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Brindley v Wade (No 2) [2020] NSWSC 882 (9 July 2020)

Last Updated: 10 July 2020

Case Name:	Brindley v Wade (No 2)
Medium Neutral Citation:	[2020] NSWSC 882
Hearing Date(s):	18, 19 and 20 May 2020
Date of Orders:	20 May 2020
Decision Date:	9 July 2020
Jurisdiction:	Equity
Before:	Hallen J
Decision:	The Court: (1) Orders that the amended Summons be dismissed with costs.
Catchwords:	SUCCESSION – Family Provision – Claim by former spouse for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 – Probate granted to Defendant, one of the named executors, who is one of three children of the deceased, and a beneficiary equally entitled with her two siblings, to share the deceased’s estate – Whether there are factors that warrant the making of the application within the meaning of s 59(1)(b) of the Succession Act – Whether the Plaintiff has established facts that give her the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased in circumstances where marriage had ended about four years prior to the deceased’s death, no subsequent relationship other than somewhat acrimonious business relationship existed between them, and where, shortly prior to death, their financial affairs were resolved by final orders of Federal Circuit Court to which the Plaintiff and the deceased agreed – Assertion of conduct by the deceased by way of alleged non-disclosure of his medical condition and the failure to disclose an inheritance which was to come to him
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 62, 98 Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B Family Law Act 1975 (Cth), ss 79, 79A Family Provision Act 1982 (NSW) Probate and Administration Act 1898 (NSW), s 86 Succession Act 2006 (NSW), ss 3, 57, 58, 59, 61, 63, 84, 88, 89, Ch 3 Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.2, 42.20
Cases Cited:	Antov v Bokan (No 2) [2019] NSWCA 250 Australiawide Airlines Ltd v Aspirion Pty Ltd [2006] NSWCA 365 Barker v Barker (2007) 36 Fam LR 650; [2007] FamCA 13 Blendell v Byrne; The Estate of Noeline Joan Blendell (No 2) [2019] NSWSC 798 Brindley v Wade [2019] NSWSC 303 Bruce v Greentree (No 2) [2015] NSWSC 1636 Calderbank v Calderbank [1976] Fam 93 Carey v Robson (No 2) [2009] NSWSC 1199 Chan v Chan (2016) 15 ASTLR 317; [2016] NSWCA 222 Dijkhuijs v Barclay (1988) 13 NSWLR 639 Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 Harkness v Harkness (No 2) [2012] NSWSC 35 In the Marriage of Bonnici (1991) 105 FLR 102 In the marriage of Suiker (1993) 117 FLR 254; (1993) FLC 92-436 Jeeves v Jeeves [2011] FamCAFC 94 Johnston v Johnston (1987) 11 NSWLR 38 Lodin v Lodin (2017) 16 ASTLR 576; [2017] NSWCA 327 Lodin v Lodin; Estate of Dr Mohammad Masoud Lodin [2017] NSWSC 10 Metro Hotel Sydney Pty Ltd v Kol Tov Pty Ltd [2010] NSWSC 1195 Neale v Neale [2015] NSWCA 206 Page v Page [2016] NSWSC 1218 Page v Page (2017) 16 ASTLR 331; [2017] NSWCA 141 Penfold v Predny  [2016] NSWSC 472  Quince v Quince [2020] NSWSC 326 Rakovich v Marszalek [2020] NSWSC 589 Salmon v Osmond (2015) 14 ASTLR 442; [2015] NSWCA 42 Sassoon v Rose [2013] NSWCA 220 Singer v Berghouse (1993) 114 ALR 521; [1993] HCA 35 Smith v Shilkin (No 3) [2020] NSWSC 787 Stillianesis v Stillianesis [2017] NSWSC 1189
Texts Cited:	David Malcolm, “To Wig or be Damned” (1988) 15(7) Brief at 8
Category:	Principal judgment
Parties:	Lilian Helen Brindley (Plaintiff) Rachael Lee Wade (Defendant)
Representation:	Counsel: A Lakeman (Plaintiff) W Sharwood with M Jones (Defendant) Solicitors: Fitzpatrick Solicitors Pty Ltd (Plaintiff) Rachel Bird & Co (Defendant)
File Number(s):	2018/00391746

JUDGMENT

The nature of the dispute

1. HIS HONOUR: The Defendant, Rachael Lee Wade, is one of the three adult children of Colin Wade (the deceased) and the executrix named in his Will made on 7 October 2013, to whom this Court granted Probate on 18 December 2018. (Her siblings, Christopher John Wade, and Sandra Jane Van Aalst, were named as executors also, but they renounced Probate on 21 November 2018 and 22 November 2018 respectively.)
2. The Defendant has been named in proceedings commenced by the Plaintiff, Lilian Helen Brindley, a former spouse of the deceased. She seeks an order, pursuant to s 59 of the Succession Act 2006 (NSW) (the Act) for her proper “maintenance, medical expenses and advancement in life out of the estate and/or notional estate” of the deceased. (The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (the former Act), which was repealed, effective from 1 March 2009.)
3. The Plaintiff filed a Summons on 20 December 2018 naming all three of the deceased’s children, and an amended Summons on 20 February 2019, naming only the Defendant.

Application for dismissal

4. On 11 February 2019, the Defendant filed a notice of motion seeking a dismissal of the Plaintiff’s proceedings and an order that the Plaintiff pay the Defendant’s costs.
5. On 21 March 2019, during the course of the hearing of the notice of motion, Mr W Sharwood of counsel, appearing for the Defendant, frankly conceded that there were facts in issue which prevented the proceedings being summarily dismissed and the matter would need to proceed to a final hearing. In light of that concession, which, in my view, was properly made, I delivered judgment ordering that the notice of motion be dismissed and that the costs of the notice of motion be the Plaintiff’s costs in the cause. The reasons for that decision bear the medium neutral citation Brindley v Wade [2019] NSWSC 303.
6. What follows are my reasons for the decision, following the final hearing of the Plaintiff’s claim on the amended Summons, to dismiss it with costs.

The Hearing

7. Consistent with the announcement of the Chief Justice on 23 March 2020, on and from Tuesday, 24 March 2020, there were to be no personal appearances, in any matters, save in exceptional circumstances with the leave of the Chief Justice or head of jurisdiction. No such exceptional circumstances were suggested in the present case. The current COVID-19 pandemic has necessitated the use of remote hearings with the use of video technology and electronic document handling software. This has required co-operation, planning, and flexibility, on the part of all involved.
8. Section 62(1) of the Civil Procedure Act 2005 (NSW) provides that the court may, by order, give directions as to the conduct of any hearing. When directions were given on 14 April 2020, for abundant caution, it was confirmed that the hearing would take place by video-conference. Subsequently, practical hearing preparation, including the need for a video-hearing test run, was arranged.
9. During the course of the hearing, without opposition, the Court made the following direction:

“The Court, of its own motion, directs, pursuant to s 5B of the Evidence (Audio and Audio-Visual Links) Act 1998 (NSW), that each of the parties and any witness to be called by her, or him, respectively, shall give evidence, and make her, and his, submissions, by audio-visual link from a place within Australia, other than Court Room No 2 Hospital Road, Sydney.”

10. The effect of s 5B is that, whilst the Court has a discretion whether or not to permit evidence to be given, or submissions to be made, by video link, it must not make such an order if satisfied that a direction to allow such a course would be unfair to a party: Antov v Bokan (No 2) [2019] NSWCA 250 at [38] (Bell P, Bathurst CJ and Payne JA agreeing); Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B(2)(c).
11. With respect, I agree with Sackar J that the constraints in s 5B retain their force during the COVID-19 pandemic: Quince v Quince [2020] NSWSC 326 at [18]–[19]. Whether a direction of this kind would be unfair to any party is answered by an objective test that takes into account all the circumstances of the individual case: Quince v Quince at [19] (Sackar J).
12. The hearing was conducted using “Microsoft Teams”, a video communication platform that enables multiple persons to appear together online and communicate face-to-face using audio and video facility. (A “test-run” was conducted using the platform on the Friday before the hearing commenced.) Although there was an initial problem, that was resolved, the matter proceeded without any significant interruption.
13. Despite the hearing being conducted in this way, there was no informality, as counsel, and I, were wigged and robed throughout the hearing. Adherence to Court protocol was not without reason. As the Honourable David Malcolm AC QC, then Chief Justice of Western Australia, wrote extra-curially:

“It is important to remember that practitioners and judges are all officers of the Court as it were, and when they are performing their official functions they assume responsibilities quite separate and apart from the individual person they are. The symbolism involved in robing, plays an important part in bringing home to people the sense of responsibility that must drive them in performing their function as officers of the Court”: David Malcolm, “To Wig or be Damned” (1988) 15(7) Brief at 8.

14. The parties were present, and in view, throughout the hearing. Each of the witnesses had the opportunity to give her, and his, evidence comfortably, and the hearing was not materially impeded by being undertaken remotely rather than in a courtroom. I was able to see the parties and counsel, almost as I would have, had they been present in the courtroom (although at the conclusion of the hearing, the Plaintiff became upset and left the room: Tcpt, 20 May 2020, p 167). At the conclusion, they were informed that subject to changes, reasons for judgment would be handed down remotely, by circulation to the parties’ legal representatives by email, and subsequent release to Caselaw.
15. Having now concluded the hearing, my view that it would be undertaken fairly in a forensically sound, thorough, fair, and just manner was confirmed. I am also satisfied that notwithstanding the circumstances, there has been an effective hearing of these proceedings. No complaint was made about the manner in which the hearing was conducted.
16. The hearing commenced on Monday 18 May 2020 and continued for two days thereafter. At the commencement, counsel for the Plaintiff indicated that a lump sum of about $150,000 would be adequate and proper in the circumstances of the case. Counsel for the Defendant submitted that the Summons should be dismissed. The battle lines for the continuation of the proceedings for the next two and one half days were drawn.
17. For reasons to which I shall come concerning costs, during the course of the hearing, I asked counsel whether, if I had formed a concluded view about the result, the parties would prefer to know the result of the proceedings, with reasons to be published subsequently, rather than reserving the decision until written reasons could be published. Then, any issue of costs could be determined immediately following the orders being announced. Both counsel requested me to follow this course and that is the course that I followed.
18. After the conclusion of the oral submissions, I adjourned the proceedings until 2:15 p.m., informing counsel that I would endeavour to reach my decision by that time. Shortly thereafter, I returned and raised one matter with counsel, following which I indicated that I proposed to dismiss the amended Summons.
19. Then, each party tendered documents which were said to be relevant to the issue of costs. Mr Sharwood, counsel for the Defendant, additionally read an affidavit of Mr Denis Fitzpatrick sworn 8 February 2019 on the question of costs. Short submissions were then made.
20. I shall return to the evidence that was tendered on the question of costs. Following the tender of the documents, and hearing the submissions on costs, I concluded that there should be no special order for costs and that the Plaintiff should pay the Defendant’s costs, calculated on the ordinary basis, of the proceedings.
21. These are my reasons for making those orders.

Some formal matters not in dispute

22. The proceedings were commenced within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased): s 58(2) of the Act.
23. Section 57(1) of the Act provides that “eligible persons” may apply to the Court for a family provision order. As a former spouse of the deceased, the Plaintiff is an eligible person within s 57(1)(d) of the Act. The language of the sub-section is expressive of the person’s status, regardless of age, as well as her, or his, relationship to the deceased.
24. As the deceased left a Will, there is no scope for the operation of the intestacy rules, with the result that it is only necessary to refer, hereafter, to the Will of the deceased.
25. A family provision order may be made in relation to property that is not part of the deceased’s estate, but is designated as “notional estate” of the deceased by an order under Pt 3.3 of the Act: s 63(5). “Notional estate” of a deceased person is defined in s 3(1) of the Act to mean property designated by a notional estate order as notional estate of the deceased person. “Notional estate order” means an order made by the Court under Ch 3 of the Act, designating property specified in the order as notional estate of a deceased person. A person’s rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act.
26. The Plaintiff identified property which she submitted could be designated as notional estate of the deceased (although counsel suggested that it should properly be treated as actual estate: Tcpt, 18 May 2020, p 3(35–43)). At the commencement of the hearing, the Court referred the legal representatives to s 88 of the Act which states that the Court must not make a notional estate order unless it is satisfied that (a) the deceased person left no estate; or (b) the deceased’s estate is insufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made; or (c) provision should not be made wholly out of the deceased’s estate because there are other persons entitled to apply for family provision orders or because there are special circumstances. It was accepted that there is sufficient in the actual estate to satisfy any order for provision made in favour of the Plaintiff and the costs of the proceedings. It was not suggested that there were any special circumstances.
27. Section 59 of the Act, relevantly, provides that in the case of a person who is an eligible person by reason only of paragraph (d) of the definition of “eligible person” in s 57, the eligible person will have to establish that having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and that at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made, relevantly, by the Will of the deceased person.
28. At the heart of the dispute was whether there are factors that warrant the making of the Plaintiff’s application. It will be necessary to return to this topic later in these reasons.
29. An order for provision in favour of the Plaintiff may only be made, since there is no dispute that she is an eligible person under s 57(1)(d), if “having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application”: s 57(1)(d) and s 59(1)(b); and, under s 59(1)(c), that, at the time when the Court is considering the application, adequate provision for her proper maintenance, education or advancement in life has not been made by the Will of the deceased. Only when satisfied of these matters may the Court make such order for provision out of the estate of the deceased as ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made: s 59(2) of the Act.
30. The eligible persons are the three children of the deceased, the first wife of the deceased, and the Plaintiff. Only the Plaintiff has made a claim.
31. The deceased’s first wife, Beverly Lewis, has stated in writing that she had “no intention to make a claim” for provision out of the estate of the deceased: Ex D1. In those circumstances, I am prepared to disregard her interests as an eligible person, noting that she is not a beneficiary under the deceased’s Will.
32. Each of the children of the deceased, whilst not having commenced proceedings, has given evidence of the bases of her, and his, claim, respectively, on the bounty of the deceased as one of beneficiaries named in the Will of the deceased. Each has raised her, and his, financial resources and needs, respectively, and each was cross-examined.
33. The Act specifically provides that the interests of a beneficiary cannot be disregarded, even though each has not made a claim: s 61(1). Each is entitled to rely upon the terms of the deceased’s Will and her, or his, competing claim, respectively, as a chosen object of the deceased’s testamentary bounty.
34. The Defendant, as executor, does not seek any commission, or percentage, for her pains and trouble as is just and reasonable, out of the estate of the deceased pursuant to s 86 of the Probate and Administration Act 1898 (NSW).

