Mitchell v Mitchell [2010] NSWSC 179 (12 March 2010)

Last Updated: 15 March 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
Mitchell v Mitchell [2010] NSWSC 179


JURISDICTION:


FILE NUMBER(S):
3327 of 2008

HEARING DATE(S):
27 and 28 October 2009

JUDGMENT DATE:
12 March 2010

PARTIES:
Scott Gordon Mitchell (Plaintiff)
Pearl Agnes Mitchell (Second Defendant)
Danielle Elizabeth Mitchell (Third Defendant)

JUDGMENT OF:
McLaughlin AsJ

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
Mr M. Lawson (Plaintiff)
Mr R. Bellamy (Second and Third Defendants)

SOLICITORS:
Stacks (Plaintiff)
Lynn & Rowland Lawyers (Second and Third Defendants)


CATCHWORDS:
SUCCESSION - family provision - claim by adult son of Deceased's first marriage - financial and material circumstances of Plaintiff - whether Plaintiff has been left without adequate provision for his proper maintenance - asserted needs of Plaintiff - competiting claims of much younger daughters of Deceased's second marriage, who are sole beneficiaries under his will - constitution of proceedings - beneficiaries are appropriate Defendants where Plaintiff is also executor - whether costs of Defendants beneficiaries should be capped, where to do so would reward unsuccessful Plaintiff by limiting amount of costs which could be recovered from him.

LEGISLATION CITED:
Family Provision Act 1982

CATEGORY:
Principal judgment

CASES CITED:
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 19

TEXTS CITED:


DECISION:
1. I order that the proceedings be dismissed.
2. I order that the Plaintiff pay the costs of the Second and Third Defendants, such costs to be on the party and party basis.
3. The exhibits may be returned.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION



ASSOCIATE JUSTICE McLAUGHLIN

Friday, 12 March 2010

3327 of 2008 SCOTT GORDON MITCHELL –v- PEARL AGNES MITCHELL and ANOR

JUDGMENT

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

2 By summons filed on 18 June 2008 Scott Gordon Mitchell claimed an order for provision for his maintenance, education and advancement in life out of the estate or notional estate or both of his late father, Douglas Mitchell (to whom I shall refer as “the Deceased”).

3 Subsequently, on 28 July 2008 (consequent upon leave in that regard granted by the Registrar on 16 July 2008), the Plaintiff filed an amended summons, claiming relief in terms identical to that claimed in the summons as originally filed. The only difference between the two documents was in respect to the parties. The summons named two Defendants, being Danielle Mitchell and Pearl Mitchell, whilst the amended summons named only one Defendant, being (somewhat curiously) the Plaintiff himself, described as “Scott Mitchell as executor and trustee of the estate of the late Douglas Mitchell”.

4 On 22 September 2008, after an application made by them to that effect (by notice of motion filed on 4 September 2008), an order was made (ultimately, by consent) that Pearl Agnes Mitchell and Danielle Elizabeth Mitchell be appointed representatives of the late Douglas Kenneth Mitchell for the purposes of defending the claim by the Plaintiff in these proceedings, and that for this purpose Pearl Agnes Mitchell and Danielle Elizabeth Mitchell be joined as the Second and Third Defendants to the proceedings.

5 The Deceased died on 22 December 2007, aged 76. He left a will dated 11 December 2007, probate whereof was on 15 April 2008 granted to Scott Gordon Mitchell, the present Plaintiff, who was the executor named therein. It was apparently in consequence of the Plaintiff being himself the executor of the estate that the amended summons named him as Defendant. However, it is basic to adversarial litigation (as is the present) that the same party cannot appear on both sides of the record. This is so, despite the fact that at various stages, both in the administration of the estate of the Deceased and in the present proceedings, the Plaintiff has been represented by separate solicitors in his personal capacity as Plaintiff and in his capacity as executor, and even, at the outset of the hearing, by separate Counsel in those two capacities. Counsel who at that time appeared for the Plaintiff, in his capacity as executor, was, however, excused from further participation in the proceedings. The hearing proceeded with the Second and Third Defendants bearing the responsibility of resisting the claim of the Plaintiff. (I shall henceforth in this judgment usually refer to those Defendants merely as “the Defendants”.)

