Carroll v Cowburn [2003] NSWSC 248

New South Wales Supreme Court

CITATION : Carroll v Cowburn [2003] NSWSC 248 HEARING DATE(S) : 26/03/03 JUDGMENT DATE : 4 April 2003 JURISDICTION: Equity Division JUDGMENT OF : Young CJ in Eq DECISION : Orders made.

CATCHWORDS : SUCCESSION [325]- Application by testator's only child- Fear that a plaintiff might squander his or her benefaction goes to the form of the order, it does not prevent it- Orders- Costs- Prima facie costs to be capped at the amount applicant receives by way of legacy. LEGISLATION CITED : Family Provision Act 1987, s 7 Bondy v Vavros (Young J, 29.8.1988) CASES CITED : Howarth v Reed (Powell J, 15.4.1991) McLean v Public Trustee [2001] NSWSC 970 Smerda v Pavliuk (Master Macready, 27.10.1995) PARTIES : Michael John Carroll (P) James Allan Cowburn & Kathleen Elizabeth Bergkvist (D) FILE NUMBER(S) : SC 4232/02 COUNSEL : M S Willmott (P) D M Flaherty (D) SOLICITORS : Turnbull Hill (P) Derek Davelaar (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG CJ in EQ

Friday 4 April 2003

4232/02 – CARROLL v COWBURN JUDGMENT 1 HIS HONOUR: The plaintiff, Michael John Carroll, brings these proceedings under the Family Provision Act 1982 for provision out of the estate of his late father William Henry Carroll. 2 William Henry Carroll died on 18 March 2002. Probate of his last will bearing date 8 April 1999 was granted to the defendants on 17 May 2002. 3 The will provided, in the events which have happened, that the testator's property should be divided equally between Sean Carroll and Ella Lee Carroll as shall survive the testator and attain 18 years. At present, Sean is 15, and Ella 12. They are both children of the plaintiff. 4 The testator left only one asset of any moment, his former home at Mayfield. This has been sold and the proceeds invested, half in the name of a trust for Sean, and half in a trust in the name of Ella Lee, each trust having in it approximately $120,000. The evidence shows that the estate's costs of this application are in the vicinity of $16,000 and the plaintiff's solicitor indicates that his costs would be approximately $40,000 including counsel's fees and disbursements. I merely record this evidence without comment. 5 The plaintiff is the only son of the testator and his first wife. The testator was aged 67 years when he died. The plaintiff is 48, having been born in 1955. His mother and father separated when he was five and he spent most of his childhood with his maternal grandparents. 6 The plaintiff is a married man. He has the two children I have mentioned. He lives in public housing in Wyoming near Gosford. He is currently on a disability pension which produces approximately $9,750 per year and his wife receives social services contribution of $17,820 per annum for herself and the children. Thus, he says, the combined net family income is $27,570. The plaintiff has $5 in the bank; his wife has $27 and he has debts totalling about $4,750. He estimates his family's living expenses at $25,750 which includes $2,600 for bus and train fares. 7 In addition to his financial poverty, the plaintiff suffers ill-health. Just what the exact position is is unclear on the evidence, but there is no doubt that the plaintiff has significant health problems. He lost part of a finger in an accident at work, he suffers from diabetes and recently he had an operation to remove a cyst on his brain. He says that he is forgetful and tires very easily. 8 The plaintiff says that he has been left without proper provision by his father, that he was the only child and the only person whom his father should have had in contemplation, and to be left nothing at all when he is in necessitous circumstances plainly calls for an order to be made under the Act. 9 At the hearing before me on 26 March, Mr M Willmott appeared for the plaintiff and Mr D Flaherty appeared for the defendants. On the papers, the present case appeared a very clear case for an order to be made under the Act. However, Mr Flaherty's cross examination was quite effective. It showed the plaintiff to be a person who had made "mistakes" in his affidavit including the "mistake" twice repeated that he had lost four fingers in the accident rather than half a finger. The plaintiff made it plain that he put forward as one of his needs the provision of a motor car, but did not disclose that he was currently disqualified from holding a driver's licence until 2004, and that his wife only held a learner's permit. He did not disclose the fact that he was in gaol for dishonesty in 2002 and had a criminal record, though he did incidentally disclose the fact that he had been in gaol because he mentioned that that is where he had had some treatment for his ills. 10 As a result of this, Mr Flaherty made the valid points: