Macleay v Birchall [1999] NSWSC 219 (23 March 1999)

Last Updated: 26 March 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Macleay v Birchall [1999] NSWSC 219

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): 3745/98

HEARING DATE{S): 23 November 1998

24 November 1998

JUDGMENT DATE: 23/03/1999

PARTIES:

John Valentine Macleay (P)

Sydney Frank Birchall (D)

JUDGMENT OF: Master McLaughlin

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

Mr. R. Taperell (P)

Mr. L. Ellison (D)

SOLICITORS:

Baker Love (P)

Teece Hodgson & Ward (D)

CATCHWORDS:

Family Provision

Claim by adult stepson

Whether plaintiff comes within paragraph (d) of definition of eligible person

Whether plaintiff was a member of a household of which deceased was a member

Whether plaintiff was dependent upon deceased

Events and circumstances occurring more than half a century ago

Inconsistent versions given by plaintiff

Plaintiff's evidence was unreliable

Limited contact between plaintiff and deceased during last forty-four years of deceased's life

Factors warranting the making of the application

Very substantial gifts made to plaintiff by his late father

Obligation upon an applicant to place before the Court as fully and as frankly as possible all available information concerning his financial and material circumstances

Whether plaintiff has done so

Present needs of plaintiff

Wish list presented by plaintiff

ACTS CITED:

Family Provision Act 1982

Testator's Family Maintenance and Guardianship of Infants Act 1916

DECISION:

See Paragraph 98

JUDGMENT:

SUPREME COURT OF

NEW SOUTH WALES

EQUITY DIVISION

MASTER McLAUGHLIN

Tuesday, 23 March 1999

3745 of 1997 JOHN VALENTINE MACLEAY -v-

SYDNEY FRANK BIRCHALL

1 MASTER: These are proceedings under the Family Provision Act 1982.

2 By summons filed on 25 August 1997, the plaintiff John Valentine Macleay seeks an order that further provision be made for him for his maintenance and advancement in life out of the estate of the late Doris Myra Macleay (to whom I shall refer as "the deceased"). (Subsequently, on 18 September 1997, an amended summons, seeking identical relief, was filed on behalf of the plaintiff. The reason for the filing of the amended summons was in order to correct the wrong spelling of the surname of the defendant appearing in the summons.)

3 The deceased died on 23 August 1996, aged ninety. She left a will dated 22 April 1996 and a codicil thereto dated 30 April 1996, probate whereof was on 17 March 1997 granted to Sydney Frank Birchall, the executor named in such will (who is the defendant to the present proceedings).

4 The assets of the estate included the former residence of the deceased at 21 King William Street, Greenwich (which was sold in December 1997 for $550,000) and a taxi licence valued by the Department of Transport at $261,982. After payment of liabilities totalling about $12,400, and making allowance for the costs of the present proceedings (those of the plaintiff estimated to be about $31,000 and of the defendant estimated to be about $29,000), together with further costs relating to the application for probate, administration expenses, costs on the sale of estate realty (totalling $44,300), the defendant estimates that the distributable estate is likely to amount to about $991,470.

5 By her will the deceased gave a number of legacies, totalling $16,000. (Those legacies included a legacy to the plaintiff of $5,000.) The deceased gave her taxi licence to the four sons of the plaintiff as joint tenants. The residue of the estate was given to two nieces and the defendant, as tenants in common in equal shares. (The defendant is a nephew of the deceased, his mother having been the deceased's sister.)

6 The plaintiff is the son of the late husband of the deceased; that is, he is the stepson of the deceased. The plaintiff asserts that he has the standing to bring the present proceedings, in that he is an eligible person within paragraph (d) of the definition of that phrase contained in section 6 (1) of the Family Provision Act. Relevantly, that definition is

A person ---

(i) who was, at any particular time, wholly or partly dependent upon the deceased person; and

(ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of a household of which the deceased person was a member.

7 The plaintiff was born on 6 February 1929, and is presently aged seventy. His mother, according the plaintiff's oral evidence, died in about 1940. Subsequently, on 8 May 1943 the plaintiff's father, Alfred John Macleay, married the deceased. The plaintiff was aged fourteen at that time. According to the plaintiff (but, as will become apparent, the plaintiff's recollection of dates, events, and sequences of events was far from reliable, and at times the evidence in his affidavits was not entirely consistent, and his oral evidence was different again), he was a boarder at Knox Grammar School at Wahroonga at the time of his father's marriage to the deceased.

8 However, a letter from the headmaster of Knox Grammar School dated 16 October 1997 (annexure J to the affidavit of Sydney Frank Birchall sworn 23 June 1998) states that according to the records of that school the plaintiff left Knox in December 1942.

9 In his affidavit of 18 August 1997 the plaintiff says, in paragraph 5, that after the marriage of his father and the deceased he continued as a boarder at Knox, and that he visited them at Wollstonecraft (whither his father had gone to live with the deceased at her residence at 4 Flemming Street, Wollstonecraft) on average once a month. In the same paragraph he says that he never stayed overnight at Wollstonecraft.

