DREDGE v TURNER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, MEAGHER and HANDLEY JJA 17 October 1997, 17 October 1997 [1997] NSWCA 96 FAMILY PROVISION — provision for adult daughter — provision of accommodation The appellant was the adult daughter of the deceased. The deceased left a legacy of $20,000 to the appellant and his other children and left the remainder of the estate to his widow. The nett value of the estate was approximately $1,167,000. The appellant, who had been divorced, lived in Brisbane in rented accommodation with her daughter. She earned her own living but had no assets apart from a car and household effects. The Master found that an appropriate house in the area would cost, with expenses, $155,000. The Master awarded her an additional $130,000. The widow had substantial property of her own apart from her interest in the estate. HELD: per Handley JA, Mason P agreeing, Meagher JA dissenting, allowing the appeal: (1) Per Handley JA and Mason P agreeing, the Master fell into error in awarding an amount that would be inadequate to provide a house for the daughter. Proper provision from an estate of this size should enable the daughter to purchase a house without having to borrow and leave her with some capital; (2) Per Meagher JA, no error had been shown in the exercise of the discretion by the Master, as counsel for the applicant had conceded at trial that the sum of the legacy under the will and the amount awarded by the Master was adequate to buy a house for the applicant. Meagher JA This is an appeal by a daughter against the alleged inadequacy of an order made by Master Macready in an application under the Family Provisions Act for an order out of the estate of the late Geoffrey William Turner who died on 9 August 1993, aged 70 years. The applicant was the daughter of Mr Turner. Mr Turner had married twice. His first wife died on 3 November 1967. He then remarried his second wife Mary Horsley Turner. Of the first marriage there were three issues. The applicant, Pamela Annette Dredge, a son Geoffrey Russell Turner and another son Graham Turner. Mrs Dredge is the applicant, Geoffrey Russell Turner, with his mother, are the executors of the estate. The third brother, Graham Turner, predeceased his father. The widow of the deceased, the executrix Mary Horsley Turner is a woman who by any standards is a very rich woman. She made no bones about this in her attitude in litigation and is much to her credit that she did not. Her attitude basically was that the bulk of the estate, which was about $1.2 million, went to her and that together with notional assets and her own private assets was ample to cope with any order which might be made in the applicant's favour. The applicant is now aged or she was aged at the date of the hearing 47 years. She had been married and divorced. She was given, by her father's will, a legacy of $20,000. In her lifetime she had received $6,000 from the estate of brother Graham. She has one daughter, Kristen living with her. She has had a de facto who is now a lodger with her. She had a job which yielded her $335 per week which she has now abandoned and has social services pension of $360 a 2 UNREPORTED JUDGMENTS fortnight. Mr Gardner, her lodger, lives with her and pays $115 a week. Kristen, apparently is in possession of an Austudy allowance though the evidence does not disclose any details of this. She has a motor vehicle which she regards as insufficient. She seems to desire to get more furniture. She has basically expended her legacy of $20,000, largely in pursuit of her hunt for furniture. The Master, as I said, awarded her an additional legacy of $130,000 so that her entitlement, all up under the will of her father, was $150,000. There was a great deal of debate in this Court as to whether the aggregate of 130,000 allowed by the Master and the 20,000 allowed by the will was or was not sufficient to provide her with a house. The house she has at the moment is the house which she leases. I find it difficult to see how the question actually arose because her own counsel in written submissions before us conceded that the sum of $150,000 was adequate to buy a house for her. The evidence certainly supports that. It may or may not be the house in the part of Brisbane in which she wishes to live but the fact is that a house can be purchased for that amount. Nevertheless, she alleges that the aggregate of what the Master gave her and what she got under the will is insufficient. I am unable to see this and I would dismiss her application with costs. It is true enough that she needs more money but it seems to me true only in the sense that everybody else alive needs more money. I do not think it is true that her father has been recreant to his duty as a wise and as a just parent. It seems to me he has fulfilled the duty and it is not the business of this Court to disturb his provisions. Those considerations seem to me to dispose of the principal matters. However, there were two procedural matters which were also raised by counsel for the applicant appellant. The first concerns some evidence by a Queensland psychiatrist. It is alleged that Master Macready should have allowed the appellants to produce this evidence, even at the cost of an adjournment. In my view, the Master's decision, rejecting both the evidence and the application for adjournment, is perfectly correct. To grant or refuse such applications is obviously enough a discretionary judgment and I do not see that any grounds have been advanced before us which would be sufficient to override the exercise of discretion which the Master undertook. In this regard one particularly must note that the applications were last minute applications. Some less than half a day before the case was due to commence. But they would have involved considerable expense to the other side and they change the nature of the case which the applicant had already been making for some time. I see no grounds to challenge the Master's decision in these matters. There is another preliminary ground of appeal. Mr Broun, learned senior counsel for the appellants, has submitted that the Master was incorrect in not permitting a much more extensive cross-examination of the deceased widow and a much more thorough analysis of her assets and liabilities. In my view, there is no foundation for this argument at all. Mrs Turner's attitude was, I have either from my own sources or from the testamentary sources of my late husband, ample money to look after myself and everyone else I need to. I am a rich woman and it does not matter what proper provision is made by the Court I shall be able to meet it. URJ DREDGE v TURNER (Handley JA) 3 If a widow adopts that attitude it puts the Court, in my opinion, in a position where it becomes irrelevant to investigate the widow's means because whatever the needs of the applicant are, they may be considered without regard to any competing claim. The widow, by her attitude, especially disclaims the notion there is a competing claim. For those reasons, it seems to me that the Master was perfectly correct in the attitude he took as to an investigation of the widow's circumstances. For those reasons I am of the view that the appeal should be dismissed with costs. Handley JA This is an appeal by the surviving daughter of the late Geoffrey William Turner, a retired Qantas Airline pilot, who died on 9 August 1993 at the age of 70. The deceased was survived by two children from his first marriage, his second wife and a son by his second marriage. The surviving sons, Geoffrey by the first marriage and Mark by the second marriage, have made no claims against the estate. The widow, who was a substantial beneficiary under the deceased's will, acknowledged that she was in a comfortable position and invited the learned Master to make whatever order was considered appropriate for the benefit of the appellant, treating the widow in that regard as not being in competition with the appellant. The actual estate was valued at some $1,167,000. The deceased left legacies of $20,000 to each of his children and the balance of his estate to his widow. The precise concession made by the widow was that she did not advance her own financial situation for consideration by the Court in evaluating the plaintiffs claim. As the Master said: "Therefore the Court can assume that she is comfortably provided for". This expression is of indefinite meaning but the widow had disclosed that she possessed assets, including her interest in the estate, which were worth more than $1.6 million and the Master's statement must be read in that context. The applicant's financial position is far from secure. She was divorced from her former husband. At the date of trial she lived in rented accommodation, costing $160 a week, with her daughter Kristen and a boarder, Graham Gardner. Until shortly before the trial she was employed as a secretary with a take home wage of $353.40 per week. The total income of herself and her daughter was $502.70 per week, her daughter being in receipt of child support from her father, and Austudy. In addition the appellant was receiving from the boarder, Graham Gardner, contributions of $65 per week towards the rent and $50 per week towards other household expenses. When the appellant's mother died in 1967 she was 17 years of age and in year 11 at high school. Her father, a Qantas pilot, who was frequently away from Australia told her that she would have to leave school to look after the home and her brothers Geoffrey, then 18 and a first year undergraduate in Dentistry at Sydney University and her younger brother, Graham. She did this and became the housekeeper for her father and brothers until she turned 21 when she left home, shortly before her father's second marriage. The appellant has no special qualifications or employment skills, although she has had long periods in employment, particularly since the break up of her marriage. At the date of trial she was nearly 47. She ceased working a few weeks before the trial but there is no reason for concluding that she had become unemployable. There has been no application to lead additional evidence at the hearing of this appeal to prove that she had been unable to work since the trial, although that only took place in April this year. 4 UNREPORTED JUDGMENTS The learned Master in a careful judgment set out the relevant facts, analysed the relevant principles, concluded that the deceased had failed to make the proper provision for the appellant, and made an order that she receive a legacy of $130,000 in addition to the legacy in the will. There was evidence before the Master from the plaintiff, who lived within greater Brisbane, that it would be possible to buy a three or four bedroom property near where she was currently living for between $170,000 to $205,000 but that cheaper houses were available for $129,000 to $140,000. In the latter case, however, the house would be in a poor condition and of some age. The Master realised that the plaintiff may not be able to purchase a suitable house with the additional legacy that he ordered. Her evidence, which was not challenged in this respect, disclosed that she had spent the legacy she received under the will in making essential purchases of household appliances and equipment, repairs to her motor vehicle, various payments to or for the benefit of her children and the like so that at the date of trial she retained only about $1,000 from the legacy. The Master recognised that the plaintiff had only a limited borrowing ability, something less than $50,000. He said that a house which would be suitable and appropriate for purchase by the