Supreme Court New South Wales Medium Neutral Citation: Hatton v Hatton; Hatton v Hatton [2012] NSWSC 182 Hearing dates: 15/02/2012, 16/02/2012, 17/02/2012 Decision date: 08 March 2012 Jurisdiction: Equity Division Before: Associate Justice Macready Decision: Succession Act 2006 claim: (1)I dismiss the proceedings; (2)I order the plaintiff, Michael Hatton to pay the defendant's costs. Possession proceedings: (3)Judgment for possession in favour of the plaintiff; (4)I order each party to pay their own costs. Catchwords: ESTATE - Succession Act 2006 - application for family provision order by son of the deceased - defendant son of the deceased - estate left to all four children equally - claim for deceased's property - plaintiff carried out improvements to property - deceased provided below market value accommodation to the plaintiff for over 30 years - possession of property Legislation Cited: Family Provision Act 1982 Succession Act 2006 Cases Cited: Singer v Berghouse (1994) 181 CLR 201 Category: Principal judgment Parties: Michael Ian Hatton v Tony Edwin Hatton Representation: Mr M Bradford - Michael Hatton Mr M Gorrick - Tony Hatton Macpherson & Kelly Lawyers - Michael Hatton Philip Boyce and Associates - Tony Hatton File Number(s): 2010/412773 2011/267556 Judgment 1This is the hearing of an application under the Succession Act 2006 in respect of the estate of the late William Arthur Hatton who died on 18 December 2009 aged 95 years. 2The deceased's wife Lille Hatton died shortly before her husband on 12 December 2009 aged 93 years. 3The deceased was survived by four of his five children. One child, Michael Hatton, is the plaintiff in these proceedings. Another child, Tony Hatton, is the executor and defendant. 4There are also other proceedings before me in which Tony Hatton is the executor and plaintiff and Michael Hatton is the defendant. They are possession proceedings brought by Tony to recover possession of the main asset in the estate, the deceased's home, which is still occupied by Michael. I have made orders that the proceedings be heard together and the evidence in one is evidence in the other. Deceased's last will 5The deceased made his last will on 31 March 1973. Due to the events that have happened, namely the death of his wife, he appointed his son Tony as executor. He left the whole of his estate to his four surviving children equally. 6The children who have survived are Margaret Hatton born 1942 and aged 70, Tony Hatton born 1943 and aged 68, Barry Hatton born 1945 and aged 66 and Michael Hatton born 1947 and aged 64. Deceased's estate 7The estate of the deceased consisted of the following: The deceased's home at Normandy Road, Allambie Heights valued at $925,000. Cash held by the solicitors $4,296.71. Motor vehicle estimated to have a value of $4,000.00 Sub total $933,296.71 8To date $21,000 has been paid to Tony's solicitors in respect of their costs for the Succession Act 2006 proceedings. The costs remaining outstanding in respect of these proceedings and the possession proceedings total $82,638. 9Michael has so far incurred costs in both proceedings in an amount of $150,600. 10The executor, Tony, proposes to charge commission which if allowed at 1.5% would amount to $15,120. If orders are made in favour of Michael and his costs come out of the estate then the distributable estate will have been reduced to $680,821. 11If no claim had been made by Michael he would have received an amount of $233,324 as his one-quarter share in the distribution of the estate. History 12The deceased was born in August 1914 and his wife, Lille Ditton was born in October 1916. They married in June 1940. They had five children. Their first child, James, was born in December 1940 died in accident in March 1973. The other four children who survived the deceased and his wife are set out above. 13In 1952 the deceased acquired a block of vacant land at Allambie Heights and in 1955 he constructed a house on the land and the deceased and his family commenced to live there. 14The house at Allambie Heights consisted of two self-contained flats. The upstairs flat has three bedrooms and the downstairs flat has one bedroom. 15In 1966 Michael left home. He and married Galye Bellow and they had two children born in 1967 and 1969. In about 1971 or 1972 Michael and his wife separated. After the separation the deceased and Lille invited him to live with them at Allambie Heights, which he did. 16When Michael returned to live with his parents he lived with them in the upstairs flat. He converted the downstairs area of the house into a granny flat. 17In about 1973 Michael reconciled with Gayle and they moved into the upstairs area with their two children. The deceased and his wife moved into the flat downstairs. 18After the death of their eldest son James the deceased and his wife made their last wills on 31 March 1973. 19Tony left home and in 1969 he commenced a de facto relationship with Carol (known as Hayley) Henderson. Tony and his wife purchased land at Razorback, near Camden, and they commenced to build a house in 1975. 