Simon Heggie by his tutor NSW Trustee & Guardian v Naomi Gabrielle Ballardie [2024] NSWSC 550

Supreme Court New South Wales

Medium Neutral Citation: Simon Heggie by his tutor NSW Trustee & Guardian v Naomi Gabrielle Ballardie [2024] NSWSC 550 Hearing dates: 2 May 2024 Date of orders: 2 May 2024 Decision date: 10 May 2024 Jurisdiction: Equity - Duty List Before: Pike J Decision: Application for approval of settlement successful Catchwords: SUCCESSION – family provision – claim by adult child with disability for further provision out of the deceased's estate under Succession Act 2006 (NSW) Ch 3 – successful application for approval of settlement Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Maria Oliveira by her tutor Ivo de Oliveira v John Antonio Oliveira [2023] NSWSC 1130 Stojic v Stojic [2019] NSWSC 23 Texts Cited: Nil Category: Procedural rulings Parties: Simon Heggie by his tutor NSW Trustee & Guardian (Plaintiff) Naomi Gabrielle Ballardie (Defendant) Representation: Solicitors: Zucker Legal (Plaintiff, on the instructions by the NSW Trustee & Guardian) Morrissey Legal & Conveyancing (Defendant) File Number(s): 2024/00129247 Publication restriction: Nil

JUDGMENT 1. The plaintiff, Simon Heggie by his tutor, New South Wales Trustee and Guardian (NSWTG), seeks the following orders: 1 Order pursuant to Civil Procedure Act 2005 s 75 that the Court approves the agreement for the settlement of the Plaintiff's claim against the Defendant in the form of the Deed of Family Arrangement Settlement & Release dated 8 March 2024 and the Supplementary Deed which is Annexure "A" to the Affidavit of Adele Pamela Jarrett sworn on 23 April 2024. 2 Order pursuant to Civil Procedure Act 2005 s 77 (3)(b) for the money recovered pursuant to the settlement to be paid to NSW Trustee and Guardian as manager of the Plaintiff's estate or as it may direct. 1. On 2 May 2024, in the Duty List, having considered the evidence filed in support of the approval, and the helpful submissions provided by Mr Zucker, solicitor for the plaintiff, I made the orders sought in the summons approving the settlement contained in the Deed of Family Arrangement Settlement and Released dated 8 March 2024 and the Supplementary Deed (Settlement). These are my reasons for making those orders. 2. What follows is drawn heavily from the written submissions provided by the solicitor for the plaintiff. 3. In Stojic v Stojic [2019] NSWSC 23, Ward CJ in Eq stated, in the context of an application for approval such as the present: [32] I note that the Court's function on regarding an application for approval of such kind is essentially protective of the incapable person. The Court must scrutinise the terms of settlement or compromise to protect the interests of a person under a legal incapacity. The proper discharge of this function requires the Court to determine whether it is satisfied that the settlement or compromise is beneficial to the interests of the person under the legal incapacity. It has been said that the question of benefit will typically turn on an assessment as to whether there is sufficient prospect of obtaining a more favourable judgment to outweigh the value of the certainty reflected in the settlement as compromised. Ordinarily, the reasonableness of the compromise should be attested to by the incapable person's tutor and supported by counsel's advice. 1. The plaintiff is a person under legal incapacity by operation of the definition of that term in the Civil Procedure Act 2005 (NSW) s 3 definition (d). NSWTG is his tutor. NSWTG manages the financial estate of the plaintiff pursuant to an order made by NCAT on 29 March 2017. 2. The Settlement relates to a proposed claim by the plaintiff on the estate of his father, Bruce Donald Heggie, deceased (the Deceased). The Deceased died on 5 December 2022. He appointed his "spouse" to whom he was not married, the defendant, Naomi Gabrielle Ballardie, as his executor and left his whole estate to her provided she survived him for 30 days, which she has done. Probate of the will was granted on 1 September 2023. The estate of the Deceased, after payment of debts, is about $749,000. 3. Ms Ballardie is now 63 years of age and is a pensioner receiving a disability pension. She and the Deceased lived in a de-facto relationship from early 2010 until his death in December 2022. They were mutually dependent in personal terms, but Ms Ballardie was fully dependent upon the Deceased for financial support. She has no savings and a credit card debt of about $12,500. Her only asset is a half share in property at Burrill Lake, which is to be sold to pay debts and the legacies that have been agreed in the Settlement. Ms Ballardie is in poor health. 4. The Deceased had three sons of a previous marriage, including the plaintiff, and Ms Ballardie has a 22-year-old son named Gabriel, who likely qualifies as an eligible person in the estate of the Deceased, by reason of having lived in his household and having been dependent upon him. 5. The structure of the Settlement, approval of which is sought, is for Ms Ballardie to receive unencumbered ownership of the home owned by the Deceased in Ulladulla where she and the Deceased lived together. In order to receive such ownership, she will sell the property at Burrill Lake, that is owned by her as to one half share and as to the other half share, which was owned by the Deceased and to which she is entitled to pursuant to his will. There is a contract for the sale of the property for $750,000 and, now that the Settlement has been approved, the sale will be completed on 10 May 2024. The proceeds of sale will be used to pay all of the debts of the Deceased, including the secured debt on the Ulladulla property, leaving a balance of about $314,000. Of that amount, one third or $101,300, whichever is the greater, will be paid to the plaintiff with the balance being shared between his two brothers. 6. The plaintiff was born in February 1976 and is now 48 years of age. He is single. He suffers mental illness in the form of schizophrenia which results in impaired insight, delusional beliefs and chronic paranoia. He requires assistance in most areas of his life. 7. The plaintiff has a sum of money in his NSWTG trust account and at the Commonwealth Bank. He receives a Centrelink Disability pension of about $1,392 per fortnight, inclusive of rent, which is paid by Centrelink directly to Southern Cross Housing. The balance of his income, apart from rent, is used for gas and electricity, groceries, cash allowance and other discretionary expenses as well as NSWTG management fees. Due to the extent of his disabilities, the plaintiff receives benefits pursuant to the National Disability Insurance Scheme (NDIS). 8. By far the biggest risk faced by the plaintiff in financial terms is the loss of the NDIS benefits. It is difficult to predict whether the NDIS benefits will continue. I proceed on the basis, supported by what was said by the solicitor for the plaintiff in his written submissions, that given the plaintiff's disabilities and illness, it is likely that the support will continue. 9. The provision for the plaintiff by reason of the Settlement is likely, after costs and other outgoings are taken out, to be not less than $91,750. This is a buffer for the plaintiff which can be used as and when necessary for support that is not covered by the NDIS scheme. 10. Turning to the plaintiff's prospects in any proceedings for further provision from the Deceased's estate, the plaintiff presently has no needs over and above his disability pension and NDIS benefits. Any claim for further provision in any such provisions could fairly be described as a contingency, the nature of which was discussed in Maria Oliveira by her tutor Ivo de Oliveira v John Antonio Oliveira [2023] NSWSC 1130, where Kunc J at [8] accepted that such a contingency was not uncommon in matters such as the present, being for "an event which may be described as part of the ups and downs or vicissitudes of life, which is not specifically predicable but acknowledged as likely to occur at some time in the lives of most individuals". 11. More importantly, at [12], his Honour noted: [12] There must be a demonstrable basis both as a matter of reason and evidence for making an allowance for contingencies. In my respectful view, in most cases that is provided by an inference that the Court draws by accepting as not reasonably open to question and common knowledge (see Evidence Act 1995 (NSW), s 144) that the unexpected does happen in the course of life which may require expenditure. Putting it colloquially, it is analogous to "rainy day" savings that a prudent person tries to maintain if they can. So understood, this also explains why, in the absence of specific potentialities being established by proper evidence, such allowances are generally not large and rarely in six figures (although the size of the available estate will always be a matter to be taken into account in making any such award). 1. Having regard to the circumstances of Ms Ballardie, including her needs and her relationship with the Deceased, and also the circumstances of the plaintiff and his needs, there is a significant prospect that any claim by the plaintiff for further provision from the estate of the Deceased may have failed completely. Ms Ballardie had a long and strong relationship with the Deceased in which there was extensive interdependence as demonstrated by his will. 2. Any claim for further provision by the plaintiff would, if successful, likely impact the entitlement of his brothers and would also potentially trigger a claim by Gabriel. Multi-party litigation of this kind would have led to very substantial costs which may well be borne by parties other than Ms Ballardie, resulting in a considerably worse outcome than what would be achieved by the Settlement. 3. Whilst any claim by Gabriel would now be out of time, there is at least the prospect that if the Settlement was not approved and further litigation by the plaintiff was necessary, any application by Gabriel could affect the entitlement of the plaintiff. At present, the risk of a late, successful application by Gabriel falls on his mother as the residuary beneficiary of the estate. 4. NSWTG has been advised, and accepts, that the proposed Settlement is reasonable having regard to the size of the estate, the circumstances of Ms Ballardie, the intentions of the Deceased, the length of their relationship and the support being provided by Government agencies for the plaintiff. 5. NSWTG, as the plaintiff's financial manager and tutor, supports the proposed Settlement and the application for approval of it. 6. The plaintiff has informed NSWTG that it was his wish to accept the offer of approximately $104,000. His reasoning appeared to be that he did not wish to disadvantage his brothers and that his father had worked hard to assemble his estate which should be for the benefit of Ms Ballardie. 7. Having regard to the facts set out above, I was comfortably satisfied that the Settlement is beneficial to the interests of the plaintiff and should thus be approved. 8. In light of the relevant circumstances, the Settlement reflects a very good outcome measured against the range of outcomes possible if proceedings were commenced and run to finality.