appellant would cost about $150,000, and recognised that there would be transaction costs which he estimated at $5,000. In view of the plaintiffs evidence about the cost of housing in the vicinity of where she was then living, I do not consider that a cost of $150,000 or thereabouts would be inappropriate. The plaintiff would not be able to purchase such a house out of the legacy that the Master ordered and she had already exhausted all but a small amount of the legacy she received under the will. In my view, and with respect, the learned Master fell into error in thinking that an appropriate order in favour of this applicant was one for $130,000 when on his own findings the cost of what would be no more than a basic house for her, her daughter and the boarder, would cost her some $155,000. Although this error is a modest one, in my judgment it reflects a deeper error in assessing the quantum of the appropriate order in favour of the applicant. In the circumstances of this case, proper provision for the applicant should have been such as enabled her to purchase a modest house without having to borrow on mortgage. I would, in this regard, seek to adapt the language of Kitto J in Stott v Cook (1960) 33 ALJR 447 at 450 where his Honour considered that the testator, if he were wise and just, without necessarily being affectionate, could not have sat down to dispose of his estate: "Without feeling driven - not by sense of fairness for that would be irrelevant - but by a sense of moral obligation to make some provision towards alleviating the applicant's plight". Testing the matter by the same standard I feel driven, not by a sense of fairness, but by a sense of obligation to exercise the Court's powers under the Act to make greater provision for the appellant than that made by the Master. She has a car that is now of some age and under normal circumstances and given adequate resources she would undoubtedly, either have already replaced that car, or be about to do so. She gave evidence that her lounge suite was threadbare. I do not see that a daughter of this man should have to live in rented accommodation, drive an old car and sit on a threadbare lounge suite when he has disposed of an estate of $1.167 million leaving her $20,000 and now by the Master's order $150,000. As has been said applicants in this situation, with claims against an estate of this size, are entitled to something more than bread URJ DREDGE v TURNER (Mason P) 5 and butter. Doing the best I can I would propose an order in favour of the applicant for $230,000 in lieu of the $130,000 ordered by the Master. On the other issues raised by Mr Broun QC, I substantially agree with the reasons and conclusions of Meagher JA. Having regard to the history of these proceedings between 1995 and 1997 I do not think that the Master erred in refusing to allow the tender of an affidavit faxed to the solicitors for the defendant at 4pm on the evening before the Anzac Day long weekend when the trial was due to start on the following Monday. The applicant had sworn a number of affidavits and the last minute affidavit from Dr McCarthy was not in any way foreshadowed by her own evidence. In any event the report of Dr McCarthy indicates that the applicant has been able to get by for years at a time without psychiatric counselling at various times since she first consulted Dr McCarthy in 1983. She has had to live under considerable strain in bringing up three children as a sole parent, following the divorce, with all the responsibilities that that involves and always struggling to make ends meet. I would not infer from Dr McCarthy's report that the applicant's problems were other than substantially those created by the unfair wear and tear of her existence since the break up of her marriage. On the face of the material sought to be provided, the evidence was not of a sufficiently dramatic nature to completely change the character of the case and lead to a result significantly different from that which I have proposed. I would therefore propose that the appeal be allowed. That the Master's order be set aside and in lieu thereof there be substituted an order that additional provision of $230,000 be made in favour of the appellant. That the legacy is not to carry interest if paid within 28 days. The appellant is to have her costs of the trial and of the appeal out of the estate. The respondent is to have her costs out of the estate on an indemnity basis. The respondent if qualified is to have a certificate under the Suitors Fund Act. Mason P I agree with the orders proposed by Justice Handley and with his reasons save in this respect. While I agree that the affidavit of the psychiatrist was properly rejected, having regard to the trial date and the lateness of its service, I am not satisfied that the adjournment ought not to have been granted that was then sought by the appellant. In saying that I have not reached a final view on the matter and it is not necessary for me to do so given that Mr Broun made it plain that the primary relief sought by his client was an increased award as distinct from a new trial. The order of the Court will be therefore as proposed by Justice Handley. (1) Appeal allowed. (2) Set aside the Master's order. (3) Order additional provision in favour of the appellant of $230,000. (4) The legacy is not to carry interest if paid within 28 days. (5) The appellant to have her costs of the trial and of the appeal out of the estate. (6) The respondent is to have her costs out of the estate on an indemnity basis. (7) The respondent, if qualified, is to have a certificate under the Suitors Fund Act. Counsel for the appellant: M Brown QC/E Cohen 6 UNREPORTED JUDGMENTS Solicitors for the appellant: Andrew Cohen Counsel for the respondent: P M Jacobson/P Hallen Solicitors for the respondent: Holman Webb