6 The inventory of property discloses only two assets in the estate of the Deceased, being a house property situate at Bilambil, to which an estimated value of $520,000 was ascribed, and a 1995 Mitsubishi Magna motor vehicle, to which a value of $3,000 was ascribed. The Deceased had liabilities of $32,168, and the net value of the estate was shown as $490,831.

7 By his will (which was typed upon a will form and appears to have been prepared by the Deceased personally, without the benefit of professional assistance) the Deceased, having appointed the Plaintiff to be executor, gave the house property at Bilambil to his daughters Pearl and Danielle (the Second and Third Defendants herein), in equal shares. He gave his Mitsubishi motor vehicle to his daughter Danielle. He also gave the residue of his estate (although there was no residue) to Pearl and Danielle equally. Another motor vehicle, a Mitsubishi Lancer, he purported to give to a lady described as “my partner Cindy”. However, it would appear that that motor vehicle had been disposed of by the Deceased before his death (presumably to that lady), as it is not disclosed as an asset in the inventory of property.

8 The Deceased had been married twice. Of his first marriage (to Aileen Margaret Mitchell) were born three children, being Diane Violet, who was born in 1957 (and is now aged 52); Ross, who was born in 1962 (and is now aged 47); and Scott Gordon, the present Plaintiff, who was born in 1964 (and is now aged 45). (I shall, for convenience and without intending any disrespect, refer to the various children of the Deceased by their respective first given names.)

9 The Deceased and his first wife divorced in 1981, and subsequently the Deceased married his second wife, Jessie Rosaline Mitchell. Of that marriage were born two children, being the Second and Third Defendants, Pearl Agnes, born in 1986 (who is presently aged 24), and Danielle Elizabeth, born in 1988 (who is presently aged 21).

10 The sad history of the second marriage of the Deceased is set forth in the affidavit sworn by him 3 October 2003, in Family Law proceedings RF 2479/02 which he brought in the Family Court of Australia, Brisbane Registry. Those proceedings were described as being “for residence, divorce, property settlement, injunction”.

11 The Deceased separated from his second wife in about 2001. Subsequently, he developed a close relationship with Cindy Miceli (the lady referred to in his will as “my partner Cindy”).

12 The only significant asset in the estate is the house property at Bilambil (which was the residence of the Deceased at the time of his death). The parties appear to be in agreement that the present value of that property is $520,000 (see the affidavit of the Plaintiff sworn 22 October 2008, paragraph 5 and the affidavit of Michael John Lynn sworn 14 October 2009, paragraph 6(a)). That property is subject to a mortgage (described as a “reverse mortgage”) in an amount shown in the inventory of property as $32,168 and in the Plaintiff’s affidavit of 22 October 2008 as $32,766. Accepting the value of the Mitsubishi Magna motor vehicle at $3,000, the total value of the assets of the estate was $523,000, and the liabilities about $33,000.

13 Accordingly, the net value of the estate of the Deceased was in the order of $490,000. However, it would appear that the reverse mortgage on the house property is now in an amount of about $40,000, which would reduce the net value of the estate to about $483,000.

14 In calculating the value of the estate available for distribution, however, the costs of the present proceedings must be taken into account, since the Plaintiff, if successful in his claim, will normally be entitled to an order that his costs be paid out of the estate of the Deceased, whilst the Defendants (in resisting the claim of the Plaintiff and in seeking to uphold the terms of the will), irrespective of the outcome of the proceedings, will normally be entitled to order that their costs be paid out of the estate. It was estimated on behalf of the Plaintiff that his costs in the proceedings will total about $62,600, whilst it was estimated on behalf of the Defendants that their costs will total $112,000. On its face that latter amount appears to be grossly excessive, although the Defendants sought to justify that amount of costs in the light of the procedural history of this litigation (including the conduct of the Plaintiff, not only as executor of the estate, but as, improperly, a Defendant to the proceedings).

15 It is inevitable that the Bilambil property must be sold, if only to meet the costs of the present proceedings (or even part of those costs). Such sale will of itself attract costs and expenses, which must be paid out of the proceeds of sale. It has been suggested on behalf of the Defendants that the costs of that sale will be in the order of about $10,400.

16 If the totality of the costs of the present proceedings be payable out of the estate (that is, out of the proceeds of sale of the Bilambil property), then the value of the distributable estate (including the motor vehicle) will be in the vicinity of $298,000 (accepting the liability of the reverse mortgage to be in an amount of about $40,000).

17 The Plaintiff, who was born in 1964 and who is presently aged 45, is a plumber by occupation. He has worked in that field since 1981. In addition, in 1998 he obtained from TAFE a Diploma of Management (Real Estate). The Plaintiff married in 1993. Of that marriage three children were born, of whom two have now attained adulthood, and the youngest is aged about fifteen years.

18 The Plaintiff, has the following assets:

House property situate at Chinderah

(owned jointly with his wife),

having an estimated value of $540,000

Toyota Hilux motor vehicle,

having an estimated value of $15,000

Jet ski, having an estimated value of $4,000

Tools of trade

Vacant land situate at Buxton in Queensland,

having an estimated value of $82,000.

The property at Chinderah and the land at Buxton are each unencumbered.

19 The Plaintiff’s marriage has broken down, although he and his wife are still living under the same roof. In August 2008 they entered into a Binding Financial Agreement, pursuant to section 90C of the Family Law Act 1975. In that agreement the value of the Chinderah property was estimated to be $540,000. That property, which is unencumbered, was at the time of the hearing listed for sale. According to the financial agreement, after expenses relating to the sale of the Chinderah property have been paid, the proceeds of sale will be divided in such a fashion that the Plaintiff will receive one half, less $41,000. Thus, if the net proceeds of sale were to be, for example, $520,000, the Plaintiff would receive $260,000 less $41,000, being $219,000. His wife would receive the balance.

20 The Plaintiff gave evidence concerning his earnings. Although a self-employed plumber, the Plaintiff stated that, on account of health problems (to which I shall make further reference), he has not been able to work full-time in recent years. In his affidavit of 12 June 2008 he stated that his average weekly income was $500 - $600 net. That figure was repeated in his affidavit of 3 October 2008. However, in his most recent affidavit dealing with his income, that of 18 September 2009, the Plaintiff nominated a net weekly income of $260.

21 The Plaintiff stated that he had suffered a dislocation of his shoulder in the mid-1990s. A considerable quantity of evidence was given by the Plaintiff, both by affidavit and, pursuant to leave, orally during the hearing, regarding the problems which he experiences with his shoulder, and the limitation which that condition places upon his earning capacity. He also gave evidence concerning the costs and expenses associated with a surgical procedure for a shoulder reconstruction. However, somewhat curiously, no medical evidence was presented on behalf of the Plaintiff, to establish that such shoulder reconstruction was warranted.

22 The Plaintiff suffered a back injury in 1998, for which he received worker’s compensation. Again, no medical evidence was presented to the Court regarding that back injury.

23 The Plaintiff also gave evidence concerning what he described as a physical and mental breakdown which he said he had experienced in late 2007. An affidavit of Dr Richard Williams, psychiatrist, referred to the Plaintiff attending upon him on 18 February 2009, and to several subsequent attendances. The psychiatrist referred to the Plaintiff suffering from a significant depressive illness, linked to the death of his father (the Deceased), and also referred to the termination of the Plaintiff’s marriage and to the present litigation. Dr Williams expressed the opinion that it is possible that the Plaintiff will make a full recovery. The Plaintiff takes anti-depressant medication, which was prescribed by Dr Williams.

24 It is of significance that in 1995 or 1996, the Deceased, who was a real estate agent by occupation, subdivided property which he owned at Ourimbah, near Gosford. From the proceeds of sale of part of that property, the Deceased gave $95,000 to his daughter Diane (one of the children of the Deceased by his first wife), and an equivalent sum to the Plaintiff.

25 According to Diane the Deceased in about 1995 said to her words to the following affect,

I have sold the 10 acres [at Ourimbah, near Gosford]. The remaining proceeds after costs is $190,000 which I will divide equally between Scott and yourself. Your brother Ross has been looked after by your mother and I want you to have this money to assist in building your family a home.

26 Subsequently, Diane received the sum of $95,000 from the Deceased, who said to her at the time “I have also given Scott the sum of $95,000”.

27 Diane said that she and the Deceased spoke many times over the years before her father’s death, both in person and by letter, and that he said to her,

I have given you and your brothers your early inheritance to give you security for the future and to insure I will have an uncomplicated will.

28 Under cross-examination the Plaintiff said that at the time when his father gave him the $95,000 the Deceased said words to the effect, “You had better get it now rather than later”.

29 The Plaintiff used that sum of $95,000 to purchase a property at Pottsville, where he resided with his wife and their children for about ten years, before removing to his present residence at Chinderah. (The Pottsville house was sold for about $800,000, considerably more than the purchase price of the Chindera house.)

30 The claim of the Plaintiff must be approached in the light of competing claims upon the testamentary bounty of the Deceased. The only such competing claims are those of the two Defendants, Pearl and Danielle, who are the chief chosen objects of the testamentary beneficence of the Deceased. They are considerably younger than the Plaintiff (or his siblings born to the first marriage of the Deceased).

31 As has already been recorded, Pearl is presently aged 24 and Danielle is presently aged 21. Those two daughters of his second marriage had a close and loving relationship with the Deceased. That relationship was enhanced by the fact that their mother (the Deceased’s second wife) suffered from a personality disorder, which on occasion manifested itself in abuse and violence towards her daughters and towards the Deceased. It was for that reason that in about 1992 the Deceased gave up work permanently, in order to care for Pearl and Danielle, who at that stage were aged respectively only about 6 and 3. Pearl and Danielle grew up in straitened circumstances. There was never any money to spare for holidays or entertainment, the Deceased maintaining himself and his two young daughters entirely on social security benefits.

32 For a period of about six months in 2002 Pearl, with the support and approval of her father, resided in a youth refuge. In about 2003, after her mother’s departure from the Bilambil property, Pearl returned home, where she remained with her father and Danielle until 2004, when she left home to attend the University of Queensland in Brisbane on a full-time basis. However, she maintained a close relationship with her father, visiting him almost every weekend, and speaking to him every evening by telephone.

33 When the terminal prostate cancer from which the Deceased was suffering (and which apparently had been diagnosed in 2002) began to spread to other parts of his body, and his health started to deteriorate from early 2007, Pearl returned to the Bilambil property, on a full-time basis, in October 2007. Thereafter she, Danielle and the Deceased resided there together, until the death of the Deceased on 22 December 2007. Pearl and Danielle were their father’s full-time carers throughout the last months of his life. They attended to all aspects of their father’s personal and medical well-being (their duties including attending to the intimate consequences of his incontinence).

34 Pearl is a speech pathologist by profession, employed as such by the Department of Health in Tasmania since May 2009 (previously, since February 2008, she had been employed as such by the Department of Education in Tasmania). She presently receives a salary of $46,000 a year. Pearl qualified as a speech pathologist after completing a four year degree course in that field at the University of Queensland, from early 2004, until late 2007. Pearl’s husband (formerly her partner), whom she married in April 2009, owns a flat in Brisbane near the University of Queensland, which is currently rented out. Subsequently, he purchased a house property in Launceston in Tasmania.

35 Pearl does not own any property, she has no investments, and has about $5,000 savings in her bank account. She gave evidence of her current outgoings, totalling about $578 a week.

36 Pearl has a HECS debt of $30,000, consequent upon her tertiary studies. In addition, she and Danielle are liable for meeting the reverse mortgage upon the Bilambil property, which, according to Pearl’s affidavit evidence, is now in an amount of about $40,000.

37 Pearl did not provide any evidence concerning the financial and material circumstances of her husband, apart from his ownership of the flat in Brisbane and the house in Launceston.

38 Danielle, who is presently aged 21, resided with the Deceased all her life until his death. She shared with Pearl the responsibility of looking after their father during his terminal illness. It is quite apparent that Pearl and Danielle were loving and devoted daughters to their father, who reciprocated their affection. Danielle has continued to live in the Bilambil home since her father’s death to the present time.

39 Danielle obtained the Higher School Certificate in 2006. It was her desire to pursue a course in design at the Gold Coast Institute of TAFE at Ashmore. In order to secure a position in that course, the payment of a deposit of $1,020 was necessary. Danielle had savings of $500, and obtained an advance from her Centrelink Youth Allowance; the balance of the deposit she borrowed from Pearl. During that course, which concluded in June 2008, Danielle paid her TAFE fees, totalling $3,000, by monthly instalments of $186. Those moneys have come out of her Youth Allowance from Centrelink. Danielle has had casual employment with an entity involved in the launching of new products. From that employment she earned almost $5,500 in the 2008 financial year, in which year she also received a Youth Allowance of $7,000 from Centrelink. Danielle set forth details of her expenses, totalling $253 a week. She has no debts, and no assets. However, she together with Pearl, is liable for the repayment of the reverse mortgage on the Bilambil property.

