New South Wales Court of Appeal CITATION: Alexander v Jansson [2010] NSWCA 176 HEARING DATE(S): 22 June 2010 JUDGMENT DATE: 27 July 2010 JUDGMENT OF: Basten JA at 1; Handley AJA at 2; Brereton J at 3 DECISION: Appeal allowed in part CATCHWORDS: SUCCESSION – family provision and maintenance – appeals – where primary judge permitted elderly plaintiff/respondent's affidavit evidence to be read notwithstanding that she did not attend having been required for cross-examination – where plaintiff resided in remote location and medical evidence that travel was undesirable – where proposed cross-examination would not have resulted in reversal of outcome or reduction of provision below that substituted by Court of Appeal – whether miscarriage of discretion under UCPR r 35.2(3) – held, no miscarriage – where appellant/defendants sought leave to adduce further evidence on appeal to address matters said to have been subject of potential cross-examination at trial –where no sufficient explanation for not calling further evidence at hearing – leave refused – SUCCESSION – family provision and maintenance – principles upon which relief granted – eligibility – dependency – where plaintiff's need for accommodation was satisfied by provision of a house in which deceased owned two-thirds and she owned one-third share – held, plaintiff was partly dependent on deceased – SUCCESSION – family provision and maintenance – failure by testator to make sufficient provision for applicant – "proper provision" – significance of promises made and expectations created by testator – moral obligation – court interferes with dispositions in will only to extent necessary to make adequate provision for claimant's proper maintenance etc – where fee simple granted by primary judge exceeded requirements of adequate provision and life estate would also be excessive, because should plaintiff be compelled or wish to cease to reside there permanently, she would no longer have any reasonable need to remain there and had sufficient assets to relocate – appropriate provision was right to occupy property for purposes of residence and pastoral activities terminable upon death or her earlier ceasing permanently to reside there (NSW) Conveyancing Act 1919, s 66G LEGISLATION CITED: (NSW) Family Provision Act 1982, s 7, s 28(2) (NSW) Succession Act 2006, s 80(2)(b) (NSW) Uniform Civil Procedure Rules, r 35.2(3) CATEGORY: Principal judgment Ball v Newey (1988) 13 NSWLR 489 Banks v Goodfellow (1870) LR 5 QB 549 Gorton v Parkes [1989] 17 NSWLR 1 Goyal v Chandra (2006) 68 NSWLR 313 Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134 McKenzie v Baddeley (1991) NSWCA 197, BC 9101389 Ngatoa v Ford (1990) 19 NSWLR 72 CASES CITED: Palmer v Dolman [2005] NSWCA 361 Re Anderson (deceased) (1975) 11 SASR 276 Re Fulop (1987) 8 NSWLR 679 Singer v Berghouse (No 2) (1994) 181 CLR 201 Stephens v Debney (1960) SR (NSW) 468 Stewart v McDougall (unreported, 19 November 1987, Young J) Urban Traders Pty Ltd v Proceris Pty Ltd [2005] NSWSC 360 Vigolo v Bostin [2005] HCA 11, (2005) 221 CLR 191 Williams v Legg (1993) 29 NSWLR 687 Pernelle Therese Alexander (first appellant) Jocellin Lee Jansson (second appellant) PARTIES: Keiran Eric Jansson (third appellant) Amber Tracey Jansson (fourth appellant) Ellen Louise Jansson (respondent) FILE NUMBER(S): CA 2009/40388; 2009/40389 COUNSEL: Ms J Needham SC (appellants) Mr G McNally SC (respondent) SOLICITORS: Atkinson Vinden Lawyers (appellants) R J O'Halloran & Co (respondent) LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 2592/08 3178/08 LOWER COURT JUDICIAL OFFICER: McLaughlin AsJ LOWER COURT DATE OF DECISION: 23 September 2009 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 2009/40388 2009/40389 BASTEN JA HANDLEY AJA BRERETON J Tuesday 27 July 2010 PERNELLE THERESE ALEXANDER & ORS V ELLEN LOUISE JANSSON Judgment 1 BASTEN JA: I agree with Brereton J. 2 HANDLEY AJA: I agree with Brereton J. 3 BRERETON J: Eric Martin Jansson died on 5 July 2005; letters of administration of his intestate estate were granted to his four children the appellants Pernelle Therese Alexander, Jocellin Lee Jansson, Keiran Eric Jansson and Amber Tracey Jansson on 23 October 2006. His mother the respondent Ellen Louise Jansson, who having been born on 15 September 1915 is now 94 years of age, also survived him. His estate, of about $2.9 million net, included interests in two adjoining rural properties near Walcha in mid-north New South Wales: Pindari, of which he was the sole registered proprietor; and Gerraween, which he held as tenant-in-common with his mother, in shares two as to himself and one as to her. Gerraween (which was worth about $3 million, and thus his mother's one-third share about $1 million) comprised eight allotments, six of which were freehold Torrens title, one crown lease and one occupation permit. Prior to his death, the deceased resided on Pindari and his mother in a home which stood on one of the lots comprising Gerraween, namely Folio Identifier 39/753689 ("the Gerraween home lot"), which lot comprises 420.5 hectares. 