Deborah Anne Meredith v Anthony John Campbell [2007] NSWSC 682

New South Wales Supreme Court

CITATION : Deborah Anne Meredith v Anthony John Campbell [2007] NSWSC 682

HEARING DATE(S) : 22 February 2007

JUDGMENT DATE : 29 June 2007

JUDGMENT OF : Associate Justice McLaughlin

DECISION : 1. I order that the summons be dismissed ; 2. I order that the Plaintiff pay the costs of the Defendant, such costs to be on the party and party basis ; 3. The exhibits may be returned

CATCHWORDS : Succession. Family Provision. Claim by adult daughter. Financial and material circumstances of Plaintiff. Whether Plaintiff has been left without adequate provision for her proper maintenance. Only asset of Deceased was her interest as joint tenant with Defendant in their residence. Competing claim of Defendant, who was sole object of testamentary beneficence of Deceased. Contributions by Defendant towards purchase of and repairs and renovations to house property. Notional estate

LEGISLATION CITED : Family Provision Act 1982

CASES CITED : Blore v Lang (1960) 104 CLR 124 Singer v Berghouse (1994) 181 CLR 201

PARTIES : Deborah Anne Meredith Anthony John Campbell

FILE NUMBER(S) : SC 2504 OF 2005

COUNSEL : Mr C. Locke (Plaintiff) Mr. L Ellison SC (Defendant)

SOLICITORS : Helen Webber (Plaintiff) L Rundle & Co (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Friday, 29 June 2007

2504 of 2005 DEBORAH ANNE MEREDITH v ANTHONY JOHN CAMPBELL JUDGMENT 1 HIS HONOUR: These are proceedings under the Family Provision Act 1982. 2 By summons filed on 19 April 2005 Deborah Anne Meredith claims substantively an order that provision be made for her maintenance, education and advancement in life out of the estate or out of the notional estate of her late mother Mary Campbell (to whom I shall refer as "the Deceased"). 3 The Deceased died on 10 July 2004, aged 79. 4 The Deceased left a will dated 4 April 2000. However, in the circumstances which I will shortly outline, no grant of administration has been obtained of that will. 5 By that will (which appears to have been prepared by the Deceased without the benefit of legal advice, and is written upon a printed will form) the Deceased appointed the Plaintiff to be executor. The will then continued, I Give Devise and Bequeath To my husband Anthony J Campbell after funeral expences [ sic ] my entire estate land buildings any money in banks or building societys [ sic ]. 6 The Deceased had been married twice, firstly to Phillip Patrick Reilly (in about 1947), and subsequently, after the death of Mr Reilly on 12 February 1993, to Anthony John Campbell (who is the Defendant to the present proceedings) on 15 August 1999. 7 The Plaintiff is one of the six children born to the Deceased, of her first marriage. No children were born of the second marriage of the Deceased (who was aged 74 at the time of that marriage). 8 In the mid-1950s the Deceased and her first husband resided in a house property at 29 Collaery Road, Russell Vale (also referred to as Woonona), which they rented from the Housing Commission of New South Wales. In about 1977 they entered into an agreement with the Housing Commission for the purchase of that house property by instalments. Financial assistance was given to the Deceased and her first husband by one of their children, Jerry Reilly (a brother of the Plaintiff), to assist them in making those payments to the Housing Commission. Throughout her first marriage the Deceased was not in employment, but fulfilled the roles of wife and mother. Her husband was the breadwinner of the family, working as an accountant. 9 The Deceased continued to live in the Collaery Road property after the death of her first husband in 1993. Whilst her children had been living at home they had each contributed financially towards the household outgoings and expenses. However, those children had all moved away from home by the time of the death of their father in 1993. Thereafter, the Deceased received some financial assistance from her children towards the cost of repairs and maintenance of the house property and towards the cost of household outgoings. 10 After their marriage in August 1999 the Defendant moved into residence with the Deceased at the Collaery Road property. 11 On about 17 April 2000 the Defendant advanced to the Deceased an amount of about $22,000, with which she discharged the outstanding indebtedness to what had by then become the New South Wales Land and Housing Corporation. The title to the Collaery Road property was thereupon transferred to the Deceased. 12 On 1 November 2000 the Deceased transferred to the Defendant and herself as joint tenants, the title to the Collaery Road property, the consideration being stated therein to be $1. The Deceased and the Defendant continued to live in the Collaery Road property until the death of the Deceased on 10 July 2004. 13 Upon the death of the Deceased the Collaery Road property devolved by survivorship upon the Defendant. It would appear that the Deceased had no other assets at the time of her death apart from her interest as joint tenant in the Collaery Road property. The Plaintiff, as executor named in the last will of the Deceased, did not obtain a grant of probate of that will, since the Deceased's interest in the Collaery Road property passed to the Defendant by survivorship. However, on 20 July 2006 the Plaintiff obtained a grant of letters of administration of the estate of the Deceased pursuant to section 41A of the Wills, Probate and Administration Act 1898, for the purpose only of enabling her to make an application under the Family Provision Act. 14 In May 2005 the Deceased sold the Collaery Road property for $369,000. 15 An amount of $174,162 (being about half of the net proceeds of sale of the Collaery Road property) has been retained in a controlled money account, pending the outcome of the present proceedings. 16 The Defendant, since the death of the Deceased, has no kinsfolk or other ties in the Wollongong area (in which the Collaery Road property is located). Upon the sale of the Collaery Road property the Defendant removed to Tamworth, a locality in which he had previously resided, and in the vicinity whereof his son and grandchildren presently reside. 17 The Plaintiff was born on 5 November 1965, and is presently aged 41. She lived with her parents on the Collaery Road property until she moved from home in 1983, at the age of 17. She has been married only once, to her present husband Todd Meredith. They have three children, Dylan (who was born on 19 January 1993, and is presently aged 14), Rhys (who was born on 12 February 1995, and is presently aged 12), and Liam (who was born on 27 August 1999, and is presently aged 7). 18 The Plaintiff is currently employed in a permanent part-time capacity as a member service officer by a health fund, Australian Health Management. She has been in that employment since November 2004. She had previously, until early 2004, been employed by Telstra for a period of ten years. It is at the Plaintiff's choice that she works only 20 hours a week, since she is desirous of accommodating her work schedule to being available for her children before and after school. She expects later to work longer hours, as the children grow older. 19 The Plaintiff placed before the Court a schedule outlining details of the current financial circumstances of herself and her husband. The Plaintiff receives a net salary of $425 a week. Her husband receives wages and workers compensation payments totalling $850 net a week. In addition, the Plaintiff receives from Centrelink a family allowance in a net amount of $74 a week. The total net weekly income of the Plaintiff and her husband is $1349. According to that schedule, the weekly expenditure of the Plaintiff and her husband totals $1044. One of the significant items of that weekly expenditure is a mortgage repayment in an amount of $248. 20 The assets of the Plaintiff and her husband consist of a house property situate at and known as 2 William Street, Bulli, which they own as joint tenants, and to which they ascribe an estimated value of $450,000. The outstanding mortgage debt on that property is $150,000. They own motor vehicles having a total estimated value of $20,000. Their bank accounts have a total credit balance of $300. The only other assets disclosed by the Plaintiff in that schedule are the contents of their residence, various electrical items and shares (having a value of $400). However, that schedule of assets did not include the Plaintiff's current superannuation entitlements totalling $110,000, or the superannuation entitlements of her husband, totalling $70,000. 21 The Plaintiff and her husband have liabilities, consisting of the outstanding housing loan, secured by mortgage, in a present amount of $150,000; a credit card indebtedness of $700; and a personal loan of $18,100. 22 The Plaintiff's husband has been working in a permanent full-time capacity since July 2006. However, on account of a back injury which he sustained at work he is currently on restricted duties. Therefore, he is not enabled to work overtime, but he receives workers compensation by way of what is known as "make up pay". The total amount which he currently receives is no less than the amount he was earning at the time when he was injured. 23 In addition to the various liabilities set forth in her affidavit evidence, it emerged from the Plaintiff's oral evidence that she has a costs agreement with her solicitor in respect to the costs of the present proceedings. Those costs are estimated to be in the order of $30,000. It was estimated on behalf of the Defendant that his costs of the proceedings, for a one day hearing, total almost $37,000. Of that sum the Defendant has already paid $15,390. The foregoing total amount includes costs assessed at $1353 which are payable by the Plaintiff pursuant to an order of Macready AsJ of 16 June 2006. 24 The claim of the Plaintiff must be approached in the light of any competing claims upon the bounty of the Deceased. 25 The chief competing claim is that of the Defendant, who not only is the widower of the Deceased, but also is the sole object of the testamentary beneficence of the Deceased. The only other persons who might have competing claims upon the bounty of the Deceased are the other five children of the Deceased. (I observe that there does not appear to have been compliance with the provisions of paragraph 9 of Schedule J to the Supreme Court Rules 1970 requiring service of a notice of claim upon eligible persons.)