WHITE v MERCER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, MEAGHER and HANDLEY JJA 13 October 1997, 13 October 1997 [1997] NSWCA 340 Family Provision Act — error by Master in fact — circumstance in which Court ought intervene. FACTS The appellant failed on her application before Master McLaughlin under the Family Provision Act because he found that she had knowingly and voluntarily severed her relationship with the deceased, her father. HELD 1. The finding of the Master was wrong in fact and is a circumstance in which the Court should intervene. Meagher JA This is an appeal by a plaintiff who was unsuccessful in making an application under the Family Provision Act 1982 before Master McLaughlin. She was a daughter and the only daughter of the deceased. Her only sibling was her brother, the present respondent. The deceased was the father of the appellant and the respondent and he gave the whole of his estate to the respondent. The principal reason why the Master dismissed the plaintiff's application was he came to the conclusion that she had voluntarily and knowingly severed her relationship with him. The assets of the estate consisted principally of a house at Galston which, before the Master, had a value of $220,000, together with various other sums of money and articles of furniture and the like worth $78,000, bringing total assets up to $330,000. The plaintiff, his daughter, earned $373 per week. She paid rent of $100 a week. There was no indication that she had any other assets nor that she had any debts to speak of. The defendant respondent, her brother, earns $1,400 a month after tax. He has a mortgage over the property in which he lives at Galston. He lives with a defacto wife and they have four children between them. The family history is of a somewhat unfortunate kind. The plaintiff left school in 1987. A year later, in November 1988, she left home at about the age of 18. Her parents seemed to separate in April 1989, although their divorce was not finalised until at least November 1991. The plaintiff did a variety of jobs and at one stage she was living in Westmead. On about 10 August 1991, while she was at Westmead, she was looking after a lounge suite which belonged to her brother. Her brother sought to recover the lounge suite which she was not minded to do and this led to her brother and her father, the deceased, coming to Westmead where the father, on her version of the evidence which seems to be correct, held her while her brother gave her a hiding. It is not surprising in these circumstances, although the matter was not referred to in this context by the Master, that only a month later, in September 1991, she gave her father an abusive telephone call on Father's Day. Nor does it seem to me entirely surprising that a month after that, on 21 October 1991, she changed her name. 2 UNREPORTED JUDGMENTS In her father's Will appear the following words: "4. I note that I have not left anything in this Will to my former wife FAY THELMA WHITE and SHARYN GEORGINA MERCER (aka WHITE). The reason for their omission is I have provided amply for their financial benefit during my lifetime." As far as the plaintiff is concerned this is somewhat of an overstatement. No-one was able to point to any gift of any substance that he had ever made to the plaintiff appellant in the whole of their joint lives. What he had done on several occasions was lend her money so that at one stage the aggregate of the moneys lent by him was $3,400 in respect of which he sued and recovered judgment. In addition he indemnified a credit union against a loan of, I think $12,000-odd which enabled her to purchase a motor car. She became in default in respect of her obligations to the credit union and he paid the credit union out. That involved the payment by him of a sum of slightly in excess of $8,000. As against this he sold the motor car which he had purchased with the credit union funds and the proceeds of sale whatever they were do not seem to be brought into the equation. That is the totality of the financial dealings between the deceased and the appellant as far as the evidence disclosed. In the light of those facts I think it difficult to understand how the Master came to the conclusion he did. What the Master said was: "\.the plaintiff chose to terminate in its entirety any relationship between herself and the deceased and that termination was as a result of a conscious and deliberate decision by the plaintiff and was against the wishes of the deceased..." That seems to me an inaccurate way of putting the evidence. The impression one gathers from the Master's decision is that virtually by the time the deceased set out to make his Will there was no connection between the deceased and his daughter other than the bare fact of paternity. This to my mind is quite inaccurate. There was from some time before the plaintiff left school a measure of hatred between her and her father and what can charitably be described as a rift. One does not know precisely what the details of these matters are, though it seemed that her father, who was a trifle old-fashioned by today's standards, regarded her morals as somewhat loose. The enmity that existed at that level was aggravated by the fact that her father had a bitter divorce with his wife proceeded by a fairly stormy matrimonial fight. In that dispute the plaintiff took her mother's side but there is no evidence before us from which we can deduce that she was in any way in dereliction of her duty to her father in so doing. After the Westmead incident to which I have referred the enmity between the parties was considerably increased. But it does not seem to me that at any stage one can say on the facts that there was a complete severance of relationship. Indeed, after the plaintiff left home there was a certain amount of traffic between father and daughter, each visiting the other on occasions in a manner which would be entirely inconsistent with a total separation of relationship. Although this Court recognises the great importance which has to be placed on the findings of a Judge or Master at first instance and further recognises the very limited circumstances in which a discretionary order can be set aside, in my view, because of the wrongful conclusion of fact which the Master reached on the evidence before him, this Court ought intervene. I propose the following orders be made: 1. That the appeal be allowed. 2. The orders below be set aside. URJ WHITE v MERCER (Mason P) 3 3. That in lieu of those orders the appellant ought receive (a) the sum of $40,000 and (b) forgiveness of the two debts set out in subpara(g) and subpara(h) of the para2 of p40 in the appeal book. 4. That the costs of the appellant both below and in this Court be paid out of the estate and that as a matter of course the respondent's costs in both Courts be paid out of the estate on an indemnity basis. 5. Liberty to apply to the Equity Division. Mason P IJ agree. Handley JA I also agree. Mason P The orders of the Court are as proposed by Meagher JA. Interest on the $40,000 legacy is not to run for 28 days. 1. Appeal allowed. 2. The orders below be set aside. 3. That in lieu of those orders the appellant ought receive (a) the sum of $40,000 and (b) forgiveness of the two debts set out in subpara(g) and subpara(h) of para2 of p40 in the appeal book. Interest not to run on the $40,000 for 28 days. 4. That the costs of the appellant both below and in this Court be paid out of the estate and that as a matter of course the respondent's costs in both Courts be paid out of the estate on an indemnity basis. 5. Liberty to apply to the Equity Division. Counsel for the appellant: J A Trebeck Solicitors for the appellant: Brydens Law Office Counsel for the respondent: J DuPree Solicitors for the respondent: McCabe Brown