4 The children as administrators transmitted the deceased's interests in the properties to themselves beneficially and, on 1 May 2008, instituted proceedings for the appointment of trustees for sale of Gerraween pursuant to (NSW) Conveyancing Act 1919, s 66G: matter 2592/08 in the Equity Division ("the 66G proceedings"). On 11 June 2008, the mother responded by instituting proceedings for provision out of the estate under (NSW) Family Provision Act 1982, s 7, claiming that her proper maintenance required that she be permitted to reside so long as she pleased in the home on Gerraween: matter no 3178/08 in the Equity Division ("the FPA proceedings"). McLaughlin AsJ extended the time for bringing the mother's Family Provision Act claim (which was otherwise out of time); found that she was an eligible person in category (d) of the definition of that term, and that there were circumstances warranting the bringing of her claim; designated as notional estate of the deceased the Gerraween home lot (but not the other parts of Gerraween), it having been distributed to the children as beneficiaries; and, by way of provision for the mother out of the estate, ordered that she receive the notional estate – that is the Gerraween home lot – absolutely. His Honour then made an s 66G order in respect of the remainder of Gerraween. 5 From those orders the children appeal, contending that the Family Provision Act application ought to have been dismissed, or alternatively that provision should not have exceeded a right of residence or life estate: the appeal in the 66G proceedings being CA 40388/09, and the appeal in the FPA proceedings being CA 40389/09. The issues are: · Whether his Honour erred in permitting the mother's affidavit evidence to be read when she did not attend for cross-examination (Ground 3). Associated with this is the appellants' application for leave to adduce further evidence; · Whether his Honour erred in finding that the mother was an eligible person in category (d) (Ground 4) and that there were factors warranting the making of her claim (Ground 4A); · Whether the provision ordered by his Honour exceeded what was adequate for the mother's proper maintenance (Grounds 6, 7, 8, 9 and 9A); and · Whether his Honour erred in designating the Gerraween home lot as notional estate (Ground 10). Cross-examination and Fresh Evidence 6 Mrs Jansson swore affidavits in support of her case on 5 June and 25 June 2008. The hearing was set down to commence on 20 April 2009. Fourteen days before then, on 6 April 2009, the estate's solicitors gave notice that she was required to attend for cross-examination. Uniform Civil Procedure Rules, r 35.2(3) provides that the affidavit of a witness who does not attend for cross-examination when required by the other party may not be read into evidence unless the witness is dead or the court otherwise orders. Mrs Jansson sought an "otherwise order" for that purpose. On 9 April 2009, Dr Kim Peters, general medical practitioner, swore an affidavit deposing that travel to Sydney for the impending court case would be a strain on Mrs Jansson's health, that her hearing loss would be an impediment, and that the doctor had therefore advised her not to travel "this long distance". So far as material ultimately made available to the court reveals, that affidavit was apparently received by the estate's solicitors on Friday 17 April 2009, when the hearing was to commence the next working day, Monday 20 April. However, no notice requiring Dr Peters for cross-examination was given, nor was objection taken to the reading of the doctor's affidavit on the voir dire for the purposes of considering the application made on behalf of Mrs Jansson that her affidavits be read notwithstanding that she was required but did not attend for cross-examination. The Associate Judge said: The notice requiring her attendance was only given two weeks ago. One might have assumed a lady of 93 who has brought proceedings and who hasn't been told up to two weeks before the hearing date that she might be required to attend might reasonably assume she doesn't have to go to court. … I think that elderly ladies of 93 might have some elasticity allowed to them in the question of whether or not they should travel some hundreds of kilometres from their rural estates to Sydney. I propose to allow the affidavits of Ellen Louisa Jansson to be read on her behalf despite the fact that notice has been given requiring her to attend for cross-examination and the fact that she is not present for cross-examination. 7 In the appeal, the estate filed a motion seeking leave to rely upon further evidence contained in affidavits of Judy Anne Jansson (the deceased's ex-wife, they having been married in 1967 and separated in 1984), Susan Dianne Pratchett (the deceased's former de facto, from 1984 until late 1987), and Christina Julie-Ann Stephenson (the deceased's sister). It was said that their evidence, which went mainly to the nature extent and quality of the relationship between the deceased and his mother, was not obtained for the hearing because it was then assumed that those matters could be put to the plaintiff in cross-examination. Ms Needham SC, for the estate, ultimately did not press that the further evidence if accepted would found a submission that there was no qualifying dependency, but rather that it would reduce the force of the "factors warranting" found by the primary judge, so as ultimately to impact on what was "proper provision" for Mrs Jansson. 