Background facts not in dispute

35. It is next convenient to set out some background facts that are not the subject of any dispute between the parties. To the extent that any are in dispute, what follows should be regarded as the findings of the Court.
36. The deceased was born in September 1950, and at the date of his death, in July 2018, was aged almost 68 years. He was married, for the first time, in 1971 to Ms Lewis, and remained married to her for about 28 years. In 1999, the marriage ended. His three children are children of this marriage. Ms Van Aalst was born in January 1972 and is currently 48 years of age; the Defendant was born in October 1975 and is currently 44 years of age; and Mr Christopher Wade was born in October 1977 and is currently 42 years of age.
37. The Plaintiff was born in February 1956 and is currently 64 years of age. She was previously married to Stephen Brindley. They separated in about 1990, and, in 1992, a divorce order in relation to the marriage was made. In the Plaintiff’s first affidavit she averred that they agreed on a property settlement in 1992. At the time of the hearing, the Plaintiff was unable to recall when that property settlement was completed: Tcpt, 19 May 2020, p 60(31) – p 61(12). The terms of their property settlement were not the subject of evidence.
38. There are three children of the Plaintiff’s first marriage, only one of whom, Adam Brindley, played any part in these proceedings, as a witness who was not cross-examined.
39. The Plaintiff and the deceased met, and commenced a relationship, in about 1999. They commenced living together in about 2001. They were married to each other on 28 January 2006. There were no children of the marriage. They separated in mid-December 2012 when the deceased moved out of their home. Thereafter, he and the Plaintiff lived separately and apart until the deceased’s death, about five and one half years later. A divorce order was made in the Federal Circuit Court on 13 May 2014 and it took effect on 16 June 2014.
40. In 2004, the Plaintiff and the deceased purchased a real estate business in Tuross Head known as Tuross Head Realty. The purchase price was $20,000 and it was conducted using a trust structure, which was established and was, and remains known as the Brindley Wade Trust, the trustee of which is Tuross Head Realty Pty Ltd. The Plaintiff asserts that she “took over the operation and management of the Tuross Head Realty business”. (Tuross Head is a seaside town on the south coast of New South Wales between the townships of Moruya and Narooma.)
41. In 2006, Tuross Head Realty Pty Ltd purchased for $76,000, another real estate business known as Moruya Tuross Real Estate in Tuross Head.
42. In 2008, Tuross Head Realty Pty Ltd purchased for $111,000, another real estate business known as The Professionals in Moruya.
43. Between 2006 and 2010, the Brindley Wade Trust operated two separate real estate offices, one in Tuross Head and the other in Moruya. The Plaintiff managed the Tuross Head office and the deceased managed the Moruya office.
44. During the course of their co-habitation and then marriage the parties conducted the several real estate businesses, which were consolidated in 2010 into one business, being named Moruya Tuross Real Estate.
45. On 20 August 2014, the Plaintiff commenced proceedings for a property adjustment order under s 79 of the Family Law Act 1975 (Cth) in the Federal Circuit Court at Sydney (the family law property proceedings).
46. In October 2015, the deceased and the Plaintiff entered into an interim property settlement in the family law property proceedings. The obligations of each, pursuant to the interim property settlement, were implemented by them.
47. The deceased’s mother, Valerie June Wade, died on 17 October 2017, that is, almost five years after the separation of the deceased and the Plaintiff and over three years after the divorce order was made. She left a Will made on 24 September 2003, in which, in the events that happened, she left her estate to “such of my children as shall survive me for a period of 30 days”. This Court granted Probate of her Will on 22 January 2018. From his mother’s estate, the deceased received $137,284, which was deposited to the Defendant’s bank account, on 20 February 2018. (I have omitted, and shall continue to omit, any reference to cents. This will explain any apparent arithmetical miscalculation.)
48. In September 2017, the deceased, whilst travelling in Europe, suffered a seizure. Upon his return to Australia, he underwent various medical tests and he was found to have a tumour in the brain. He underwent brain surgery in October 2017 and following the removal of the tumour, which was then the subject of pathology investigation, he was diagnosed as suffering from Glioblastoma Multiforme, which, as I understand it, is a type of brain cancer and a primary type of malignant brain tumour.
49. The Plaintiff accepted that her solicitor, Mr Fitzpatrick, was informed by the deceased’s solicitor that the deceased was in hospital in about October 2017. For example, when the family law property proceedings came before Judge Sexton in the Federal Circuit Court, on 10 October 2017, for directions, Ms Rachel Bird, then the deceased’s solicitor, and who now acts for the Defendant, “informed the Court that [the deceased] had been diagnosed with two brain tumours”. She also “indicated to the judge that [she] would be visiting [the deceased] that afternoon and was preparing enduring powers of attorney with him to sign prior to him having surgery the following day”.
50. The mediation, listed before Judge Sexton on 19 December 2017, was vacated, because the deceased had undergone surgery for his brain tumours and was then undergoing chemotherapy and radiotherapy.
51. Ultimately, the mediation was listed before Judge Sexton on 9 February 2018. At that mediation, the matter was resolved, with formal terms to be drawn up. It will be necessary to refer, in some detail, to the evidence relating to the information provided to the Plaintiff about the deceased’s medical condition later in these reasons as that is a matter of some significance raised by the Plaintiff.
52. In March 2018, the deceased and the Plaintiff reached the final settlement of the family law property proceedings. They agreed to Consent Orders giving effect to the settlement. Orders were made by Judge Henderson, in the Federal Circuit Court, on 23 March 2018.
53. The Terms of Settlement filed in the family law property proceedings recited, amongst other things, that “[t]he Parties agree to settle all property matters between them on a final basis on the terms and conditions set out below”.
54. As part of the final property settlement the deceased’s interests in the remaining real estate businesses were transferred to the Plaintiff to enable her to continue operating the business. To that end, the deceased was required under the Terms of Settlement to:

“Transfer to [the Plaintiff] all his shares in Tuross Head Realty and resign as a director and secretary of that company,

...

Transfer to [the Plaintiff] all his shares in Moruya Tuross Real Estate and resign as a director and secretary of that company.

Resign as Guardian and Appointor of the Brindley Wade Trust.

Surrender all his interest whether legal or equitable or otherwise in the Brindley Wade Trust in favour of [the Plaintiff] with the intended effect that [the deceased] cease entirely to have any right, title or interest or entitlement whatsoever in the income or capital of the Brindley Wade Trust including as to any unpaid distributions or any involvement in the real estate business known as Moruya Tuross Real Estate.

Transfer to [the Plaintiff] all his outstanding entitlements as a beneficiary of the Brindley Wade Trust.

Release Tuross Head Realty from any and all claims he has or may have against that company in respect of wages, salary, superannuation, directors’ fees or otherwise.

Release Tuross Head Realty in it’s [sic] capacity as Trustee of the Brindley Wade Trust from any and all claims he has or may have as a beneficiary of the Brindley Wade Trust in respect of any outstanding entitlements.

Be removed as a signatory on all bank accounts operated by Tuross Head Realty of Moruya Tuross Real Estate.”

55. The deceased received a cash settlement of $50,000, in addition to $70,000 being part of the Plaintiff’s superannuation.
56. The obligations of each of the deceased and the Plaintiff under the Terms of Settlement were implemented by each of them.

The deceased’s Will and the estate

57. The deceased’s Will relevantly, provided for the whole of his estate to be divided “equally among those of my children who survive me”. No provision was made for the Plaintiff.
58. In the Inventory of Property attached to, and placed inside, the Probate document, the property owned solely by the deceased at the date of his death, was disclosed as having an estimated, or known, value of $621,200. The estate was said to comprise real property at Tomakin, New South Wales ($450,000) (the Tomakin property), cash in bank ($100,200), and superannuation ($71,000). Shortly after the commencement of the proceedings, the Defendant disclosed two additional assets, being a car ($15,000) and a caravan ($18,000). It follows that the value of the deceased’s estate, as at the date of death, was approximately $654,200.
59. At the date of the hearing, the parties agreed that the estate consisted of the Tomakin property ($450,000), the car ($10,000), the caravan ($12,000) and an amount of $26,313, held in the trust account of the Defendant’s solicitors. They agreed that the gross value of the estate, at the date of hearing, was $498,313. It was accepted that if the Tomakin property is sold, the costs and expenses of sale would be $12,000.
60. It seems that the liabilities which, in total, amount to $47,266 include an amount on account of legal costs, to which I shall refer. That amount ($21,386) is recorded as “legal fees for this matter repayable to beneficiaries”. The liabilities incurred by the estate (not including the costs of these proceedings) are $25,880, not $47,266.
61. The Defendant gave evidence that, as a result of the deceased being a member of a superannuation fund, and because there was a “defined benefit”, the superannuation was paid to the three children of the deceased in equal shares, so that each received about $20,500: Tcpt, 19 May 2020, p 96(07–18).
62. It follows that the net value of the deceased’s estate out of which an order for provision could be made (without deducting the legal costs of these proceedings) is $460,433. The estimate assumes that the gross value of the estate is $498,313, and deducts $12,000 for the estimated costs of sale of the Tomakin property and $25,880 for liabilities incurred (other than costs of the proceedings).

Costs of the Proceedings

63. Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Ch 3, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate, or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.
64. Usually, in calculating the value of the deceased’s estate available from which a family provision order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that her, or his, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased; while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that her, or his, costs, calculated on the indemnity basis, should be paid out of the estate. The size of the deceased’s estate, and the conduct of a party, may justify a departure from what is said to be the usual rule.
65. As Basten JA (Simpson and Payne JJA agreeing) put it in Chan v Chan (2016) 15 ASTLR 317 at 330 [54]; [2016] NSWCA 222 at [54]:

“In considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs.”

66. However, this statement does not mean that parties should assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199 at [21] (Palmer J); Forsyth v Sinclair (No 2) [2010] VSCA 195; (2010) 28 VR 635 at 642 [27]; [2010] VSCA 195 at [27] (Neave and Redlich JJA and Habersberger AJA); Harkness v Harkness (No 2) [2012] NSWSC 35 at [18]. I have made this statement, many times, in the context of a claim for a family provision order, particularly in relation to estates with a small value.
67. The Plaintiff’s estimated costs and disbursements, calculated on the ordinary basis, up to and including the completion of the three day hearing, were estimated to be $83,000 (inclusive of GST). Her estimated costs and disbursements, calculated on the indemnity basis, were estimated to be $104,000 (inclusive of GST).
68. The Plaintiff has paid a total amount $19,694 on account of these costs and disbursements: Tcpt, 19 May 2020, p 61(49) – p 62(20).
69. In his affidavit sworn on 11 April 2020, Mr Fitzpatrick disclosed that the Plaintiff’s solicitors “are providing their services on a contingency basis subject to the plaintiff’s claim succeeding. Counsel fees are also provided on a contingency basis subject to the plaintiff’s claim succeeding save as to the amount of $13,200.00 (inclusive of GST) which will be payable by the Plaintiff regardless of the outcome of her claim”.
70. The Defendant’s estimated costs and disbursements, calculated on the indemnity basis, up to and including the completion of the three day hearing, were estimated to be $77,312 (inclusive of GST). The Defendant has paid $43,312 out of the estate, leaving an amount of $34,000 yet to be paid.
71. Taking account of the Plaintiff’s costs on the ordinary basis ($83,000) and the Defendant’s costs on the indemnity basis ($77,312), the net distributable estate out of which any order for provision could be made was $300,121.
72. At the commencement of the hearing, the parties agreed that the Court would be unable to determine the issue of costs as part of these reasons. However, in the events that occurred, the final result having been communicated to the parties at the conclusion of the hearing, it was possible to determine the issue immediately. I shall return to the matter of costs later in these reasons.

