Delaney v Jones, Delaney v Jones [2008] NSWSC 229

New South Wales Supreme Court

CITATION : Delaney v Jones, Delaney v Jones [2008] NSWSC 229

HEARING DATE(S) : 11 March 2008

JUDGMENT DATE : 11 March 2008

JURISDICTION : Equity Division

JUDGMENT OF : Windeyer J at 1

EX TEMPORE JUDGMENT DATE : 11 March 2008

DECISION : In matter 3347 of 2006 provision for plaintiff made. In matter 2050 of 2007 summons dismissed.

CATCHWORDS : FAMILY PROVISION AND MAINTENANCE - claim by daughter of second marriage - estate to son and daughter of first marriage - consideration of what is proper provision - COSTS - Family Provision Act claim - amount of costs - lack of proportionality

LEGISLATION CITED : Family Provision Act 1982

CATEGORY : Principal judgment

CASES CITED : Singer v Berghouse (1994) 181 CLR 201

Brydie Leigh Delaney (Plaintiff in 3347/06) PARTIES : Wayne Delaney (Plaintiff in 2050/07) Kim Louise Jones (Defendant in both actions)

FILE NUMBER(S) : SC 3347/06; 2050/07

A Lakeman (Plaintiff in 3347/06) COUNSEL : J Emmett (Plaintiff in 2050/07) T Hodgson (Defendant in both actions)

Ken Heasman (Plaintiff in 3347/06) SOLICITORS : Gordon A Salier (Plaintiff in 2050/07 Lynden E Hopper & Co (Defendant in both actions)