8 The Associate Judge found that the factors warranting the making of Mrs Jansson's application included (a) the fact that she and the deceased resided in the homestead on Gerraween for 22 years from 1980; (b) various statements attributed to the deceased that his mother would be enabled to live on the property until she died; (c) the contributions both physical and financial made by Mrs Jansson to the property, its improvement and upkeep, and to the partnership business conducted on it by herself and the deceased; (d) the fact that Mrs Jansson is a co-owner of the property being a tenant-in-common as to one-third thereof; and (e) the fact that if she did not obtain an order for provision she would be deprived of her residence in her home of 73 years. Only the first of those might be affected by the further evidence if accepted, and then only to the extent that it might appear that the common residence was not continuous. The further evidence would tend to establish that there were times (some of them many decades ago) when relations between the deceased and his mother were sub-optimal, and perhaps that in recent years his provision of support with domestic and farm related tasks was very limited. However, in the context of the life-long relationship between mother and son, and the fact that she resided (and had resided for more than seven decades) in the home on Gerraween in which the deceased held a two-thirds share, in my view this further evidence if accepted would not likely have affected the Associate Judge's conclusion that factors warranting the making of Mrs Jansson's claim were established. 9 Moreover, there is no sufficient explanation for why the proposed further evidence was not adduced at trial. Prudently, it ought to have been available at trial. The suggestion that it was not obtained at that stage because it was supposed that its contents could be put in cross-examination of Mrs Jansson does not sustain scrutiny: cross-examination is of limited utility if evidence to contradict the witness is not available to be adduced in answer, and the prudent cross-examiner does not rely only on obtaining concessions but also on being able to prove the contrary case. Moreover, when at trial it was foreshadowed that, had it been known that the plaintiff would rely on non-financial dependency, further evidence would have been obtained, the opportunity to apply for an adjournment to permit that course was eschewed. In any event, it must have been self-evident from Mrs Jansson's affidavits that more than financial dependency was to be relied upon. Finally, Mrs Jansson's daughter Fay Studte, who resided with her, was cross-examined, and rather than it being suggested to her that Mrs Jansson had not been dependent on the deceased in the manner alleged, her evidence in cross-examination tended to confirm such dependency, both expressly and by implication from her condition from the time when Mrs Studte commenced to reside with her. 10 For those reasons, I am unsatisfied that the proposed further evidence would likely have resulted in a significantly different outcome (at the highest, it might have impacted on the quantum of relief), nor that with reasonable and prudent endeavours it was not available at trial. I would decline to grant leave to adduce it in the appeal. 11 That leaves for consideration the estate's complaint that it was in effect denied the opportunity to cross-examine the plaintiff. At the outset, it should be said that the right to cross-examine a witness is a fundamental element of litigation when conducted on affidavits or witness statements, not lightly to be set aside. That is all the more so where the witness is a party, and if anything still more so a plaintiff bearing the onus of proof. And for my part I doubt whether fourteen days was unreasonable notice – particularly given that the witness was a party and must have anticipated the possibility of being required to attend – and that a trip from Walcha to Sydney and return would have been unduly rigorous. However, there was medical evidence that such travel was undesirable which, slight as it was, stood unchallenged and uncontradicted; none of the numerous potential alternatives (such as the court sitting at Tamworth, or the evidence being taken on commission, or cross-examination being conducted over the telephone) was proposed as an alternative; counsel did not then indicate to the Associate Judge the matters in respect of which cross-examination was thought to be necessary; there was at that stage no evidence contradicting that of Mrs Jansson as to her relationship with the deceased, the nature and extent of common residence and her level of dependence on him, which are the matters in respect of which it is now suggested that she might have been cross-examined; and there was some corroboration of Mrs Jansson's evidence by Mrs Studte, whose cross-examination did not impugn it. The matters in respect of which it was ultimately said that she would have been cross-examined would not have undermined the conclusion that Mrs Jansson was an eligible person, nor that there were factors warranting the making of her application, but at best might have impacted on what was proper provision, and not to the extent of reducing it below the provision that I would in any event substitute for that awarded by the Associate Judge. 12 Having regard to those matters I am not prepared to conclude that the Associate Judge's decision to receive Mrs Jansson's affidavits without cross-examination, exceptional as it was, was so unreasonable an exercise of the discretion conferred by UCPR, r 35.2(3), as to call for the intervention of this court. If it was, it will not, in light of the orders I otherwise propose, have occasioned any miscarriage of justice. Dependency 13 Although Ground 4 challenges the primary judge's conclusion that Mrs Jansson was an eligible person in category (d), and Ground 4A that there were circumstances warranting the making of her application, ultimately Ms Needham SC did not resolutely press those grounds. For my part, I would be inclined to accept that one co-owner of property is not necessarily to be regarded as dependent on the other co-owner for accommodation, since each has a right to occupy the property; nor that one partner in a partnership is to be regarded as dependent upon another just because it is the other who does the work or labour; nor that an aged parent is necessarily to be regarded as dependent upon a child who provides occasional domestic assistance: I accept that "partly dependent" involves more than "minimal" dependence [McKenzie v Baddeley [1991] NSWCA 197; BC 9101389]. 14 However, one needs to look at the whole of the relationship, including the familial as distinct from commercial nature of the partnership; the circumstance that the deceased was Mrs Jansson's nearest neighbour in a remote rural area; and, most significantly, that Mrs Jansson resided and had for seven decades resided in a home which, by the time of his death, was owned by herself as to a one-third share and by him as to a two-thirds share. The circumstance that a co-owner is entitled to reside in the property as a legal right is not inconsistent with, in particular circumstances, a co-owner in occupation being dependent on the other for accommodation. As Samuels JA, with the concurrence of Hope JA, said in Ball v Newey (1988) 13 NSWLR 489 (at 491): It was not contested that there could be a relationship of mutual financial dependence. And, to my mind, it is well open to conclude that that is what existed here. I add the qualification because of the comparatively narrow issues which strictly fall for determination in the appeal. Counsel for the respondents submitted that the arrangements made concerning the mortgage did not represent the conferring of any benefit by either of these parties upon the other. They were each severally, as it were, obtaining a benefit from a financier. I do not think that that is a realistic way of looking at the situation. At a time when they had been living together in rented accommodation in a close sexual relationship they decided to purchase a house in which they then intended to live together and which, it can easily be assumed, would also represent an asset which they would jointly own – I use "jointly" merely to indicate a shared interest. It would have been impossible for them, each acting separately, to have purchased a house and, in any case, the object of the exercise was that they should acquire a place in which they could live together. The only way in which they could do this was to pool their income, which they did, and to make their mortgage repayments out of this joint fund, which they did, drawing also from it the other moneys which they needed to finance their ordinary outgoings; which they also did. Counsel then suggested, as I understood him, that these circumstances produced no dependency because each of them was separately financially capable of acquiring somewhere to live, so that their decision to live together and finance their purchase jointly was, in some sense, an indulgence which the law should not countenance. I see no substance in this argument. I assume that dependency involves the total or partial satisfaction of need. But the need is not restricted to the requirements of basic necessity or sustenance: … Whether dependency, total or partial, exists is a question of fact: Aafjes v Kearney (1976) 50 ALJR 454; 8 ALR 455. It is not to be determined upon theoretical considerations. It is "the actual fact of dependence or reliance on the earnings of another for support that is the test": per Gibbs J, as he then was, in Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177 at 189. "The standard of support is set by the parties themselves" (at 190). Hence it is irrelevant that the appellant could have provided separate living accommodation out of his own income. That was not what he and the deceased chose to do. If it is relevant, it cannot be said that what they did choose to do was unreasonable; and, in order to support the mode of life they wished to pursue, each was, it is open to find, partially dependent upon the other. 15 In the present case, Mrs Jansson during the deceased's lifetime had a need for accommodation. That need was satisfied by provision of a house in which he owned a two-thirds share. He could have terminated that dependency by an application made during his lifetime under s 66G, but he did not. To the contrary, on the primary judge's findings, he assured Mrs Jansson that she would be able to remain in the house for the rest of her life. Mrs Jansson was, up to the time of the deceased's death, at least partly dependent upon him for accommodation. 16 The fact of dependency as at the date of death (as distinct from some much earlier time) is a powerful factor warranting the making of a claim by a category (d) applicant: the community expects that testators will make provision for those who are dependent upon them at the time of their death. The Associate Judge was right to find that Mrs Jansson was an eligible person in category (d), and that there were circumstances warranting the making of the application. Adequate provision for maintenance 17 In an application under Family Provision Act, s 7, as is well established [see, for example, Singer v Berghouse (No 2) (1994) 181 CLR 201, 208], the court first determines whether a claimant has been left without adequate provision for his or her proper maintenance, education and advancement in life; and secondly, if so, what provision ought to be made out of the estate for the claimant. Both stages require an evaluation of what is adequate for the claimant's proper maintenance etc having regard to the claimant's financial position, the size and nature of the deceased's estate, the totality of the relationship between them, and the deceased's relationship with other persons having legitimate claims on his or her bounty. 18 "Proper maintenance" is not limited to the bare sustenance of a claimant [cf Gorton v Parkes [1989] 17 NSWLR 1], but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility. And, contrary to Ms Needham SC's submission, I do not accept that promises and representations made by testators are, in this respect, of but slight significance. Promises made and expectations raised by testators have always been regarded as relevant to the ascertainment of what is proper provision for a claimant [Re Anderson (deceased) (1975) 11 SASR 276, 284; Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134, 148], though this may be more so where a claimant has relied to his or her detriment on any such promise or expectation. The requirements of conscionable behaviour which inform the doctrine of equitable estoppel are philosophically closely analogous to the concept of "moral duty" which has traditionally informed the exercise of jurisdiction under the Family Provision Act and its predecessors and, although some of the observations in Singer v Berghouse (No 2) might for a time have suggested otherwise, it is now clear continues to do so [Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191; Palmer v Dolman [2005] NSWCA 361, [74]; and see now (NSW) Succession Act 2006, s 80(2)(b), which like its predecessor in the Family Provision Act expressly recognises the notion of moral duty]. This moral obligation of testators, the enforcement of which is facilitated by the testators' family maintenance legislation, reflects an assumption inherent in our system of succession law that testators will exercise their testamentary freedom with moral responsibility, so as to make provision for those who would be regarded as having legitimate claims on their bounty - to the point that ability to appreciate this moral obligation has been said (by Cockburn CJ, speaking for the Court of Queen's Bench in Banks v Goodfellow (1870) LR 5 QB 549, 563, 565) to be an essential element of testamentary capacity: Yet it is clear that, though the law leaves to the owner of property absolute freedom in this ultimate disposal of that of which he is thus enabled to dispose, a moral responsibility of no ordinary importance attaches to the exercise of the right thus given. The instincts and affections of mankind, in the vast majority of instances, will lead men to make provision for those who are the nearest to them in kindred and who in life have been the objects of their affection. Independently of any law, a man on the point of leaving the world would naturally distribute among his children or nearest relatives the property which he possessed. The same motives will influence him in the exercise of the right of disposal when secured to him by law. Hence arises a reasonable and well warranted expectation on the part of a man's kindred surviving him, that on his death his effects shall become theirs, instead of being given to strangers. To disappoint the expectation thus created and to disregard the claims of kindred to the inheritance is to shock the common sentiments of mankind, and to violate what all men concur in deeming an obligation of the moral law. It cannot be supposed that, in giving the power of testamentary disposition, the law has been framed in disregard of these considerations. On the contrary, had they stood alone, it is probable that the power of testamentary disposition would have been withheld, and that the distribution of property after the owner's death would have been uniformly regulated by the law itself. 