that the deceased was, in fact, the father of the Plaintiff.) He, too, is an Australian citizen.
As shown by a copy of a registered Transfer, the deceased and the tutor purchased, as joint tenants, a house at Winston Hills (the Winston Hills property) in December 1999 for $239,000. (A copy of the Contract for sale, also in evidence, shows the sole purchaser to be the deceased and that the purchase price was $239,000: Ex 1/208.)
They, and the Plaintiff, lived there during part of their relationship. In about March 2000, the tutor and the Plaintiff left the Winston Hills property. Initially, they went to live in a women's shelter at Doonside, but in about April 2000, they were relocated to a Department of Housing home unit at Northmead, where they have continued to live, at least as at the date of the tutor's updating affidavit affirmed 15 July 2019.
The tutor and the deceased lived together, at times, during their relationship. They were never married. Shortly after she and the Plaintiff relocated to Northmead, the deceased contacted her and they recommenced a sexual relationship. The deceased would come and stay at the Northmead unit and she would stay at the Winston Hills property. She annexed to her affidavit, affirmed 21 November 2016, a copy of some photographs showing the three of them together, at different times, and at different places. She admitted, however, that her de facto relationship with the deceased had ended in 2003.
The Winston Hills property was sold by St George Bank Limited, the mortgagee in possession, in August 2007, for $341,000: Ex 1/210. The available net proceeds of sale were $129,510, (incorrectly recorded as $89,450 by the tutor).
In October 2008, by an agreement entitled "Termination Agreement", entered into by the tutor and the deceased, the net proceeds of sale were divided into three shares, with the deceased and the tutor each receiving $30,000, and the Plaintiff receiving the balance ($69,150). The tutor gave evidence that the whole of the sum received by her, on behalf of the Plaintiff, had been spent on his education and, otherwise, for his benefit.
The tutor admitted that "[o]ver the years, the deceased transferred money to [the Plaintiff's] bank account of approximately $45,000". Her evidence on this topic appears to be incorrect. The amounts received by the tutor for the Plaintiff, from the deceased, total $114,610, being the amount received in 2008, from the proceeds of sale of the Winston Hills property ($69,510), $5,000, also received in 2008, $10,100, received in three separate amounts ($100, $5,000, and $5,000) in February 2012, and $30,000 in November 2013: Ex 1/214-216; Tcpt, 13 August 2019, p 78(11) - p 80(22).
The tutor also gave evidence that between 2001 and about 2004, the deceased paid child support of approximately $350 per month. Although she asserted that he stopped paying in 2004, this evidence appears also to be incorrect, as there is contemporaneous documentary evidence confirming that the child support liability commenced on 28 October 1999; that in all the child support periods to July 2006, the Annual Rate of Child Support was at the minimum; and that there was a balance of only $21.67 owing to the tutor as at 3 July 2006: Ex 1/155.
Other documents make it clear that the deceased continued paying the child support, as assessed, until at least 2009 and that payments were not in arrears as at 7 January 2009: Ex 1/106-147, 157. At that time, the monthly rate of child support was $26.67. Two other documents, dated 12 February 2011 and 30 May 2011, show two additional payments of child support of $7,337.40 and $833.76, respectively: Ex 1/148-149.
The tutor denied, in cross-examination, despite those documents, that the child support payments had continued into May 2011: Tcpt, 13 August 2019, p 82(37-42). I do not accept her evidence in this regard.
The Defendant was born in China in December 1972. She is 48 years old. She met the deceased in about April 2005. They were married in April 2006, in Shenzhen, the People's Republic of China. In May 2007, they had a child, Yitong, who is now 13 years old. He lives with the Defendant.
In about February 2011, the deceased and the Defendant purchased, as joint tenants, the Mosman property, for $1,965,000: Ex YHT1/1. The Defendant gave evidence that she had paid the deposit, amounting to 20 per cent of the purchase price, from her own funds. The balance of the costs and expenses of the purchase ($1,572,000) was jointly borrowed by her and the deceased from HSBC Bank: Ex YHT1/17-26, 57-59. The major associated cost of purchase was stamp duty ($93,565). There were other minor expenses totalling about $5,000.
The Defendant also gave evidence that the contributions made by the deceased to the HSBC home loan account occurred between June 2014 and February 2016, and were, in total, $52,617 (omitting a reference to cents).
There was no apparent dispute that the Mosman property is now registered in the sole name of the Defendant: Tcpt, 13 August 2019, p 68(34-42).
In mid-2013, the deceased was diagnosed with late stage lung cancer, metastatic adenocarcinoma. Between November 2013 and April 2015, he travelled between Australia and Singapore, where he received treatment. When in Sydney, he stayed with his sister. There followed a number of years of medical treatment.
On 26 April 2015, the deceased returned to visit Shanghai, but he returned to Sydney in May 2015. The deceased's sister gave evidence that he visited Shanghai in September 2015, a matter disputed by the Defendant. Whether he did, he was in Sydney, at the date of his death, in January 2016.
On 25 May 2015, the Defendant, alone, joined the deceased, in Sydney. Yitong, their son, was still in his school term and he remained in Shanghai, cared for by a full-time nanny. However, Yitong joined his parents, in Sydney, on 20 June 2015. They lived together in rented accommodation in Chatswood.
On 25 August 2015, the Defendant returned to the People's Republic of China with the intention to return to Sydney. Yitong remained in Sydney.
In September 2015, the Defendant and Yitong were granted permanent residency in Australia.
The deceased's parents and his sister lived in the Mosman property from December 2015 until April 2016.
The Court was informed, that, at the date of the hearing, the Defendant and her son, were living in the People's Republic of China. She gave evidence that she wished to return to live in Sydney, in the Mosman property, but since the deceased's death four years ago, she has not done so (albeit there may have been difficulties doing so after the COVID 19 pandemic commenced).

[11]

The deceased's Will

The deceased made his Will on 14 July 2015. It provided, relevantly, that: "2. I APPOINT my wife Yuhua Tong to be the guardian of my son Yitong XIANG. If my wife cannot be the guardian, my father shall become Yitong XIANG's secondary guardian. 3. I APPOINT my wife Yuhua Tong as my executrix. 4. My executrix shall have the full authority to deal with my estate: … b. I confirm that my wife Yuhua Tong and I have made a written agreement regarding our matrimonial assets (Annexure A) and we both agree that the properties listed below were bought with my wife's own money and are my wife's personal properties. They do not form part of our matrimonial assets. My wife is the sole owner of the following properties. If any relevant authority makes any alternative arrangement, I will give all my possible share in the following properties to my wife; … c. I confirm that I give my wife Yuhua Tong my share in our Australian property at XX Bapaume Rd Mosman in the state of NSW, Australia (registered in my wife's and my name as joint tenants) therein freed of all money secured thereon which shall be paid out of the residue of my estate; d. To give my wife Yuhua Tong our main residential property in Shanghai, China, address being Room XXX, No YY, Lane ZZ, Guanglan Rd, Pudong New Area, Shanghai and the property title certificate being WWWWWW, jointly owned by us, therein freed of all money secured thereon which shall be paid out of the residue of my estate; e. To give my wife my car, registration number XXXXXX; f. I give all the residue of my estate to my wife Yuhua Tong, including but not limited to real properties, bank accounts, and other forms of assets; 5. If my parents and my son Yitong XIANG live in the same city in the future, subject to my parents' willingness, I request my wife to use her best endeavor [sic] to make the necessary arrangement for my parents to live with my wife and my son."
Clause 4(b) went on to refer to one property in Beijing, and three properties in Shanghai.
Part of the testamentary documents attached to the Will, being Annexure A referred to in the Will, was a document in the following terms: "Agreement regarding Matrimonial Assets Yuhua Tong (ID Card No.: 420XXX) and Xiaofeng Xiang got married in June 2006. We hereby enter into this written agreement that we shall each own our respective income, and the properties under Yuhua Tong's name shall be owned by Yuhua Tong herself. The properties purchased with contributions from both parties shall be owned jointly with the properties registered in both names. Other properties purchased with Yuhua Tong's own income and registered in her own name shall be owned by Yuhua Tong herself (including but not limited to the properties and interests already purchased by Yuhua Tong and registered in Yuhua Tong's own name). Properties: 1. Room XXXX, Building X, Vanke Blue Mountain, Xidawang Road, Beijing 2. Room XXXX, Building X, Huafu Sea View, Jinshan District, Shanghai 3. Room XXXX &Room XXXX, Yuandong Building, No. XXXX, Pudong South Rd, Shanghai Xiaofeng Xiang hereby confirms that the above properties were purchased with Yuhua Tong's own income after the marriage and the interests and liabilities associated with the above properties shall solely belong to Yuhua Tong herself and these do not form part of the common assets under the agreement."

[12]

