New South Wales Supreme Court CITATION : Thyssen v Pottenger [2003] NSWSC 787 HEARING DATE(S) : 14,15 July 2003 JUDGMENT DATE : 27 August 2003 JURISDICTION: Equity Division JUDGMENT OF : Master McLaughlin DECISION : (1) I order that the claim of the Plaintiff Natalie Veronica Thyssen be dismissed.; (2) I order that the Plaintiff pay the costs of the Defendant, such costs to be on the party and party basis.; (3) I order that the Defendant be entitled to recoup from the estate of the late Nicolaas Jacob Marker ("the Deceased") the difference between the foregoing costs which he may recover from the Plaintiff and the costs of the Defendant on the indemnity basis.; (4) The exhibits may be returned. CATCHWORDS : Succession - Family Provision - Claim by former wife - Plaintiff and Deceased were divorced in 1965 - Plaintiff subsequently married her present husband, by whom she has three children - Financial and material circusmtances of Plaintiff - Obligation of Plaintiff to place before the Court as fully and as frankly as possible all available details - Whether Plaintiff has established relevant need - Failure of Plaintiff to enforce maintenance and costs orders against Deceased - Factors which warrant the making of the application - Competing claims of beneficiaries. LEGISLATION CITED : Family Provision Act 1982 CASES CITED : O'Shaughnessy v Mantle (1986) 7 NSWLR 142 Natalie Veronica Thyssen (First Plaintiff) PARTIES : John George Thyssen (Second Plaintiff) Thomas Alexander Pottenger (First Defendant) Rhoderick Gavin Ramsay McGhee (Second Defendant) FILE NUMBER(S) : SC 1855/02 COUNSEL : S. Goodman (Plaintiffs) M. Gorrick (Defendants) SOLICITORS : Snelgrove & Partners, Solicitors (Plaintiffs) Pottenger & McGhee (Defendants) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION MASTER McLAUGHLIN Wednesday, 27 August 2003 1855 of 2002 NATALIE VERONICA THYSSEN -v- THOMAS ALEXANDER POTTENGER JUDGMENT 1 MASTER: These are proceedings under the Family Provision Act 1982. 2 By summons filed on 12 March 2002 Natalie Veronica Thyssen and John George Thyssen claim an order for provision for their maintenance and advancement in life out of the estate and/or notional estate of the late Nicolaas Jacob Marker (to whom I shall refer as "the Deceased"). 3 The First Plaintiff is the former wife of the Deceased and the Second Plaintiff is their son. 4 The Deceased died on 6 February 2001. He left a will dated 3 February 1994, probate whereof was on 11 April 2001 granted to Thomas Alexander Pottenger and Rhoderick Gavin Ramsey McGhee, the executors named in such will (who are the Defendants to the present proceedings). 5 By that will the Deceased provided that (subject to the income from the business conducted by him being given, pending the sale of the business, to his daughter, Suzanne Julie Allen) his entire estate be divided into five equal parts, one part being for his son Steven Martien Marker, two parts for his daughter Suzanne Julie Allen and two parts for his daughter Sandra Louise Roberts. 6 No provision was made by that will either for the Deceased's former wife or for their son. 7 The inventory of property discloses that the assets of the Deceased at the time of his death included real property situate at 27 Alison Avenue, East Nowra (to which a value of $120,000 was ascribed), various bank accounts and term deposits (totalling about $133,000), two trucks (having a total estimated value of $6,000), together with an electric organ (having an estimated value of $2,500). 8 The total estimated value of the estate of the Deceased disclosed in the inventory of property was a little under $242,000. A valuation report dated 24 July 2002 discloses that the East Nowra property had at that date a value of $140,000. 9 In calculating the size of the estate available for distribution the costs of the present proceedings must be taken into account. It is estimated that the costs of the First Plaintiff total about $35,000 and the costs of the Second Plaintiff total about $12,000, whilst the costs of the Defendant total about $36,000 (of which lastmentioned amount about $7,000 has already been paid out of estate funds). 10 At the commencement of the hearing the Court was informed that the claim of the Second Plaintiff had been resolved. In consequence, the Court by consent made orders as in short minutes of order, to give effect to that resolution. By those orders the Second Plaintiff receives out of the estate of the Deceased a legacy in the sum of $5,000, and the costs of the Second Plaintiff and the costs of the Defendant on the trustee basis are to be paid out of the estate. 11 It has been calculated by the Defendant that, after making allowance for the resolution of the Second Plaintiff's claim in accordance with the foregoing orders and after making allowance for the costs of the First Plaintiff ($35,000) and of the Defendant ($36,000) of the present proceedings, there will remain in the estate available for distribution an amount of about $172,600. 12 Under the terms of the will of the Deceased that sum will be divided into five equal parts, which will be distributed to the three children of the Deceased's first marriage in the following shares: Steven Martien Marker – 1 part Suzanne Julie Allen – 2 parts Sandra Louise Roberts – 2 parts 13 (I shall hereafter in this judgment refer to the First Plaintiff, Natalie Veronica Thyssen, as merely "the Plaintiff".) 14 The Plaintiff was born on 21 March 1941 and is presently aged sixty-two. She married the Deceased on 7 March 1959, when she was aged almost eighteen. The Deceased, who had been born on 10 November 1925, was at that time aged forty-three. He was a widower, with three children of his first marriage. 15 Two children were born to the marriage of the Plaintiff and the Deceased, being Julie Anne (born on 27 August 1960, who is presently aged forty-three), and John George (born on 7 December 1961, who is presently aged forty-one). 16 The Plaintiff and the Deceased were divorced by the Supreme Court of Victoria, the decree nisi being made on 16 September 1965. On that date orders were made by the Court by way of property settlement in favour of the Plaintiff and for maintenance for the Plaintiff and her children. The decree nisi became absolute on 16 December 1965. 17 According to the Plaintiff the Deceased did not comply with the orders for maintenance for herself and her children, despite various applications and orders made at the instance of the Plaintiff, seeking their enforcement. 18 The Plaintiff (who by the orders of the Court had the custody of the children of her marriage to the Deceased) married her present husband, Constantinos George Thyssen, on 19 February 1971. Of that marriage were born three children (being George, born on 27 June 1972; Elene, born 20 June 1974; Patricia, born 23 June 1977). 19 The Plaintiff and her husband appear to have been involved in a number of unsuccessful business ventures (including a proposal for the establishment of a plant nursery, to which I shall make further reference later in this judgment). In consequence of those business ventures the Plaintiff has twice become bankrupt and has also entered into a deed of assignment. 20 The Plaintiff's sole income at the present time is a pension from Centrelink, being currently in an amount of $397 a fortnight. Her husband is in receipt of an equivalent income. The Plaintiff has no liabilities. She estimates her outgoings to be in an amount almost equal to her income. The Plaintiff's only assets are personal effects (to which she ascribes a value of about $500). 21 The Plaintiff and her husband reside in a house property at Olinda in rural Victoria. That house property is owned by their three children, George, Elene and Patricia, and by Elene's husband. Those three children (and Elene's husband) reside in the house property with the Plaintiff and her husband. The Plaintiff and her husband pay rent of $760 a month in respect to their occupancy of that residence. 22 A considerable quantity of affidavit evidence concerning the relationships between the Plaintiff and the Deceased and between the Plaintiff and the three children of the Deceased's first marriage, and concerning their living arrangements during the period of the Plaintiff's marriage to the Deceased was placed before the Court. 23 It was agreed between Counsel for the respective parties that there should be no cross-examination concerning those relationships and those living arrangements. Such an attitude was very sensible, in the light of the salutary admonition of the High Court of Australia in Blore v Lang (1960) 104 CLR 124 at 137 per Windeyer J. 24 It emerged from the cross-examination of the Plaintiff (although there was no reference to this matter in any of the affidavits filed on her behalf) that the Plaintiff and her husband and a company formerly controlled by them (of which her husband is still a shareholder) Valimi Pty Limited, have been involved in protracted and current litigation in the Supreme Court of Victoria arising out of the plant nursery venture. 25 Until the day before the commencement of the hearing of the present proceedings there was no reference in any of the affidavit evidence to a bank account conducted by the Plaintiff with the ANZ Bank at Monbulk in Victoria. According to the Plaintiff the sole purpose for the existence of that bank account is to facilitate the making of mortgage payments in respect to the Olinda residence by the owners thereof. The Plaintiff asserted that she had no beneficial interest in the moneys passing through that bank account. 26 Evidence has been placed before the Court by each of the three children of the Deceased's first marriage, being the three beneficiaries named in the will of the Deceased. 27 Steven, who is a member of the Royal Australian Navy (from which he expects to retire in January 2004) is unmarried and without children. He owns two house properties (each apparently unencumbered), one in Brisbane and one in Melbourne. Nevertheless, on account of his employment Steven resides in rented accommodation in Sydney. He expects, however, upon his impending retirement, for which he had applied on medical grounds, that he will remove to Melbourne and reside in his house in that city. Steven contributes to the Navy Retirement Scheme, from which he expects to derive an income of $15,000 a year after his retirement. He will also receive rent of $200 a week from the house which he owns in Brisbane. Steven owns a motor vehicle and what is described as a Daihatsu Handyvan (to which a value of $200 is ascribed). 28 Suzanne, a widow since 1994, resides in Housing Commission accommodation at South Nowra, together with her two teenage sons. She is in receipt of a Newstart allowance from Centrelink in an amount of $864.50 a month. She owns a Mazda motor vehicle (to which she ascribes a value of about $6,000), and has $9,455 in her bank account. Suzanne is presently undertaking a business administration course at TAFE. 29 Sandra has been separated from her husband for about twelve years. Two of her children (being her two teenage daughters) live with her. She resides in a Department of Housing residence at Chelsea Heights in Victoria. 30 Sandra receives income, averaging $141 a week, from part-time cleaning work. Her daughter Tammy pays one half of their joint rent (which is in a total amount of $440 a month). Sandra's only assets are a 1983 Mazda motor vehicle (to which she ascribes a value of $1,000), together with personal effects (to which she ascribes a value of $1,000). 31 It is a fair summary of the financial and material circumstances of each of Suzanne and Sandra that neither of those ladies can be regarded as affluent or as maintaining other than a modest lifestyle. 32 It is in the light of the foregoing facts and circumstances that the Court must proceed to a determination of the claim of the Plaintiff. 33 I have had the benefit of receiving a written outline of submissions and a chronology from Counsel for the respective parties. Those documents will be retained in the Court file. 34 The Plaintiff as a former wife of the Deceased is an eligible person within paragraph (c) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such she has the standing to bring the present proceedings. 35 It should here be observed that each of the five children of the Deceased (being his three children by his first wife and his two children by the Plaintiff) is also an eligible person in relation to the Deceased, each being such within paragraph (b) of that definition. In addition, Dulcie June Marker, the third wife of the Deceased, and her son Wayne Marker are each eligible persons in relation to the Deceased, the former being such within paragraph (a) of the definition, and the latter being such (as I understand it) within paragraph (d) of that definition. 36 All the other eligible persons, apart from the two Plaintiffs in the present proceedings, have been served with a notice of claim. However, none of those persons has made any claim for an order for his or her provision out of the estate of the Deceased. 37 Since the Plaintiff is an eligible person only within paragraph (c) of the definition of that phrase, the provisions of section 9(1) of the Act have effect. That subsection is in the following terms, Where an application is made for an order under section 7 by an eligible person who is such a person by reason only of paragraph (c) or (d) of the definition of eligible person in section 6(1), the Court shall first determine whether, in its opinion, having regard to all the circumstances of the case (whether past or present), there are factors which warrant the making of the application and shall refuse to proceed with the determination of the application and to make the order unless it is satisfied that there are those factors. 38 It cannot be emphasised too strongly that it is incumbent upon an applicant for provision under the Family Provision Act to place before the Court as fully and as frankly as possible all available details of the financial and material circumstances of the applicant. In the instant case that the Plaintiff has signally failed to do. 39 A totally different picture was presented by the Plaintiff in her oral evidence under cross-examination from that which had been presented in her affidavit evidence. The impression given by her affidavit evidence was of a poorly treated, inexperienced and abandoned wife and mother. Under cross-examination the Plaintiff emerged as an articulate and confident witness, experienced in business (having been bankrupt twice and having entered into a deed of assignment), who was experienced in litigation. 40 The total absence of any reference in the Plaintiff's affidavit evidence to the litigation being pursued by Valimi Pty Limited in the Supreme Court of Victoria (litigation which, if successful, must result in a significant financial benefit to the Plaintiff and her husband) or to the bank account conducted by the Plaintiff with the ANZ Bank reflects poorly upon the credibility of the Plaintiff. Further, and more importantly, information concerning those matters is of significance in determining whether the Plaintiff has established a relevant need. In that latter regard the present needs of the Plaintiff were presented as being a requirement for a motor car and a desire on the part of a Plaintiff to acquire some funds or savings which she could pass on to her children. 41 There was no evidence as to the cost of a second hand motor car. But, in any event, the evidence discloses that a motor vehicle is always available to the Plaintiff when she requires one. The submission that the Plaintiff had a need for a fund to pass on to her children was expressly abandoned by her Counsel during his closing submissions. In any event, the purpose of the Family Provision Act is to enable the Court to make orders for provision in respect to the present needs of an applicant. Its purpose certainly is not to enable an applicant to acquire some financial fund which can then pass by way of inheritance to future generations of the applicant's family. It follows, in consequence, that the Plaintiff has not established any relevant need, and, further, that the Plaintiff has not established an entitlement to have either of the foregoing asserted needs met from the estate of the Deceased. 42 In any event, the Plaintiff, from a practical point of view, has an interest in a contingent asset, being the outcome of the current litigation in the Supreme Court of Victoria. That litigation, if successful, will result in the Plaintiff and her husband and the company Valimi Pty Limited, receiving about $1,000,000. The Court must assume that there is some realistic possibility of a result in favour of the Plaintiff's husband and Valimi Pty Limited, since the legal representatives of those parties are pursuing the litigation upon the basis of no win – no fee. That contingent asset is of significance when the Court approaches the details of the financial and material circumstances of the Plaintiff and of her husband. 43 However, even if (contrary to my foregoing conclusion that the Plaintiff had not established any relevant need) it were necessary for me to do so, I would not be satisfied, pursuant to section 9(1) of the Act, that there are factors which warrant the making of the present application. In O'Shaughnessy v Mantle (1986) 7 NSWLR 142 at 147-148, Young J set forth a list (expressly non-exhaustive) of guidelines concerning factors warranting the making of an application by a former spouse. 44 In the instant case, after the relationship between the Plaintiff and the Deceased had been terminated by their divorce and after orders were made for property settlement and maintenance, as well as for costs, by the Supreme Court of Victoria, I do not consider that the Plaintiff would be regarded as being a person who had a continuing and legitimate claim upon the testamentary bounty of the Deceased. The fact that the Plaintiff did not almost forty years ago pursue her rights to enforce the orders for maintenance and costs made by the Supreme Court of Victoria does not establish a present entitlement in the Plaintiff to an order for provision out of the estate of the Deceased. 45 Without expressing any concluded view in this regard, I would comment that it is possible that the right of the Plaintiff to obtain payment of outstanding maintenance and costs has not been extinguished, and it may be possible for her to enforce such a claim against the estate of the Deceased. That possibility, although not constituting a factor warranting the making of the present application, is relevant to the Plaintiff's financial circumstances. If she can enforce such a claim, then her financial circumstances are to that extent enhanced. 46 But if (contrary to the conclusions which I have already expressed concerning the needs of the Plaintiff and concerning the existence of factors warranting the making of the application) it were to be necessary for me to proceed to a consideration of the entitlement of the Plaintiffs to an order for provision, the following matters are of relevance. Firstly, the estate is a small one. The value of the distributable estate, after costs totalling about $83,000 (of which about $7,000 has already been paid out of estate funds) are taken into consideration, will be less than $173,000. 47 Further, there have been no contributions by the Plaintiff of the nature described in section 9(3)(a) of the Family Provision Act. 48 Further, there is a strong competing claim by at least two of the beneficiaries, being Suzanne and Sandra, each of whom is in very modest financial circumstances. Not only do they each have a claim upon the bounty of their father, but that claim was recognised in his will when he appointed them the chief objects of his testamentary beneficence. Even if the Plaintiff had otherwise established an entitlement to an order for provision, the competing claims of those two beneficiaries upon the bounty of the Deceased are such that the order for provision would almost certainly have been significantly reduced, if not entirely extinguished. 49 But, as I have already recorded, in my conclusion the Plaintiff has not established an entitlement to an order for provision. It follows, therefore, that her claim will be dismissed. 50 I make the following orders: (1). I order that the claim of the Plaintiff Natalie Veronica Thyssen be dismissed. (2). I order that the Plaintiff pay the costs of the Defendant, such costs to be on the party and party basis. (3). I order that the Defendant be entitled to recoup from the estate of the late Nicolaas Jacob Marker ("the Deceased") the difference between the foregoing costs which he may recover from the Plaintiff and the costs of the Defendant on the indemnity basis. (4). The exhibits may be returned. ********** Last Modified: 12/05/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.