Thornley v Blair [2002] NSWSC 202

New South Wales Supreme Court

CITATION : Thornley v Blair [2002] NSWSC 202 revised - 21/03/2003 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2395/01 HEARING DATE(S) : Wednesday, 20 March 2002 JUDGMENT DATE : 20 March 2002

Janice Ann Thornley (First Plaintiff) PARTIES : Sandra McLaren (Second Plaintiff) Ilma Blair (Defendant) JUDGMENT OF : Master McLaughlin

COUNSEL : J. Wilson (Plaintiffs) D. Flaherty (Defendant) SOLICITORS : Willis & Bowring, Solicitors (Plaintiffs) Wallbanks, Solicitors (Defendant) LEGISLATION CITED : Family Provision Act 1982 DECISION : 1. I order that the proceedings be dismissed.; 2. I order that the plaintiffs pay the costs of the defendant, such costs to be on the party and party basis.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER McLAUGHLIN

Wednesday, 20 March 2002

2395/01 JANICE ANN THORNLEY AND ANOR -V- ILMA BLAIR - ESTATE OF WILLIAM STEPHEN BLAIR JUDGMENT 1 MASTER: These are proceedings under the Family Provision Act 1982. 2 The proceedings were instituted by summons filed by the plaintiffs, Janice Ann Thornley and Sandra McLaren, on 1 May 2001. The defendant named in that summons is Ilma Blair. Subsequently there was filed on behalf of the plaintiffs an amended summons on 11 December 2001. 3 By that amended summons the plaintiffs seek the following substantive items of relief:

1. An order that provision for their maintenance and advancement in life be made out of the estate and/or the notional estate of the late William Stephen Blair pursuant to section 7 of the Family Provision Act 1982.

