Campbell v Campbell [2010] NSWSC 863

New South Wales Supreme Court

CITATION : Campbell v Campbell [2010] NSWSC 863

HEARING DATE(S) : 3 August 2010

JUDGMENT DATE : 6 August 2010

JUDGMENT OF : Ball J

1. That, in place of any gift given to the plaintiff under a will of the deceased, the plaintiff receive 50 per cent of the proceeds of sale of the house at Gladesville after deducting the costs of sale and the costs of these proceedings from the sale price. DECISION : 2. The plaintiff's costs on a party/party basis be paid out of the proceeds of sale of the Gladesville property. 3. Liberty to apply on three days' notice.

CATCHWORDS : FAMILY PROVISION - adult child - no appearance by defendant - plaintiff's circumstances deteriorated subsequent to execution of last will - will did not make adequate provision.

LEGISLATION CITED : Family Provision Act 1982

CATEGORY : Principal judgment

Re Fulop Deceased (1987) 8 NSWLR 679 CASES CITED : Singer v Berghouse (No. 2) [1994] HCA 40; (1994) 181 CLR 201 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191

PARTIES : Mark Hunter Campbell (Plaintiff) Archie Campbell (Defendant)

FILE NUMBER(S) : SC 2009/290108

COUNSEL : D Roberts (Plaintiff) No appearance (Defendant)

SOLICITORS : Georgiou & Co (Plaintiff) No appearance (Defendant)

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

BALL J

6 AUGUST 2010

2009/290108 MARK CAMPBELL v ARCHIE CAMPBELL

JUDGMENT

1 This is an application pursuant to s 7 of the Family Provision Act 1982 (FPA) by an adult son that provision be made for him out of the estate of his father, Archibald Campbell (the deceased). The plaintiff was born in 1965. He recently learned that he had been adopted by his parents. He has an older brother, the defendant, who was born in 1955. There are no other beneficiaries of, or claimants against, the estate. 2 On the evidence before me, it appears that the deceased made his last will in 1998. By that will, he left 10% of his estate to the plaintiff and 90% to the defendant. He also appointed the defendant as executor. The only real asset of the estate consists of a house in Gladesville, which has an estimated value of $900,000. It appears that the defendant has lived in that house for the whole of his life – with his parents while they were both alive, with his father after his mother's death and now alone. 3 Despite repeated attempts, the plaintiff has had virtually no contact with the defendant since their father died. They saw one another at their father's funeral and it appears spoke once over the telephone. In addition, the plaintiff's wife saw the defendant once at the Gladesville property. On that occasion, the defendant provided her with a copy of two wills made by the defendant – the one by which the deceased left the defendant 90 per cent of his estate and one made two years earlier by which the deceased left 40 percent of his estate to the plaintiff and 60 percent to the defendant. The plaintiff gave evidence that he has repeatedly tried to telephone and visit the defendant, but that, on each occasion, the telephone rang out or noone answered the door. At one stage, the plaintiff became so concerned that he arranged for the police to visit the property at Gladesville to determine whether anything had happened to the defendant. The police apparently spoke to the defendant on that occasion. 4 The defendant has made no attempt to obtain a grant of probate or to administer the estate of the deceased. As a result, letters of administration were granted to the plaintiff on 29 December 2009, solely for the purpose of making an application under the FPA. Attempts were made by the plaintiff's solicitor on a number of occasions to serve the defendant personally with the summons in this matter. However, on each occasion, noone answered the door. As a result, on 27 October 2009, an order was made that service be effected by posting the summons and supporting documents to the defendant and affixing a sealed envelope containing those documents to the front door of the Gladesville property. The documents were served in accordance with that order. However, there was no appearance by the defendant at the hearing of this matter. 5 The plaintiff was not aware until July 2009 that he had been adopted. It appears that he had a close relationship with his adoptive parents, particularly his father. The deceased was a tugboat master and the plaintiff frequently used to go to work with him. 6 After finishing school in 1981, the plaintiff trained as a chef at Ryde Catering College. He left home in about 1985 at the age of 20, although he maintained regular contact with his parents. At about that time, the defendant was made redundant from his employment and, so far as the plaintiff is aware, has not been in employment since. 7 The parties' mother died in 1993. In 1995, the plaintiff met his current wife and they married in 1996. The plaintiff and his wife maintained close relations with the deceased and, in fact, the deceased gave the plaintiff's wife away at their wedding ceremony. The plaintiff and his wife visited the deceased frequently and took him and the defendant meals from time to time. 8 In 1998, the deceased gave the plaintiff the sum of $100,000 towards the acquisition of their family home. 9 The plaintiff and his wife have two children – Nathan, who was born in 1999 and Jack, who was born in 2002. 10 The deceased retired in 1998. His health declined in 2008 and, in July 2008, he died at the age of 76. 11 The plaintiff worked in a number of jobs from 1985 to January 2009. He was temporarily unemployed in 2005. At that time, the deceased lent him $2000 to help pay for Nathan and Jack's school fees. In January 2009, the plaintiff was retrenched from his position as international sales and business development manager in the export division of Goodman Fielder Limited. He was unemployed for approximately a year. He then found a position with Australian Bakels as a sales manager. However, he was made redundant from that position on 1 July 2010. 12 The plaintiff's wife works as a legal secretary approximately 2 days per week.