40 Although in her affidavit of 30 October 2008, Danielle expressed an intention to undertake in 2009 a bachelor’s degree in interior design at Griffith University at its South Bank campus, she has not been able to fulfil that aspiration. The course runs for three years, and will cost about $16,000. The reason why Danielle did not commence that course in 2009, was that she did not have the funds necessary to do so. Danielle stated in her affidavit that she would also require a reliable motor vehicle to travel between Bilambil and Brisbane, to attend that course.

41 It appears still to be Danielle’s aspiration to qualify as a an interior designer. That is a field in which she says she has an interest and a natural flair and talent.

42 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claim of the Plaintiff.

43 I have had the benefit of receiving a written outline of submissions from Counsel for the Defendant and a chronology from Counsel for the respective parties. Those documents will be retained in the Court file.

44 The Plaintiff as a son of the Deceased is an eligible person within paragraph (b) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such, he has the standing to bring the present proceedings. The Second and Third Defendants and each of the other children of the Deceased are also eligible persons within the same paragraph of the foregoing definition. In addition, Cindy Miceli may be an eligible person within paragraph (a) of the foregoing definition. Although each of the children of the Deceased and Ms Miceli has been served with a notice of claim, no person other than the Plaintiff has made a claim for provision out of the estate of the Deceased.

45 It would appear that neither of the former wives of the Deceased has been served with a notice of claim.

46 The information contained in the foregoing affidavit of the Deceased filed in the Family Court of Australia in October 2003 suggests, however, that any claim by Mrs Rosaline Mitchell against the estate of the Deceased would have no chance of success. The evidence does not disclose whether Mrs Rosaline Mitchell is still alive.

47 At the time of his divorce from his first wife, Mrs Aileen Mitchell, she and the Deceased reached an agreement concerning the division of his land at Ourimbah, Mrs Aileen Mitchell receiving one half of that land (being 15 acres). Apparently it was intended that the 15 acres retained by her would be further subdivided, and that a five acre block would be sold to provide for her three children of the marriage of herself and the Deceased.

48 It would appear that that was done, and an area of five acres was given by Mrs Aileen Mitchell to her eldest child, Ross, the brother of the Plaintiff. The Plaintiff was under the impression that there had been a further subdivision of the balance remaining to his mother. However, he had no reason to think that he would not be a beneficiary under her will.

49 In all the circumstances, I consider that any claim by either of the former wives of the Deceased (even though not served with a notice of claim) may properly be disregarded.

50 In carrying out the first stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208 – 210 (the correctness of which test was affirmed by the High Court in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191) the Court must determine whether in consequence of the provisions of the will of a testator the applicant has been left without adequate provision for his or her proper maintenance.

51 The High Court in Singer v Berghouse (at 209 – 210) said that the determination of the first stage

calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to 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.

52 According to his evidence, the Plaintiff intends to continue to work as a plumber. It is his intention, after the Chinderah property has been sold and the proceeds divided in accordance with the agreement with his presently estranged wife, that the Plaintiff would purchase a two bedroom apartment with his portion of the proceeds of sale. He estimates that $300,000 would be sufficient for that purpose. However, as has already been observed, he is likely to recoup no more than about $219,000 (or, possibly, somewhat less, depending upon the costs and expenses associated with the sale).

53 On account of the various health problems from which he said that he suffers (shoulder dislocation, injury to back, psychiatric and emotional condition), the Plaintiff asserts, first, that his earning capacity is reduced, and, further, that he requires a fund to meet the cost of the surgical procedure associated with the shoulder dislocation, as well as consequential expenses and loss of income.

54 I have already recorded that, surprisingly, no medical evidence was placed before the Court by the Plaintiff, regarding either the shoulder dislocation or the back injury. It will be appreciated therefore that there was no evidence before the Court which established that the surgical procedure outlined by the Plaintiff, was, in fact, necessary. However, even accepting the Plaintiff’s evidence concerning his need for such a shoulder reconstruction procedure, the estimated costs associated with that procedure were grossly inflated.

55 In his affidavit of 10 September 2009, the Plaintiff claims a sum on account of direct costs for the shoulder reconstruction of between about $11,000 and $21,000. Whilst recognising that the procedure could be performed in a public hospital under Medicare, the Plaintiff was desirous that it be undertaken by a pre-eminent shoulder surgeon outside the public health system. The Plaintiff is, of course, fully entitled to take that course. Nevertheless, the Plaintiff is looking to the estate of the Deceased, rather than, for example, to the proceeds of sale of his unencumbered property at Buxton, for the cost of that procedure. Moreover, the Plaintiff could attempt to realise the value of some of his other assets by, for example, selling his jet ski (although he said that its value was now about $3200, somewhat less than his original estimate of $4000). That recreational water sports craft (which was not referred to in his affidavit evidence and whose existence emerged only under cross-examination) not only is of significant value but, presumably, is of little practical utility to the Plaintiff in his asserted current state of physical debilitation.

56 In any event, the Plaintiff’s claim in regard to consequential expenses is also greatly inflated. He claims $5,000 on account of, inter alia, taxi fares, and $8,400 on account of motel accommodation. It is quite apparent that the taxi fares would be required only if he were residing at a distance from the surgeon. If he were residing in a motel close to the surgeon, then no such taxi fares would be required. Even on his own unsatisfactory evidence in this regard, the Plaintiff cannot require both the taxi fares and the cost of motel accommodation. (In fact, the motel accommodation would, according to the Plaintiff, be necessary to “suit my family and son as well”. Ultimately the Plaintiff conceded that the necessity for staying in a motel would result not from the proposed surgery, but from the fact that by that time the Chinderah property would probably have been sold).

57 The Plaintiff also claimed an amount of between $12,000 and $15,000, representing six weeks without income. That would suggest a claim for lost income of between $2,000 and $2,500 a week. However, such a claim is totally inconsistent with the Plaintiff’s evidence of his present earnings from his work as a plumber which, in his affidavit of 12 June 2008, he stated to be in an average weekly amount of $500 - $600 net, and in his affidavit of 18 September 2009 to be in an average weekly amount of $260 net.

58 No medical evidence was adduced by the Plaintiff to establish that the shoulder reconstruction surgery was warranted. I am not satisfied that it is warranted. Even if it is, the claim of the Plaintiff that he should receive out of the estate of the Deceased in respect to indirect costs associated with that surgical procedure an amount of $31,000 and $39,600 cannot be supported.

59 It is extraordinary that no medical evidence establishing a clinical pathology, diagnosis, or prognosis was adduced on behalf of the Plaintiff. There was no corroboration of the extent of pain alleged to have been suffered, even though persons who could have given this evidence were available to be called as witnesses.

60 That the Plaintiff suffered a back injury in 1998 does not appear to be in dispute, since he received worker’s compensation for such an injury. Again, however, no medical evidence was adduced by the Plaintiff concerning that back condition. There was no diagnosis, no treatment plan, and no prognosis. If he received worker’s compensation for the injury almost 12 years ago, it would be expected that an actual diagnosis or pathology would be available to be presented as evidence to the Court. If the back condition was disabling or was preventing the Plaintiff from carrying on his occupation as a plumber, it might be expected that there would be evidence of a prescribed or regular treatment program. However, according to the Plaintiff’s evidence, his symptoms appear intermittent, and any treatment is irregular or intermittent. He said that the back tenderness which he experiences after heavy work is alleviated when he, as he infrequently does, seeks relief by way of massage or physiotherapy. I am not persuaded that any condition which the Plaintiff experiences regarding his back is a major physical problem which impacts to any significant extent upon his earning capacity.

61 No evidence was placed before the Court concerning the frequency and costs of physiotherapy treatment. There was no evidence from any person other than the Plaintiff concerning this asserted back problem.

62 On behalf of the Plaintiff the submission was made that there was no need for any medical evidence concerning his foregoing asserted physical problems (in respect to his shoulder and his back), since any such evidence would merely repeat the Plaintiff’s own evidence. It is a sufficient response to that extraordinary submission to observe that the Plaintiff’s field of expertise is plumbing, and does not extend to any branch of the medical sciences, let alone orthopaedics or surgery.