The nature and value of the deceased's estate in New South Wales

In the figures below, I have omitted a reference to cents. This will explain any apparent arithmetical miscalculation. All references to currency, unless otherwise indicated, are in Australian dollars.
It has been pointed out, on many occasions, and as long ago as in Fiorentini v O'Neil (Court of Appeal (NSW), 4 December 1998, unrep) at 6 (Mason P, Handley JA and Fitzgerald AJA), that an executor Defendant "should have given the Court more assistance than she did in identifying as fully and early as possible the actual and notional estate, its condition and value at date of trial, and the exact burden of the costs order likely to fall on the estate: See Supreme Court Rules 1970 (NSW), Pt77 r 59, Vasiljev v Public Trustee [1974] 2 NSWLR 497 at 503 and Dijkhuijs (formerly Coney) v Barclay (1988) 13 NSWLR 639 at 654". Also see Blore v Lang (1960) 104 CLR 124 at 130-131 (Dixon CJ), 136-137 (Kitto J); [1960] HCA 73; and currently, Practice Note SC Eq 7 at par 9.1.
In the Inventory of Property, attached to, and placed inside, the Probate document, the value of the property, owned solely by the deceased, in New South Wales, at the date of death, was estimated to be $376,400. The property in New South Wales that was disclosed was a motor vehicle ($26,400), a personal loan ($300,000) made to the deceased's father and sister, and moneys in a bank account ($50,000).
There was no reference to personal items of the deceased. The deceased's sister admitted that she had taken the deceased's iPad, his personal computer and some key cards: Tcpt, 13 August 2019, p 114(11-15). There was no legal basis for her to do so, and those items should be returned to the Defendant, as the executrix to whom Probate has been granted, if she asks for their return.
The Defendant asserted that the deceased's sister had taken other personal items, including key cards. The deceased's sister admitted that she had taken his key cards but said that the deceased did not tell her the PIN for any of them: Tcpt, 13 August 2019, p 114(14-24). She denied that she had withdrawn $50,000 from any of the deceased's accounts after his death: Tcpt, 13 August 2019, p 114(02-07).
In the circumstances, nothing turns on the value of the personal items, and it is unnecessary to determine this factual dispute.
In addition, the Inventory of Property identified the Mosman property as "property owned by deceased as joint tenant with another or others" ($2,000,000). There was also a reference to "Personal Loan to parent: Xiao Qing Xiang". However, Xiaoqing Xiang is the deceased's sister. Yi Fei Xiang is the deceased's father.
In an affidavit affirmed by the Defendant on 28 February 2017, read in the proceedings, she disclosed that the Mosman property was encumbered, and that the debt secured by mortgage was $1,400,000. In addition, she disclosed a credit card debt of $1,200.
In an affidavit affirmed by the Defendant on 16 July 2019, she disclosed that the value of the solely owned property in New South Wales, then, was $32,923, and that the estate comprised moneys in three bank accounts ($1,809, $5,110 and $2) and the proceeds of sale of the motor vehicle ($26,000).
An issue arising in the proceedings was a claim for the amount of $300,000, which amount comprised the transfer of funds by the deceased to his parents on 20 July 2015 ($195,000) and a transfer of funds by deceased to his parents on 30 September 2015 ($105,000). Bank records confirmed that the deceased transferred $195,000 from his Singapore bank account to a NAB bank account held in the names of the deceased's parents and that on about 30 September 2015, the deceased made another transfer, this time of $105,000, from the same Singapore bank account to the same NAB bank account: Ex YHT1/65-66.
Counsel for the Defendant confirmed at the commencement of the hearing that no instructions had been given by the Defendant to join the deceased's parents: Tcpt, 12 August 2019, p 6(13-21).
No evidence, on this issue, was given by the deceased's father. For his part, counsel for the Plaintiff stated that "[t]he grandfather, on my instructions, has not wanted to get any further involved in the proceedings other than in relation to the issue of whether [the Plaintiff] is his grandson or not": Tcpt, 12 August 2019, p 7(44-50).
In any event, what was written in the Inventory of Property appears to be inconsistent with the Defendant's evidence that the amount of $300,000 was a sum loaned to the deceased's sister to enable her to purchase her own property, and a sum to be held by the deceased's father on the Plaintiff's behalf, although it was not clear on her evidence in what amounts the sum was apportioned.
In the Defendant's affidavit affirmed 19 April 2017, she deposed at par 75: "In the months after [the deceased's] death, I have in writing, through my solicitors, asked for the return of his personal effects and the $300,000.00".
Whilst the Defendant discovered that the sums had been transferred in 2015, it was not until January 2016 that, on her evidence, the deceased told her the truth about the purpose of the moneys. She wrote: "On 22 January 2016, just before he died, the deceased and I had a conversation in Mandarin with words to the following effect: Deceased: Please forgive me, I didn't tell you the whole truth about the money when you found out about it because I did not want you to be angry. Other than the loan for my sister's property purchase, part of that sum of money was for my father to hold and distribute to my son Rio so he is looked after when I'm gone. Me: Why don't you just give it to your son now? Deceased: I don't trust his mother. Me: What does your father say about this? Deceased: He agreed to do this for me."
When pressed in cross-examination, the Defendant maintained that this conversation did, in fact, occur: Tcpt, 13 August 2019, p 125(20-38).
The Defendant gave evidence about the amounts transferred and a conversation she had with the deceased's father, shortly after the deceased's death: "On 29 January 2016, I went to Sydney and met the deceased's father Xiang Yifei at the Mosman Property. We had a conversation in Mandarin to the following effect: He said: Xiaoqing has paid back the $300,000 she borrowed from her brother. You can check Xiaofeng's Singaporean bank account. There is a lot of money, you can take it under the will. We have some ideas we want to discuss with you. I said: Say it. You can tell me what you want to. He said: During the time of Xiaofeng's life, he hoped that we could continue to live in this house, so we want to go on to live in here. Xiaoqing has paid back $300,000 that she borrowed from her brother, so it's not enough for her to buy a house. We want to borrow some money from you. I want you to give me the share of Wenzhou Chemical Company because I'm also the founder of this enterprise. I also want you to give Xiaofeng's BMW car to Xiaoqing because that car is not worth a lot of money. I said: If Xiaoqing has paid $300,000 back, there will be record of the transaction. May I have a look? If Xiaoqing has paid back the money, of course you can keep living in this house. He said: We don't have a record of the transaction, but there is a lot of money in Xiaofeng's bank account, you can lend it to Xiaoqing."
(The quoted passage above was objected to, and admitted, but not as proof of the truth of its contents.)
The issue was made even more complicated by the Defendant having stated that she "had characterised this $300,000 as an asset in the inventory of property in my probate application because I thought it would be easier than trying to explain the arrangement": Tcpt, 13 August 2019, p 120(46-50).
The Defendant appeared to accept in cross-examination, that during the conversation set out above, the deceased's father made no mention of the $300,000 being held on behalf of the Plaintiff: Tcpt, 13 August 2019, p 126(32-50).
The discrepancy between what the Defendant was told by the deceased, and what she was told by the deceased's father, initially caused a great deal of confusion at the hearing. To demonstrate that the Defendant's evidence on the topic of the amount of $300,000, to say the least, is unclear, reference may be made to Tcpt, 14 August 2019, p 152 - p 160.
However, the Defendant's understanding appears to be that the amount of $300,000 was to be held by the deceased's father to satisfy any requirements that the Plaintiff might have in the future. During the deceased's lifetime, he had agreed that the money could be loaned to his sister given that the Plaintiff had not, at that stage, made any claim on the money.
After the deceased died, it was the Defendant's evidence that the deceased's father and sister had departed from the notion that the moneys were to be held for the Plaintiff's benefit. Whilst she said that they claimed to have repaid the moneys, the Defendant maintained that they had kept the money for themselves: Tcpt, 14 August 2019, p 156(07) - p 158(42).
It was also revealed, in cross-examination, that she had commenced proceedings in China for the recovery of the $300,000. However, those proceedings had since been discontinued or dismissed: Tcpt, 14 August 2019, p 158(44) - p 159(32).
The amount of $300,000 was not referred to, by the Defendant, in the updated estimates of property in the deceased's estate. However, I gather that the Defendant's submission, based on the evidence, was that it constituted a financial resource, available to the Plaintiff.
The Defendant also identified funeral and cemetery expenses ($23,000), said to have been paid by the deceased's father, which are to be repayable to him out of the estate of the deceased: Tcpt, 13 August 2019, p 70(10-23).
The Defendant submitted that when one considered the liabilities of the deceased's estate, it was likely that the deceased's estate is insolvent. I have taken this statement to refer only to the deceased's estate in New South Wales.
The Mosman property, at the date of the adjourned hearing, had an agreed estimated value of $2,875,000. The joint debt, secured on the Mosman property, was agreed to be $1,356,737.
The Defendant also stated in the affidavit affirmed on 16 July 2019, that, since July 2016, the Mosman property had been rented and that it had generated a total net rental income of $162,465. She also asserted that, since November 2017, she has been "solely responsible for making payment for the liabilities of the Mosman Property including land tax payments, maintenance costs, agent's fees and so much of the mortgage repayments (to both principal and interest) that exceed the net rental income of the Mosman Property". She said that, after the death of the deceased, she had contributed $133,911, subject to a right of contribution from the estate of the deceased. The contribution that she asserts should be made is estimated to be one half of the total amounts paid by her ($66,955).
It follows, if a notional estate order were made in relation to the deceased's interest in the Mosman property, and if the liabilities referred to as being payable from the proceeds of sale were deducted from the proceeds of sale, the value of the property that may be designated as notional estate, would be $692,176 (calculated as one half of the gross value of the Mosman property, less one half of the debt secured by the mortgage, and one half of the amount contributed by the Defendant). This was the amount agreed as the value of the property that could be designated as notional estate of the deceased in New South Wales: Tcpt, 12 August 2019, p 10(35) - p 12(19).
(The costs and expenses of sale of the Mosman property and a calculation of the capital gains tax that would be payable on sale, has not been included, as the Defendant wishes to retain it. There is evidence that if it sold for $2,750,000, the capital gains tax would be approximately $237,000.)
At the resumption of the hearing, in November 2020, the Defendant tendered a document entitled "The latest estate of xiang xiaofeng". Counsel for the Plaintiff objected to the tender of that document and, consequently, I marked it as an aide memoire: Tcpt, 17 November 2020, p 211(43-48).
The values of the actual estate in New South Wales were unchanged in the aide memoire as from the Defendant's earlier updating affidavit. The actual estate remained valued at $32,923.
The aide memoire did, however, update the value attributable to the Mosman property. Based upon a sale price of $2,750,000 (which was less than the value agreed at the hearing), the Defendant estimated that the value of the property after payment of liabilities was $1,099,989. Thus, the estimated value of a one-half share in the Mosman property was $549,994. Even accounting for the lower estimated sale price, such a value would suggest that the liabilities secured on the Mosman property have increased since the date of the hearing.
In this respect, the aide memoire was somewhat hard to follow. When addressing the value of the mortgage liability attached to the Mosman property, and some land tax said to be payable, a one-half share of that payment was estimated at $110,000. Such a value is significantly less than the outstanding liability estimated at the date of the adjourned hearing. That is so unless the $110,000 represents an annual payment into the future. However, if so, that was not made clear on the face of the aide memoire.
The aide memoire also provided an update on the liability for funeral and cemetery expenses in the following terms: "The debt is cancelled and the deceased's father takes the domestic equity dividends in the deceased's name and has used the deceased's estate to pay for the expenses"
It is unclear what the "domestic equity dividends" referred to are, given that, at no stage, did the deceased's estate contain any Australian shareholdings. Nor how, otherwise, the deceased's estate could have paid for the funeral and cemetery expenses when the value of the actual estate has remained constant since the adjourned hearing.
I have referred to the aide memoire simply for completeness. For the purposes of my determination, I have had to rely upon the evidence that was given at the hearing.

[13]

The nature and value of the deceased's property outside New South Wales

There was also disclosed in the Inventory of Property, property that the deceased held, outside the jurisdiction, estimated to have a value of $280,000, comprising monies in a bank account in Hong Kong ($50,000) and in Singapore ($20,000), a "10% shareholding in Wenzhou Opal Chemical Industry Co Ltd, China" ($100,000) and a "share account" in Weizhi Feng Shen Yin Wen Guo Bond Company ($100,000).
Also disclosed, was jointly held real estate (with the Defendant), being a unit in Pudong District Shanghai (without a value nominated) and jointly held personal property ($10,000).
The Defendant asserted that the deceased's father "has unilaterally declared ownership of the Wenzhou shares" and that "[f]or this reason, I consider that the Wenzhou Shares no longer form part of the deceased's estate".
In the affidavit affirmed by the Defendant on 16 July 2019, she disclosed that the then value of the overseas assets was $2,737,427, and that the property of the deceased, outside the jurisdiction, comprised moneys in two bank accounts in Singapore ($734,790 and $76,805), moneys in a bank account in Hong Kong ($575,431), moneys in two bank accounts in China ($1,172 and $1,728) and the "[p]ossible one half interest in the property located at … Pudong District, Shanghai" (the Shanghai property) ($1,347,500).
The Defendant, by her counsel, informed the Court that the gross value of the Shanghai property had a current value of $3,000,000.
The Defendant gave evidence, which I accept, that although the Shanghai property was owned by her and the deceased, she took out the mortgage, in her own name, to purchase the property and that she has made all of the mortgage repayments since its purchase.
There have been some liabilities incurred about which the Defendant gave evidence. There have been legal proceedings involving the deceased's estate, the costs in respect of which, the Defendant says were, as at 16 July 2019, $107,626, with an additional $50,000, being estimated for future costs "to initiate and [finalise] future proceedings in the Shanghai Pudong People's Court in relation to the Shanghai property". As the evidence is quite confusing, these estimates can be used as a guide only.
The Defendant also stated that she had borrowed money from friends which she had transferred to the deceased. She stated that the total amount borrowed between 13 May 2014 and 28 August 2015, was $1,198,589. There is some weak evidence, that there were loans (for $577,500 and $216,839), repayable by her, but the persons from whom the amounts were said to be borrowed are simply referred to as "friends" and there are no documents evidencing when any loans are repayable.
The Defendant also gave evidence that she had paid the deceased's credit card bills in amounts totalling $344,676. How this amount is calculated was not fully disclosed. (There was evidence in the Defendant's affidavit of 17 April 2017 as to how the amount was calculated but the affidavit was not read at the hearing.)
In the Defendant's written outline of submissions, counsel for the Defendant stated: "11. In summary, the deceased's estate in NSW is insolvent as the deceased's liabilities exceeded his assets. The current estimated net value of the estate in Singapore is cash of $811,595.33. The estimated net value of the estate in Hong Kong is E$239,364.33 (HSBC stock account and minimal cash). There are minimal funds in two bank accounts in China. 12. The current estimated value of property that might be designated as notional estate is $2,230,477.53 (if the property in Shanghai, China is included)."
(The difference between the value of the property in Hong Kong ($336,037) was not explained.)
In the aide memoire, provided at the resumption of the hearing in November 2020, the Defendant provided what were said to be updated values for the overseas assets and liabilities.
In the aide memoire the values for the two bank accounts in China and the possible one-half interest in the Shanghai property remained unchanged. However, the combined value of the two Singaporean bank accounts and the account in Hong Kong was estimated at $400,000 (down from $1,387,026). It was explained in the aide memoire (which, naturally, was not sworn evidence) that the difference had been paid in legal fees in both Australia and China, travel to Australia for mediations and Court hearings and repayment of the part of the alleged loans to friends discussed above. Consequently, the total value of the overseas assets had reduced to $1,750,400.
The value of the overseas liabilities remained unchanged apart from the alleged loans to friends which was reduced to $598,589.
It is necessary to consider the nature and value of the deceased's property situated outside New South Wales, as s 64 of the Act provides that "[a] family provision order may be made in respect of property situated outside New South Wales when, or at any time after, the order is made, only if the deceased person was, at the time of death, domiciled in New South Wales". As stated earlier, there was no dispute that the deceased, was, at the time of his death, domiciled in New South Wales.
Neither party made any submissions, in writing, about the effect, if any, of s 64 of the Act.
Despite not being persuaded by the Defendant's evidence as to the quantum of claimed liabilities of the estate said to be repayable to her, I am satisfied that she must have made significant financial, and non-financial, contributions to the deceased during the last years of his life.
As the sole beneficiary named in the Will of the deceased, she did not advance a competing financial claim on the bounty of the deceased, and because, as will be read, the amount of the provision being sought by the Plaintiff is not large, it is probably unnecessary to make any specific findings on the Defendant's claims for repayment. However, I have borne in mind the significant contribution made by the Defendant, both financially, and non-financially, to the deceased and to the estate.
In stating the above, I have done the best that I can in identifying the nature, and the estimated value, of the deceased's estate at the time when the Court was considering the application and in terms of the order proposed to be made, having regard to the facts known to the Court at the time the order is made.

[14]