20Margaret left home in late 1976. She purchased land at Gladesville and built a house for a total cost of $25,000. The d eceased and his wife gave Margaret $12,500 to assist her in the purchase of the property. 21In his evidence Michael says he paid rent in cash to live in the property. The amounts he paid were as follows: * 1973 to 1977 $15 per week * 1978 to 1984 $20 per week * 1985 to 1999 $100 per week * 2000 to 2007 $150 per week 22Michael conceded that these amounts particularly in the early years were below market rent (T 28.15, 29.15 and 31.35-40). He also conceded that in 2007 he stopped paying rent. 23The deceased and Lille retired in 1979. In about May 1980 Tony and Hayley sold their property at Razorback and purchased a farm property at Oakdale near Camden where they have lived for many years. 24In 1994 Michael commenced to run his own cabinet making business. 25In 2000 Michael began a close personal relationship with Banjong (Tammy) Haslam. 26Michael and Gayle separated and they were divorced in November 2001. He remained living in the upstairs area of the deceased's property at Allambie Heights. 27In the first half of 2007 the deceased underwent a hip replacement and he remained in Manly Hospital for four months. At around this time Margaret and Lille became estranged to which I will refer later. 28As from mid 2008 Michael provided more domestic assistance to his parents. He undertook their household tasks and transported them to and from various places. 29In 2009 the deceased underwent a further hip replacement and he remained in Manly District Hospital for about four months before being transferred to a nursing home in Manly Vale in July 2009. 30In August 2009 Tony and Hayley sold their farm at Oakdale for $1,230,000 and Haley purchased, in her sole name, a house at Bowral for $700,000. 31About this time it became apparent that the deceased and Lille would have to move into a nursing home. At that stage the deceased was already in a nursing home and the family made a number of enquiries with nursing homes. The deceased was not happy with the nursing home at Manly Vale and in September 2009 Lille inspected the nursing home in Bowral which she found very attractive. 32It became plain that there would need to be a nursing home bond in two amounts of $300,000 and $200,000 to accommodate the deceased and Lille. 33At this stage it became clear to Tony and Hayley that the deceased only had about $70,000 in savings and that another $100,000 would probably be needed as well as the bond of $500,000. There were then proposals put forward in relation to raising the money. 34According to Tony he discussed with the deceased the sale of the Allambie Heights property and the use of the proceeds to fund the bond. 35Michael became interested in acquiring the property and sought to obtain finance to enable him to purchase the property and provide cash for the bond and other monies needed to look after his parents. 36As a result of a personal undertaking by Tony to the Bowral nursing home to make sure that the bond would be paid within a period of nine months the deceased and Lille moved into the nursing home on 5 November 2009. 37Michael and his de facto Tammy moved into the downstairs flat with a view to renting the upstairs flat. It had become plain to Michael that he would have to rent the upstairs flat if he were to purchase the property. 38On about 3 December Michael obtained an approval from the Commonwealth Bank for a loan of $600,000. 39To enable the loan he obtained a valuation of the property of between $930,000 and $980,000. He did not tell the deceased or his brother Tony about the valuation. Prior to that time in conversations about the proposed purchase by Michael the parties had been working on the basis that the house was worth $800,000. 40Sadly on 12 December 2009 Lille died aged 93 years and on 18 December 2009 the deceased died aged 95 years. 41As a result the house was not sold and no accommodation bond was paid to the Bowral nursing home. 42Michael continued to work on the downstairs flat and from January 2010 he and Tammy lived in the downstairs flat. 43On 1 July 2010 probate of the deceased was granted to Tony. Michael commenced Succession Act 2006 proceedings in December 2010. 44There was a mediation in August 2011 which was unsuccessful and accordingly Tony commenced the possession proceedings on 17 August 2011. 45In September 2011 the Succession Act 2006 proceedings were fixed for hearing on 15 February 2012 for two days. There was correspondence about the transfer of the possessions to the Equity Division to which I will return later. Michael sought a stay of the possession proceedings and the application was heard by McCallum J on 7 October 2011 when she made the following orders: SHORT MINUTES OF ORDERS In these short minutes of orders: ·a reference to "the property" is a reference to the land situated at and known as 21 Normandy Road, Allambie Heights in the state of NSW being the whole of the land in Folio Identifier 2366/752038]; ·a reference to the "downstairs fiat" is a reference to the residence forming part of the property and referred to and described in paragraph 8 of the affidavit of the plaintiff sworn 22 September 2011; ·a reference to the "upstairs house " is a reference to the residence forming part of the property and referred to and described in paragraph 8 of the affidavit of the plaintiff sworn 22 September 2011; ORDERS: 1.The plaintiff Tony Hatton, have judgment for possession of the property. 