Loxton v Loxton [2008] NSWSC 227

New South Wales Supreme Court

CITATION : Loxton v Loxton [2008] NSWSC 227

HEARING DATE(S) : 12 March 2008

JUDGMENT DATE : 12 March 2008

JURISDICTION : Equity Division

JUDGMENT OF : Windeyer J at 1

EX TEMPORE JUDGMENT DATE : 12 March 2008

DECISION : No provision for plaintiff. No order for costs.

CATCHWORDS : FAMILY PROVISION AND MAINTENANCE - claim by stepdaughter of deceased - small estate - lack of continuing close relationship - whether factors warranted the marking of the application - whether plaintiff would be regarded as natural object of testamentary recognition

LEGISLATION CITED : Family Provision Act 1982

CATEGORY : Principal judgment

CASES CITED : Re Fulop Deceased (1987) 8 NSWLR 679

Sandra Loxton (Plaintiff) PARTIES : Lee Albert Loxton (First Defendant) The Public Trustee (Second Defendant)

FILE NUMBER(S) : SC 1919 of 2005

A Girard (Plaintiff) COUNSEL : In Person (First Defendant) Submitting Appearance (Second Defendant)

Brazel Moore Lawyers (Plaintiff) SOLICITORS : In Person (First Defendant) Submitting Appearance (Second Defendant)