The relationship of the Plaintiff and the deceased following separation

73. There was no evidence of any continuing personal relationship between the Plaintiff and the deceased after their separation in December 2012. They do not appear to have remained on friendly social terms; nor do they appear to have been in a close personal relationship at any time thereafter. There was no assistance, or support, whatsoever, provided to the deceased by the Plaintiff, and vice versa, at any time, after their separation. Each, thereafter, gave no attention to the needs of the other. (I shall return to the income that the deceased received from the business.)
74. The Defendant gave evidence, at par 17 of her affidavit affirmed on 7 April 2020, on which aspect she was not cross-examined, that:

“The plaintiff and my father did not visit each other and only engaged in correspondence through email and their respective legal representatives. The plaintiff cut off my father’s telephone shortly after he left the marriage and my father had to get a new telephone number. To my knowledge the plaintiff did not have my father’s most recent telephone number. At no time did the plaintiff visit my father at his home in Tomakin and the only time my father attended the plaintiff’s home (which at the time was the marital home in Tuross) was in the presence of a third party in order to collect his personal belongings many years ago prior to the Federal Court proceedings and his passing ... The plaintiff did not attend my father’s funeral ...”

75. Of course, their business relationship continued, but it was fraught with difficulties. After separation and until about July 2013, both the Plaintiff and the deceased worked part time in the business but on different days. From about July 2013, the Plaintiff returned to working in the business full time. The deceased significantly reduced his time working in the business, until January 2014, when the Plaintiff and the deceased agreed that he would cease working in the business and that he would be paid $500 per week from business income. The Plaintiff deposed in her affidavit sworn 10 December 2018, at par 30, that:

“In late January 2014 Colin and I agreed that he would cease working in the business and that he would be paid $500 per week from business income. He received that weekly amount until late March this year. Colin did not do any work in the business or for the benefit of the business in return for his weekly payments.”

76. The Defendant disputed the Plaintiff’s characterisation of the business relationship between her and the deceased. The Defendant deposed at par 43 of her affidavit affirmed 7 April 2020:

“In relation to paragraph 30, my father was half owner of the business yet was excluded from working at the business and was therefore unable to earn an income to adequately support himself.”

77. Ms Van Aalst similarly disputed the Plaintiff’s account in her affidavit affirmed 7 April 2020 at pars 4 and 6:

“In relation to paragraph 20, the plaintiff’s assertion that my father retired from the Real Estate business in 2010 is incorrect. My father worked part time up until the plaintiff went on sick leave and he then resumed full time work until the time he was forcibly excluded from the business by the plaintiff ... In addition, I hold a letter sent from Mr Fitzpatrick on behalf of the plaintiff to my father’s solicitor Rachel Bird & Co that threatened to call the police if my father attempted to enter the business that he still owned half of. This letter is dated 25 July 2016. It is attached and marked “A”.

...

In relation to paragraph 30, my father remained half owner of the Realty business yet was excluded from working at the business and was therefore unable to earn an income to adequately support himself. As an owner of the business he received a weekly payment from the business of $500.00 per week, as a result of interim Consent Orders made in the family law proceedings.”

78. The relevant passage of the letter from Mr Fitzpatrick, as referred to by Ms Van Aalst, was in the following terms:

“[The deceased’s] efforts to return to the workplace are causing our client severe mental stress and is harassment. Should he again try to enter the workplace despite our client’s objections, she will call the Police for assistance and seek an AVO.”

79. The Plaintiff deposed, in her affidavit in reply sworn 6 June 2019 at par 5:

“From about July 2013 I returned to working in the business full time. From when I returned to working full time, [the deceased] significant reduced his time working in the business. He came into the office only about one or two days per week but rarely worked a full weekday, although he did continue to work every second Saturday.”

80. She further asserted that during 2013 she began to receive complaints from staff members about the deceased’s behaviour. As such, she deposed:

“I came to the view that it would be better if [the deceased] ceased to work in the office. Therefore, in late January 2014, I requested [the deceased] not to come into the office and we agreed that he would receive $500 per week from the business.”

81. At Tcpt, 18 May 2020, p 53(36) – p 54(33), the Plaintiff gave the following evidence:

“Q. ... Even though you’d separated, you and Mr Wade were still tied up in a business arrangement.

A. We worked as a company right up until the mediation in 2018, February 2018.

Q. It wasn’t working very well, both of you being in the office at the same time after the separation, was it?

A. No.

Q. Eventually you made a decision that Mr Wade should stay at home and not come into the office.

A. I didn’t make that decision. The staff made that decision.

Q. So are you saying the staff told you things but as a result of them saying things to you, you told Mr Wade to stay away?

A. No, I didn’t tell him anything. We made an agreement.

Q. Okay, so you and Mr Wade made an agreement?

A. That’s correct. It was a discussion and we made an agreement.

Q. I think initially you worked on different days but later on he did not come into the office at all. Is that right?

A. Yes.

Q. That was from about January 2014 that Mr Wade stopped coming into the office?

A. Thereabout.

Q. Does that sound right?

A. Yes.

Q. You commenced the Family Law property proceedings in 2014? I think I asked you that before.

A. I know that the divorce was in 2014. It could have been later that year or it might have been, something like that.

Q. Probably from at least in January 2014, you didn’t have much to do with Mr Wade except through financial links, is that right?

A. Well, probably.

Q. You wouldn’t visit him, would you?

A. No, no.

Q. And you had no real contact with him at all except through lawyers.

A. There was no contact from the day he left in regard to anything or his family or anybody once he left except when we did business things or through, after 2014, it was lawyers.”

82. The Plaintiff, at Tcpt, 18 May 2020, p 54(43–47), added:

“Q. ... The reason why you started the property proceedings in 2014 was to bring to an end the financial relationship that you had with Mr Wade.

A. Well, it follows divorce normally, so he, he had no interest in anything at all, so yeah, it had happened.

83. In re-examination, the Plaintiff, at Tcpt, 19 May 2020, p 59(21–35), said:

“Q. A proposition was put to you that you made a decision to ask Mr Wade to leave the business, and you said the staff made the decision. How was that?

A. Well, he was in there some days and I was in there different days early on, and he was not being nice with his comments towards the staff, and they called me in, said that they worked with him, he was rude with his comments towards them, and if - they would leave if he kept coming in. So I had to have a discussion then with Colin.

Q. It was also put to you that you wanted complete control of the business, and you replied, “I couldn’t do the business without him”. Why was that?

A. Well, he, he was also an integral part of the business, in that he did all the accounts work, bookkeeping, all that type of thing, and we shared sales and listings and looking after the staff, all that type of thing. So it, it was actually a big loss and I had to put in a lot of extra work to keep it going. There was no contribution by Colin after that whatsoever.”

84. It was put to Ms Bird in cross-examination at Tcpt, 19 May 2020, p 110(05–30):

“Q. Mr Wade had the advantage without working in the business of getting $500 per week and one half of the surplus that would be attributable to a distribution from the trust.

A. Well, that’s your assertion. I wouldn’t call $500 a week an advantage, but yes.

Q. Well, he wasn’t doing any work for it.

A. No, he hadn’t been able to come back to the business. On the occasion that he tried to my knowledge he was attacked or he was routinely threatened with calling the police or even obtaining a family violence order.

Q. Yes, that was because of disputes with staff.

A. No, she said she was going to call firstly the police, through was whether Mr Fitzpatrick said to me, and the family violence order pertained to the relationship between Ms Brindley and Mr Wade, not a personal protection order or workplace relations order, a family violence order.

Q. But there was a period of five years where he was receiving $500 a week and one half of the surplus of any profits of the trust.

A. That’s not correct. There was a period where he was receiving approximately $1,400, as was Ms Brindley. That was prior to my involvement.

Q. Yes.

A. Around March of 2016 onwards he received $500 a week and signed an undertaking to the Court that he would not make further drawings from the business at that time until the matters were resolved.”

85. I do not accept that the Plaintiff, through one or both of the companies, was making an ex gratia payment to the deceased of $500 per week. That amount was paid to him out of the business conducted by a company of which he was a shareholder and director. The fact that he did not work in the business appears to have been what the Plaintiff, herself, wanted, even though in her oral evidence she praised the deceased’s contribution to the business.
86. Other than the payment of the $500 per week to the deceased from the business, the deceased and the Plaintiff effectively lived completely independently of each other for the period from January 2014 until his death. Prior to January 2014 (the date of the agreement for the payment of $500), they may have had some interaction in the course of running the business.
87. (I also note that there was some mention in the Plaintiff’s evidence of the deceased having the use of a company motor vehicle: Affidavit, Lilian Helen Brindley, 15 April 2019 at par 3. Although this was not disputed by the evidence of the Defendant, nor by Ms Van Aalst, like the $500 weekly payment, it does not reflect any continuing personal relationship between the Plaintiff and the deceased.)

The deceased’s medical condition

88. The Plaintiff asserted that the seriousness of the deceased’s medical condition was not disclosed, or at least not sufficiently disclosed, to her. She pointed to the request for a medical report which was not provided. She maintained that she did not know that the deceased had a short life expectancy. She wrote that “[i]f I had known that, or that he would be dead within six (6) months of the settlement, I would not have settled on the terms agreed with [the deceased]”.
89. As stated above, the Defendant gave evidence of the deceased’s initial diagnosis and surgery in October 2017 and, further, of his ongoing treatment in the latter part of 2017 and early 2018. During that time, she provided assistance to the deceased in the family law property proceedings and attended with him, and with Ms Bird, at the mediation before Judge Sexton in February 2018. The Defendant deposed at par 12 of her affidavit affirmed 7 April 2020:

“Prior to the mediation and during those proceedings it was disclosed to the Judge, plaintiff and the plaintiff’s legal representative that my father had grade 4 brain cancer called Glioblastoma Multiforme and to date his treatment had been undertaken successfully.”

90. She deposed, further, at par 46:

“I attended this Judicial mediation with my father and also answered questions about my father’s health when asked by the Judge ... I attended with my father as his mental acuity had deteriorated following surgery for the brain tumour. He was forgetful and sometimes struggled to understand particularly when he [was] tired. My father tired easily by February of 2018 and the Judicial [mediation].”

91. In cross-examination, counsel for the Defendant took the Plaintiff to various parts of the transcript of the mediation before Judge Sexton on 9 February 2018. Regrettably, it is necessary to refer to the transcript of evidence in detail because it discloses precisely what was said:

“HER HONOUR: On health issues – I haven’t heard much about your client’s health except that he’s feeling a little bit better now. But he has still got, clearly, a serious condition.

MS BIRD: Yes. And it’s a recent condition, too. I think - - -

HER HONOUR: And the chemo is meant to go for six more months; is that right?

MS BIRD: Six more months - - -

MR WADE: Yes.

MS BIRD: - - - and that’s oral chemotherapy, as your Honour heard this morning.

HER HONOUR: Yes, and then what? What’s the plan after that? Hope for the best.

MR WADE: I – look, what I’ve been categorised is the most serious cancer.

HER HONOUR: Right.

MR WADE: Right.

HER HONOUR: Level something? Stage - - -

MR WADE: It’s a level 4.

HER HONOUR: You’ve got a stage 4 - - -

MR WADE: Stage 4.

HER HONOUR: - - - brain cancer.

MR WADE: Now, I had my treatment. I had my operation. My CAT scan has shown that there is nothing there at the moment. I’ve got to, for the next six months, go on chemo once a week for – per month for the next six months and then I think I go then back in for another MRI scan; is that right?

HER HONOUR: Well, you probably do because you will be – they will be wanting to make sure that chemo has worked.

MR WADE: Yes. Yes, ma’am.

HER HONOUR: Have you actually had brain surgery?

MR WADE: Yes. I had two tumours removed.

HER HONOUR: In the one surgery, or two surgeries?

MR WADE: In the one surgery.

HER HONOUR: And they say it’s one of those regrowing ones or - - -

MR WADE: They reckon - - -

HER HONOUR: It’s just that they think it’s somewhere else in your body or - - -

MR WADE: No, I’ve had scans. There’s nothing else anywhere else but - - -

HER HONOUR: Just the brain.

MR WADE: - - - the chance of it coming back are quite good.

MS ..........: Ma’am, can I - - -

HER HONOUR: Yes.

MS ..........: I’m his daughter Rachel.

HER HONOUR: Thank you.

MS ..........: I’m his enduring power of attorney and I deal with his medical appointments with him.

HER HONOUR: Yes.

MS ..........: He had two tumours removed in October in the one surgery.

HER HONOUR: Yes.

MS ..........: They removed all of the evidence of the tumour in the surgery. They did not see an residual tumour following surgery. He then proceeded with six weeks of daily chemotherapy and radiation, and that ceased. And now he has had a recent MRI and there is no evidence of any new tumour growth.

MR WADE: No.

MS ..........: It’s a glioblastoma grade 4.

HER HONOUR: It’s a?

MS ..........: Glioblastoma multiform grade 4 cancer.

HER HONOUR: Yes.

MS ..........: But at this point there is no evidence of – and it does not grow anywhere else in the body other than the brain so it’s a primary brain cancer.

HER HONOUR: And what has he been told about the prognosis?

MS ..........: There’s – it’s – it’s a very difficult thing to say because often they can’t get out all of the tumour in the situation – he has got the best prognosis for someone with this disease because they ..... all of the tumour at the surgery point.