2.Issue of the writ for possession of the property be stayed until determination of Supreme Court Equity Proceedings 2010/412773 between Michael Hatton as plaintiff and Tony Hatton as defendant or until further order of the court and upon condition that: a) the defendant pay to the plaintiff an amount of $217.50 per week whilst ever he remains in occupation of the downstairs flat at the property; and b) the defendant and any other occupier of the downstairs flat do all things reasonably necessary to enable the plaintiff and his servants and agents to access the upstairs house at the property at all times including for the purposes of preparing the upstairs house to let and to thereafter let the upstairs house; c) the defendant and any other occupier of the downstairs flat not interfere with the reasonable enjoyment of any tenants of the upstairs house. 3.The defendant file and serve any defence to the claim by the plaintiff in these proceedings for mesne profits and/or damages on or before 20 October 2011. 4.These proceedings be joined with equity proceedings 2010/412773 to the intent that any outstanding claims for relief in these proceedings be heard at the same time as the final hearing of the equity proceedings. 5.Costs of the Motion filed 14 September 2011 and of the proceedings to date be reserved. 6.Liberty to the parties to apply on 3 days' notice. 7.THE COURT NOTES that Equity proceedings 2010/412773 are fixed for hearing for 2 days commencing 15 February 20012." 46After those orders were made Michael commenced payments of rent to the executor in accordance with judgment. Eligibility 47Michael is an eligible person being a child of the deceased. 48In applications under the Family Provision Act 1982 the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two-stage approach that a Court must take. These comments are equally applicable to claims under the Succession Act 2006 . At page 209 the court said the following: "The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors." Michael Ian Hatton 49Michael is 64 years and lives with his partner Tammy. They have no dependent children. They live in the downstairs flat of the estate property at Allambie Heights. Michael owns a factory at Cromer, which is valued at $275,000 (T 35.10). He owns a car worth $17,000 and a bank account of some $45,000 (T 35.10). Michael has paid some of his legal costs but he still has some $87,200 to pay. 50Michael's partner, Tammy, has a car worth $8,000 and she has $4,400 in a bank account. She has modest superannuation of $26,500. 51Michael's wages from a business, which he owns, are $721 a week before tax. He has expenses of $770.64 plus the rent of $217.50 that he pays under the judgment, which totals $988.14. So there is a shortfall. However, Tammy has an income of $586 a week, which is substantially used for expenses. 52Michael is in good health and continues to operate his business. He does have problems with his knees and he has been told that he will have to have two knee replacements. Fortunately he has private health insurance and he will only be out of pocket some $6,000. If both knees were operated on at the same time he would be required to take four months off work after the operation. If each knee were operated on at different times, he would require three months off work for each knee, totalling six months off work. He has not made a decision as to when he should have the knee replacements. Plainly if he had to cease work his business would no longer operate. 53Michael had a good relationship with his parents and he was of great assistance to them during the last year of their lives. I will detail this assistance later when considering the basis of Michael's claim for provision. 54Michael was also provided with a gift of $10,000 from his parents to marry his present partner. Michael did not refer to this in his affidavits. When asked why he did not refer to this gift of money he replied "I can't..I can't give you an answer to that, sorry" (T 26.10-35). Margaret Ann Hatton 55Margaret is 71 years of age and lives with her partner Warren Glanville. They live in a small one-bedroom house which they own in North Narrabeen as tenants in common. The property is valued at $740,000 and fortunately they do not have mortgage on the property. They have car which is 8 years old. 56The car and caravan they own have a value of $26,000. They have cash savings of $36,000, a managed investment scheme valued at $40,000 and a small share portfolio valued at $1,393. Margaret receives fortnightly benefits from Centrelink of $564 in respect of the aged pension and Warren receives a similar pension which covers their expenses but nothing else. 57Margaret had a good relationship with her parents but unfortunately there was an incident in when she had an argument with her mother when her mother's phone calls were being diverted to Haley's mobile phone. This apparently caused problems for the hospital when they were trying to contact Lille when the deceased was being operated on. Margaret left a message on Haley's phone stating, "what the bloody hell is going on". Lille was very upset and told Margaret that she was not going to telephone her again. There was no further contact between them from that time until Lille's death. Margaret says another matter that prevented her from contacting her mother was the death of her son Michael who committed suicide in January 2009. It was and still is a difficult thing for her to confront. 58In my view the short break in the relationship is not such as to affect any provision which should be made to Margaret. 59I have already set out above the fact that Margaret was given assistance during the lifetime of the deceased, which enabled her to have her first home. Tony Edwin Hatton 60Tony Hatton is aged 68. In 1965 he married Deidre and they were divorced in 1970. Tony has a son from that relationship. 61Tony has lived in a de facto relationship with his partner Hayley for 42 years. They have two children of their relationship. His children are not dependent upon him. Tony and Hayley live at Bowral in Hayley's home. 62Tony owns a partly completed house at Tin Can Bay, Queensland valued at some $225,000. When the house is completed it would probably be valued at $300,000. Tony intends to rent the property when it completed and it may then achieve an income of some $250 a week. 63Tony owns a motor vehicle valued at $12,000 and another utility vehicle worth $30,000. 64Hayley owns the property at Bowral which she purchased for $700,000. She owns a motor vehicle valued at $2,000 and a boat valued at $10,000. 65Tony and Hayley own their household furniture and have an interest in a superannuation fund that has a balance of $176,260. 66Tony has retired and he and Hayley receive a Centrelink aged pension and income from their superannuation fund. 67For the year ended 30 June 2011 Tony received $12,969 as income and his expenditure was $33,540. This is a shortfall of $20,570. The result is that they have to use the capital from the superannuation fund, which has decreased from $270,000 in May 2011 to $176,260 at 16 February 2012 (T 113.25). At this current rate of expenditure it will not last many more years. 68Tony had a good relationship with his parents and they supported Tony and Hayley. Tony did not receive any direct financial assistance from either of his parents except on one occasion when he borrowed $3,600 from his parents and then promptly re-paid that amount to them. Tony confirmed in cross-examination that his parents did not do any work on his house (T 150.25-45) and I accept this evidence. 69There was no contribution to the deceased's property by Tony, Barry or Margaret. Barry Thomas Hatton 70Barry is single and has no dependants. He is 66 years old. He married in 1966 and was divorced in 1998. 71In 2011 his relationship with a partner ended and he lives with his daughter and 15 year old granddaughter in Queensland. This is a temporary arrangement. 72Barry works as a pool technician and he has modest savings. He has savings of $40,000 and an amount due to him from his former partner of $60,000 which he advanced her to buy a house in which he has no interest. 73Barry has a business which together with the vehicle used in the business is valued at approximately $20,000. He also has his own car worth $25,000. He has no superannuation. His business as a pool technician gives him an income of about $800 gross per fortnight less fuel costs. 74Barry's situation is that he will have to continue working notwithstanding problems with his eyesight. 75Barry received no financial support from his parents although they visited him from time to time. Barry confirmed in cross-examination that his parents did not provide any money or do any work when they stayed with him. He confirmed that they only helped his very sick child and helped with sweeping floors or mowing (T 160-161) and I accept this evidence. 76Plainly he had a good relationship with his parents although he did not see them on a regular basis as he lived in Queensland. He usually visited his parents twice a year when he stayed with them for four to five days at a time. Discussion 77Michael puts forward a claim that he receive a bequest of the deceased's property at Allambie Heights subject to him paying the estate's unpaid costs under the Succession Act 2006 proceedings. 78This extraordinary claim seems to be predicated on the following: 1. The expectation created in him that the deceased wanted him to purchase the property for $450,000. 2. The assistance he gave to his parents over their lifetime. 3. The work Michael contributed to the property. 79Michael gave evidence that over the years there were a number of statements by Lille sometimes in the presence of the deceased, to the effect that they had assisted his siblings and they wanted to ensure that he was provided for, as well as statements that they were grateful for what Michael had done for them during their lifetime. 80Michael recounted a discussion which took place two or three years before the deceased died when they disagreed on the colour the house was to be painted. His father was alleged to have said: "When the place is yours you can paint it whatever colour you want." 81As I have already recounted it is plain that the only person who was provided with financial assistance was Margaret and, indeed, Michael himself received $10,000 from his parents in 2009 as a gift to marry his present partner. 82The impetus for Michael's belief that his parents wanted him to have the Allambie Heights property was probably as a result of discussions which he had with them a few months before they moved into the Bowral nursing home. 83In paragraph 40 of his affidavit dated 18 March 2011 he recounted the following conversation he had with his mother: " ..."40.In the months prior to Lille moving to Bowral House Nursing Home Lille and I had several discussions about me purchasing the Allambie Heights Property. At this stage I did not realise that the Allambie Heights Property was only in Bill's name. After Bill had moved to Manly Vale Nursing Home and Lille was also planning to go to a nursing home, Lille discussed with me how her and Bill would raise funds for her and Bill to both be placed in a nursing home. Lille and I had also discussed me buying the house at a discounted price and she said words to the effect: "You know your father and I need to find the funds to pay for us both to go into a nursing home. Tony and Haley say it will cost about $450,000 for us both to go into care. Your father and I do not have that type of money available. We will have to sell this home to be able to afford the nursing home. You know your father and I want to make sure you are looked after when we are gone. We have helped your brothers and sister along the way, now it is your turn. You can buy this house from us for $450,000. This is how much it will cost for your father's and my nursing home bond. There is no rush. You have at least 6 months to speak to the bank and sort out a loan and pay your father and me. We do not need to pay the accommodation bond for 9 months'. I replied words to the effect: "Ok. I will be able to manage that. I will go to the bank and enquire into what is required for the loan." 84Apparently it turned out that after that conversation the amount of the bond was fixed at $500,000. There were then discussions between Tony and Michael in which Michael appeared not to understand what was put to him by Tony that their parents would needs funds to meet their expenses over and above whatever might be needed for the bond. That led to Hayley giving Michael a note which was in these terms: "This is the example Tony was talking to you about. To move Lille And Bill into a nursing home in Bowral they would need at least $500000 to $600000 for the refundable bond and money in the bank To sell the house - At a guess it's worth $800000 Michael to take the balance Michael to arrange the real estate agent. If the house is worth more Michael to take the balance. Michael to get as much as possible for the house. After Lille and Bill pass away the bond from nursing home will come back to the family to do what ever the will decides. This is just a suggestion for better life for Lille and Bill using the savings they can live for 9 months without a bond ( I will look into this)???" 85The note plainly contemplated that there would be a sale to provide the funds and Michael would receive the balance. 86After the deceased and Lille moved into the Bowral nursing home Michael recounts a conversation with his mother in these terms: 45.After Bill and Lille moved to the Bowral House Nursing Home I visited them on a number of occasions, often accompanied by Tammy. On one occasion Lille raised the issue of the increase in the payment for the Allambie Heights Property from $500,000 to $600,000. We had a conversation which included words to the following effect- Lille: "I am very sorry about the increase from $500,000 to $600,000. I hope that you are able to manage this. Tony says we need the extra $100,000 because the cost of staying here [Bowral House Nursing Home] is more than he thought. Tony also said your father and I should have funds for living expenses and funeral expenses. Your father and I appreciate all you have done for us over the years and we want you to be looked after. It is unfortunate that the price of the house has to be more than what we thought". Me: "It is ok mum, don't you worry, you have enough on your plate settling in here. I will try and sort something out with the bank. If you need more money then I will pay it." Lilie: "Your father and I want to be sure you are ok. We have helped your brothers and sister and given them a leg up. Now it is your turn. We want you to have the house." Bill was present during this conversation. He did not say anything but that was not his way. Certainly he said and did nothing to indicate to me that he had any disagreement or concern in relation to what Lille had said In another conversation with Lille at Bowral, she said to me words to the effect: "We've done everything we could possibly do for the others. I am so happy that you have the loan and will stay at Allambie Heights. That is what we wanted." On or around 1 December 2009 I attended the Commonwealth Bank branch at Collaroy Plateau. Approval for a loan was granted at $600,000. Both Bill and Lille died before anything further was put into effect. Annexed hereto and marked with the letter "F" is a copy of the home loan approval for $600,000. 87Apparently the deceased was present at the first of these conversations but did not make any comment. 88The suggestion that the deceased may have wished to assist Michael was confirmed from conversations that took place between the deceased and Margaret. Margaret gave evidence of a conversation which took place in 1976: 6.On or around late 1976 Bill spoke to me about how he and Lille had assisted me to purchase my (then) home at 32 Albert St, Gladesville 2010 ('Gladesville Property'). Bill said to me words to the effect: "Your mother and I have helped you, Tony and Barry. You have all got your homes. Michael has not had that help. Michael has not got a home, he will be staying here helping us. I want you all to remember this, and to make sure he is looked after when your mother and I have passed on. I have spoken to the boys about helping Michael when your mother and I are gone". I replied words to the effect: "Yes Dad. I don't have a problem with that. We will look after Mick." Bill wanted my siblings to ensure that Michael had a "roof over his head". I had heard Bill used the phrase "roof over his head" several times in the context of Michael having a secure place to live." 89Margaret also recounted a further conversation with her parents when the deceased noted that with all the hard work that had gone into the property it would be good to keep it. The deceased and Lille replied, "Yes, it would be good to keep it the family". After that Margaret asked whether or not they thought they might like to transfer the property to Michael but the deceased replied that he had thought about it but when he consulted a solicitor he had been advised against it in case Michael and Gayle separated. 90I accept that these conversations took place. I should mention at this stage that Margaret supported Michael's application and she said: "He should be able to purchase the house for a reasonable price and the proceeds of the house should go back to the estate and I as well as my brothers should also be provided for adequately." 91It should be noted that the rent which Michael paid stopped in 2007. This was apparently as a result of he fact that Michael started to pay some of his parents' outgoings. 92It is perfectly clear that in addition to paying rent at a discount Michael made a number of improvements to the property. In paragraph 49 of his affidavit of 18 March 2011 he gave evidence of the work he had done over the period from the early 1970s. A number of the improvements are not supported by documents and some of the works are valued at today's prices. He estimated the total cost of the work at $76,645. 93Michael also gave evidence that since January 2010 he undertook work to the downstairs flat where he was living. He estimated the total cost of the work at $16,000. 94I accept that Michael undertook this work and the work after the death of the deceased must have been done in the knowledge that he did not own the property and he would be relying on the ability to buy it in due course. 95It is worth noting that Michael agreed in cross-examination that he did not have any agreement with his parents to buy the property (T 35). He has not brought a case based upon some promissory estoppel. Plainly such a case would not be available because there is nothing that he has done which would amount to a change of position in respect of any promises that might have been made. This applies to the earlier generalised promises and such discussions as there were shortly before the deceased's death. 96The submission that Michael did not own a house, unlike his siblings, also ignores the fact that he lived in the property at a reduced rent which enabled him build a house on a property on the Central Coast in the 1980's. He then sold the property, which enabled him to buy a factory that as at 2001 he owned outright. He runs a business from the factory, which has goodwill attached. When he decides to retire he will be able to rent out the factory or sell it. 97The deceased and Lille were both fit and healthy and it was only in 2006 at a later stage in their lives that they ceased driving. Michael gave his parents more assistance after that time but none of that assistance was intimate personal care. Michael and Tammy lived in the upstairs flat living their own life while his parents lived in the downstairs flat. 98The facts in this case are not the same as some cases where a sibling remains at home to look after elderly parents for many years and is involved in their personal care. On the contrary this case is quite different. 99It must be acknowledged that during the years of the deceased's life Michael contributed to the property and the costs mostly in present day terms is estimated above. 100However Michael paid minimal rent for the time he lived in the property. There is no evidence of the market rents at the time he was living at the property but at the time of conversations he had before the deceased's death the rent for the upstairs flat was expected to be $680 - $720 and the rent for the downstairs flat was expected to be $280 - $300 per week. As discussed Michael conceded that he thought the rent he paid in the earlier years was below market rent. Furthermore Michael stated that in 2007 he no longer paid any amount of money for rent. He recalls his parents saying "words to the effect 'You do not need to pay rent as you are increasingly paying many of our bills for us and you assist us with other things taking up more and more of your time.'" 101On this basis and the fact that Michael was provided with reduced accommodation for many years it seems to me that perhaps some of that rental benefit has been balanced out by the work he did on the property. 102Michael benefited from reduced accommodation rates for over 30 years a very substantial period. 103Michael's claim has to be seen in the context of the other claims made on the estate of the deceased. Margaret's situation is that although she and her partner own a small one bedroom home which does have some value, they just manage on a pension. This situation is not likely to change in the future and any funds would assist with renovations to their house as well as a buffer for the future. 104Barry's situation is dire given the break up of his de facto relationship. It may well be that he will not be repaid the $60,000 he lent his de facto partner. He does not own a house and he will have to find accommodation soon, presumably rented accommodation, unless gets funds from the estate to allow him to purchase a small property. 105Tony is in the best situation of all the children but now he has reached the stage where he and Haley have retired. They live on a small income and they are using the capital of what little superannuation they have left. Admittedly they have a house at Bowral and a partly completed house at Tin Can Bay. However, that will require funds of approximately $75,000 to complete and until the house is completed they will not derive any income from the property. 106Michael's claim and his obsession with his right to obtain the property from discussions with his parents is ill-founded. He seeks to receive the entire estate subject to him only paying costs that have been incurred by the estate but which have not been paid. His claim totally ignores the strong and pressing claims by his siblings. 107This is a matter where in my view the deceased made appropriate provision for his children. It was not a large estate and the deceased divided it equally between his children. 108Accordingly, I dismiss Michael's claim and order him to pay the defendant's costs. 109So far as the possession proceedings are concerned, it should be noted that on 2 September 2011 the defendant's solicitors offered to settle the proceedings on these terms: "OFFER: The parties to the possession proceedings consent to the following orders: 1.The plaintiff, Tony Hatton, have judgement for possession of the land known as 21 Normandy Road, Allambie Heights in the State of New South Wales which is the whole of the land in the Certificate of Folio Identifier 23 66/752038. 2.Issue of the writ for possession of the land be stayed until determination of Supreme Court Equity Proceedings 2010/412773 between Michael Hatton as plaintiff and Tony Hatton as defendant or until further order of the court. 3.The defendant to the possession proceedings file and serve any defence to the claim by the plaintiff in those proceedings for mesne profits and/or damages on or before 13 September, 2011. 4.The possession proceedings be joined with equity proceedings 2010/412773 to the intent that any outstanding claims for relief in the possession proceedings be heard at the same time as the final hearing of the equity proceedings. 5.The costs of the parties to the possession proceedings be reserved. The above offer is open for acceptance until 4pm on 5 September, 2011. If the offer is not accepted we are instructed to proceed to an expeditious determination of the relief sought in the possession proceedings. In that regard we note that your client was formally served with the Statement of Claim on 24 August 2011. Accordingly any defence to that Statement of Claim must be filed on or before 21 September 2011. We look forward to hearing from you." 110That offer was not accepted and Michael sought to have the proceedings stayed. The result of that application was that he was forced to pay rent from that time onwards. 111The commencement of the possession proceedings when a hearing date had been allocated for the Succession Act 2006 claim was, in my view, precipitous. This is borne out by the orders made by McCallum J. Plainly the executor is entitled to an order for possession and I so order. 112It seems to me that it would be appropriate for each party their own costs of the possession proceedings and I so order. ********** 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. Decision last updated: 24 April 2012