MILLER v MILLER [2002] NSWSC 250

New South Wales Supreme Court

CITATION : MILLER v MILLER [2002] NSWSC 250 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2410 /2001 HEARING DATE(S) : 20/03/2002 JUDGMENT DATE : 22 March 2002

PARTIES : CLARICE MARCIA MILLER v DENIS JAMES MILLER & GREGORY NEVILLE MILLER JUDGMENT OF : Master Macready at 1

COUNSEL : Mr J.K. Chippendall for plaintiff Mr M. Willmott for defendant SOLICITORS : Peter M. Wayne & Associates for plaintiff Thurlow Fisher for defendant CATCHWORDS : Family Provision. Application. Application under Family Provision Act by a daughter in respect of a modest estate. Plaintiff received sufficient benefits under will of the deceased. Summons dismissed. DECISION : Paragraphs 56-58

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

MASTER MACREADY

FRIDAY 22 MARCH 2002

2410/01 - CLARICE MARCIA MILLER v DENIS JAMES MILLER - ESTATE OF ETHEL MAY MILLER & ANOR

JUDGMENT 1 MASTER: This is an application under the Family Provision Act in respect of the estate of Ethel May Miller who died on 8 November 1999 aged eighty-six years. The deceased was survived by her three children who are the parties in these proceedings. 2 The deceased made her last will on 20 November 1996. Under that will she appointed her son, Denis Miller, as executor and in clause 3 made a direction that her daughter, the plaintiff, would be entitled to reside in her property at 76 Gueudecourt Avenue, Earlwood, rent-free for a period of three years after her death. At the expiration of three years, there was a direction to sell the property and give fifty per cent of the proceeds to her daughter and twenty-five per cent to her son Denis and twenty-five per cent to her son Gregory. She gave the residue of her estate, particularly including cash, to her daughter Clarice, the plaintiff. 3 The estate consisted of the deceased's house at 76 Gueudecourt Avenue, Earlwood and cash amounting to $55,114. The plaintiff has lived in the deceased's house for all of her life and still resides there. 4 There is a dispute as to the present value of the estate property. The plaintiff's valuer, Mr Wills, valued it as at 9 April 2001 at $530,000 using comparable sales. When he was called as a witness, he said that having had the benefit of the defendant's later valuation and without referring to any more recent comparables, he thought it was valued at $550,000 at the date of the hearing. 5 The defendant's valuer, Mr Orphanou, valued the property as at 10 November 2001, using recent comparables, at $630,000. In the witness box at the hearing, he thought the value at the date of the hearing was of the order of $640,000 to $650,000. 6 The defendant's valuer was one who had many years' experience in the area and whose experience suggested that over the last two years there had been a minimum increase in residential values at the rate of half a per cent per month. Mr Wills had not analysed such increases and could not accept this proposition. 7 There was cross-examination on comparables and the following important points emerged: (1) Mr Wills' best comparable for his April 2001 valuation was 34 Kitchener Avenue, Earlwood which sold in March 2000 for $552,000. He could not explain satisfactorily why that did not suggest a higher value, particularly if there had been a six per cent per annum general increase in the area. (2) Mr Orphanou referred to two comparables in the same street: number 69 which sold for $604,000 on 10 March 2001 and number 71 which sold for $630,000 on 3 November 2001. They were both three bedroom, in contrast to the subject property which was two bedroom. However, each had some deficiencies which the subject property did not have. They seem to me to be quite supportive of Mr Orphanou's valuation. 8 Having regard to the comparables and Mr Orphanou's experience of general increases in the area, I prefer his valuation of $640,000. 9 The property will have to be sold and the expenses will reduce the proceeds to somewhere in the area of $620,000. 10 The cash, after the expenses of probate, amounted to $52,954 and this sum was distributed to the plaintiff. She paid from her own resources the funeral expenses which were in the order of $5,000. 11 Costs have been incurred in this matter by the parties. The plaintiff's are estimated at $17,000 and the defendant's at $24,000, a total of $41,000. 12 I turn to deal with a little of the history of the matter. The deceased was born on 15 May 1913. Her daughter Clarice, the plaintiff, was born on 19 July 1937. Denis was born on 22 February 1939 and Gregory on 19 March 1949. 13 The home of the deceased was purchased in 1959. The purchase price was 3000 pounds. The house had been occupied by the deceased and her husband, he being a wharf labourer, and they rented it for some years. The landlord proposed to sell it and unless they could purchase it they would probably have to leave. He offered the place to the deceased and her husband and as a result of Denis making available his savings of 250 pounds, they were able to purchase it. This sum was the deposit that was required. Over the years thereafter the sum was actually paid back by Denis' parents because they did not charge him board for an appropriate period. 14 Denis grew up and married and left home in 1967. His father died in 1970. Gregory himself was then living at home. He was aged eleven and he eventually left home in 1980. 15 The plaintiff in 1984 purchased a home unit at 8/123 Cambridge Street, Penshurst. The purchase price was $48,000. Her mother gave her $12,000 towards the purchase. The property is now worth some $175,000 and, accordingly, there was a substantial benefit provided by the deceased to the plaintiff in this respect. 16 Gregory married in 1987. His older brother Denis retired in 1994. A will was made in 1996, as I have mentioned, and the deceased died on 8 November 1999. There was a grant of probate and the proceedings were commenced within time. 17 In applications under the Family Provision Act, the High Court in Singer v Berghouse (1994) 181 CLR 201 set out the two stage approach that a Court must take. At 209 it said the following: "The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.