Stevens & Anor. v Reiner [2004] NSWCA 246

New South Wales Court of Appeal

CITATION : Stevens & Anor. v Reiner [2004] NSWCA 246 HEARING DATE(S) : 14 July 2004 JUDGMENT DATE : 14 July 2004

JUDGMENT OF : Sheller JA at 41, 43; Hodgson JA at 1; Ipp JA at 42 DECISION : Appeal dismissed with costs.

CATCHWORDS : SUCCESSION - Family provision and maintenance - Widower's application - Failure to make finding as to assets of estate - Whether decision vitiated. PARTIES : Yolanda Stevens and Elizabeth Green - appellants Anton Reiner - respondent FILE NUMBER(S) : CA 40228/04 COUNSEL : Mr. D.E. Baran for appellants Mr. C.M. Harris for respondent SOLICITORS : Dorrough Smart, Surry Hills for appellants Tress Cox, Sydney for respondent

LOWER COURT Supreme Court - Equity Division JURISDICTION : LOWER COURT SC 5427/02 FILE NUMBER(S) : LOWER COURT Master Macready JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40228/04 SC 5427/02

SHELLER JA HODGSON JA IPP JA

Wednesday 14 July 2004 STEVENS & ANOR. V. REINER Judgment 1 HODGSON JA: The late Maria Reiner died on 4 April 2002 aged 76. She was survived by the respondent, her widower, and by the appellants, two daughters from her first marriage. By her last will dated 4 May 1983, the deceased appointed the appellants her executors, gave a legacy of $30,000 to the respondent, gave the second appellant, Ms Green, a legacy of $25,000 and a house at Dover Heights, and gave the residue of her estate equally between the two appellants. 2 According to the inventory of assets and liabilities provided with the probate application, the estate of the deceased comprised a Dover Heights house, given in that inventory an estimated value of $1.25 million; six residential units at Randwick, given in the inventory an estimated value of $1.23 million; and NRMA shares said to be worth $1,220. 3 Probate of the will was granted to the appellants on 14 October 2002, and on 7 November 2002 the respondent commenced proceedings against the appellants seeking provision under the Family Provision Act. On 19 December 2003, Master Macready ordered that in lieu of the legacy of $30,000 the respondent receive a legacy of $810,000, and that the respondent's costs be paid out of the estate. The appellants appeal from that decision. 4 I will give an outline of the background circumstances. 5 The deceased was born in 1926 and married her first husband in Poland. Ms Green was born in 1946 in Poland, and the first appellant Mrs Stevens was born in 1948 in Poland. The family emigrated to Australia in about 1951. 6 The respondent was born in Paris in 1927. He met the deceased in 1951, and they commenced a relationship. The relationship ultimately led to the deceased being divorced from her first husband in 1974, and the deceased and the respondent were married on 24 July 1976. They remained married until the death of the deceased. There were no children of this marriage. The deceased's first husband died in about 1985. 7 The real property left by the deceased was acquired by her as a result of a property settlement from her first husband. The respondent worked during the marriage in businesses, and then from about 1980 until his retirement in 1995, for Katies. The respondent's wages were paid into a joint account of the respondent and the deceased with the Commonwealth Bank. The respondent and the deceased had another joint account with the National Australia Bank, into which German war compensation pensions for both of them were paid. The deceased looked after the financial aspects of the marriage, and apparently provided the respondent with a small allowance. 8 There was evidence before the Master that at the time of the hearing the Dover Heights House was worth about $2.65 million, and the Randwick units about $2.27 million. Although Mr Baran for the appellants submitted that the appellants did not agree with these values, it is plain beyond argument that this was the best evidence of the value of the real estate that was before the Court. 9 There was also some evidence that, in addition to the assets referred to in the inventory, there were additional assets associated with the estate of the deceased relevant to the application. 10 Firstly there was a sum of about $58,500 in the joint account with the National Australia Bank, and $8,634 in the joint account with the Commonwealth Bank. 11 Then, there was a sum of something over $243,000 in an account with St George Bank. According to Ms Green, this represented proceeds of the sale of property which she and Mrs Stevens had received from the estate of their late father in about 1985, plus accumulated interest. However, Ms Green did not assert that this was held on trust for her and/or Mrs Stevens, but asserted it was part of the deceased's estate. On 26 April 2002 St George Bank issued a bank cheque for $243,749. How and at whose instigation that happened was not explored in evidence. That bank cheque was paid into the joint account with the Commonwealth Bank on 3 May 2002. 12 There were a number of significant withdrawals from the joint accounts in April and May 2002. An amount of $56,980 was withdrawn from the National Australia Bank account on 16 April 2002. The respondent's evidence was that this was withdrawn in cash, and half given to Ms Green. Ms Green did not respond to that evidence. Amounts of $8,600, $1,870 and $6,178 were withdrawn from the Commonwealth Bank account, on 9 April 2002, 22 April 2002 and 26 April 2002 respectively, on the basis of withdrawal forms filled out and signed by the respondent. It appears he received these amounts, and no issue was taken concerning them. 13 A major factual issue in the case concerned a withdrawal of $243,749 from the Commonwealth Bank on 24 May 2002. That was on the basis of a withdrawal form apparently written out by Ms Green and signed by the respondent. I will say more about this later. 14 The last matter concerning additional assets relevant to these proceedings and the appeal arose from evidence given by the respondent that he found in the house cash amounting to $120,000 and a further $11,000 in French money. His affidavit evidence was that Ms Green took $80,000 of this, Mrs Stevens took $40,000, and he kept the French money. Ms Green did not respond to that evidence in her affidavit, although in her oral evidence she denied she received $80,000 but accepted that the respondent received the French money. Mrs Stevens in her affidavit said that the allegation concerning $120,000 in cash and $11,000 in French money being hidden in the deceased's bedroom and those matters attributed to her were untrue. 15 Dealing next with some events that occurred after the death of the deceased, it was not in issue that the respondent was not shown any will by the appellants before he went overseas a little time after the death. The respondent's evidence in his affidavit was that he was not told about the will between the time he returned from overseas on 15 August 2002 until 18 October 2002, when the appellants told him they had a will from 1977. 16 There was evidence before the Court that shortly after the deceased's death, the appellants offered to purchase a one-bedroom unit and to permit the respondent to reside there. Apparently at that time the respondent objected to this on the basis that the unit would not belong to him. The respondent consulted solicitors, Tress Cocks & Maddox, who on 13 September 2002 wrote to various bodies and placed an advertisement in the Sydney Morning Herald asking about a will. On 14 October 2002 Tress Cocks & Maddox wrote to each appellant asking about a will, and referring to the respondent's attempts to obtain a copy. There was no response to that letter, but on the very same day probate of the will was actually granted to the appellants. 17 In her affidavit in response to the respondent's affidavit, Ms Green said she could not find a will. She did not say when she found the will, or suggest that she told the respondent anything about it prior to 14 October 2002, or give any explanation for not telling the respondent about it. 18 In her affidavit in response to the respondent's affidavit, Mrs Stevens said that as soon as the will was located she took all necessary steps to bring it to the respondent's attention as soon as possible, and that until service of the summons they were seeing each other every day. There was no statement of what steps were taken or of what was said to the respondent about the will. 19 The summons was issued on 7 November 2002. On 22 November 2002 solicitors who acted for the appellants on the probate application advised that they were specifically instructed not to accept service of the summons. Tress Cocks & Maddox also sent letters to the appellants and their solicitors requesting payment of the legacy of $30,000, and there was no response to those letters. 20 I turn now to evidence before the Master concerning financial circumstances. 21 The respondent's evidence was that he lived in a rental property to which he had moved in about January 2003. His evidence was that his total monthly income was about $2,030 and his total monthly outgoings $2,122 including rent of $975. He asserted he had no assets other than an old car which he put at $4,000 and the unpaid legacy amounting to about $31,000 with interest. He said that he had a debt of $33,500 arising from a loan to assist with legal costs of the proceedings. He said he was in reasonably good health for his age. 22 Ms Green's evidence was that she was fifty-seven and was living in the Dover Heights house. Her evidence was that her main asset was a loan due to her of about $26,000. She said she had borrowed $12,800 from her sister. Her income was $385 net per fortnight sickness benefit, and there was a monthly shortfall of income of $277. Under the will she was to receive the Dover Heights house and about $1 million. Her evidence was that she was in extremely poor health. 23 Mrs Stevens' evidence was that she was fifty-five, was married and had children from a former marriage who were not dependent on her. She and her husband lived in the house at Dover Heights of which her share was worth $1.3 million. She had a BMW car valued at $35,000, a bank account of about $20,000, and there was a mortgage of $350,000 over the house. Her husband had recently sold his business and was unemployed. She would receive about $1 million under the will. (Both these figures of $1 million were subject to reduction in the event that the respondent obtained an order under the Family Provision Act.) Mrs Stevens had some health problems. 24 In his reasons, the Master accepted the evidence on both sides concerning the financial position of the parties, subject to questions concerning the amount of about $243,000 to which I have referred, and also perhaps the amount of $120,000. I will return to those matters. He referred to evidence concerning disputes between the respondent and the deceased, but found that the marriage was a long and happy one and he did not regard the evidence of disputes as of great importance. He referred to the respondent's claim as being for between $1 million and $1.1 million, based on a two-bedroom unit plus $300,000 for contingencies; and he said that he considered that was an appropriate order subject to the question of whether the respondent had already received benefits from the estate. He said there was no doubt the respondent took the $11,000 French money. He made no express finding concerning the $120,000. As regards the $56,980, he apparently disregarded this because it was from the joint bank account. 25 As regards the $243,000, the Master referred to the evidence of Ms Green and considered it to some extent supported by Mrs Stevens, this evidence being that the money was withdrawn from the Commonwealth Bank and then taken by the respondent; and he also considered the respondent's evidence that he did not get the money. He considered the respondent's evidence concerning the signature to the withdrawal form, and his evidence as to whether or not he was at the bank, and he said this evidence was unsatisfactory. He also gave weight to admissions by the respondent to the effect that when he was working for Katies, he was making $200 to $300 per week selling wire coat hangers. He preferred the evidence of the appellants on this matter, and found that the respondent retained the $243,000. In the result he awarded $810,000. 26 The appellants relied on the following grounds of appeal: 1. The learned Master made a material error of fact in holding that the respondent's accommodation needs should be referable to a two bedroom Unit despite concessions made by the respondent that he was prepared to accept proposals from the appellants for the Estate to contribute to the purchase of a one bed room Unit.