Legal Costs of the Proceedings

As stated, there was a failure to comply with directions for the service of a final affidavit as to costs and disbursements that should identify the costs and disbursements calculated on the indemnity basis and those costs and disbursements calculated on the ordinary basis and the amount, if any, already paid on account of costs and disbursements.
At a pre-trial directions hearing, at which Mr Pope appeared, on behalf of the Plaintiff, the failure to have served the updating affidavits was pointed out. Regrettably, it did not prompt an affidavit of costs from the Plaintiff's solicitor, which, when it was included in the Court Book, revealed that it had been sworn on 6 August 2019. No explanation for not having filed, or served, the affidavit was disclosed.
Mr Pope revealed in his affidavit that the Plaintiff's total costs and disbursements, including GST, calculated to the conclusion of the final hearing, and calculated on the indemnity basis, totalled $302,079.
It was also stated that the previous solicitor had claimed costs exceeding $177,079 and that his firm's costs and disbursements totalled $125,000. (An affidavit, sworn 14 September 2016, of Mr S A Shenouda, the Plaintiff's former solicitor, had revealed that the "Plaintiff's costs on the ordinary basis, up to and including mediation, are estimated between $30,000 and $35,000 excluding GST".)
Neither Mr Shenouda, nor Mr Pope, revealed that the Plaintiff's former solicitors had entered into a conditional costs agreement with the tutor. This was only done when it was raised by the Defendant's counsel: Tcpt, 12 August 2019, p 38(05-23). Counsel for the Plaintiff confirmed, on the second day of the trial, that a conditional costs agreement, without an uplift factor, had also been entered into by his instructing solicitors: Tcpt, 13 August 2019, p 67(17-39).
On the third day of the hearing, Mr Pope filed a further affidavit affirmed 13 August 2019 in which he wrote: "I confirm that both the tutor and [the Plaintiff] are not liable for legal costs in this matter unless successful in the proceedings. At the commencement of this matter I resolved only to claim party/party costs in other words costs on an ordinary basis. I made this assessment after meeting with [the Plaintiff] and considering the financial circumstances of the tutor."
Suppressing the gasp for breath that followed the disclosure of the estimates of costs, I could only assume that the estimated costs had been calculated on the indemnity basis. (This, too, was confirmed on the second day of the hearing.) No estimate of the Plaintiff's costs, calculated on the ordinary basis, was provided by his former, or his current, solicitors following the mediation.
At my request, on 13 August 2019, the second day of the hearing, Mr Shenouda, the Plaintiff's former solicitor, attended Court. I had asked him to appear so that he and the Plaintiff's current solicitor, and perhaps, the Defendant's solicitor, could discuss the quantum of the Plaintiff's costs, the possibility of the costs capping order, as well as a specified gross sum costs order.
He indicated that, in fact, the Plaintiff's costs and disbursements, which had been calculated on the indemnity basis, had included an uplift factor calculated at 20 per cent on professional fees, but not on disbursements or counsel's fees: Tcpt, 13 August 2019, p 132(48) - p 133(35).
Whilst Mr Shenouda was present, and otherwise during the course of the hearing, I suggested that, perhaps, the parties' legal representatives could endeavour to agree upon the quantum of the Plaintiff's costs, in the event that an order is made in his favour, so as to avoid the further costs of a disputed assessment. I have received no evidence that any agreement on any of these matters has been reached.
No explanation for the costs being as substantial as they are estimated to be has been provided.
In an affidavit affirmed on 16 July 2019 (recorded, in error, as 2017), of Mr C Oi, the Defendant's solicitor, it was stated that the Defendant's estimated costs and disbursements of the proceedings, calculated on the indemnity basis, of a four day hearing, were $204,686, including GST. None of these costs have been paid out of the estate of the deceased. That estimate is also eye-watering. Since the hearing was adjourned part-heard, some of the costs may have been paid out of the estate.
It is hard to comprehend how an amount in excess of $500,000 has been incurred in legal costs in these proceedings. I have taken into account the fact that neither the tutor, nor the Defendant, speaks fluent English. I have also taken into account the delays experienced by the Plaintiff's legal representatives whilst the issue of the nature and value of the deceased's estate was ventilated. Other than in respect of the nature and value of the deceased's estate, and the issue of the proceedings in the People's Republic of China, the case is hardly complex.
Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Chapter 3, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate or notional estate, or both, in such manner as the Court thinks fit.
Usually, in calculating the value of the deceased's estate available from which a family provision order may be made, the costs of proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that her, or his, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased, while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that her, or his, costs, calculated on the indemnity basis, should be paid out of the estate. The usual costs order may be modified if the Court is of the view that the litigation has been prolonged unnecessarily. The Court should set its face against litigation in which an estate is unnecessarily consumed in costs: Fiorentini v O'Neil at 9 (Mason P, Handley JA and Fitzgerald AJA).
Basten JA (Simpson and Payne JJA agreeing) wrote in Chan v Chan (2016) 15 ASTLR 317 at 330 [54]; [2016] NSWCA 222 at [54]: "In considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs."
However, this statement does not mean that parties should assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199 at [21] (Palmer J); Forsyth v Sinclair (No 2) (2010) 28 VR 635 at 642 [27]; [2010] VSCA 195 at [27] (Neave and Redlich JJA and Habersberger AJA); Harkness v Harkness (No 2) [2012] NSWSC 35 at [18].
More recently, Ward CJ in Eq has delivered reasons for judgment in Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843, in which she wrote, at [172] - [173]: "… There is an understandable concern that costs incurred in proceedings of this kind not be disproportionate to the nature of the proceedings and the size of the estate (see for example the recognition by Basten JA in Page v Page [2017] NSWCA 141 at [20], in the context of the family provision jurisdiction, of the need not to encourage litigation where costs often reach a high proportion of the value of the estate; and his Honour's concern expressed in Harris v Harris [2018] NSWCA 334 … (at [18]) that what his Honour regarded as the Court's 'willingness to entertain comparatively expensive litigation of this sort' might well have encouraged the pursuit of such claims). It is no secret that the Family Provision List judge pays close attention to the control of costs, particularly in small estates, for that reason. The present is yet again a case where, regrettably, the costs (which, I have to say, are eye-watering in amount compared to the size of the estate (even if notional estate is taken into account) will inevitably have a significant impact on the outcome of the proceedings. I say this without criticism of Counsel appearing at the hearing (who readily acknowledged the problem posed by the level of costs in this case and broadly accepted the inevitability of cost-capping at the end of the day); and, without knowing what transpired in the attempts to resolve the case between the parties, it would be inappropriate to level criticism at one or other of the parties as to the position now facing all of the parties in terms of costs. Nevertheless, there are certainly aspects of the proceedings which did not assist in the containment of costs (most notably, the failure to serve the prescribed form of notice of the proceedings on Julie as an interested party)."
The parties agreed that, in the event the Court makes a family provision order, the usual order for costs should be made: Tcpt, 12 August 2019, p 21(19-38). However, the Plaintiff's submissions included the statement that the present solicitor and counsel acknowledged that this was a case where a capping order would be appropriate under Practice Note SC Eq 7, par 24, in relation to the Plaintiff's costs as well as to the Defendant's costs. Counsel went on to submit that if the Court determined the evidence of the Defendant had lacked candour or honesty in a case where it was determined the estate was insolvent, a capping order should be made in relation to the Defendant's costs.
The Court has power to make an order that a party to whom costs are to be paid should be entitled to a specified gross sum rather than assessed costs: Civil Procedure Act, s 98(4)(c). The discretion to order gross sum costs is unconfined and may be exercised whenever the circumstances warrant its exercise, having regard to the scope and purpose of the provision.
In Ghougassian v Fairfax Community Newspapers Pty Ltd [2015] NSWCA 307, Emmett JA wrote, at [62]: "Under s 98(4)(c) of the Civil Procedure Act, the Court may make a costs order as a specified gross sum, rather than assessed costs. The discretion conferred by that provision may be exercised where the assessment of costs may be protracted and expensive and if it appears that a party obliged to pay the costs may not be able to meet a liability to do so. The power may also be exercised where a party's conduct contributes unnecessarily to the incurring of costs." (citations omitted)
In this case, it is in the interests of the parties, there having been such a delay in the conclusion of the proceedings, to bring the costs issue to a rapid conclusion. The expense, delay and aggravation likely to be involved in a contested costs assessment should be avoided. A 'broad brush' approach is appropriate. To require the same or similar level of detail as in a formal costs assessment would defeat the purpose of the lump sum order: Kostov v Zhang (No 2) [2016] NSWCA 279 at [25] (The Court).
This is also to bear in mind, as Basten JA (Simpson JA agreeing) considered when referring to disputes as to quantification of costs in James v Australia and New Zealand Banking Group Ltd [2017] NSWCA 84 at [3], that "[c]osts provide an opportunity for ongoing litigation about 'non-essential issues' which should be resolved with as little technicality and expense as reasonably practicable".
The matter was left with the legal representatives in the hope that discussions could take place and, if possible, an agreement could be reached on the quantum of the Plaintiff's costs calculated on the ordinary basis. At the time the case was adjourned, I understood that discussions were proceeding so that a gross specified costs order could be made. However, on the adjourned date, neither side indicated that an agreement on the quantum of costs that might be ordered to be paid had been reached.
Regrettably, it may be that further consideration will have to be given by the Court to the quantum of the Plaintiff's costs. (The Defendant's costs, whilst she was represented, will be a matter for her and her solicitors since she is the sole beneficiary of the deceased's estate.)

[15]

The nature and value of the estate at the date of the final hearing

Doing the best I can, on the evidence before me, the actual estate in New South Wales, out of which an order for provision could be made, can be calculated as $32,923 less $23,000 on account of funeral and cemetery expenses ($9,923). In so calculating, I have not included the liabilities said to attach to the Mosman property.
The actual estate overseas, out of which an order for provision could be made, can be calculated as $2,737,427 less the one-half share in the Shanghai property that is the subject of some dispute ($1,347,500), for a total of $1,389,927. As stated above, I was not satisfied as to the Defendant's evidence of the overseas liabilities said to have been paid or incurred by her. For that reason I have not taken into account the foreign legal costs said to have been incurred ($107,626), the legal costs that were estimated to be forthcoming ($50,000), the credit card bills of the deceased said to have been paid ($344,676) or the alleged loans said to be repayable to friends of the Defendant ($1,198,589).
As stated above, it was agreed, when the Defendant was also legally represented, that the net value of the deceased's notional share in the Mosman property that could be designated as notional estate was $692,176.
Whilst the Court was never provided with evidence of the Plaintiff's costs, calculated on the ordinary basis, it may be assumed, for the purposes of calculation, that his ordinary costs are approximately 70% of the indemnity costs ($302,079), or about $211,455, subject to further consideration. (Any uplift figure will also have to be deducted.) The Defendant's costs, calculated on the ordinary basis, were estimated to be $204,686.
It follows that if one half of the net proceeds of sale of the Mosman property were not designated as notional estate of the deceased, the net estate, after payment of costs, out of which an order for provision could be made is $983,709. If one half of the net proceeds of sale of the Mosman property were designated as notional estate, then that estimate of actual and notional estate would increase to $1,675,885.
If the Defendant's claim for $30,000 by way of "executor's reimbursement", which has been referred to above, were found to have been proved to be a debt of the estate (which it has not been), it would be an additional liability in the deceased's actual estate and would reduce the above estimate to $1,645,885. (In the events that have happened, as the Defendant is the sole beneficiary, it is only relevant to the value of the estate out of which an order for provision could be made.)

[16]

The situation in life of the Plaintiff

The Plaintiff started learning to play the piano when he was eight years old. The Plaintiff studied at the Sydney Conservatorium of Music Rising Stars program, where he was in receipt of a scholarship for six years. He commenced high school at the Sydney Conservatorium High School for Years 7 and 8. In 2014, he transferred to the Sydney Distance Education High School. His school reports display that he is an outstanding musician, who appears to lack interest in subjects other than music and science.
It is unnecessary to list his musical prizes but there are many. Indeed, the tutor gave evidence that one of the sources of income, which supplements the pension that is received, is the prize money that the Plaintiff has won, both internationally and in Australia. Later, she also gave evidence that she supplemented her income with "winning from the poker machines": Tcpt, 13 August 2019, p 92(16-19). (One of the complaints made by the Defendant was that the amount of prize money that the Plaintiff had won had not been disclosed: Tcpt, 13 August 2019, p 89(01-49).)
There is evidence that he is regarded as having "exceptional musical gifts" which include "outstanding executant ability in the field of existing repertoire for the piano, along with a brilliant capacity to improvise in any number of musical styles": Letter from Richard Gill (Artistic Director, Sydney Chamber Choir) dated 19 June 2016.
He was also described as "an exceptionally talented composer. When I say exceptional, I do not mean one in a thousand or one in a million. There are probably fewer than a dozen children his age in the world who can do what he could do with no training when he came to me": Letter from James Humberstone (Composer-in-Residence, MLC School Burwood Report; Casual Lecturer in Music Education, University of Western Sydney) dated 19 March 2010.
The tutor gives evidence of a number of offers that were made to the Plaintiff which she, as his mother, was not able to take up, because she could not afford to do so. She also gives evidence that the deceased did not assist.
The tutor gave evidence in her affidavit affirmed on 15 July 2019 that she and the Plaintiff "went overseas between March 2019 and 6 June 2019 to assist the Plaintiff to further his opportunities for a career in music by way of entering into piano competitions".
The tutor for the Plaintiff was asked questions about why she had not disclosed details of the Plaintiff's financial circumstances and why she had failed to answer a notice to produce that had been served. Her evidence in response was quite confused, but, ultimately, when asked, she said that he had a piano, a MacBook, an iPad and his clothes. When asked about money in bank, the tutor first stated that they had a joint account but said that the money in it was hers: Tcpt, 12 August 2019, p 56(30) - p 59(11). She was then taken to some bank statements that were in the sole name of the Plaintiff, which showed the deposit of $10,000 being from the deceased's parents for his birthday: Tcpt, 12 August 2019, p 60(20-27).
The tutor confirmed that the account was still open and that she had failed to produce the bank statements for that account in accordance with the notice to produce: Tcpt, 12 August 2019, p 60(13-18).
The tutor in answer to further questioning said that when "we" (I inferred she meant the Plaintiff and her) bought the grand piano, "the deceased ask his sister to transfer A$30,000 to help to purchase the grand piano … This is the only money I got from them": Tcpt, 12 August 2019, p 61(06-09).
The tutor stated that the Plaintiff was in receipt of a disability pension of around $200 per week up until 28 December 2018, when he was rejected for the disability pension as not having met the criteria: Affidavit, Liu Mei Cao, 15 July 2019 at pars 17, 24, Annexure G. No prior evidence was given by the tutor about when these alleged payments commenced. It appears that the Plaintiff may be eligible for Newstart benefits (now known as JobSeeker): Affidavit, Liu Mei Cao, 15 July 2019 at par 26, Annexure G. At the hearing, she confirmed that the Plaintiff receives Centrelink benefits: Tcpt, 13 August 2019, p 94(45) - p 95(12). It was unclear whether the Centrelink benefits to which she referred were the disability pension payments which had since ceased, or some other, separate, benefit.
It was also unclear how much, if anything, the Plaintiff continued to receive as prize money from participating in piano competitions. Initially, in response to a question from the Bench, the tutor gave evidence that the last occasion that she could remember that the Plaintiff had won any prize money was in 2017: Tcpt, 13 August 2019, p 94(28-41). However, as later became clear in her cross-examination, the Plaintiff had received some limited income from playing piano in 2018 and 2019: Tcpt, 13 August 2019, p 99(31) - p 100(08). The tutor denied, when it was put to her, that she had deliberately failed to disclose the full extent of the Plaintiff's prize money: Tcpt, 13 August 2019, p 101(32-35).
I should note, finally, that there was no evidence updating the financial resources and needs of the Plaintiff served prior to the resumption of the hearing in accordance with the directions made. The updating evidence was served less than 24 hours before the continuation of the hearing. There was nothing to suggest, however, that the earlier evidence that had been given about his financial resources and needs had altered in any meaningful way.

