Young v Knight [2005] NSWSC 754

New South Wales Supreme Court

CITATION : Young v Knight [2005] NSWSC 754

HEARING DATE(S) : 25/07/2005, 26/07/2005

JUDGMENT DATE : 28 July 2005

JURISDICTION : Equity Division

JUDGMENT OF : Associate Justice Macready at 1

DECISION : Paragraphs 57 and 63.

CATCHWORDS : Family Provision. Application under Family Provision Act by son of deceased who suffers severe disabilities. Estate left to son and daughter equally and comprises a house and no other assets. Son given a life interest over his sister's share. Discussion of costs in these matters and the duty on legal practitioners to settle such matters if at all possible.

PARTIES : Allan Georg Young v Loretta Knight (Estate of

FILE NUMBER(S) : SC 1678/2004

Mr M. Gorrick & Miss L. Goodchild for plaintiff COUNSEL : Mr R. Colquhoun for defendant

Legal Aid Commission of New South Wales SOLICITORS : Walker Smith Solicitors, Forster, NSW

LOWER COURT JURISDICTION :

- 1 - SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

THURSDAY 28 JULY 2005

1678/04 - ALLAN GEORGE YOUNG v LORETTA KNIGHT - ESTATE OF JOHN FITZWILLIAM FRANCIS YOUNG

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late John Fitzwilliam Francis Young who died on 7 April 1997. He was survived by the plaintiff, his son, and the defendant, his daughter. The Will of the Deceased 2 The deceased made his will on 18 May 1989 under which he appointed the plaintiff and the defendant his executors and gave them the whole of his estate equally. Assets in the Estate 3 This consisted of the home of the deceased at 22 Patrick Street, Punchbowl, which was valued in 2004 at $440,000. There was also cash in the estate of $17,737. The cash was used to pay the administration expenses and then distributed between each of the two beneficiaries. They each received $7869.04. 4 The estate realty was transmitted into the names of the parties as joint tenants, which is consistent with them holding it as executors. The transmission application shows their entitlement as executors. If they had taken it as beneficiaries they would have, of course, under s 26 of the Conveyancing Act been tenants in common. In those circumstances it was not submitted that there had been a distribution such as to bring into play the provisions of s 28(5)(c) of the Family Provision Act. 5 One of the matters that has a substantial impact in this case is the question of costs. The defendant's costs total the sum of $37,000. The plaintiff is legally aided and, accordingly, his costs will vary depending on whether he receives an order for costs. If he receives an order for costs the costs will total $22,814 and if not they will total $16,744. 6 The arrangement between the Legal Aid Commission and the plaintiff is such that if he receives no award of costs his costs will only be recoverable from the property when it is sold. He can thus bring these proceedings free from any concern as to his personal liability for costs if he is unsuccessful. This would not normally be the case with the defendant. Family History 7 The defendant was born in 1941 and the plaintiff in 1944. The defendant left high school in 1956 and married in 1963. She has had four children, born in 1965, 1966, 1970 and 1972. She then left the family home to establish her own life after her marriage. 8 In the mid 1960s the plaintiff, his late parents and his late brother moved to the property at Punchbowl. By this time, of course, the defendant and her first husband were living at Miranda. The two parties, the brother John Young, moved to New Guinea in the late 1960s. In this period, and in the 1970s, the plaintiff was employed in the insurance industry and was living at home with his parents and paid board to his mother. He helped his parents around the house, carrying out the normal chores. 9 In 1970 the defendant and her first husband moved to Coffs Harbour where they remained until 1975. In 1973 the plaintiff was seriously injured when he was mugged on a train trip and thrown from the train. He suffered head and other bodily injuries and was admitted to hospital and those injuries affected every aspect of his daily functioning and altogether he was in hospital for some two years between 1973 and 1975. He had multiple operations to his head, eyes and hip and had extensive rehabilitation. 10 Between 1975 and 1985 the plaintiff had some minor employment with Harvey Trinder, the insurance company, in a rehabilitation position but continued to live at home with his parents. During this period his mother spent years teaching him how to cook. 11 In the late 1970s the defendant and her husband moved to live in Lismore, and also around about that time the plaintiff's rehabilitation position finished and he then went onto a disability pension and he receives that to the present day. 12 Between 1980 and 1986 the defendant and her first husband lived in Sydney but they separated in 1986. She met and started to live with her second husband in 1987, and they were married in 1991. In due course they purchased land on the Sunshine Coast for some $50,000, most of the funds for which came from the defendant's property settlement with her first husband. 13 In 1995 the defendant contracted cancer and she had extensive treatment, including chemotherapy until late 1996. Fortunately she seems to be free of the threats from that disease at the moment. 14 The defendant and her husband, using some money which the defendant's husband obtained, built a house on their land on the Sunshine Coast and they moved there in December 1996. 15 In the meantime things had not been going well in the deceased's house. The deceased's wife started to suffer from dementia between 1997 and 1998 and in that year there was the death not only of the deceased's wife but also of their son John, who was the only other sibling of the plaintiff and the defendant. The plaintiff was thus left alone in the house with the deceased and obviously did some cooking and other domestic duties. 16 The deceased made his will in May 1989, as I have recounted, and he died on 7 April 1997. Probate was granted on 6 June 1997. 17 Prior to that there had been a discussion with the solicitors as to what would happen to the property. This is set out by the defendant in para 8 of her affidavit and the relevant part is in the following terms: "In May 1997 Allan and I consulted solicitor Christopher Lee of Christopher Lee & Associates of Hurstville about my late father's estate. We spoke to Mr Lee. Allan was present when I said to Mr Lee words to the effect: 'What would happen if one of us wanted to sell the Punchbowl property and the other didn't?' Mr Lee said: 'The property would have to be sold'.