19 It is correct, as Ms Needham SC submits, that Mrs Jansson was not the deceased's widow, but while characterisation of claims under the Act, such as an "adult child's claim" or a "widow's claim" sometimes assist to identify considerations typically relevant to such claims, ultimately it is the particular position of the claimant and the particular relationship that must be considered, and not the category into which it falls. Mrs Jansson was a widow, her husband having long since passed away. Even if her relationship with her son was sometimes fraught, he was the closest person to her – geographically, and it would seem also emotionally. She had no doubt raised and supported him through his childhood and youth. In her latter years she was dependent upon him, in the way in which I have described, for accommodation, and he had told her that she would always be able to remain on Gerraween. Having lived there for over 70 years she was unaccustomed to, and it might reasonably be expected very apprehensive of, change, and desirous of remaining where she was established and comfortable. In my view, there is not the slightest question but that the deceased had a moral obligation to ensure that his mother could continue to reside on Gerraween so long as she pleased. 20 However, it is equally well established that the court will interfere with the dispositions in a will or under the rules of intestacy only to the extent necessary to make adequate provision for a claimant's proper maintenance, education and advancement in life [Re Fulop (1987) 8 NSWLR 679; Stewart v McDougall (unreported, 19 November 1987, Young J)]. What was proper provision for Mrs Jansson in this case is informed both by the scope of her dependency upon the deceased (essentially, accommodation in the home on Gerraween), the representation by the deceased (that she would be able to do so), and her expressed life-style desire to remain there. Proper provision for her involved the ability to reside in the Gerraween home so long as she pleased, and if her circumstances changed or the whim so affected her to relocate elsewhere; and while she remained on Gerraween to continue her cattle grazing operations there. Her one-third interest in Gerraween, worth about $1 million, and her interests in the partnership and stock, together are more than ample to ensure that, should she have or wish to relocate to retirement accommodation elsewhere, she will be able to raise the necessary capital so to do. 21 In those circumstances, the grant of a fee simple in the Gerraween home lot manifestly exceeded the requirements of adequate provision for her proper maintenance. A life estate would also have been excessive, albeit less so, because should she be compelled or wish to cease to reside permanently on Gerraween, she will no longer have any reasonable need to remain there. The appropriate provision was a right to occupy the Gerraween home lot for the purposes of residence and pastoral activities terminable upon her death or her earlier ceasing permanently to reside there. The Designating Order 22 Because the estate had been distributed to the beneficiaries, an order for provision could be made out of it only if, to the extent necessary, it were first designated as notional estate. (NSW) Family Provision Act, s 28(2), provides that on an application in relation to a deceased person, the court shall not make an order designating as notional estate property to a greater extent than necessary to allow the making of the provision that, in its opinion, should be made. 23 The estate submitted that sufficient provision could have been made for Mrs Jansson's desire to remain at Gerraween for her lifetime by simply refusing the s 66G application. However, while there are circumstances in which the court may decline to make an order under s 66G, those circumstances ordinarily involve the recognition of extant contractual or equitable obligations inconsistent with exercising the right to apply for sale [Stephens v Debney (1960) SR (NSW) 468, 469-470 (Myers J); Ngatoa v Ford (1990) 19 NSWLR 72; Williams v Legg (1993) 29 NSWLR 687, 692-3; Urban Traders Pty Ltd v Proceris Pty Ltd [2005] NSWSC 360, [30]-[32]; Goyal v Chandra (2006) 68 NSWLR 313, [22]]. I am unpersuaded that in the absence of upholding some entitlement of Mrs Jansson to remain on the property, it would have been open simply to dismiss the s 66G application as a matter of discretion. Accordingly, not only to make the provision that the Associate Judge thought appropriate, but also to make the lesser provision that I propose, it was necessary to designate the Gerraween home lot as notional estate. 24 No submission was made, at trial nor on appeal, that any other prerequisite for a designating order was unsatisfied. The primary judge did not refer explicitly to the requirement, imposed in the circumstances of this case by s 28(5), that (as Mrs Jansson's application was brought only pursuant to an order extending time under s 16) a designating order could be made only if there were "other special circumstances" as referred to in s 28(5)(d). No complaint was made as to the absence of a specific finding in this respect, and it must be treated as being implicit in his Honour's decision. In any event, such circumstances would have been provided by the belated falsification, but only after time for bringing an application under the Act had expired, of Mrs Jansson's expectation, generated by the deceased's assurance, that she would be permitted to remain undisturbed in the home on the property so long as she pleased. Conclusion 25 It follows that in my opinion the Notice of Motion for leave to adduce further evidence should be dismissed; and the appeals should be allowed in part, to the intent that in lieu of the fee simple granted by way of provision provided by the Associate Judge, Mrs Jansson receive a right of occupation of the Gerraween home lot of the type that I have described. 26 I propose the following orders: A. Proceedings CA 2009/40389: (1) Order that the appeal be allowed in part. (2) Set aside order 3 made by the Associate Judge. (3) In lieu thereof, orders that: 3A. By way of provision out of the estate of Eric Martin Jansson, the plaintiff/respondent have a right of occupancy of Lot 39 in DP 753689 ("Lot 39"), such right of occupancy to allow her, for so long as she permanently resides on Lot 39, to reside in the homestead on Lot 39, to run stock on that part of Lot 39 as is hatched on the plan attached to the Short Minutes marked "A", and to use the farm buildings and sheds located on Lot 39 and any farm equipment which may be owned or partly owned by the estate of the deceased. 3B. The said right of occupancy shall terminate on the earliest of: (a) the death of the plaintiff/respondent; (b) the plaintiff/respondent giving notice in writing to the defendants/appellants care of their solicitors Atkinson Vinden (or such other firm as they may from time to time nominate) of her ceasing permanently to reside on Lot 39, such notice to be given within 28 days of the permanent cessation of residence; or (c) the service by the defendants/appellants on the plaintiff/respondent care of her solicitors PJ O'Halloran & Co (or such other firm as she may from time to time nominate) of a notice that the right of occupancy is terminated, where: (i) the defendants/appellants have served on the plaintiff/respondent care of her solicitors notice that they are of the belief that she no longer permanently resides on Lot 39; and (ii) after 14 days of service of such notice, the plaintiff/respondent has not confirmed in writing that she continues permanently to reside on Lot 39. 3C. During the right of occupancy, the rates and land levies in respect of Lot 39 will be paid as to one-third by the plaintiff/respondent and two-thirds by the defendants/appellants, and the plaintiff/respondent shall be liable for any costs relating to the maintenance and upkeep of the homestead and outbuildings located on Lot 39 except in respect of such works and costs for which the defendants/appellants may specifically accept responsibility. (4) Order that the costs of the respondent on the party/party basis and the costs of the appellants on the indemnity basis be paid or retained as the case may be out of the estate of the deceased. B. Proceedings CA 2009/40388: (1) Order that the appeal be allowed. (2) Set aside the orders made by the Associate Judge. (3) In lieu thereof: 1. Order that Mr Stephen Hall, Chartered Accountant of Forsythes, 127 Matius Street, Tamworth in the State of New South Wales and Mr Martin Green, Chartered Accountant of Level 13, I Castlereagh Street, Sydney in the State of New South Wales ("the Trustees") be appointed trustees of the land comprised in the following titles: (a) Folio Identifier 39/753689; (b) Folio Identifier 39/753689; (c) Folio Identifier 39/753689; (d) Folio Identifier 39/753689; (e) Folio Identifier 39/753689; (f) Crown lease HN00947 (previously permit no 1941/3 Gloucester); (g) Occupation Permit HN00909 (previously Old permit 0013163). 2. Order that the said land be vested in the Trustees subject to any incumbrances affecting the entirety of the said lands but free from incumbrances if any affecting any undivided share or shares therein to be held by the Trustees upon the statutory trust for sale under Division 6 of Part IV of the (NSW) Conveyancing Act 1919. 3. Order that the operation of orders 1 and 2 be stayed until the date upon which the appellants give notice in writing to the Trustees of the happening of one of the following events: (a) the death of the plaintiff/respondent; (b) the plaintiff/respondent giving notice in writing to the defendants/appellants care of their solicitors Atkinson Vinden (or such other firm as they may from time to time nominate) of her ceasing permanently to reside on Lot 39, such notice to be given within 28 days of the permanent cessation of residence; or (c) the service by the defendants/appellants on the plaintiff/respondent care of her solicitors PJ O'Halloran & Co (or such other firm as she may from time to time nominate) of a notice that the right of occupancy is terminated, where: (i) the defendants/appellants have served on the plaintiff/respondent care of her solicitors notice that they are of the belief that she no longer permanently resides on Lot 39; and (ii) after 14 days of service of such notice, the plaintiff/respondent has not confirmed in writing that she continues permanently to reside on Lot 39. 4. Order that the costs of the proceedings be costs in proceedings 3178/08. (4) Order that costs of the appeal be costs in appeal 2009/40389. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.