10 According to the plaintiff's principal affidavit, of 18 August 1997, his father and the deceased moved to Cooranbong in 1944 and the plaintiff went with them. He says that he attended Cooranbong High School and lived with his father and the deceased at their home at 20 Avondale Road, Cooranbong. In paragraph 6 of that affidavit the plaintiff says that in 1946 his father and the deceased went overseas on the Oriana for an extended holiday of nearly nine months and that, by that time the plaintiff having left school (having obtained his Intermediate Certificate at the end of 1945), he continued to live in the Avondale Road house until this overseas trip, when he went to live with his grandmother. Upon the return of his father and the deceased the plaintiff requested that he remain at his grandmother's, as there was more room there and a place for him to garage his motor car. They agreed to that request.

11 But in his oral evidence, under cross-examination, the plaintiff said that after leaving Knox (an event which he said took place at the end of 1942), he went to live with his grandparents at their residence at Cooranbong in 1943 (that is, in the year preceding the move of his father and the deceased to that location in 1944), and that he continued to reside with them until the arrival of his father and the deceased. Even during the lifetime of his mother the plaintiff had, on occasion, stayed with his grandparents at Cooranbong.

12 It is the foregoing period, from the arrival of the deceased, his father and the plaintiff at Cooranbong until his removal to his grandmother's residence that the plaintiff relies upon as fulfilling the second limb of the definition contained in paragraph (d). It was the case for the plaintiff that that period extended over some thirteen months, from the latter part of 1944 until early 1946.

13 Considerable and detailed evidence was placed before the Court on behalf of the defendant executor, which clearly establishes, firstly, that the plaintiff's father went on no overseas trip (be it on the Oriana or on any other vessel) in 1946, or, indeed, at any time before 1950, and that the deceased did not go on any overseas trip until 1956. Indeed, the plaintiff in a later affidavit, sworn on 3 November 1998, concedes that the dates demonstrated by the results of the various searches conducted by the defendant and by Sydney Clayton Birchall (the son of the defendant) "are most probably correct".

14 The plaintiff in paragraph 3 of that affidavit then offers what he suggests to be the correct chronology, which includes a departure of his father on the Orcades on 29 April 1950 and his return on the Strathmore on 20 September 1950; a departure of his father and the deceased on the Orsova in November 1957; a departure of his father and the deceased on a return trip on the Arcadia on 12 January 1959 and their return to Sydney on that trip in February 1959.

15 That chronology offered in his affidavit of 3 November 1998 is totally inconsistent with the case originally advanced by the plaintiff. If that chronology is to be relied upon, then the plaintiff must be taken to be asserting that he was residing with his father and the deceased for at least six years --- from 1944 until April 1950 --- or, possibly, for more than thirteen years --- from 1944 until November 1957.

16 Neither of those periods is consistent with the case originally propounded by the plaintiff in his affidavit evidence before 3 November 1998, or in the letter of 20 May 1997 from his solicitors before the institution of the proceedings (Exhibit 9), or in the opening address of his Counsel at the commencement of the hearing, or in the written statement made by the plaintiff on the first day of the hearing, which was admitted into evidence as Exhibit A, or in the written submissions of his Counsel at the conclusion of the evidence. Further, the plaintiff under cross-examination, said that he still maintained "till I die" that his father went overseas in the mid-1940's.

17 Throughout the hearing the case for the plaintiff was conducted upon the basis that the period during which he was residing with his father and the deceased was a period of about thirteen months, commencing immediately upon the removal of the plaintiff's father and the deceased from Sydney to Cooranbong, and that throughout most of that thirteen month period the plaintiff was a pupil at Cooranbong High School.

18 However, it is impossible to reconcile the various versions of the plaintiff's evidence. Even his oral evidence given on the first day of the hearing, 23 November 1998, included the assertion that until his father moved to Cooranbong the plaintiff had been residing with his grandparents, an assertion not previously made in any of the earlier evidence of the plaintiff, and an assertion which was inconsistent with the plaintiff's written statement made only a few hours earlier on 23 November 1998 (Exhibit A).

19 The evidence given by the plaintiff concerning his activities (for example, concerning his conduct of the Cooranbong Bus Service and his attending to the banking) during the alleged absence of his father and the deceased from Cooranbong in 1946 is clearly wrong.

20 It is appropriate here to record that, despite such assertions made by him under cross-examination as "I claim I've got a very good memory" and "I consider my memory very good" and the statement that he had a "very fair memory of the living circumstances at Cooranbong in the 1940s", I regarded the plaintiff as a totally unreliable witness in relation to those events of more than half a century ago. Further, he presented himself as a very self-opinionated person.

21 In the letter dated 20 May 1997 from the solicitors for the plaintiff to the solicitors for the defendant, before the institution of the present proceedings (Exhibit 9), it was stated, upon the instructions of the plaintiff, that he resided with the deceased and his father from the time of their removal to Avondale Road, Cooranbong in 1944 until the plaintiff "left school at the end of 1945, having completed the intermediate ccertificate".

22 An inquiry of the Board of Studies of New South Wales concerning the allegation that the plaintiff had obtained the Intermediate Certificate at Cooranbong High School elicited a response dated 5 January 1998 from the president of the Board of Studies (annexure L to the affidavit of Sydney Frank Birchall sworn 23 June 1998) that the Board had searched not only Cooranbong High School but also schools located at Avondale, Wyong, Newcastle, Maitland, Hamilton, Morisset, Swansea, Tighes Hill, Cooks Hill and Gosford, but that the Board could "find no listing for Mr [John Valentine] Macleay in the years 1943-44-45". The inference to be drawn is that, even if the plaintiff did attend Cooranbong High School (or one of the other schools referred to in the foregoing letter) at the relevant period, he did not receive the Intermediate Certificate.

