New South Wales Court of Appeal CITATION : Barnaby v Berry [2001] NSWCA 454 FILE NUMBER(S) : CA 40292/01 HEARING DATE(S) : 21/11/01 JUDGMENT DATE : 21 November 2001 PARTIES : Hilda Barnaby (Appellant) Graham Leonard Berry and Arnold Beauchamp (Respondents) JUDGMENT OF : Mason P at 23, 31; Young CJ in Eq at 1-22; Ipp AJA at 24 LOWER COURT JURISDICTION : District Court LOWER COURT 9326/00 FILE NUMBER(S) : LOWER COURT Gibb DCJ JUDICIAL OFFICER : COUNSEL : C M Simpson (A) R W Cameron (R) SOLICITORS : Djekovic Hearne & Walker (A) Graham L Berry (R) CATCHWORDS : Succession- Family Provision- Adult daughter aged 73- Destitute- Estate $690,000 represented by family home in which only other child a son had lived with testatrix for 60 years- Trial judge dismissed claim- Appeal allowed- In addition to legacy of $10,000 and personal effects appellant given legacy of $135,000. (D) LEGISLATION CITED : Family Provision Act 1982 DECISION : Appeal allowed. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40292/01 DC 9326/00 MASON P YOUNG CJ in EQ IPP AJA Wednesday 21 November 2001 BARNABY v BERRY Judgment 1 YOUNG CJ in EQ: This is an appeal from the District Court which was hearing an application by an adult daughter for provision under the Family Provision Act 1982. 2 The testatrix died at a ripe old age, over one hundred, on 19 August 2000. She left a will and a codicil by which she appointed her solicitor and her son, who are the respondents to this appeal and the defendants to the proceedings, as her executors. She gave her granddaughter some legacies, she gave the plaintiff appellant a legacy of $10,000 and certain personal effects and jewellery and gave the balance of her property to her son, the second defendant. 3 She left a little note for the plaintiff with the personal effects which is set out at p 150 of the Grey Appeal Book which simply said "Hilda good luck, Mum". 4 The present application was made on 20 November 2000 and came on for hearing in the District Court on 2 and 3 April 2001 and the learned judge gave a judgment which presumably she considered overnight on the next day, 4 April 2001. She essentially dismissed the appellant's claim and made no order as to costs. How she reached this result I will have to consider in a little more detail shortly. 5 The estate consisted of about $690,000, the principal asset being real estate at 32 Ingham Avenue, Five Dock which was valued at $675,000. That was property in which the testatrix and her son had lived for very many years. 6 The parties do not seem to have kept to the rules which required the judge to be informed as to the net position of the estate and the costs that would need to be deducted, but at the date of trial it was thought from what appears in the appeal papers that if the estate was to bear the cost of both sides, the net estate was about $640,000. 7 The plaintiff suggested to the judge that she should have received one third of the estate or approximately $200,000. This claim was bitterly opposed. The defendant son made it clear that he had cared for his mother for a long period of time, that he was not a rich man, though there was very little evidence other than that which was elicited in cross-examination to show his real position. He made it clear that he was comfortable living in the home which, if any substantial provision was made for the appellant, he would have to vacate. 8 However, there is also a feeling in the evidence such as at the foot of p 46 of the Grey Book that he realised the inevitability of having to get out of the home in any event. This would seem to be realistic because the costs would, unless there were some other source of financing them, in themselves mean that the home would have to be sold and the evidence does not suggest there is any alternative source of finance. 9 The plaintiff appellant is aged seventy two, and (I am taking these facts from her Honour's judgment) she lives in Perth in rented accommodation and her assets are about $713 in total. She receives a pension of $231.82 per week and her outgoings are $230 per week. The rental accommodation requires $80 per week of her income. 10 The judge said that the appellant was in failing health, she assists herself walking with the use of crutches, she has a bad back for which she understands there is no treatment. She lives alone owning few possessions. Her circumstances might be described as exiguous and to the point of being parlous. 11 Her Honour, however, then said at p 7 of the Red Appeal Book that: "Ms Barnaby describes herself as being desperate. But she has no debts or liabilities." 12 This seems to give the impression that her Honour seemed to think that a person with no debts or liabilities was not desperate. Of course such a person often has few debts simply because no-one will offer credit. However, on the following page her Honour said that: "As she says for every penny in a penny goes. She describes herself as desperate as indeed the parlous state of her finance demonstrates." 13 One would wonder having made those findings about the plaintiff and having accepted the plaintiff's evidence that she did not have sufficient funds to purchase better quality fruit and vegetables, could not afford anything more than the most inexpensive of meat items, defers purchases of clothing whenever she could and even has to get her underwear on lay-by, how, with an estate of almost $700,000, her Honour could possibly have dismissed the claim. 14 However, she said at p 9 of the judgment: "I have no jurisdiction to make an order unless I am satisfied that (the testator's) provision for (the appellant)... is now inadequate for Ms Barnaby's proper maintenance, education and advancement in life. Ms Barnaby's needs include that she have sufficient funds to enable her to meet any unforseen circumstances and contingencies." 