63 The third health issue raised by the Plaintiff was that of a stress condition, described by the Plaintiff as a physical and mental breakdown. However, the medical evidence from Dr Richard Williams, did not support such a description. Dr Williams, who had first seen the Plaintiff on 18 February 2009 (well over a year after the time when the Plaintiff asserted that he had suffered this breakdown) and had seen him only on a few occasions, had prescribed an anti-depressant. Dr Williams did not conclude that the Plaintiff suffers any anxiety or stress-related condition associated with his work or workload. However, he noted that the Plaintiff presented with depression linked to the death of his father (the Deceased) and reference was also made to the termination of the Plaintiff’s marriage. Dr Williams noted that it was possible that the Plaintiff would make a full recovery. Thus any medical evidence adduced on behalf of the Plaintiff was inconsistent with his own assertions in this regard. Indeed, the Plaintiff himself acknowledged that the anti-depressant medication had worked well for him.

64 The Court should not overlook the fact that the Deceased, concerned for the welfare of his two, then infant, children, of tender years, had in about 1995 or 1996 given to the Plaintiff the sum of $95,000. That sum was used by the Plaintiff towards the purchase of a family home at Pottsville. That residence was sold in about 2006 for about $800,000. After discharging the mortgage debt on Pottsville and the subsequent purchase of the Chinderah property, the Plaintiff was left with a balance sufficient to purchase the Buxton property (for $68,000), to fund an asserted continuing shortfuall between income and expenses, and still to retain a sum of $25,000 at the time when he instituted the present proceedings.

65 It is asserted by him that the Plaintiff’s present income has diminished from what it was in previous years. Although the claim in respect to loss of income consequent upon the proposed shoulder reconstruction surgery, made in the Plaintiff’s affidavit of 18 September 2009, is totally inconsistent with present net earnings of $500 - $600 a week (let alone $260 a week), I am not satisfied that any such diminution in income is the result of any physical or mental problems of the Plaintiff. It has been submitted on behalf of the Defendants that any diminished income can be explained as being more likely a lifestyle choice that the Plaintiff has made, to work less and endure less stress.

66 I am not satisfied that the Plaintiff has been left without adequate provision for his proper maintenance.

67 That conclusion is of itself sufficient to dispose of the claim of the Plaintiff.

68 Nevertheless, even if (contrary to my foregoing conclusion) the Plaintiff were to establish that he had been left without adequate provision for his proper maintenance, the claim of the Plaintiff for provision (which he seeks in the terms set forth in paragraph 35 of his affidavit of 3 October 2008), totalling almost $362,000, includes such quite unjustifiable components as expenses relating to his adult daughter’s university education ($25,000) and expenses relating to the further tertiary education of his son ($60,000), and child support for two of his children (totalling $52,000), as well as additional (apparently gratuitous) financial assistance to his children for a further five years ($78,000). Such a claim cannot be justified. The foregoing components can in no way be considered legitimate needs of the Plaintiff, for which he might be entitled to look to the estate of the Deceased.

69 By no possible justification can the Plaintiff establish an entitlement to receive out of the estate of the Deceased the cost of educating and maintaining his three children.

70 Any legitimate needs of the Plaintiff could be met by a relatively small benefit out of the estate of the Deceased, to assist the Plaintiff in acquiring a new residence, and in meeting contingencies arising from a possible reduction in income during a limited period, in the event that he undergoes surgery on his shoulder.

71 In regard to any asserted need of the Plaintiff, it is interesting to observe that the Binding Financial Agreement made between the Plaintiff and his wife, Sally Therese Mitchell, on 1 August 2008 includes the following statement (in recital O):

Because of their respective assets and financial circumstances, neither the Husband nor the Wife are currently in need nor are they reasonably, in the future, likely to be in need of spousal maintenance one from the other.

72 I consider any present need asserted by the Plaintiff to be grossly exaggerated.

73 But even the entitlement to such a fund as aforesaid must be considered in the light of the competing claims of the Defendants.

74 The Deceased clearly recognised his obligations to the two daughters of his second marriage. They were much younger than the Plaintiff and the Deceased’s other children of his first marriage. The Deceased’s sense of responsibility towards Pearl and Danielle is particularly understandable, having regard to the difficult and highly traumatic atmosphere that existed in the household with his second wife. Nevertheless, the Deceased recognised an obligation to the Plaintiff and to the other children of his first marriage. He appears to have considered that he discharged that obligation to his first three children by the benefits which he gave to them during his lifetime, in particular, the gift of $95,000 to each of the Plaintiff and Diane in about 1995 or 1996.