23 A considerable body of affidavit evidence was filed on behalf of various contemporaries, school friends, acquaintances, and kinsfolk of the parties, relevant to the question of whether the plaintiff did or did not reside with his father and the deceased at their house property at Avondale Road, Cooranbong (it appearing that the precise location of that residence was at 20 Avondale Road). None of the witnesses in this case, apart from the plaintiff and the defendant, were cross-examined. It is abundantly obvious from the affidavit evidence of the other witnesses that the plaintiff did not, as he alleges, reside with his father and the deceased for the period of thirteen months at 20 Avondale Road, Cooranbong. At the period for which the plaintiff alleges that he was residing with his father and the deceased, I am satisfied that he was, in fact, residing not with them, but with his grandparents, some distance away at Maitland Road, Cooranbong.

24 I am not satisfied that the plaintiff has established that, either at the period which he alleges --- in about 1944-1945 --- or at any other time, he was a member of a household of which the deceased was a member.

25 Further, even if (contrary to the conclusion which I have just expressed) I were to be satisfied that the plaintiff had been, either at the foregoing time, as alleged by him, or at any other time, resident with his father and the deceased at 20 Avondale Road, Cooranbong, the evidence of dependency is skimpy in the extreme. The only evidence in that regard is that, according to the plaintiff, the deceased attended to the normal household duties of cooking, cleaning and washing whilst he resided with her and his father, and that from time to time she gave the plaintiff money to buy shirts and other clothes, continuing to do so until his first marriage in September 1952.

26 Throughout the relevant period the deceased was not in employment. The plaintiff's father acquired an omnibus and commenced to conduct a bus service shortly after his arrival at Cooranbong. The plaintiff's father was the breadwinner of the marriage of himself and the deceased. The family was maintained from the income derived from the Cooranbong Bus Service. Even if the plaintiff had been residing with his father and the deceased, it seems to me that, whilst the plaintiff was at school (which, according to the plaintiff, he was for most of the thirteen month period) he could not be regarded as being dependent upon the deceased, but rather that, if a member of the household, he would have been dependent upon his own natural father, the late Alfred John Macleay.

27 When the plaintiff left school he commenced employment with the Cooranbong Bus Service, working as a driver until that business was sold about six or seven years later. Once the plaintiff commenced employment and began to receive wages, it does not appear that he was dependent upon anyone --- certainly not upon the deceased. Receipt of occasional gifts of money for clothing by a young adult in full time employment do not constitute dependency of any degree.

28 When the plaintiff went to reside with his grandmother --- on his version he was working at the time --- he says that his father and the deceased paid for his board and that he bought clothes and any necessities from his salary. It is difficult to understand why it would have been necessary for the plaintiff's board with his grandmother to have been paid by anyone but himself if he were, as he asserts, already an employee of the Cooranbong Bus Service at the time when he went to reside with his grandmother. I am not persuaded that, in fact, any board was paid by anyone else to his grandmother on behalf of the plaintiff whilst he was employment. But even if this somewhat unlikely version of events asserted by the plaintiff be accepted, it is obvious that the source of any such board was the income derived from the Cooranbong Bus Service. That income was earned not by the deceased, but by the plaintiff's own father.

29 It will be appreciated that for the plaintiff to have the standing to bring the present proceedings he must establish that he comes within both limbs of the definition of eligible person contained within paragraph (d) ---- that is, that he was at some time wholly or partly dependent upon the deceased and that he was at that particular time or at any other time a member of a household of which the deceased was a member. I am not satisfied that the plaintiff has established either of those limbs.

30 The conclusion which I have just expressed is sufficient to dispose of the present proceedings.

31 Nevertheless, I consider it appropriate, in the event that I be wrong in the foregoing conclusion, and in the event that the plaintiff might establish that he is, in fact, an eligible person, that I should refer to the evidence in support of the substantive claim of the plaintiff, and set forth my views concerning that claim.

32 According to the plaintiff he worked for his father in the Cooranbong Bus Service from the time he left school until that business was sold by his father about six or seven years later. Although he did not expressly state when he obtained his driver's licence, the suggestion appears to be that it was immediately after the plaintiff left school. That event appears to have occurred at the end of 1945. Accordingly, upon that basis, the plaintiff would have worked as a driver for the Cooranbong Bus Service until about 1951 or 1952. Those dates accord with the plaintiff's evidence that the removal of his father and the deceased from Cooranbong to Sydney was some time in the early 1950s.

33 The plaintiff married in September 1952, by which time it would appear that he was already living in Sydney. After his marriage the plaintiff and his wife lived for a period at McMahon's Point.

34 Although the plaintiff in paragraph 8 of his affidavit of 18 August 1997 says that in the early 1950s his father and the deceased "sold their home at Cooranbong", it was noted during the hearing as an agreed fact that at all material times the house at 20 Avondale Road, Cooranbong was owned by Elizabeth Macleay, the mother of Alfred Macleay. That is, at no time were the plaintiff's father and the deceased the owners of the house property at 20 Avondale Road. In consequence, the assertion by the plaintiff in his affidavit evidence that they --- his father and the deceased --- had sold that home must be treated as incorrect.

35 Upon moving to Sydney the plaintiff's father and the deceased purchased land at 21 King William Street, Greenwich, upon which they proceeded to have constructed a house. That is the house property which ultimately constituted the chief asset in the estate of the deceased. During the period whilst that house was in the course of construction it would appear that the plaintiff's father and the deceased occupied as their residence a large garage on that site.

36 Upon moving to Sydney the plaintiff's father acquired, by purchase, a taxi licence, and the plaintiff worked for him as a driver for about nine months.

37 According to the plaintiff, he did not like living in Sydney, so after his marriage he and his wife returned to the Central Coast area. At that time, according to the plaintiff, his father and the deceased gave him £6,000 in order to buy a taxi plate, and another £15,000 in order to purchase a house property at 46 Bridge Street, Morisset. The plaintiff by his first marriage had five children.

38 The plaintiff said that he was then self-employed as a taxi driver for about five or six years in the Morisset area. He then entered employment with the New South Wales Electricity Commission as a depot attendant, based at Vales Point, then at Munmorah, and then at Eraring. The plaintiff was employed by the Electricity Commission for about thirty years. In his affidavit of 3 November 1998 the plaintiff says that he commenced employment with the Electricity Commission "in about 1962". Either that date is incorrect, or the period that the plaintiff worked as a taxi driver is incorrect, since if the plaintiff was self-employed as a taxi driver for about five or six years from his return to the Central Coast in 1953, that would bring his self-employment as a taxi driver up to 1958 or 1959. There would then be a gap of at least two years unexplained if he did not commence with the Electricity Commission until about 1962.

39 According to the plaintiff, whilst his children were young, he was in the habit of seeing his father and the deceased at least once a month, generally on a Sunday. I gather that that contact was by way of visits of the plaintiff and his family to the residence at Greenwich. Then, as his children grew older, the plaintiff's contact with his father and the deceased became less frequent, diminishing to once every six to eight weeks. The plaintiff said that his father and the deceased spent long holidays in Queensland, especially in winter months. He also said that the deceased made clothes for his daughter Christine (who had been born on 15 April 1956), and that she gave monetary presents of a couple of pounds when they visited the deceased and his father.

40 The plaintiff's father died in 1976. According to the plaintiff, he left an undated will. Under that will the plaintiff's father gave a legacy of £1,000 to the plaintiff, and the balance of his estate to the deceased. The evidence is silent as to whether that will (a copy whereof is annexed to the plaintiff's affidavit of 18 November 1997) was ever admitted to Probate --- or, indeed, whether that was even the last will of the plaintiff's father. It would appear, however, that the house property at King William Street, Greenwich was held by the plaintiff's father and the deceased as joint tenants, and that that property passed by survivorship to the deceased. According to the plaintiff, he did not ever receive the legacy of £1,000 left to him by his father. No explanation was offered as why the plaintiff did not receive that legacy, or whether he had ever requested payment of that legacy.

41 After the death of his father the plaintiff had no contact with the deceased for about ten years. In the interim the plaintiff had divorced and had remarried, on 1 December 1978. He had no children by his second marriage.

42 According to the plaintiff, the deceased telephoned him in about 1986, and contact between himself and the deceased was thus resumed. He said that he visited the deceased as a result of her telephone call, and subsequently brought his wife to visit her. He said that they then saw the deceased about every two or three months.

43 The plaintiff said that, however, in the last eighteen months of her life he saw the deceased less frequently than he had seen her from about 1986 until about the beginning of 1994. This was, according to the plaintiff, on account of an incident involving a gun, which the plaintiff received from the deceased, but which the deceased then requested be returned to her. That incident occupied a not insubstantial amount of the affidavit evidence. However, it does not seem to me to have any significant bearing on any of the matters in issue in these proceedings, except to explain the lack of contact during that last period of the lifetime of the deceased.

44 The plaintiff said that for a period the deceased would hang up when attempted to telephone her. However, according to the plaintiff, that situation eventually came to an end, and he continued to conduct a telephone conversation with the deceased at least once a month until her death.

45 The plaintiff retired from employment in October 1986. He and his wife had until 1995 been residing at 16 Sunrise Avenue, Budgewoi. However, in July 1995 they sold that house and acquired what has been described as a relocatable home, situate at Lakeland Park, Buff Point.

46 The present income of the plaintiff consists of a joint pension received by himself and his wife in a total amount of $620 a fortnight (which amount includes $20 as rental assistance). They have no liabilities. The present joint assets of the plaintiff and his wife are stated to be:

Relocatable home, having an estimated value of between $67,000 and $70,000

1987 Volvo motor car, having an estimated value of $10,000.

1979 Datsun motor car, having an estimated value of $500.

Savings, about $4,000.

Furniture tools and the like.

47 The plaintiff is a Lieutenant Commander in the Coastal Patrol at Tuggerah Lakes Division, which covers an area from Terrigal to Swansea, on the Central Coast. The Coastal Patrol is involved in search and rescue, and, according to the plaintiff, he is required to do a considerable quantity of travelling at his own expense. He is also required, at his own expense, to pay for uniforms, petrol and telephone bills, since his involvement in the Coastal Patrol is in the nature of volunteer work.

48 According to the plaintiff, he has suffered from problems with his back, arising out of a work accident in March 1985, whilst he was employed by the Electricity Commission. There has been placed before the Court an extract from the reasons for judgment given in the District Court of New South Wales at Gosford in respect to the compensation which the plaintiff received for that work accident.

49 In the course of that judgment the Judge said that the plaintiff was unable to sit or stand for long periods, and had problems in driving a car; that meaningful bending, stooping and lifting caused pain over and above that which he normally suffered, and he was forced to rest in bed; that because of discomfort he had had to abandon sexual intercourse, and such activities as gardening, fishing, and that his sport of pistol shooting was now beyond him. According to the Judge, a significant difficulty was the spontaneous giving way of his right leg which had caused him to fall on some eight occasions. The Judge concluded by saying that he considered that the effects of the plaintiff's accident would "impinge upon his capacity to enjoy life, indefinitely".

50 I would here interpolate that the foregoing statements made by the Judge in awarding to the plaintiff $165,167 (less the total amount which he had received under the Workers Compensation Act 1987 in the sum of $20,901), resulting in a verdict for the plaintiff in the sum of $144,276, are not entirely consistent with the energetic (and apparently enjoyable) physical activities described by the plaintiff in his involvement with the Coastal Patrol.

51 The present residence of the plaintiff stands upon land which the plaintiff and his wife lease from Lakeland Park Pty. Limited. They pay $169 a week rent for that land, which amount includes water rates. However, they must in addition pay for their own electricity, gas and telephone. As far as I can gather, the ownership by the plaintiff and his wife of their relocatable home gives to them, subject to payment of the rent, a right to occupy the land upon which that structure stands. Apparently that home had already been in that location for seven years when it was acquired by the plaintiff and his wife in 1995.

52 In the period from the beginning of 1980 until he acquired the relocatable home in 1995 the plaintiff (either alone or conjointly with his wife) had purchased and sold no fewer than five separate house properties, each being sold for an amount in excess of its purchase price. The differences between the purchase price and the sale price of those properties (as disclosed in Exhibit 8) were respectively: $15,000; $44,000; $37,000; $3,000; $10,000. (It will be appreciated, however, that those figures represent differences between gross amounts.)

53 The last house property which was owned by the plaintiff before he acquired his present residence was that situate at 106 Sunrise Avenue, Budgewoi. That property had been purchased for $125,000 in November 1991 and was sold for $135,000 in July 1995. According to the plaintiff, after discharge of a mortgage of $16,000, and payment of various adjustments, costs and disbursements in respect to that house property, he and his wife received a net amount of $103,975. That amount was applied by them to the cost of the acquisition of the relocatable home at Lakeland Park ($58,000), payment of Stamp Duty and other disbursements, refurnishing, recarpeting and painting the relocatable home, installation of a bath, benchtops and cupboards in the kitchen, acquisition of a new refrigerator and construction of a carport.

54 The plaintiff's wife suffers certain health problems. They include chronic back pain, anaemia and depression. She underwent one mastectomy in 1988 and another in 1991, consequent upon cancer of the breast.

55 In paragraph 15 of his affidavit of 18 August 1997 the plaintiff sets forth how he would expend any moneys which might be awarded to him in the present proceedings. His intention is, firstly, to purchase a replacement motor vehicle, such as a Honda Civic automatic, costing about $26,000. Then to undergo various chiropractic, medical and dental procedures (totalling about $5,000). He proposes to buy replacement furniture, furnishings and other items for his residence ($10,000). The plaintiff expressed a desire to purchase what he described as "a proper home", for which he estimates, after making allowance for the sale of his present relocatable home, he would require about $150,000. Because of his involvement in the Coastal Patrol he says that he would need to live near the beach. The plaintiff also stated that, apart from his Coastal Patrol activities, he enjoyed fishing as a pastime, and that he would like to purchase a boat for his use in the patrol work and also for fishing. A boat suitable for such purpose would cost about $12,000. The plaintiff expressed concern that his wife's back condition might require surgery in the near future. Neither he nor his wife is a member of a private health fund.

56 Upon my calculations the foregoing amounts which the plaintiff would wish to expend out of moneys he hopes to be awarded to him in the present proceedings would total in excess of $200,000.

57 Since the plaintiff is an eligible person, if at all, only within paragraph (d) of the definition of that phrase, section 9 (1) of the Act is called into operation. That subsection provides,

Where an application is made for an order under section 7 by an eligible person who is such a person by reason only of paragraph (c) or (d) of the definition of "eligible person" in section 6 (1), the Court shall first determine whether, in its opinion, having regard to all the circumstances of the case (whether past or present), there are factors which warrant the making of the application and shall refuse to proceed with the determination of the application and to make the order unless it is satisfied that there are those factors.

58 It was submitted on behalf of the plaintiff that the following matters were factors which warranted the making of the present application. Firstly, the plaintiff was the only child of his father, and the deceased appears to have had no children. Further, so it was submitted, there appears to be no other person, apart from the plaintiff, who is an eligible person in relation to the deceased.

59 The plaintiff also relies upon the situation consequent upon the death of his father on 27 December 1976 as constituting a factor warranting his making of the present application.

60 I have already recorded that the plaintiff's father is said to have left a will under which the deceased received the entirety of his estate, apart from a legacy of £1,000 to the plaintiff. A copy of such an undated will is Annexure A to the affidavit of the plaintiff sworn 9 November 1997. I have already recorded that the interest of the plaintiff's father in the house property at King William Street, Greenwich, passed to the deceased not pursuant to the provisions of that (or any) will, but by survivorship, since she and the plaintiff's father held that property as joint tenants. A Notice of Death dated 20 July 1977 (Annexure B to that affidavit) appears to have been filed by the deceased on 21 March 1978.

61 There is no evidence that the original of the undated will annexed to the plaintiff's affidavit was ever admitted to Probate. It will be appreciated that one of the assets held by the plaintiff's father was the taxi and its registration plates which subsequently became a significant asset in the estate of the deceased. It would be surprising if that asset had passed to the deceased without there having been a grant of Probate of the will of the plaintiff's father and some formal transfer of that asset to the deceased pursuant to that will. Yet no effort has been made by the plaintiff to present evidence concerning whether or not any will of his father was admitted to Probate, and, in particular, whether or not such will was the original of which a copy is Annexure A to the affidavit sworn by him on 18 November 1997.

62 It appears now to be a complaint of the plaintiff, and to be relied upon as a factor warranting the making of the present application, that the plaintiff did not receive, and did not make any claim for, payment of the legacy of £1,000 provided for in that undated will. Further, the plaintiff relies upon the fact that he did not in any way challenge any testamentary provisions which his father might have made, and that he did not make any claim against the estate of his father under the Testator's Family Maintenance and Guardianship of Infants Act 1916 (the statutory predecessor to the Family Provision Act 1982).

63 It was submitted on behalf of the plaintiff that the events following the death of his father reflect on the nature of the relationship between the plaintiff and the deceased, the plaintiff's actions (or lack of actions) being consistent with his regarding the deceased as a person standing in the place of his mother, and his recognition of her position as widow of the deceased, and further, that the entirety of the funds upon which he as the only child of the deceased might have regarded himself as having some form of a moral claim were allowed by him to pass without impediment to the deceased. It was submitted that it is those assets which now constitute the significant part of the estate of the deceased.

64 Persons who are eligible persons only within paragraphs (c) and (d) of the definition are not generally regarded as natural objects of testamentary recognition by a testator. It is for that reason, apparently, that the requirement of section 9 (1) has application to such eligible persons (see Re Fulop (1987) 8 NSWLR 679 at 681; Churton v Christian (1988) 13 NSWLR 241).

65 Often a stepchild of a testator has had a relationship with the stepparent no different in practical terms from the relationship between a natural child and a biological parent. In such a case the applicant stepchild usually has little problem in establishing the existence of factors which warrant the making of the application.

66 In the instant case, however, the relationship between the plaintiff and the deceased, even upon the version given by the plaintiff --- the accuracy of which I greatly doubt --- was hardly a close one. Upon the plaintiff's evidence he was a member of the same household with the deceased and his father for a period of thirteen months more than half a century ago. His subsequent contact with the deceased from the time he was aged in his mid or late teens until he was aged in his twenties appears essentially to have been contact as result of his being employed by his father as a driver for the Cooranbong Bus Service.

67 Once the plaintiff married, at the age of 24 in 1952, his contact with his father and the deceased diminished appreciably. After his father and the deceased came to Sydney in the early 1950s, the plaintiff appears to have remained in Sydney for only about nine months. Once the plaintiff moved back to Morisset in about 1952, his contact with the deceased over the next forty-four years was slight. Indeed, even on the plaintiff's own version, for about ten years from 1976, when his father died, until about 1986 there was no contact whatsoever between them. For a further period of about eighteen months preceding the death of the deceased there was little contact, and, indeed, for a not inconsiderable part of that period there was a total estrangement.

68 It is also relevant, in considering the various matters relied upon by the plaintiff as constituting factors which warrant the making of the present application against the estate of the deceased, that the plaintiff's father in about 1952, shortly after the plaintiff's marriage, gave to the plaintiff two very substantial gifts, being £6,000 to buy a taxi plate and £15,000 to buy a house at Morisset. Those amounts (nominally equivalent to $12,000 and $30,000 respectively) are not insignificant in the context of present values. But in the context of values in the early 1950s they are gifts of outstanding and extraordinary generosity. The defendant has calculated (using ABS Consumer Price Index figures) that £21,000 in, say, 1954, is the purchasing power equivalent of $418,000 in today's money. I am in agreement with the submission on behalf of the defendant that those amounts given to the plaintiff by his father in the early 1950s constitute an extraordinarily generous gift by any standard --- thereby the plaintiff shortly after his marriage received from his father the gift of a significant house property and the gift of an income producing business.

69 Those gifts must be taken into consideration when approaching the submission of the plaintiff that the events consequent upon the death of his father constitute factors which now warrant the making of his present application against the estate of the deceased. Had the plaintiff in 1976 attempted to make some claim against the estate of his father under the Testator's Family Maintenance Act, I have little doubt that the fact of the gifts to which I have just referred would have resulted in such an application being dismissed. However, it is not necessary for me here to express any concluded view concerning the fate of such a hypothetical application in the late 1970s. It is necessary for me here only to express a conclusion as to whether there are factors which warrant the making of the present application.

70 I do not consider that any of the matters relied upon by the plaintiff constitute factors which warrant the making of this present application against the estate of his stepmother, with whom his contact (largely from his own choice) was either non-existent or minimal for the last twenty years of the lifetime of the deceased, and was not very great for the preceding thirty-three years. A stepson whose relationship with his stepmother consisted of contact of the foregoing nature over a period of fifty-three years (together with, upon his assertion, living in the same household with her for thirteen months well over half a century ago) would not generally be regarded as a natural object of testamentary recognition by the stepmother.