[17]

The medical condition of the Plaintiff

In dealing with the medical condition of the Plaintiff, it should be noted that the exercise of the power of the Court, conferred by UCPR, r 23.4, (which applies in any proceedings in which a person's physical, or mental, condition is relevant to a matter in question), to compel a medical examination (which is defined to include any examination by a medical expert, including a psychologist), when it is necessary to assess a person's physical or mental condition, was never sought by the Defendant. In these circumstances, the evidence provided by the tutor is unanswered by the Defendant.
In August 2008, the Plaintiff was tested by Advancement Centre Pty Ltd in order to gain an understanding of his overall ability, strengths and weaknesses. Prior to the assessment, the assessors were informed that he was learning well at school, and it appeared that he had areas of giftedness and talent, including art, music, maths and science. They were also told that he could have difficulties in communication, which may have been due to him being bilingual in English and Mandarin.
The copy report, dated 20 August 2008, under the hand of Philip Wolfers, who was described as "Principal Psychologist", included the conclusion (in summary), that the Plaintiff's general cognitive ability is "very superior, in the top 1% of children", his general perceptual abilities were "in the very superior range", while his verbal, working memory and processing speed abilities were "in the superior range". The summary concluded: "For educational purposes he may be considered as gifted, with no objective weaknesses apart from his English vocabulary. He appears to be a predominantly visual/symbolic processor."
In June 2011, the Plaintiff was diagnosed by Birgitta Österberg, an Educational and Developmental, and Clinical, Psychologist as currently meeting "the Diagnostic and Statistical Manual of Mental Disorders (Forth [sic] Edition-TR) criteria for a diagnosis of Asperger's Disorder" (which is one of the forms of Autistic Spectrum Disorder).
At the hearing, the Plaintiff tendered a report of Dr Andrew Ellis, a Forensic Psychiatrist. Although leave to obtain an expert report had not been given, counsel for the Defendant did not object to its tender, but to only one sentence in the report, which sentence I rejected.
Relevantly, the report from Dr Ellis stated: "OPINION: Re: Psychiatric Diagnosis (DSM-5) [The Plaintiff] would meet criteria for a diagnosis of an Autism Spectrum Disorder. His presentation is without intellectual or language impairment. This constellation of features was previously known as Asperger's Disorder. While he has intact general intelligence, he does display significant deficits in social communication, poor fluid reciprocity in interactions and a lack of ability to appreciate other people's mental states. He has very restricted interests. He displays some repetitive behaviour in the form of blinking. This is consistent with the report of slow to develop language skills in childhood and impoverished social interactivity across his life. This has likely been compounded by his very limited and sheltered experience growing up as an only child from a cultural minority group. He has had limited clinical intervention to provide training and education around communication skills, which might otherwise improve his day to day function. He does appear to have a narrow area of savant like ability with classical piano, which can occur in these conditions. … He will require lifelong support, either from family, professional services or a combination of both. Autism spectrum disorders are pervasive conditions, and though persons with these disorders can adapt to ordinary society, this usually requires adjustments for those around them. It would be of benefit to him to have ongoing psychiatric review as he may require treatment for depression or attention deficit periodically. The mainstay of treatment however will be mental health case management with a focus on learning social communication skills, theory of mind and practical skills for daily living. This will likely require regular enforcement. I would estimate he would require psychiatric review twice each year and case management from a mental health professional with experience with persons with developmental disorders on a weekly basis to assist him with life skills. This would cost approximately $12000/year unless funded by the National Disability Insurance Scheme." (emphasis in original) (citations omitted)
There is no admissible evidence going to the question whether the Plaintiff would, or would not, be eligible for funding for disability support services under the NDIS.
The tutor gives evidence that in July 2017, a swelling appeared on the back of the Plaintiff's right hand. Medical evidence confirms that he "developed hand swelling particularly on the dorsum of the right hand but also of the left thenar eminence" leading up to a piano competition in which he was to participate.
The medical evidence also reveals that upon examination (on 26 July 2017), there was mild to moderate swelling, and that he had "the uncommon problem of overuse 4th compartment extensor tenosynovitis of the right wrist". It was suggested that "the main treatment will be self directed regulation of practicing hours and intensity".
A report dated 1 June 2018, from Dr Bassam Moses, a Sports and Exercise Medicine Physician, addressed to Dr Stuart Myers, provides: "… a high level pianist who presents with a 12 months history of right hand dysfunction. He is struggling with his ring finger and 2nd and 3rd fingers. Pain is not an issue but he describes tightness and fatigue. He has weakness in 4th finger extension. MRI with contrast is normal. I have explained reducing his playing workload in the short term while he sees you to begin some therapy before returning in a graduated manner. He has not progressed and would like your opinion regarding this."
No report from Dr Myers is in evidence.
In a letter dated 31 May 2018, Dr James Linklater provided a summary to Dr Moses of the results of an MRI conducted on the Plaintiff's right wrist: "MRI RIGHT WRIST Clinical History: Pianist. Weakness 4th EDC. Also tightness/resistance 2nd/3rd EDC. Technique: Axial PD and fat suppressed PD, coronal PD and STIR and sagittal PD and fat suppressed PD 3T MRI sequencing. The patient was recalled for additional short segment axial PD and fat suppressed PD sequencing from metacarpal neck to base P1 shaft junction level and 3-plane post-IV contrast fat suppressed T1 sequencing and contrast enhanced MR angiography. Findings: No abnormality is evident at the MCP, PIP or DIPJ levels. No flexor or extensor tenosynovitis is evident. There is no evidence of a dactylitis. The neurovascular bundles define normally. No peri-articular bone marrow oedema or erosion is evident. The intrinsic muscles of the hand define normally. No denervation effect. No abnormal contrast enhancement is evident. An accessory extensor muscle is incidentally noted (extensor digitorum manu brevis). CONCLUSION: • Normal examination. • The cause of the patient's weakness of the ring finger EDC is not identified. • An accessory extensor muscle is incidentally noted (extensor digitorum manu brevis), uncommonly a cause of writ-hand symptoms." (emphasis in original)
Although not disclosed in her affidavit evidence, the tutor confirmed, in cross-examination, that the Plaintiff was then studying at the Oberlin Conservatory of Music in Oberlin, Ohio, in the United States. It was a two-year course that he was attending. He was on a scholarship, which, as I understand the tutor's evidence, means that she pays a significantly reduced amount for his tuition. He cannot live in College housing, or other student accommodation, which means that the tutor has had to rent an apartment in which she and the Plaintiff live: Tcpt, 13 August 2019, p 95(44) - p 99(04).
The tutor denied that intentionally, she had not disclosed the information referred to. It is difficult to accept the denial when such an obvious matter as where they had been living and where he had been studying, had not been disclosed.
There is a question whether the Plaintiff needs an independent financial manager, or trustee, and to whom any order for provision should be paid. This will be a matter upon which further submissions may be required.

[18]

The Expert Evidence

As stated previously, there is no issue, at least in Australia, about the validity of the deceased's Will.
Given the lack of clarity regarding the two different Chinese proceedings, it was, in hindsight, unsurprising that the expert evidence was somewhat undirected. The Plaintiff's expert report, to which reference will be made below, seemed to cover aspects of both the first and second Chinese proceedings, without expressly referring to either. Whereas the Defendant's expert report expressly identified the second Chinese proceedings and largely focussed on the issues therein. There was, however, some mention of the issues of "marital property" that were seemingly relevant to the first Chinese proceedings.
The Plaintiff's expert report (Ex C) was one given by David Dahong Li, a senior partner at the Shanghai Office of Zhonglun W&D Law Firm, qualified to practise law in mainland China. He was said to have "enormous interests in family law with cross jurisdiction elements". He considered that the question of the Plaintiff's entitlement to the deceased's estate "will be deemed as a foreign-related civil relation under PRC law". That conclusion, it seems, is determinative of which law will govern the Plaintiff's entitlement to the deceased's estate under the law of the People's Republic of China.
Mr Li stated, at pars 2.3-2.4 of his opinion, that: "the validity of a will should be governed by the law of regular residence or nationality of the testator at the time of making the will or decease. … … it is assumed that the Deceased was an Australian citizen at the date of execution of the Will as well as his death. Hence, relevant Australian law should apply when determining the validity of the Will. Assuming that the Will is valid and applicable for the Deceased's estate outside Australia per relevant law of Australia, it will be a question of Australian law as to how the estate of the Deceased should be distributed according to the Will."
Mr Li also stated, in par 10, with respect of the issue of "marital property" (that appears to be relevant to the first Chinese proceedings): "For purpose of clarification and avoidance of doubt, the real property estate of the Deceased discussed in this opinion only refers to the Deceased's share of ownership in relevant real property. For any real property that constitute marital property of the Deceased and Yuhua Tong, Yuhua Tong may be entitled to claim 50% ownership of the real property while the rest 50% ownership will be distributable to the eligible successors."
Mr Li concluded at pars 3.1-3.3: "Rio Kai Rui Xiang's entitlement to succeed to the Deceased's estate in PRC is contingent on the validity of the Will pursuant to relevant Australian law. In answer to the questions A and B of paragraph 19 of the Letter of Instruction, if the PRC court finds the Will valid pursuant to relevant Australian law, then Rio Kai Rui Xiang's entitlement to the Deceased's estate in PRC will be an issue of Australian law. As such, Rio Kai Rui Xiang will be entitled to nothing under the Succession Law which only applies if the Will is invalid. It is understood that Rio Kai Rui Xiang was left nothing under the provisions of the Will, unless it is interpreted otherwise under Australian Law. In answer to questions C and D of paragraph 19 of the Letter of Instruction, if the Will is found invalid by PRC court pursuant to the relevant Australian Law, it will be presumed that Rio Kai Rui Xiang, being one of the first-tier successors, is entitled to 20% of the real property estate of the Deceased in PRC pursuant to Sections 10 and 13 of Succession Law. This is based on Deceased's widow, other child and parents will all have equal weight in the Deceased's estate. Rio Kai Rui Xiang may be entitled to claim additional share of Deceased's estate on top of his 20% entitlement pursuant to Section 13 of Succession Law which provide that due consideration should be given to successor who are unable to work and have special financial difficulties. However, the other first-tier successors may also be entitled to claim additional share of the Deceased's estate based on other grounds set out under the Section 13 of Succession Law."
In the report obtained by the Defendant from Lawyer Han, a copy of which is Ex 2, reference is made to the proceedings in the People's Republic of China. He refers to the claim, in the second Chinese proceedings, made by the parents of the deceased "that the will of the deceased is invalid" and that they "demand that the estate be divided according to the legal inheritance … arguing that the deceased may be in a state of confusion when establishing the will".
(I mention that the deceased's parents would not be permitted to challenge the validity of the deceased's Will in New South Wales. Probate litigation is what is called "interest" litigation. As there is no suggestion of any earlier Will of the deceased, if the deceased's Will were invalid, the deceased's parents would not be entitled to share the deceased's estate, under the operation of the rules of intestacy, the deceased having left a spouse and children: ss 113, 127 of the Act.)
Lawyer Han concluded: "2. About the distribution of inheritance The legal opinion: If the [Chinese] court decides the will is valid, in accordance with China's Inheritance Law, the will of the deceased don't arrange necessary share to minors xiang yi tong and rio kai rui xiang, and when the amount of the estate is divided, the Chinese judge has the right to allocate the necessary share to the minor children of the deceased in accordance with the relevant provisions of the Inheritance Law. Law of Succession of the People's Republic of China (Order No.24 of the President) Article 19 Special provisions Wills should retain the necessary share of inheritance for heirs who lack the ability to work and have no source of livelihood."
Neither of the experts was cross-examined.
Although it is far from clear, it would appear the Court in the People's Republic of China, may not cause any share of the deceased's estate to pass to the Plaintiff. I am unable to conclude whether any share of jointly held immovable property will pass to him by an order of that Court.
The issue may not, ultimately, pose a problem because during the final submissions, the following discussion occurred between counsel for the Plaintiff and the Court at Tcpt, 17 November 2020, p 214(16-37): "HIS HONOUR: Mr Young, on the issue of the property in China that is a very relevant matter in this case, is it not? YOUNG: No, it's not, your Honour. HIS HONOUR: Why is that? YOUNG: Because, it only goes to the overall value of the estate, Rio has no entitlement to it. HIS HONOUR: Well, that isn't entirely clear, is it? YOUNG: It is. With great respect, it is. The report of the lawyers is very clear. The report that has been filed by the plaintiff's lawyers is very clear. There is HIS HONOUR: Yes, I know, but there is a dispute about that with the defendant's lawyers, neither of whom has been cross examined. But, is the way of dealing with it simply that in the event that Rio recovers any fund of Chinese assets that has to be deducted from any amount payable by the plaintiff? YOUNG: I'm happy with that, your Honour."
Whilst counsel for the Plaintiff maintained that "the Plaintiff's mother is not asserting any claim in any Chinese court", on behalf of the Plaintiff (Tcpt, 17 November 2020, p 231(38) - p 232(32)), as I understand it, the second Chinese proceedings may have the result that some provision will be made for the Plaintiff. Later, the tutor gave an undertaking, in writing, that was marked as Ex D. The Defendant was not prepared to accept such an undertaking stating that it was worthless: Tcpt, 17 November 2020, p 237(36-49).

[19]