HER HONOUR: Good.

MS ..........: So I guess you can say survival post five years is, I think, 10 per cent.”

92. Having been shown those passages, the Plaintiff gave the following evidence at Tcpt, 18 May 2020, p 47(38) – p 49(39):

“Q. Do you see at line 4, Mr Wade himself says he’s been categorised as having the most serious cancer, you remember that being said, don't you?

A. And what I, I do also remember him saying that he was fine. There’s nothing shown up on the CAT scan or anything else, that he was okay. I, I didn’t know he had it at that stage.

Q. You don't dispute that you were there and heard all of this, do you? You heard this description of the type of cancer and the level?

A. No, who told me what type of cancer it was?

Q. Sorry I didn’t hear that?

A. I said no, who told me that what type of cancer it was?

Q. You were present when all that’s set out on page 138 was said, weren’t you? You were still in the mediation?

A. I was. But he said he doesn’t have anything wrong. That everything worked and he’s okay. All through the day, Judge Sexton asked him how he was. He says he’s okay, he’s got no - he didn’t need any further treatment. That the scans were okay, that’s what I think.

Q. You took from what you heard on the day that he was fine and in good heath, is that what you’re saying?

A. Well it says here at number 20, it says he says for the next six months he’s got some chemo per week, and then he goes back for another MRI, and he says he’s okay.

HIS HONOUR

Q. Where does he say he’s okay?

A. It says--

Q. Where do you read he said he’s okay?

A. Well, all - actually in the beginning, but in this one he says in number 25, when she says the chemo has worked, he says “Yes, it’s worked”. He had two tumours removed. And he said - he keeps going on. And she asked him more questions about it. He said “No, I’ve had scans, there’s nothing anywhere else, just in the brain.” And then towards the end, Rachel his daughter speaks up and says that she’s the enduring power of attorney, and confirms he had two tumours removed. And then she goes on to say what he had.

SHARWOOD

Q. Sorry?

A. I, I didn’t know whether to believe that or not, at that stage.

Q. You skipped over the very first line on page 139, “The chances of coming back are quite good”--

A. So’s mine, you know--

Q. Before we get to yours--

A. I would not - about this sentence about 4 o'clock in the afternoon that he actually had something by then we had been in, in that courtroom the whole day. And I, I don't have fantastic health myself, and no drink all day, you do not hear everything that goes on. And I didn’t know whether to believe what was said at the end of the day or not. There was nothing to, to show me anything after we’d asked for proof of medical all that, he had nothing. I didn’t know whether to believe it or not.

Q. On page 139, would you go down to about line 38? There her Honour says “What has he been told about the prognosis?” Do you see that question?

...

WITNESS: Okay, what has he been told about the prognosis, is that what you’re asking?

SHARWOOD

Q. Yes, and the response at line 40, that’s from Ms Wade, isn't it?

A. I’m assuming it is.

Q. She gives an answer, and the right at the foot of the page “So, I guess you can say survival post five years is I think 10%”, you were there when all of that was said?

A. I, I don't know what that means, okay. I, I don't know - I didn’t even believe that at the time. I’d been asking for a very long time what was going on, and(as said).

Q. You may not have believed it, but you were told it weren’t you?

A. If it’s here in this thing, then I must’ve.

HIS HONOUR

Q. I’m sorry, I’m having a little bit of difficulty understanding your evidence. You told me a moment ago that you did not know whether to believe it or not?

A. That's correct.

Q. But now you tell me you didn’t believe it, which is it, did you not know whether to believe it, or was it that you didn’t believe it?

A. I don’t think I did believe it.”

93. In re-examination, the Plaintiff maintained that she had not been told anything about the deceased’s health prior to the mediation: Tcpt, 19 May 2020, p 58(42–44). (This seems inconsistent with her solicitor having been informed about the condition of the deceased in October 2017. It is highly unlikely that he would not have told her of the deceased’s health. He did not give evidence on this topic.)
94. Mr Lakeman, for the Plaintiff, cross-examined the Defendant on the same topic. He asked, initially, at Tcpt, 19 May 2020, p 72(20–30):

“Q. Now, prior to this judicial mediation that took place on 9 February 2018 no information had been provided to Mrs Brindley about your father’s state of health?

A. That’s not correct your Honour - sir. She - there was delay in some sort of - they were meant to have a teleconference which was delayed because my father was actually in hospital and had to undergo brain surgery and that information was conveyed to the other party in the family law matter.

Q. Yes but there was no record or anything like that that was prepared for use at the mediation?

A. No, not to my knowledge.”

95. The Defendant was shown the requests made by the Plaintiff’s legal representative for a copy of a medical report relating to the deceased. She asserted that she had not seen those emails prior to being shown them in the witness box. The following exchange then occurred (Tcpt, 19 May 2020, p 73(19–49)):

“Q. In respect of that email did your father at all discuss with you about providing a report, a medical report about his condition at the time of the judicial mediation in February 2018?

A. I think he may have and I think he would - may have said something about he will provide it - if, if his - if her Honour asked him to talk about his medical condition he would but he didn’t feel that he wanted to provide his medical records n, in their entirety to the other party. So we did discuss it but that’s about all I can remember, yes.

Q. Well, the email doesn’t ask for medical records in the entirety, it only asks for a medical report?

A. Yes, but I’m just talking about the discussion I had with my father. I didn’t real this email prior to just seeing it now. That’s about the discussions that we had - that my father had with me about his medical condition. Yes, so that’s what he - I, I can recall him saying.

Q. Whether you discussed with your father he was aware that his medical condition would be an issue in mediation, is that correct?

A. I don’t know what he - that he was aware of that, I’m not sure. I, I, I’m assuming that he was aware of what we discussed but at issue I, I don’t know what he was - whether he thought that.

Q. He’s thought that it was something that would be discussed at the mediation?

A. Yes and it was.

Q. Yes and it was but he didn’t feel that it was desirable at all for him to put some medical evidence before the mediation as to exactly what his medical condition and prognosis was?

A. I don’t know if he thought it was desirable, I just didn’t think he thought he needed to so he didn’t.”

96. Mr Lakeman took the Defendant to some additional passages of the transcript of the mediation before Judge Sexton.

“HER HONOUR: I should just note – say that I have noted – I know that, Mr Wade, you have been unwell. You have been unwell lately and one of the reasons one of the days was adjourned, anyway, because you were having some radiation on your brain. Is that right?

MR WADE: Yes, ma’am.

HER HONOUR: So is that finished now, that radiation?

MR WADE: The radiation is finished. The chemotherapy hasn’t.

HER HONOUR: The chemo hasn’t. So you’re still undergoing – you’re in the middle of chemo.

MR WADE: Yes. I’ve got to – for the next six months, I’ve got to take tablets per month for a week.

HER HONOUR: Okay. Oral chemotherapy.

MR WADE: Yes, ma’am.

HER HONOUR: Right. So how is that making you feel?

MR WADE: The chemotherapy hasn’t affected me. The radiation did, but the chemotherapy doesn’t - - -

HER HONOUR: What, it made you feel weak and tired?

MR WADE: The?

HER HONOUR: Did the radiation make you feel weak and tired?

MR WADE: Yes. Yes. Yes.

HER HONOUR: But are you feeling a little bit stronger since you’ve stopped it?

MR WADE: Yes. No, I’m actually feeling quite well at the moment, thank you.

HER HONOUR: Good to hear.

...

HER HONOUR: So it’s extraordinary that you both have these issues with your brain.

MS BRINDLEY: It is. I would like to know what type of tumour Colin’s got, because it’s – the chances of it are - - -

HER HONOUR: Must be incredibly rare, yes.”

97. It was put to the Defendant at Tcpt, 19 May 2020, p 75(27–32):

“Q. So at that stage Mrs Brindley didn’t even know what type of cancer your father had?

A. Yes but we did discuss it. If you go further in I - he is - her Honour is told that he has a glioblastoma grade 4, the most serious type of brain cancer. So - and not on that page, no but further in the discussions, yes it was discussed what he had.”

98. Mr Lakeman then took the Defendant to the passages of the mediation transcript to which the Plaintiff had earlier been taken. He asked:

“Q. Now, they say they’ve removed all evidence of the tumour in the surgery at line 9?

A. Yes, that’s what we were advised by his doctors.

Q. Which doctor advised you that?

A. The surgeon who did his, who did his surgery said, ‘We removed all the tumour that we could see we had’ - she could not see any further tumour in his brain after the surgery.

Q. Now, did the doctor then offer you a prognosis to your personally, perhaps not in front of your father, as to how long he’s likely to live?

A. We asked. My, my father actually asked the surgeon, ‘How long have I got?’ And she said, ‘I can’t tell you that.’ She said, ‘There - I can’t, I, I can’t tell you how long you’ve got’, and I asked as well and she said, ‘I honestly can’t tell you. All I can say is you’ve got grade 4 glioblastoma, it’s very serious.’ She would not give us a prognosis which was quite frustrating to us.”

99. He then proceeded to ask the Defendant more generally about the deceased’s medical condition. At Tcpt, 19 May 2020, p 77(28) – p 78(27), he asked:

“Q. Your understanding is, is it not, of this particular cancer that your father had, that it was a particularly aggressive form of cancer?

A. Yes.

Q. That following the craniotomy, that there was a very high likelihood that the cancer would return?

A. Correct.

Q. And that his prognosis at that stage, were you told by the doctors or not, was poor?

A. No, we weren’t given a prognosis. We just got told that generally speaking, people who have these cancers, they do recur. They did not give us a prognosis. They didn’t - they said from all of the work that they had done to date with the surgery, they managed to get all of the visual evidence of the tumour, so that was as good as could be expected, and, and he would go - undergo his - it’s called the standard of care, which is the chemotherapy and the radiation, and that’s, that’s basically all - they, they couldn’t tell if or when it would recur so we weren’t given that information. But we were told that there is a high likelihood that it would - it could recur. That’s basically what we were told.

Q. The only information then that was provided to Ms Brindley was in fairly general terms in relation to the operations that he’d had and his general condition at the time of the mediation settlement.

A. Correct. Her Honour asked me questions and I’m not a doctor, and I hadn’t - didn’t have access to his medical records so I could only give general - my understanding what - of the situation in responses to her Honour.

Q. If I suggested to you that your father was endeavouring to put the best face forward in terms of his health at the time of the mediation?

A. I reject that. I - he was telling his Honour how he felt.

Q. I want to suggest to you that he was trying to mislead Ms Brindley in relation to the seriousness of his health problems.

A. I reject that. He stated he had glioblastoma multiforme grade IV brain cancer, which is the worst kind, so I reject that.

...

Q. Did you endeavour to deceive the Court about the extent and serious nature of your father’s medical condition during that mediation?

A. No I did not. I disclosed what my understanding was, that he had glioblastoma multiforme grade IV brain cancer. As I’m not a doctor, I could not give medical evidence. I reject that I misled her Honour.”

100. In addition to cross-examining the Defendant, Mr Lakeman also cross-examined Ms Bird on the disclosure of the deceased’s medical condition at the mediation. He took Ms Bird to the correspondence in which the Plaintiff’s legal representative had made requests for a medical report relating to the deceased. The following exchange then occurred at Tcpt, 19 May 2020, p 104(03–27):

“Q. In relation to the final paragraph in that email response, you say in relation to the further information about Mr Wade’s health, ‘I do not hold instructions to make that information available to your client in the form of a medical report.’

A. Correct.

Q. What were Mr Wade’s instructions to you at that stage?

A. If I can go back a bit. Initially Mr Wade didn’t want Ms Brindley knowing about his health. I indicated to him in the October 2017 that the Court would need to be aware of that. He had authorised me to give - disclose to the judge in court that he had brain tumours and he was in hospital and would be undergoing surgery. At the time prior to 19 December 2017, the mediation date was vacated, at that stage there was no further surgeries planned. He had received radiation treatment and was still on oral chemotherapy, which is what he told me. He said he didn’t want Ms Brindley to see any medical reports about that. That was the discussions we had.

Q. One of the things that would have been relevant to the judicial mediation would have been Mr Wade’s health and Ms Brindley’s health, would it not?

A. Yes, and it was discussed at that judicial mediation.

Q. Did you seek instructions from Mr Wade to provide something in the form of a report to set out more clearly his condition?

A. No, my instructions had not changed for the purpose of mediation. I believe I did discuss with him that if it went to hearing everybody would need to produce medical reports in relation to their state of health.”

101. Mr Lakeman also briefly cross-examined Ms Van Aalst about the condition of the deceased around the time of the mediation (Tcpt, 19 May 2020, p 122(19–37)):

“Q. Yes, what condition was he in?

A. He was in good condition. We were optimistic about his condition. He at the time had no - well, we’d been informed that he had no new tumour growth and that things were progressing as best as we could hope, so we were cautiously optimistic.

Q. Could he drive at that stage?

A. No.

Q. Was he able to look after himself?

A. Yes. Well, it depends on how you define looking after himself. He could cook a meal, he could shower himself, he could dress himself. There were things he needed assistance with because he couldn’t drive.