71 I am not satisfied that the plaintiff has established any factors which warrant the making of the present application. That conclusion, of itself, is sufficient to dispose of the present proceedings.

72 However, in the event that (contrary to the conclusion which I have just expressed) it were to be held that there were factors which warrant the making of the present application, then it would be necessary for me to proceed to a consideration of the substantive claim of the plaintiff for an order for provision for his maintenance and advancement in life out of the estate of the deceased.

73 In this regard the Court must look to the present need of the plaintiff. It cannot be emphasised too strongly that a person who makes an application for provision out of the estate of a testator has an obligation to place before the Court as frankly and as fully as possible all available information concerning his financial and material circumstances (which circumstances, of course, include those of any spouse with whom the applicant is living).

74 I have already adverted to the various real property transactions of the plaintiff and his present wife. Even upon the somewhat unlikely version of the plaintiff that a net amount of only $103,975 was received by them from the sale of 106 Sunrise Avenue, Budgewoi (from a sale price of $135,000), and that a total of $74,500 was expended on the purchase of and improvements to their present residence, that still leaves a surplus of about $29,500 (of which only $10,500, for the purchase of a motor car, has been accounted for). But the plaintiff's assertion as to the amount of the net proceeds of sale is clearly wrong, since he has not taken into consideration the deposit of $13,500. The net amount actually received by him and his wife was $117,475, and the surplus after acquiring and outfitting their present home was $43,000. Apart from the purchase of a motor car, the plaintiff has not revealed what he did with the balance of that amount.

75 The plaintiff lists the value of assets owned by himself and his wife as being an amount totalling between $81,500 and $84,500 (affidavit of the plaintiff sworn 18 August 1997, paragraph 13), consisting principally of the relocatable home at Buff Point, worth between $67,000 and $70,000. I am in agreement with the submission on behalf of the defendant that, even after allowing for the financial impact of the plaintiff's divorce in 1978, this appears to be an unusually poor financial position. Especially so, since the plaintiff had received extremely generous gifts from his father in the early 1950s (which provided him with a house and an income producing business); and thereafter he had thirty years of paid employment; received a superannuation benefit of $38,436 in 1987; and received a verdict of $144,276 in 1989 as a result of an injury at work. In this latter regard, it will be appreciated that the plaintiff had already received an amount of $20,901 representing the difference between the foregoing figure of $144,276 and $165,177 (to which he had established an entitlement), that difference representing workers compensation payments and out of pocket expenses. In addition, he received a further $9,000, representing interest on his judgment pending the disposal, in his favour, of an appeal.

76 If the assertion by the plaintiff (affidavit of 3 November 1998, paragraph 12) that his solicitors in June 1989 accounted to him for the sum of $105,181.56 is intended to convey that that was the only amount received by him from his verdict, then it would appear that the plaintiff is here attempting to mislead the Court. The terms of settlement disposing of the appeal (annexure D to that affidavit), clearly reveal that part of the judgment had already been paid. The statement of account from the plaintiff's solicitors (annexure E) deals only with the balance of the judgment moneys. The plaintiff has not revealed what happened to the remaining $39,000.

77 Thus, after receiving a superannuation benefit of more than $38,000 in 1987, an actual payment of more than $105,000 in 1989, and various amounts (representing the difference between the sale price and the purchase price on five separate properties) between January 1980 and November 1991, the plaintiff, upon his evidence, now has as his only assets, jointly with his wife, a relocatable home purchased in 1995 (having a present estimated value of no more than $70,000), two motor cars (having a total estimated value of $10,500), and savings of about $4,000.

78 The plaintiff has not chosen to inform the Court of when and for what price he sold the house at Morisset (which must have been a truly palatial establishment to have cost £15,000 at Morisset in the early 1950s). Neither has he informed the Court of when and for how much he disposed of the taxi plate (which also would have had a very significant value in the 1950s). He has chosen not to disclose what happened to the proceeds of the sale of those assets.

79 I have already referred to the failure of the plaintiff to account for most of the surplus of $43,000 remaining from the sale of the Budgewoi house after the acquisition and outfitting of his present residence. Further, there remains totally unexplained what happened to the $38,436 which the plaintiff received by way of superannuation in 1987. (It certainly did not go in its entirety to the purchase of a residence at 229 Buff Point Avenue, Buff Point, which was purchased on 17 July 1987 for $23,000 and was sold two and a half years later, on 21 February 1990 for $60,000.) Further, there remains unexplained what happened to the moneys received by the plaintiff arising out of his claims consequent upon his work injury, totalling $165,177, plus interest of $9,000.

80 I am far from satisfied that the plaintiff has fully and frankly disclosed to the Court full and complete details of his financial and material circumstances.

81 But even if the assets stated by the plaintiff constitute the entirety of the assets of himself and his wife, it is clear that they are residing in comfortable circumstances, and that they have security of accommodation. Their conjoint income from their pensions is adequate for their needs.

