Morrison v Carruthers [2010] NSWSC 430

New South Wales Supreme Court

CITATION : Morrison v Carruthers [2010] NSWSC 430

HEARING DATE(S) : 29 and 30 April 2010

JUDGMENT DATE : 13 May 2010

JUDGMENT OF : Bergin CJ in Eq

DECISION : Summons dismissed.

CATCHWORDS : SUCCESSION - family provision and maintenance - whether plaintiff is an eligible person - whether adult grandchild partly financially dependent upon deceased - matters to be considered in such applications

LEGISLATION CITED : Family Provision Act 1982

Ball v Newey (1988) 13 NSWLR 489 CASES CITED : McKenzie v Baddeley [1991] NSWCA 197 Petrohilos v Hunter (1991) 25 NSWLR 343 Re Estate of Hakim; Simons v Permanent Trustee Co Ltd [2005] NSWSC 223

Cathy Morrison (Plaintiff) PARTIES : Warren Ernst Carruthers (First Defendant) Russell James Carruthers (Second Defendant) Jayne Maree Morrison (Third Defendant)

FILE NUMBER(S) : SC 2008/281679

COUNSEL : A Hill (Plaintiff) J Mitchell (Defendants)

SOLICITORS : Armstrongs Solicitors Pty Ltd (Plaintiff) Burgess Lawyers (Defendants)

