Forrest v Forrest [2002] NSWSC 46

New South Wales Supreme Court

CITATION : Forrest v Forrest [2002] NSWSC 46 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 03018/01 HEARING DATE(S) : 4th February 2002 JUDGMENT DATE : 13 February 2002

PARTIES : James Armstrong Forrest Ian Nimmo Forrest JUDGMENT OF : Gzell J at 1

COUNSEL : Ms E Glover for the Plaintiff Mr A M Gruzman for the Defendant SOLICITORS : CATCHWORDS : Family provision - application by adult male - no adverse inference from lack of corroboration - application dismissed LEGISLATION CITED : Family Provision Act 1982 Singer v Berghouse (1994) 181 CLR 201 Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 CASES CITED : Re Fulop Deceased (1987) 8 NSWLR 679 Kristl v Wallington NSWCA, 29 August 1995, unreported Shearer v The Public Trustee [1998] NSWSC 87 Commercial Union Assurance Co of Australia Ltd v Furrcom Pty Ltd (1991) 22 NSWLR 389 DECISION : Application dismissed

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

03018/01

GZELL J

13 February 2002 James Armstrong FORREST v Ian Nimmo FORREST – Estate of Margaret Aileen FORREST

Judgment 1 His Honour: This is an application under section 7 of the Family Provision Act 1982 ('Act') brought by an adult son of the late Margaret Aileen Forrest ('deceased') who died on 20 August 2000. By her will dated 2 May 1997 she appointed her adult son, the defendant, executor and devised and bequeathed her entire estate to him. At the time the application came before me the estate consisted of a house at Heathcote, Sydney ('Heathcote house') in which the defendant resides which has an agreed value of $400,000.00, and cash deposits of approximately $15, 500.00. The estate owes the defendant $12,357.94 for expenses incurred by him on its behalf. 2 The plaintiff was born on 23 March 1929. He was 16 when his father died. The deceased did not remarry. The plaintiff was the eldest of three children: himself, the defendant who was born on 17 December 1933 and Louise Margaret Carruthers aged about 55 at the time of hearing. 3 The plaintiff was at boarding school when his father died. The evidence of the defendant that the plaintiff had been expelled from a school at Kogarah, Sydney and was sent to boarding school as a result, was not challenged by the plaintiff. Nor was the evidence of the defendant that the plaintiff left boarding school soon after his return there following his father's death and that he stole and sold books and ornaments from the Heathcote house which upset the deceased. 4 When he was about 16 or 17 the plaintiff left home, went to Queensland, then joined the navy, then ran away and returned to the Heathcote house. Arrangements were made with the navy by the plaintiff's grandmother who organised that he take up a teacher traineeship under guarantee which the grandmother was forced to pay out when the plaintiff failed to complete the course. 5 The defendant's evidence that the plaintiff again returned to the Heathcote house for a short time but then left, taking the deceased's savings of a few hundred dollars was not challenged. The plaintiff spent the next four to five years cane-cutting in Queensland. The defendant said that the deceased had no word from the plaintiff during this period. This assertion was not challenged except by a general statement that the plaintiff spoke regularly to the deceased during her lifetime both in person and by telephone. The plaintiff's evidence of background events commenced at a later time when he had established a successful poster business in New Zealand. I accept the evidence of the defendant that the deceased received no communication from the plaintiff while he was cane-cutting in Queensland. 6 In cross-examination the defendant displayed a lack of precision in relation to dates. Nonetheless, I accept his evidence that the plaintiff paid a visit on the deceased in about 1953 or 1954 by which stage he was married and had a young daughter. This evidence of the defendant was not challenged by the plaintiff. 7 The defendant gave evidence that no further contact was made by the plaintiff with the deceased for another period of four to five years. That contact was about the time when the plaintiff and his wife, Bernice, separated and coincided with detectives coming to the Heathcote house looking for the plaintiff. These events, he said, upset the deceased. She maintained contact with Bernice until the time of her stroke, two months before her death. In cross-examination the defendant accepted that he was overseas at this time and was relying upon what he was told by the deceased. Evidence of statements by the deceased are admissible in these proceedings under the specific exception to the hearsay rule in section 32(2) of the Act. 8 Three years later, the plaintiff paid a visit to the deceased and told her that he was going to New Zealand with his wife Patricia. No further contact was had for a further period of three years. 9 Having established a successful poster business in New Zealand, contact with the deceased became more frequent. The deceased spent five to six months with the plaintiff and his wife when their daughter, Joanne, was two years old. The plaintiff provided for the deceased's upkeep during this period and gave her money when she left to return to Australia. Over the 10 year period that the plaintiff lived in New Zealand the deceased made a minimum of four visits of lengthy duration. 10 It was put to the plaintiff in cross-examination that the purpose of the visits was for the deceased to mind the house while the plaintiff and his wife attended to their business. The plaintiff denied this assertion saying that his business required him to make overseas trips but in his absence for this purpose his wife was present. Having observed his demeanour in the witness box I accept this evidence. 11 From New Zealand the plaintiff moved to the Gold Coast in Queensland where extended visits by the deceased continued. In about 1995 the plaintiff was in financial difficulties. He sold his New Zealand business for its carry-forward tax losses for NZ$87,000.00. The house at the Gold Coast was sold and the plaintiff acquired a residence, in which he still resides, at Tully Heads in North Queensland. The plaintiff said that the deceased was unable to travel long distances to see him after 1995. 12 The plaintiff and his wife Patricia separated which, the defendant observed, upset the deceased who maintained contact with Patricia until the time of her death. The plaintiff last saw the deceased in 1997. 13 The plaintiff formed a de facto relationship in 1992 which continues at the present time. His children, Claire Louise Forrest about 44 years old, James William Forrest about 40 years old and Joanne Margaret Forrest about 33 years old do not live with him. 14 The plaintiff gave a half interest in the Tully Heads house to his de facto partner. He values the property today at somewhat in excess of $100,000.00. The property is mortgaged to a limit of $20,000.00 over five years. $15,671.49 is currently owing on that mortgage. The plaintiff has a credit balance in his bank account of $1,016.45. He owns a motor vehicle worth approximately $12,000.00 and some minor assets worth a further $11,200.00. He estimates his fortnightly expenses at $288.00 and is in receipt of an old age pension of $331.80 per fortnight. 15 The plaintiff is in poor health. He has had surgery to remove approximately 80% of a cancerous stomach. His prognosis is guarded. He suffers from emphysema and has an enlarged heart. His de facto partner receives a carer's pension for looking after him of approximately $330.00 per fortnight. She is 44 years of age and in poor health. She is being treated for a degenerative disc and depression. While the plaintiff was somewhat garrulous in the witness box, I found him to be precise in his understanding of figures in particular. I accept his evidence with respect to his needs and those of his de facto partner. 16 I found the defendant's recollection of events, particularly dates, to be hazy. I prefer the evidence of the plaintiff where it conflicts with that of the defendant with respect to the contact between the plaintiff and the deceased from the time he had successfully developed his New Zealand poster business. 17 Margaret Louise Carruthers met the plaintiff at Sydney Airport and brought him to the court. She was outside the court room during the hearing. 18 The defendant was born on 17 December 1933. He was 10 when his father died. He left school at 16 and attended East Sydney Technical College while working at Farmers. He was then living at the Heathcote house. 19 From 1956 to 1968 the defendant was overseas returning, with a couple of exceptions, each Christmas to visit the deceased.