Q. Was he living permanently at the Tomakin property?

A. He was living at the Tomakin property independently interspersed between staying at my place, my house because he needed to be taken to appointments and, and assistance with getting his medication and shopping, because he couldn’t drive.”

102. Mr Lakeman also asked Mr Christopher Wade (Tcpt, 19 May 2020, p 128(36) – p 129(31)):

“Q. What were your observations of your father in February 2018?

A. ... I can’t remember the exact dates. He was probably, I was just, I, you know, sort of, it’s really hard to tell exactly what he was doing, how he was in February 2018, but I know he was, he wasn’t well, because he had the operation and he was getting his, I’m pretty sure he was getting his chemo at that stage or his radiation therapy, and he’d lost his taste and he had a few other things as a result of the medication. He’d lost his taste and his sense of smell, he had thrush. I’m pretty sure that was at this time. And he had thrust, he was having trouble with his eating and that, he wasn’t hungry. I know that much, so he wasn’t really eating a lot because he just couldn’t eat that well.

Q. Were you actually, telling you and your wife on a sort of daily basis at all?

A. No, at that, we’d check on him, but when he needed stuff or we’d go over to check on him, keep him company for a bit or when he’d needed things we’d help him out. It wasn’t on a daily basis though.

Q. I think your residence at Mossy Point was the closest to his residence at Tomakin, is that correct?

A. Yes.

Q. Were you the child that was providing the proper care to him or was that your sisters?

A. We all were, it depends on what it was, and if he needed to go to Canberra, I’d come to Canberra, come to Canberra for his treatment. My sisters might pick him up or I’d take him down sometimes. All depended on the circumstances and, that, situations.

Q. Yes, he wasn’t driving, I assume?

A. No, no.

Q. Did you discuss with your father about the terminal nature of his illness?

A. Yeah, he, he basically sat us all down. I don’t know what the date was, but he sat us all down and explained it all to us.

Q. Did he tell you that it was a fairly aggressive form of cancer?

A. Yes, he did.

Q. Did he discuss with you at all his sort of life expectancy, how long he thought he might be around?

A. I don’t know if it was him but someone did mention that it could be, it could be six months, it could be a couple years. It depends on how he reacts, responded to the radiation and how, how, how fast it spread and affected him, or what it affected, et cetera.

Q. Did you attend any of his doctors at all to discuss with them his prospects?

A. No, I didn’t.”

103. As it was not in dispute, I accept that the Plaintiff had not received any medical report prior to the judicial mediation. However, Mr Lakeman accepted that there was no medical report in existence at that time (Tcpt, 19 May 2020, p 137(20–25); Tcpt, 20 May 2020, p 146(31–38)). This fact might also be inferred from Ms Bird’s cross-examination (Tcpt, 19 May 2020, p 104(03–27)).
104. Mr Lakeman accepted that medical records were produced to the Plaintiff under subpoena in these proceedings. She maintained that she had not seen any of those documents but believed that her lawyers had an opportunity to inspect the documents produced after the subpoena had been served: Tcpt, 18 May 2020, p 51(37–44). However, there was no contemporaneous medical record tendered, in these proceedings, demonstrating that any medical report existing at the time had not been disclosed. As such, counsel was unable to obtain, from this source, corroboration for the Plaintiff’s assertion that she had been misled during the course of the judicial mediation in the family law property proceedings.
105. As earlier stated, in October 2017, the Plaintiff, by her legal representative, was given notice that the deceased had two brain tumours and was to undergo surgery to remove them. Although the Plaintiff might not have known the precise nature of the deceased’s cancer at the commencement of the mediation, she was told enough to make clear that the deceased was not in good health. Then, at the mediation, the deceased and the Defendant disclosed detailed information concerning the deceased’s state of health, including the precise form of cancer from which he then suffered.
106. It could not, reasonably, have been understood by the Plaintiff, from what was said at the judicial mediation, that the deceased was “well”. To the contrary, it was made plain that the deceased had been seriously ill and the prognosis was sufficiently guarded to lead to a conclusion that he was not likely to survive very long. It was not necessary, in all the circumstances, for the deceased to do more than he did, prior to, and at, the mediation, to assuage the concerns, if any, that the Plaintiff harboured.
107. The evidence that I have read, and heard, enabled me to reject, completely, the Plaintiff’s submission that the medical condition of the deceased was not disclosed, or not disclosed to her, in sufficient detail, prior to the Consent Orders being made. Any reasonable consideration of what had been disclosed would have made clear that the deceased was not in good health and that he could die in the not too distant future.

The inheritance received by the deceased

108. As it was an issue in the proceedings, I next refer to the amount of $137,284, being the amount received by the deceased following the distribution of his mother’s estate. As stated, that amount was distributed to him after the conclusion of the judicial mediation held on 9 February 2018, and it was paid into an account in the name of the Defendant, who could not say how that occurred, although she stated that she had not arranged it. I am satisfied that the transfer of the funds to her was arranged by the deceased.
109. The Defendant’s evidence is that, at the behest of the deceased, from the inheritance, each of the deceased’s children received a gift of $15,000. In addition, the Defendant received a further payment of $5,000.00 out of the inheritance sum, said to be repayment for a loan she had made to her father in 2016.
110. The Defendant confirmed this evidence in cross-examination, answering at Tcpt, 19 May 2020, p 95(22–31):

“Q. When you spoke to your father about receiving the money, what conversation did you have with him about the terms on which you were to hold the money?

A. Yes, because he was unable to drive, he couldn’t do any shopping or go to the bank or do anything like that. So I was to use - initially he gave us three children - he said to distribute $15,000 to each of the three children, and then to utilise the funds to manage his life; pay for things that he needed, buy his food, pay his bills, get things done around his house because, you know, towards the end there, he was unable to do things. He was unwell. And then basically he said, ‘Whatever’s left when I go, just give it out, just share it out’.”

111. Whilst it is not clear, bearing in mind the deceased’s state of health from about February 2018, I tend to the view that the balance of the inheritance was used for his day to day living expenses. I accept the evidence of the Defendant.
112. There was no dispute that the deceased did not disclose at the judicial mediation that he was entitled to receive a share of his mother’s estate.
113. The Plaintiff’s evidence about this matter, at pars 9–10 of her affidavit sworn 15 April 2019 was as follows:

“My lawyer, Denis Fitzpatrick, forwarded me the Balance Sheet and the updated Financial Statement before the mediation. I read both documents and relied on their contents at the mediation. Neither the Balance Sheet or the Financial Statement contain any disclosure of Colin’s interest as a beneficiary in his mother’s Estate.

I was reluctant to agree to the family law settlement with Colin. I relied on what I understood to be Colin’s financial circumstances when agreeing to the settlement. The combined net asset pool for Colin and I (which was calculated on disclosed assets and liabilities) was about $1.3million. Under the settlement I received somewhat less than 50% of that net asset amount. I refer to Annexure “H” to my Earlier Affidavit showing my net assets at $542,357.50 plus superannuation in the amount of $86,800.00. Therefore, my net assets and superannuation after the settlement amounted to $625,157.00, which represents 48% of the combined asset pool including superannuation. If I had known that Colin was entitled to a one quarter share in his mother’s net Estate I would not have agreed to the terms of the family law settlement. I would have continued my family law litigation.”

114. In her affidavit affirmed 7 April 2020, the Defendant whilst admitting the non-disclosure, portrayed it in a different light. She deposed at pars 52–53:

“In relation to paragraph 5 and 10, it was open to the plaintiff and the plaintiff’s solicitor to make enquiries about my father’s mother. They did not do so. I understand from these proceedings that they rely on a Financial Statement provided to them by my father’s solicitor prior to the Judicial mediation. That statement was not signed by my father. I agree it did not disclose a potential inheritance.

At that time of the judicial mediation my father had not received any monies.”

115. In cross-examination, Mr Lakeman took the Defendant to passages of the transcript of the mediation before Judge Sexton where her Honour asked the Plaintiff whether she had received any inheritance, or other similar financial windfall. Mr Lakeman put, and the Defendant rejected, that those questions were put to the deceased as much as they were to the Plaintiff. He then asked (Tcpt, 19 May 2020, p 82(05–10)):

“Q. You had volunteered information, I think, about your father’s health?

A. Correct.

Q. Did you feel it appropriate at this juncture to volunteer information about your father’s inheritance?

A. No, because he had not received anything.”

116. Mr Lakeman also cross-examined Ms Bird on this topic. He took her to a copy of the Financial Statement made on behalf of the deceased at the time of the mediation pursuant to r 24.02 of the Federal Circuit Court Rules 2001 (Cth). Relevantly, he took her to “Part L Financial Resources” and the item “Interest in any trust or deceased estate”. In the deceased’s Financial Statement that item was left blank. Mr Lakeman asked (Tcpt, 19 May 2020, p 100(45) – p 101(08)):

“Q. Did you take instructions from Mr Wade in relation to that item?

A. Again, as I said, I would’ve emailed this to him to confirm if it was correct prior to sending it to the Court.

Q. You didn’t actually go through the form with him and discuss with him--

A. No.

Q. --the various items that were contained in the statement?

A. No, it was based on an earlier financial statement that had been prepared by me.”

117. Mr Lakeman maintained that the non-disclosure of the inheritance and the deceased’s medical condition, by him, or by any other person present (the Defendant and Ms Bird) at the judicial mediation was of real significance. He pointed to the general principle expressed in In the marriage of Suiker (1993) 117 FLR 254 at 260; (1993) FLC 92-436, which concerned proceedings to set aside a property settlement order entered by consent and where it was asserted that there was a suppression of evidence, the Full Court of the Family Court said, apropos the making of orders by consent, at 80,471:

“In our opinion, the necessity for full and frank disclosure of financial matters to the Court and to the other party are basic to the process of the Court and the fundamental aims of the financial legislation contained in section 79 of the Family Law Act 1975. As Dawson J said in Harris v Caladine [1991] HCA 9; (1991) FLC 92-217 at 78,485-78,486:-

‘In considering what order, if any, should be made under s 79, a court is required under sub-s (4) of that section to take a number of matters into account, including the various financial contributions made by the parties to the marriage. And sub-s (2) provides that a court shall not make an order under the section unless it is satisfied that, in all the circumstances, it is just and equitable to do so. The fact that an order is sought by consent does not relieve a court, or a Registrar, from compliance with the requirements of the section, but it may render compliance much less demanding. Provided that a court, or a Registrar, is adequately informed, where the parties are at arm’s length and are properly represented little more than consent may be needed to establish that the requirements of the section have been met: see Jenkins v Livesey [1984] UKHL 3; [1985] AC 424 at pp 437, 444.

Even if the consent pursuant to which an order is made under s 79 amounts to a contract between the parties, it is the order itself which is of legal significance. As Lord Diplock observed in De Lasala v De Lasala [1979] UKPC 10; [1980] AC 546, at p 560, in related circumstances:

“Financial arrangements that are agreed upon between the parties for the purpose of receiving the approval and being made the subject of a consent order by the court, once they have been made the subject of the court order no longer depend upon the agreement of the parties as the source from which their legal effect is derived. Their legal effect is derived from the court order.”

And in the case of an application under s 79, even if there is consent amount to a contract, that is not enough of itself to entitle the parties to an order. The requirements of the section must be satisfied.’

It is implicit in these passages that the consent to an order must be informed consent. The consent to the order is itself part of the judicial process on which the Court places reliance. If that consent is based on misleading or inadequate information, then there may be, in our opinion, a miscarriage of justice either by reason of the ‘suppression of evidence’ or by reason of ‘any other circumstance’.”

118. Mr Lakeman also referred me to the decisions in Barker v Barker [2007] FamCA 13; (2007) 36 Fam LR 650 at 675–677 [120]–[127]; [2007] FamCA 13 at [120]–[127] and Jeeves v Jeeves [2011] FamCAFC 94 at [97]–[105].
119. The cases relied upon by the Plaintiff were cases involving s 79A of the Family Law Act, which provides that the court may, in its discretion, vary, or set aside, an order made by a court under s 79 in a property settlement proceeding. Before making such an order, the court must be satisfied about the existence of any one of the matters canvassed in paragraphs 79A(1)(a) to (e).
120. Mr Lakeman, in particular, referred to s 79A(1)(a) of the Family Law Act. That paragraph is in the following terms:

“Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:

(a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance ...”

121. It should be observed that Mr Lakeman did not suggest that this Court could exercise any jurisdiction pursuant to s 79A of the Family Law Act. Whether or not that is so, no application was made by the Plaintiff under s 79A of that Act.
122. Importantly, it was not submitted that a miscarriage of justice by way of suppression of the evidence of the deceased’s life expectancy had occurred or that the consent orders, made on in March 2018, could have been set aside and that fresh orders would be made under s 79 more favourable to her than the original consent orders. In other words, it was not submitted that the final consent orders were impeachable. (Even if it had been, there was no evidence to substantiate that submission.)
123. Rather, as he submitted at par 74 of his written submissions:

“Although it is not the role of the Court to re-open the Family Court proceedings it is submitted these matters are factors warranting an order for provision in favour of the plaintiff.”