82 The list of wishes of how the plaintiff would expend any moneys which he might receive in the present proceedings is no more than that --- a wish list, and a most inflated one at that. Most of the items in that list are pure extravagances. For example, the plaintiff and his wife sold their residence at Budgewoi as recently as July 1995 for $135,000, and after discharging the mortgage, they had a net amount of $117,475 from the proceeds of sale. They then purchased a relocatable home for $58,000, and, according to the plaintiff, expended the difference between that amount and $104,000 in effecting improvements and refurbishments to that relocatable home. Yet two years later the plaintiff claims an additional $150,000 from the estate of the deceased in order to "purchase a proper home for my wife and I to live in", and, in addition, he wants a further $10,000 for new furniture and related items --- despite having purchased furniture for the relocatable home in 1995. Presumably those 1995 purchases were adequate for the circumstances and needs of a retired couple. They now wish to purchase other furniture and related items, of a nature unspecified.

83 I have already referred to the inconsistencies between the plaintiff's state of health and limitation upon his physical activities asserted by him in his Court proceedings in 1989 (and for which he was duly compensated), and the active physical life which the plaintiff in his evidence describes himself as pursuing and desiring to pursue, which requires an additional new motor vehicle, a residence by the beach, a boat.

84 I am not satisfied that the plaintiff has established that he has any relevant need which his present financial and material circumstances are not capable of meeting. That conclusion is of itself sufficient to dispose of his present application.

85 But if (contrary to the conclusion which I have just expressed) the plaintiff be regarded as having established some relevant need, then it would become necessary for me to proceed to a consideration of any appropriate order for provision which might be made in favour of the plaintiff.

86 In this regard, the Court is precluded, by section 9 (2) of the Act, from making an order under section 7 in favour of an eligible person unless it is satisfied that ---

(a) the provision (if any) made in favour of the eligible person by the deceased person either during his lifetime or out of his estate....

is, at the time the Court is determining whether or not to make such an order, inadequate for the proper maintenance, education and advancement in life of the eligible person.

87 By her will the deceased gave to the plaintiff a legacy of $5,000. That legacy has not yet been paid. But, when paid, it will provide a fund in the nature of a windfall for the plaintiff, which will be available to effect a slight general improvement in his lifestyle, and will be available to meet any contingencies. He has no liabilities or pressing present needs.

88 Further, to the extent that the plaintiff asserted that his dependence during any period whilst he resided with his father and the deceased was a dependence jointly upon his father and the deceased --- despite the fact that the deceased was not in employment and had no income and the fact that the breadwinner of the family was the plaintiff's father --- then it could be argued that the extremely generous financial benefits given to the plaintiff shortly after his marriage --- totalling £21,000 in the early 1950s --- could be regarded not merely as a gift from the plaintiff's father alone but as a gift jointly from the plaintiff's father and the deceased. To that extent it could be argued that those gifts should be taken into account by the Court in the making of any order for provision in favour of the plaintiff. In the light of my earlier conclusions herein, however, it is not necessary for me to express any final view concerning whether any benefits to the plaintiff from the deceased, either by her will or during her lifetime, should be limited to the legacy of $5,000, or should also include part or all of the gifts totalling £21,000 made to him in the early 1950s.

89 In approaching any claim for an order for provision it is necessary for the Court to consider that claim in the light of any competing claims upon the testamentary bounty of the deceased. In the instant case the only competing claims upon the testamentary bounty of the deceased are those of the various other beneficiaries referred to in the will --- being the plaintiff's own four sons as to the taxi licence (which is a very significant asset in the estate of the deceased), and the defendant and the two nieces of the deceased as residuary beneficiaries.

90 No evidence has been placed before the Court concerning the financial and material circumstances of those other beneficiaries named in the will of the deceased. Accordingly, it is not necessary for any order for provision an entitlement to which the plaintiff might otherwise have established to be reduced, or even extinguished, in consequence of the financial and material circumstances of those with competing claims upon the testamentary bounty of the deceased.

91 However, even if, in the event that the plaintiff were to establish an entitlement to an order for provision out of the estate of the deceased (contrary to the views which I have already expressed), I would, in the exercise of my discretion, order that any such provision be paid out of the asset constituted by the taxi licence held by the deceased, which under her will passes to the four sons of the plaintiff.

92 I summarise therefore my foregoing views as follows.

93 The plaintiff has not established that he was ever a member of the same household as the deceased, or that he was ever dependent upon the deceased. Accordingly, he has not established that he is an eligible person in relation to the deceased.

94 The plaintiff has not established that there are factors which warrant the making of the present application.

95 The plaintiff has not established need in any relevant sense. What the plaintiff claims in no more than a grossly inflated wish list. The plaintiff has not established an entitlement to an order for provision out of the estate of his stepmother, with whom, largely by his own choice, his relationship throughout more than fifty years was at times non-existent, and other times slight.

96 The plaintiff received very considerable benefits of a financial nature from his father during his father's lifetime. The plaintiff receives a modest legacy under the will of the deceased, and his four sons share in an extremely significant asset (valued at almost $262,000) under that will.

97 I have no hesitation in expressing my conclusion that the application of the plaintiff is totally without merit and must be dismissed.

98 I make the following orders.

1. I order that the summons and the amended summons each be dismissed.

2. I order that the plaintiff pay the costs of the defendant, such costs to be on the party and party basis.

3. I order that the defendant be entitled to recoup from the estate of the late Doris Myra Macleay ("the deceased") the difference between the foregoing costs which he receives from the plaintiff and the costs of the defendant on the indemnity basis.

4. The exhibits may be returned.

I certify that this and the preceding

pages are a true copy of the reasons for

judgment of Master McLaughlin

Dated: 23 March 1999

Associate

Mark A. Provera

LAST UPDATED: 23/03/1999