Sprowles v Bertoldo [2007] NSWSC 1255

New South Wales Supreme Court

CITATION : Sprowles v Bertoldo [2007] NSWSC 1255

HEARING DATE(S) : 01/11/07. 02/11/07

JUDGMENT DATE : 6 November 2007

JURISDICTION : Equity Division

JUDGMENT OF : Associate Justice Macready at 1

EX TEMPORE JUDGMENT DATE : 6 November 2007

DECISION : Paragraph 61

CATCHWORDS : Family Provision. Application under the Family Provision Act 1982 by a daughter. Consideration of relationship between plaintiff and deceased. Deceased evicted plaintiff from the deceased's home. Order for provision made. No matter of principle.

PARTIES : Vicki Sprowles v Wendy Lee Bertoldo & Anor

FILE NUMBER(S) : SC 4047 of 2005

COUNSEL : Mr CJ Bevan for plaintiff Mr K Morrissey for defendants

SOLICITORS : Turner Freeman for plaintiff Warren F Ball & Co for defendants

- 1 - THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

TUESDAY 6 NOVEMBER 2007

4047/05 VICKI SPROWLES v WENDY LEE BERTOLDO and ANOR

JUDGMENT 1 HIS HONOUR: This is an application under the Family Provision Act 1982 in respect of the estate of the late Loris Erna Fay Sprowles who died on 23 November 2004 aged 75 years. She was survived by her two daughters who are the plaintiff and the first defendant. The will of the deceased 2 The deceased's last will was made on 30 October 2003 and the main bequest was a gift of one third residue to the plaintiff and two thirds residue to the first defendant. 3 No Probate was obtained but the plaintiff obtained a grant under section 41A of the Wills Probate and Administration Act 1898 for the purposes of the proceedings. Estate of the Deceased 4 The estate of the deceased consisted of cash, jewellery, and a motor vehicle and its gross value was estimated at an amount of $10,143 98. The plaintiff's costs on a party and party basis are estimated at $78,400 and the first defendant' costs at $69,048. 5 There is a prescribed transaction which occurred when the deceased sold her home in 2002 and paid the proceeds of $481,000 to the first defendant and her husband's superannuation fund. She also at this stage signed a binding nominating form nominating the beneficiary in favour of the first defendant. The parties are agreed that this is in fact a prescribed transaction. 6 There was also a gift of $70,000 on 1 July 2004 by the deceased to the first defendant. There is no agreement in relation to the estate but it was conceded in submissions that it was made with the relevant intention to defeat the plaintiff's claim and therefore it is also a prescribed transaction. Family History 7 The deceased was born on 4 October 1929 and she had two children, the plaintiff Vicki born on 17 October 1955 and the first defendant Wendy born on 4 May 1957. 8 In 1968 the family moved to Riverstone. It was in 1974 the first defendant left the home and started to make her own way of life. The deceased herself suffered a stroke in February 1986. 9 The plaintiff had been working for some time at a company Makita when, on 30 June 1986, she suffered an accident. She fell down the stairs and hit her head and started to suffer from medical problems. These problems included chronic fibro myalgia syndrome, chronic pain from the industrial accident, sleep disturbance, chronic fatigue syndrome, poor mobility, neuro cognitive impairment and psychosis. 10 The first defendant married her husband in 1990. The employment of the plaintiff finally terminated on 7 December 1992. At that stage her 12 year de facto relationship with Graeme Dorman had come to an end. After living by herself for a short time she moved to live with her mother, the deceased, on 1 October 1993. 11 The plaintiff was involved in litigation concerning her accident for some years. Originally in her trial in this Court she received an award of $1.4 million. That was finally overturned on appeal [see Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 AT 752.] 12 As a result of that the plaintiff in due course was involved in other proceedings with her former solicitor and ultimately, in 1999, she received a sum of $215,000 after substantial expenditure on costs. 13 The plaintiff lived with the deceased from 1993 at the deceased's home at 62 Roxburgh Park Road, Castle hill and that continued until 2 July 2002 when her mother evicted her from the home. I will go into the details of that later. 14 At that stage the first defendant and her husband had by then moved to occupy a home at Kenthurst. 15 On the 21 November 2002 the deceased sold her home for $495,000 and she then moved in to the granny-flat of the home of the defendant at Kenthurst. In November 2002 she transferred $481,000 to the first defendant and her husband's superannuation fund. At that stage she was aged 73 years and was not employed. 16 In July 2003 the first defendant and her husband purchased a food distribution business which they still hold at the present time. 17 The deceased made her will on 30 October 2003, as I have already recounted. On that day there was also a binding nomination of beneficiary form signed by the deceased and the defendant. There was also a resolution of the trustees of that superannuation fund to bind them to accept that nomination. 18 On 1 July 2004 there was a gift of $70,000 to the first defendant by the deceased. The deceased died on 23 November 2004 and, in due course, these proceedings were commenced within time. 19 In the course of the hearing before me on 2 November 2007 the parties sensibly reached agreement as a compromise in respect of the notional estate and I will refer to that in greater detail later. Eligibility 20 The plaintiff is plainly an eligible person under the Act. In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two stage approach that a Court must take. At page 209 it said the following:- "The first question is, was the provision (if any) made for the applicant inadequate for (his or her) proper maintenance, education and advancement in life? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or 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 determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that from arrangements to pay creditors". The plaintiff's situation in life 21 The plaintiff and 52 years of age, single, and has no dependants. She lives in shared accommodation for which she pays $200 per fortnight. Her income is $611 45 per fortnight by way of a pension, and her expenses are presently running at $700 per fortnight, in excess of her income. 22 Her asset position is as follows. She has cash $9,090, a motor vehicle worth $1,000, jewellery worth $1,000 and the balance of her superannuation, an amount of $133,187.61. This is the amount that remains from the $215,000. Most of it, including $60,000 paid just recently, has been used to meet her legal expenses. 23 She also has another asset and that is under the terms of settlement there is an agreement that she should recover the costs against the first defendant and, accordingly, she should recover a substantial amount of the party and party costs to which I have already made reference. 24 So far as her medical condition is concerned evidence was given by Dr Scott and her report dealt with a number of matters, including a diagnosis of the impact of her illness, and also her prognosis. The details of those are as follows: "Ms Sprowles' symptoms are generalised pain, persistent fatigue, sleep disturbance, exhaustion after exercise and neuro-cognitive impairment are consistent with a diagnosis of cropped chronic fatigue syndrome (Fukuda et al 1994; The Royal Australian College of Physicians, ,Chronic Fatigue syndrome, clinical practice guidelines - 2002).