The withdrawal of $20,000

124. During the mediation before Judge Sexton, it became apparent that the Plaintiff did not have with her the balances for her bank accounts. Her Honour suggested to the Plaintiff that she visit a branch of her bank and obtain those balances at the luncheon adjournment.
125. After the adjournment, Mr Fitzpatrick provided the balances for two of the Plaintiff’s accounts. Relevantly, one of those accounts was said to have a balance of $11,601.
126. In these proceedings, the Defendant gave evidence that the Plaintiff had made a withdrawal of $20,000 from that account prior to providing the balance to the parties at the mediation: Affidavit, Rachael Lee Wade, 7 April 2020 at pars 90–91.
127. The Plaintiff provided an explanation for this withdrawal at pars 7–14 of her affidavit sworn 6 May 2020:

“On 9 February 2018 at the Judicial Mediation before Judge Sexton there was discussion before the judge seeking to clarify account balances. I had an ATM card for account [XXXX] but I did not have any ATM card for account [YYYY]. Before the luncheon adjournment I gave my sister, Rita Bertram, my ATM card for account [XXXX] and asked her to obtain a receipt from an ATM showing the balance of account [XXXX]. Rita did that.

During the luncheon adjournment I met up with Rita. She gave me the ATM Receipt showing the credit balance for account [XXXX]. We both then attended the Commonwealth Bank Branch at (to the best of my memory) World Square. Whilst we were waiting in line at the bank I told Rita that the balance in account [YYYY] was $31,000. Rita said to me words to the effect:-

‘If you have that much money in that account why can’t you pay me some of what you owe me.’

Rita and I then had an argument during which I said words to the effect:-

‘All right I will transfer $20,000 to you.’

Rita did not have her account details so I transferred the $20,000 from account [YYYY] to account [XXXX] with the intention of later transferring it to Rita later.

After transferring the $20,000 to account [XXXX] the credit balance in account [YYYY] was $11,601.89. I requested a document from the Bank confirming that balance. The Bank provided me with a letter showing the credit balance in account [YYYY].

After the luncheon adjournment I gave my solicitor the ATM receipt on account [XXXX] showing a credit balance of $6,467.33 and the letter from the Commonwealth Bank showing the balance of account [YYYY] at $11,601.89.

Rita had obtained the ATM receipt on account [XXXX] before I transferred the further $20,000 to that account resulting in the balance shown on the ATM receipt being $6,467.33 instead of $26,467.33. I was very stressed due to the argument I had had with Rita and due to the mediation. I omitted to tell my solicitor that the balance on the ATM receipt was incorrect.

After the mediation Rita and I discussed how I was going to find the funds to pay [the deceased] $50,000 being the payment I had agreed to make to him as well as to transfer $70,000 of my Superannuation ton [sic] him. Rita told me that I could use the $20,000 I was going to pay her to go towards the $50,000 for [the deceased].”

128. The Plaintiff’s sister, Ms Henrietta Bertram, confirmed in her affidavit sworn 3 April 2020 that she had loaned the Plaintiff a sum of $50,000 in early 2016.
129. Ms Bertram also disclosed that the Plaintiff had, as at the date of Ms Bertram’s affidavit, repaid $20,000 of that loan. This was a payment, or payments, separate from the $20,000 transfer that was said to have occurred at the date of the mediation.
130. Mr Sharwood cross-examined the Plaintiff on her version of events. This led to the following exchange at Tcpt, 18 May 2020, p 42(38) – p 43(28):

“Q. Isn’t it the case that at lunch time you went down to the Commonwealth Bank?

A. Yes, I did.

Q. Had your sister already gone to the bank prior to you going at lunch time or did you go together?

A. Well, it depends which bank you’re talking about, because there were two, two trips. My sister went when she was asked with the card to get a balance of one of the accounts. She couldn’t get a balance from the other account because it’s not a card account, so then, then at lunch time I went to - with her to another bank. There was a teller machine closer but you have to go into the bank and to get that. That was the, the account, one, 52, is just the working account with the card; the other account number that you said that’s a savings account in behind that.

So we went down there in the lunch break and the line was long, so we waited. We actually had an argument in the line because I told her what was in that account and she just said to me, ‘Well, you owe me money, why aren’t you giving it to me?’ and so we unfortunately had a disagreement and I said, ‘All right, I’ll put the money in your account.’ She said, ‘Okay,’ but she didn’t have her account number, so she couldn’t give me the account number which I would have needed at the teller and I put it into my working account, if you like, my flexi account, whatever you want to call it, so that I could transfer it to her that evening.

Q. Couldn’t you have transferred it from the other account?

A. What, what other account?

Q. The account that the money was in?

A. It’s not an account, it goes in - it goes back into the like working account, the, the account you use every day. She didn’t have her account number so I couldn’t put it into something I didn’t know where it was going to go.

Q. Why did you need to move it at all?

A. Because we had a fight about the money and I owed her money and she said, ‘Why aren’t you paying it to me?’

Q. No, why did you need to make any transfer if you didn’t have her bank details at the time, if you were going to do it later?

A. Because I wouldn’t have been at the bank later. We were in the city. I wouldn’t have been able to go to the bank later.”

131. Referring then to the balances obtained by the Plaintiff and Ms Bertram, Mr Sharwood continued at Tcpt, 18 May 2020, p 44(17–34):

“Q. You went back to the mediation with two receipts or chits, whatever you want to call it?

A. No.

Q. No, that didn’t happen?

A. We went back to the mediation with the letter that the other one had, had been given to Mr Fitzpatrick by my sister when she went to the bank and got that out of the teller machine.

Q. What was going on here was you had been called out by the judge to find some proof to support your suggestion that you had two personal accounts, one with $5,000 and one with $10,000 and what you were doing was trying to justify those sums and mislead her Honour. Isn’t that what was going on?

A. I doubt very much that is anything near the truth. The accounts, both those accounts have - I’ve produced statements to the other side constant over a period of four years, so that everybody knew there was two accounts being in question. And what they wanted was the balance that day. A month before they had bank statements. That day I didn’t have any and so I went to get it.”

132. After the position was clarified for the Plaintiff, the question was put again (Tcpt, 18 May 2020, p 45(39) – p 46(20)):

“Q. Mr Sharwood is putting to you that in not telling the judge that you had transferred from the account that had $30,000 at the beginning of the day, to the card account which had $6,000 at the beginning of the day, that was misleading the Court and also misleading the deceased, because all that they would've understood was that there were two accounts, one with about $11,000 in it, and one with about $6,0000 [sic] in it, do you understand?

A. I do, but--

Q. What do you say about that?

A. Okay, at the time, I did not even think about telling [Denis] Fitzpatrick that that would have a new amount in it now. Because this went backwards and forwards. I’d had a huge argument with my sister. I, I never even gave it another thought. We went back into Court. I have not had lunch, I had not had any anything and straightaway they were just handed over. It never even occurred to me, it was no intention of mine to mislead anybody. I provided thousands of documents over the years, and I’ve not ever, ever in - misled a single person--

Q. Why--

A. --so it wasn’t my intention.

Q. --didn’t you tell anyone that the $20,000--

A. Because--

Q. --had been withdrawn from one account?

A. It never even entered my head. Because where we went to the bank, after the bank we went back into the room where Judge Sexton was, it was handing over that sheet of paper. I’m sorry, it was never my intention to do anything like that. Nor was it my intention that I would have a huge argument with my sister on that day. I kept - I owed a lot of people a lot of money, and that’s the way it went. That money was extra money that’d been put into that account only a few days earlier from the bank, because I’d borrowed it.”

133. Mr Sharwood then, in concluding this line of cross-examination, put to the Plaintiff (Tcpt, 18 May 2020, p 46(45) – p 47(15)):

“Q. Over the following page, Mr Fitzpatrick said that the other account had $11,601, do you see that at line 5?

A. I can see that.

Q. You heard him say that?

A. I suppose so.

Q. You knew that wasn’t the correct situation, didn’t you?

A. On the day, I, I don't remember thinking that anything was wrong, at the time. If I did and I remembered that, I would’ve corrected it.

Q. You didn’t say anything about the loan to your sister now being less, because you were going to give her $20,000, did you?

A. No.

Q. You didn’t say that?

A. No, I didn’t. I’d just had a big fight with her, you know, it was a very disturbing day. The whole day was extremely disturbing. And then I had a fight with my sister in a line, a long line. And I have to wait at the bank, and in between all of this, the judge and the other side, between personal accounts and business accounts. I did not remember any of that.”

134. Mr Sharwood also briefly cross-examined Ms Bertram on the issue. She confirmed that she had gone out during the luncheon adjournment and obtained the balance for one of the accounts from an ATM.
135. Importantly, Ms Bertram corroborated that a dispute had occurred between her and the Plaintiff in the queue for the bank. At Tcpt, 19 May 2020, p 66(45) – p 67(12), the following exchange occurred:

“Q. Did she say she was going to give you any money at that time?

A. Yeah, she said she would transfer money to me. She said, ‘I’ll transfer 20,000’ and I said, ‘All right. All right’ and--

Q. Did she do that?

A. I - well, I didn’t have my bag with me, I only had my phone so I could use the Google Map. We, we were - our only job was to go to the bank. At that time I didn’t have my handbag. She said, ‘Well, I’ll put it in my - I’ll transfer it out of that account and I’ll give it to you tonight.’ So I, I left it at that, but--

Q. Did that happen? Did she transfer any money to you that night?

A. No, because I, I felt so bad about doing it. I told her not to do it. She was very upset and I don’t think she expected the Court to go the way it was and I told her not to worry about it.

Q. Okay.

A. I felt really bad for having put her, put, put it on her at that time and it was such a horrible ending to the day. I said, ‘Don’t worry about it.’”

136. Finally, Ms Bertram confirmed that she understood the outstanding balance of the loan at the date of the mediation to be $30,000, following the repayment of $20,000 in 2017.
137. Having heard, and seen, the Plaintiff and having heard her sister, I am prepared to accept the Plaintiff’s evidence about the amount of $20,000. I do not think the effect of transferring the amount occurred to either of them. As it turned out, the $20,000, whilst transferred, never went to Ms Bertram in any event.
138. Certainly, the transfer of the $20,000 was not disclosed. Leaving the non-disclosure aside, the payment of $20,000, in 2017, was in reduction of the loan that was made in 2016. At the date of mediation, the outstanding balance of the loan was therefore $30,000.
139. Yet, at the mediation, the following exchange occurred:

“HER HONOUR: And how much did you borrow from your sister; 49,000?

MS BRINDLEY: 49,000.

HER HONOUR: And you’ve paid her back nothing.

MS BRINDLEY: Not yet, no. I am struggling, I will say that now. The – see, the business only earns the money I make, if you know what I mean. Like, if I get the listings and the sales.”

The Submissions

140. The Defendant’s primary submission, based upon the evidence, was that the fundamental question posed by s 59(1)(b) of the Act, in relation to a claim by a former spouse of the deceased, is whether the Plaintiff can be regarded as a natural object of testamentary recognition by the deceased. She submits there are no factors warranting the making of the Plaintiff’s application and that, in those circumstances, the proceedings should be dismissed.
141. The Plaintiff submitted that at the time she entered into the Terms of Settlement with the deceased, she did not know what his future life expectancy was. She said that she had not seen any medical report confirming the information about the deceased’s state of health, as a request for a medical report was refused by the deceased’s solicitor. At the date of the hearing, some medical records had been produced under subpoena, but counsel for the Plaintiff did not tender any of those documents. It may be inferred that there were no relevant contemporaneous records, produced in answer to the subpoena that supported the proposition that there was more information available at the time of the mediation than that which had been disclosed.
142. Mr Lakeman in his written submissions reviewed the authorities on factors warranting in cases involving a former spouse. He submitted in respect of the decision at first instance in Lodin v Lodin; Estate of Dr Mohammad Masoud Lodin [2017] NSWSC 10 and the Court of Appeal’s decision in Lodin v Lodin (2017) 16 ASTLR 576; [2017] NSWCA 327:

“Justice Brereton in Lodin v Lodin [2017] NSWSC 10 said that while existence of the final matrimonial financial settlement is an important factor, it is not conclusive. What emerges from the cases he said is that there will be factors warranting the making of a claim by the former spouse, even where there has been a matrimonial property settlement, if at the date of the hearing of the family provision application there remained an undischarged moral obligation to the applicant. There is wider than ordinary scope for differences of opinion between reasonable minds, and it could not be said that there was a clear single ‘community standard’ as to when one divorced spouse will be regarded as having an undischarged obligation to the other.

Although the decision of Brereton was overturned on appeal in the Court of Appeal [2017] NSWCA 327 this statement seems to represent a fair summary of the previous case law. In the Court of Appeal, Sackville AJA said at paragraph 127, a final property settlement is not necessarily an absolute bar to a family provision application being considered on its merits, but in most cases such a settlement if otherwise unimpeachable ... is likely to terminate any obligation on the deceased to make testamentary provision.” (emphasis in original)

143. Mr Lakeman submitted that the Plaintiff had been misled by the deceased at the time of the settlement of the family law property proceedings. This, he submitted, arose in two respects. First, the deceased did not disclose the full extent of his illness. Secondly, the deceased did not disclose the inheritance that he would receive from his mother’s estate. He submitted at par 70:

“... the disclosure was intentional for the purpose of reducing the plaintiff’s Family Law entitlements.”

144. He pointed to the age and health of each party to the marriage being factors relevant to property settlement proceedings under the Family Law Act. With reference to s 79A of that Act, he submitted that “[w]here there has been a miscarriage of justice by reason of suppression of evidence including a failure to disclose relevant information, the Family Court has a discretion to vary or set aside a section 79 order ...”.
145. As stated above, Mr Lakeman submitted at par 74:

“Although it is not the role of the Court to re-open the Family Court proceedings it is submitted these matters are factors warranting an order for provision in favour of the plaintiff.”

146. On the facts of the present case, he submitted that had the deceased fully disclosed the matters referred to above, the Plaintiff would have received a greater share of the asset pool in the property settlement. He did not, however, point to any evidence, to establish that proposition.
147. He submitted, further at pars 76–77:

“The period from the initial cohabitation to the final property settlement was 18 years. It was also a productive one in that both parties worked in the business, the plaintiff more so than the deceased.

There was an expectation by the deceased and the plaintiff that the plaintiff as the deceased’s ex-wife should have been entitled to a sufficient sum to help her in her retirement.”

148. In his oral submissions, Mr Lakeman persisted with reliance on the alleged non-disclosures by the deceased during the mediation as creating factors which warranted the making of the Plaintiff’s application. He submitted in relation to the way in which the Plaintiff was, in the circumstances, a natural object of testamentary bounty (Tcpt, 19 May 2020, p 132(45) – p 133(01)):

“The obligation arises this way. ... the Family Court settlement was flawed through the non-disclosure of the financial asset. That that, in itself, creates an ongoing obligation on the deceased, if he was still alive, to have the family provision thing reopened. Because he died, the Family Court no longer has jurisdiction, and the only recourse, the only relief that the plaintiff could seek is in this Court, which deals with deceased estates.”

149. For the Defendant, Mr Sharwood submitted, in respect of the deceased’s medical condition at par 11:

“At the time of the settlement of the property dispute, the deceased was in remission. His condition, as it was known at the time, was disclosed to the plaintiff during a mediation before Judge Sexton of the Federal Circuit Court on 9 February 2018.”

150. I have set out in some detail the discussion that occurred at the mediation and otherwise and the information given to the Plaintiff about the deceased’s condition. I am satisfied that there was no material non-disclosure of that medical condition and that the deceased and others had been frank in what had been disclosed in this regard.
151. As stated, the impending receipt of the inheritance was not disclosed. Mr Sharwood submitted at Tcpt, 20 May 2020, p 168(22–40):

“The issue about the inheritance. There’s been a lot of debate about the relevance of that. In my submission, first of all it’s relevant that the deceased’s mother died nearly five years after the separation of the plaintiff and Mr Wade. The funds were received more than five years afterwards, and then under an arrangement that I think your Honour well understands, into the account of the defendant at the time after the judicial mediation had taken place. There’s no evidence before your Honour of the relevance of that inheritance. There’s no evidence that Mr Wade deliberately concealed that amount. Your Honour will see in the financial statement itself, that it’s the box that should’ve been filled in for that is in its own section. I think it's described as ‘Financial resources’. It’s not a s 12 asset. It comes after superannuation and various other matters.

Given the ill health of Mr Wade and the circumstances within which Ms Bird was assisting him and trying to get some information to the judge for the mediation, it could be inferred that this was oversight rather than any deliberate act by him. Further, he was not asked by the judge, he was not asked by the plaintiff or the plaintiff’s solicitor at the mediation, any questions about any other financial resources.”

152. Then, he referred to the decision of In the Marriage of Bonnici (1991) 105 FLR 102. In that case, the unanimous Full Court of the Family Court had written about an inheritance, at 108 (albeit in the context of “a recently acquired inheritance”):

“The answer, we consider, must depend upon the circumstances of individual cases. If, for example, in the present case, there had been no other assets than the husband’s inheritance, but the wife had, as his Honour found, clearly carried the main financial burden in the support of a family and also performed a more substantial role as a homemaker and parent than the husband, then it would clearly be open and indeed incumbent upon a court to make a property settlement in her favour from such an inheritance.

A property does not fall into a protected category merely because it is an inheritance. On the other hand, if there are ample funds from which an appropriate property settlement can be made and a just result arrived at, then the fact of a recently acquired inheritance would normally be treated as an entitlement of the party in question.

The other party cannot be regarded as contributing significantly to an inheritance received very late in the relationship and certainly not after it has terminated, except in very unusual circumstances. Such circumstances might include the care of the testator prior to death by the husband or wife as the case may be or other particular services to protect a property. See In Marriage of James [1978] FLC 77,522.”

153. Mr Sharwood submitted that there was no evidence that the Plaintiff had maintained contact with the deceased’s mother after the deceased and she separated. As such, he submitted at par 16:

“The inheritance would not have formed part of the pool of assets to be divided. Of course, the sum was relevant to the financial position of the deceased at the time.”

154. For his part, Mr Sharwood described what was, in his submission, the main obstacle to the Plaintiff’s claim at par 7:

“The hurdle for the plaintiff is the fact that there has been family law property orders made finalising the financial relationship between the plaintiff and the deceased. Once the orders carried into effect there was no longer any relationship between those parties. There was no ongoing maintenance or prospect of it, and there was no dependency. They were emotionally and financially separate.”

155. In his oral submissions, Mr Sharwood emphasised the breakdown of the personal relationship, and the resolution of the financial relationship, between the Plaintiff and the deceased: Tcpt, 20 May 2020, p 167(12–31). He also accepted that it was not only the fact of non-disclosure that would be relevant, but the effect of that non-disclosure.
156. In this regard, I raised with Mr Lakeman, on a number of occasions, the lack of any evidence, from a family law expert, as to the effect of the alleged non-disclosures. He responded to the Court’s concern by submitting that, on his view of the authorities relating to s 79A of the Family Law Act, expert evidence was not ordinarily required: Tcpt, 20 May 2020, p 151(45) – p 152(03).

Legal Principles

157. As stated, there was no dispute that the Plaintiff is an eligible person. It is then necessary to turn to factors which warrant the making of the application.
158. I dealt with the meaning of the phrase “factors which warrant the making of the application” in Page v Page [2016] NSWSC 1218 at [171]–[183]. In broad summary, I noted that in Sassoon v Rose [2013] NSWCA 220 at [15], Meagher JA (Gleeson JA agreeing) had considered that:

“... the relevant principles [are] those stated by McClelland J in Re Fulop Deceased (1987) 8 NSWLR 679 at 681, approved by this Court in Churton v Christian (1988) 13 NSWLR 241 at 252 and applied in cases such as Diver v Neal at [8]. Those ‘factors’ are ones which, when added to the facts which render the applicant an ‘eligible person’ (in Ms Sassoon’s case the fact that she is the former wife of the deceased), give her the status of a person who would generally be regarded, according to community standards and expectations, as a natural object of testamentary recognition”.

159. An appeal from my decision was dismissed by the Court of Appeal in Page v Page (2017) 16 ASTLR 331; [2017] NSWCA 141.
160. It is clear, in my view, that the starting point for applying s 59(1)(b) of the Act is that a former spouse of the deceased is not normally regarded as a natural object of testamentary recognition by the deceased. Thus, in order to satisfy s 59(1)(b) the Plaintiff must establish that there are circumstances that justify regarding her as a natural object of testamentary recognition by the deceased. Yet, care must be taken not to impose any rigid constraints on the circumstances that might constitute factors warranting the making of the application.
161. The Plaintiff, as a former spouse, cannot simply rely on the existence of the past marriage and the fact that she now has unmet financial needs. She must “demonstrate that the deceased had a social, domestic or moral obligation to make testamentary provision” for her, “[s]omething more is ordinarily needed for the claimant to show that he or she was a natural object of testamentary recognition”: Lodin v Lodin at [114], [126] (Sackville AJA, Basten and White JJA agreeing).
162. In Lodin v Lodin, at [127]–[129], Sackville AJA added:

“What more a claimant must show cannot be defined with precision since all the circumstances have to be taken into account. Some cases may be comparatively straightforward. An example commonly given is where the claimant and the deceased, although divorced, had not reached a financial settlement prior to the deceased’s death. Other cases, such as Dijkhuijs, may involve a considerably more difficult evaluative judgment.

One matter of significance is whether the claimant and deceased finalised their financial relationship at the time of the divorce or subsequently, whether by agreement or by means of court orders (as occurred in the present case after contested hearings). As Dijkhuijs shows, a final property settlement is not necessarily an absolute bar to a family provision application being considered on its merits, but in most cases such a settlement, if otherwise unimpeachable, is likely to terminate any obligation on the deceased to make testamentary provision for his or her former spouse.

Another significant matter is likely to be the nature of the relationship between the claimant and the deceased. In particular, it may be very important to determine whether there were (or are) features of that relationship that can be said to create a moral obligation on the deceased to make testamentary provision for the claimant.”

163. The above statements make it clear that there is no particular matter that will be determinative of whether there are factors which warrant the making of a former spouse’s application.
164. When considering the relevance of a property settlement one must, as Sackville AJA did in Lodin v Lodin, consider Kirby P’s cautionary observations in Dijkhuijs v Barclay (1988) 13 NSWLR 639 at 651–652. His Honour wrote in that case (Hope JA agreeing):

“There is no doubt that in most cases, the achievement of a final property settlement in the Family Court would be seen by the parties, in current social circumstances, as terminating any moral claim of a former spouse to provision in the will of the other. Confronted by the news that he or she had been excluded from the will of the former spouse, the response would, in the overwhelming majority of cases, be: ‘Our marriage was dissolved. We settled our financial affairs. We can each start a new life. That was the whole point of the Family Court proceedings.’ To this extent, I agree with what Young J has written in O’Shaughnessy and in this case.

However, that public policy, important though it is, must adapt itself to the new provisions of the Act, with its reforming inclusion of a specific entitlement of a former spouse to claim. That provision contemplates that there will be cases where such a claim will succeed, notwithstanding the public policy referred to by his Honour. As Young J acknowledged, the facts of each relationship are unique. The circumstances which may give rise to a claim for provision will vary in accordance with the circumstances of the case. Where the statute is expressed in such broad terms, there are dangers in attempting to limit the cases which may ‘warrant the making of the application’ under s 9(1) of the Act to preconceived classes or categories. This danger exists even where the categories are described as non-exclusive ‘guidelines’. The ‘public policy’ in finality of financial dealings by property settlements ordered by the Family Court must likewise now be read in conjunction with the competing public policy expressed by Parliament in the Act. This public policy could not be clearer. It is that, in certain circumstances and subject to certain procedures, former spouses may, notwithstanding such Family Court orders, seek orders for provision under the Act. A construction of the Act which impeded the achievement of this competing public policy would impermissibly afford primacy to the policy of finality which must henceforth compete ‘in all the circumstances of the case’ with the claim by an ex-spouse for provision under the Act.”

165. In Johnston v Johnston (1987) 11 NSWLR 38, Hodgson J (as his Honour then was) considered a claim by a former spouse under the former Act. There are a number of similarities between the circumstances of that case and the present. (Although that case was decided prior to Dijkhuijs v Barclay, the factual matters before Hodgson J are startlingly apposite.)
166. In Johnston v Johnston, the plaintiff and the deceased were married in 1968 and separated in 1981. There were no children of the marriage. Between 1982 and 1983, various orders were made under the Family Law Act, including orders that the deceased pay the plaintiff weekly maintenance. Finally, in September 1985, consent orders were entered into dealing with the parties’ property. The deceased had remarried earlier in 1985, shortly prior to his death in April 1986. He died intestate and, in the circumstances, his surviving spouse (the defendant in the proceedings) was entitled to the whole of his estate.
167. On the question whether there were factors warranting the plaintiff’s application, Hodgson J considered, first, that the need of the plaintiff was not, of itself, such a factor. He then turned to the effect of the orders made in the Family Court and the death of the deceased shortly thereafter.
168. His Honour remarked at 43–44:

“To some extent it seems that the plaintiff would seek to put herself within this sort of class. It is suggested that she would not have consented to the orders of the Family Court of September 1985 if she had known that the deceased had only seven months to live and that upon his dying at that early stage the whole of the property allowed to him would pass to his new wife. The plaintiff suggests that in those circumstances the orders can now be seen as having an unreasonable effect and as giving rise to injustice.”

169. The alleged unreasonableness of the orders did not prove persuasive for his Honour. His Honour concluded at 44:

“However, it seems to me that one has to approach the matter on the basis suggested by McLelland J in Re Fulop Deceased: that is, are the circumstances such that the plaintiff can be regarded as a natural object of testamentary recognition; or perhaps to put it another way, can it be said that the plaintiff is a person for whom a wise and just testator in the position of the deceased would consider himself as having some obligation to provide? On the material before me I do not think the plaintiff is in such a position, that is, I do not think it could be said that the deceased had a moral duty to the plaintiff which should have been recognised in his will. I think that in order for the plaintiff to fall within such a category within the fifth class of case referred to by Young J it would be necessary that there be fairly extreme circumstances, as his Honour postulated.