2. A declaration that the proceeds of sale of the property at 387 Soldiers Point Road, Salamander Bay in the State of New South Wales, is notional estate. 4 The plaintiffs are the two children of the late William Stephen Blair (to whom I shall refer as "the deceased"). The deceased died on 2 January 2000. He left a will dated 6 July 1999. Probate of that will has never been granted. By the terms of that will the deceased appointed his widow, the defendant, as executor and left to her the entirety of his estate. 5 The estate in fact consisted only of the half-share of the proceeds of sale of the property at 387 Soldiers Point Road, Salamander Bay, which the deceased and the defendant owned as joint tenants, and which was sold by them in November 1999. The proceeds of that sale, being in a nett amount of about $169,000, were paid into a joint account of the defendant and the deceased. 6 The purpose of the filing the amended summons was to seek on behalf of the plaintiffs the possibility of relief being granted to them against notional estate of the deceased, being the proceeds of sale of the Salamander Bay property. Most of those proceeds of sale have in fact already been expended by the defendant, both during the lifetime of the deceased and since his death. 7 I have already referred to the fact that no grant of probate was ever made in respect of the will of the deceased. The plaintiffs obtained a grant to them of administration of the estate pursuant to the provisions of section 41A of the Wills, Probate and Administration Act 1898 for the purposes only of enabling an application to be made on their behalf under the Family Provision Act. 8 In the light of information which the plaintiffs have now received, as a result of evidence filed on behalf of the defendant, the plaintiffs recognise that there is no notional estate available which can be the subject of any order for provision in favour of either or both of the plaintiffs. In consequence therefore the plaintiffs do not oppose an order being made for the dismissal of the proceedings; indeed they invite the Court to make such an order. 9 However, the plaintiffs and the defendant are in dispute as to the costs consequences of the making of such an order. The plaintiffs submit that in the circumstances of this case there should be no order as to costs, to the intent that each of the parties should bear her own costs of the proceedings. The defendant submits that the appropriate order for costs which should be made is that the plaintiffs should pay the costs of the defendant up to and including 15 March 2002 on the party and party basis and the costs of the defendant after that date on the indemnity basis. 10 The significance of 15 March 2002, that being last Friday, is that that was the date upon which expired an offer contained in a Calderbank letter sent by the solicitors for the defendant to the solicitors for the plaintiffs on 8 March 2002. The terms of that offer were that the defendant would consent to a dismissal of the summons with no order as to costs, to the intent that each party should bear her own costs of the proceedings. 11 That offer was not accepted by the plaintiffs on or before Friday, 15 March 2002, that being the date stated in the letter for the expiry of the offer. However, the plaintiffs are desirous that the Court should now make an order along the same lines for the dismissal of the proceedings, with no order as to costs. 12 It will be appreciated that normally the costs of proceedings follow the event. That is, normally where a plaintiff brings a claim and is unsuccessful, the plaintiff will be required to pay the costs of the defendant. It is submitted, however, on behalf of the plaintiffs that in the instant case for reasons to which I shall shortly refer the Court should not follow that normal course. 13 It is submitted on behalf of the plaintiffs that, in effect, the defendant, through her solicitor, failed to place before the plaintiffs adequate material, including a copy of the will and including details of the disbursement of the moneys in the joint bank account, which would if provided in a timely fashion have enabled the plaintiffs either to abandon their claim at some earlier stage in the proceedings or at least to have accepted the offer contained in the letter of 8 March 2002 within the time stipulated in that letter for the acceptance of the offer. 14 There has been placed before me a considerable quantity of correspondence which has passed between the parties through their respective legal representatives. The plaintiffs have also pointed to the fact that at least one annexure was missing from an early affidavit filed on behalf of the defendant, and that there has recently been prepared and served on the plaintiffs (as recently as last Friday, 15 March 2002) a further affidavit of the defendant sworn 14 March 2002, and that the annexures to that affidavit were served as recently as only yesterday, 19 March 2002. 15 The plaintiffs submit that it was only when they received that additional affidavit of the defendant and when they received the annexures yesterday, that they were in a position to recognise that there were no assets, even of notional estate, which might be the subject of any order for provision for the plaintiffs. 16 In approaching the respective applications for costs it is appropriate to recognise that this matter was placed in the Master's list on 11 December 2001. It came up for call-over on 27 February 2002, when it was fixed to be heard this day, 20 March 2002, in the Family Provision Running List. On at least two occasions, being 11 December 2001 when the matter was placed in the Master's list, and 27 February 2002 when the matter was listed on call-over, the Court was assured, either expressly or at least by implication, that the evidence was complete for each party. That apparently was not the situation. 17 There certainly could have been a greater degree of disclosure on the part of the defendant responding to the inquiries of the plaintiffs. Nevertheless, it should be recognised that the plaintiffs, being adult daughters of the deceased, were making a claim against the widow of the deceased, who had been living with the deceased from 1989 and who had married the deceased on 4 July 1996 and who thus had had a relationship with the deceased for a period of more than ten years before his death. 18 I am in agreement with the submissions made on behalf of the defendant that, having regard to the extremely small size of the deceased's estate, the nature and length of the relationship between the deceased and the defendant and the financial positions of the plaintiffs, the likelihood of the plaintiffs ever receiving any order for provision out of the estate of their father was remote. 19 As I have already observed, the usual costs order is that costs follow the event. The plaintiffs are consenting to an order dismissing their claim. Both in the light of that procedural outcome of the matter and in the light of what I have already expressed to be the extremely remote prospects of success which the plaintiffs could ever have had in bringing these proceedings, it seems to me appropriate that a costs order against the plaintiffs should be made in favour of the defendant. 20 The effect of the Calderbank letter is that after the expiry of the date for the acceptance of the offer contained therein, the defendant seeks that the costs to which she is entitled should be on the indemnity basis. It seems to me however that, at least to an extent, the defendant has not been particularly forthcoming in furnishing to the plaintiffs information which would have enabled the plaintiffs to have made an informed decision about accepting the Calderbank offer within the time stipulated therein. 21 The recent preparation of the affidavit of the defendant of 14 March 2002 and the very late service of the annexures to that affidavit, those annexures having been served only yesterday, lead me to the conclusion that I consider that the appropriate order to be made in this case is that the plaintiffs pay the costs of the defendant of the proceedings, such costs to be on the party and party basis. 22 I make the following orders: