Salerno v Price [1999] NSWSC 637

New South Wales Supreme Court CITATION : Salerno v Price [1999] NSWSC 637 revised - 31/08/99 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 2961/98 HEARING DATE(S) : 25 June 1999 JUDGMENT DATE : 25 June 1999

PARTIES : Rita Salerno (P) Albert Price (D) JUDGMENT OF : Master McLaughlin

COUNSEL : Mr. R. Maurice (P) Mr. R. Wilson (D) SOLICITORS : Patrick Lim & Associates (P) Daly Bussoletti & Co. (D) CATCHWORDS : ACTS CITED : Family Provision Act 1982 DECISION : See para 25

- 8 - SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION MASTER McLAUGHLIN FRIDAY, 25 JUNE 1999 2961/98 - RITA SALERNO v ALBERT PRICE - ESTATE OF ROBERT PRICE

JUDGMENT

1 MASTER: These are proceedings under the Family Provision Act 1982. By summons filed on 26 June 1998, the plaintiff, Rita Salerno, seeks an order for provision for her living expenses, education and advancement in life out of the estate of her late father, Robert Price (to whom I shall refer as "the deceased"). 2 The deceased died on 17 February 1998, aged 75. He left a Will dated 8 December 1997, probate whereof was on 27 November 1998 granted to Albert Price, the executor named in such Will (who is the defendant to the present proceedings). 3 The plaintiff is the eldest of the three children of the deceased. She was born on 7 February 1953 in Italy and she is presently aged 46. The plaintiff and her parents came to Australia in 1961. Two other children were subsequently born to the deceased and his wife. They were two sons, Frank and Albert. Albert was born on 10 December 1971 and is presently 27 years of age. The deceased separated from his wife in about 1973. Albert, at that time, was a very small child. He remained with his mother. However the deceased had access to him and they saw much of each other. Since about 1993, Albert resided with the deceased. 4 The plaintiff married on 8 March 1975. Of her marriage were born two children: a daughter Bianca, who is presently aged 22, and a son Matthew, who is presently aged 20. The plaintiff separated from her husband Albert Salerno in September 1994. A year later consent orders, by way of property settlement, were made in the Family Court of Australia between the plaintiff and her former husband. At the time of her separation from her husband, the plaintiff went to live with the deceased for a period of about three months, that being in the latter part of 1994. Thereafter the plaintiff, who was at that time residing in Sydney, stayed intermittently with the deceased at his residence in Wollongong. 5 The assets of the estate consist of a house property known as 1A Strathern Avenue, Wollongong. That house property consists of two self-contained dwellings in the form of a duplex. The deceased and the defendant resided together in the upper of those two dwellings. The lower, and apparently much smaller, dwelling, was occasionally rented out by the deceased. The parties have agreed that the present value of the house property is $210,000. 6 Apart from the house property, the other assets in the estate of the deceased consist of money held with the Commonwealth Bank, either in an account or by way of a term deposit, totalling about $30,000, and the contents of the house, various chattels, and several dogs. The defendant has continued to reside in the property at 1A Strathern Avenue since the death of his father. The self-contained lower flat is presently rented out for an amount of $80 a week. 7 I have already observed that consent orders were made in favour of the plaintiff in her proceedings in the Family Court of Australia with her former husband. As a result of those consent orders, the plaintiff received $400,000. With that money she acquired a house property at Blakehurst, in which she resided, and an investment residential unit at Lakemba. At the end of 1998 the plaintiff sold those two properties, and with the proceeds of sale - being $260,000 less expenses in respect to the Blakehurst house; and $106,000 less expenses in respect to the Lakemba unit- she purchased her present residence, which is unit 2/45 Church Street, Wollongong. The purchase price of that residential unit was $245,000. When legal fees, stamp duty and other associated expenses are taken into account, the acquisition of her present residence cost the plaintiff $253,672. Apparently that is a new unit which had not previously been occupied. In addition, the plaintiff owns a motor vehicle which is a 1993 model BMW motor car, to which she has ascribed a value of $24,000. That motor vehicle came to her as a result of the property settlement with her former husband. 8 The plaintiff, whilst married, was essentially a homemaker and mother, working for only a very short period during her married life. However, since her separation from her husband, the plaintiff has been in almost continuous employment. She was formerly working in a kitchen capacity with the Department of Juvenile Justice on a part time basis. She is currently employed as what is described as a casual telemarketer in Wollongong, in which position she receives $11 an hour before tax, and has been working an average of about ten hours a week. She is also in receipt of partial unemployment benefits being in the category of a Newstart allowance from Centrelink. That allowance and the plaintiff's wages total $284.57 a fortnight before tax. 9 The plaintiff has, from the proceeds of sale of her two pieces of real estate in Sydney, retained a balance of an amount in excess of $90,000, which has, however, been reduced to a present figure of $80,000, that amount being invested in a Cash Management Account with the Commonwealth Bank of Australia. The plaintiff redeemed an amount of $4,000 in January 1999, and a further amount of $9,000 in 1999 from the original sum invested. Upon the present investment of $80,000, the plaintiff receives interest which she has estimated to be about $3,200 a year. For the financial year ended 30 June 1998, the plaintiff's taxable income was $37,098. 10 The plaintiff's daughter, Bianca, who is presently aged 22, lives mainly with her father. However, she intermittently stays with the plaintiff, who provides necessities for her. Apparently Bianca is not in employment and suffers from an epileptic condition. 11 It was not disputed that there had been a close and affectionate relationship between the plaintiff and the deceased. There was placed in evidence an earlier Will which the deceased had made only six days before the date of the Will which was admitted to probate. That earlier Will gave a pecuniary legacy to each of the four grandchildren of the deceased. There was a legacy of $5,000 to the two children of Frank. Apparently those children are infants of tender years. There was a legacy of $10,000 each to the plaintiff's two children. In that earlier Will the deceased then gave the residue of his estate equally among his children. 12 In the Will of 8 December 1997, the deceased gave the same legacies to his four grandchildren. He then gave the residue of his estate to his son Albert. Clause 4 of the Will is in the following terms: I declare that it was the wish of my son Frank Price that I give property to his children Natasha Price and Daniel Alexander Price and not to him, personally.