Submissions

In his written submissions, counsel for the Plaintiff referred to the contents of Dr Ellis' report, to which I have already made reference above.
Whilst conceding that the Plaintiff was a talented pianist, counsel for the Plaintiff submitted, in line with the tutor's evidence, that the Plaintiff's music career is at an end following the injury to his hand. He submitted that, in addition to the tutor relying solely on Centrelink income and public housing: "The Plaintiff himself receives no income and is apparently ineligible for a disability support pension because of the level of his education. Rio is certainly not easily employable and does not want to work telling his mother that he would rather not eat."
Counsel for the Plaintiff, therefore, described the Plaintiff as "a person of very considerable need".
Counsel for the Plaintiff then turned to the issue of the $300,000 transferred by the deceased to his parents purportedly to be held for the Plaintiff's benefit. He submitted that the evidence of Ms Xiang demonstrated that the transfers had nothing to do with the Plaintiff but were instead given to the deceased's parents to ensure that the deceased had access to funds outside of the reach of the Defendant. Implicit in this submission, is an additional one that the evidence of Ms Xiang be preferred to that of the Defendant.
In circumstances where the Defendant did not adduce any evidence from either of the deceased's parents as to the purpose of the transferred funds, counsel for the Plaintiff submitted that the Court should not accept that the $300,000 was for the benefit of the Plaintiff.
As adverted to above, counsel for the Plaintiff disputed that the deceased's estate in New South Wales is insolvent and raised issue with a number of the figures relied upon by the Defendant. However, again, as discussed above, by the first day of the hearing, the values of the Mosman property and the debt secured by the mortgage thereupon, were agreed.
Counsel for the Plaintiff, additionally, disputed the value of the contributions said to have been made by the Defendant to the debt secured on the Mosman property, the legal costs and expenses claimed by the Defendant in connection with the administration of the estate, and the Defendant's claim for reimbursement of the funeral and burial expenses.
In any event, counsel for the Plaintiff submitted that, in view of the substantial assets in the deceased's estate held overseas, provision from the deceased's notional estate in New South Wales should be made for the Plaintiff. This would require a notional estate order designating the deceased's interest in Mosman property as notional estate. He relied, in this respect, on s 88(b) of the Act, and submitted that the deceased's estate, absent the notional estate order, is insufficient for the making of a family provision order in favour of the Plaintiff. He submitted that the substantial justice and merits of the case, bearing in mind the medical condition of the Plaintiff and his financial resources and needs, were heavily in favour of making a notional estate order.
When counsel was asked what provision by way of a lump sum order, he submitted, should be made for the Plaintiff by way of family provision order, he stated that the provision should be by way of a lump sum of $300,000. He did not specifically state how this lump sum had been calculated.
Counsel for the Defendant referred to the minimal contact between the Plaintiff and the deceased throughout the Plaintiff's life. She submitted that, for the most part, the Plaintiff had been financially independent of the deceased for many years prior to his death. The fact that the deceased and the Plaintiff had limited contact for the latter years of the deceased's life was accepted by counsel for the Plaintiff: Tcpt, 17 November 2020, p 218(47) - p 219(04). However, he added at Tcpt, 17 November 2020, p 219(46) - p 220(03): "The fact that he did cut himself out of the life of his autistic son from a previous relationship does not, in my submission, affect the need for him to make adequate provision, indeed, and one might think, morally, that where one hasn't been part of somebody's life with those sort of disabilities, that they should be at the top of your thoughts when you're making testamentary dispositions."
Counsel for the Defendant described the Plaintiff as a "remarkably gifted and internationally acclaimed pianist and composer". In that regard, she made reference to his high scores on intelligence and aptitude tests, and his success at international piano competitions.
Whilst counsel for the Defendant accepted that the Defendant did not advance a competing financial claim on the deceased's estate, she did advance a "strong competing moral claim". Such a claim encapsulated her financial contributions to the Mosman property, financial contributions to living expenses and the costs of raising her and the deceased's child, and non-financial contributions to the relationship, including those when the deceased received his cancer diagnosis.
I have already referred to the money said to have been borrowed by the Defendant in aid of the deceased's cancer treatment and how I am unable, on the evidence available, to conclude that they were, in fact, loans.
In her final oral submissions, the Defendant stated that she left it to the Court to determine the provision that ought to be made for the Plaintiff.
Turning then to the $300,000 transferred by the deceased to his parents, counsel for the Defendant submitted that, in so transferring, the deceased had established an inter vivos trust (or trusts) for the benefit of the Plaintiff. The trustee of that trust (or trusts) was said to be the deceased's father. She submitted that the fund is a financial resource available to the Plaintiff.
Counsel for the Defendant submitted that it was inappropriate, in the circumstances of this case, to designate the Mosman property as notional estate. As referred to above, the Defendant and her son wished to relocate to Sydney and live in the Mosman property. Counsel for the Defendant relied on s 87(a) of the Act and "the importance of not interfering with reasonable expectations in relation to property".
The principal submission made by counsel for the Defendant was that the Plaintiff had failed to provide full and frank disclosure as to his financial resources and needs. In this regard, particular importance was placed upon the failure to disclose the amounts the Plaintiff had received as prizes and the amount that the Plaintiff might receive by way of provision in the proceedings in the People's Republic of China. This was reiterated by the Defendant in her final oral submissions: Tcpt, 17 November 2020, p 225(33) - p 226(01).
Finally, counsel for the Defendant submitted that any order for provision for the Plaintiff would require the appointment of an independent financial manager or trustee.
In her oral submissions, the Defendant stated at Tcpt, 17 November 2020, p 232(45) - p 233(17): "I have got five reasons to support my claim. I want to say them one by one to you, your Honour. So, number one, the, the matter has been in Court for over four years. However, the other side has not produced any of the financial circumstances. I really do not know what Rio needs. And Rio is a famous pianist and he, he used his disability as a cause to ask for more money, and his disability application has been rejected, but he still uses it to ask for more money, therefore I don't think is acceptable. The third is that my own child is a very - is much younger, he's a little child, and he's got intellectual problems as well. Therefore, for his future and for our future, there has nothing been - there's nothing that I can see as a security or guarantee that we can live on. So, the fourth reason is that in these years, I have been receiving, almost every month, a bill from the legal representative. I think, I think I have enough, I have enough, I have had enough about this, and I want to have something that I can use as a security to, to take my son's future and our life in the - in future. The fifth reason, your Honour, is that after the proceeding -after the legal matter in China is finished, my - I will, my plan is to come back to Australia with my son for our settlement, and I need money to settle ourself [sic] in this new country, and I don't have money to give to him."
She added that another matter was that the Plaintiff, through the tutor, had received about $69,510 following the sale of the Winston Hills property: Tcpt, 17 November 2020, p 234(24-45).

[20]

The Statutory Framework

Section 59 of the Act, relevantly, provides: (1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: (a) the person in whose favour the order is to be made is an eligible person, and (b)…, and (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both. (2)The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.
I have referred to s 63 of the Act which permits a family provision order to be made in relation to the estate of a deceased person and in relation to property that is not part of the estate of a deceased person, or that has been distributed, if it is designated as notional estate of the deceased person by an order under Pt 3.3.
"Property" is defined in s 3(1) of the Act as including "any valuable benefit".
I have already referred to s 64 of the Act. There is no doubt that laws with respect to family provision (or what used to be called testator family maintenance) applications, are regarded as laws relating to succession to property, as distinct from laws relating to the administration of assets: Pain v Holt (1919) 19 SR (NSW) 105 at 107 (Harvey J); In re Butchart (deceased): Butchart v Butchart [1932] NZLR 125 at 131 (Kennedy J, for the Court); Heuston v Barber (1990) 19 NSWLR 354 at 360 (Windeyer M). Succession to movable property is governed by the lex domicilis, whereas succession to immovable property, including land, is governed by the lex situs.
As such, apart from s 64 of the Act, this Court would have no jurisdiction, insofar as Ch 3 is concerned, in respect of immovable property situated outside New South Wales. However, s 64 operates to extend the reach of the Act to immovables outside New South Wales, but only where the deceased was domiciled within the State.
As Brereton J (as his Honour then was) held, in Hitchcock v Pratt (2010) 79 NSWLR 687 at 700-701 [45]; [2010] NSWSC 1508 at [45]: "(NSW) Succession Act 2006, s 64, is beyond the constitutional competence of the New South Wales parliament insofar as it purports to confer power on the court to make a family provision order affecting succession to property outside New South Wales of a testator who dies domiciled outside New South Wales. It is effective, pursuant to Interpretation Act, s 31, to extend the power of the court to make a family provision order affecting succession to immovable property outside New South Wales of a testator who dies domiciled in New South Wales, and movable property in New South Wales of a testator who dies domiciled elsewhere."
Section 64 of the Act (read with the Interpretation Act, s 31(2)(a), and Hitchcock v Pratt at [7], [19]-[20], [45]) confers jurisdiction on the Court to make a family provision order affecting succession to movable property in NSW of a testator who has died domiciled elsewhere: Estate Grundy; La Valette v Chambers-Grundy (2018) 17 ASTLR 64 at 84 [94(a)]; [2018] NSWSC 104 at [94(a)] (Lindsay J).
I have, in many cases, described the statutory scheme and the general principles which guide its construction. I shall set out the principles below, in part because I am mindful that the Defendant was self-represented by the conclusion of the hearing.
To justify an order for provision under the Act, the Court, relevantly, must be satisfied that the deceased has not made "adequate provision for the proper maintenance … or advancement in life of the person in whose favour the order is to be made …": s 59(1)(c). If that is established, the Court is empowered to order such provision out of the estate as the court "thinks ought to be made" for the identified purposes: s 59(2).
Importantly, the question of the inadequacy of provision is to be assessed at the time when the Court is considering the application. This does not mean, however, that considerable weight should not be given to the assessment of a capable testator, who has given due consideration to the claims on her, or his, estate: Sgro v Thompson [2017] NSWCA 326 at [6] (Payne JA). The basis upon which the evaluative judgment is to be undertaken is unrestricted. There is no automatic entitlement to provision stipulated by the Act, and the deceased's Will applies unless a specific application is made and acceded to by the Court.
Relevantly, other than by reference to the provision made by the Will of the deceased, s 59(1)(c) of the Act leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for an applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the Court to the provision made for the applicant in the Will of the deceased, on the one hand, and to the requirement for maintenance or advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance or advancement in life of the applicant.
The question whether the deceased has made adequate provision for an applicant is a question of objective fact, the determination of which involves an evaluative judgment: Singer v Berghouse (1994) 181 CLR 201 at 210-211; [1994] HCA 40 at [20]-[24] (Mason CJ, Deane and McHugh JJ); White v Barron (1980) 144 CLR 431 at 434-435, 443; [1980] HCA 14 at [5] (Barwick CJ, albeit in dissent in the result), [8] (Mason J).
The applicant bears the onus of persuading the Court that adequate provision had not been made, relevantly for his, or her, proper maintenance or advancement in life. Thus, it is incumbent on him, or her, to lead evidence as to his financial and material circumstances, and ordinarily he, or she, could be expected to be in the best position to produce that evidence.
In relation to the complaint regarding the tutor's failure to fully and adequately disclose the Plaintiff's financial resources and needs, the issue has been considered by the Court of Appeal in Blendell v Blendell; Blendell v Blendell [2020] NSWCA 154, in which Meagher JA, with whom Gleeson and Leeming JJA agreed, wrote at [28]-[29], [65]: "As a general proposition, the fact of incomplete or unsatisfactory evidence may permit inferences unfavourable to the applicant for provision to be drawn. For instance, uncertainty left by imprecise or inaccurate evidence is not ordinarily to be resolved in favour of the person who was able to give the satisfactory evidence: Nicholls v Hall [2007] NSWCA 356 at [36] (Mason P, Hodgson and McColl JJA). And if the absence of such evidence is a consequence of deliberate falsehoods, or the deliberate withholding of evidence, the Court may be justified in proceeding on the basis that the evidence of the true position would have been unfavourable to that person's case: In re the Will of FB Gilbert (1946) 46 SR (NSW) 318 at 321-322, 324 (Jordan CJ); Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [100]-[104] (Meagher JA, Basten and Campbell JJA agreeing). Ultimately, depending on the state of the evidence, it may not be possible to conclude that an applicant has been left without adequate provision, as was the case in Collings v Vakas [2006] NSWSC 393 at [67] (Campbell J). There the applicant's income and expenditure were "not satisfactorily proved", with the result that the Court did not even have a "broad outline" of her financial position on which to make an assessment as to the adequacy of provision. … It is sufficient, as was observed by Campbell J in Collings v Vakas, that the Court has, at least in broad outline, the whole picture concerning the claimant's financial situation …"
Those remarks were reiterated by Payne JA (Macfarlan JA and Emmett AJA agreeing) in Megerditchian v Khatchadourian [2020] NSWCA 229 at [36].
"Provision" is not defined by the Act, but it was noted in Diver v Neal (2009) 2 ASTLR 89 at 97 [34]; [2009] NSWCA 54 at [34] (Basten JA, Allsop P and Ipp JA agreeing), that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime".
The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, described by Rosalind Atherton in "The Concept of Moral Duty in the Law of Family Provision - A Gloss or Critical Understanding?" (1999) 5(1) Australian Journal of Legal History 5, 10, as reached upon "a purely economic and objective basis", whereas "proper" prescribes the standard of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127 at 145 [72], 145-146 [77]; [2007] WASCA 235 at [72], [77] (Buss JA, Pullin JA agreeing), which seems to invite more subjective criteria.
In Pontifical Society for the Propagation of the Faith v Scales, Dixon CJ, at 19, pointed out that the words "adequate" and "proper" are always relative and that what the testator regarded as "superior claims or preferable dispositions" is a relevant consideration: "The 'proper' maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is 'adequate' must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning."
In Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31 at [18], Gibbs J (Stephen and Mason JJ agreeing) wrote, at 502: "… the words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards."
In Vigolo v Bostin (2005) 221 CLR 191 at 228 [114]; [2005] HCA 11 at [114], Callinan and Heydon JJ wrote: "… the use of the word 'proper' … implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all of the relevant surrounding circumstances and would entitle a court to have regard to a promise of the kind which was made here … The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."
The word "maintenance", and the phrase "advancement in life", are not defined in the Act.
In Vigolo v Bostin, Callinan and Heydon JJ, at [115], commented: "'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education."
In Alexander v Jansson (2010) 6 ASTLR 432 at 440 [18]; [2010] NSWCA 176, Brereton J (Basten JA and Handley AJA agreeing), wrote, at [18]: "'Proper maintenance' is not limited to the bare sustenance of a claimant … but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility." (citations omitted)
In McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 at [9], Dixon CJ and Williams J wrote, at 575: "The presence of the words 'advancement in life' in the ... Act in addition to the words 'maintenance and education' is not unimportant ... 'Advancement' is a word of wide import."
In Bartlett v Coomber [2008] NSWCA 100 at [50], Mason P (Hodgson JA agreeing) wrote: "The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker … at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams …)."
White J (as his Honour then was), in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253 at 283-284 [123]; [2013] NSWSC 522, wrote, at [123]: "The question of what level of maintenance or advancement in life is 'proper' depends on all of the circumstances of the case 'including the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty' (Singer v Berghouse (1994) 181 CLR 201 at 210)."
Whether the disposition of the deceased's estate is not such as to make adequate provision for the proper maintenance, education or advancement in life of the applicant will always, as a practical matter, involve an evaluation of the provision, if any, made for the applicant on the one hand, and the applicant's "needs" that cannot be met from her, or his, own resources on the other: Hunter v Hunter (1987) 8 NSWLR 573 at 575 (Kirby P, Hope JA agreeing). This statement is not intended to suggest that an applicant's "needs", when compared with the provision made for him or her, out of the estate, should be the dominant consideration. The existence, or absence, of "needs" which an applicant cannot meet from her, or his, own resources, will always be highly relevant, and quite often decisive: Singer v Berghouse at 227 (Gaudron J, albeit in dissent in the result); Bkassini v Sarkis [2017] NSWSC 1487 at [296]-[297] (Robb J).
As was written in Devereaux-Warnes v Hall (No 3), at [81]-[84], Buss JA (as his Honour then was) wrote: "The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227. 'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks (1989) 17 NSWLR 1 per Bryson J at 10-11. The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other. See Hunter per Kirby P at 575. Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6-11; Collicoat v McMillan [1999] 3 VR 803 per Ormiston J at 816 [38], 820 [47]."
However, as will be read, s 60 of the Act invites the Court to have regard to various matters, including, but not limited to, financial need: s 60(2)(d). If the Court does so, as will also be read, one of the purposes for which that is done is for determining "the nature of any [family provision] order": s 60(1)(b) of the Act.
No doubt, this has prompted White J to write, in Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473 at [147], that "… the need a claimant must demonstrate is a need for 'proper' maintenance, education and advancement in life", but that does not mean that "… adequate provision for proper maintenance and advancement in life implies no more than provision for the necessities of life, irrespective of the size of the estate and the effect, if any, of an order for provision on others …". Respectfully, I agree.
Of course, "need" is a relative concept: de Angelis v de Angelis [2003] VSC 432 at [45] (Dodds-Streeton J). It is different from "want" and does not simply mean "demand" or "desire". The latent difference between the words was stated by Lord Neuberger (the former President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808 at 1825 [54]; [2008] UKHL 52 at [54]: "'Need' is a more flexible word than it might first appear. 'In need of' plainly means more than merely 'want', but it falls far short of 'cannot survive without'."
In Boettcher v Driscoll (2014) 119 SASR 523 at 530 [41]; [2014] SASC 86 at [41], David J added: "'Need' is not so synonymous with 'want' such that the two are interchangeable."
However, no narrow view of what is encompassed by the concept of "need" is to be adopted. In Gorton v Parks (1989) 17 NSWLR 1 at 8, Bryson J commented that "[i]t does not seem possible to give a complete or exhaustive statement of the concept".
Yet, as Basten JA wrote in Chan v Chan, at [22]: "… it is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs. The background to any consideration of the appellant's needs required determination of the size of the estate and the claims of others on the beneficence of the testator."
Callinan and Heydon JJ emphasised in Vigolo v Bostin, at [122], that the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. Adequacy is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The whole of the context must be examined.
Sackville AJA (Macfarlan and Ward JJA agreeing) pointed out in Smith v Johnson (2015) 14 ASTLR 175 at 194 [84]; [2015] NSWCA 297 at [84], that: "… the assessment of an applicant's needs is not a mechanical process. In Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308, at [12], Allsop P observed that "[a]ccepted and acceptable community values permeate or underpin many, if not most, of the individual factors in s 60(2)". That observation applies to the concept of "financial needs" embodied in s 60(2)(d) of the Succession Act. The needs of a person depend on a range of factors that will vary from case to case. Some of those factors, such as the person's age and earning capacity, are specifically mentioned in s 60(2). Other factors, such as the person's financial or non-financial responsibilities to family members, or the standard of living which the deceased encouraged the person to enjoy, are not expressly identified in s 60(2) of the Succession Act."
If the Court is satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, it determines whether to make an order for provision and what provision ought to be made.
Section 60 of the Act provides: (1) The Court may have regard to the matters set out in subsection (2) for the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the applicant) is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the Court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (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, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (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, (e) if the applicant is cohabiting with another person - the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered.
It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew (2012) 81 NSWLR 656 at 665 [37]; [2012] NSWCA 308 at [37], as a "multifactorial list", and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380 at [123], as "a valuable prompt" to which the Court may have regard, together with "any other matter the Court considers relevant", for the purpose of determining whether the applicant is an "eligible person", whether a family provision order should be made, and if so, the nature of any such order.
In Chapple v Wilcox (2014) 87 NSWLR 646 at 649; [2014] NSWCA 392 at [7], Basten JA wrote: "Section 60 of the Succession Act spells out the matters which the court may have regard to in determining whether the claimant 'is an eligible person' and whether to make a family provision order: s 60(1). Most of the factors listed in s 60(2) will be irrelevant in relation to whether the applicant is an eligible person, a matter largely dependent upon the language of s 57. The matters set out must be available considerations in relation to both limbs of s 59(1) dealing with a family provision order, namely par (b) and par (c). Section 60 provides no assistance in relation to the different considerations which may arise in respect of each paragraph of s 59(1). The factors are also relevant to the determination of the 'nature of any such order', which presumably includes the discretionary element to be found in s 59(2): s 60(1)(b)."
The section does not prioritise the catalogue of matters that account of which may be taken. No matter is more, or less, important than any other. The weight of each of the matters specified in the section, account of which may be taken, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed are, necessarily, of decisive significance, and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender. The sub-section makes clear, since other matters may be taken into account, that the jurisdiction is not exclusively needs-based. Ultimately, it is for the Court to determine what weight should be given to relevant factors.
Furthermore, the section does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical.
A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).
Before leaving s 60(2), I should refer to s 60(2)(d) of the Act which identifies "the financial resources … both present and future, of the applicant" as one of the matters that may be considered by the Court.
In Hall v Hall (2016) 257 CLR 490 at 506-507 [54]-[55]; [2016] HCA 23, French CJ, Gageler, Keane and Nettle JJ wrote, at [54]-[55] (albeit in the context of family law proceedings), that: "The reference to 'financial resources' in the context of s 75(2)(b) [of the Family Law Act] has long been correctly interpreted by the Family Court to refer to 'a source of financial support which a party can reasonably expect will be available to him or her to supply a financial need or deficiency'. The requirement that the financial resource be that 'of' a party no doubt implies that the source of financial support be one on which the party is capable of drawing. It must involve something more than an expectation of benevolence on the part of another. But it goes too far to suggest that the party must control the source of financial support … Whether a potential source of financial support amounts to a financial resource of a party turns in most cases on a factual inquiry as to whether or not support from that source could reasonably be expected to be forthcoming were the party to call on it."
Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on "the discretionary question", namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently.
The Court should, and does, give considerable weight to the deceased's wishes in recognition of the better position in which he was placed. Of course, this is subject to the qualification that the Court's determination under s 59(1)(c) and s 59(2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased's death or will: Slack v Rogan; Palffy v Rogan at [127] (White J).
In Vigolo v Bostin, at [10], Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour explained: "It preserved freedom of testamentary disposition, but subjected that freedom to a new qualification."
In Goodsell v Wellington [2011] NSWSC 1232 at [108], I also noted that: "Freedom of testamentary disposition remains a prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated."
As was written by White JA (McColl and Payne JJA agreeing) in Sgro v Thompson at [86]: "I adhere to the view I expressed in Slack v Rogan; Palffy v Rogan. To recognise that the court is not in as good a position as a capable testator to assess what maintenance or advancement in life is proper for an applicant having regard to all of a family's circumstances, including the relationships between the applicant and the deceased, and the merits and claims of other family members, is not to put a gloss on the statute. Rather, it is to acknowledge the superior position of the testator. The most important word in s 59(1)(c) is 'proper'. Until the court has identified what is proper maintenance, education and advancement in life for an applicant, it cannot assess whether the provision made, if any, is adequate. What is proper requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties' financial circumstances. Whilst the court will know the latter, it will only have an incomplete picture of the former. Of course, the court's assessment of what is proper maintenance, education and advancement in life must be made when the court is considering the application. That does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate."
This passage confirmed that the Act is to be applied according to its terms and is not confined by notions of reluctance to interfere with freedom of testation. As was stated by Brereton JA (Simpson AJA agreeing) in Steinmetz v Shannon (2019) 99 NSWLR 687 at 708 [97]; [2019] NSWCA 114 at [97]: "The statutory family provision jurisdiction is not to be exercised on the footing that it must be approached with great caution because of its intrusion on testamentary freedom. Rather, the statute is to be given full operation according to its terms, notwithstanding that it encroaches on testamentary freedom."
As the Plaintiff is an adult child, it is to be noted that there are no special rules or principles applicable to the claims of an adult child. Nor is there any presumption in favour of, or against, there being an obligation to make provision for an adult child: Towson v Francis [2017] NSWSC 1034 at [108]; Torok v Becker [2020] NSWSC 1570 at [320] (Ward CJ in Eq); see also the summary of principles which I set out in Page v Hull-Moody [2020] NSWSC 411 at [176]-[177]. Each case must be considered by reference to its particular facts and circumstances.
I have earlier referred to taking into account the significant financial and non-financial claim of the Defendant, as the widow of the deceased, on his bounty.

[21]

Notional estate

I shall not repeat the matters of law earlier stated. It has been said, in respect of the notional estate provisions in the former Act, that an applicant for provision "may now apply in the same proceedings for orders for relief and designating property as 'notional estate' thereby compelling the 'disponee' of a 'prescribed transaction' to provide money or property for the purpose of making financial provision for the applicant": Kavalee v Burbidge (1998) 43 NSWLR 422 at 441 (Mason P). (Although the terminology in the Act is different, the same principle applies under the Act.)
Rosalind Croucher in "Contracts to Leave Property by Will and Family Provision after Barns v Barns [2003] HCA 9" (2005) 27(2) Sydney Law Review 263, has commented on the notional estate provisions of the former Act: "The introduction of the notional estate provisions brought to the forefront the distinction of 'estate versus notional estate' that had been implicit in the decisions on the legislation prior to the introduction of the Family Provision Act 1982 (NSW). It made explicit in the legislation that 'estate' and 'notional estate' were different. Things subject to contracts (like mutual wills) were not within the definition of 'estate'. To bring such property within the legislation required now the application of the complex procedures and definitions of 'notional estate'. This requires a particular kind of transaction, an absence of relevant consideration, a defined time frame in which the transaction took effect and a range of other matters to be considered before property can be designated as notional estate and made the subject of an order for family provision under the Act." (emphasis in original)
In New South Wales Law Reform Commission, Report 110 Uniform Succession Laws: Family Provision, (May 2005) at 37, "notional estate orders" are described as "orders issued by the Court which are intended to make available for family provision orders assets that are no longer part of the estate of a deceased person because they have been distributed either before or after the deceased's death (either with or without the intention of defeating applications for family provision)".
In Galt v Compagnon (Supreme Court (NSW), Einstein J, 24 February 1998, unrep) Einstein J, at 21, wrote that notional estate was "a complex concept" but shortly described it as "property which would have become part of the deceased's estate, had it not been dealt with, or had it been dealt with, by the deceased in a particular way and in particular circumstances, prior to his or her death".
Importantly, the power to make a notional estate order does not arise unless the Court is satisfied that (a) the deceased person left no estate, or (b) the deceased person's estate is insufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made, or (c) provision should not be made wholly out of the deceased person's estate because there are other persons entitled to apply for family provision orders or because there are special circumstances: s 88 of the Act.
The Court must not designate as notional estate, property that exceeds what is necessary, in the Court's opinion, to allow the provision that should be made, or, if the Court makes an order that costs be paid from the notional estate under s 99, to allow costs to be paid as ordered, or both: s 89(2) of the Act.
Section 74 of the Act provides that "relevant property transaction" means a transaction, or circumstance, affecting property and described in s 75 or s 76.
Section 75 of the Act provides: (1) A person enters into a relevant property transaction if the person does, directly or indirectly, or does not do, any act that (immediately or at some later time) results in property being - (a) held by another person (whether or not as trustee), or (b) subject to a trust, and full valuable consideration is not given to the person for doing or not doing the act. (2) The fact that a person has entered into a relevant property transaction affecting property does not prevent the person from being taken to have entered into another relevant property transaction if the person subsequently does, or does not do, an act affecting the same property the subject of the first transaction. (3) The making of a will by a person, or the omission of a person to make a will, does not constitute an act or omission for the purposes of subsection (1), except in so far as it constitutes a failure to exercise a power of appointment or disposition in relation to property that is not in the person's estate.
Section 76 of the Act then provides a description of some, but not all, of the circumstances that constitute the basis of a relevant property transaction for the purposes of s 75. One of the circumstances, described in s 76(2)(b), arises: if a person holds an interest in property as a joint tenant and the person does not sever that interest before ceasing (because of death or the occurrence of any other event) to be entitled to do so, with the result that, on the person's death, the property becomes, by operation of the right of survivorship, held by another person (whether or not as trustee) or subject to a trust …
Any such circumstance is "subject to full valuable consideration not being given": s 76(1) of the Act. Importantly, a distinction must be drawn between "valuable consideration" and "full valuable consideration": see, for example, s 76(4) of the Act.
Relevantly for present purposes, s 76(4) provides: For the purposes of this Chapter, in the circumstances described in subsection (2) (b), a person is not given full or any valuable consideration for not severing an interest in property held as a joint tenant merely because, by not severing that interest, the person retains, until his or her death, the benefit of the right of survivorship in respect of that property.
Important also is the omission of the words "in money or money's worth", which had appeared after "full valuable consideration" in the equivalent provision (s 22) of the former Act.
The expression "subject to full valuable consideration not being given", in my view, has the effect of imposing a requirement, wholly separate from the result, which is that property becomes, by operation of the right of survivorship, held by another person or subject to a trust.
There did not appear to be a dispute that the non-severance, before the deceased's death, of the joint tenancy in the Mosman property, is a matter capable of giving rise to a designation of notional property: Cetojevic v Cetojevic [2006] NSWSC 431 at [62]-[64] (Campbell J). As such, it is necessary to consider certain other sections of the Act.
Section 77(1) provides that for the purposes of Ch 3 of the Act, a relevant property transaction is taken to have effect when the property concerned becomes held by another person, or subject to a trust, or as otherwise provided by the section. Sub-section (3) provides that a relevant property transaction consisting of circumstances described in s 76(2)(b) or s 76(2)(e) is taken to have been entered into immediately before, and to take effect on, the person's death, or the occurrence of the other event referred to in those paragraphs.
Section 78 of the Act provides: (1) The Court may make an order designating property as notional estate only - (a) for the purposes of a family provision order to be made under Part 3.2, or (b) for the purposes of an order that the whole or part of the costs of proceedings in relation to the estate or notional estate of a deceased person be paid from the notional estate of the deceased person. (2) The Court must not make an order under subsection (1)(b) for the purposes of an order that the whole or part of an applicant's costs be paid from the notional estate of the deceased person unless the Court makes or has made a family provision order in favour of the applicant.
Section 80(1) provides that the Court may, on application by an applicant for a family provision order, or on its own motion, make a notional estate order designating property specified in the order as notional estate of a deceased person, if the Court is satisfied that the deceased person entered into a relevant property transaction before his, or her, death and that the transaction is a transaction to which the section applies.
Section 80(2) provides for the section to apply to the following relevant property transactions: (a) a transaction that took effect within 3 years before the date of the death of the deceased person and was entered into with the intention, wholly or partly, of denying or limiting provision being made out of the estate of the deceased person for the maintenance, education or advancement in life of any person who is entitled to apply for a family provision order, (b) a transaction that took effect within one year before the date of the death of the deceased person and was entered into when the deceased person had a moral obligation to make adequate provision, by will or otherwise, for the proper maintenance, education or advancement in life of any person who is entitled to apply for a family provision order which was substantially greater than any moral obligation of the deceased person to enter into the transaction, (c) a transaction that took effect or is to take effect on or after the deceased person's death.
(In this case, bearing in mind the nature of the property sought to be designated as notional estate, only s 80(1)(c) is relevant.)
It is not essential that the applicant be able to rely upon the provisions of more than one of the sub-paragraphs identified. It is sufficient if he, or she, is able to establish the matters in any of them.
Section 83 of the Act relevantly provides that the Court must not, merely because a relevant property transaction has been entered into, make an order under s 80, unless, inter alia, the Court is satisfied that the relevant property transaction, or the holding of property resulting from the relevant property transaction, directly or indirectly disadvantaged the estate of the principal party to the transaction or a person entitled to apply for a family provision order from the estate or, if the deceased person was not the principal party to the transaction, the deceased person (whether before, on or after death).
The power to make a notional estate order is discretionary. Section 87, contained in "Division 3 Restrictions and protections relating to notional estate orders", circumscribes the Court's power to make a notional estate order. That section provides: The Court must not make a notional estate order unless it has considered the following - (a) the importance of not interfering with reasonable expectations in relation to property, (b) the substantial justice and merits involved in making or refusing to make the order, (c) any other matter it considers relevant in the circumstances.
In John v John [2010] NSWSC 937, Ward J (as her Honour then was), at [118]-[120], wrote: "What amounts to 'reasonable expectations in relation to property' was considered in Petschelt v Petschelt [2002] NSWSC 706, at [68], by McLaughlin M (as the Associate Justice then was), who said: That phrase does not, however, indicate the person by whom those reasonable expectations are held. Clearly the Court must consider the reasonable expectations of the First Defendant in relation to property. By the same token, however, the Court should also consider the reasonable expectations of the Deceased herself in relation to property, and also, possibly, the reasonable expectations of the Plaintiff. In D'Albora v D'Albora [1999] NSWSC 468, at [53], Macready M (as the Associate Justice then was) gave examples of the circumstances which might give rise to reasonable expectations for the purposes of this section: Under s 27(1)(a) the Court has to consider the importance of not interfering with the reasonable expectations in relation to the property. Such reasonable expectations may well occur in a number of circumstances. For example, a beneficiary who receives a property may have spent money on the property or worked on the property. … Another common area where one often sees in this matter is where there is a promise in relation to the property and the acting by an intended beneficiary on the fact of that promise. Similarly, in Wentworth v Wentworth [1992] NSWCA 268, Priestley JA, with whom Samuels AP and Handley JA agreed, referring to the 'more general precautionary provisions' in ss 26 and 27 of the Family Provision Act, said: S27(1) for example, says the court shall not make an order designating property as notional estate unless it has considered, amongst other things, the importance of not interfering with reasonable expectations in relation to property. If someone is in possession of property, otherwise than by gift, after having given up something of equivalent value in order to obtain that property, it would be entirely reasonable for that person to expect to remain in possession of it." (emphasis omitted.)
In reference to s 87(a) of the Act, Basten JA in Phillips v James (2014) 85 NSWLR 619 at 642 [125]; [2014] NSWCA 4 at [125], wrote: "While it remains true that the section … is silent as to whose 'reasonable expectations' must be considered, the requirement is a constraint on the making of a notional estate order. It is not sensibly construed as referring to the reasonable expectations of the applicant who wants a share of, but does not own, the property. Nor does it sensibly refer to the expectations of the deceased person, because the court must already have determined that an adjustment in the distribution effected by the will was appropriate: s 89(2). Since a notional estate order will only be made in relation to property which never was, or no longer is, part of the estate, it is unlikely to refer to the expectations of any person other than the person who is the present holder of an interest in the property. To the extent that it held otherwise, the reasoning in Petschelt should not be followed."
Other members of the Court of Appeal took a different view. Whilst Basten JA disavowed reliance on Petschelt, Beazley P (Meagher JA agreeing) quoted, at [105], Ward J's decision in John v John, including the passage where her Honour quoted Petschelt. Since Phillips v James, the Court of Appeal has not had occasion to resolve the apparent conflict between the President and Basten JA.
At first instance, Slattery J in Manning v Matsen [2015] NSWSC 1801 at [157], cited Beazley P's judgment. His Honour did so without any reference to the conflict between the President and Basten JA. In the same way, his Honour followed Beazley P in Carr v Douglass [2016] NSWSC 854 at [76]. Similarly, Henry J referred to the President's judgment without reference to Basten JA's view in Purnell v Tindale [2020] NSWSC 746 at [319].
I do however, observe, that, recently, Parker J (although it was unnecessary for his Honour to decide the point) preferred the view expressed by Basten JA to that in Petschelt and John v John: Graham v Vukic [2020] NSWSC 1801 at [126]-[127].
It is unnecessary, for present purposes, to resolve the issue, as the deceased's "reasonable expectations" do not appear to be relevant even if (on a view favoured by Ward J, Beazley P and Meagher JA) the section permitted consideration of that view.
The Defendant, then, is the person whose "reasonable expectations" should be considered, since she is the spouse of the deceased, and in the events that happened, the person who has come to hold the jointly owned property by survivorship.
The "substantial justice and merits" referred to in s 87(b) of the Act are linked to the making, or refusing to make, an order designating property as notional estate: Smith v Woodward (Supreme Court (NSW), Macready M, 9 September 1994, unrep) at 20. (In that case, the reference was to the equivalent provision (s 27(1)(b)) of the former Act.)
The position of both parties should be considered in respect of s 87(b) and s 87(c).
Section 89(1) of the Act relevantly provides that in determining what property should be designated as notional estate of the deceased, the Court must have regard to (a) the value and nature of any property the subject of a relevant property transaction; (b) the value and nature of any consideration given in a relevant property transaction; (c) any changes in the value of property of the same nature as the property referred to in paragraph (a), or the consideration referred to in paragraph (b), in the time since the relevant property transaction was entered into; (d) whether property of the same nature as the property referred to in paragraph (a), or the consideration referred to in paragraph (b), could have been used to obtain income in the time since the relevant property transaction was entered into; and (e) any other matter it considers relevant in the circumstances.
If the Court has made, or proposes to make, a family provision order designating certain property as notional estate, s 92 of the Act enables the Court, on application by a person who offers other property in substitution (the replacement property), to vary the notional estate order by substituting the replacement property for the property designated as notional estate by the order, or to make a notional estate order designating the replacement property as notional estate instead of the property proposed to be designated as notional estate by such an order, as appropriate. However, such an order may only be made if the court is satisfied that the replacement property can properly be substituted.

