Burt v Agius [2003] NSWSC 461

New South Wales Supreme Court

CITATION : Burt v Agius [2003] NSWSC 461 HEARING DATE(S) : 19, 24 February 2003 JUDGMENT DATE : 29 May 2003 JURISDICTION: Equity Division JUDGMENT OF : Master McLaughlin DECISION : (1). I stand the matter over to a date to be fixed by arrangement with my Associate, for the bringing in of short minutes and for submissions as to costs.

CATCHWORDS : Succession - Family Provision - Claim by two adult children - All assets of Deceased were held conjointly with his wife, the Defendant - Prescribed transactions - Notional estate - Financial and material circumstances of Plaintiffs - Obligation upon Plaintiffs to place before the Court as fully and as frankly as possible all details of their financial and material circumstances - Competing claim of Defendant. LEGISLATION CITED : Family Provision Act 1982 Wills, Probate and Administration 1898 CASES CITED : Singer v Berghouse (1994) 181 CLR 201 Damien Burt (First Plaintiff) PARTIES : Tabatha Burt (Second Plaintiff) Josephine Agius (Defendant) FILE NUMBER(S) : SC 5847/01 COUNSEL : E. Cohen (Plaintiffs) J.E. Armfield (Defendant) SOLICITORS : Adams & Partners, Lawyers (Plaintiffs) Mulally Mylott Solicitors (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER McLAUGHLIN

Thursday, 29 May 2003

5847 of 2001 DAMIEN BURT and TABATHA BURT -v- JOSEPHINE AGIUS JUDGMENT 1 MASTER: These are proceedings under the Family Provision Act 1982. 2 By summons filed on 6 December 2001 the Plaintiffs, Damien Burt and Tabatha Burt, claim an order for provision for their maintenance, education and advancement in life out of the estate or notional estate or both of their late father, John James Burt, also known as John James Agius (to whom I shall refered as "the Deceased"). 3 The Deceased died on 8 December 2000, aged forty-eight. He had on 20 May 1993 changed his name (by Instrument Evidencing Change of Name) from John Burt to John Agius. (Despite the terms of that instrument (which is Exhibit 1 "A"), it would appear that the Deceased had formerly used the name John James Burt and that after executing the aforesaid instrument he used the name John James Agius.) 4 The Deceased made a will on 14 February 1994, by which he appointed the Defendant, Josephine Agius, as executor and gave to her the entirety of his estate. 5 For reasons which will shortly emerge, that Will was never admitted to Probate. The Plaintiffs, however, on 5 July 2002 obtained a Grant of Letters of Administration pursuant to section 41A of the Wills, Probate and Administration Act 1898 for the purposes only of an application under the Family Provision Act being made by the Plaintiffs. 6 At the time of his death the only assets held by the Deceased were held by him conjointly with the Defendant. Those assets included a house property at 14 Norris Place, Narellan Vale, of which the Deceased and the Defendant were registered proprietors as joint tenants, and a property at 14 On Avon Avenue, Oberon, of which the Deceased and the Defendant were registered proprietors as joint tenants. Each of those properties passed to the Defendant by survivorship upon the death of the Deceased. 7 In consequence, there was no actual estate of the Deceased. Any order for provision which might be made in favour of one or both of the Plaintiffs would therefore be an order made in respect to notional estate of the Deceased, and would require the designation as such notional estate of property which is presently held by the Defendant. 8 The Deceased, who was born on 18 November 1952, died, aged forty-eight, as a result of a motor accident on 8 December 2000 when the petrol tanker which he was driving overturned near Ourimbah, and the Deceased was incinerated. 9 The Deceased married three times. His first wife was Denise, who was the mother of the two Plaintiffs. Damien was born on 2 June 1973 and is now aged twenty-nine. Tabatha was born on 11 June 1976 and is now aged twenty-six. 10 The Deceased and his first wife separated in 1979. He married his second wife Elizabeth sometime subsequently. However, that marriage was dissolved on 11 May 1994. Three children were born of the Deceased's second marriage, being Michael John James (born 10 October 1986, who is presently aged sixteen), Andrew John James (born 23 February 1989, who is presently aged fourteen) and Ryan John James (born 9 December 1990, who is presently aged twelve). 11 The Deceased met the Defendant in 1991. They lived together as husband and wife from then until the death of the Deceased, except for the period October 1991 to March 1992. The Deceased and the Defendant married on 17 June 1995. No children were born to the union of the Deceased and the Defendant. 12 The Defendant herself was born on 25 November 1958, and is presently aged forty-four. She also has been married three times. Of her first marriage (to Geoffrey Kennedy) was born one child, Michael Lawrence (born 1 August 1980, who is presently aged twenty-two). Of her second marriage (to Paul Anthony Sullivan) was born one child, Stephanie Theresa (born 10 August 1984, who is presently aged eighteen). 13 At the time when the Defendant met the Deceased in 1991 he was working as a street cleaner for the Liverpool Council, and also performing work at night as a security guard at Milperra University. Shortly after they met the Deceased and the Defendant commenced to live together in rented accommodation at Liverpool, the Defendant's children Michael and Stephanie residing with them. During the period of separation from October 1991 until March 1992 the Deceased resumed cohabitation with his second wife and their three sons. 14 According to the Defendant, at the commencement of her cohabitation with the Deceased in 1991 the assets of the Deceased consisted of clothing and personal effects, whilst the assets of the Defendant consisted of savings in a bank account of approximately $10,000, together with household furniture (to which the Defendant ascribed a value of about $15,000). 15 Both the Deceased and the Defendant were in regular employment from the time when they commenced cohabitation in 1991 until the death of the Deceased in 2000. 16 In October 1993 they purchased a property at Lot 5019 Tramway Drive, Currans Hill as joint tenants. The Defendant contributed about $5,000 of her savings as the deposit upon that property. The balance was met by a joint loan obtained by the Deceased and the Defendant (which I gather to have been secured by mortgage over that property). In September 1996 the Currans Hill property was sold and the Deceased and the Defendant purchased a house property at 14 Norris Place, Narellan Vale as joint tenants. The proceeds of sale of the Currans Hill property were applied towards the purchase of the Narellan Vale property. The balance of the purchase price was met by a joint loan from the St George Bank, which was secured by a mortgage over the Narellan Vale property. Both the Deceased and the Defendant made repayments in respect to each of the Currans Hill property and the Narellan Vale property from their joint bank account. 17 In March 2000 the Deceased and the Defendant purchased a property at 14 On Avon Avenue, Oberon as joint tenants. The purchase of that property was funded by the Deceased and the Defendant increasing the mortgage on the Narellan Vale property by an amount of about $70,000 and by extending the mortgage to cover both the Narellan Vale property and the Oberon property. 18 As I have already observed, both the foregoing properties passed to the Defendant by survivorship. On 1 March 2002 the Defendant exchanged contracts for the sale of the Narellan Vale property for $309,950. Upon settlement of that sale on 15 April 2002 the Defendant received a net amount of $31,447, the balance of $255,204 being used to discharge the mortgage over that property and over the Oberon property. 19 At the time of his death the Deceased owed the Child Support Agency the sum of $1,410, for maintenance of the three sons of his second marriage. That amount remains unpaid. In about October 2001 the Defendant received a death benefit from Colonial Select Superannuation Pty Limited in the sum of $255,000, consequent upon the death of the Deceased. The Defendant expended that money by discharging in part the mortgage which was secured over the Narellan Vale property and the Oberon property. A further death benefit in the sum of $45,000 was paid to the Deceased's second wife, as trustee for the three children of the Deceased's second marriage. 20 Also in consequence of the death of the Deceased the Defendant has received $9,366 a year by way of superannuation from CommSuper. According to the Defendant that superannuation is paid to her fortnightly in an amount of about $359, and that benefit will be paid to her for life. In addition, the Defendant's daughter Stephanie received a benefit of $1,981 a year by way of superannuation from CommSuper, but that benefit ceased when the Stephanie commenced employment in January 2002. 21 The Defendant received a further payment by way of superannuation in an amount of $15,284 from Connolly Temple Superannuation, as a result of the Deceased being a member of a superannuation fund when he was employed as a driver and clerical worker for the Myrtle College for the Physically Disabled from 1998 to November 2000. The Defendant said that those moneys were used by the Defendant to meet living expenses, including mortgage payments. 22 The Defendant also instituted proceedings in the Compensation Court of New South Wales in respect to the death of the Deceased. Those proceedings were ultimately settled, an order giving effect to such settlement being made on 12 February 2003. By that order the present Defendant was awarded compensation in respect of the death of the Deceased in the sum of $256,400 and in addition thereto a weekly amount of $80.60 from 8 December 2000 to 31 March 2001, $82.40 from 1 April 2001 to 30 September 2001 and $83.90 from 1 October 2001 to 1 February 2002 in respect of Stephanie Theresa Agius and equivalent weekly amounts for those periods and thereafter in respect of the children of the second marriage of the Deceased. The Compensation Court also awarded interest on the sum of $256,400 at a rate of 10 percent from 6 November 2001 to 28 February 2002 and 9 percent from 1 March 2002 to 12 February 2003, as well as interest at equivalent rates for equivalent periods on the aforementioned weekly amounts. 23 The Compensation Court ordered that the sum of $256,400 be apportioned as follows: