Dulhunty v Dewhirst [2005] NSWSC 607

New South Wales Supreme Court

Dulhunty v Dewhirst [2005] NSWSC 607 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 28 & 29 October 2004, 4 & 31 March and 1 & 9 June 2005

JUDGMENT DATE : 23 June 2005

JURISDICTION : Equity

JUDGMENT OF : Hamilton J

DECISION : Further provision made for the plaintiff by way of a legacy of $120,000.

CATCHWORDS : SUCCESSION [320] - Family provision - Principles upon which relief granted - Applications of children - Adult children generally - Further provision made by way of a legacy for one of two sisters.

LEGISLATION CITED : Family Provision Act 1982 ss 7, 9, 12, 24, 27 & 28

Dulhunty v Dewhirst [2005] NSWSC 350 Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 Hunter v Hunter (1987) 8 NSWLR 573 CASES CITED : Massingham v Massingham NSWCA 27 June 1996 unreported Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 Singer v Berghouse (1994) 181 CLR 201 Vigolo v Bostin (2005) 79 ALJR 731

Judith Anne Dulhunty (P) PARTIES : Patricia Mary Dewhirst (D)

FILE NUMBER(S) : SC 5293/01

I D Roche (P) COUNSEL : L J Ellison (D)

McGlynn & Partners (P) SOLICITORS : Turnbull Hill Lawyers (D)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

THURSDAY, 23 JUNE 2005

5293/01 JUDITH ANNE DULHUNTY v PATRICIA MARY DEWHIRST JUDGMENT 1 HIS HONOUR: This is one of two sets of proceedings heard together between two sisters concerning their father's estate. I have already determined the first ("the trust proceedings") and concluded that no moneys were taken from the father's bank account in circumstances such that the defendant ought be ordered to repay moneys to his estate: Dulhunty v Dewhirst [2005] NSWSC 350 ("my first judgment"). 2 There remain to be determined these proceedings, in which a claim is made by the plaintiff for provision under the Family Provision Act 1982 ("the FPA"). 3 The issues are whether the plaintiff was left by the testator with inadequate provision for her maintenance and advancement in life and, if so, what provision ought be made out of the estate for the plaintiff. THE LAW 4 A majority of the High Court (Mason CJ, Deane and McHugh JJ) said in Singer v Berghouse (1994) 181 CLR 201 (at 208 - 209) that the court in determining an application for provision under the FPA is required by ss 7 and 9 to carry out a two stage process. The first stage requires a determination "whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life." The second stage, which arises if that determination be made in favour of the applicant, is "to decide what provision ought to be made out of the deceased's estate for the applicant." The determination of the first stage "calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc, appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty." The correct view of the first stage is that the question is strictly one of fact, notwithstanding that it involves the exercise of value judgments. The second question involves an exercise of discretion in the accepted sense, although that discretion must, of course, be exercised judicially. That majority of the High Court disapproved the use in determining these questions of reference to the concepts of "moral duty" or "moral obligation", or even the use of those terms, since this might be thought to place a gloss upon the statute. Whilst there has been some debate as to whether or not that view was an obiter dictum only, the Court of Appeal has since determined, despite the eloquent dissent of Handley JA, that that expression of opinion ought be taken in this Court as the binding view of the High Court upon this subject matter: see Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24; Massingham v Massingham NSWCA 27 June 1996 unreported. The matter was revisited in the High Court in Vigolo v Bostin (2005) 79 ALJR 731. Gleeson CJ at [25] doubted that there was any vice in references to "moral duty", provided it was regarded as a form of shorthand and not allowed to operate as a gloss upon the statute. Gummow and Hayne JJ in their joint judgment at [73] thought it "better to forgo any convenience that these shorthand expressions may offer in favour of adherence to the relevant statutory language." All three of those Judges, constituting a majority of the High Court, shared the view that Singer v Berghouse should be taken as an appropriate guide to the construction and operation of family provision legislation: see [5] and [73]. 5 I have approached the matter as prescribed in Singer v Berghouse. This being a claim of an adult child of the testator, I shall simply carry out the two stage process in relation to the plaintiff in the context of this family and this estate. The appellate Courts have negatived that there is any "special" test or approach to the process in the case of adult children, as opposed to other persons with a claim: see Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; Hunter v Hunter (1987) 8 NSWLR 573; Vigolo v Bostin supra at [26]. The time at which adequacy or inadequacy is to be judged is the time at which the Court is determining whether or not to make an order: see s 9(2). Section 12 of the FPA provides that where the Court makes an order for provision, it may specify the portions of the estate which shall bear the burden of the provision. By s 24 of the FPA, where the Court is satisfied that an order for provision ought be made and finds that property is held by a person as a result of a distribution from the estate, it may, subject to restrictions in ss 27 and 28, make an order specifying such distributed property as notional estate. THE FACTS 6 The basic facts, including the facts as to the testator's relationship with the defendant and the plaintiff respectively, were set out in my first judgment in terms quoted here for ease of reference. "[3] The deceased, Robert George Dulhunty, was born on 16 October 1917 and died on 8 August 2000 at the age of 82. He had two children, the defendant, who was born on 24 April 1947, and the plaintiff, who was born on 24 January 1949. It is clear from the evidence of both parties that the defendant had during their joint lives a much closer relationship with the deceased than with the plaintiff. It appears that in their youth the defendant was more accepting of her parents' wishes and the plaintiff more rebellious. The defendant lived with her parents until she married in 1968. She lived with her husband and had four children. In 1978, the deceased's wife and parties' mother committed suicide. The defendant's marriage broke up in 1979 and she returned with her children to live with her father in the family home at Ryde. She continued to live there until 1981, rendering the deceased domestic services and herself being afforded accommodation. In 1981, she moved back into her own home at Dudley, a suburb of Newcastle. In about 1987 or 1988, the defendant sold her home in Dudley, but at about that time started living with Vince Della-Bianca in premises of his, also in Dudley, which then became her home. She says that, between 1981 and 1998, she and her father lived between his home at Ryde and her home at Dudley spending considerable periods in each residence. She still performed domestic tasks for him and looked after him when he was ill. In about 1995, the deceased lost his driver's licence and the defendant did all the driving between Newcastle and Sydney, which had previously been shared between them. This did not change the pattern of alternation between Ryde and the defendant's home in Dudley.