BAKER v OSSWALD [1997] NSWCA 38

BAKER v OSSWALD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, MEAGHER and HANDLEY JJA 14 October 1997, 14 October 1997

[1997] NSWCA 38 Family Provision Act — Master's exercise of discretion

Mason P This appeal from the order of Master McLaughlin involves the estate of the late Werner Osswald, who died on 3 March 1994. In a will made in January of that year the whole estate was left to the deceased's son, Karl Osswald. The son was the child of an earlier marriage of the deceased.

The Master made an order in favour of the respondent that she receive a legacy of $80,000 out of the estate. The respondent was the deceased's widow. She was thirty-nine years of age at the date of the hearing. She had been born in the Philippines, met the deceased in 1983, there was some contact between her and the deceased between the period 1983 to 1986, and she came to Australia as his fiancee. They married on | August 1986. At that time the respondent was twenty-nine and the deceased fifty-one years of age. The respondent had not previously been married but she had a son by a previous relationship, who was fifteen at the time of the hearing.

The deceased had divorced his first wife in 1968. There was a daughter of that marriage, who resides in Germany, but the sole beneficiary was his son Karl. The size of the distributable estate was approximately $100,000.

The-appellant's first challenge to the award was that it was affected by material errors of fact. Two errors were suggested. Firstly, that the Master had wrongly considered the nett value of the estate to be $142,404 and, secondly, that the Master had failed to have regard to the costs of the proceedings and their impact upon the size of the distributable estate.

Iam not persuaded that the judgment is vitiated by either suggested error. The Master recorded early in his judgment that the completion of a sale of certain property at Goulburn belonging to the deceased realised nett proceeds of $142,404. That was a perfectly correct statement. Nowhere else in the judgment is there an analysis of the size of the estate, but there is no reason to infer that the Master overlooked the evidence which had been given without challenge in the executrix's affidavit to the effect that there were some deductions totalling approximately $14,000 of the nett sale proceeds before the costs of the proceedings were to be taken into account. It is also in my mind inconceivable that the Master would have overlooked the fact that costs would come out of the estate. After all, he awarded those costs and awarded them out of the estate.