One can accept that if there is a resolution of Family Court proceedings in a case where there is very limited property, where the division of that property causes both parties to be in need and where one of those parties has no competing claim upon him, that party should recognise a continuing obligation to provide for his ex-spouse. However, in something less than an extreme case where the spouse has remarried and also has a child from an earlier marriage, I do not think such a person should be required to balance these present and clear claims against those of his ex-spouse, and in seeking to make such a balance, have regard to the period of time which has passed since the Family Law proceedings.

In short then, accepting all the matters put in evidence on behalf of the plaintiff, it seems to me that this is a case where Family Law Act (Cth) proceedings were resolved in a way that was intended to be final. It seems further that the deceased has remarried and so has claims upon his testamentary bounty. It seems that he has not such a large estate that he should have been required to balance any possible claim or need of his ex-spouse against those of a current wife and his child.

In all those circumstances it seems to me that there are not factors within s 9(1) warranting the making of the application.”

Determination

170. What follows should be read as a continuation of the findings set out above which I shall not repeat.
171. I have earlier noted that the Plaintiff is an eligible person and that she commenced the proceedings for a family provision order within the time prescribed by the Act. I turn, therefore, to whether she has satisfied the Court that there are factors that warrant the making of the application. This determination involves “an evaluative judgment requiring consideration of all the circumstances, taking into account community standards and the expectations of those making testamentary dispositions”: Page v Page (Sackville AJA) at [117].
172. Applying the authorities to which I have referred, and my conclusions on the factual matters relied upon by the Plaintiff, one asks whether there “are circumstances that justify regarding [the Plaintiff] as a natural object of testamentary recognition by [the deceased]” and whether any of those “circumstances ... go beyond the bare fact of ... a previous familial ... relationship” and are “such as to demonstrate a social, domestic or moral obligation on [the deceased] to make some provision for [the Plaintiff]”.
173. The answers to these questions must be reached, in accordance with s 59(1)(b) of the Act, “having regard to all the circumstances of the case (whether past or present)”. Having regard to those circumstances, I was not satisfied that the Plaintiff had established any factors which warrant the making of the application. Amongst other things, she and the deceased had engaged in a deliberate, and systematic, division of their jointly held assets and liabilities, and had agreed, no doubt based upon the legal advice obtained, on a final financial settlement. There was simply insufficient evidence to satisfy me that the financial settlement that was reached was impeachable assuming, as submitted, establishing that was a factor which warranted the making of the application. Their relationship had ended completely before the property settlement and there was no subsequent relationship of any kind. Their conduct after separation clearly demonstrated that their marriage had ended more in anger than sorrow, that each regarded the separation as permanent, which permanence was fortified by the divorce order subsequently made, following which the property settlement was entered into. It is clear that they did not remain on close terms.
174. Once the property adjustment orders were made, each was no longer restrained in dealing with his, or her, assets, respectively, by any obligation to consider the financial position of the other. Nothing more was required by means of a testamentary disposition in favour of the other. Any obligation of either to make any testamentary provision for the other’s maintenance or advancement in life had ended. There was no reason for the deceased to engage his attention, or bounty, thereafter, in relation to the Plaintiff and in my view there was no reason why the Court should take any action either in making any order for provision for her either.
175. Similarly, when one considers the question of factors which warrant the making of the application according to community standards, the same conclusion is reached. Furthermore, the three children of the deceased, the chosen objects of the testamentary beneficence of the deceased, would, generally, be regarded as the natural objects of testamentary recognition by their father to the exclusion of a former spouse with whom he had a property settlement. Each, as a child of the deceased, has a significant competing claim on the bounty of the deceased.
176. It followed that the Court was not able to make an order for provision. It was, therefore, unnecessary for me to make findings about the Plaintiff’s financial resources at the date of the trial. In the circumstances, it is unnecessary to deal with whether the provision made for the Plaintiff in the Will of the deceased is inadequate and whether an order for provision ought to be made for her.
177. The Plaintiff’s proceedings must have been, and were, dismissed.

Costs

178. After I had informed the parties of the result of the case, Mr Sharwood sought costs on behalf of the Defendant. He submitted that the Defendant was entitled to “the higher rate of solicitor-client costs” (by which I take him to mean costs calculated on the indemnity basis) from April 2019. In support of that submission he tendered two letters and read an affidavit of Mr Fitzpatrick, the Plaintiff’s solicitor, sworn 8 February 2019.
179. The first letter, dated 5 April 2019, was sent by Ms Bird on behalf of the Defendant to Mr Fitzpatrick. In it, the Defendant made an offer to resolve the proceedings for $30,000. Mr Sharwood clarified that this offer was made inclusive of costs. Although the offer was purportedly open “for a period of 7 days”, the offer was in fact only left open for five days until 10 April 2019.
180. The Affidavit of Mr Fitzpatrick, sworn 8 February 2019, was a costs affidavit that disclosed that the Plaintiff’s costs and disbursements (at that time) up to and including mediation were $27,000 (inclusive of GST).
181. Mr Sharwood accepted that, in light of the Plaintiff’s estimated costs, at that point in time, the 5 April 2019 offer was, effectively, an offer to pay costs. However, he pointed out, rightly, that a judicial settlement conference did not occur until 8 July 2019: Tcpt, 20 May 2020, p 177(28–35), with the result that there would have been some saving of costs had the matter resolved prior to the judicial settlement conference.
182. The second letter, dated 11 July 2019, also sent by Ms Bird to Mr Fitzpatrick, made an offer “in full and final settlement of this matter and any other claims in any other jurisdictions regarding your client and any of the parties and including the estate” for a sum of $70,000. This offer was left open until 23 August 2019.
183. Mr Lakeman, for his part, tendered four documents compromising two letters which each enclosed a document purporting to be a formal offer of compromise. Naturally, given the outcome of the proceedings, it is not necessary to consider the effect of those offers.
184. The principles governing the exercise of the Court’s discretion as to costs are well known. Section 98(1) of the Civil Procedure Act provides that subject to the rules of Court, and that, or any other, Act, costs are in the discretion of the Court. The subsection gives the Court full power to determine by whom, to whom, and to what extent, costs are to be paid. The discretion is broad but not unconfined. It is a judicial discretion to be exercised on a principled basis.
185. Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 42.1 provides that costs should follow the event, unless it appears to the court that some other order should be made as to the whole, or any part, of the costs. The rule provides that the discretion to award costs will ordinarily require an order that the successful party’s costs will be paid by the unsuccessful party.
186. Relevantly, in the result that occurred in the present case, UCPR r 42.20(1) provides:

“If the court makes an order for the dismissal of proceedings, either generally or in relation to a particular cause of action or in relation to the whole or part of any claim, then, unless the court orders otherwise, the plaintiff must pay the defendant’s costs of the proceedings to the extent to which they have been dismissed.”

187. Rule 42.20(1) should not be misunderstood as creating a presumption. Instead, the sub-rule provides a relevant consideration forming the mere starting point in the exercise of the Court’s discretion: Metro Hotel Sydney Pty Ltd v Kol Tov Pty Ltd [2010] NSWSC 1195 at [7] (Hamilton AJ); Stillianesis v Stillianesis [2017] NSWSC 1189 at [26]–[27] (Darke J).
188. Additionally, and relevantly, UCPR r 42.2 provides that unless the court orders otherwise, or the Rules otherwise provide, costs payable to a person under an order of the court are to be assessed on the ordinary basis.
189. Therefore, unless there is a discretionary decision to depart from the position as provided for in r 42.20, the order will be that the Plaintiff pay the Defendant’s costs of the proceedings on the ordinary basis.
190. Mr Sharwood pressed for the Defendant’s costs calculated on the indemnity basis. He relied on both the tendered offers as Calderbank offers within the meaning of the decision of the English Court of Appeal in Calderbank v Calderbank [1976] Fam 93.
191. I have recently summarised the principles relevant to Calderbank offers in Rakovich v Marszalek [2020] NSWSC 589 at [258]–[267], and referred to those principles again in Smith v Shilkin (No 3) [2020] NSWSC 787 at [74]–[79]. I do not propose to repeat those principles here.
192. Mr Sharwood accepted, correctly, that the onus was on him to demonstrate that it was unreasonable for the Plaintiff not to accept either of the offers. In my view, Mr Sharwood did not discharge this onus. I cannot be satisfied that the rejection of either offer was unreasonable in the circumstances existing at the time the offer was made. It was accepted that, as at July 2019, not all of the evidence on the Defendant’s side was complete.
193. The first offer, as I have observed, was effectively no more than an offer to pay costs. The second offer was extremely broad in application. It purported to settle both the present proceedings and “any other claims in any other jurisdictions”. I am not satisfied that it was unreasonable to reject such a wide term. It follows that the Defendant is not entitled to her costs on an indemnity basis.
194. Mr Lakeman made further submissions that this is a case where the usual order for costs should not be made. His submission was based largely on the financial hardship that would be suffered by the Plaintiff and the “devastating” effect that the usual order would have on her.
195. He referred me to the well-known passage of Gaudron J’s judgment in Singer v Berghouse [1993] HCA 35; (1993) 114 ALR 521 at 522; [1993] HCA 35 at [6]:

“Family provision cases stand apart from cases in which costs follow the event. Leaving aside cases under the Act which, in s 33, makes special provision in that regard, costs in family provision cases generally depend on the overall justice of the case. It is not uncommon, in the case of unsuccessful applications, for no order to be made as to costs, particularly if it would have a detrimental effect on the applicant’s financial position. And there may even be circumstances in which it is appropriate for an unsuccessful party to have his or her costs paid out of the estate.” (citations omitted)

196. As stated above, Mr Lakeman placed heavy reliance on the effect that an order for costs would have on the Plaintiff. It is true, as he submits, that there have been cases where an order other than the usual order has been made on the basis of the financial hardship suffered by the unsuccessful plaintiff: see, for example, Penfold v Predny  [2016] NSWSC 472  at [169].
197. I adopt and apply Beazley P’s remarks in Salmon v Osmond (2015) 14 ASTLR 442 at 473 [174]; [2015] NSWCA 42. Her Honour said in that case (McColl and Gleeson JJA agreeing) at [174]:

“Nonetheless, the ‘overall justice of the case’ referred to by Gaudron J is ‘not

remote from costs following the event’: Jvancich v Kennedy (No 2) [2004] NSWCA 397. The only difference is that family provision cases call for additional ‘liberality and discrimination’ in considering whether to exercise the

discretion to override the usual rule: Chapple v Wilcox [2014] NSWCA 392 at

[138]-[139].”

198. I set out the principles relevant to costs in family provision proceedings in Harkness v Harkness (No 2) at [17]–[18]. More recently, I referred to those principles in Blendell v Byrne; The Estate of Noeline Joan Blendell (No 2) [2019] NSWSC 798 at [72]. I shall not repeat what I wrote in those cases other than to note that at the application to strike out the Plaintiff’s claim, I emphasised that the parties should not think that there was little risk in making a claim, however tenuous, because even if the claim failed she would, very likely, recover her costs out of the estate. Mr Lakeman accepted that this had been done: Tcpt, 20 May 2020, p 178(47) – p 180(07).
199. Applying the principles discussed above, and considering the submissions made by Mr Lakeman, I do not, and did not at the conclusion of hearing, consider that there was any sufficient reason to depart from the usual order as to costs in the present case.
200. This was a case involving a small estate. As stated above, the value of the deceased’s estate out of which an order for provision could have been made (not including the costs of these proceedings) was $460,433. Once the costs of these proceedings were taken into account, that figure fell to $300,121.
201. By now, it should be clear to the legal practitioners who advise parties, that the entry into a conditional costs agreement does not protect the party from an adverse costs order in the event that she or he is unsuccessful in the application. I hasten to add that I do not seek to discourage the use of conditional costs agreements. They enable a party to benefit from legal representation where their financial circumstances might otherwise prevent it. As a result, conditional costs agreements help facilitate access to justice. That benefit however does not abrogate the duty of legal practitioners to adequately explain the true effect of a conditional costs agreement to a party entering into such an agreement. (In saying this, I am not suggesting that such advice was not given in the present case.)
202. I was not satisfied that there is any discretionary decision in this case to depart from the starting point in UCPR r 42.20. As Basten JA (Macfarlan and Gleeson JJA agreeing) noted in Neale v Neale [2015] NSWCA 206 at [36] in respect of family provision claims, “[o]n occasion it may be appropriate to protect the estate from unsuccessful claimants ...”.
203. I was satisfied that this was one of those cases.
204. Lest this outcome be thought to be harsh, I reiterate, as I did in Bruce v Greentree (No 2) [2015] NSWSC 1636 at [43]:

“... that the usual costs rule in an unsuccessful family provision application ‘reflects the policy embodied in s 56 Civil Procedure Act that litigation must be conducted responsibly and should only be commenced by a plaintiff after careful evaluation of the costs consequences likely to attend to failure’: Carey v Robson; Nicolls v Robson (No 2) [2009] NSWSC 1199, per Palmer J, at [20], and that ‘[t]here is a public policy in the usual practice as well as the element of justice reflected in the rule that costs follow the event’: Friend v Brien (No 2) [2014] NSWSC 614, per White J, at [20].”

205. For all of these reasons, having indicated the orders I proposed to make, I ordered that the Plaintiff’s amended Summons be dismissed with costs.

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