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

BERGIN CJ in Eq

13 MAY 2010

2008/281679 CATHY MORRISON v WARREN ERNST CARRUTHERS & ORS JUDGMENT 1 The plaintiff, Cathy Morrison, is the granddaughter of Emily Betsy Carruthers who died on 2 January 2008 (the deceased). The defendants, Warren Ernst Carruthers, Russell James Carruthers and Jayne Maree Morrison (Mrs Morrison) are the deceased's children and executors of the deceased's estate. Mrs Morrison is the plaintiff's mother. The plaintiff makes application for provision pursuant to s 7 of the Family Provision Act 1982 (the Act) out of the estate and/or notional estate of the deceased. 2 The deceased's last Will, dated 23 April 1996, left the whole of the estate to her three children, the defendants in the proceedings. Probate was granted on 28 April 2008 at which time the estate was valued at $370,759.52 consisting of the deceased's family home at 48 Railway Parade, Blackalls Park and an adjoining block of land at 48A Railway Parade, Blackalls Park (the property). The property is currently rented and the income has been used for upkeep of the property and the costs of this litigation. Eligibility 3 The plaintiff claims eligibility to make the application pursuant to the following provisions of s 6(1) of the Act: (d) a person: (i) who was, at any particular time, wholly or partly dependent upon the deceased person , and (ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of a household of which the deceased person was a member. 4 The plaintiff claims eligibility as a grandchild with partial financial dependency upon the deceased. 5 The matter was heard on 29 and 30 April 2010 when Mr A Hill, of counsel, appeared for the plaintiff and Mr J Mitchell, of counsel, appeared for the defendants. The plaintiff relied on her four affidavits; two in chief on 22 October 2008 and 23 April 2010 and two in reply on 17 July 2009 and 21 October 2009. The plaintiff also read the affidavits of Darien Leanne Cullen, a family friend, sworn on 21 October 2009; Kelly Morrison, the plaintiff's youngest sister, sworn on 16 October 2009; Teegan Jack sworn 25 November 2009 and the plaintiff's solicitor Stephen John Churches sworn 23 April 2009. The defendants relied on the affidavits of Warren Ernst Carruthers sworn 4 June 2009 and 21 August 2009; Russell James Carruthers sworn 3 July 2009 and 17 August 2009; Mrs Morrison sworn 9 June 2009; the deceased's sister, Shirley Marion Bottomley sworn 17 August 2009; the plaintiff's father, Alwyn Rex Morrison sworn 13 August 2009, and the defendants' solicitor, Damian Burgess, sworn 21 April 2010. All deponents except Ms Jack and the solicitors were cross-examined. 6 Counsel advised the Court that the affidavits of their respective clients and witnesses contained much inadmissible material, however they had decided that rather than spend valuable court time in trying to rectify the deficiencies, they would not take objections but ask the Court "to give appropriate weight" to those affidavits that the Court considered "necessary". There is no doubt that many parts of the affidavits are in inadmissible form with broad allegations and claims taking the place of admissible evidence as to the real facts of the matter. For instance the plaintiff made a broad claim that she "depended" on the money from the deceased to pay for certain items, without any particulars of her expenses and income during that particular period. The affidavits relied upon by the defendants had the same problem, for instance, including a claim that the deceased was "not well off". The respective parties' solicitors' affidavits disclose costs of $48,618 on the plaintiff's side and $84,194 on the defendants' side. It is highly unsatisfactory that such large amounts of money have been spent on preparing affidavits in such form. 7 The broad claims in the affidavits are of little assistance to either the parties or the Court in the assessment of the reality of the situation. It is unsatisfactory that the affidavits are in such a state, however it is understandable that counsel have sought to avoid further costs by not taking objections. Where there are matters of significance to the determination of the real issues in the proceedings I do not intend to give any weight to broad claims in inadmissible form without supporting material. Applicable principles 8 In Ball v Newey (1988) 13 NSWLR 489, Samuels JA with whom Hope and Mahoney JJA agreed, identified that the dependence claimed in that case was "only financial" and said at 491: "Dependent", in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed. In determining whether that relationship exists, it is relevant to bear in mind what was said by Sankey LJ in Lee v Munroe (1928) 98 LJKB 49 at 53; 21 BWCC 401 at 408, that in "deciding whether or not there is dependency the factors to be considered are past events and future probabilities". Whilst it is true that here we are concerned with financial dependence and not emotional dependence, the whole relationship between the appellant and the deceased must be examined in the light of that statement in order to exclude situations which might present the simulacrum but not the substance of dependency. 9 His Honour also said at 492: 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: cf, in a different context certainly, the meaning of "needs" in the Liquor Act 1912 as "reasonable demands or expectations": Toohey v Taylor [1983] 1 NSWLR 743 at 749. 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 on 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). 10 In Re Estate of Hakim; Simons v Permanent Trustee Co Ltd [2005] NSWSC 223 Palmer J said: 42 Dependence for the purpose of s 6(1)(d), so far as the cases have discussed, is seen as the giving of financial or other material assistance by the deceased over a significant period of time in order to meet a need of the eligible person, with the result that the recipient has come ordinarily to rely upon that assistance. 11 In Petrohilos v Hunter (1991) 25 NSWLR 343 Hope A-JA, with whom Clarke and Sheller JJA agreed, said at 346 that "the word 'dependent' is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact". In McKenzie v Baddeley [1991] NSWCA 197 Priestley JA, with whom Hope AJA agreed, described the receipt of $20 on earnings of $150 as a matter of "real importance" and "necessary" for the appellant's "daily life" and said: The word "partly" in the phrase "partly dependent" in par (d)(i) of the definition of "eligible person" is a word of some elasticity; it does not seem to me in its context necessarily to mean "substantially"; rather its suggests to me the meaning of "more than minimally" or, perhaps, "significantly". 12 It may be difficult to identify any real difference between the meaning of the words "substantially" ("of real importance or value") and "significantly" ("of real import") in this context: The Concise Oxford Dictionary, however I am of the view that financially "partly dependent" in this context means that the applicant relied on the deceased to provide financial support without which the applicant would not have been able to meet the reasonable costs of living. The assessment of dependency in respect of a child will be different from the assessment of dependency in respect of an adult. When an adult grandchild claims financial dependency there will be matters that need consideration that would not be relevant in the case of a child. It is important in this regard to draw the distinction between expectation and dependence. If an adult receives payment on a regular basis from the deceased and chooses not to obtain money from another available source because of the expectation of regular payment from the deceased, that does not amount to dependence within the meaning of that term in the Act. Financial dependency in the case of a healthy adult who is able to work means a necessity to rely on the deceased because there is no other source of finance available. 13 Although the Court's task in this regard has been described generally as one involving the consideration of "past events and future probabilities", I am of the view that in claims brought by healthy adult grandchildren who are able to work, dependence should be assessed by having regard to matters including: (a) the applicant's cost of living showing the break up of expenses on a weekly/monthly/or other (depending on the particular circumstances of the case) basis; (b) the income of the applicant (excluding the amount received from the deceased); (c) the amount received from the deceased on a weekly/monthly/or other basis; (d) whether the applicant was able to work and earn income to meet the reasonable costs of living that was otherwise provided by the deceased; (e) whether other sources of finance/income were available to the applicant to meet those living costs; (f) whether the applicant was able to work and chose not to do so; and (g) if the applicant chose not to work, whether that choice was necessary in all the circumstances, for instance, to care for the deceased; or infants; or elderly or infirmed members of the family.