[22]

Some Additional Principles

Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act. Other judges, and I, have repeated them in many cases under the Act.
The Court's discretion in making an order is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation: Pontifical Society for the Propagation of the Faith v Scales at 19 (Dixon CJ); McKenzie v Topp [2004] VSC 90 at [63] (Nettle J).
Bryson J noted in Gorton v Parks, at 6, that it is not appropriate to endeavour to achieve "an overall fair" division of the deceased's estate. It is not part of the court's function to achieve some kind of equity between the various claimants.
As Pembroke J repeated in Sung v Malaxos [2015] NSWSC 186 at [5]: "Fairness and equality are not touchstones for relief under the Succession Act."
In Stott v Cook (1960) 33 ALJR 447 at 453-454, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to re-work a Will according to the Court's own notions of fairness. His Honour added: "There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged." (emphasis in original)
Dixon CJ, in Pontifical Society for the Propagation of the Faith v Scales, at 19, commented upon the consideration that was to be given to the deceased's wishes: "The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning. The Court is given not only a discretion as to the nature and amount of the provision it directs but, what is even more important, a discretion as to making a provision at all. All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court."
In all cases under the Act, what is adequate and proper provision is necessarily fact specific.
The size of the estate and potential notional estate is a consideration in determining an application for provision. However, its size does not justify the Court re-writing the deceased's Will in accordance with its own ideas of justice and fairness: Bowyer v Wood (2007) 99 SASR 190 at 202-203 [41]; [2007] SASC 327 at [41] (Debelle J, Nyland and Anderson JJ agreeing); Borebor v Keane (2013) 11 ASTLR 96 at 110 [67]; [2013] VSC 35 at [67] (Hargrave J).
The role of the Court is not "to address wounded feelings or salve the pain of disappointed expectations" that the applicant might feel: Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep) at 7.
In Foley v Ellis [2008] NSWCA 288 at [88], Sackville AJA (Beazley and Basten JJA agreeing) noted that Singer v Berghouse: "… strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim under the Family Provision Act."
However, the Defendant, as the sole beneficiary named in the deceased's Will, does not have to prove an entitlement to the provision made for her, or justify, otherwise, such provision. Nor does she have to explain the decision by the deceased to make the provision that he did for her in the Will.
Section 65(1) of the Act requires a family provision order to 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.
The Court's order may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner the Court thinks fit": s 65(2) of the Act. If provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest: s 65(3) of the Act.
Section 66 of the Act sets out the consequential and ancillary orders that may be made.
Unless the Court orders otherwise, any family provision order made under the Act takes effect, relevantly, as if it were a codicil to the Will: s 72(1)(a) of the Act. As was written by Brereton J in Liprini v Liprini [2008] NSWSC 423 at [14], a family provision order is: "… a unique [one] which in effect, is not really a judgment or order of the Court at all. It has effect not as a court order, but as a codicil to the Will; and is to be enforced not as a court order but as a codicil, by the remedies which a beneficiary has against a defaulting executor. Such an order does not bind the executor, who is a defendant to the Family Provision Act proceedings, as an order for payment of money or to do an act or thing, but only in an indirect manner insofar as it imposes a new obligation in the trusts of the Will, to be enforced as such."
On the topic of the relationship between an applicant and the deceased, Campbell JA (Giles JA and Handley AJA agreeing) noted, in Hampson v Hampson (2010) 5 ASTLR 116 at 133 [80]; [2010] NSWCA 359 at [80]: "The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad-brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge."
In Andrew v Blair [2007] NSWSC 1003, Young CJ in Eq wrote, at [5]: "… in cases where a person is seeking an order under this Act it is customary to put into evidence, as much as one can, the material from which the court can see that there has been a strong bond between the deceased and the child. Where a person has a solicitor acting for him, and he does not do so, the court is at liberty to be suspicious. When the court also sees that it was admitted in cross-examination that there were periods where there was no contact because the plaintiff did not know where his father was, because he had moved, and where one sees in the affidavit of the plaintiff that the deceased said that he could not afford phone calls, one is entitled to discount the material that the plaintiff puts forward as to the extent of the contact."

[23]

Qualifications on "Principles"

As long ago as 1980, in White v Barron, at 440, Stephen J wrote: "… this jurisdiction is pre-eminently one in which the trial judge's exercise of discretion should not be unduly confined by judge-made rules of purportedly general application."
As I have stated in many cases (see, for example, Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [117]), I do not intend what I have described as "principles" or "general principles" to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I do not intend what is provided as a guide to be turned into a tyrant.
It is necessary for the Court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the basis for a family provision order has been established. Every case is different and must be decided on its own facts. Cases involve different classes of eligible person, different factual circumstances, and different competing claims by others upon the estate of the deceased.
As Lindsay J wrote in Verzar v Verzar at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."
The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox at [18]-[19] (Basten JA), [66]-[67] (Barrett JA, Gleeson JA agreeing); in Burke v Burke (No 2) (2015) 13 ASTLR 313 at 329 [84]-[85]; [2015] NSWCA 195 at [84]-[85] (Ward JA, Meagher and Emmett JJA agreeing); Yee v Yee [2017] NSWCA 305 at [172] (McColl JA, Gleeson and Simpson JJA agreeing); and Steinmetz v Shannon at [37] (White JA). They must be remembered.
But, as Brereton JA also wrote, in Steinmetz v Shannon, at [106]-[108]: "As this Court pointed out in Burke v Burke, such observations are not rules of law, but guidelines that may give assistance and provide guidance that are not to be elevated to rules of law. That does not mean that they are without importance and significance, because, as Basten JA explained in Chapple v Wilcox: [19] … the real provenance of the 'principles' is that they constitute a reflection of community values, being a factual matter, but one as to which reasoned findings of judges with experience in these matters may well provide valuable guidance. Similarly, Barrett JA explained: [67] … [they] provide a useful touchstone that may be applied with circumspection by judges called upon to ascertain and apply 'the feeling and judgment of fair and reasonable members of the community' in cases of the present kind. Such guidelines also provide the additional benefit of affording a certain amount of consistency in decision-making, and indication of expectations and advice to litigants. Without such guidelines, decision-making and advising in this field becomes a morass of idiosyncratic decisions devoid of any consistency."
(In relation to Steinmetz v Shannon, I should mention that an application for special leave to appeal the Court of Appeal decision, made to the High Court, was dismissed upon the basis that "[t]he appeal proposed by the applicant would enjoy insufficient prospects of success to warrant the grant of special leave": Shannon v Steinmetz [2019] HCASL 332 at [1] (Gageler and Keane JJ).)
In addition, the formulation of principles, whilst not intended to "constitute a fetter upon the discretion not intended by the legislature", may assist in avoiding arbitrariness and may serve the need for consistency that is an essential aspect of the exercise of judicial power under the Act.