15 Her Honour then says that the appellant had received cash and goods valued at about $16,000 (she was in fact in error in this, they could not been worth more than $11,000) and then continued: "I am not satisfied that the late Ms Hilda Beauchamps' provision for Ms Barnaby either during her mother's lifetime or out of her estate is now inadequate for Ms Barnaby's proper maintenance, education and advancement in life including the need that she have sufficient funds to enable her to meet any unforseen circumstances and contingencies." 16 There has been some discussion before us as to whether this was a discretionary judgment and whether there was need to look at the principles laid down in House v The King and what is really meant by the word jurisdiction in this particular statute. However, with great respect to her Honour merely to read what she said on p 9 of her judgment in the light of the findings in fact show that the result which she has reached is unjust and there must be hidden errors, if not, with respect, many obvious errors in her Honour's reasons. One of these is the apparent assumption that in the year 2001 a lady in ill health with no assets is adequately provided for by a lump sum of $10,000. 17 The obligation of a testator in our community is to make proper provision for her children. This particular testatrix was not on bad terms with her daughter, as the note to which I have referred reveals, and there is also some suggestion in the evidence, which her Honour accepted, that the testatrix was under the impression that her daughter was provided for to some extent by a religious organisation with which she had been involved for some years. 18 It was said that the daughter did not visit her mother often and there was evidence that there was little direct contact for some years, but that is at least partially explicable by the fact that the daughter was living well away from the mother. It is certainly true that the son was far closer to his mother than the daughter was. Notwithstanding that, when there is an emotional bond between mother and daughter and the daughter is in the desperate situation as her Honour seemed to find the community would expect that the mother should make provision for her daughter. 19 So far as the son is concerned this would mean that he would have to vacate the house and move into less affluent accommodation but this is probably inevitable in any event. Furthermore, the case was strange in that very little evidence was presented by the son as to what his requirements in life really were. I should say also so far as the plaintiff is concerned, that the evidence was a bit sketchy. This is more significant in the District Court than before the Masters in Equity who probably deal with so many of these cases that instinctively by questioning in the case fill in the missing details. However, this case was let go to judgment with sketchy evidence from the plaintiff and virtually none from the son and her Honour was put in an awkward position. Notwithstanding this, the facts and circumstances which did appear cried out for an order to be made in favour of the plaintiff. 20 I should note that, particularly in the District Court where the judges are less familiar with the practice governing these applications, counsel must be vigilant to ensure that not only are the procedural rules strictly followed, but also that the judge is given all possible assistance in his or her task. This includes ensuring that there is proper evidence of the needs and financial position of all parties if that is a relevant factor in the case. 21 Her Honour having fallen into error, it is appropriate for this Court to consider the evidence and to work out what is the appropriate order. In my view, the proper provision is that in addition to the provision made for her by the will, the appellant should receive a legacy of $135,000. I base that on the probable cost of an apartment in a retirement village in the Perth suburbs of $75,000, furniture of $15,000, an allowance for medical expenses of $10,000 and $35,000 to meet any unforseen circumstances and contingencies. 22 Accordingly, in my view the appeal should be allowed, the judgment of her Honour set aside and in lieu that provision should be made. 23 MASON P: I agree. 24 IPP AJA: I agree. 25 SIMPSON: Would your Honour make the usual order for costs in relation to this, that is that the plaintiff's costs come from the estate and the defendant's on an indemnity basis be paid from the estate. 26 MASON P: Yes. 27 SIMPSON: And I think the defendant would be entitled to a certificate in relation to that. 28 MASON P: And as regards the costs order below, in one sense it doesn't really matter does it whether those costs are paid out of the estate, it's probably simpler to order that all costs here and below be paid out of the estate. 29 SIMPSON: Yes your Honour. 30 CAMERON: Yes. 31 MASON P: The appeal is upheld, the judgment and orders made in the District Court are set aside. In lieu thereof, the appellant is to receive an additional benefit out of the estate of $135,000, such additional legacy not to bear interest if the sum is paid by the end of 2001, otherwise interest in accordance with the rules. The costs at first instance and of the appeal are to be paid out of the estate and if the respondents are so qualified there is to be an order under the Suitors' Fund Act. Those are the orders of the Court. ************** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.