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

WINDEYER J

TUESDAY 11 MARCH 2008

3347/06 BRYDIE LEIGH DELANEY v KIM LOUISE JONES 2050/07 WAYNE DELANEY v KIM LOUISE JONES

JUDGMENT

1 HIS HONOUR: The plaintiff, Brydie Leigh Delaney, whom I will call Brydie, seeks an order for provision for her maintenance, education, and advancement out of the estate of her father, Gordon Clarence Delaney, who died on 5 October 2005, aged 61. Mr Delaney left a will dated 5 August 2005, probate of which was granted on 11 April 2006 to the defendant, Kim Louise Jones, a daughter of the deceased by his first marriage. 2 Under his will, the deceased, in clause 3, gave a legacy of $5,000 to his daughter, Brydie, and: "As far as I am able to do so, my interest in the Australian Scholarship Fund held in the joint names of myself and my former wife, Lorraine Violet Delaney." 3 He then went on to say: "It is of great sorrow to me that the relationship between myself and my said daughter, Brydie Leigh Delaney, has broken down. I am aware that my former wife, Lorraine Violet Delaney, has substantial assets and will during her life-time acquire further assets which I believe will be bequeathed to my said daughter, Brydie Leigh Delaney, and for this reason I have only made a small bequest to her out of my estate." 4 Under the will, the residue of the estate was given to the defendant and to Mr Wayne Delaney, the son of the deceased by his first marriage, in equal shares. 5 In separate proceedings Mr Wayne Delaney by summons seeks an order under the Family Provision Act 1982 for his own benefit. Quite why this was done, I do not understand, because, as was made clear by his evidence and by counsel, what he seeks is to retain the whole benefit given to him under the will so that any order in favour of his half-sister would be borne by his own sister, the defendant. It might have been more appropriate to have sought leave to be added as a defendant, but in the circumstances I doubt if any additional costs have been incurred and, therefore, I will say nothing further about that. 6 The main asset of the deceased at his death was his property at 13 Roberts Street, Harbord. This has been sold and all of the assets in the estate have been collected and the balance, including interest, is the sum of, approximately, $1,440,800. There are tax liabilities of, approximately, $70,000, leaving a balance before costs of, approximately, $1,363,800. The costs of the defendant defending both proceedings are said to be in the sum of approximately $47,000; the costs of Mr Wayne Delaney are said to be approximately $26,000; I have nothing to say about those figures. The plaintiff's costs have been put forward at a figure of $84,653. That sum, I regret to say, seems to me to be out of proportion to the work which must have been involved in this case. In particular, it is clear that substantial costs would have been incurred in putting forward considerable material which was clearly irrelevant or otherwise inadmissible. A great amount of time was spent on the first day of the case by counsel for the plaintiff attempting to read into evidence affidavit evidence which had to be rejected. 7 The deceased was born in 1944. He was married twice. The first marriage was in 1961. There were two children of that marriage, namely, Wayne, born in 1962, now aged 46, and Mrs Kim Jones, born in 1964, now aged 43. That marriage ended in divorce in 1972. To some extent, brother and sister have been separate since then. 8 The deceased married his second wife in 1983. They had two children, the first, Melissa, died; the second, Brydie, was born in May 1988, and is now 19 years of age. The deceased and his second wife - who, without being disrespectful, I will call Lorraine, separated in 1995. They lived under the same roof until 1998 when Lorraine, with the help of her brother, purchased a home at Curl Curl, which now through various transactions is owned by herself and her mother in equal shares. The plaintiff then moved with her mother to Curl Curl and she still lives there. As I understand it, the property is a duplex and the grandmother lives on one floor and the plaintiff and her mother on the other, but it is a property which they own together, presumably as tenants in common in equal shares. 9 There were Family Court orders made in 1999 between Lorraine and the deceased which were consent orders for access, so far as Brydie was concerned, and orders for child support. So far as the latter is concerned, the evidence is that the deceased made regular unsuccessful efforts to reduce the level of child support. 10 So far as access was concerned, the order was that the deceased have access to Brydie for one night a week and every second weekend. This was, in practice, varied by agreement after one year. I am satisfied that after that variation access was less regulated but, nevertheless, quite regular, and that Brydie continued to meet with her father on one night each week when they went out for a meal together. I am satisfied also that, from time to time, the deceased made complaints about the costs of the dinner and did not take his daughter to very exciting places, but, nevertheless, they remained in regular contact. I am satisfied that Brydie wished that contact to remain. To a large extent, it was clearly quite voluntary on her part. 11 As far as the weekends were concerned, while Brydie did not go regularly to her father every second weekend, she went reasonably often. She visited her friend, who lived next door to her father at Harbord, and she had a code under which her father would know if Brydie had called in his absence. Thus while the contact at weekends might have been somewhat irregular, it nevertheless was contact which remained. The deceased had told Brydie that her weekend visits were interfering with his social life and she seems to have accepted that. 12 It is clear I think from the plaintiff's evidence, both in affidavits and given in the witness box, that she had real affection for her father, although, from time to time, he hurt her with comments which he made about her appearance, about her weight, and other matters which might have affected a girl more as she got older than when they commenced. 