[24]

Determination

What is written below should be read as a continuation of what has been written above. In addition, I have had regard to all of the factual, and other, matters, so far as they are relevant, to my conclusions set out below. Merely because specific reference has not been made to facts previously identified, should not lead to the view that they have not been fully considered.
As already stated, there is no dispute that the Plaintiff is an eligible person. Nor is it in dispute that he commenced his claim within time. The first question, therefore, is whether, at the time the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the Plaintiff has been made by the deceased's Will.
No provision in the deceased's Will was made for the Plaintiff, which means that this is a case where a child of the deceased, who cannot be regarded as being able bodied and self-sufficient, has been excluded, completely, from participation in the estate of one of his parents. The jurisdiction of the Court is designed to provide for an eligible person, including an adult child, where inadequate provision is made for her, or his, maintenance, education or advancement in life: Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 at 29 (Kirby P).
Judged by quantum and looked at through the prism of his own financial resources and needs, adequate provision for the Plaintiff's proper maintenance, education, or advancement in life, could be seen as not having been made by the Will of the deceased.
When the Court approaches the question for which s 59(2) of the Act provides, it should place itself in the position of the deceased and consider what he ought to have done in all the circumstances of the case. This consideration occurs in light of the facts known at the time when the Court is considering the application. The Court treats the deceased as a wise and just, rather than as a fond and foolish testator: Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478-479 (Lord Romer for the Board); Pontifical Society for the Propagation of the Faith v Scales at 19-20 (Dixon CJ). The Court should also make allowance for current social conditions and standards: Andrew v Andrew at [34] (Basten JA) and, where it is considered relevant to do so, have regard to the matters set out in s 60(2) of the Act to determine whether to make a family provision order and the nature of any such order.
There was no explanation given by the deceased, in the Will, or otherwise, for the complete omission of the Plaintiff as a beneficiary. In any event, any explanation by the deceased would not relieve the Court from conducting the enquiry required by the Act.
When determining whether adequate provision has been made for the proper maintenance, education or advancement in life of the applicant, what is "adequate" is assessed by reference to, inter alia, the size of the estate, the needs and claim of the applicant, the relationship of the applicant and the deceased, and the need and claim of other persons who have a legitimate claim upon the bounty of the deceased. In considering all of these matters, I have come to the view that some provision should be made for the Plaintiff.
Whilst the tutor of the Plaintiff might have been more forthcoming, I am satisfied, from all the evidence that I have read and heard, that the Plaintiff's financial resources are not strong. It appears from the bank records that his income is by way of a pension. He does not appear to have any capital sum for exigencies of life.
However, I am unable to accept that he does not have any earning capacity as a pianist, although the level of that earning capacity is difficult to gauge. Yet, I am of the view that his medical condition makes extremely difficult his ability to obtain mainstream employment. However, that same medical condition makes his needs for advancement in life somewhat more limited, as it appears that he lives a fairly spartan lifestyle.
I have also borne in mind that the Plaintiff's relationship with the deceased was not as close as the deceased's relationship with the Defendant and Yitong, but, in this regard, I also remember the Plaintiff's medical condition. In part, the deceased appeared to have been disappointed at the Plaintiff's reaction to him, which it would seem, may have been caused by his medical condition. Autism spectrum disorder, as I understand it, is a complex neurodevelopmental disorder which includes difficulties with social communication and interaction. The deceased's view of the Plaintiff was not justifiable when one considers the Plaintiff's medical condition. A wise and just parent would have recognised that the Plaintiff's response to him was unlikely to have been one caused by factors within the Plaintiff's control.
Having read, and heard, the evidence, I am satisfied that the deceased's feelings of disappointment with the relationship he had with the Plaintiff, if a reason for making no provision, should not be decisive in the conclusions that I reach regarding the Plaintiff's entitlement to, and the quantum of, the provision.
As I must, I have also had regard to, and respect, the deliberate scheme of testamentary dispositions made by the deceased as a capable testator. As stated above, the deceased's decisions reflected in his last Will should not merely have a prima facie effect, the real dispositive power being vested in the Court. However, not unnaturally, they are based on the sole perspective of the deceased. In this case, he chose the Defendant, his wife of some years, as the chosen object of his testamentary bounty. Bearing in mind her financial and non-financial contributions, this is hardly surprising.
Also, whilst I must consider the competing claim of the Defendant on the bounty of the deceased, I also bear in mind the lack of evidence of her financial resources and needs and the size of the estate and notional estate of the deceased both within, and outside, the jurisdiction.
In all the circumstances, I have concluded that the Plaintiff has established that the deceased's Will does not make adequate provision for his proper maintenance, education, or advancement in life. The test established by s 59 of the Act has regard not only to what is "adequate" by reference to the applicant's needs, but also to what is "proper" in all the circumstances of the case. It cannot be forgotten that the Plaintiff is one of only two children of the deceased. The general community expectation, by which I mean the Court's perception of what fair and reasonable members of the community would expect of a wise and just testator, knowing all the circumstances, would expect him to have made some provision for the Plaintiff. Not to make an order would require the Plaintiff to be dependent upon the pension and any prize money that he may earn, assuming he continues as a pianist.
I have not forgotten the Defendant's substantial financial and other contributions to the deceased's estate and her legitimate claim, as a spouse, upon the deceased's bounty. I have also not forgotten that she is now a single parent rearing a teenage child, who is dependent upon her financially and otherwise.
But, I am also satisfied that making some provision for the Plaintiff will not unduly affect, significantly, the financial resources of the Defendant when one considers the quantum of the provision to be made and the nature and value of the deceased's estate and the value of property that may be designated as notional estate.
As the Plaintiff has established the jurisdictional threshold, the question then is what provision ought to be made for him from the estate or notional estate of the deceased. In this regard, the role of the Court is to make "adequate" provision in all the circumstances for his "proper" maintenance, education and advancement in life: Meres v Meres [2017] NSWSC 285 at [114]; Gorton v Parks at 6 (Bryson J).
I also have considered the matters contained in s 60(2) of the Act which may be considered for the purpose of determining whether to make a family provision order. The quantum of the provision to be made is a more difficult question. It involves "an instinctive synthesis that takes into account all the relevant factors and gives them due weight": Grey v Harrison [1997] 2 VR 359 at 367 (Callaway JA, Tadgell and Charles JJA agreeing). It is not a scientific, or arithmetic, exercise and it is often difficult to articulate the factors which contribute to that "instinctive synthesis". However, similar considerations as are set out above often arise.
My evaluative judgment should be, and has been, "guided and assisted by considering what provision, in accordance with perceived prevailing community standards of what is right and appropriate, ought be made"; and is to be undertaken assuming full knowledge and appreciation of all the relevant circumstances of the case: Andrew v Andrew at [16] (Allsop P).
As well, I remember the need to give due regard to "what the testator regarded as superior claims or preferable dispositions" as identified in Pontifical Society for the Propagation of the Faith v Scales at 19 (Dixon CJ).
Having regard to the size of the estate overseas, and the property in New South Wales that may be designated as notional estate, the Court should not make an order in the amount sought by the Plaintiff. To provide such a lump sum would exceed what, in my view, is "proper", in all the circumstances. I have also borne in mind the financial provision which was made by the deceased during his lifetime for the benefit of the Plaintiff.
In my view, the Plaintiff should receive a lump sum of $175,000. This amount will provide him with a lump sum for the exigencies of life. It will also enable him, to the extent that he is required to pay for it, to continue to obtain professional treatment and support for his medical conditions. (In this regard, the fact that he is obtaining a pension may lead to obtaining government support, through the National Disability Insurance Scheme, in this regard.)
The prospect of the Plaintiff receiving a benefit as a result of the proceedings taken in the People's Republic of China is also a relevant matter account of which may be taken.
It is necessary to consider whether any conditions, restrictions or limitations should be imposed by the Court. I discussed this question during the course of the hearing, before the matter was adjourned, and suggested that one alternative was to make provision for the Plaintiff, but order that in the event that the Plaintiff receive some provision out of the deceased's estate in the People's Republic of China, or otherwise out of the deceased's estate, pursuant to an order made in those proceedings, he should repay the amount: Tcpt, 14 August 2019, p 140(45)) - p 141(02), p 142(03-24).
The undertaking given by the tutor (Ex D) is not helpful on the topic as it simply states that the tutor has not instigated any proceedings in any Chinese court and that she is not seeking any part of the deceased's estate in any Chinese court on behalf of the Plaintiff. It does not include any undertaking, given on behalf of the Plaintiff, to repay, to the estate of the deceased, in Australia, any part of the deceased's estate that the Plaintiff receives pursuant to an order of the Chinese Court.
Ultimately, I have concluded that no condition, restriction or limitation should be imposed by the Court. I am simply not able to be satisfied, on the state of the expert evidence, whether the Plaintiff is likely to receive any provision out of the deceased's estate situated in the People's Republic of China.
As there was no dispute, at the commencement of the hearing, that the usual orders for costs should be made, I should make those orders. I considered whether the Defendant should be given an opportunity to seek any other order in relation to the Plaintiff's costs, but ultimately, I have concluded that the fault for the way in which the proceedings were conducted lies with both parties. If agreement cannot be reached on the quantum of the Plaintiff's costs, then they will simply have to be assessed. Naturally, taking that course is likely to delay completion of the administration of the deceased's estate.
I next turn to the manner in which the provision ordered to be made for the Plaintiff, and his costs, is to be provided, and the part, or parts, of the estate out of which it is to be provided. Naturally, as the sole beneficiary named in the deceased's Will, the burden of the provision made for the Plaintiff should be borne by the Defendant.
As stated, there is insufficient property in the actual estate, in New South Wales, to satisfy the order for provision and any order for costs that may be made. Whilst there is actual estate overseas, including cash in one, or other, of the bank accounts to which reference has been made, the Defendant may choose not to remit any part of that cash to Australia. She is not living in Australia at the present time, and may not be able, or may not wish, to return, in the foreseeable future, due to the worldwide pandemic or otherwise. Accordingly, subject to giving the Defendant an opportunity to satisfy the order for provision, out of the estate, I shall designate property as notional estate.
In the present case, the Court is able to designate, as notional estate, from one half of the net proceeds of sale (being the deceased's notional share of the net value of the Mosman property), no more than is necessary, in the Court's opinion, to allow the provision that should be made, and since the Court is also making an order for the Plaintiff's costs, those costs.
In this regard, I have borne in mind the financial, and other contributions, made to its purchase, the fact that for a short period it was the Defendant's home, and that she wishes to live in it upon her return to Australia (if that remains her desire).
The order I propose to make takes into account the substantial justice and merits involved in making the order. To do otherwise would involve extreme difficulty, if not impossibility, in the Plaintiff enforcing the order being made and any order for costs that is made.
Because of the nature of the orders for provision and any costs orders that are to be made, it will be unnecessary to make any adjustments which would have been made in favour of the Defendant, as the surviving joint tenant, if there had been a partition when the deceased was alive.
During the course of the hearing, the Defendant made an open offer (Tcpt, 14 August 2019, p 171(37-41)) of $300,000 inclusive of costs. As the matter proceeded thereafter, the offer must have been rejected or otherwise lapsed.
When the hearing resumed, I discussed with counsel for the Plaintiff the possibility of allowing the Defendant some period of time to raise any lump sum ordered. Upon counsel's concerns being ameliorated by the suggestion of a charge over the Mosman property pending payment of the lump sum, he indicated that there was no objection to "something like three or four months to raise the funds": Tcpt, 17 November 2020, p 217(10-33). Whilst the Defendant did not seem to express a view either way, I cannot see any reason why she would oppose the order proposed.
If the Defendant does not pay the lump sum, then it will be necessary for the Plaintiff to re-list the matter to obtain an order for the sale of the Mosman property and the distribution, from the proceeds of sale, of the lump sum provision that has been made for the Plaintiff, any interest accrued thereon, and any costs that are ordered to be paid. (Such an order could have been made as part of the orders but, regrettably, no trustees for sale were proposed by the Plaintiff.) The Court has power to make such orders as part of the suite of powers provided for in s 66 of the Act for the purpose of giving effect to the family provision order made in favour of the Plaintiff.
The Act provides that if provision is to be made by payment of an amount of money, the family provision order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of the interest: s 65(3) of the Act. I propose to order that that no interest is to be paid on the lump sum if it is paid within three months of the date of the making of the orders; and if not so paid, interest is to be paid on any unpaid part thereof, calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act, from three months and one day from the date of the making of these orders until the date of payment in full.
As it was accepted that the Plaintiff is a person under a legal incapacity, the lump sum should be paid into Court: s 77(2) of the Civil Procedure Act. The Plaintiff, by his tutor, may seek an order, in these proceedings, for the lump sum to be disbursed to trustees to be held for the Plaintiff.
The Court: 1. Orders, having found the Plaintiff is an eligible person, and the provision made for him in the Will of the deceased, is inadequate for his proper maintenance, education or advancement in life, that the Plaintiff receive, by way of provision, a lump sum of $175,000, out of the estate, or if not paid in accordance with these orders, out of the notional estate, of the deceased. 2. Orders that no interest is to be paid on the lump sum if it is paid within 3 months of the date of the making of these orders; otherwise, interest calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898 (NSW), on unpaid legacies, is to be paid from 3 months and 1 day from the date of the making of these orders until the date of payment in full. 3. Orders that the burden of the provision made for the Plaintiff be borne by the share of the deceased's estate passing to the Defendant. 4. Orders that the Plaintiff's costs, calculated on the ordinary basis, of the proceedings, be paid out of the estate, or notional estate, of the deceased. 5. Orders that the Defendant's costs, calculated on the indemnity basis, of the proceedings, be paid, or retained, as the case may be, out of the estate, or notional estate, of the deceased. 6. Orders, in the event the lump sum, any interest accrued thereon, and the Plaintiff's costs, are not paid out of the estate of the deceased, that one-half of the proceeds of sale of the property situated at XXX Bapaume Road, Mosman, Sydney, in the State of New South Wales, be designated as notional estate of the deceased to the extent necessary to satisfy orders (1), (2) and (4). 7. Orders, that until the payment by the Defendant, the lump sum of $175,000, constitutes a charge upon the property situated at XXX Bapaume Road, Mosman, New South Wales. 8. Orders pursuant to s 77(2) Civil Procedure Act 2005 (NSW) that the lump sum payable to the Plaintiff be paid into Court. 9. Orders, that until the payment of the Plaintiff's costs by the Defendant, that the amount of $100,000 shall constitute a charge upon the property situated at XXX Bapaume Road, Mosman, New South Wales. 10. Orders that the payment into Court, by the Defendant, of $100,000 on account of the Plaintiff's costs will be sufficient to satisfy the charge for costs. 11. Notes that the charge, in the amount of $100,000 on account of the Plaintiff's costs, does not prejudice those costs, calculated on the ordinary basis. 12. Grants liberty to any party to apply, in these proceedings, no earlier than three months from the date of the making of these orders, for consequential and ancillary orders for the purpose of, or with respect to, giving effect to, and implementing, the family provision order made in favour of the Plaintiff, including, but not limited to, seeking orders under s 66 of the Act for the sale of the property situated at and known as XXX Bapaume Road, Mosman, New South Wales, the appointment of trustees for sale and the doing of such other things as are necessary for the purpose of giving effect to the orders of the Court. 13. Orders that the Exhibits be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (r 31.16A and r 33.10) and Practice Note SC Gen 18.

Xiang bht Cao v Tong

At a glance

Court

Decision date

Before

Source

Judgment (25 paragraphs)

Parties

Legislation Cited (9)

Cases Cited (128)

Cited By (8)