- 8 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WINDEYER J

WEDNESDAY 12 MARCH 2008

1919/05 SANDRA LOXTON v LEE ALBERT LOXTON AND ANOR

JUDGMENT

1 HIS HONOUR: The plaintiff, Sandra Loxton, seeks an order under the Family Provision Act 1982 for her maintenance and advancement out of the estate of her stepmother, Celesmonda Loxton who died on 11 or 12 September 2003 aged 62. 2 Mrs Loxton left a will dated 10 September 2003, probate of which was granted to the Public Trustee on 28 October 2003. Under that will, the deceased gave all her estate to her son, Lee Albert Loxton (Lee). He is the first defendant. The Public Trustee is the second defendant. He has filed a submitting appearance because the whole of the estate has been distributed. 3 The estate at death consisted of a property at Sadleir, estimated then to be worth $330,000 but now accepted as being of value between $280,000 and $305,000. The other assets in the estate consisted of some money in bank accounts totalling about $22,300. 4 Although the evidence is either missing or sparse, it seems that after payment of costs, commission and liabilities, all funds in the estate which were formerly in bank accounts had been used and ultimately the Sadleir property was transmitted to the first defendant as devisee entitled under the will of his mother. 5 It is probably desirable to explain the way in which the Sadleir property came to be held by the deceased. It had originally been purchased by the father of the plaintiff, Mr Albert Loxton, and the plaintiff's mother under a terms contract through the Housing Commission at a time when those arrangements were handled through the Rural Bank of New South Wales. The plaintiff's mother and father were divorced and as a result of the arrangements on divorce, the mother's share in the home passed to the father. 6 Mr Loxton died intestate on 14 November 1985. By that time, he had married the deceased, his second wife, having married her in August 1978. The property then passed to her on intestacy. Whether or not it was the only asset in the estate is probably irrelevant but that is what happened. On her death, the property passed under her will to her son, the first defendant. In fact, it was transferred with the consent of the Public Trustee and probably directly as a result of negotiations with the successor to the New South Wales Housing Commission but that does not matter for the purpose of these proceedings. The transmission application was dated 8 January 2004. 7 The property, since it went into the name of Mr Lee Loxton, has been mortgaged to Western City Credit Union Limited under a registered mortgage. That mortgage, it is agreed, is for a sum of about $112,000. I will return to this, but the only basis upon which the mortgage has not gone into default is that an advance has been made to Mr Lee Loxton from the New South Wales Department of Housing which has provided a loan not only to cover arrears for his home loan but an advance for six months mortgage payments. The total amount is $8,192 but by way of loan. In other words, the amount of that loan, namely $8,192, would be added to the amount due under the mortgage and bring about a liability of about $120,000. 8 Mr Albert Loxton and the deceased married in 1978 when the deceased came from the Philippines to live with her husband, Mr Loxton, as his wife. 9 Mr Loxton, the father of the plaintiff, had three daughters. By the time the deceased came to live at Sadleir, two of the daughters had moved out but the plaintiff, who was the youngest, was still living in the house. She was born in August 1965 so that at the time of the marriage, she was 13 years of age. She remained living in the house with her father and stepmother until 1982. 10 The evidence shows that while at the start the relationship between Sandra and her stepmother was quite good, it began to deteriorate quite quickly and that, at the end, there was real disharmony. On the plaintiff's uncontested evidence, it was the conduct of her stepmother towards her by way of verbal and perhaps to some extent physical abuse that caused her to leave. I accept that evidence. After her father died in 1985 there was some contact between the plaintiff and the deceased, but it was obviously anything other than a close relationship. 11 There was one child of the marriage of Mr Albert Loxton and the deceased here, namely the first defendant, Lee. He was born in June 1979. He lived with his parents up to the time his father died and remained living in the Sadleir property with his mother up until the time she died. He is still there. According to a medical certificate of Dr Chan dated 15 May 2007, he became depressed as a result of his mother's death because he had been very close to her. This depression has unfortunately led to some substance abuse for which he is being treated. He said in evidence that he has undergone detoxification and that he has not taken drugs for a period, of about seven or eight months. 12 According to medical evidence, in May 2007 he was not capable of doing any work. He receives a Centrelink New Start pension. He said his intention is to get a job, any job, but subsequently it became clear that although that may be his intention, he has really done nothing in the way of applying for any jobs for some years. His position, therefore, is that he has the house worth between $280,000 and $305,000, and he has debts of at least $120,000. He has a wife and a child but they are not living with him at the present time, the relationship having fallen apart and his wife and daughter are now living with the wife's mother. He hopes that position will change and that their relationship will recover. Whether it will or not, the Court has no way of knowing, although his wife was in Court with him. 13 Lee is living on his New Start Allowance of about $339 per fortnight net, after deduction of payments for electricity and water which apparently the authorities will deduct and pay directly upon request which has been made. He has no other income and it does seem that unless he gets a job within the next six months, he is likely to lose his house. 14 There is no evidence as to what happened with the moneys which were borrowed against the house but the Court, I think, should not assume that those moneys were applied for any useful purpose. 15 I come now to the position of the plaintiff. First, it is necessary to bear in mind that after the divorce and, at the time of the second marriage, she was a young person and it is also necessary to bear in mind that had her relationship with the deceased been better, it is likely she would have stayed in the home for longer because she really had nowhere to go after she, in her words, needed to leave the house. 16 While she remained living in the house for the four years that she did, it was a normal household in that the deceased did her washing and cooked for her, as she did for Mr Albert Loxton. In other words, it was not a particularly happy relationship but it was one which was made to work. 17 The present position with the plaintiff is, I think, that she has always tried to work. She started working in 1981 at Woolworths and has really continued to work so far as she can. She is a single mother. She has an 18 year old daughter. When the proceedings started, she was on Social Security benefits but it is fair to say that she seems to have done what she can to earn an income and she is presently earning an amount of about $850 per week gross. From that, however, she is paying rent, tax, credit card instalments and all other outgoings which just about equal her income. In other words, she is having quite a hard time and has nothing to spare. Her only assets are some furniture and a 2003 motor car but there is what I take to be a loan for the motor car of at least its value. 18 The plaintiff has liabilities to the bank and on credit card of about $17,000 or slightly more. She has other requirements for the purchase of some furniture, some bedding and some other electrical equipment, none of which could be said to be other than basic requirements, and she asks for a sum of $20,000 to give her some contingency against further expenses. In other words, her claim is a very modest one for provision of approximately $43,000 and is a claim which would normally, I think, have been brought in the District Court. 19 Because the plaintiff is not a child or spouse of the deceased, although she is an eligible person, the Court under s 9 of the Family Provision Act must first determine whether, in the opinion of the Court, there are factors which warrant the making of the application and if there are no such factors, then the Court should refuse to proceed further with the application. The way in which the Court determines whether or not there are factors which warrant the making of the application is not to consider whether or not the application has a reasonable chance of success because that is a matter which has to be considered in any application. What has to be considered so far as the factors are concerned is "whether there are factors which, when added to the facts which render the applicant an eligible person, give her the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased": see Re Fulop Deceased (1987) 8 NSWLR 679. 20 I have considerable difficulty with this matter. While one is naturally sympathetic to the plaintiff because her financial position is bad, she was only a member of the household of the deceased for a period of, I think, less than four years and that time ended in 1982. While she was a member of that household, probably through no fault of her own, she had no close relationship with the deceased. The deceased helped her with domestic tasks which one might do for a child but it could not be said that they had a good relationship, albeit that it probably came to an end mainly as a result of the deceased's attitude towards the plaintiff. However, the period of living in the same household ended 25 years ago and although I accept the evidence there was some contact after that, there was clearly no close contact. Thus, the only basis upon which it could be thought that sensible members of the community might regard the plaintiff as somebody who ought to be regarded as a proper object of testamentary bounty by the deceased would be because of her present difficult economic circumstances. 21 The position might well have been different had we been dealing with a bigger estate or a much closer continuing relationship but I have concluded that there are no factors which warrant the making of the application. Thus the proceedings should be dismissed. 22 It is, I think, always desirable in these matters to proceed further and to set out what would have been the position had I considered the application was warranted and, therefore, that it should be further considered. 23 This is a matter where the estate has been distributed. Nevertheless, it is an action which was commenced within the 18 months period after the death of the deceased and therefore is not out of time. However, as the whole of the estate has been distributed, any order in favour of the plaintiff would require an order that the Sadleir property be designated as notional property of the deceased and, having done so, then to provide for an order in favour of the plaintiff out of that notional property and, presumably, if relevant, to provide for the costs to be paid out of that notional property. 24 The property is the Sadleir property. The defendant has lived in it all his life. He has nothing else. When considering the legitimate claims of the deceased's son and stepdaughter and the way in which these claims might be considered, I do not think it could be said that the plaintiff has been left without proper provision. That is, of course, a difficult decision to come to but it has to be borne in mind that the result of any order in favour of the plaintiff will require the Sadleir property to be sold. That would put the plaintiff in a somewhat better position than she now is but would undoubtedly put the son of the deceased in a far worse position than he now is. While to some extent his problems may be self-inflicted, they may have resulted from depression which he fell into after his mother's death. His proper claim cannot be met if provision is made for the plaintiff. 25 The plaintiff, of course, on one basis, looks more deserving because she has struggled and she is working and her position is anything other than good but bearing in mind the small extent of the estate, the greater claim of the son of the deceased, and the very limited claim if any of the stepdaughter of the deceased, I would have concluded in any event that the summons should be dismissed. 26 In the circumstances of this case, I would not make any order as to costs. In any event as the defendant is self-represented. **********