HERLIHY v LEITCH SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, MEAGHER and HANDLEY JJA 17 October 1997, 17 October 1997 [1997] NSWCA 148 Family Provision Act — claim between sisters — no error of fact or law Mason P The late Arthur Harry Bridgewater died in 1992 aged 82 years. He was survived by three children, the appellant Mrs Herlihy now aged 67, the first respondent Mrs Leitch now aged 65 and the second respondent Mr Robin Bridgewater now aged 59. Mr Bridgewater has taken no part in the proceedings. In a will made in 1972 the deceased left a home at 27 View Street Woollahra to his daughter Mrs Leitch. He divided the residue of his estate into three parts, one third to Mrs Herlihy, one third to his son and one third to such of the grandchildren as survived and attained the age of 21. However, the estate effectively consisted of the home and nothing else. The deceased and his late wife had lived in the Woollahra home since 1934 having purchased it in 1958 then for the price of $4,000. The evidence was that the appellant contributed 200 pounds towards the payment of the deposit of $4000. At various stages in their life Mrs Herlihy and Mrs Leitch lived with their parents at the Woollahra home. Apart from the time of their youth there were periods when Mrs Herlihy returned and lived at the home following the separation from her husband. However since 1970 she has lived elsewhere with a Mr Wood. Her current accommodation situation is that she and Mr Wood share a rented villa at Auburn. In her words in evidence "we care for each other, he is my carer". It is obviously a stable situation whereby each assists the other in both companionship and, to the extent that their means permit financially. Mrs Herlihy's situation as I have said is that she is now 67, she is an aged pensioner with an income of $170 per week. Mr Wood is in receipt of worker's compensation of $213 per week. The combined income of that family appears to be spent practically entirely upon living expenses including the expenses of a car, a dog and other matters. Mrs Herlihy has approximately five and half thousand dollars in a cheque account. There is some evidence as to Mr Wood's assets though it is probably not appropriate that his too much weight be placed upon his own capital situation. As regards Mrs Leitch and her current financial situation, she too is on an aged pension of $163 per week practically all of which is spent on day to day living expenses, as one might expect. She does not have a telephone, or private medical insurance, or keep any pets and she lives on her own in the home at Woollahra. She does not appear to have a car. The Master dismissed the appellant's claim under the Family Provision Act. As well as noting the respective financial position of the two sisters which I have briefly recounted he also recorded that each of them was in an indifferent health situation. There would not appear to be much to choose between each of them as regards their current health situation; 2 UNREPORTED JUDGMENTS The claim of the appellant was dismissed on the basis that the Master was not satisfied that the appellant had established her entitlement. He rejected, correctly in my view, the argument which was perhaps implicit in the way the case was presented below that equal division of the estate assets was the proper approach to adopt. Rather, he noted that it was for the plaintiff who was seeking the order to establish need and to establish a case that it was proper in the opinion of the Court having regard to the circumstances at the time the order was made to provide for the maintenance of the appellant. The Master noted that the appellant had not presented evidence of inability adequately to maintain herself on her present income and present outgoings. Exiguous though each were, I do not see an error in that finding. He also held that the appellant had not demonstrated any problem concerning her present accommodation, the details of which had not been placed before the Court. It would appear that the main thrust of the appellant's claim below was that provision out of the estate of one half of the estate would have enabled her to have acquired a residence of her own. Such a submission was maintained here, although an alternative approach was offered to the Court, namely that proper maintenance in favour of the appellant would have regard to the need to keep the wolf from the door and perhaps to put a little more than bread and butter on the table of the appellant to use two of the metaphors that are found in the cases. Critical to the Master's reasoning as I read it was that the order sought by the appellant would necessarily have forced the sale of the property which had been Mrs Leitch's home since 1979. It had been more than just her home. She had, on the evidence, expended considerable sums of money from her own savings, small though they were, in the maintenance and upkeep of that home. She had also (as the appellant herself very fairly acknowledged) assumed the primary role of the carer for their ageing father whose own wife had died in 1970 and who became increasingly in need of day to day care including nursing care. It was submitted that the Master's Judgment is vitiated because he had not recognised that proper maintenance for a person in the plaintiff's position involved more than a sum that would provide for a hand to mouth living existence or something of that nature. I do not read the Judgment as disclosing such an error in the reasoning process. The Master has at times used the statutory language but he has clearly been aware of the facts which have been recounted. At the end of the day the appellant's case boils down to one in which further provision from the estate would undoubtedly be a comfort to her and a case in which she contends that the deceased has not made proper provision which reflects the contribution she has made, particularly the assistance with the deposit at an earlier stage in her life. The Master was aware of these factors and recorded them. He was also entitled properly to take into account the consequence of a substantial order in favour of the appellant which would have forced the sale of the property. That property had been the home of the respondent Mrs Leitch for many years, and there was no evidence that suggested that she was on the verge of leaving it. She is a lady aged 65 and I do not think the Court should infer or assume that she is about to be forced out of it or to choose to leave it. In my view the appellant has failed in assigning any factual error or attacking the way in which the Master addressed the competing claims of the two sisters or the way in which he determined, having regard to all of the factors, that the appellant had not made out a positive case which was hers to make out. I would dismiss the appeal with costs. URJ HERLIHY v LEITCH (Mason P) 3 Meagher JA I agree. Mason P If I could just inquire of the parties, the chronology showed the purchase price of Woollahra at $24,000, p13 shows different figures. BROUN: It's another typo in our documents which I should have drawn to your Honour's attention. It was 4,000 pounds, the deposit of 400 pounds. HANDLEY JA: The two has become a dollar sign has it? BROUN: Yes, the pound sign has got turned into a 2. It was 4,000 pounds was the purchase price. MASON P: A deposit of 400 half paid by the plaintiff. BROUN: That's so. MASON P: In the corrected version of the judgment I will change those figures so that the purchase price will be 4,000 pounds, the deposit of 400 and the plaintiff's contribution 200. 15 Handley J I also agree. Mason P The order of the Court will be as proposed. Appeal dismissed with costs. 20 Counsel for the appellant: M D Broun QC, R F Driver Solicitors for the appellant: C G Taylor & Son Counsel for the respondent: J A Needham, V Stefano Solicitors for the respondent: White Barnes