13 Brydie attended a state primary school and then attended the Stella Maris High School. She obtained the Higher School Certificate in 2006 and gained entry in the Nursing Faculty of Notre Dame University. She has completed the first year and has just started the first semester of 2008. 14 In May 2005 the deceased picked Brydie up from dance classes. She was dressed in, what might be described as dancing dress, namely, tights and a T-shirt. He said to her: "You look like an f'ing hooker", or perhaps, "You look like an f'ing whore" or both. The plaintiff was obviously very upset about this. She complained to her mother and after that she did not have regular contact with her father. He did ring her to apologise and she rang back and expostulated about his conduct, about his lack of help with child support. The evidence is that they did not have organised contact after that time. Nevertheless Brydie did see her father in the street. On one occasion, she saw him at the beach and asked him to drive her home, but he would not do so. 15 In September 2005 the deceased was admitted to the Manly Hospital. When Brydie found out about this, she visited him and was shocked to see him so ill. He made complaints to her about her mother and perhaps her supporting her mother. She went over to kiss him. There is some conflict about later attempts to visit him, which I do not think I need to decide. I am satisfied that Brydie did try to visit her father and that she did telephone the hospital every second night to inquire about him. 16 Brydie is not without assets. As a result of a gift from a grandfather years ago, she has shares worth about $75,000, which if sold, which she does not intend, would bring about a liability for capital gains tax of about $12,000. She has about $2,200 in savings. She works shifts at Manly Waters Hospital. These vary from time to time because she is able to work for more days during vacation than she is during term time, but, nevertheless, her evidence is she is able to earn about $350 per week, and certainly over $300 per week, mainly through doing difficult shifts or doing work on Sundays. This income means that she is no longer eligible for a student allowance. She gets education payments through a scholarship fund, the one referred to in the will, which appears to be one which will last for three years of tertiary education, although contrary to the evidence of her mother, I understand the nursing course to be four years. The payments are $500 for the first semester and an indefinite amount for the second semester, but an amount which will not be less than $500. 17 Brydie lives at home with her mother and grandmother. Both ladies own cars. Brydie is able to have access to one of those cars, from time to time, but not necessarily on demand. She travels to university by public transport and borrows the car when she needs to and is allowed. She does not pay any board to her mother, which is not really surprising, but she does make some contribution towards food. She has expenses for fees at the university of about $4,000 per annum and for books for her course and uniforms for her clinical work in hospital as part of the university course which appears to bring about a cost to her of about $2,500 a year. I am satisfied that the plaintiff works hard at university, that she will try to finish her course, and that she has made consistent and proper efforts to earn income for her own maintenance. 18 For reasons which I will shortly explain, it is not necessary to go into any great detail into the assets of Mrs Jones and the assets of Mr Wayne Delaney. Mrs Jones and her husband appear to have assets in their own name which for the most part consist of a property at Gleniffer, worth $650,000, and other lesser assets. There is a home mortgage of $350,000. Their assets in their own names are in the order of $340,000. They have some other assets held in a company, Aspenley Pty Ltd. That company seems to have started its life as a contracting business employing Mr Jones as a tree lopper but he no longer works as such. The company now operates as a share trading company - whether it will be successful or not, no doubt depends upon the skill of Mr Jones and what happens in the market. The company seems to have net assets in the order of $215,000. There are included in the liabilities substantial debts for tax, for credit card liabilities, and for car leasing payments, no doubt payable over a period. 19 Mr and Mrs Jones have four children, all of whom are still at school, although the eldest would be in her last year at school. Mrs Jones does not work, they live in a rural situation, and even if she could work and look after her children as well, it would be very difficult for her to do so. Their position could be said to be reasonable, but not secure. Nevertheless, whatever the position and whatever award is made in favour of the plaintiff, they will have sufficient moneys from the estate to pay out all of their debts and, therefore, will be in a substantially better position than they are at the present time. 20 So far as Mr Wayne Delaney is concerned, I am satisfied that he has a bad back condition which probably prevents him from working. The medical evidence is not really satisfactory, but it is clear that he has been troubled by a bad back and muscular spasms in his lumbar region for many years. There is a dispute between himself and his sister as to whether he has had any work at all in the last 10 years, but I am not satisfied that he has earned any income during that period, nor am I am satisfied that he would be able to earn an income. He says that his disability arose from some surfing accident, but I think that is really speculation. He has little in the way of assets other than a motor bike, which he says is the love of his life, worth $15,000, and a car, which is worthless, and some shares he got upon the demutualisation of AMP Society, worth $1,860. He has nothing else, apart; of course, from what will he get from the estate of his father. He is on a disability pension and he receives $550 per fortnight. He boards with a friend of his and his income is sufficient to pay his outgoings, but that is about at all; in other words, he really has nothing at the present time. His claim is that whatever benefit the plaintiff gets - and it is accepted by the defendant that the plaintiff must get an order made in her favour - that the burden of that order should be borne by his sister so that he will be assured of sufficient funds to purchase accommodation on the northern beaches. 21 There is no basis on which the court could find that there was any stronger relationship between the deceased and Mrs Kim Jones than between the deceased and Mr Wayne Delaney. Both relationships were quite good. The deceased visited his daughter in the country and stayed with her. He allowed his son to live in a flat at the back of the Harbord property rent free, probably, and reasonably, because he was sympathetic to him with his injuries. Neither, in my view, had any greater claim on their father than the other. I see no basis, having regard to the amounts involved in any order, on which it should be thought that an order in favour of the plaintiff should be borne otherwise than equally. 22 I come now to the claim of the plaintiff and what orders should be made in her favour. It is not suggested by the defendant that the plaintiff should not get an order made in her favour, as it is accepted that she has not been left with adequate provision for her proper maintenance, education, and advancement in life. In other words, the defendant accepts, and I think obviously enough, that what is described as the first stage in Singer v Berghouse (1994) 181 CLR 201 has been made out. I am satisfied the reasons given by the deceased for the provision made were not valid. I do not consider the relationship was permanently ended and insofar as it was, it was not the fault of the plaintiff. Possible inheritance from a mother who is aged 56 does not go to the present needs of the plaintiff. 23 The question then is, what order should be made in favour of the plaintiff. It is put by her counsel that she has made out a claim for a figure of about $575,000, namely, four years education costs, four years uniform costs - I should mention here, one of those years has already been paid - that she needs a motor vehicle and its running expenses, living expenses of $200 a week for four years and that she needs to be provided with sufficient funds to enable her to buy a two or three bedroom house or unit at Dee Why at a cost of $350,000, together with $20,000 to enable her to pay the costs of her wedding, which it is submitted, should be the father's responsibility. As against that, as I have said, she has the assets to which I have referred, which if they were all realised, would give her an amount between $75,000 and $80,000. 24 The jurisdiction which this Court exercises in determining what order to make is not a jurisdiction whereby the court substitutes its view for what is fair for the view of the testator as to how he wishes to dispose of his assets. If it were done on the basis of fairness, then one might think that each child of the deceased should get one third of his estate, but that is not the basis on which the court operates in a society where freedom of testation is right which the community values. What the court can do in making orders for provision is to make whatever provision ought to be made, having regard to the relationship of the applicant with the deceased person, the extent of the applicant's assets, the extent of the deceased's assets, and bearing in mind the other legitimate claims upon the bounty of the deceased. 25 I do not think in the circumstances of this case that it could be said, or even considered, that proper provision for this plaintiff requires an award of an amount which would enable her at this stage to buy a unit in her own name. It would be very unusual for a 19 year old to be able to do that and expect to be able to do that. While I accept that she will not live with her mother forever, and perhaps for not many years in the future, the fact is that the plaintiff is at present reasonably well accommodated, she is able to survive on the monies which she is earning and to her great credit she is trying to lead a reasonably independent life. Neither is it always necessary in a case such as this for the court to provide sufficient monies for the applicant to purchase a motor car. It would make her life easier, I accept, but it is not a need at present. I accept that if and when she wishes to go and live by herself, then it would be desirable if she were able to have a car. 26 At the present time it could not really be said that the plaintiff required any particular sum of money for her maintenance, as she is able to maintain herself and she could, if she wished, buy a car. Nevertheless, if she wishes to move out of the home, she would need to have more income to enable her to pay rent. In addition to that, as I accept that she would wish to become independent in due course, I think it is proper to provide a fund by way of an advancement which would enable the plaintiff to have sufficient funds if she wishes to buy a motor car, and if she wishes to save those funds and invest them with her own funds to have a reasonable size deposit to enable her to buy a home or a home unit for herself in due course. I do not consider that a proper order for her requires her at the age of 19 to have provision made for her in anything like the amount put forward by her counsel. 27 I came to this conclusion before counsel for the defendant made his submissions as to what might be a proper order to be made, although that suggestion was not, I think, made with the consent of Mr Wayne Delaney. I adjourned because I thought the plaintiff would and should accept that figure and to work out consent orders. In fact I took the extraordinary step of stating I considered the plaintiff should accept that figure if available and that there was a real risk to her if she did not do so. I was told there was no agreement and I should deliver my judgment. I consider the proper order to be made in favour of the plaintiff is the sum of $150,000 and I propose to make that order. 28 I will order the costs of the defendant on the trustee basis be paid out of the estate. Order the costs of the plaintiff up to an amount of $70,000 be paid out of the estate of the deceased. 29 In matter 2050/07 order the summons be dismissed. Order the costs of the plaintiff and the defendant be paid out of the estate of the deceased, those of the defendant on the trustee basis. Exhibits can be returned. **********