75 It should be emphasised that the Defendants, as the chosen objects of the testamentary beneficence of the Deceased, do not have to prove anything. The Plaintiff must establish his claim upon its own merits. The competing claims of the Defendants may have the effect of reducing, or even extinguishing, an order for provision an entitlement to which the Plaintiff might otherwise have established. However, those competing claims of the Defendants cannot have the effect of enhancing the claim of the Plaintiff.

76 Each of Pearl and Danielle is a most deserving young lady. Each had a very close and extremely loving relationship with their father, despite the difficult situation which obtained with their mother. They were their father’s primary carers during the last sad months of his life. The Deceased recognised not only his obligation to make provision for them, but recognised what they had done and were continuing to do for him. He was a devoted and loving father to Pearl and Danielle, and they were devoted, loving and dutiful daughters to the Deceased.

77 It should be recognised that an order for provision is not made as a reward for services and good conduct on the part of an applicant; and neither is such an order withheld as punishment for perceived bad conduct on the part of the applicant. Nevertheless, in the instant case the Plaintiff’s contact with and attitude towards the Deceased during the final months of his life should be contrasted with the loving care which was devoted to the Deceased by the Defendants.

78 Each of Pearl and Danielle had a difficult, if not to say, somewhat deprived, childhood and upbringing. Neither had any financial advantages during the lifetime of their father. Although it may not have amounted to much, the Deceased did the best he could for Pearl and Danielle while he was alive, and he certainly wished to benefit them after his death. Each of Pearl and Danielle is entitled to a good start in her adult life and career – especially Danielle, the younger of the two, who is desirous of continuing her tertiary education and establishing herself in an occupation in which she is interested and for which she considers she has a natural flair and talent. Pearl, having completed her professional training, is already in employment, and she is now married. Yet most of her life is ahead of her.

79 I am not persuaded that the benefit to which each of Pearl and Danielle is entitled under the will of the Deceased should be in any way reduced by an order for provision made in favour of the Plaintiff. Even if (contrary to my foregoing conclusions) the Plaintiff were to have otherwise established an entitlement to a relatively small legacy out of the estate of the Deceased, the competing claims of Pearl and Danielle are such as would have the effect of totally extinguishing such an order for provision that the Plaintiff might otherwise have established. In this regard, it will be appreciated that the very institution of the present proceedings by the Plaintiff must (if only by reason of non-recoverable costs incurred in resisting the claim) have the inevitable consequence of reducing the size of the estate, and thus the amount of the financial benefit which each of Pearl and Danielle will ultimately receive under the will of their father.

80 It follows, therefore, that the claim of the Plaintiff will be dismissed.

81 It was submitted on behalf of the Plaintiff that there should be an order capping the costs of the Defendant at about $60,000. It will be appreciated that if the costs of the Defendant are capped at that amount, the size of the distributable estate will be increased by about $52,000, from about $298,000 to about $350,000.

82 I consider costs of the Defendants totalling $112,000 to be excessive. A totality of $174,600 for the costs of all parties in these proceedings is entirely out of proportion to the nature of the proceedings and the net value of the estate (about $490,000).

83 This case was in no way out of the ordinary or complex. The hearing occupied one and a half days. The only aspect of the matter which could justify such a totality of costs was the conduct of the Plaintiff himself, first in naming himself as Defendant, and then in failing to co-operate with Pearl and Danielle in having them joined as Defendants, to uphold the terms of the will. They were the logical persons to be contradictors to the claim of the Plaintiff, yet the Plaintiff apparently was desirous of some other person or entity being named as Defendant.

84 The constitution of the proceedings by the Plaintiff and his foregoing conduct has had the effect of inflating the costs of the Defendants. I am conscious of the statutory admonition contained in section 60 of the Civil Procedure Act 2005, which refers to “the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute”. Nevertheless, in the circumstances of this case, the practical consequences of such a capping order as is sought by the Plaintiff would be to reward the Plaintiff himself for the foregoing manner in which the proceedings had been constituted and conducted by him, and to reduce the size of the estate available for distribution between the Defendants (by limiting the amount of costs which they could seek to recover from the Plaintiff). Accordingly, I do not propose to make an order capping the costs of the Defendants.

85 I make the followings orders:

1. I order that the proceedings be dismissed.

2. I order that the Plaintiff pay the costs of the Second and Third Defendants, such costs to be on the party and party basis.

3. The exhibits may be returned.

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LAST UPDATED:
12 March 2010